NGUYA ADAM IDDI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1943/2018

[2021] HKCFI 3172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1943 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Tanzania who arrived in Hong Kong on 28 June 2016 with permission to remain as a visitor up to 26 September 2016 when he did not depart and instead overstayed, and on 27 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Tanzania he would be harmed or killed by supporters of the ruling political party Chama Cha Mapinduzi (“CCM”) as he supported the opposition party Chadema Party (“CP”).  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Morogoro, Tanzania and later moved to Dar es Salaam, Tanzania where he upon leaving school ran his own mobile phones trading business, and became a supporter of CP regularly making donations to the party.

3.  In October 2015 CCM won the general election again and started to arrest members of the opposition parties including those of CP, and one day in December 2015 the Applicant found that his shop had been burnt down and suspected that CCM supporters were responsible for it, and when he also received threatening phone calls from CCM supporters, he fled to another town in Sinza where he operated another mobile phones shop, but when he continued to receive threatening phone calls, he felt it was no longer safe to remain in Tanzania, and so on 3 June 2016 he departed for China, and from there he later travelled to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

4.  By a Notice of Decision dated 27 October 2017 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 his 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by CCM supporters upon his return to Tanzania due to the absence of any past ill-treatments from them or any reliable evidence of any threats from the CCM people or any reason why they would specifically target him given that he was just a supporter with no official position in CP, that in any event in the absence of 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 52 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 part of Tanzania away from his home district in large cities where it would be difficult if not impossible for him to be located.

6.  On 27 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which was somewhat outside the 14-day period within which he was required to file under Section 37ZS(1) of the Immigration Ordinance, but with which the Board did not appear to have taken any issue, and for the appeal the Applicant attended an oral hearing on 23 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 7 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s evidence of his claim inconsistent and vague especially as to his alleged involvement in CP that he was not considered as a witness of truth and rejected the credibility as to the centerpiece of his claim of fear of harm from the CCM people that his claim for non-refoulement protection failed on all the applicable grounds.    

8.  On 14 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge. 

9.  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. 

10.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 33 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.    

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

12.  In the premises and 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. 

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his 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