Exavier Fabian Carlo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2888/2019

[2025] HKCFI 2615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2888 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 July 2019 of the Torture Claims Appeal Board (“the Board’s letter”), which confirmed that the applicant had applied to the Board for withdrawing his appeal against the Director’s Notice of Decision dated 1 April 2019, rejecting his non-refoulement claim.

2.The applicant asked for a hearing. However, he was absent at the hearing on 2 June 2025. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Tanzania. He arrived in Hong Kong as a visitor on 29 September 2016 and on 16 October 2017, he was arrested after overstaying since 26 December 2016. In due course, he lodged a non-refoulement claim in Hong Kong.

4.The applicant’s claim was based on his fear of being harmed or killed by his father’s business partners and their related persons because of his father’s business dispute.

5.According to the applicant, his father supplied gemstones to a business named China Gem Company Limited in Hong Kong and was a supporter of Chama Cha Mapinduzi, the current ruling party of Tanzania. The gemstone market experienced a downturn in 2016 and the father’s business suffered a loss. His father told him that the new government of Tanzania worsened the living conditions of the Tanzanian citizens and they sought to crime, targeting business people and threatened them for money. His father received threats from anonymous persons and he does not believe the authorities would perform their duties unless a bribe was paid. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 1 April 2019 by the Director (the “Director’s Decision”).

6.Details of his claim are set out at paragraph 6 of the Director’s Decision.

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that it was not accepted that the ill-treatment inflicted upon the applicant was severe and attained a minimum level of severity and the future risk of harm was assessed to be very low [16-17]; that state protection was available [18-20]; and that internal relocation alternatives were available and reasonable [21-26].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. By letter dated 14 June 2019, he applied to the Board to withdraw the appeal stating it was safe for him to go back. On 22 July 2019, the Board wrote back to the applicant seeking clarification for the withdrawal but did not receive any reply.

10.By the Board’s letter, the Board confirmed his application for withdrawal of his appeal and approved it.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s letter.

12.In his affidavit in support of his application, the applicant deposed that his statements were true, exhibiting the Board’s letter. He did not raise any specific ground to challenge the Board’s letter.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.The applicant has raised no valid ground to challenge the contents of the Board’s letter. On the contents of the Board’s letter, the Board was correct to confirm the applicant’s application for withdrawal of his appeal.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.