BILALI SALUM MRISHO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1142/2020

[2025] HKCFI 4500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1142 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 oral submissions by the applicant in open court;

1.      On this court’s own motion, 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 22 May 2020”.

2.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 9 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)   “The decision made on unknown date but notice on of 10 December 2018”; and

(2)   “the decision dated 22 May 2020 Adjudicator, Torture Claims Appeal Board”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 22 May 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 November 2018 (“the Director’s Decision”).  The applicant confirmed at the oral hearing before this court on 9 September 2025 that the Leave Application was only concerning the Board’s Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001142_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant had not made out a case in respect of any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as the proposed respondents, when only the Board should be the putative respondent.

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

6.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

7.  As aforesaid, the applicant had confirmed at the oral hearing before this court that the decision in respect of which relief is sought in the Leave Application was only the Board’s Decision.  Thus, it is so amended on this court’s own motion.

The applicant’s case

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

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, he would be harmed by the people of Chama Cha Mapinduzi (“CCM”), the ruling party in his country, as he had been a member of the youth group of the opposition political party, the Chadema Party, and was accused by CCM members that he had injured the chairman of CCM.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 9 September 2025.

11.  The applicant said that he was attacked and ambushed at home.  He was the one who understood the politics back home and knew what was going on currently.  He was waiting for evidence to support his claims.  The leader of his political party tried to run for candidacy in his country but was arrested. The situation in his home country was getting worse.  He emphasized that he is a human being and has rights.

Grounds for judicial review

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

13.  The applicant did not advance any ground for judicial review in Form 86, nor in the supporting affirmation dated 9 June 2020. He merely stated in the affirmation that the intended judicial review was against the decision of the Board as well as the Director.

14.  However, as aforementioned, the applicant confirmed at the oral hearing before this court that the Leave Application was only concerning the Board’s Decision.

15.  He also raised the matters as aforesaid at the oral hearing.

Discussion

16.  First of all, the applicant seemed to suggest that he had more evidence to submit.  However, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

17.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

18.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

19.  The applicant’s alleged danger had been duly assessed and rejected by the Board.  None of the matters raised by the applicant at the oral hearing before this court constitutes a valid ground to challenge the Board’s Decision.

20.  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,supra).

21.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  In order to assess the applicant’s appeal/petition and to enable him to supplement whatever facts or evidence he had omitted to disclose in respect of his claim, the Board held an oral hearing on 24 March 2020.  The applicant was present and thus did have the chance to present his case to the Board in person.

23.  The Board found multiple inconsistencies in the applicant’s claims.  Further, the Board found it inconceivable that being attacked by 16 people with weapons like machete and sticks, the applicant escaped and did not suffer any injury.  The Board also found nothing which triggered the applicant’s decision to leave his home country, if he had indeed relocated to Kigoma for 1.5 years, made a living there by selling fish and nothing happened to him there.  It also showed that the influence, if any, of the CCM party was restricted to his native place only.  The applicant’s statement to the Immigration Department on 15 March 2018 also contradicted what he had stated in Answer 35 in the Non-refoulement Claim Form in relation to the reason why he left his country and sought protection in Hong Kong.

24.  There was no evidence that those people allegedly attacking him were government officials nor evidence that they were acting under any official capacity.  The applicant had never been accused, charged, arrested or imprisoned in Tanzania and that he left the country through official channel without any problem, which meant that he was not a target of the Tanzanian government.  The Board also found that the applicant’s case was purely a personal dispute with some of the CCM people and was not on account of race, religion, nationality, membership of a particular social group or political opinion.

25.  The Board noted that there were country of origin information (“COI”) materials that corroborated the applicant’s assertion that the government of Tanzania would not give him assistance. However, the Board also found COI showing that the Tanzanian government was concerned about human rights and security issues of its citizens and there were reforms with positive results.  The Board was of the view that state protection was available to the applicant upon his return to Tanzania.

26.  The Board also found internal relocation viable for the applicant.  The trouble he had was only with the CCM people in his locality and was localized.  It would be very difficult if not impossible for the CCM people in his locality to locate him in such a vast country with a large population.  The Board found that it would not be unduly harsh for the applicant, being an able-bodied mature person with 7 years’ education and 19 years of work experience, to relocate to other parts of Tanzania such as Arusha to make a living upon his return.

27.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

28.  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. 

29.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

30.  For reasons aforesaid, the Leave Application is dismissed.

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