Reshingo Edina Amani v. Torture Claims Appeal Board

HCAL 3475/2019

[2024] HKCFI 3150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3475 OF 2019

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 32-year-old national of Tanzania who last arrived in Hong Kong on 21 April 2014 as a visitor with permission to remain as such up to 20 July 2014 when she did not depart and instead overstayed, and was arrested by police on 13 January 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Tanzania she would be harmed or killed by her uncle due to their dispute over her inheritance of her father’s estate in her home village. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Tanga, Tanzania where her father passed away when she was 10 years old and left his estate including a house and a farm to her but placed in the care of her uncle on trust for her while under the care and upbringing by her uncle until she reached her age of majority.

3.However, when she reached the age of majority and asked her uncle to hand over her father’s estate, her uncle refused and instead tried to marry her off to some old man, and when she refused, her uncle then drove her away, threatening to kill her if she dared to come back to demand for her father’s inheritance.

4.With the help of a friend the Applicant departed Tanzania in July 2013 for China where she found a job to make her living, and on 20 January 2014 she arrived in Hong Kong where she overstayed, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 June 2018 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 9 July 2018 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 uncle upon her return to Tanzania as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her other than to deter her from claiming for her inheritance from her father, that in any event it was a private family dispute between her and her uncle only 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 53 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 to move to other areas of the country away from her or her former husband’s home district in large cities such as Arusha or Zanzibar where it would be difficult if not impossible for her uncle to locate her.

7.On 13 July 2018, 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 15 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 31 October 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s dispute with her uncle over her inheritance of her father’s estate but found no evidence of any real intention of her uncle to seriously harm or kill her other than her own speculations, and that it is not accepted that after all these years since she left the family and the country that her uncle would still have any adverse interest in her given that even on her own case that there is no indication of any action or intention on her part to still have any intention at all to make any claim for her father’s estate at all that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.On 25 November 2019, 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 in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge. 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 also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Tanzania, a decision also agreed and confirmed by the Board, 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.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.Moreover, the Applicant recently on 19 September 2024 filed an affirmation requesting to withdraw her application as her problem with her family in her home country are now “finished”.

14.For all these reasons I am 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 of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 14^th day of November 2024

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