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HCAL 2911/2018
[2020] HKCFI 2834
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2911 of 2018
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Malugu Johani Emmanuel |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and
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Director of Immigration |
Putative
Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Background
1. The Applicant was born on 8 April 1978 in Mwanza, Nyamagana, Tanzania. She was a Christian. She studied up to F 4. She had no working experience. She was married. She and her family were never arrested, imprisoned or harmed in Tanzania.
2. She arrived in Hong Kong on 6 November 2013 on a valid passport. She was allowed to stay until 5 February 2014. She was arrested for overstaying on 25 July 2014. She then applied for an extension of stay but was refused. She stayed in Hong Kong until she was convicted in April 2015 of the offence of soliciting for an immoral purpose. After serving 2 months’ imprisonment, she lodged a non-refoulement claim in May 2015. She was released on recognizance in July 2015.
3. She was in fear that she might be harmed or killed by some unknown men if returned to Tanzania. Her husband was unable to repay the debt owed to the group of unknown men.
4. One night in July 2013, a group of unknown men came to her house demanding her to repay the debt. They did not mention the exact sum. She was beaten with hard objects at her head and cut by a small knife. They threatened to kill her also.
5. She reported to the Megengeni Police Station and gave statements. She was treated in a hospital with stitches and medication. She was discharged after two days and recovered in 2 weeks.
6. After discharge, she dared not return home and stayed with her friend in Msasani. Nothing happened all along. A few months later in November 2013, her friend bought her an air ticket and accompanied her to Hong Kong. Her friend then went to China for business.
7. She had not contacted her husband after the attack.
Decision of the Director of Immigration
8. On 31 May 2018, the Director rejected her claim on all grounds based on the following findings:
(a) She first applied for a passport in October 2012. She said it was due to her fear of the attack. When pointed out that the attack was in July 2013, she then said it was for travelling with her friend for business.
(b) She only filed a non-refoulement claim 17 months after arriving in Hong Kong. There was no satisfactory explanation.
(c) The attack in July 2013 was the only incident. It was of low severity.
(d) The COI indicated that while there were inadequacies, the Tanzania government was able to maintain law and order. There was reasonable state protection.
(e) The debt was private nature. There was no evidence of state involvement. There was no evidence as to the identities of the attackers. It could not be attributed to the inaction of the police.
(f) She was able to obtain a passport and left Tanzania without any problem.
(g) There were many options for relocation in Tanzania. It was not unduly harsh for her to relocate.
9. For BOR3 and BOR2, the Director concluded that the ill-treatment was not serious and did not meet the requirement of a minimum level of severity. Given the factual background, there was no genuine and substantial risk. There was no state involvement and there was no evidence of arbitrary deprivation of life. BOR2 ground also failed.
10. For persecution risk, the applicant was not within the scope of the Refugee Convention. The debt was a private matter. There was reasonable state protection and reasonable relocation options.
11. For torture risk, the facts did not support sever pain or suffering as required under s. 37U of the Immigration Ordinance. There was no evidence of participation, instigation or acquiescence by public official.
Decision of TCAB
12. The adjudicator rejected her appeal on 11 December 2018. He set out in detail the factual background of this claim. He pointed out that the applicant was represented during the screening interview. The evidence she submitted could not support her claim. He bore in mind the principles set out in ST v Betty Kwan.[1] He concluded that an oral hearing was not necessary.
13. In relation to persecution risk, the adjudicator pointed out that the incident was a private loan dispute. It did not come under the ambit of the Refugee Convention, namely, on account of race, religion, nationality, political opinion or membership of any social group. During her stay with her friend after discharged from hospital, there was nothing eventful. The group of unknown men could not locate her. She did not follow up her complaint with the police. The applicant did not complaint to other authorities. There was no evidence that state protection was not available. This ground failed.
14. In relation to BOR 3, there was no severe harm which satisfied the minimum level of severity. The applicant was attacked once only. There was no genuine and substantial risk of ill-treatment if returned to Tanzania.
15. In relation to BOR 2, the adjudicator opined that this case did not involve death sentence and genocide. There was no state involvement. There was no evidence of arbitrary deprivation of life. This ground failed.
16. In relation to torture risk. The applicant did not suffer severe pain or suffering according to the facts. There was no public official involved. The attack was not within the definition of ‘torture’ as defined under s.37U of the Immigration Ordinance.
17. The adjudicator opined that Tanzania was not a small country. There were cities such as Mwanza and Arusha which might be viable for relocation. It would not be unduly harsh for the applicant to relocate to other cities given her age.
Judicial Review
18. The applicant applied for leave for judicial review on 19 December 2018. She did not make any specific complaint against the decisions of the Director or the TCAB. In this leave application, I would concentrate more on the decision of the TCAB.
19. The adjudicator had considered all the evidence submitted by the applicant including the NCF and the record of interview by the Director. He had also considered the COI set out in the appendix of the Director’s decision. The factual basis of the applicant’s claim had been fully canvassed. The applicant had not indicated in her affidavit whether there was any further evidence she intended to submit to TCAB. She had delayed for 17 months before filing her claim. Given this factual background, the adjudicator was justified in dispensing with an oral hearing.
20. There is no error in law or procedures. The decisions of the Director and the TCAB are reasonable. I refuse leave for judicial review. It is not reasonably arguable. There is no reasonable prospect of success.
Dated the 10th day of November 2020.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 10 November 2020
Malugu Johani Emmanuel
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 November 2020
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 12022/18/6/201/TA28
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1650/18 (formerly RBCZ 11593/15 (PSO))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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