MARIA MICHAEL MKWERA v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 493/2018

[2020] HKCFI 1676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 493 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 June 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Tanzania who last arrived in Hong Kong on 14 June 2014 with permission to remain as a visitor up to 12 September 2014, but she did not depart and instead overstayed until 12 January 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Tanzania she would be harmed or killed by her uncle and/or her fiancé for running away from their arranged marriage.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kiwarani Minazimefv, Dar es Salaam, Tanzania as a Christian by her parents.  However, after her parents passed away in 2007, she moved to live with her uncle and his family in Mwenge Mlalakuwa, Dar es Salaam who were Muslims.

3.  After leaving school she worked as a cashier in a restaurant and later as a hairdresser in a saloon.  One day in 2012 his uncle told her that he had arranged for her to marry a Muslim wealthy man Habri with whom he had financial dealings, and when she resisted the idea of marrying a man whom she had never met and of different religion, her uncle and his wife were upset and insisted that she must do what she was told.

4.  Thereafter her uncle went ahead to arrange the engagement ceremony between the Applicant and Habri, and on the night after the ceremony, the Applicant had an argument with her uncle and his wife during which she was beaten by them with a belt and was warned that she must proceed to marry Habri as planned or else they would kill her.

5.  For the next several weeks leading up to the wedding, her uncle kept a close watch on her, sometimes locking her inside the house and kept threatening to kill her if she failed to marry Habri.

6.  Determined not to go through the wedding, the Applicant therefore sought help from a friend for arrangements to leave the country, and so in early 2013 she made her escape to Morogoro to hide in a friend’s place for several months before moving on to Sumbawanga where she stayed without incidents until early 2014 when she departed Tanzania for China and stayed there until June 2014 when she flew to Thailand, and from there she travelled to Hong Kong on 14 June 2014 where she subsequently overstayed, and later she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 25 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 17 March 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her uncle or by Habri upon her return to Tanzania due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no real intention on the part of her uncle to harm or kill her other than to get her to marry Habri who himself has never made any threats against her let alone actually harming her, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Tanzania with a large population of 51 million people spread across a vast territory of more than 947,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of Tanzania away from her home district in places such as Sumbawanga where she had stayed before without incidents and where it would be difficult if not impossible for her uncle or Habri to locate her.

9.  By a Notice of Further Decision dated 5 April 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional facts and representation from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 30 March 2016, and for which she attended two oral hearings on 20 January 2017 and 17 May 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 15 June 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found even on the Applicant’s own case that there was no evidence of her having been tortured or persecuted by her uncle or Habri or that there would be any future risk of harm from either of them upon her return to Tanzania, and that in any event it was a private dispute between them without any official or state involvement that with state/police protection available that her claim for non-refoulement protection failed on all applicable grounds.  

12.  On 27 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in the Form, and in her supporting affidavit of the same date she merely stated that she was not satisfied with their decisions and repeated her claim that her life would still be in danger and that it is not safe for her to return to her home country, but without providing any valid or proper ground for her intended application.  Nor did she request any oral hearing for her application.

13.  By then she was however also seriously out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the three-month period for her to file her Form 86 fell on 15 October 2017 after discounting August 2017 for summer vacation, the Applicant was therefore more than 5 months late with her application, and in considering whether to extend time, the court shall have regard for (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 5 months must be regarded as very substantial and excessive, for which she did not provide any explanation, while the record shows that the Board’s decision was sent to her on the same day at her last reported address which was the same as the one stated in her current Form 86 and which has never been returned through undelivered mail.  As such and in the circumstances I am not satisfied that she has any good or valid reason for her such serious delay, and as noted above, in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any merits in her intended application.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Tanzania, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

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