BUJIKU ALEXANDER AIDAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 794/2021

[2025] HKCFI 5123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 794 OF 2021

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 / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Tanzania who arrived in Hong Kong on 2 October 2014 as a visitor with permission to remain as such up to 31 December 2014 when he did not depart and instead overstayed, and on 25 March 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Tanzania he would be harmed or killed by his paternal uncles over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Shinyanga, Tanzania where his father and his paternal uncles inherited their shares of his grandfather’s estate consisting of lands and properties in his home village, and upon his father’s passing in 2009, as the only son the Applicant stood to inherit his father’s estate, but as he was then just a school student, his uncles offered to manage his father’s lands pending his reaching the age of majority.

3.  However later when the Applicant was ready to take possession of his father’s lands, his uncles refused to hand them over to him and instead made all sorts of excuses and demands for the Applicant to comply first such as converting his religion from Catholic into Islam, and when the Applicant refused, his uncles declined to let him have his father’s lands, and made threats against him if he insisted with his claim.

4.  As a result, the Applicant made a complaint against his uncles to the village’s council, whereupon his uncles became furious with his action and one day in December 2012 they attacked him with wooden sticks and locked him inside a small room to stop him from proceeding with his complaint to the village council.     

5.  After being detained for 3 weeks, the Applicant eventually managed to make his escape and fled to Mwanza and then Dar es Salaam, and in September 2014 he departed Tanzania for China, and from there he later travelled to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 October 2018 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 19 November 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 his 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”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncles upon his return to Tanzania as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his uncles to seriously harm or kill him, that in any event it was a private land dispute between him and his uncles 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Arusha where it would be difficult if not impossible for his uncles to locate him.

8.  On 30 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 3 May 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncles over any land dispute that caused him to leave his country to come to Hong Kong to seek protection, that it did not consider him a witness of truth and is not satisfied that he had told the truth in relation to the critical elements of his claims, and that it did not accept that he had ever been harassed or threatened or assaulted by his uncles or that he was ever pressured to change his religion that it concluded that there is no real risk that he will face any harm from anyone upon his return to Tanzania that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 28 May 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affidavit of the same date, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Tanzania, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  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.

15.  Moreover, the Applicant recently on 9 October 2025 filed an affidavit requesting to withdraw his application as he has no more problem returning to his home country.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave 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