Henri Chico Gomes v. Torture Claims Appeal Board

HCAL 3493/2019

[2025] HKCFI 2771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3493 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 June 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 54-year-old national of Guinea-Bissau who arrived in Hong Kong on 6 February 2008 as a visitor with permission to remain as such up to 13 February 2008 when he did not depart and instead overstayed, and was arrested by police on 23 May 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Guinea-Bissau he would be harmed or killed by his paternal uncle over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in The Gambia to a Gambian mother and a Guinea-Bissauan father and was raised in between the 2 countries but had acquired only his father’s nationality and citizenship of Guinea-Bissauan where his father owned a farmland in Village Amaseidi-Buba, Bissau with hired workers to cultivate crops to support the family, and after his father passed away, the Applicant stood to inherit the farmland but as he was then still a minor, the farmland was then held by his mother as trustee for him until he became an adult.

3.However, when he reached adulthood, the Applicant never took possession of his father’s farmland, and instead in 2004/2005 he went to Senegal to start a garment trading business there, returning to Guinea-Bissau only to visit his mother.

4.After his mother passed away in December 2006, the Applicant attended a family meeting called by his paternal uncle who claimed to have an interest in the farmland and proposed to build a town hall on the land for the community, and when the Applicant objected by claiming that it was his property inherited from his father, his uncle slapped him on the face and threatened to kill him if he dared to interfere with his plan.

5.To avoid further confrontations with his uncle, and hoping that his uncle was not serious about his plan, the Applicant left Guinea-Bissau to return to Senegal to run his garment business.

6.However, one day in December 2007 the Applicant was informed by a friend from his home village in Guinea-Bissau that his uncle’s workers had started constructions on the farmland, and so the Applicant rushed back to Guinea-Bissau to try to stop the construction, during which he broke into another heated argument with his uncle which deteriorated into a fist fight between the 2 of them until they were restrained by other members of the family.

7.After the fight the Applicant made a report to the local police who however refused to take any action against his uncle as they regarded the matter as a private dispute within their family.

8.Thereafter the Applicant returned to the farmland to try to stop his uncle’s workers who were then told by his uncle to beat the Applicant and then drove him from the farmland, and later when his uncle warned him that next time he tried to interfere with the construction, his uncle would order the workers to kill him.

9.After the threats the Applicant noticed that he had been followed around by unknown men whom he suspected were sent by his uncle to harm or kill him, and so he left Guinea-Bissau to return to Senegal, and in February 2008 he travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on 3 September 2008 for some criminal offence for which he was convicted on 19 December 2008 and sentenced to prison for 12 months.

11.Upon his discharge from prison, and when he was again released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 11 August 2010 for some criminal offence, and was subsequently given another prison term for 28 days upon conviction.

12.Eventually by a Notice of Decision dated 23 December 2014 and a Notice of Further Decision dated 17 May 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

13.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and followers upon his return to Guinea-Bissau as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him or that his uncle would still have any adverse interest in him all these years since he left the country, that in any event it was a private land dispute between just the 2 of them only within their family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Guinea-Bissau with a large population of 1.7 million people spread across a vast territory of more than 28,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his uncle to locate him, or for him to return to Senegal where he had lived and conducted his own business without any incidents in the past and without any risk of harm from anyone.

14.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the oral hearing scheduled on 10 August 2015 before the Board, and in the absence of any response from him to the subsequent request by the Board for his explanation for his failure to attend the hearing or any request for a further hearing, the Board proceeded to deal with his appeal in his absence and on papers based on the materials and information previously submitted by the Applicant to the Director and available before the Board. On 20 June 2019, his appeal was dismissed by the Board which also confirmed the Director’s decisions.

15.In its decision the Board accepted the Applicant’s claim of his land dispute with his paternal uncle but found no reliable evidence of any real intention of his uncle to seriously harm or kill him or that his uncle would still have any adverse interest in him given the fact that he has left Guinea-Bissau all these years since 2008 and has apparently given up reclaiming the farmland, and that in any event it was a private land dispute between just the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to Guinea-Bissau as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

16.On 25 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to why it is so, nor did he request any oral hearing for his application.

17.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

18.As the last day of the three-month period for him to file his Form 86 fell on 20 October 2019 after discounting the month of August for court’s vacation, the Applicant was therefore more than 1 month late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

19.In the Applicant’s case, a delay of more than 1 month must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 20 June 2019 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such significant delay.

20.As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge of the Board’s decision, nor did he request any oral hearing for his application, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

21.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Guinea-Bissau or to return to Senegal where he had lived before without incidents, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

23.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

24.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 10^th day of July 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1