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HCAL 211/2020
[2025] HKCFI 2061
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 211 of 2020
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BETWEEN
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Zunguza Marcos Paulo |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
(1) Form 86 be amended, naming 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 dated 20 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 14 October 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 25 March 2019 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
2. In Form 86, the Applicant has incorrectly identified the Board as the proposed interested party and referred to the date of the Board’s Decision as 19 May 2019, both of which I have corrected on my own motion.
Background
3. The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim that he would be killed 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
4. The Applicant is absent from the oral hearing. I have proceeded to consider the merits of the present application based on the materials available before me (see Re Abdus Salam [2019] HKCA 1091).
5. First of all, in view of the seriousness of the issues involved, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). The Board had confirmed the Director’s Decision, not only on the basis that the Applicant may not apply for non-refoulement protection under section 37W of the Ordinance and paragraph 7 of the Petition Guide, but also, alternatively, that his non-refoulement claim was unsubstantiated on all Applicable Grounds in any event, whether against Nigeria and/or Mozambique as the Risk State.
6. It was primarily within the province of the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation. I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, and adhered to a very high standard of fairness.
7. The Applicant has failed to identify any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). Nor has he complied with the duty to make full and frank disclosure in this application (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).
8. In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide 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.).
9. I am not remotely convinced that the Applicant’s intended application challenging 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), and have therefore refused leave.
Conclusion
10. I make an order that Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 8th day of July 2025
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(Edison Ho)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 8/7/2025
Zunguza Marcos Paulo
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15751/19/4/9/MOZ32
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 80/19 (formerly RBCZ 17/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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