Anthony Theresia Olwi v. Torture Claims Appeal Board

HCAL 786/2020

[2025] HKCFI 5734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 786 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 28 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 April 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000786_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection were not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 July 2018 (“the Director’s Decision”) and affirmed the same.

3.Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed. The applicant made a CAT claim[5] previously which was refused by the Director on 25 February 2013. The applicant did not appeal against that decision.

4.Thus, the applicant’s Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

The applicant’s case

5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, she would face danger from the woman who arranged her travel to Hong Kong to work and demanded her to repay US$900 for the air ticket and other expenses. The applicant only realized after she was in Hong Kong that she was expected to work as a sex worker, which was against her will.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application and her case was heard on 28 October 2025.

8.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely said that she could not return to her home country because a very influential person would harm her.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.However, the applicant did not assert any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 28 April 2020.

11.What the applicant said at the oral hearing before this court is not a valid ground for the intended judicial review at all.

Discussion

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.The applicant’s alleged problem that she would be harmed by a very influential person had already been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

14.However, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.

15.In assessing the appeal by the applicant, the Board arranged an oral hearing on 25 February 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

16.As can be seen from the Board’s Decision, the Board did give detailed reasons as to why it did not accept that the applicant was at risk of serious harm from the woman who allegedly brought her to Hong Kong.

17.The Board found it very difficult to accept that the applicant failed to remember the name of the woman who allegedly arranged her to come to Hong Kong to work, and the name of the neighbour/cousin whom she entrusted to take care of her young daughter. The applicant did not even know where that woman was living in Tanzania. There was also no evidence to show that the woman who arranged her to come to Hong Kong was connected with the authorities or was as powerful as she claimed. Thus, the Board did not accept that the applicant was at risk of serious harm from that woman.

18.The Board also made clear that if its assessment was wrong and the applicant was at risk of harm, there was nothing which would indicate that she could not seek the assistance of the authorities if she was in fact threatened with harm by that woman.

19.The Board acknowledged from country of origin information (“COI”) that corruption was a significant problem in Tanzania. However, the Board was satisfied that should the applicant be threatened and police assistance not be forthcoming, the applicant could safely relocate elsewhere in Tanzania, a big country with large population which allowed freedom of movement. After considering extensive COI, the Board was satisfied that the applicant, being relatively young and with a work history including selling food and hairdressing, could move to another place in Tanzania and it would not be unduly harsh for her to do so.

20.Thus, the Board concluded that the applicant’s claim for non-refoulement protection was not made out on all the applicable grounds including BOR 2 Risk, BOR 3 Risk and Persecution Risk under the USM. The applicant had not claimed that she feared harm for any of the Convention reasons. The Board also found that the applicant was not at risk of torture or ill-treatment or arbitrary deprivation of life upon refoulement.

21.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

22.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

23.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 25^th day of November 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