Said Ismail Hamoud v. Torture Claims Appeal Board

HCAL 161/2019

[2022] HKCFI 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 161 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Tanzania who had travelled to Hong Kong on 8 occasions between 2007 and 2009, and in his last visit on 6 October 2009 when he was permitted to remain as a visitor extended up to 8 November 2009 when he did not depart and instead overstayed, and was arrested by police almost one year later on 30 October 2010. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Tanzania he would be harmed or killed by the Tanzanian police or authorities for having participated in anti-government activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dar Es Salaam, Tanzania.  He received 11 years of formal education and in 1990 started his own business in Zanzibar, got married and raised a family with 4 children.

3.He was not a member or supporter of any political parties in Tanzania, but in about 1995 he started to participate in various anti-government rallies and protests, and for which he had been arrested and detained by the police in Zanzibar on 6 occasions for which he would be beaten, ill-treated and detained before being released without charge, with the last occasion in 2005 when he was again released without charge other than a requirement to report to the police if he were to leave Zanzibar.

4.Gradually he ceased his political activities, and in between 2007 and 2009 he travelled out of Tanzania to Hong Kong on some 8 business trips to purchase goods for his business, and during his last trip on 6 October 2009, he was informed by his wife in Tanzania that the police in Zanzibar were looking for him without disclosing for what reason, but which the Applicant suspected was to arrest all the political activists like him in anticipation of the forthcoming general election in 2010, and as he was afraid of being arrested upon his return to Tanzania, he therefore overstayed in Hong Kong after the expiration of his visiting visa on 8 November 2009, and upon his subsequent arrest by police almost one year later on 30 October 2010, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).        

5.By a Notice of Decision dated 31 July 2017 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”).

6.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and assessed the level of risk of harm from the police upon his return to Tanzania as low in the absence of any reliable evidence other than hearsay from his wife that the police were indeed looking for him, that it is not accepted that the Tanzanian police or authorities would still have any adverse interest in him after all these years since he ceased his political activities and having left the country for more than 10 years, that he was able to undertake many trips out of Tanzania without any problem that it is not accepted that he is a target of the Tanzanian police or authorities, that reliable and objective Country of Origin Information (“COI”) show that there have been reforms in Tanzania in recent years against corruptions especially amongst the police that it is not accepted that the Applicant would be arrested without proper cause or reasons, and that his rights to due court process would be protected that there are no substantial grounds for believing that he would be subjected to any risk of harm or ill-treatment by the police or authorities upon his return to Tanzania that his claim for non-refoulement failed on all applicable grounds.

7.On 7 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing 7 December 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 4 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found the Applicant’s evidence regarding his participation in anti-government activities contradictory, vague, lack of details and unconvincing, that when he was asked to explain or clarify that he just claimed that he could no longer remember them, that the credibility of his claimed fear of harm from the police is further undermined by his failure to raise his claim until almost one year after his overstay in Hong Kong and only after his arrest by the police, that in the absence of any further or documentary evidence to corroborate his bare assertions that it did not accept that he was genuinely and personally involved in any political activities or that he had as a result been arrested or tortured or ill-treated by the police in Tanzania as claimed, or that he is wanted by the Tanzania police or authorities or that he may face such risk given that he had been able to leave the country on many occasions without any problems that it is not accepted that he was or will be of any adverse interest to the Tanzanian police or authorities that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision because it disregarded his dangerous situation but without providing any details or elaboration as to how it did so, nor did he request any oral hearing for his application. 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 reasonably arguable basis for his intended challenge.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 10 – 51 of  its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as from reliable and relevant COI which did not support or corroborate his claimed risk, 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.        

12.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.

13.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 25^th day of January 2022.

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