Case Document

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HCAL 1251/2024

[2026] HKCFI 5567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1251 OF 2024

BETWEEN

	Koka Leah Charles	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 31 July 2024, 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 10 July 2024 (“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/2024/HCAL001251_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 December 2023 and confirmed the same, which rejected her non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because being a lesbian, she would be killed by people who were anti-LGBTQ if she were refouled to Tanzania.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application and her case was heard on 24 September 2026.

6.When this court asked the applicant for the grounds of her intended judicial review, she said that she was not safe in her country. When this court asked her what was wrong with the Board’s Decision, she said that the Board’s Decision was not fair, it gave her negative result and it did not understand her case.

7.The applicant then elaborated that the Board stated that the people who attacked her were not people who were against LGBTQ, but just random people. The Board did not believe that she came from Turkey. The applicant said that she left Tanzania in 2022, she lost her passport in Turkey and she received a new passport that was sent to her in Turkey.

8.In relation to internal relocation, the Board said that she could move to other parts of Tanzania, but the applicant said that it was not true as people in Tanzania could not move anywhere. She added that she was attacked in Tanzania and her head got hurt, she felt that she was losing her eyesight, her life was in danger and she could not go back to her country.

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.The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affidavit dated 31 July 2024.

11.However, the applicant mentioned some grounds at the oral hearing before this court as aforesaid.

Discussion

12.First of all, the applicant’s danger in her country due to her sexual orientation had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.In particular, the applicant’s claims that she was attacked by the attackers who did not like the fact that she was engaging in a same sex relationship had been assessed by the Board. The Board had given full reasons in paragraph 16(f) of the Board’s Decision why it found that even if the applicant was attacked twice in Bunju, she had failed to prove that she was attacked by the attackers because she was a lesbian. This court finds nothing wrong or unreasonable in the Board’s analysis in this regard.

14.Moreover, the Board had analyzed the applicant’s claim about her travel history in 2022 and 2023 in paragraph 16(g) of the Board’s Decision. Contrary to what the applicant told this court at the oral hearing, it was the applicant’s evidence before the Board that she was in Tanzania for a few months applying for her passport and her passport showed that it was issued in Dar-Es-Salaam.

15.The Board had clearly provided its reasons in the said paragraph why it was not convinced that the applicant had proven to the requisite standard that she only decided not to return to Tanzania after she received the message from her sister and her friend Anita.

16.These issues were findings of facts, which were within the exclusive ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable with the Board’s findings in these aspects.

17.As to internal relocation, it was just the applicant’s bare allegation before this court that people in Tanzania could not move anywhere. This issue was not raised before the Board. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

18.Thus, what the applicant said at the oral hearing could not amount to any valid ground to challenge the Board’s Decision.

19.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).

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

21.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 29 April 2024. The applicant was present and hence she was given the chance to present her case to the Board in person.

22.As can be seen from the Board’s Decision, the Board had analyzed the applicant’s claim and her evidence in detail, and had given full reasons for rejecting her non-refoulement claim. The Board laid out its findings on the credibility of the applicant’s claim in paragraphs 16 to 17 of the Board’s Decision, and it is not necessary to repeat the same here.

23.In gist, the Board found some of the applicant’s evidence to be exaggerated, vague and inconsistent with what she had stated in pervious settings and/or simply defied logic. Significantly, although the applicant claimed to have been in an intimate relationship with a woman called Irene for 9 years, the applicant was unable to produce any evidence to prove the existence of such relationship, except that she showed the Board a photograph of herself posing with another woman in a room, which was unable to depict any kind of intimacy or any sign that she was in an intimate relationship with the other person in it. The applicant also failed to show any proof that she communicated with Irene by telephone calls, and her explanation that the call history was automatically deleted by her iPhone was found to be untrue, as the Board found that iPhone did not have such a function.

24.Taking into account the cumulative effect of the account that the applicant gave regarding her relationship with Irene, and what the applicant was not able to provide, the Board was not satisfied that her claim that she was a lesbian and that she was in a same sex relationship with Irene was proven.

25.With regards to the alleged attacks that the applicant encountered in 2021 and 2022, the Board found that, even if it was accepted that she was attacked in Bunju twice, she had failed to prove that she was attacked by the Attackers because she was a lesbian.

26.Moreover, the Board was not convinced that the applicant had proven to the requisite standard her claim that she only decided not to return to Tanzania after she received the message from her sister and her friend Anita telling her that she would be killed.

27.Overall, the Board could only find the applicant’s personal particulars, her work history and travel history to be credible. None of the applicant’s claims in relation to the threats or risks faced by her as a lesbian in Tanzania was accepted.

28.Despite its findings as summarised above, the Board also found that there was country of origin information (“COI”) showing the Tanzanian government had in place an adequate system to protect its citizens (particularly female citizens) from harm.

29.Moreover, given the applicant’s profile and extensive business experience, the Board was of the view that it would not be unduly harsh for the applicant to return to Tanzania and stay in her home area instead of in the area where she was allegedly attacked.

30.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the USM.

31.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

32.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.

33.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

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

Dated the 30^th day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 30/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 30/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 22637 Director of Immigration Putative interested party’s ref. no.: QA T/C 931/23 (Formerly RBCZ 5000900/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)