KENDRICK ALEX RWAMBO alias RWAMBO KENDRICK ALEX v. TORTURE CLAIMS APPEAL BOARD

HCAL 2546/2024

[2025] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2546 OF 2024

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 September 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Tanzanian who arrived in Hong Kong on 5 March 2023 as a visitor with permission to remain as such up to 3 June 2023 when he did not depart and instead overstayed, and on 8 June 2023 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Tanzania he would be harmed or killed by his brothers for his homosexual behavior. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Wilaua Ya Temeke, Dar Es Salaam, Tanzania. After leaving school he continued to reside with his parents and 3 brothers in his home district.

3.  While in his 20s the Applicant discovered that he was attracted to both sexes, and had had both boyfriends and girlfriends, which was however not known to his parents until 2019 when they were informed by the neighbors of their suspicion that he was gay despite the absence of any public display of his such behavior other than the neighbors’ own feeling, and when his parents and brothers were angry with him for bringing shame to the family, but upon the Applicant’s promise to change his behavior, his family did not bring up the matter again, although his brothers had since refused to talk to him or even greet him at all.

4.  However, shortly after his parents had moved to reside in another location, his brothers became much more hostile towards the Applicant by blaming him for driving their parents away, and on one occasion they even attacked him with a machete that the Applicant was struck on the head that he lost consciousness and was subsequently hospitalized for a month.

5.  After his discharge from hospital the Applicant became fearful for his life and took shelter in a friend’s place, and on 25 October 2019 he departed Tanzania for Macau to look for business opportunities, but subsequently due to the Covid-19 pandemic that he was unable to leave and remained in Macau, during which he met and formed a relationship with a Filipino woman working there as a cleaner, and in November 2021 she gave birth to their son before returning to the Philippines in March 2022 with their son but maintained her relationship with the Applicant with daily contact by phone.

6.  On 5 March 2023 the Applicant travelled to Hong Kong as a visitor, during which he was informed by a friend in Tanzania that his brothers were still looking to kill him, and so the Applicant therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 October 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 29 November 2023 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his brothers upon his return to Tanzania as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to do so given that he has since no further bisexual or homosexual encounter and instead has maintained a normal sexual relationship with his Filipino girlfriend and with whom he has a child, that in any event it was a private dispute between him and his brothers only without 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 68 million people spread across a vast territory of more than 885,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Zanzibar or Arusha where it would be difficult if not impossible for anyone to locate him.

9.  On 27 December 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 August 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 September 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found the Applicant wholly and entirely unable to give even the most minimum description of any personal experience of even a single instance of same sex attraction or any previous same sex experience or connections in the past, or to give even the most minimal description of his own sexuality or to explain when he first realized he might have a sexual orientation different from the mainstream, or to explain how he realized the effect it had upon him when he first manifested his sexuality, and that he was unable to even say anything meaningful at all about his sexuality, that what he did say was so garbled with self-contradiction as to contain any comprehensible content, which when coupled with the fact that he did and has still maintained a romantic relationship with his Filipino girlfriend and with whom he has a child that it concluded that the Applicant is not a witness of truth and that no credence can be attached to any of his claim of being a homosexual or bisexual man that might have caused any such suspicion from any of his neighbors or for his brothers to recent him or to have any cause to want to harm or kill him upon his return to Tanzania that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 19 December 2024 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 or in his supporting affirmation of the same date in which he just stated that the decision was made unsatisfactorily which led to the result of rejecting his claim as unfair and unjust but without providing any necessary or relevant details or particulars or elaboration as to why it was so, nor was he able to do so at the hearing of his application or in his subsequent written submissions in which he just repeated his claim as before without putting forward any proper ground for his intended challenge of the Board’s decision.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 2 December 2024, the Applicant was therefore more than 2 weeks late with his application, and in considering whether to extend time, the Court shall have regard to (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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of some 2 weeks may not be considered as very substantial, for which he explained at the hearing that he had been detained at the Castle Peak Bay Immigration Centre (“CIC”) at all the material times, and with no legal representation that he needed to seek help with the preparation of his application which accounted for the delay.

15.  The record shows that the decision was sent on the same day of 2 September 2024 to his detention at CIC without being returned through undelivered post, and while it is accepted that being in detention that there would be some inevitable delays with incoming and outgoing mails, and that he would indeed have to seek assistance with his application, but the fact is that he did have had some 3 months under the law to make his application, and with assistance readily available from the welfare officers stationed at CIC, I am not satisfied in the circumstances that the Applicant has provided a good reason or justification for his delay.

16.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge either in his Form or written submissions or at the hearing of his application, 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 merits in his intended application either.

17.  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.

18.  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 26 – 42 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.

19.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Tanzania, a decision also agreed and 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.

20.  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.

21.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his not insignificant delay, I refuse to extend time and accordingly dismiss 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