KIJA SHAMSA SETH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3007/2019

[2024] HKCFI 3327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3007 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 oral submissions by the Applicant in open court;

1.  Leave to the applicant to withdraw the Leave Application; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 14 October 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 September 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 July 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

Background

2.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

3.  The applicant came from Tanzania. She arrived in Hong Kong as a visitor on 21 November 2016 with a permission to remain in Hong Kong until 19 February 2017. On 21 February 2017, she surrendered to the immigration authorities and on 31 October 2017, lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by a man named Mohammad who she refused to marry and who sexually and physically assaulted her.

4.  The Director decided against the applicant’s claim on all applicable grounds. The Director considered that there was no substantial ground for believing that there was a real and substantial risk of the Applicant being harmed or killed by Mohammad if she returned to Tanzania. Furthermore, the Director also considered and concluded that the application could avail herself of adequate police protection if she needed it, and that there was viable and reasonable internal relocation alternatives. Hence, the appeal to the Board.

5.  In the Board’s Decision, the Board was not satisfied that the Applicant was honest or reliable and she had failed to establish her case. The Board found no credible evidence that there were substantial grounds for believing that she would face a real risk of harm of any kind from Mohammad or that she would face a real risk of proscribed harm necessitating international non-refoulement protection. The Board also shared the Director’s finding that there was viable and reasonable internal relocation options.

Legal principles applicable to judicial review

6.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

7.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she only deposed that she had problem in her own country and she could not go back. There were no evidence or identification of errors in support of the intended challenge.

8.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that there were viable and reasonable internal relocation options available.

9.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Withdrawal of Leave Application

10.  On 14 October 2024, the applicant filed an affirmation to apply to “cancel” the Leave Application, stating that she wanted to go back to Tanzania because her family had solved her problem and she was free to return.

11.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

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