MUTHAMBE KADIR ALBERTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2475/2019

[2025] HKCFI 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2475 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 31, is a national of Mozambique. He has made a non-refoulement claim by way of a written signification dated 17 October 2017 on the basis that, if refouled, he would be harmed or killed by people from Frelima (a political organization in Mozambique) because he had refused to quit the Renamo, another political party, and he had assisted Renamo to recruit new members. He came to Hong Kong on 19 July 2017 as a visitor. He then left for South Korea, which refused his entry. He returned to Hong Kong and was allowed to stay until 21 August 2017. He overstayed since 22 August 2017. He surrendered to the Immigration Department on 22 August 2017.

5.  According to the applicant, he was a youth leader of Renamo in 2016 and his duty was to recruit new members for Renamo. In the same year, members of Frelima tried to recruit him as a member. He refused. He assisted Renamo to recruit new members. The applicant alleged that the Frelima members had been to his house to look for him. They vandalized the house and assaulted his father with wooden stick. His father was badly injured and was admitted to hospital where he died after 3 days. He had hidden himself in a friend’s place for 10 days. He had gone to South Africa where he stayed for about 3 months. Then he left for Mozambique. His mother told him that his enemies were still looking for him. He came to Hong Kong.

6.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 11 September 2018 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

8.  By way of the Director’s Decision, the Director dismissed the applicant’s application for the reasons that (i) there is no information that he was physically hurt by his enemies, therefore his risk from his enemies is low and his feared treatment is unlikely to materialize [11]-[12]; (ii) he did not make a report to the police, but state protection will be available [14]-[17]; and internal relocation is viable [18]-23].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 5 December 2018, the Board conducted a hearing. The applicant had given oral evidence before the Board.

10.  Having considered the evidence, the Board dismissed the appeal on the reasons below:

“45. The Board raised its concerns that the Appellant’s oral evidence was different from the information he had provided in his NCF. …

67. Based on the credibility concerns discussed above, the Board finds the Appellant is not a witness of truth and the Board is not satisfied the Appellant has told the Board the truth in relation to critical elements of his claims.

68. On the evidence before it, the Board does not accept the Appellant was a member and a young leader and recruiter for Renamo. The Board does not accept people associated with Frelimo hated the Appellant for his recruitment activities and requested to stop and warned him. The Board does not accept people associated with Frelimo were looking for the Appellant or attacked his father. The Board does not accept the Appellant was politically active in Mozambique, and the Board does not accept anyone associated with Frelimo or any other political party had or has any adverse interest in the Appellant. The Board does not accept the Appellant left Mozambique to avoid harm from people associated with Frelimo, or anyone else.

71. In light of the findings above, the Board considers the Appellant would not be at a real risk of any harm if he returned to Mozambique. The Board finds that there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Mozambique.”

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … Assessment of evidence and COI 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.”

16.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17.  There is no reason that the Court should interfere with the Board’s finding of the facts.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.