MWICHAHA IRENE ISAACK v. TORTURE CLAIMS APPEAL BOARD

HCAL 1251/2019

[2024] HKCFI 1530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1251 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Tanzania who last arrived in Hong Kong on 13 August 2015 as a visitor with permission to remain as such up to 11 November 2015 when she did not depart and instead overstayed, and on 16 November 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Tanzania she would be harmed or killed by her former husband for having converted her religion from Islam to Christianity. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Village Iramba, District Iramba, Singida Province, Kiomboi Estate, Tanzania. After leaving school she was arranged by her family to marry her husband who was one of the leaders of his Muslim community and a Sheikh in his home village in Sinza Estate, Kinondoni District, Dar es Salaam Province where they raised a family with 2 children.

3.  In 2013 the Applicant became interested in Christianity and started to attend the service of the local Morovian Catholic Church secretly without her husband’s knowledge, and in 2014 she was secretly baptized by the church and became a Christian.

4.  However, one day in 2015 her husband discovered her religious conversion from someone who had seen her going to church, and confronted her angrily, and when she admitted the conversion, he beat her violently until she collapsed on the floor and lost consciousness, and was subsequently taken to the hospital for medical treatments.

5.  Upon her discharge from hospital, the Applicant reported the matter to the police and took shelter in a friend’s place in Mbezi for 2 days before returning to her husband’s home, but when she refused to yield to his demand to re-convert her religion back to Islam, her husband threatened to divorce her and kill her, and for the next several months while he was applying for the divorce, she was forbidden to leave their home.

6.  One day in mid-2015 the Applicant managed to make her escape from her husband’s house to hide in Zanzibar Island, and on 30 July 2015 she departed Tanzania for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While being released on recognizance pending the determination of her claim, the Applicant was arrested by police on 26 October 2017 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 4 weeks.

8.  By a Notice of Decision dated 21 February 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found her markedly ignorant and lacked of knowledge of the religion of Christianity and of the Bible as well as her failure to attend any church service in Hong Kong since her arrival in 2015 to be seriously inconsistent to her claim to have converted her religion from Islam to Christianity that the credibility of her claim of fear of harm from her former husband over her claimed religious conversion that caused her to leave Tanzania for Hong Kong to seek protection, that even if her such claim were true that the level of harm from her husband upon her return to Tanzania was assessed as low due to the low intensity and frequency of past ill-treatment from him and that he would have divorced her for years and moved on with his life without any further adverse interest in her, that in any event there is no evidence of any real intention of her former husband to seriously harm or kill her over what was essentially some private domestic dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 53 million people spread across a vast territory of more than 947,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other areas of the country away from her or her former husband’s home district in large cities where it would be difficult if not impossible for her former husband to locate her.

10.  On 6 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 14 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 April 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board gave the Applicant the benefit of the doubt as to her claimed conversion of her religion from Islam to Christianity despite finding her ignorance and lack of knowledge about the religion of Christianity remarkable, but found no evidence of any real intention of her former husband to seriously harm or kill her over her alleged religious conversion after having since divorced her and moved on with his life years ago, and that in any event it was a private domestic dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Tanzania as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 9 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That the Adjudicator was biased against the Applicant in dismissing her appeal upon finding that her credibility was unreliable based on her lack of knowledge in the religion of Christianity without considering the facts that the incidents happened years ago and due to the threats that she might have vague memories and the mental stress that she had suffered over the years;

(2)  That the Adjudicator had wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection would be available to the Applicant when such finding was contradictory to the available COI;

(3)  That the Applicant was not given sufficient language assistance in her appeal before the Board that it was difficult for her to understand the nature of her appeal process, and that during her appeal hearing that she was merely asked a few questions, while the subsequent decision was just sent to her by post without any interpretation or translation or legal assistance;

(4)  That there had been a lack of duty of care from the Board towards the Applicant in her appeal which is unfair and unreasonable; and

(5)  That the hearing bundle for her appeal before the Board was provided to her without any legal assistance or translation with the majority of the documents in English which is not her first language that it was procedurally unfair to the Applicant as a litigant in person without legal representation.

13.  Although the Applicant did earlier request for an oral hearing for her application, she did not appear at the scheduled hearing on 14 May 2024 without any explanation, and that the notice of hearing sent to her last reported address had subsequently been returned through undelivered post, nor did she answer any of the phone calls made to her by the Court, but subsequent written confirmation from the Immigration Department shows that it is the same latest address and telephone number as provided to them by the Applicant. As such, I do not see any other alternative but to proceed to consider her proposed grounds without any further hearing and in her absence.

14.  The Applicant’s intended challenges as above are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the Adjudicator being biased against her or that the decision was unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, while the record shows that the Applicant was indeed assisted by an interpreter in her oral hearing before the Board during which she was able to make her representations without difficulty and to answer many questions from the Adjudicator for the Board without any issue, and as evidenced in the Board’s decision that she was in fact given benefit of the doubt on the credibility of her claimed religious conversion to Christianity by the Board that there is simply no merits in her complaint over its finding on her credibility. As such, and as none of these assertions were properly elaborated or presented with the necessary and relevant particulars or specifics by the Applicant, I do not find any of these grounds reasonably arguable for her intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Tanzania, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

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