TUALUFO JOAO FRANCISCO v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1836/2019

[2024] HKCFI 3674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1836 of 2019

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Tualufo Joao Francisco (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 September 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Mozambican. He was born on 28 October 1985 in Maputo of Mozambique. He did not attend school and had about 4 years of work experience in engineering.

The Claim

3.  The Applicant claimed that his father was a local supporter of the political party Mozambican National Resistance (“Renamo”), for about 20 years and had been its community leader for 5 years.

4.  The Applicant claimed that his father and other senior members of Renamo were targeted by people of the Frelimo party (“Frelimo people”) after the Frelimo party became the ruling party in around October 2014. His father was killed on a day in early 2015 when a group of 10 people broke into his home and attacked his father (“Incident”). The Applicant was also attacked by the intruders and he lost a tooth, but he managed to escape. The Applicant returned home later and found his father dead. His mother told him that the intruders were affiliated with the Frelimo party.

5.  After the Incident, some members of Renamo informed the Applicant that the Frelimo people were looking for him. The Applicant hid in his friend’s place which was about 45 minutes by car from his home for 2 weeks before he sneaked into South Africa to avoid the Frelimo people. The rest of the Applicant’s family left for Malawi and he lost contact with them.

6.  The Applicant returned from South Africa to Maputo in early 2017 and stayed for two weeks at the home of a Renamo supporter which was 4 to 5 minutes by car from his home. From January to December 2017, he stayed in his friend’s place in Maputo. He then applied for a passport and used it to come to Hong Kong.

7.  The Applicant claimed that he would be harmed or killed by the Frelimo people if he were returned to Mozambique.

Procedural history

8.  The Applicant arrived in Hong Kong on 1 January 2018 using his Mozambican passport. He was permitted to remain as a visitor until 15 January 2018. He overstayed and was arrested by the police on 20 January 2018. By a written representation of 21 January 2018, the Applicant lodged the Claim.

9.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(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 risk”);

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

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 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

12.  When the Applicant filed the Form 86, he expressly stated in writing that he did not request an oral hearing for his application. I proceeded to deal with this application of the Applicant for leave for judicial review by way of paper disposal.

The DOI Decision

13.  The Director raised doubts about the reliability of the Claim because the Applicant was unable to recall the role taken or activities participated by his late father in Renamo with sufficient details.

14.  The Director further found that the Applicant was not at risk from the Frelimo people because he had only been harmed on 1 occasion (i.e. the Incident) and he was able to stay peacefully in his home area for the short period immediately after the Incident and for almost 1 year after he returned from South Africa. The Director did not accept that the ill-treatment inflicted upon the Applicant, directly or indirectly, attained a minimum level of severity. The low intensity and low frequency of past ill-treatment from the Frelimo people was indicative of a small future risk of harm upon the Applicant’s return.

15.  The Applicant chose to return to Maputo from South Africa and stayed there for almost 1 year before coming to Hong Kong. Such behavior was contradictory to that of a person who was genuinely in fear for his life and trying to evade the threat from his enemies. The risk of harm from the Frelimo people could hardly be accepted as imminent and immense.

16.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Mozambican government had taken measure to sustain police professionalism, to fight against corruption and to offer protection to its citizens. Reasonable state protection would be available to the Applicant, if necessary.

17.  There was no evidence showing that the Frelimo people was powerful, resourceful and influential as the Applicant claimed. There was nothing to show that they could or would deploy resources and network to locate the Applicant and inflict harms on him. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Nampula or Beira, the Frelimo people would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

18.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

19.  The Board identified several issues with the credibility of the Applicant at §§56-61 of the Board’s Decision but ultimately decided to give him the benefit of the doubt and proceeded on the basis that his father was killed by the Frelimo people during the Incident and that the Applicant himself suffered a minor injury during the attack. The Board also accepted that the Applicant had relocated to South Africa after the Incident.

20.  However, the Board did have concerns about the accuracy of the Applicant’s claims, particularly with respect to the degree of risk he might be facing, when the claimed risk was unsupported by any cogent evidence, and undermined by the Applicant’s own conduct. (§59 of the Board’s Decision)

21.  The Board noted that the Applicant was able to leave Mozambique with his own passport and remained in Maputo peacefully for some time. It therefore did not accept that the Frelimo government in Mozambique had any ongoing adverse interest in him or that he faced any risk of being harmed by the Frelimo people if he returned to his home in Mozambique.

22.  The Board also did not accept that the Applicant actually still held any subjective fear of returning to Mozambique.

23.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

25.  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 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.”

26.  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 a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated: “Affirmation for my non refoulement claim under USM. The Decision is given by Adjudicator of TCAB, on 10 June 2019. All my statement are true.” He then produced the Board’s Decision as exhibit to the Supporting Affidavit and no other supporting documents.

28.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. 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 was the Board’s Decision 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.

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

30.  The Board found that the Applicant did not actually held any subjective fear of returning to Mozambique. The Board was not satisfied that there were substantial grounds for believing the Applicant to be in danger of being subject to the torture risk if returned to Mozambique. The Board was also not satisfied that the Applicant faced a genuine and substantial risk of being subjected to the BOR 3 risk or that he had a well-founded fear of being subjected to the persecution risk, if returned to Mozambique. The Board further found that returning the Applicant to Mozambique would not expose him to the real risk of facing the BOR 2 risk.

31.  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 four applicable grounds under the USM. These are findings of fact which are 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 and 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. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

Conclusion

32.  In the premise and having considered the Board’s Decision and the DOI 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