KIWIA CAROLINE HAMLITON v. TORTURE CLAIMS APPEAL BOARD

HCAL 941/2020

[2023] HKCFI 3104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 941 OF 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Tanzania who arrived in Hong Kong on 13 December 2017 as a visitor with permission to remain as such up to 13 March 2018 when she did not depart and instead overstayed, and on 15 March 2018 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 over their property dispute in her home district. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Moshi, Kilimanjaro, Tanzania. After leaving school she worked in her father’s vehicle spare parts trading business in her home district until 2015 she went to Dar es Salaam to study for a certificate in insurance and risk management.

3.  While she was in Dar es Salaam, her father passed away in June 2017, leaving his entire estate including various farms and properties in Moshi to the Applicant.

4.  Later when the Applicant returned to Moshi for her father’s funeral, she was told by one of her aunts that her uncle had suggested that in view of her young age and studying in Dar es Salaam, she should allow him to watch over her father’s estate and properties in Moshi for her, but as the Applicant did not trust him, she declined his suggestion and returned to Dar es Salaam to continue with her studies.

5.  As a result, her uncle became furious and told her aunt that he would kill the Applicant, and shortly thereafter when she was told that her younger sister had died under suspicious circumstances, she suspected that her uncle was responsible for her sister’s death so as to threaten her, and fearing for her own safety, the Applicant departed Tanzania on 14 July 2017 for Oman to take shelter in a friend’s place before moving on to Dubai and Singapore.

6.  On 13 December 2017 she travelled to Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 September 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 9 November 2018 the Director of Immigration (“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 her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 assessed the level of risk of harm from her uncle upon her return to Tanzania as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her or that he caused the death of her sister other than her own speculation, that in any event it was a private properties dispute between her and her uncle within their family 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 (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 53 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 adult with working experience to move to other areas of the country away from her home district in large cities where it would be difficult if not impossible for her uncle to locate her.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 31 March 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 May 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from her uncle over their property dispute but found that it was a private matter within their family without any official involvement that state or police protection would be available to the Applicant upon her return to Tanzania as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 20 May 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  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.

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

14.  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.

15.  Moreover, the Applicant recently on 3 October 2023 wrote to request to withdraw her application and to close her case as she now wants to return to her home country.

16.  In the premises, as I am for the reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her wish to close her case and to return to her home country, I 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