Case Document

100%Judiciary

HCAL 1876/2018

[2022] HKCFI 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1876 of 2018

BETWEEN

	Hassan Mussa Ally	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 13 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

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

The applicant

4.The applicant is a national of Tanzania. He entered Hong Kong as a visitor on 20 April 2012 but overstayed. He was arrested by the police on 28 July 2012. On 30 July 2012, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Chama Cha Mapinduzi (“CCM”).

5.According to the applicant, he belonged to CCM’s opposition party Chadema. In March 2012, while he was in a Chadema meeting, the CCM people came with the police and dispersed the meeting using teargas, bullets and violence. Later the applicant learnt from the news that 6 people of the Chadema were killed. After he came home late at night, some people gathered outside his house and threatened to kill him. Out of fear, he first fled to Dar es Salaam. Later, he was told that his house was burnt down by the CCM people. Eventually, the applicant fled to Hong Kong for protection. Details of his claim can be found at paragraph 6 of the Notice of Decision dated 23 September 2015 by the Director (“the Director’s First Decision”) and paragraphs 3 to 21 of the Board’s Decision described below.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.   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”).

7.By the Director’s First Decision, the Director refused his claim on Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon refoulement [13]-[14]; that reasonable state protection was available to him [15] and that internal relocation was an option open to him [16]-[24]. In a Notice of Further Decision dated 11 January 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that the applicant would be subjected to violation of his right to life upon his return to his country. The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

8.The applicant appealed against the Director’s Decisions to the Board. The Board had conducted an oral hearing for the applicant’s appeal.

9.The Board noticed several inconsistences in the applicant’s versions of events in oral examination and those in his non-refoulement claim form. It found that the inconsistences and matters that were far from common senses significantly undermined the applicant’s credibility [27]-[38]. In any event, internal relocation was available to the applicant as the alleged attack happened six years ago and the CCM people might no longer have interest in him [39]-[46] and the country of origin information suggested that state protection was also available to the applicant [47]-[49]. Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal [50]-[69].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision because his life was not safe in his own country.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.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.”

15.The applicant has submitted no valid ground to assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 23^rd day of February 2022

	(Chasel MAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23/2/2022 Hassan Mussa Ally Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/2/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2336/15/10/5/TA3 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 814/15 (Formerly RBCZ 762/12) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)