Mwinyi Sophia Hassan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3003/2019

[2025] HKCFI 4263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3003 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 present 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.The applicant applies for leave to apply for judicial review of the Decision dated 30 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 28 July 2025.

The applicant

3.The applicant, aged 39, is a national of Tanzania. She came to Hong Kong as a visitor on 11 January 2018 and was allowed to stay until 11 April 2018. She overstayed and surrendered to the Immigration Department where she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by political party Chama Cha Mapinduzi (“CCM”) in Tanzania as she was an active supporter of Chama cha Demokrasia na Maendeleo (“Chadema”).

4.According to the applicant, she was a supporter of Chadema because CCM has been in power for about 40 years and the government has been corruptive. She and her two friends had created Instagram accounts to post pictures figures with critical captions against CCM. In September 2017, her mother told her that some people came to her house twice and asked her whereabouts. She believed that they were the people of CCM. She also had information that her other 2 friends were taken away by some people. She was concerned about her own safety; therefore, she came to Hong Kong on 15 September 2017. Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003003_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

5.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”).

6.By way of Notice of Decision dated 17 December 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that her claim was unsubstantiated. The Director further found that state protection would be available and internal relocation alternatives are viable. [38]-[48]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 24 July 2019, the Board conducted an oral hearing for her. She had given oral evidence and answered the Board’s questions.

8.Having considered the applicant’s evidence, the Board came to the conclusion below.

(1)  She failed on her credibility. [6] & [29]

(2)  Even if her account of facts were true, there would be no real risk for her to return to Tanzania.[6]

(3)  State protection would be available.[6] & [78]-[95]

(4)  Internal relocation is a viable option. [6] & [122]-[126]

9.For the above reasons, the Board dismissed her appeal.

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

10.The applicant has filed Form 86 dated 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has, insofar as the Board’s Decision is concerned, raised the grounds below in support of her application:

(1)  the Board has not taken into account of BOR 2 risk;

(2)  the Board acted unreasonably and was unfair, without taking into account of her personal background and experience; and

(3)  it was unreasonable for the Board not to accept her evidence and it required her to respond to questions that she was not in a position to answer; and it did not take into account of corruption in her 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 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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she could not say that the Board was wrong in its decisions. Her admissions are inconsistent with those grounds under paragraph 12.

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.Those grounds under paragraph 12 are the applicant’s bare assertions or her opinions, which are not valid to challenge the Board’s Decision.

16.The applicant fails to show that she has any realistic prospect of success in her 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 her application.

Dated the 25^th day of September 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