SALEHE ZUHURA MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1986/2019

[2024] HKCFI 2541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1986 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 4 September 2024 without prior notice to the Court. I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a Tanzanian. She last arrived in Hong Kong as a visitor on 18 October 2017. On 26 October 2017, the applicant was arrested by the police for soliciting for an immoral purpose and breach of condition of stay. She was sentenced to imprisonment of four weeks on 10 November 2017 for the said offences. The applicant made a non-refoulement claim in November 2017 and December 2017. The claim was made on the basis that, if refouled, she would be harmed or killed by a Hoswadi because he blamed her for his lost in the 2015 Parliamentary Election.

5.  According to the applicant, she became a member of a party named Chadema in 2002 and Hoswadi was the leader of Chadema in her locality. The 2015 Parliamentary Election was held on 15 October 2015, for which Hoswadi lost. He put the blame on those members who were involved in the election campaign, including the applicant, and burnt down their houses and beat them up. 

6.  The house of the applicant’s mother was one of those that were burnt down. Upon taking the advice of her mother, the applicant left her hometown. After a month, she heard from her stepsister that Hoswadi’s underlings were looking for her at her mother’s shop and a friend of hers was assaulted to death. Out of fear, the applicant left for Mozambique in January 2016. Despite there was no improvement of the situation, she returned to Tanzania in August/September 2016 and stayed with her aunt.

7.  In April 2017, the applicant left for Hong Kong for the first time. She returned to Tanzania in June 2017 and stayed with her aunt. In September 2017, after the applicant was informed by her stepsister that that Hoswadi’s underlings were still after her, she left Tanzania for Hong Kong again on 17 October 2017.

8.  The applicant was of the view that she could not seek protection from the police because they were corrupt and that they did not take any action despite her family had reported the matter to them previously on several occasions. The applicant also considered internal relocation not viable because she believed that Hoswadi would eventually locate her due to his power and connection in Tanzania.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 March 2018 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the applicant’s return to Tanzania in June 2017 after coming to Hong Kong was inconsistent with her claimed fear of harm [16]; (ii) the low intensity of past ill-treatment from Hoswadi indicated a small future risk of harm upon her return to Tanzania [17]; (iii) a majority of the applicant’s claims were based on hearsay and speculation [18]-[19]; (iv) state protection would be available [20]-[24]; (v) internal relocation would be viable [25]-[29] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[36], Persecution risk [37]-[43] or Torture risk [44]-[46].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 21 November 2018, the Board conducted an oral hearing.

13.  Because of the applicant’s pattern of returns to Tanzania and her delay in lodging a non-refoulement claim, the Board attached no credence that the applicant came to Hong Kong in search of protection [18]-[20]. In any event, there was no evidence that the applicant had ever suffered any harm from Hoswadi [22]. Furthermore, it was open for the applicant to seek state protection and that internal relocation would also be available [23]-[29].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [30]-[40].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the affirmation in support of her application, the applicant says she is not satisfied with the Board’s Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.  In my view, the Board was entitled to come to its views above, having considered the evidence before it.

21.  The applicant has raised no valid ground to challenge the Board’s Decision.

22.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSTION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.