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HCAL 284/2021
[2024] HKCFI 747
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 284 of 2021
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BETWEEN
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Alanto Wamedi |
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 To:
1. The application to withdraw the application for leave to apply for judicial review is refused; and
2. Leave to apply for Judicial Review is refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 5 March 2021 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 18 February 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 May 2020 (the “Notice”).
2. The Applicant is a national of Mozambique. He entered Hong Kong on 5 November 2019 as a visitor and was permitted to remain until 15 November 2019. He overstayed and surrendered to the authorities on 16 December 2019, raising a non-refoulement claim on the same day.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
Application to withdraw
4. On 5 December 2023, he filed a summons seemingly to apply for withdrawal of his leave application (the “withdrawal application”). The contents of his summons is ambiguous. He said:
“ The reason for applying for withdrawal callelation (sic) of my case is because of the elders, in my father,s family, are patiny (sic) and dividing and the my family s land. I esprsnt (sic) my father in the family, because, I am his nonly (sic) is deceased, the council of elders in my family, have ordered, me to appear before them, since last month but I (illegible) them to be (illegible and crossed out).”
5. In view of the ambiguity in his summons, a hearing was scheduled to hear his withdrawal application and, if necessary, his leave application also. Notice of hearing was sent to the Applicant by post to his address as stated in his Summons. It is a very recent address. It has not been returned through the post. He never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the withdrawal application and leave application may be justly determined on paper without an oral hearing.
6. Without the benefit of any clarification from the Applicant, the Court considered it appropriate and just to determine his withdrawal application on the basis of the tenor of his assertion in the summons. The reason for his withdrawal so far as it could be understood from the tenor of his summons is that the Applicant wished to withdraw his leave application so that he may return to his home country to deal with some dispute over his family land. The dispute arose because the elders in his father’s family wanted to divide his family’s land. Being the only son of his father, the Applicant was ordered by the elders to appear before them to deal with the matter. The reason is inconsistent with his non-refoulement claim. It is wholly unrelated to the Board’s Decision refusing his claim for non-refoulement protection in respect of which he is seeking leave to apply for judicial review, let alone there is nothing to suggest he is now seeking to withdraw his leave application out of his free will, with full understanding of the consequence of his withdrawal and that it is safe for him to return to his home country. It will not be in the Applicant’s interest to allow his withdrawal application. The Court will therefore proceed with his leave application. If leave is granted, his review may proceed its full course. The option to withdraw is always open to him at any stage of the proceedings. If his leave application fails, it will have the same effect as if his withdrawal application is allowed.
The Applicant’s case
7. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by a person known as Jide on his return to Mozambique for having lost Jibe’s money while he was in Hong Kong.
8. The Applicant, now aged 46, was born in Distrito Municipal I Central, Mozambique. He graduated with a Bachelor of Arts degree in 2006 and has worked as a sales manager in Thailand. He had done business with Jide twice buying iPhones in Hong Kong and sending them by post or UBS to Jide. He received US$25,000 from Jide on 8 October 2019 to buy iPhones. However, he lost the waistbag containing the money while he was in Mongkok on 22 October 2019. He filed a police report at Mongkok Police Station on 29 October 2019. He claimed that the delay in filing the police report was due to the protests at that time.
9. The Applicant informed Jide about the loss and Jide told him that he needed to return the money or he would be killed upon his return to Mozambique. Jide also threatened to hurt his family in Mozambique. The Applicant’s brother told him that Jide went to his house twice every week for the money. On or around 15 March 2020, Jide went to the Applicant’s home and damaged the property inside. He also set fire to his uncle’s shop.
10. The Applicant claims that the Mozambique government would not protect him because his dispute with Jide was a private matter. He also claims that internal relocation would not be viable because being a Christian, it would be dangerous for him to move to cities occupied by Muslims.
The finding of the Board
11. The Board accepted the Applicant’s evidence was credible. It accepted that he had lost Jide’s money entrusted to him for buying iPhones, that he had been threatened by Jide for losing his money, that Jide had in execution of his threat damaged the Applicant’s property in his home and set fire to his uncle’s shop.
12. After considering authoritative and credible country of origin information (“COI”), the Board held that police efficacy in Mozambique varies and capacity might be limited, corruption was prevalent and there was a lack of accountability and punishment for abuse of power. However, the information also indicated that the government had implemented a range of measures to address the problem of corruption and to improve accountability. There were also avenues of complaints against police inaction. It held on balance that adequate state protection would be available to the Applicant upon his return to Mozambique.
13. The Board noted that there are Christian and Catholic communities in Mozambique. It held that there are viable relocation options for the Applicant. The Applicant had demonstrated his ability to work abroad in Thailand. With his education and work experience, the Board considered it would not be unreasonable to expect him to relocate to other parts of Mozambique to avoid the risk of harm from Jide.
14. Because of the availability of state protection and viability of internal relocation, the Board found in respect of all four applicable grounds that the risk of harm from Jide is low if the Applicant relocates to other cities upon his return to Mozambique. It further found in respect of Torture Risk ground, that there was no evidence of any state involvement in Jide’s threats; and in respect of Persecution Risk ground that his risk of harm arose out from his monetary disputes with Jide which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found in respect of BOR 2 Risk ground that there was no evidence that the Applicant is subject to a death sentence or will otherwise be arbitrarily deprived of his life if returned to Mozambique. The Board therefore dismissed his appeal and affirmed the Director’s decision in his Notice.
The legal principles applicable to judicial review
15. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
16. The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he annexed a copy of the Decision and complained that the Board disregarded his dangerous situation. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to his home country. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of the case as he asserted. It was on that basis that the Board found his risk of harm is low if he relocates to another part of Mozambique on his return and it would not be unreasonable to expect him to do so. It also found adequate state protection available. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, both his withdrawal application and leave application are refused.
Dated 11th day of March 2024.
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(Allen LEE)
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 11/3/2024
Alanto Wamedi
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 11/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16948/20/5/37/MOZ36
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 10119/20 (PSO) (T2S1)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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