RE NASSORO FARIDA HARUNA

CACV 156/2023, [2025] HKCA 418

On appeal from [2023] HKCFI 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2023

(ON APPEAL FROM HCAL 1407/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 16 May 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 May 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 June 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Tanzania.  She entered Hong Kong on 26 September 2017 as a visitor, but she overstayed and surrendered to the Immigration Department on 3 October 2017.  Subsequently, she lodged a non-refoulement claim made by way of written representations dated 9 October and 1 December 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her stepmother and stepbrother due to an inheritance-related dispute.  The details of the applicant’s claim have been summarised by the Board at [1] to [8] of its Decision.

4.  By a Notice of Decision dated 11 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 21 December 2018, the Board dismissed the appeal on 20 May 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non‑refoulement protection.  On the evidence, the Board was not satisfied that the applicant would face any risk of harm upon her return to Tanzania.  In any event, there were suitable options of internal relocation available to her, which would reduce such risk, if any.

The Judge’s decision

6.  The applicant filed a Form 86 on 23 May 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.

7.  In the applicant’s supporting affirmation, she stated that she “would be killed if [she returned to] Tanzania” and that the Board judged her case “wrongly” and “did not consider (sic) properly”.

8.  On 10 February 2023, the applicant sent a letter to the court (“the Withdrawal Letter”), stating that she would like to “cancel” her case (i.e. “HCAL 1407/2019”) because she wanted to return to Tanzania.

9.  Taking into consideration the circumstances of the case, as well as the applicant’s ex parte application for withdrawal, the Judge by his decision in the CALL-1 Form[5] dated 16 May 2023 dismissed the applicant’s application for leave to apply for judicial review. His reasons were stated at [3] to [5] of the CALL-1 Form as follows:

"[3]  The applicant lodged an undated letter which was received on 10 February 2023 by the court, in which she said she wants to cancel her case because she wants to go back to her country. There is nothing outstanding in this action.

[4]  In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

‘(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.’

[5]  The application is therefore dismissed.”

Grounds for appeal

10.  In the Notice of Appeal dated 24 May 2023, the applicant stated, without elaboration, that she disagreed with the Judge’s decision.  

11.  The applicant lodged written submissions on 7 June 2023, which contained little more than repetitions of the alleged dangers she may face should she be refouled.  She contended that she had sent the Withdrawal Letter to the court because she was falsely led by her family to believe that the situation in her home country had improved.

12.  On 18 October 2024, the court received a letter from the applicant, in which she stated that she (again) wanted to return to her country, and to “close” her case.

13.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  There is no reason why the present appeal should not be dismissed on the basis of the applicant’s request for withdrawal alone.  However, we have nonetheless proceeded to consider the merits of the appeal.

15.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

17.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.