SITOE CLAUDIO MARCELINO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2730/2019

[2025] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2730 of 2019

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Sitoe Claudio Marcelino (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 22 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 25 April 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Mozambican. He was born on 3 March 1985 in Magude, Mawandala 2, Mozambique. He completed secondary school and had work experience as an electrician assistant.

3.  The Applicant claimed that his paternal uncle (“Uncle”) and Uncle’s sons in Mozambique would ill-treated him because of a dispute over family properties. According to the Applicant, his father passed away when he was young and his mother inherited the family properties from his late father, including some land and a shop selling cosmetic goods.

4.  Uncle kept pressuring his mother to give him the properties and in 2014/2015 even threatened to harm her. His mother disappeared after going on a business trip in around 2015.

5.  The Applicant attended a family party on 2 January 2016 at Uncle’s home but Uncle’s son and 2 unknown men attacked him at the party. Fearing for his safety, he decided to flee the country.

6.  He fled to Mainland China in around April 2016 and came to Hong Kong on 20 July 2016. He was allowed to stay as visitor until 3 August 2016. He overstayed and surrendered to the Immigration Department on 5 August 2016.

7.  The Applicant raised the Claim by way of a written representation dated 11 July 2017. He claimed that on return to Mozambique, he would be ill-treated by Uncle and his sons.

8.  The Applicant was sentenced to imprisonment for 2 years and 4 months for trafficking in dangerous drugs in late 2017.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 17 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision but referring to the date of the DOI Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”) and identified the Board’s Decision as the decision being challenged. In the Form 86, the Applicant named the Board and the Immigration Department as the proposed respondents. He also named the Immigration Department as the interested party.

12.  The Applicant attended the court hearing of 29 May 2025 (“Court Hearing”) and said that he was mentally not fit to say anything. He produced some documents to the court at the Court Hearing showing that he owed some moneys to the Hospital Authority (“HA”). He said that he could submit medical certificate to show that he was mentally not fit. On 5 June 2025, the Applicant submitted the following documents (“Documents”) to the court:

(1)  a bill dated 31 December 2021 issued by Pok Oi Hospital (“POH”) for $1,230;

(2)  a statement dated 15 January 2022 issued by POH showing outstanding of $1,230;

(3)  a discharge form dated 15 March 2025 issued by the HA stating that the Applicant was discharged on “15/3”;

(4)  a discharge slip dated 15 March 2025 issued by POH stating that the Applicant was admitted on 15 March 2025 and discharged on the same day;

(5)  a discharge summary dated 15 March 2025 issued by POH stating that the Applicant’s emotional status was “Stable”;

(6)  a referral letter dated 15 March 2025 issued by POH (“Referral”).

(7)  a bill dated 16 March 2025 issued by POH for $5,100;

(8)  a statement dated 18 March 2025 issued by POH showing outstanding of $5,100; and

13.  In the Referral, the Applicant was referred to Tuen Mun Mental Health Center for expert management. In the Referral, the referring doctor stated that:

“request to leave police station and stay in hospital

because he is scared

claimed he has depression since childhood

however not seen psychiatrist

later corrected saying he finished his psy med but cannot tell name of drugs

claimed low mood since being arrest

no self harm / suicidal noted by polices

not psychotic

MSE:

congruent affected

speak C/R

no urgency for psy consult

to refer psychiatrist” (Emphasis added)

14.  It can be seen that the Referral dated 15 March 2025 (ie more than 2 months prior to the Court Hearing) only stated the mental problems “claimed” by the Applicant. No medical opinion was expressed by the referring doctor on the mental condition of the Applicant. Nowhere in the Referral stated that the Applicant was mentally unfit to handle these proceedings.

15.  I had told the Applicant at the Court Hearing that the court might proceed with this application according to available information after considering his so called “medical certificate” to be submitted by him to the court after the Court Hearing. He was invited to make whatever submissions he wished to make to the court. The Applicant decided not to make any submissions.

16.  After carefully considered the Documents, I do not accept that the Applicant was mentally unfit to handle these proceedings. It was the Applicant’s own choice not to make further submissions to the court at the Court Hearing. I do not see that it is necessary to hold another hearing for the Applicant’s application for leave for judicial review. I proceed with this application according to papers and information available to the court.

Legal principles applicable to judicial review

17.  In a judicial review, the court does not step into the shoes of the decision makers.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

19.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

20.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

21.  In the Supporting Affirmation, the Applicant deposed that he was not satisfied with the Board’s Decision and it was not safe for him to return to his home country.

22.  The Applicant testified at the hearing before the Board. The Board found the Applicant’s evidence incredible and did not accept his claim that he faced risks of harm from his relatives in Mozambique.

23.  In §19 of the Board’s Decision, the Board set out the Applicant’s case.

24.  For reasons set out in §22 of the Board’s Decision, the Board found that the Applicant had not made out a case where he needed non-refoulement protection. The Board was of the view that the Applicant’s conduct of attending the party at Uncle’s place was inconsistent with someone who was genuinely in fear of being harmed by Uncle and his family members (§22(iii) of the Board’s Decision).

25.  The Applicant told the immigration officer at the screening interview that the family land and properties had been controlled by Uncle. The Board was of the view that in such case the risk of harm from Uncle had dissipated. (§22(iv) of the Board’s Decision)

26.  The Board further found that the Applicant’s behavior of engaging in dangerous drugs trafficking in Hong Kong was inconsistent with someone who really wanted protection. (§22(vii) of the Board’s Decision)

27.  After considering the relevant country of origin information (“COI”) materials, the Board further found that state protection was available to and internal relocation to Maputo or Beira would be viable for the Applicant (§§28 and 52 of the Board’s Decision).

28.  The Board noted that the Applicant was able to leave Mozambique via the official channel and there was no evidence to suggest that Uncle had any connection with the government in Mozambique. The Board found that Uncle was unlikely to have the necessary resources to locate him in the vast country and with his age and work experience, it would not be unduly harsh for him to relocate to other parts of Mozambique.

29.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

30.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

31.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

32.  In §§29-47 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.

33.  The Board found that the Applicant had never been “tortured” as defined under Section 37U(1) of the Ordinance. Uncle was not any government official. The Applicant was not a target of the Mozambique government. His disputes with Uncle were private disputes and no government officials had been involved. Furthermore, state protection was available.

34.  The Board found that the facts of the Applicant’s case did not engage BOR 2 in relation to death sentence and genocide. The Applicant had also failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Mozambique.

35.  According to the Applicant, he had only been attacked once in Uncle’s house and suffered minor injuries. The Board found that it was unlikely that he would face a genuine and real risk of being ill-treated under BOR 3 upon his return to Mozambique and state protection was available.

36.  The Board also found that the Applicant’s fear of ill-treatment did not fall within the definition of persecution in that it was a private dispute between him and Uncle and his sons and was not on account of any of the grounds referred to in the Refugees Convention, ie race, religion, membership of a particular social group or political opinion.

37.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

38.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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