MAKANGE NANA DASTANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1844/2020

[2026] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1844 OF 2020

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 the applicants being absent in open court;

1.  On this court’s own motion, the name of the 2^nd applicant be amended to “Bujiku Jayden (a minor) by Makange Nana Dastani, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 4 May 2020”.

2.  The 1^st and 2^nd applicants’ application for extension of time to file the application for leave to apply for judicial review be refused.

3.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated 15 September 2020 and filed on 16 September 2020, the 1^st applicant, on behalf of herself and the 2^nd applicant (the 1^st applicant’s son born in Hong Kong on 16 September 2018), applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The Decision of the Director dated 25 June 2018 in respect of the first Appellant and the Decision of the Director dated 8 May 2019 in respect of the second Appellant are affirmed.”

2.  In respect of the 1^st and 2^nd applicants’ applications for non-refoulement protection, the Torture Claims Appeal Board (“the Board”) made a decision dated 4 May 2020 (“the Board’s Decision”) regarding their appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 25 June 2018 and 8 May 2019 concerning the 1^st and 2^nd applicants respectively (collectively “the Director’s Decisions”).

3.  As the Director’s Decisions were affirmed by the Board’s Decision, it is clear that the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001844_2020_files/the_Board's_Decision.pdf

4.  The Board found that the 1^st and 2^nd applicants failed to establish their claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed their appeal/petition against the Director’s Decisions and affirmed the same, which rejected the 1^st and 2^nd applicants’ claims for non-refoulement protection.

Amendments

5.  The 2^nd applicant is a minor and represented by his mother, ie the 1^st applicant, as his next friend. Thus, the name of the 2^nd applicant should be stated as “Bujiku Jayden (a minor) by Makange Nana Dastani, his next friend” in Form 86, and it is so amended on this court’s own motion.

6.  The applicants named the Board / “NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondents in Form 86, when only the Board should be the putative respondent.

7.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

8.  As aforesaid, the subject matter of the Leave Application should be the Board’s Decision.

9.  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 decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 4 May 2020”.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicants’ Form 86 was filed on 16 September 2020, which was more than 4 months after the Board’s Decision (made on 4 May 2020). The applicants were hence late for more than 1 month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicants to make the Leave Application.

12.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.  In her supporting affidavit dated 16 September 2020, the 1^st applicant did not explicitly make any application for extension of time but provided an explanation for the delay in making the Leave Application. She stated that the reason for the late application was that she did not know where to start to apply, and after asking different people, she got the direction and came to start the appeal process. This court will treat it as an application for extension of time to file the Leave Application.

14.  At the oral hearing before this court on 22 January 2026, the 1^st applicant did not further explain the reason for the delay in filing the Leave Application. Both the applicants were absent at the adjourned hearing on 4 June 2026. Thus, no further explanation was provided by the applicants for the delay.

15.  The delay of more than 1 month is not insubstantial, and the explanation given by the 1^st applicant in her said affidavit was clearly not satisfactory. No reason was given as to why she would need more than 3 months to find out how or where to make the Leave Application. Further, ignorance of the court’s procedures is generally not an excuse. More importantly, there is no merit in the intended judicial review as discussed below.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicants to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

17.  However, this court will still examine the merits of the Leave Application in respect of the applicants.

The applicants’ case

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

19.  In sum, the 1^st applicant claimed for non-refoulement protection because if refouled to Tanzania, she feared being ill-treated or killed by her father and her stepmother, as she refused to marry an old Muslim man as requested by them. The 1^st applicant also feared ill-treatment from them because she had given birth to a child, ie the 2^nd applicant, out of wedlock.

20.  As to the 2^nd applicant’s case, the 1^st applicant, on behalf of the 2^nd applicant, claimed that the 2^nd applicant would not be safe if he was refouled to Tanzania because of the “problematic conditions” in Tanzania affecting him, in particular, the environment in Tanzania was not conducive to good health, and because of the environmental risk and lack of good medical care in Tanzania, the 2^nd applicant would be susceptible to malaria infection.

21.  The 1^st applicant also claimed that the 2^nd applicant would have education problems in Tanzania as there was a lack of furniture and infrastructure in primary schools for children, and that poverty in Tanzania would mean that the 2^nd applicant would suffer the lack of training and education.

22.  The 1^st applicant further claimed that her father and stepmother might cause harm to the 2^nd applicant, and the 2^nd applicant might face discrimination as an illegitimate child born out of wedlock. The 1^st applicant was not married to the 2^nd applicant’s father. The 2^nd applicant’s father was also a Tanzanian and a non-refoulement claimant in Hong Kong.

Withdrawal of the 2^nd applicant’s Leave Application and oral hearing on 22 January 2026

23.  Before the applicants’ case was dealt with, the 1^st applicant filed an affidavit dated 21 November 2025 to withdraw the case for the 2^nd applicant and to return him to the 1^st applicant’s home country, as there was no problem anymore for the 2^nd applicant.

24.  When the applicants’ case was first heard on 22 January 2026, the 1^st applicant said that she was forced by the 2^nd applicant’s father to file the affidavit dated 21 November 2025 to withdraw the Leave Application for the 2^nd applicant. Thus, 1^st applicant wanted to withdraw the ex parte application made by way of the said affidavit, as she did not want the 2^nd applicant to be taken back to Tanzania.

25.  As the 1^st applicant indicated that she wanted to withdraw the said ex parte application and it was in fact not made out of her own volition, leave was granted for her to withdraw the same at the hearing.

26.  Since the 2^nd applicant is a minor, the 1^st applicant, in her capacity as the 2^nd applicant’s next friend, must act by a solicitor according to Order 80, rule 2 of the Rules of the High Court.

27.  However, the 1^st applicant said that she did not know how and where to seek legal representation for the 2^nd applicant. She asked for time to figure out how she could do so. The hearing was hence adjourned to a date to be fixed and the applicants were directed to approach the Legal Aid Department to apply for legal aid on or before 5 February 2026.

28.  As the applicants did not inform this court of the result of their legal aid application, this court fixed another hearing for the applicants’ case on 4 June 2026.

Oral hearing on 4 June 2026

29.  The applicants were absent at the hearing on 4 June 2026.

30.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicants failed to attend the oral hearing of the leave application. The correct approach is to treat the applicants as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

31.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Legal representation for the 2^nd applicant

32.  As aforesaid, the applicants did not inform this court about the result of their legal aid application and were absent at the adjourned hearing on 4 June 2026. This court is satisfied that sufficient time had been given to the 1^st applicant to apply for legal aid for the 2^nd applicant.

33.  Moreover, this court notes that the 2^nd applicant was legally represented in the first tier of the screening process when his case was assessed by the Director. Thus, the 2^nd applicant did have legal assistance when his case was prepared at the initial stage.

34.  This court takes the view that the 2^nd applicant’s case would not be prejudiced by the lack of further legal representation. To avoid further delay in the handling of the Leave Application, this court will treat the absence of legal representation for the 2^nd applicant as a mere irregularity and it will not nullify the proceedings herein (see Order 2, rule 1(1) of the Rules of the High Court).

Grounds for judicial review

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

36.  The applicants did not advance any ground for their intended judicial review in their Form 86. The 1^st applicant merely stated in Form 86 that she asked this court to help her continue to get asylum.

37.  In her supporting affidavit dated 16 September 2020, the 1^st applicant mentioned that her application was to seek refuge for her and her family, as she left her country due to the persecution and harassment that forced her to leave as well as the lack of security for her rights. Further, she mentioned that she had a family and a child who was still young, and she asked to be granted asylum. It is clear that these matters cannot amount to any valid grounds for the intended judicial review.

Discussion

38.  First of all, the applicants’ risks upon refoulement had been duly assessed but rejected by the Board. If the applicants are seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

39.  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 [2018] HKCA 524).

40.  Thus, it is not for this court to re-assess the applicants’ cases for non-refoulement protection. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid grounds being advanced by the applicants.

41.  In assessing the 1^st and 2^nd applicants’ appeal/petition, the Board held an oral hearing on 13 December 2019. The 1^st applicant was present with the 2^nd applicant at the hearing and did have the opportunity to present their case, including the 2^nd applicant’s child-specific risks, to the Board in person.

42.  The 2^nd applicant was only about 15 months’ old at the time of the Board’s hearing, and he was represented by the 1^st applicant. Although the 2^nd applicant did not have legal representation before the Board, as aforesaid, the 2^nd applicant was legally represented in the first tier of the screening process when his case was assessed by the Director. Thus, the 2^nd applicant did have legal assistance when his case was prepared at the initial stage.

43.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicants’ claims and its reasoning in rejecting the applicants’ claim for non-refoulement protection.

44.  The Board had laid out in paragraphs 30 to 38 of the Board’s Decision its assessment of the 1^st applicant’s case, and it is not necessary for this court to repeat the same here.

45.  In gist, the Board considered that the 1^st applicant had exaggerated the physical abuses that she had been subjected to while she was in Tanzania. The 1^st applicant’s perceived threat from her father and stepmother due to the shame that she brought to the family by having an illegitimate child was unsupported by evidence. The Board considered that it would be difficult even for the 1^st applicant to know how her father and stepmother would react to the matter, as she had not been in contact with anyone in her family since September 2013 and with the passage of time. The Board was of the view that it was unlikely that the 1^st and 2^nd applicants would return to the 1^st applicant’s hometown to live with her family in view of the past history of domestic violence directed against the 1^st applicant.

46.  Further, the Board found no evidence to support the 1^st applicant’s suspicion that the police in Tanzania had sided with her father and stepmother. The Board did not find it credible that the 1^st applicant had no opportunity to report any of the abuses to the police or other authorities in Tanzania. There was also ample opportunity for her to report the physical and psychological abuses to her teachers at the material time. Together with the 1^st applicant’s delay in seeking protection after she arrived in Hong Kong, the Board did not find the 1^st applicant’s evidence to be reliable or credible.

47.  In its assessment of the availability of state protection to the applicants, the Board had gone through extensive, fully-referenced country of origin information (“COI”). Although COI showed that domestic violence and violence against women were among many problems in Tanzania, and that these problems were exacerbated by the ineffectiveness of the police, efforts had been made by the Tanzanian government to protect women from violence against them. More importantly, it should be possible for the 1^st applicant to seek help from government authorities when she was subjected to abuse in Tanzania and if she encountered problems when she returned to the country. The applicants might also seek help from other non-governmental organisations. The 1^st applicant in fact did not seek help from anyone when she was in her country. The Board believed that state protection was, and would be, available in Tanzania for the 1^st applicant if she was willing to avail herself of such protection. The 1^st applicant’s claim that the Tanzanian police were incapable of affording protection to her and the 2^nd applicant was considered by the Board to be bare assertion.

48.  The Board had also given its full reasons in paragraphs 54 to 55 of the Board’s Decision for its conclusion that it was reasonable to expect the 1^st applicant to live away from her father and stepmother, and could return to Tanzania with the 2^nd applicant and live independently.

49.  As to the 2^nd applicant’s case, although there was a lack of legal representation for the 2^nd applicant when his case was assessed by the Board, it is clear that the Board had considered his case and his child-specific risks separately from the 1^st applicant.

50.  The Board had laid out its findings and assessment of the 2^nd applicant’s risks, including the accessibility of health care and education, and the threat posed by malaria to children in Tanzania, in paragraphs 61 to 70 of the Board’s Decision. In short, the Board found that the 2^nd applicant would not be denied public services including health care service. He would be entitled to tuition-free primary and secondary education. If the 1^st applicant was worried about the risk posed by malaria to the 2^nd applicant, the 1^st applicant should seriously consider relocating with the 2^nd applicant to metropolitan areas such as Dar es Salaam or Zanzibar, where infection rate was much lower than the rural areas.

51.  The Board considered that while it might be true that the health care system in Hong Kong was better than that in Tanzania and that there was practically no risk of malaria in Hong Kong, it could not be argued that there was a risk of torture or persecution merely because assess to, or quality of, health care or medical treatment in Tanzania was inferior to that available in Hong Kong. The Board rejected the 1^st applicant’s argument that the 2^nd applicant would be at risk of torture or mistreatment because of the inadequate health care and education systems in Tanzania.

52.  Further, the Board found while there might be potential risk that the father and stepmother of the 1^st applicant might cause harm to the 2^nd applicant, the risk was very low and it did not amount to a real and personal risk. The Board had also considered the risk that he might face by virtue of the fact that he was born out of wedlock. However, the Board could not find any evidence or COI which suggested that illegitimate children in Tanzania had been subjected to any particular risk of harassment or threats.

53.  In the consideration of the applicants’ risks under the USM, the Board considered that their risks from the 1^st applicant’s father and stepmother arose from family or domestic conflicts, which could hardly be linked to any of the Convention reasons. There was no evidence that the mistreatment of the 1^st applicant was inflicted upon her with the consent or acquiescence of the state. As aforesaid, the Board found that the 1^st applicant had exaggerated the physical abuses that she had been subjected to while she was in Tanzania. The Board considered that the ill-treatment the 1^st applicant suffered in the past did not reach a minimum level of severity that warranted international protection. There was also no evidence that the applicants would be in any danger of being arbitrarily deprived of their lives if they were to return to Tanzania.

54.  Hence, the Board concluded that both the 1^st applicant and the 2^nd applicant were not entitled to non-refoulement protection on any of the applicable grounds under the USM.

55.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicants’ appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

56.  For the sake of completeness, this court notes that the 2^nd applicant’s father is also a Tanzanian. Thus, the 2^nd applicant is not of mixed-race ethnicity and there would not be an additional risk due to his ethnicity.

57.  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.

58.  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 applicants have failed to establish such a claim and hence leave must be refused.

Conclusion

59.  For reasons aforesaid, the applicants’ application for extension of time to file the Leave Application is refused. The Leave Application in respect of both applicants is dismissed for being made out of time and also for lack of merits.

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