Kisasembe Neatness Ngwavi v. Torture Claims Appeal Board

HCAL 93/2021

[2023] HKCFI 1672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 93 OF 2021

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Tanzania who arrived in Hong Kong on 6 May 2019 as a visitor with permission to remain as such up to 4 August 2019 when she did not depart and instead overstayed, and on 5 August 2019 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Tanzania she would be harmed or killed by her friend George over their monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Mabatini, Songea Town, Ruvuma Province, Tanzania. After leaving school with a Bachelor degree in Marketing Management, she moved to Mbezi Beach, Dar es Salaam and started her own business importing cosmetic products from Hong Kong and China for sale in her own shop in Tanzania.

3.On 9 April 2019 she took a business trip to China, and on 6 May 2019 she continued with her business trip to Hong Kong, during which her friend George via a third party sent her US$15,000 for purchasing a machine for him.

4.On 9 July 2019 while looking for the machine for George, the Applicant lost both her passport and all the money of which she reported to the police, but later when she informed George of losing his money, he became furious and accused her of stealing his money and threatened to kill her when she returned to Tanzania, and so the Applicant was afraid to return to Tanzania and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 November 2019 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 December 2019 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 her 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 Applicant’s claim and assessed the level of risk of harm from her friend George upon her return to Tanzania as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of George to seriously harm or kill her over such matter, that in any event it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 55 million people spread across a vast territory of more than 947,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Dodoma or Arusha where it would be difficult if not impossible for George to locate her.

7.On 6 January 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 2 November 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 6 January 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from George for losing his money but found it was simply a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Tanzania as well as reasonable internal relocation for her to move safely to other areas of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 27 January 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground to challenge the decision, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her 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 her 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Tanzania, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.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.Furthermore, the Applicant has recently filed an affirmation that the person with whom she had dispute has died and that it is now safe for her to return to her home country.

14.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is no safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 28^th day of June 2023

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