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HCAL 1770/2020
[2025] HKCFI 4864
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1770 of 2020
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BETWEEN
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Kamanya Swaibati Selemani |
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 |
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Interested Party |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 11 August 2020 of the Torture Claims Appeal Board (“the Board’s Decision).
2. The applicant did not request a hearing.
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 was an illegal immigration for the reason that she entered Hong Kong on 23 January 2016 as a visitor and she overstayed since 26 January 2016. She surrendered to the Immigration Department. She was arrested by police and was convicted of the offence of soliciting for an immoral purpose. She lodged a non-refoulement claim.
5. The applicant’s claim was based on her fear of being harmed or killed by her boyfriend, Haji, who had sold her into prostitution and smuggling of drugs in around 2013. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001770_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. 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”).
7. By way of the Notice of Decision dated 20 April 2018 (“Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 3 July 2020, the Board conducted an oral hearing for her. She had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board found the facts below.
(1) The applicant had exaggerated her evidence in the treatment she received when she stayed in China. [33]
(2) Her story in China in 2016 and her escape from custody of the pimps were dramatic and unbelievable. [43]-[44]
(3) Her statement that she would be killed if she reported the matter to police is only her bare assertion. [49]
(4) Her evidence of being detained and forced to be a prostitute and drug trafficker was unclear, unreasonable and illogical. The Board did not find her a credible witness and it did not accept her evidence. [54]
(5) The Board did not find her claimed risk to be likely to materialize. [56]
10. For the above reasons, the Board dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 4 September 2020 for leave to apply for judicial review of the Board’s Decision.
12. The applicant has not raised any specific 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.
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. It is clear that the Board did not believe her evidence in relation to the core facts of the applicant’s claim. This is entirely within the province of the Board.
17. The applicant has raised no valid ground to challenge the Board’s Decision.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 30th day of October 2025
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(Klein Tse)
for Registrar, High Court
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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 the Applicant’s 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 30/10/2025
Kamanya Swaibati Selemani
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 30/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11430/18/5/15/TA25
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 585/18 (Formerly RBCZ 11271/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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