MATEQUE ALBERTO JOSE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1068/2020

[2025] HKCFI 3944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1068 of 2020

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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to (a) name the TCAB as putative respondent, and (b) to name the DI as putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 2 June 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 22 May 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 7 December 2018. Although a copy of the TCAB Decision was exhibited to his supporting affirmation to inform the Court which decision was sought to be reviewed, in the Form 86 the Applicant put down “USM” as a putative respondent and the TCAB as a putative interested party. I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI as the putative interested party to this application.

3.  The Applicant was absent from the oral hearing of this leave application. On the authority of Re Abdus Salam [2019] HKCA 1091, I proceed to deal with the leave application based on the materials placed before me.

4.  The basis of the Applicant’s non-refoulement claim was that he was in fear of being harmed or killed by the Muslims in his community in Northern Mozambique due to his conversion from Islam to Christianity.

5.  After an oral hearing, the TCAB came to the finding that the Applicant had been generally consistent in relation to the events he claimed, but some of his assertions were only speculative and not supported by evidence. The TCAB found the risk of harm to the Applicant to be localized and opportunistic, and he was not subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights on a nation-wide basis; neither was he under any well-founded fear of being persecuted so that he had to leave Mozambique. He had a viable internal relocation alternative.

6.  In his Form 86 and supporting affirmation, the Applicant did not point to any errors of law, procedural unfairness or irrationality of the TCAB Decision. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on 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).

7.  I have reviewed the TCAB Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus dismissed.

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