CEYA MATILDA COSTANCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1603/2021

[2024] HKCFI 3573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1603 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;            or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Ceya Matilda Costance (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 November 2021 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 July 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Tanzanian. She was born on 6 March 1991 in Kilimanjaro Region, Tanzania. She received 8 years of education and had about 3 years’ experience of operating her own online hair extension business.

The Claim

3.  The Applicant claimed that her family members wanted to harm or kill her because she refused to undergo female genital mutilation (“FGM”) surgery and was a lesbian.

4.  When the Applicant was a teenager, her mother repeatedly told her to undergo FGM surgery. She refused and her mother threatened to force the surgery on her. The Applicant then fled from her home. She lived in the home of her friend (“C”) in Dar es Salaam between 2008 and 2012. When the Applicant was staying in Dar es Salaam, she saw a strange man four times. In their last encounter, the strange man told the Applicant that her mother sent him and that she should go home. He never harmed the Applicant.

5.  The Applicant decided to flee to India, where she stayed for two years (i.e. 2012-2014). In around 2013 or 2014, the Applicant’s brother (“Brother”) visited C twice to ask for the Applicant’s whereabouts. Brother said he wanted to bring the Applicant back home. Brother did not harm C.

6.  According to the Applicant, Brother dealt in weed and was a member of a violent gang who collected debts with machetes. Brother supported the idea of the Applicant undergoing a FGM surgery and had previously vowed to kill the Applicant for being a lesbian.

7.  To avoid the perceived harm from her family, the Applicant decided in around 2015 to spend as little time in Tanzania as possible by traveling to different countries such as Mainland China, Nigeria, Oman and Malaysia. She traveled to Hong Kong on 18 April 2018 as a visitor. In July 2018, Brother told the Applicant over the phone that he would be waiting at the airport to kill her. The Applicant did not dare to return to Tanzania.

Procedural history

8.  The Applicant arrived in Hong Kong on 18 April 2018 as a visitor. She was given permission to remain until 17 July 2018. She was arrested by the police on 10 May 2018 for theft and was remanded until 3 August 2018. The charge against her was withdrawn on 2 October 2018. She surrendered to the Immigration Department on 4 October 2018 and by a written representation of 4 December 2018, the Applicant lodged the Claim.

9.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 24 November 2021, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

12.  On 17 September 2024, the Applicant filed a Notice of Discontinuance together with an affirmation (instead of an affidavit) in support to withdraw the leave application for judicial review and discontinue these proceedings (“Withdrawal Application”).

The DOI Decision

13.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Applicant’s family intended to harm her. Despite the bare assertions by the Applicant about the risks from her family members, she was never harmed by her family in the past. The Director did not accept that there was any reasonable likelihood that Brother or her other family members would harm her upon her return. Having considered the frequency, intensity, mode of harassment that the Applicant had suffered, the Director did not accept that the alleged ill-treatment inflicted on the Applicant by her family members, either physical or mental, had attained a minimum level of severity such that non-refoulement protection was warranted.

14.  The Applicant’s problem with her family members was a family dispute which was private in nature. The Tanzanian government had no involvement in the alleged threats or ill-treatment inflicted on the Applicant. The Tanzanian government did not have any adverse interest in the Applicant.

15.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Tanzanian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

16.  The Director further found that internal relocation would be viable. If the Applicant moved to Dodoma or Mbeya, her family would have great difficulty in locating her. After considering her age, education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

17.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

18.  The Board accepted that the Applicant was threatened by her family for refusing to undergo FGM surgery. However, for the reasons given at §§74-77, the Board found that her evidence about engaging in a same-sex relationship in the past to be unreliable and incredible. It found as a fact that the Applicant had not established her claims of being a lesbian and being threatened by Brother for that reason.

19.  The Board then went on to consider the Claim on the basis that the Applicant was threatened for refusing FGM surgery. It found that the Tanzanian government had setup the Commission for Human Rights and Good Governance to protect human rights and implemented measures to combat violence against women. The Tanzanian government had also worked with non-government organizations (“NGOs”) to end illegal FGM in the country. The Board found that the Applicant would be able to seek assistance from the Tanzanian government or NGOs if necessary and state protection would be available to her. It was the Applicant’s case that she no longer feared having FGM pressed by her mother because she was already an adult and could disagree to it and her mother would not force her. (§68 of the Board’s Decision)

20.  The evidence did not establish, even to the low standard required, that the Applicant’s family members were acting in an official capacity, were acting on behalf of or in conjunction with the state, or were acting under the state’s direction or control. They were clearly non-state actors in a private dispute with the Applicant.

21.  The Board noted that the Applicant had been able to live peacefully in Dar es Salaam in the past. She had confirmed to the Board that she would return to Dar es Salaam if she were returned to Tanzania. The Board considered the available evidence and found that it would not be unreasonable or unduly harsh to expect her to relocate to Dar es Salaam.

22.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

23.  In a judicial review, the court does not step into the shoes of the decision makers.

24.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

25.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

26.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

27.  In the Supporting Affidavit, the Applicant only stated that: “I request to appeal decision attached with judicial review.” She then produced the Board’s Decision as exhibit to the Supporting Affidavit.

28.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

29.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

30.  The Board found that the Applicant had failed to establish a well-founded fear that she would be subjected to the persecution risk nor substantial grounds for believing the Applicant would face a genuine and substantial risk of being subjected to the torture risk, the BOR 2 or BOR 3 risks, if she were to be refouled to Tanzania.

31.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

32.  By the Withdrawal Application, the Applicant sought to withdraw her application for leave to apply for judicial review and discontinue these proceedings. She stated that her situation in Tanzania had been sorted out and she was able to return to her family. She said that she no longer needed to claim asylum in Hong Kong.

33.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

34.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

35.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“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.”

Conclusion

36.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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