MAKINDI ROBERT JUMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2243/2019

[2025] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2243 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 30 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. I shall deal with his application on the papers.

The applicant

3.  The applicant, aged 35, is a national of Tanzania. He came to Hong Kong on 13 November 2014 and he overstayed since 12 February 2015. He surrendered to the Immigration Department on 23 April 2015. He lodged a non-reflouement claim by way of a written representation dated 11 September 2015 on the basis that, if refouled, he would be harmed of killed by his uncle for the reasons that he refused to convert from Christianity to Islam and he asserted his right over his late father’s properties dispossessed by his uncle.

4.  According to the applicant, his parents passed away when he was about 3 or 4 years old. Since then, his uncle took over his late father’s properties. His uncle brought him and his sister up, providing them with education. Since he was 9 years old, because he refused to take his uncle advice to convert from Christianity to Islam. His uncle beat him up with various object. In around 2012 or 2013, he asked his uncle to return his late father’s properties and money to him. His uncle threatened to kill him if he continued to become a Christian and ask for the return of his late father’s properties. He had been beaten by other people whom he believed to be his uncle’s subordinates. He did not report to police as he considered them to be corrupt. He took his friend’s advice to come to Hong Kong in November 2014.

5.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 November 2018 (“the Director’s Decision”).

The Director’s Decision

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

a. 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”);

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

c. 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”); and

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

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons that (i) the low intensity of past ill-treatment from his uncle indicate that further risk of being harmed or killed upon his return to Tanzania is not likely to materialize [12]-[14]; state protection will be available [15]-[20]; and internal relocation is viable [21]-24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 27 March 2019 and 3 April 2019, the Board conducted oral hearings.

9.  Having considered the evidence before it, the Board dismissed the appeal upon the following findings:

“52. … I do not accept the Appellant’s claims that his uncle wanted to harm him because he refused to convert to Islam. The Appellant’s account is inherently implausible. I consider that the Appellant has fabricated his claims about his uncle’s pursuit of him to pressure him to convert to Islam in order to advance a claim for non-refoulement protection.

58. … I am satisfied that it would not be unduly harsh for him to relocate within Tanzania to avoid any risk of harm at the hands of his uncle.”

10.  The Board therefore dismissed the applicant’s 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 6 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant did not raise 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.  The applicant has not raised any valid reason to challenge the Board’s Decision. There is no reason that this Court should intervene with the Board’s Decision.

17.  The applicant therefore fails to show that he has any realistic prospect of success in his 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 his application.