Wambura Grace Joseph v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1096/2021 on BabelCite. This High Court CFI judgment was delivered on 22 April 2026.
1. By way of Form 86 dated 3 August 2021 and filed on 4 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:
Cites 3 cases
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HCAL 1096/2021 [2026] HKCFI 2278 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1096 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 3 August 2021 and filed on 4 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:
2.The Torture Claims Appeal Board (“the Board”) made a decision dated 11 June 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 December 2018 (“the Director’s Decision”). At the oral hearing before this court on 2 April 2026, the applicant confirmed that the Board’s Decision was the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:- 3.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same. Amendments 4.In Form 86, the applicant wrongly named both the putative respondent and the putative interested party. 5.As aforesaid, the applicant has confirmed that the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, the Board should be named as the putative respondent and the Director should be named as the putative interested party 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 11 June 2021”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, she would suffer serious ill-treatment, even death, at the hands of her paternal uncle Dr James because she initially refused the suggestion of her family members that she should marry Dr James, following the death of the applicant’s mother. The applicant also feared that, based on what she had been told by her maternal aunt Monica, she might be seriously harmed, even killed, by her brothers but she could only speculate as to the reason her brothers might want to harm her. 9.The applicant also submitted a health report to the Board which showed that she suffered from a condition which was not life-threatening but which would require long-term treatment by way of medication and observation. The applicant expressed concern as to how she could afford such treatment if she was refouled to Tanzania. Oral hearing 10.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 2 April 2026. 11.When this court asked the applicant for the grounds of her intended judicial review, the applicant only said that she did not know why her claim for non-refoulement protection was denied, as her life was still in danger. She requested this court to give her an opportunity to stay in Hong Kong as she needed to be in a safe place. Grounds for judicial review 12.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). 13.The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affidavit dated 3 August 2021, the applicant merely mentioned that what she was saying was true and she wanted her case to be reviewed because her case needed more hearing so that a better decision could be made. 14.As aforesaid, at the oral hearing, she only mentioned that she wanted to stay in Hong Kong as her life was still in danger, and she did not know why her claim for protection was denied. Discussion 15.First of all, the applicant’s danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 16.Her wish to stay in Hong Kong is not a valid ground for judicial review either. 17.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). 18.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 19.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 9 December 2019. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person. 20.As can be seen from the Board’s Decision, the Board did analyze all aspects of the applicant’s claim, including the fear of threat or harm from Dr James and the applicant’s brothers, and the applicant’s concern of not being able to access medical treatment. 21.However, the Board found that on the applicant’s own evidence, she was not physically abused by Dr James, or any other member of his household, although the applicant might have been assigned some unpleasant and demeaning tasks to perform, which eventually caused her to leave Dr James’ house. The menial tasks which she was required to perform during the time she was living in the home of Dr James did not amount to ill-treatment of the type, or degree, which might support a claim for non-refoulement. The applicant’s belief that Dr James had used his influence to cause her dismissal from her employment at the radio station was only the applicant’s own speculation. 22.The applicant’s fear of being killed by her brothers was purely based on hearsay from her paternal aunt Monica whose information was based on a rumour in the village only. The fear was again based on her own, self-induced, speculation based on hearsay evidence. The Board found that the applicant’s speculation in this regard was unreasonable and was not supported by any credible evidence. 23.As to the applicant’s health, the Board found that the most recent version of the country of origin information (“COI”) indicated that there was an extensive national programme for care and treatment of the applicant’s medical condition in Tanzania, to which the applicant would have access, if she was refouled to that country. 24.The Board thus concluded that the applicant had failed to establish, even to the low standard required, that there was a real chance that she would face any of the proscribed forms of harm under the USM upon refoulement. 25.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board had found that the applicant was not at risk of harm from Dr James or from her brothers, and that the applicant would be able to access the medical treatment she needed upon her return to Tanzania, it is not necessary for the Board to consider the availability of state protection. 26.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755). 27.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 28.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 29.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. 30.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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 31.For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd day of April 2026
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
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Cases cited in this judgment