SWALEHE ASIA ABUBAKARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2514/2019

[2025] HKCFI 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2514 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 13 January 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 32, is a Tanzanian. She last arrived in Hong Kong as a visitor on 30 April 2018. She had overstayed since 30 July 2018 and she surrendered to the Immigration Department on the same day. The applicant made a non-refoulement claim on 30 August 2018 and 3 September 2018. The claim was made on the basis that, if refouled, she would be seriously harmed or killed by her brother-in-law, who was well connected, because she refused to marry him after her husband passed away.

5.  According to the applicant, her husband passed away in 2015. One day in 2016, her brother-in-law came to her home with his mother and asked her to marry him according to the tradition of the village. Upon the applicant’s refusal, he assaulted her and adducted her daughter. Subsequently, in 2017, the applicant was further assaulted twice on the same day by her brother-in-law. She lost consciousness during the process and was sent to the hospital by her neighbour.

6.  Upon her discharge from the hospital three days later, the applicant relocated to her maiden home for two months, after which she returned to her matrimonial home to arrange her departure from Tanzania. In late 2017, the applicant left the country and went to Indonesia, UAE and China respectively for business purpose. Eventually she arrived in Hong Kong on 30 April 2018. While the applicant was out of Tanzania, she was threatened by her brother-in-law when she tried to enquire the situation of her daughter and was also warned by his friend not to return to her country.

7.  The applicant was of the view that she could not seek protection from the police because she could not afford bribing them. She also considered internal relocation not viable because her brother-in-law could easily find her whereabouts with his connections.

8.  Details of the applicant’s story can be found in paragraphs 8-28 of the Director’s Decision dated 18 February 2019 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low frequency of past ill-treatment from the applicant’s brother-in-law indicated that he had no real intention to seriously harm or kill her [34]-[35]; (ii) there was no evidence showing that her brother-in-law was as powerful as she claimed and no indication of any state involvement in the matter [36]; (iii) a significant part of the applicant’s claim was based on speculations/hearsays and that her delay in seeking non-refoulement protection was also inconsistent with her claim that she faced imminent risk of harm [37]; (iv) state protection would be available [38]-[43]; and (v) internal relocation would be viable [44].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [19]. The appeal was therefore proceeded on such basis.

12.  The Board found the applicant had never suffered any serious injury from her brother-in-law. In any event, the matter concerned was a domestic dispute between the applicant and her in-laws with no evidence of involvement from the authorities. Furthermore, state protection and internal relocation would also be available. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [23]-[46].

13.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant did not raise any specific grounds to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  In my view, the Board was entitled to come to its views above.

20.  The applicant has raised no valid ground to challenge the Board’s Decision.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.