Vontade Quenete Agustinho v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 910/2020

[2025] HKCFI 3150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 910 of 2020

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

Following;

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

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 May 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 1 April 2020 (the “Board’s Decision”).

2.As per usual practice that the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.The oral hearing of the Leave Application (“Hearing”) took place before me on 15 July 2025 and the Applicant attended in person.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the basis of the Applicant’s claim is that he would be subject to a risk of serious harm or death if he returns to Mozambique because of the Applicant’s failure to repay a loan from a loan shark (the “Creditor”).

Discussion

5.The applicable legal principles are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14).

6.In summary, the Applicant set out the following grounds of complaint against the Board’s Decision in support of the Leave Application in the Form 86:-

(1)  The Board’s Decision is Wednesbury unreasonable.

(2)  The adjudicator placed too much reliance on COI information but failed to take into account the Applicant’s personal experience and evidence of political corruption and government incompetence in Mozambique.

(3)  The adjudicator unreasonably required the Applicant to answer questions which he was not in a position to offer any response.

7.At the Hearing, the Applicant confirmed that he had nothing to add to his Leave Application.

8.On complaints (1) and (2) above:-

(1)  As the Applicant appeared to have hold dual citizenship in Mozambique and Nigeria and it was indicated by the Director that the Applicant would be refouled to Nigeria, the Board considered the non-refoulement claim focusing on the risk to the Applicant if he is refouled to Nigeria (§§56-64 of the Board’s Decision).

(2)  Having perused the Board’s Decision, I found it comprehensive with adequate reasons provided. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of any form of serious harm, in particular given that he had in fact never been physically harmed by the Creditor or any of his associates (§§50, 69, 83 of the Board’s Decision). The Applicant’s oral evidence was also found by the Board to be unsatisfactory and inherently incredible. Hence, the Board rejected his factual account (§§77-82 of the Board’s Decision).

(3)  In any event, contrary to the Applicant’s complaint above, the Board in fact did take into account COI evidence of widespread corruption in Nigeria but concluded that it was not surprising even if the police took no action when the Applicant made a complaint given the lack of actual violence from the Creditor. In such circumstances, the Board was entitled, and indeed correct, to find that state protection will be available in any event. On this basis, the Board was fully entitled to reject the Applicant’s argument that the Creditor would pursue him with active or passive acquiescence of government officials (§§86-87 of the Board’s Decision).

(4)  The Board also rightly held that there was that the Creditor had any connection with the police or any public official which might allow him to harm the Applicant with impunity (§90 of the Board’s Decision).

(5)  Finally, the Board found that reasonable relocation alternatives were available to the Applicant within Nigeria given that the Applicant was an able-bodied adult with business experience (§§106-108 of the Board’s Decision).

(6)  Hence, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. Thus, complaints (1) and (2) are groundless.

9.In respect of complaint (3), namely that the Board was unreasonable in requiring the Applicant to answer certain question, I clarified with the Applicant during the Hearing as to what questions were asked by the Board which the Applicant said was unreasonable. He told me that the question was about whether he could go back to Nigeria. In fact, the Applicant confirmed with me was able to answer that question at the time. He said that he was unable to go back because of the alleged dangers there. Hence, complaint (3) is misplaced as it was clear that the question was appropriate and the Applicant had no difficulty answering that question.

10.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

11.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). In reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant with anxious scrutiny. I do not consider the Board’s Decision to contain any error of law, irrational findings or procedural impropriety. There is also no indication that the Board had taken into account irrelevant matters or failed to consider relevant matters.

Conclusion

12.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 1^st day of August 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