MMAKA SUDI ALLY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL2972/2019

[2025] HKCFI 6210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2972 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;   or
	consideration of documents and the Applicant’s submissions in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 9 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 September 2018 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Tanzanian national.  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.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed, if returned to Tanzania, by (i) his father and his people as he had engaged with his fiancée who is a Christian woman and (ii) his six creditors as he could not repay his debt owed to them.

3.  The following is a summary of the Applicant’s case as presented by him in his non-refoulement claim form (the “NCF”) prepared with legal assistance.  He was brought up in a Muslim family and fell in love with a Christian woman from Kenya (“his fiancée”).  His fiancée got pregnant in 2015.  She was prepared to convert to Muslim.  When his father learned about their relationship, he became furious and refused to listen to the Applicant’s explanation.  His father hit the Applicant with a stick and caused an open wound on his head (the “incident”).  His father filed a false case of assault against him and caused him to be detained in a cell for one day.  He tried to file a case against his father.  He was told by his mother that his father paid a bribe to the magistrate to have the case closed. 

4.  After he was released, he went to live in Kenya with his fiancée to avoid his father.  He asked his brother who was dating a Christian woman to convert to Christian with him.  Subsequently, he was told by his brother that their father was furious about his idea to convert and stabbed his brother with a knife.  His brother was hospitalised for two weeks.  He brother tried to file a case against their father, but the police did not take any action.   His brother moved to Zanzibar, Tanzania and South Africa to avoid their father.   After staying in Kenya for four months, the Applicant was told by his mother that his father had sent detectives to locate him.  For fear that he will be located, he fled to Uganda and from there to Hong Kong on 28 November 2016.  He last contacted his brother in March 2018. 

5.  During the screening interview, the Applicant claimed for the first time that while staying in Hong Kong, he used up the proceeds of sale (the “debt”) of some gem stones entrusted to him for sale.  As he could not return the debt to the owners of the gem stones (the “creditors”), they threatened to kill him.

The Board’s finding

6.  The Board noted that the Applicant gave two different versions about his father’s attack on his brother.  In Answer 35 of his NCF dated 21 July 2017, he said his brother told him that his father stabbed him on the back and he was hospitalised for two weeks.  Then he moved to Zanzibar, Tanzania and South Africa to avoid their father: see Paragraph 4.  But in his witness statement, he gave a wholly different account that while he, his fiancée, his brother and her girlfriend were heading home from church in their hometown, their father stormed unto them and stabbed his brother to death: see Paragraph 12(viii) of the Decision and Paragraph 6.26 of the Notice.   The Board also noted that the Applicant did not seek assistance on the first available opportunity upon his arrival in Hong Kong.  He only did so only on 15 December 2016 after he had overstayed and surrendered to the Immigration Department.

7.  The Applicant’s claim was based solely on his own words.  He adduced no evidence to support the existence of the incident, the debt and his conversion to Christianity.  However, even on the basis of his evidence, the Board found his dispute with his father or with his creditor were private disputes and the ill-treatment he received from them did not attain the requisite level of severity.  There was no reliable evidence to show in relation to the state of Tanzania that his father and the creditors are public officials or state actors or people able to wield the authority of the government.  It found no evidence that the Applicant’s father and his creditors had ill-treated him with an intention listed in the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance.  It found there was no reliable evidence that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  It found there was no evidence to show that the state of Tanzania was unwilling or unable to afford protection to the Applicant.

8.  Applying the law applicable to non-refoulement protection, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

9.  The Applicant did not advanced any grounds of judicial review in his Form 86.  At the hearing, after the legal principles applicable to judicial review had been explained to him, he made a complaint about procedural unfairness.  He said he was from Tanzania whereas the interpreter provided to him at the screening interview was from Kenya and spoke a somewhat different Swahili dialect with variations in grammar and vocabulary from the dialect with which he is familiar.  He had difficulties understanding the interpreter. During the course of the screening interview, when he told her about her mistake in interpretation, the interpreter did not respond.  After the record of interview was read back to him, he told her that that was not what he said, she did not make correction, but told him, “Don’t worry.  You have another chance.”  The allegation made against the interpreter is very serious.  Hence, the Court adjourned the hearing to call for a copy of the audio record and transcript of the interview.  The Applicant was asked to identify or give an indication of the subject matters in relation to which he had complaints about the interpretation.  He was unable to do so at the hearing.  He said he would produce the record of interview and identify them at the resumed hearing. 

10.  During the adjournment, the Court obtained the transcript of the record of interview.  The Immigration Department does not have audio record of the interview.  The transcript shows that apart from the Applicant, the interviewing officer and the interpreter, the interview was conducted in the presence of the Applicant’s legal representative, Ms Wong.  Reading the record as such, there was nothing out of the ordinary.  It is consistent with the Applicant’s case as summarised by the Board in its Decision.  There are no inconsistencies as to suggest misinterpretation during the interview.  The Court understands that errors in interpretation may not be apparent from reading the record. 

11.  The Court notes from the transcript that the Applicant was accompanied by his legal representative throughout the interview.  The interviewing officer took a leading role in the conduct of the interview.  He asked questions, directed the interpreter to read back the record and invited comment from the Applicant’s legal representative.  The Court notes the following questions and answers at the end of the interview:

Q.26:   We are going to conclude this interview.  The interpreter is going to read back this record of interview to you and you may make any necessary addition, deletion or amendment to it afterwards.   Do you understand?

A  Yes.

Q 27  The time now is 1545 hours.  The interpreter has finished reading this record of interview to you.  Do you want to make any further addition, deletion or amendment to it?

A  Nothing.

Q 28  Ms Wong do you have any comment?

A  No

Q 29    The time now is 1548 hours.  The interpreter has finished reading page 6 of this record of interview to you.  Do you want to make any further addition, deletion or amendment to it?

A  No

12.  The Applicant was told in Q 26 that he could make addition, deletion or amendment to the record after it was read back to him.  He indicated he understood.  He was asked in Q 27 if he wished to make any amendments.  He replied through the interpreter he had none.   This process was repeated after the reading back and again after he confirmed he had no amendments to make.  Given the importance of the non-refoulement claim to him and that he understood he had the right to make amendments, it just begs belief that he would allow the mistakes in interpretation to remain in the record of interview.  It begs belief, too, that he would not have turned to his legal representative for help.  Even if he could not speak English at all, he could have gestured his complaint to the immigration officer and his legal representative.  They would certainly start some enquiries with the interpreter and put things right.

13.  At the resumed hearing, the Applicant did not pursue his complaint about misinterpretation in the record of interview and switched to something else.  He referred to Paragraph 6.20 of the Director’s Notice which summarized his evidence about his father stabbing his brother which resulted in two weeks’ hospitalization for his brother; and to Paragraph 12(viii) of the Decision which quoted a different account of the same event but asserting that his brother was stabbed to death by his father.  Another difference between the two versions is that in his NCF version, he said he was told by his brother on the telephone that their father attacking him and his girlfriend, whereas in his witness statement he said his father stormed on him, his fiancée, his brother and his girlfriend as they were walking home from church.  He confirmed that NCF version is correct and the version stated in Paragraph 12(viii) of the Decision is the mistake in interpretation.  But, there is nothing in the transcript about his father stabbing his brother not to mention stabbing him to death.  The alleged mistake could not have arisen out of interpretation.  There was not a scintilla of truth in his allegation against the interpreter.

14.  His story about his father stabbing his brother to death came from his witness statement.  Again, the Court called for a copy of his witness statement.  The witness statement was in fact his first written representation dated 10 March 2017 when he first lodged his non-refoulement claim.  The story was described in the third paragraph of the written representation.  It was quoted almost verbatim in Paragraph 6.26 of the Director’s Notice and Paragraph 12(viii) of the Decision.  It is clear that the Applicant first presented this story in his written representation on 10 March 2017 and then presented a different version in his NCF four odd months later.  On the face, there could be no issue about misinterpretation.  His statement was written by him to the Immigration Department when he lodged his non-refoulement claim on 10 March 2017.  The NCF account was given by him when he lodged the NCF on 21 July 2017, four months later.  On any objective view, the Applicant has given inconsistent evidence and there is no truth in his complaint of misinterpretation.  While it is not open to this Court to make finding of facts about the Applicant’s case, this Court is entitled to dismiss his complaint about error of law, procedural unfairness or irrationality based on his allegation about error of interpretation or even misinterpretation.

Overall scrutiny

15.  Having dismissed his specific ground of application, the Court turns to examine the Decision for errors of law, procedural unfairness and irrationality in the Decision.  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.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found the Applicant unreliable and his evidence questionable. Despite that, it did not expressly reject his evidence or dismiss his factual case.  Instead, it assessed his claim on the basis of the factual case as he asserted.  It made further finding of facts.  Then on the basis of all these facts the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These 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

16.  For the above reasons, the Applicant’s leave application 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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002972_2019_files/the_Board's_Decision.pdf