Valoi Leonardo Vicente v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3029/2019

[2025] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3029 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 23 April 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 45, is a national of Mozambique. He came to Hong Kong as a visitor on 22 May 2018. He was allowed to stay as a visitor until 5 June 2018. He overstayed and surrendered to the Immigration Department on 15 June 2018. He lodged a non-refoulement claim by written representation on the basis that, if refouled, he will be harmed or killed by his uncle because he had lost US$175,000 entrusted to him by his uncle for the purchase of goods from China.

5.According to the applicant, he worked for his uncle, who had entrusted him with US$175,000 for purchasing building materials from China in 2005. He went to China with another person, who introduced him to a man in China. He paid the money for the goods. He lost the receipt and the man did not deliver the goods. He told his uncle about it. His uncle was furious, suspecting that he had stolen the money himself. His uncle threatened to kill him unless he repaid the money to him. His uncle had also caused nuisance to his family in Mozambique. He was afraid that his uncle might materialize his threat. So he came to Hong Kong.

6.Details of his claim are set out at paragraph 7 of the Notice of Decision dated 31 January 2019 (“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 dismissed the applicant’s claim. The Director found that there was no substantial grounds for believing that there will be any real risk for him being harmed or killed upon his return to Mozambique; that state protection will be available; and internal relocation is viable. [11]-[19]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 18 July 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found:

“42. The Appellant’s evidence about the reasons for his claimed fear of harm was extremely vague and lacking in the kind of credible detail that I would expect him to provide if he were telling the truth. …

43. The Appellant’s claims about what transpired in China were also vague and, in my view, quite implausible. …

44. The Appellant’s evidence about the documentation relating to the transaction with Mr Lee was inconsistent and most unsatisfactory. …

45. I do consider that the Appellant’s account of his uncle’s reaction to the disappearance of Mr Lee with his money is plausible or credible. …

46. … …I do not expect that the Appellant went to China to do a business deal for his uncle, that he was defrauded of a large amount of his uncle’s cash; or that his uncle intends to kill him if he returns to Mozambique. It follows that I also do not accept that his parents have died due to harassment to which they were subjected on account of the Appellant, or that his wife and children have disappeared.”

11.For the above reasons, the Board dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 15 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reasons to challenge the Board’s Decision.

DISCUSSION

14.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).

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

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

19.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.