TAMBAZA MSAKARA MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Form 86 was amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 May 2021 for leave to apply for judicial review (the “leave application”) of the decision of the “USM” dated 27 April 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing his claim for non-refoulement protection.  He annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 April 2021 (the “Decision”).  In the non-refoulement context, “USM” is usually understood to refer to the Unified Screening Mechanism (the “USM”).  After taking him through the procedural history of his non-refoulement claim, the Applicant confirmed that he was seeking a review of that Decision.  Hence, on the Court’s own motion, his Form 86 was amended making the Board the proposed respondent, the Director the interested party and the Decision the decision in respect of which relief is sought.   

The background

2.  The Applicant is a Tanzanian national, aged 39.  He last arrived in Hong Kong on 17 July 2014 and overstayed since 16 October 2014.  He was arrested by the police on 19 March 2015 for overstaying.  On 11 December 2018, he lodged a non-refoulement claim form (“NCF”).

3.  His claim was assessed on all applicable grounds under the Unified Screening Mechanism and rejected by the Director in his Notice. His appeal against the Director’s Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of the Board’s Decision.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.   In gist, he claims he will be harmed or killed by a man called Issack Itemona (“Issack”) for being unable to repay a sum of US$50,000 he borrowed from that man.  

4.  The Applicant’s case is that he was given that sum of money by Issack and Zachariah to buy clothes in China for their business in 2013. Zachariah arranged his trip to China to meet with the seller.  The Applicant went to China, met with the seller and bought some clothes.  Since the shipment was not ready before his Chinese visa expired, the Applicant left China.  The goods were never delivered.  When he returned to China, he lost contact with the seller and Zacharia.  He stayed in China for a year and changed his mobile phone number to avoid being contacted.  He said that Zacharia and Isaack relayed a threat to him through a Tanzanian businessman whom he met in China that if he did not return the goods or the money, they would take action against him.  He later learned that Zacharia was kidnapped.  On his friend’s advice, he came to Hong Kong in April 2014 to seek protection.  He did not seek help from the Tanzania authorities because Isaack was powerful and he recounted he had been tortured by the authorities when he sort help from the authorities relating to his jewellery business.

The finding of the Board

5.  The Applicant testified before the Board.  The Board considered his evidence vague and confusing.  It found numerous significant impossibility in his case which he was unable to give a satisfactory explanation[2]. For example, the Board found it implausible that being an agent selling precious stones in Tanzania with no previous experience of importing goods from China or travel in China, the Applicant would have been given US$50,000 to expand his business to import goods from China.  It found it difficult to accept that he could not produce any documentary evidence showing he purchased goods in China for export to Tanzania, warehouse receipts or export documents or documents indicating how the goods would be transported to Tanzania.  He could not produce documentation such as bank statements, receipts for goods purchased, warehouse agreements, transport and travel agreements, import/export licences evidencing the purchase.  He could not even produce sale and purchase agreement, invoices, payment receipts for the goods he claim he had purchased. He could not even recall the name of the Chinese agent whom Zacharia had arranged for him to meet in China. 

6.  The Board was concerned about the credibility of his account that he obtained a visa to enter Hong Kong by producing business receipts and documents which he was by luck given by a Tanzanian businessman whom he met when he was trying to get on the train to Hong Kong.  It was also concerned about his story as to how Isaack relayed the threat to him through another Tanzania businessman whom the Applicant met in Hong Kong and whom he did not previously know.  It was also concerned about the Applicant’s eight months’ delay in seeking protection since his arrival in Hong Kong.

7.  Because of the above concerns, the Board found the Applicant was not a witness of truth.  It rejected his account in its entirety and came to the conclusion that he would not be at risk of any of the proscribed harm should he be returned to Tanzania[3].

The legal principles applicable to judicial review

8.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [4].

Grounds for judicial review

9.  The Applicant did not advance any grounds of application for judicial review.  When taking him through the procedural history, he repeatedly claim he had never received the Decision.  He was obviously lying because he had annexed a copy of the Decision in his supporting affirmation.  When the Decision was shown to him that, he claimed that he knew nothing about the Decision as it had never been explained to him.  To make sure that he understood the Decision and could meaningfully participate in these proceedings, the Court stood the case down and instructed the court interpreter to explain the Decision to him. 

10.  After the legal principle in the above section had been explained to him, the Applicant complained that the Board did not have all the information before it when making its Decision.  He said he is a Tanzania, he knew what it was like in Tanzania.  He was asked if he had told the Board those information.  He said he had not but he had put all the information in his NCF and invited the Court to look at the Decision dated 27 April 2021.  He also asked the Court to look at the news about the election in Tanzania last year.  He submitted that had the Board looked at those information, its Decision would have been different.

11.  The Board had not quoted any country of origin information about Tanzania (“COI”) in its Decision.  While complaining that the Board had not researched enough into the COI, the Applicant said he had not informed the Board about any of those researches, but the information were all contained in the Decision and he invited the Court to examine the Decision and to look at the news about the election in Tanzania in 2025.  Thus, whether the Board had made any research is irrelevant as the Applicant had informed the Board all the COI which he wanted the Board to consider.  

12.  All that could be considered as COI which was mentioned in the Decision is the Applicant’s account of his torture by the authorities when he sought assistance in 2004; and the existence of a Tanzanian community in that particular part of China in which Tanzanians relay messages.  These evidence had been presented before the Board.  Whether to accept the evidence and the weight to be given to those evidence is a finding of fact solely for the Board.  Obviously, the Board gave them little or no weight in its consideration of availability of state protection.  Obviously also, state protection was not an issue as the Board found the Applicant not credible because of various other concerns mentioned by the Board.  Even if that particular mode of relaying messages did exist, it was more of a question of probability than a country of origin information which must result in the messages being related.  It would be such a rare coincident that of all the 55 million people in the population of Tanzania that Isaack would have met that unknown Tanzanian in that particular part of the vast Tanzanian territory to tell him the threat; of all the places in the world that unknown Tanzanian would have gone to, he went to that particular part of China; of all the times in the era, the Applicant would have met that unknown Tanzanian; and of all the topics that they would have conversed, they mentioned about Isaack and his threat.  Such a coincidence upon another and upon another is one that the Board may very safely discount.

13.  As for his complaint that the Board had not considered the 2025 news about the election in Tanzania, the short answer is that that evidence could not have been before the Board in 2021, when it made the Decision four years earlier.  The relevant COI for the Board to consider was the COI at the time of the threat or at the time of the Decision.

14.  The Applicant’s submission has been considered in the context of error of law, procedural unfairness and irrationality, but this Court finds that there is no substance under this ground.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

16.  The Board tested the Applicant’s evidence against common sense and probability.  It found by reason of the various concerns it had that he was not a witness of truth.  It gave detail reasons for its findings.  On the state of the evidence, it was open to the Board to make those findings.  Those are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  For the above reasons, on its own motion, the Court amended the Applicant’s Form 86 to reflect his true intention; but the leave application as amended is refused.

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