ROSE SIMONI KAYOMBO alias MTWEVE ESTER MWAKI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 745/2020

[2025] HKCFI 4034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 745 of 2020

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.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Tanzania.  By a Form 86 dated and filed on 23 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 23 April 2020 (“the Affirmation”), she sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 13 March 2020 (“TCAB Decision”)[1], which was exhibited to her Affirmation.

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  The Applicant sought an oral hearing of her application.  At the first oral hearing no interpreter had been arranged as she had earlier indicated that her first language was English. However, she told me at the hearing that she only understood some English, that her native language was Swahili, and that she had previously always had the assistance of a Swahili interpreter.  I hence adjourned the hearing so that a Swahili interpreter could be arranged.  At the resumed hearing she made some oral submissions with the assistance of an interpreter.  I deal with such below.

4.  I have amended the Form 86 to properly identify the putative respondent.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if she were refouled to Tanzania she would be harmed or killed by one Linda, as the Applicant had been in a business relationship with Linda, whose money the Applicant had lost in a business deal in Thailand;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 15 October 2018 (“Director’s Decision”);

c.  On 26 October 2018 the Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 13 December 2019; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 13 March 2020 which found that the Applicant had failed to make out her claim to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  The grounds mentioned in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

a.   “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

b.  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”; (Ground 2)

c.  “…the Respondent’s decisions to refuse the Applicant’s appeal on were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness”; (Ground 3) and

d.  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4)

10.  The Form 86 and the Affirmation also contain the following allegations:

a.  The Applicant was not given a fair opportunity to put forward her submissions in an oral hearing nor was she invited to submit written submissions. The Affirmation, but not the Form 86, also said “Even if the Adjudicator decides not to have oral hearing, he should at least invite me to submit written submissions and evidence”. Both documents also complain that “When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

b.  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes,” and“The lack of credible source of information has resulted in them making groundless speculations that it is safe for [the Applicant] to return back to [the Applicant’s] country of origin”. (Complaint 2)

11.  Grounds 1 to 4 are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. They are hence entirely inadequate as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16).

12.  However, given the seriousness of the issues at hand and the allegations in Complaints 1 and 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.  The TCAB/NRCPO set out the relevant grounds of risk, the Applicant’s background, and her procedural and immigration history. It also mentioned the documents in the Hearing Bundle including the NCF, the record of interview, and COI, and that the Applicant confirmed at the oral hearing that she had no further documents that she wished to submit (Paragraphs 1 to 6).

14.  The decision-maker then moved on to set out the critical issues for determination and relevant law having regard to the high standard of fairness and relevant principles as set out in ST v Betty Kwan [2014] 4 HKLRD 277 (CA) and TK v Jenkins & anor. [2013] 1 HKC 256 (CA), as well as relevant principles relating to each of the four relevant types of risk (Paragraphs 7 to 28).

15.  The Applicant’s claims to the Director were then detailed (Paragraphs 29 to 42), after which the TCAB/NRCPO set out its findings in relation to such, including as to the Applicant’s credibility (Paragraphs 43 to 57). In the latter section the TCAB/NRCPO explained that it had found that the Applicant was not a witness of truth, her claims were not credible, and in particular that it did not accept:

a.  That the Applicant had any business relationship with a woman named Linda, was employed in the capacity she claimed or had engaged in any business in Tanzania, that the Applicant lost Linda’s money in Thailand, and that as a result Linda was pursuing her for the money;

b.  The Applicant’s belated claim, as made at the end of the hearing, that she had a second (step-)brother who had apparently been killed the year before the hearing, and that she faced any problems as a result; and

c.  That she would be subjected to harm from Linda or anyone else on her return to Tanzania.

16.  Since the TCAB/NRCPO had not accepted the fundamental basis of the Applicant’s claims that she faced any form of harm upon return, it did not need to consider internal relocation, and found that there was no real risk she would face any of the proscribed forms of harm upon being refouled to Tanzania. Given its findings on the evidence in relation to risk of harm, it found that none of the relevant types of risk had been made out, and confirmed the Director’s Decision (Paragraphs 58 to 62).

17.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, even taking into account Grounds 1 to 4 and Complaints 1 and 2 either individually or cumulatively.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-maker.

18.  As to Complaint 1 in particular, that (whether on its own or in conjunction with any of Grounds 1 to 4) also does not raise any reasonably arguable error of public law.  It was for the Applicant to establish her claims before the decision-maker. If she had further submissions to make (including in response to the Director’s submissions) to the decision-maker, she could have done so at the oral hearing. It is baseless to suggest that the Board had to invite her to do so before she would do the same, or that she was somehow deprived of some opportunity to make meaningful submissions. A fortiori when she had ample time from the Director’s Decision to prepare for the hearing of her appeal, there was no indication that the Applicant complained at the hearing about these matters (and on the contrary, confirmed to the decision-maker that she had no further documents to submit), and when she has not provided any specifics of how this apparently prejudiced or tainted the conduct of the hearing or the TCAB Decision, let alone in a manner sufficient to vitiate the latter.

19.  Nor do I see any reasonably arguable ground for judicial review arising in relation to Complaint 2 (whether on its own or in conjunction with any of Grounds 1 to 4). The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision. In any case, there was clearly no complaint about such at the oral hearing, and I do not see how any public law complaint can arise in the present case.

20.  At the resumed hearing before me, the Applicant claimed that last year her husband had been murdered, that she did not know if the people who did that were involved in her case, and that she wanted to be given some time to stay in Hong Kong to follow up and see if the people involved in the murder were involved in her case or not. However, I do not see how these submissions/bare allegations are relevant to or assist the application in any way, given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings.

21.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

22.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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