TALA INACIO MARIO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2035/2019

[2024] HKCFI 3049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2035 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 June 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 asked for a hearing. He appeared before the Court on 23 October 2024.

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 44, is a national of Mozambique. He entered Hong Kong as a visitor on 12 September 2016 and overstayed since 27 September 2016. He surrendered to the Immigration Department on 6 October 2016 and lodged a non-refoulement claim on 10 April 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by his uncle due to a land dispute.

5.  According to the applicant, his father and his uncle had a land dispute since 1997/1998. In 2005 and 2007, his father and his brother passed away due to suspected food poisoning and a strange illness respectively, which the applicant believed was caused by his uncle. In September 2016, the applicant left Mozambique for his safety. Eventually, he entered Hong Kong from Mainland China on 12 September 2016.

6.  The applicant maintained contact with his family while in Hong Kong, but he had no update about the land dispute. He was of the view that he could not seek protection from the police because they were corrupt. He also considered internal relocation not viable because he feared to be found and killed by his uncle.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 28 November 2018 (“the Director’s Decision”).

The Director’s Decision

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

c. 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

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the applicant had never suffered any harm from his uncle [13]; (ii) there was no evidence indicating that his uncle had the intention to seriously harm or kill him [14], [16]; (iii) it was the applicant’s bare assertion that his father and brother were killed by his uncle [15]; (iv) state protection would be available [17]-[20] and (v) internal relocation would be viable [21]-[25].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [19]. The appeal was therefore proceeded on such basis [21].

11.  The Board found there was no actual proof that the applciant’s father and brother were killed by his uncle. There was also no evidence showing that he had suffered any physical harm from his uncle or that the land dispute did occur. In any event, the matter concerned was a private land dispute with no evidence of involvement from the authorities. Furthermore, state protection and internal relocation would be available according to the country of origin information. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [23]-[46].

12.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

13.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board was not wrong. However, he asked the Court to review the Board’s Decision.

17.  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.”

18.  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.

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

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

DISPOSITION

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