SITIGUE ALBERTO ADAO v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1577/2018

[2020] HKCFI 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1577 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 11 April 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 15 November 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Immigration Department and replaced it by the Board as proposed respondent and to add Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Mozambican national. He came to Hong Kong in June 2008 as a visitor. He then traveled between Hong Kong, Macao and China. On 9 September 2008, he was arrested for possession of dangerous drugs and was fined. He overstayed since 10 September 2008. He was arrested by police and referred to the Immigration Department.  He lodged a non-refoulement claim on 19 September 2008.

5.  He claimed that if refouled, he would be harmed or even killed by people/members from the Muslim community, in particular those in his home town Mafalala since he had converted from Muslim to Christianity.

6.  He and his wife converted from Muslim to Christianity in 2006 in an open ceremony in Mafalala. He was then warned by the Muslim community that he would be subject to Sharia law. He was scared and he left his wife and left Mafalala to stay in other places in South Africa, India and Nepal and Thailand. He did not ask for help from police because he considered it would be useless. He was advised to stay in Hong Kong and he took the advice and arrived at Hong Kong in June 2008. He had borrowed money from his friend to leave his country. But he was unable to pay them.

The Director’s Decision

7.  The Director considered his application in relation to the following risks:

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

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

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”).

8.  By Notice of Decision dated 16 December 2016, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his evidence showed that there was only a small and low future risk of harm upon his return to Mozambique [51], the reasons having been set out in paragraphs 35-50; that state protection was available to him [52] and internal relocation was an option open to him [60].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 February 2018.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found that he relied upon hearsay evidence [61] and his evidence was unreliable [62] and it found his evidence incredible in support of his claim [71]. Also, it found that the country of origin information relied upon by the Director was acceptable and that state protection was available to him [65] and internal relocation was an option open to him [66 & 92].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 8 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affidavit in support of his application, he said that he had been in Hong Kong for over ten years. He had no objection of going back to his own country. All he wanted was more time to stay in Hong Kong. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  The applicant’s application was out of time as he filed Form 86 on 8 August 2018 whereas the Board’s Decision is 11 April 2018, the deadline being 11 July 2018. Therefore, I have to consider the merits of his application before deciding whether time should be extended for his application to proceed. See Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28.

15.  The applicant appeared before me and confirmed that he was free to put his case before the immigration officer and the Adjudicator of the Board. He repeated what he said in his affirmation. He wanted three years to get himself prepared to return to Mozambique.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant extension of time to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.  It is further directed that:

a.     If the applicant intendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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