Torture Claims Appeal Board v. Director of Immigration

HCAL 1039/2021

[2021] HKCFI 2926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1039 of 2021

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

1.extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 March 2021 refused; and

2.the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 25-year-old national of Tanzania who arrived in Hong Kong on 21 May 2019 with permission to remain as a visitor up to 19 August 2019 when he did not depart and instead overstayed, and on 22 August 2019 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Tanzania he would be harmed or killed by the Tanzanian government or authorities over a statement given by him to the police after witnessing a kidnapping case of a wealthy businessman in his home country. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dar Es Salaam, Tanzania. After leaving school he worked as a squash coach in a hotel fitness center in his home district.

3.One day on 11 October 2018 while working in the fitness center, the Applicant witnessed one of his clients Dewji, a very wealthy businessman being kidnapped by several armed black men, but of which the Commissioner of Police later in a press statement that the kidnap was carried out by unknown white men, and when the Applicant attended at the local police station to give a witness statement that those kidnappers were in fact black men, he was warned not to contradict the Police Commissioner and must not tell anyone that the kidnappers were black men.

4.Thereafter the Applicant became concerned about his own safety due to the police’s warning and so he did not return to his own residence and instead took shelter in his aunt’s place in Mbezi, but later when he heard from his aunt that someone from the National Security Service was looking for him for the purpose of further investigation over the kidnapping case, he became fearful that the authorities were looking to silence him for having stated that the kidnappers were black men contrary to the statement made by the Police Commissioner, and when he suspected that he had been followed by strangers, he fled to a neighbouring city Arusha and then to Morogoro, and on 20 May 2019 he departed Tanzania for Kenya, and from there he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 December 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 23 November 2019 over a fraud case for which he was subsequently convicted and sentenced to prison for 19 months, and since his discharge from prison he has been detained at the Castle Peak Bay Immigration Centre (“CIC”).      

6.By a Notice of Decision dated 6 January 2020 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his fear of perceived risk of harm from the Tanzanian authorities is likely to materialize due to the absence of any past ill-treatment from them, that there is no evidence of him being wanted by the authorities given the fact that he was able to leave the country without any problem, and that any requirement of him for further investigation by the authorities was only normal and proper given the fact that he claimed to have witnessed the kidnap that there is no basis to suggest that he would be at any risk of being harmed or ill-treated by the Tanzanian police or security agents or authorities other than his own bare assertions and groundless speculations.

8.On 15 January 2020 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 via video link from the prison on 18 September 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 11 March 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious flaws and inconsistencies in the Applicant’s evidence that rendered his claim unreliable and not credible, that there is no reliable evidence of any risk of him being harmed or killed by the Tanzanian authorities over his statement made to the police about the kidnappers being black men other than his own bare assertions and groundless speculations, that otherwise had he been a person of interest to the authorities he would have had difficulties avoiding arrest or leaving the country without any problem, and concluded that he has failed to establish that he faces any genuine or substantial risk of being harmed or ill-treated by anyone upon his return to Tanzania that his claim for non-refoulement protection failed on all the applicable grounds.    

10.On 22 July 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he merely stated that the Board’s decision was not reasonable or fair but without providing any details or particulars or elaboration as to how it was so, nor was he able to do so or put forward any proper ground for his intended challenge at the hearing of his application.

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

12.As the last day of the three-month period for him to file his Form 86 fell on 11 June 2021, the Applicant was therefore some 6 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 HKCA 393.

13.In the Applicant’s case, a delay of 6 weeks must be considered as very substantial, for which he explained at the hearing of his application that he was then in prison or detention during which he had had difficulties obtaining legal assistance for his application until much later when he was by then already out of time with his application.

14.While I accept that he was then in detention with the inevitable delay caused by restrictions on incoming and outgoing mails for the inmates as well as accessing legal assistance while being detained, but they cannot in my view justify such serious delay after taking into account of the 3-month period under the rules within which he already had to make his application. In the circumstances I am not satisfied that the Applicant has provided a good reason for his substantial delay.     

15.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge other than a bare assertion that the Board’s decision was unreasonable and unfair without any particulars or specifics or elaboration as to how it was so. As such 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.

16.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.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse findings on his credibility and the lack of reliable corroborative evidence for the very thorough and detailed analysis and reasoning set out in paragraphs 74 – 163 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.

18.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.

19.For 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 substantial delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 30^th day of September 2021

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