Da Silva Nelson Joaquim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3056/2019

[2025] HKCFI 2819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3056 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 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. He appeared before the Court on 28 May 2025.

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 is a national of Mozambique. He arrived in Hong Kong on the strength of his Mozambican Passport on 7 December 2016 but did not depart and instead overstayed since 22 December 2016. On 29 December 2016, he surrendered to the Immigration Department and in due course, he lodged a non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his uncle due to a land dispute.

6.According to the applicant, his uncle wants to keep the applicant’s father’s house for himself after the passing of the applicant’s father. The applicant was assaulted by the uncle and his friend on more than one occasion, but the applicant did not go to the hospital to treat his injuries. He did seek police assistance but he was told this sort of issue should be resolved within the family. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 31 July 2018 by the Director (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: there were no substantial grounds for believing that there would be any real risk of being harmed or killed upon the applicant’s return to his home country, the material elements were based on hearsay information, and the risk of harm from the uncle could hardly be accepted as imminent and immense [11]; state protection was available [12-19]; and internal relocation alternatives were available and reasonable [20-21].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 13 February 2019 via video conference and 20 September 2019, the Board conducted oral hearings for his appeal, during which the Board asked the applicant questions in relation to his claims [34-36]. The first hearing was conducted by video conference as he was serving a prison sentence due to a conviction of working illegally in Hong Kong.

10.Having considered the evidence, the Board found that there were multiple, material inconsistencies in the applicant’s evidence and that the applicant was not a credible witness [37-39]. The Board found that the applicant fabricated his claims so as to create a basis upon which to apply for non-refoulement protection [38]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 16 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any ground in support of his application.

12.In his affidavit in support of his application, the applicant deposed that he did not agree with the Board’s Decision and the reasons are because his life is still in danger, and he will be killed by his uncle if he returns to his country. He has raised no specific ground to challenge the Board’s Decision.

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. Before me, the applicant said that the Board was wrong for not believing his evidence and he asked this Court to review the Board’s Decision.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings. There is no reason that this Court should interfere with the Board’s Decision.

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

DISPOSITION

18.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 appeared in person.