Case Document

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HCAL 2551/2019

[2025] HKCFI 3501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2551 OF 2019

BETWEEN
	Rodrigues Horacio Sambora	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Mozambique who last arrived in Hong Kong on 7 May 2019 as a visitor with permission to remain as such up to 21 May 2018 when he did not depart and instead overstayed, and was arrested by police on 22 May 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Mozambique 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 and raised in Maputo, Mozambique. After leaving school he was supported by his widowed mother selling food and grocery in his home village.

3.When he was a small child the Applicant was told by his mother that his father was murdered by his paternal uncle in the 1990s who then took his father’s land and properties.

4.When he reached his late 20s the Applicant started to confront his uncle with demands for the return of his father’s properties, but to which his uncle refused and instead sent his men to threaten him, and so to avoid his uncle’s threats the Applicant in 2017 left Mozambique for South Africa, and in May 2018 he travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 14 November 2018 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed future risk of harm from his paternal uncle upon his return to Mozambique is real and foreseeable 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 other than just to deter him from making his claim against his uncle, that in any event it was a private property dispute between him and his uncle within the family only 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 Mozambique with a large population of 26 million people spread across a vast territory of more than 799,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other areas of the country away from his home district in large cities such as Nampula where it would be difficult if not impossible for his uncle to locate him.

7.On 27 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim that his paternal uncle had murdered his father and taken his properties as alleged by the Applicant but accepted his claim of some property dispute with his uncle but found no reliable evidence that he had as a result been threatened or harmed by his uncle or followers prior to his departure of Mozambique, and that in any event it was a private property dispute between him and his uncle only without any official involvement that state or police protection would be available to the Applicant upon his return to Mozambique without any risk of any harm from his uncle or anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.On 2 September 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 stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.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.

11.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mozambique, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 19^th day of August 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19 August 2025 Rodrigues Horacio Sambora Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM14598/18/11/441/MOZ23 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3885/18 (formerly RBCZ 10582/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)