Mtumwa Ramadhani Nasibu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3292/2019

[2025] HKCFI 3340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3292 of 2019

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.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 9 July 2025. I shall deal with his application on the papers.

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

The applicant

4.The applicant, aged 33, is a national of Tanzania. On 18 March 2015, he came to Hong Kong as a visitor. He overstayed and surrendered to the Immigration Department on 19 June 2015. He raised a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to settle the loan from the creditor.

5.According to the applicant, he had borrowed a loan from his creditor for his business as mobile phone accessories. His business failed and he was unable to repay his loan. The creditor threatened to kill him. He fled for Hong Kong.

6.Details of his claim are set out in the Board’s Decision. See hyperlink
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003292_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

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

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

8.By way of the Director’s Decision dated 27 June 2018, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 4 July 2019, the Board conducted an oral hearing for his appeal. The Board had put questions to the applicant and he answered them.

10.Having considered the evidence, the Board considered that the applicant was not a reliable witness and there will not be real risk if he returns to his country. [66]

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 5 November 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

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

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

15.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.”

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 21^st day of August 2025

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