NGOMENE ERICK DAVID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3389/2019

[2025] HKCFI 3158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3389 OF 2019

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.   On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 31 October 2019”. 

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 14 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect a decision dated 31 October 2019 without identifying the decision-maker. There was also no putative respondent named in Form 86.  However, the applicant named the Torture Claims Appeal Board (“the Board”) as the defendant in his supporting affidavit dated 14 November 2019, and the Board did give its decision on 31 October 2019 (“the Board’s Decision”).  Thus, it is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003389_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 14 December 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant did not name any putative respondent and named himself as the putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent, and the name of the putative interested is amended to “Director of Immigration”.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.  Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 31 October 2019”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Mozambique, he would be harmed or killed by his paternal uncle named Jeff in connection with a land dispute.  Jeff wanted to take over the applicant’s land that was inherited from his late father.  The applicant had been beaten and threatened with death by Jeff and his agents.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit.  The applicant merely stated in his supporting affidavit that his case should be reviewed because his uncle was planning to kill him in his country, and his case should be reconsidered again for the safety of his life.

Discussion

10.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

11.  Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

12.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 9 August 2019.  The Board questioned the applicant for details regarding his claims.  The Board assessed the applicant’s evidence in its totality, and concluded that the central aspects of the applicant’s circumstances were not as he had claimed due to the multiple significant anomalies found.

13.  For examples, the applicant failed to identify the area of his place of birth or provide an address where he lived in Mozambique.  The applicant’s claim that his first language was English also contradicted with country of origin information showing that while less than 10% of the Mozambican population spoke the official language of Portuguese as their first language, the majority of the population was likely to speak a Bantu language as their first language.  The applicant insisted that English was his first language, but he demonstrated some difficulties communicating in the English language.  The Board explored with him whether he required an interpreter, and if so, in which language.  The applicant insisted that he did not need an interpreter, he understood the English spoken by the Board and he was able to communicate in English.  He said that there was no other language he could communicate better than English.

14.  The applicant could not state the name of the school he attended in Mozambique, and was unable to provide street names or suburbs in Mozambique beyond naming the city of Maputo.  The applicant was inconsistent with the year of his parents’ death.  He could not even recall the name of his childhood friend whom he sometimes stayed with, nor the specific suburb or area that this friend lived.  The Board had serious concerns about even the most basic aspects of the applicant’s claimed circumstances, such as where he was born, raised, his nationality and his family composition.

15.  In relation to the cause and incidents that led to his fear and subsequent escape from Mozambique, the applicant even failed to give the specific address of the land in dispute or to describe the size of the land.  The applicant was inconsistent about the number of family members of Jeff, the whereabout of the title documents for the land, whether Jeff had personally harmed him physically, the number of attackers whom he encountered and whether he was with a friend when being attacked.

16.  The Board found that multiple and cumulatively significant aspects of the applicant’s evidence cast doubt on the truth of the central aspects of his claims, including that he was orphaned at age 10, that he ever inherited the land in Mozambique, that he was ever harmed, targeted for harm or death, or threatened in respect of the land by anyone, including his uncle Jeff and/or his networks.  The Board rejected all these claims.  

17.  On the totality of the evidence before it, the Board concluded that the applicant did not face a real chance of harm of any kind in Mozambique in the reasonably foreseeable future for any of the reasons he had claimed.

18.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

19.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

20.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

21.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.  The Board’s Decision is not unfair or unreasonable.  The applicant’s alleged danger from his uncle Jeff had been duly assessed and rejected by the Board.

22.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

23.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.  For reasons aforesaid, the Leave Application is 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