VALOI RODRIGUES JEREMIAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 235/2020

[2025] HKCFI 2071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 235 of 2020

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 the Applicant being absent in open court

1.      Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration 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 22 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 29 May 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by his creditor in Mozambique, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is unnecessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  The Applicant is absent from the oral hearing.  I have proceeded to consider the merits of his present leave application (see Re Abdus Salam [2019] HKCA 1091).  In view of the seriousness of the issues involved, I have reminded myself to rigorously examine and anxiously scrutinize the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)   In brief, the Applicant’s case was that, if refouled to Mozambique, he would be at risk of death or other harm at the hands of a loanshark to whom he owed money.

(2)   The Applicant was unable to explain some “most unlikely points in his evidence” and led the Board to conclude that he was not a witness of any credit whatsoever.

(3)   As the Board did not accept any of the Applicant’s evidence, there was no basis to find that there was any foreseeable, real, personal or present risk that he would be tortured if refouled.

(4)   Similarly, there was no basis to find any substantial risk that the Applicant would be killed.

(5)   Nor was there any basis to conclude that there was a substantial risk that the Applicant would be tortured or subjected to CIDTP.

(6)   In addition, it could not be shown that there was any substantial risk that the Applicant would be subjected to persecution.  In any event, any such persecution would not be done on account of a Convention reason but to recover debt.

5.  Based on the above findings, the Board concluded that the Applicant did not face any real risk of arbitrary deprivation of life, torture, CIDTP or persecution if he were to be refouled.

6.  It has been reiterated time and again that the primary responsibility for assessing these matters lies with the Board.  In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see 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, etc.).

7.  The Applicant has not provided any evidence or basis to demonstrate that the Board incorrectly applied the law or evaluated the evidence, etc., or failed to uphold the very high standard of fairness in this case. 

Conclusion

8.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

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