ABDULLAH OTHMAN ALLY v. TORTURE CLAIMS APPEAL BOARD

HCAL 389/2021

[2026] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 389 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 3 March 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000389_2021_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 8 April 2020 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named both the Board and the Director as the putative respondents, when only the Board should be so named.

4.  He also named the Board as the putative interested party when the Director should be named as such.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, he, as an albino, would be targeted by those in Tanzania who have superstitious beliefs, and also because he was known as a supporter of the opposition party Civic United Front (“CUF”).

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 22 January 2026.

9.  At the oral hearing, when this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he was not satisfied with the Board’s Decision, but he could not tell this court what was wrong with the Board’s Decision. He came to Hong Kong for protection because it was dangerous in his country. The situation in Tanzania was very bad, as there was an election and many people were killed.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 19 March 2021. He only stated in the affirmation that he wanted to apply for judicial review in respect of both the Director’s Decision and the Board’s Decision.

12.  However, the Board’s Decision was the only decision in respect of which relief is sought in the Leave Application. In any event, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

13.  None of the matters that he said at the oral hearing could amount to any valid ground for his intended judicial review at all.

Discussion

14.  First of all, the applicant’s assertion at the oral hearing that many people were killed when there was election in Tanzania was not presented before the Board for its assessment of his claim.

15.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

16.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

17.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to re-assess the applicant’s non-refoulement claim.

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).

19.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 18 November 2020. The applicant was present and was given the chance to present his case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence.

22.  The applicant’s claim arose from his being an albino, but the Board noticed that the applicant did not have the appearance of an albino person. Noting that could not be definitive, the Board questioned the applicant closely about his personal circumstances, any medical conditions from which he suffered, and in particular any skin conditions. The applicant replied that he had developed an allergy to seafood and other food products from the age of about 25, which resulted in red blotches on his skin. Based on medical information about albinism, the Board found that the applicant’s condition had no connection whatsoever with albinism. The Board found this as a fundamental contradiction to the very centre and core of the applicant’s claim.

23.  In respect of the applicant’s claimed fear due to his political affiliation with the opposition party CUF, the Board found that the applicant was profoundly ignorant about the party and it was therefore very unlikely that he had ever had any connection to it.

24.  The Board also found that the applicant’s description of the alleged attack by a group of men in 2015 lacking even the most basic detail. Moreover, even on the applicant’s own evidence, he had been able to live in Tanzania after the difficulties he had claimed for almost five years and had experienced no problems of any kind.

25.  The Board thus found that every aspect of the claim made by the applicant was affected by negative credibility indicators. The Board concluded that nothing the applicant claimed had any basis in truth whatsoever. Apart from the undisputed fact that the applicant was a national of Tanzania, the Board found that the applicant had not established any of the facts he had asserted. The Board found that merely on the basis of being a Tanzanian male, the applicant could not establish any risks on any of the available grounds under the USM to claim protection.

26.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

27.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

29.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is 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 the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed.

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