MASSAWE BLANCA AVIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3170/2019

[2025] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3170 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 2 June 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Tanzania. She last arrived in Hong Kong on 28 July 2015 as a visitor but she did not depart and overstayed since 27 October 2015. She was arrested by police on 16 December 2015 and in due course, she lodged her non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by a moneylender .

6.  According to the applicant, in or around 2014, she was approached by a businessman via email who had a gemstone business. She was asked to invest around 70,000,000 Tanzanian Shilling to purchase the gemstone. In or around 2015, a family friend agreed to sponsor the applicant by giving the applicant one of his land deeds worth around 70,000,000 Tanzanian Shilling, and then secured the loan from the bank (“Moneylender”). The applicant gave the money to the businessman, but did not receive the gemstone. The moneylender demanded repayment of the loan. She was unable to repay. She was abducted but she managed to escape. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 November 2018 by the Director (the “Director’s Decision”)

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

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

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim on all applicable grounds and dismissed her claim. In summary, the Director found that there were no substantial grounds for believing that there were any real risk of being ill-treated upon return to Tanzania; that the low intensity of past ill-treatment is indicative of the unlikelihood for a future risk of harm, and the applicant did not experience any physical attack from her enemies [11-15]; reasonable state protection was available [16-22]; and internal relocation alternatives were available and reasonable [23-26].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 17 September 2019, the Board conducted an oral hearing for her with an interpreter.

10.  Having considered the evidence, the Board rejected all the claims that the applicant would be at risk of harm from the moneylender and was not persuaded, on the balance of probability, that the moneylender had any contact with the applicant’s family. It further found that the applicant never had any personal encounter with the moneylender [66-79]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 25 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of her application, she exhibited her hearing bundle including the Board’s Decision but she did not put forth any ground to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, she said that she had asked someone else to prepare her statement and this explained why there were inconsistencies as pointed out by the Board in the Board’s Decision.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The applicant has raised no valid ground to challenge the Board’s Decision.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.