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HCAL 554/2020
[2025] HKCFI 3852
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 554 of 2020
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BETWEEN
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ZANGO MICHEL MENESES AFONSO |
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) YW Hew:
1. The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and;
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. The Applicant is a citizen of Mozambique. By a Form 86 filed on 8 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 8 April 2020 (“the Affirmation”), he sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which is also one of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 3 January 2020 (“TCAB Decision”)[1].
2. The Applicant sought an oral hearing of his application, but did not appear at such. I have hence dealt with his application on the papers.
3. I have amended the Form 86 of my own motion to reflect the identity of the proper putative respondent. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.
Background
4. The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. In essence:
a. The Applicant claimed non-refoulement protection on the basis that if he were returned to Mozambique he would be harmed or killed by his wife’s family members;
b. His claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“the Director”) in a decision dated 9 May 2019 (“Director’s Decision”);
c. The Applicant then petitioned/appealed to the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”), which heard the matter on 15 October 2019; and
d. The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.
Legal Principles
5. An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).
6. It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).
7. In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).
8. Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:
a. The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;
b. Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;
c. If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and
d. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.
See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.
Discussion
9. I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and leave to apply for judicial review. This is for the following reasons.
10. Firstly, there is undue delay of 5 days in this case. There is also no request for an extension of time to make the application in the Form 86, and no attempt to advance any reason for the delay. The Applicant merely says in the Affirmation that he disagrees with the Director’s Decision and the TCAB Decision “to return to my country because my life is in danger” (which claim I deal with below). There is hence clearly no credibly valid or acceptable reason before me for this undue delay.
11. Secondly, and turning to merits, as the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.
12. However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.
13. The TCAB/NRCPO set out the Applicant’s procedural and immigration history (including that he was represented by the Duty Lawyer Service in his initial application and his interview before staff of the Director), and the nature of the proceedings before it (Paragraphs 1 to 6).
14. The decision-maker then referred to the relevant law as attached to the decision (Paragraph 7, and Attachment Paragraphs 1 to 17) and summarised the Applicant’s claims as had been set out in writing (Paragraphs 8 to 18), relevant COI (Paragraphs 19 to 21), and the conduct of and issues and evidence raised at the hearing before the TCAB/NRCPO (Paragraphs 22 to 28).
15. The TCAB/NRCPO then set out his assessment of credibility relating to the Applicant and his claims, having regard to salient principles and evidence, and found that there were serious doubts about the Applicant’s general credibility. He concluded (with reference to relevant evidence) that the Applicant’s “vague and unsubstantiated” claims were insufficient to provide a basis for a finding that he faced a real risk of harm were he returned to Mozambique, and that there were serious doubts about the credibility of the Applicant’s claims that he faced a real risk of harm from his wife’s family, or from Muslims in general, should he be returned to Mozambique. Given the relevant principles he was also not satisfied that the Applicant had discharged his onus to substantiate his claim (Paragraphs 29 to 43).
16. The decision-maker then, unsurprisingly, held that he did not accept (and that the Applicant had failed to show or establish) the existence of each of the four relevant types of risk. As to Torture Risk he referred, again, to relevant COI. The TCAB/NRCPO hence confirmed the Director’s Decision (Paragraphs 44 to 54).
17. I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave. This is especially so given the assessment, reasoning, and findings regarding the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, all of which are within the province of the decision-maker.
18. As for what the Applicant has said in the Affirmation, I do not see that such is relevant to the issues before me or assists his application for leave, given the findings in and my analysis of the TCAB Decision, when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh, and when in any event the Applicant has not adduced any underlying evidence to support such submissions/bare allegations.
19. I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review. The merits of the substantive application are therefore not reasonably arguable.
20. Finally, given the lack of any reasonably arguable grounds I see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.
Conclusion
21. In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.
Dated the 5th day of September 2025
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(Teresa Ng)
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 her 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 the 5th day of September 2025
ZANGO MICHEL MENESES AFONSO
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 the 5th day of September 2025
Torture Claims Appeal Board/Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15924/19/5/64/MOZ34
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 213/19 (Formerly RBCZ/44/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000554_2020_files/the_Board's_Decision.pdf
[2] The risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] The risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] The risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] In that the presence of a credibly valid explanation for the delay will strengthen, and the absence of an acceptable explanation will weaken, the Applicant’s request for what is an indulgence to be granted in the court’s discretion.
[7] Although where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be, and an applicant who sleeps upon his rights may be barred from pursuing them in a judicial review even though he may have a meritorious case (AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §27(iii) as approved in the other cases cited below, in particular H v Director of Immigration (2020) 23 HKCFAR 248 at supra at §37(2)).
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