NGUNDE MOHAMEDI MUSSA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1800/2019

[2024] HKCFI 2375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1800 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3)  of the Rules of the High Court, I shall deal with his 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 51, is a Tanzanian.  He arrived in Hong Kong as a visitor on 11 February 2015 and overstayed since 13 May 2015.  The applicant surrendered to the Immigration Department on 14 May 2015 and made a non-refoulement claim on 14 August 2015.  The claim was made on the basis that, if refouled, he would be harmed or killed by his customer (“the customer”), who had connection with gangsters.

5.  According to the applicant, he operated a clothing business in Tanzania.  In early 2014, he received an order of trousers from the customer, after which he sent the money to his supplier in China (“the supplier”)  through an agent (“the agent”).  Over the course of the next seven weeks, the customer approached the applicant two times.  On the second occasion when the customer knew the ordered trousers were still unavailable, he threatened the applicant to deliver the goods to him or to return his money back to him within a month, failing which he would kill him. 

6.  On 10 May 2014, the applicant left Tanzania for China to find out what had happened to the goods.  He met the supplier at his hotel room, who told him that the goods were not ready.  When the applicant went to find the supplier again after his visa renewal, the supplier was no longer at the hotel. Thereafter, the applicant remained in China for seven months because he had no means to locate the supplier and was worried that he would be killed by the customer upon return to Tanzania.  When his visa could not be further renewed, he came to Hong Kong on 11 February 2015 upon advice from his friends in Guangzhou.

7.  The applicant maintained contact with his family while in Hong Kong. His younger brother told him that the customer was still looking for him at his home and had threatened to kill him.  The applicant had never reported the matter to the police since he believed that they would only listen to those who had money.  He also considered internal relocation not viable because the customer had close connection with the gangsters, so that he could easily locate his whereabouts.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i)  the absence of past ill-treatment from the customer indicated that he had no real intention to seriously harm or kill the applicant [12]; (ii)  there was no evidence showing that the customer had means to locate the applicant anywhere within Tanzania [13]; (iii)  state protection would be available to him [14]-[18]; (iv)  internal relocation would be viable [19] and (v)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[30] or Torture risk [31]-[33].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 24 May 2019, the Board conducted an oral hearing.

12.  During the hearing, the applicant told the Board that the money was sent in cash to the agent, who would then transfer to the supplier [22].  Meanwhile, the applicant could not recall the number of trousers the customers ordered, nor could he remember any of the clothing company that he bought clothes from in China.  He was also unable to tell the Board the name of the agent [23].

13.  The Board noted that the applicant gave inconsistent evidence as to when he was first threatened by the customer and where he met the supplier in China [32]-[33].  The Board also considered it unpersuasive that no receipt was issued for the transfer of such a large sum of money and that it was transferred in cash, rather than through a bank [35].  Meanwhile, the applicant’s evidence about his dealing with the customer and retailer was vague as he could not remember (i)  the name of the agent, (ii)  the number of trousers the customers ordered and (iii)  the name of the clothing company that he bought clothes from in China [36].

14.  The Board found the applicant had fabricated the totality of his claim. It was not accepted that he was involved in a transaction with the supplier and customer or that he was threatened by the customer [37].  In any event, the issue between the applicant and the customer was a private dispute with no consent or acquiescence from the Tanzanian government.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [39]-[57].

15.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

16.  The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affidavit in support of his application, the applicant said the Board disregard his dangerous situation.

DISCUSSION

18.  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).

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

20.  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.”

21.  For the reasons given above, the Board rejected the applicant’s evidence in support of his claim.  The applicant has raised no valid reason to challenge the Board’s finding of the facts.

22.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision.

DISPOSITION

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