HCAL 585/2018
[2019] HKCFI 1071
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 585 of 2018
BETWEEN
| Mwajuma Patson Mwanyakule | Applicant |
| and | |
| The Adjudicator of the
Non-Refoulement Claims Petition Office
appointed to determine the Applicant’s Petition | 1st Putative Respondent |
| The Director of Immigration | 2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 27-year-old national of Tanzania who arrived in Hong Kong on 19 May 2014 with permission to remain as a visitor up to 25 May 2014 when she did not depart and instead overstayed until 10 June 2014 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Tanzania she would be harmed or killed by the Muslims in her home village for being a Christian and/or by her uncle as his wife did not like her. She was subsequently released on recognizance pending the determination of her claim.
2. The applicant was born in Tanzania to Christian parents and was raised by her grandmother in a Village in Tukuyu, Dar es Salaam, Tanzania upon the death of her parents in 2007/2008. As the majority of the villagers were Muslims, she was frequently harassed by them for being a Christian, and her grandmother was threatened by them that the applicant would be killed if she did not convert her religion to Muslim.
3. To avoid further threats to the applicant her uncle came and took her to live with his family where his wife disliked her and forced her to do heavy housework for his family and ill-treating her by slapping and hitting her whenever she failed to do things her way, and when she complained to her uncle, he would beat her with his belt and drove her out of his house for days before allowing her back.
4. By 2014 the applicant found herself no longer able to tolerate the ill-treatments from her uncle’s family, she decided to leave Tanzania for her own safety, and so with the help of her friend she departed on 18 May 2014 for Hong Kong, and when she overstayed she raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 15 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
5. Whilst released on recognizance she was arrested by police for fighting in public for which she was later convicted and fined $500, and on 14 August 2016 she was again arrested by police for soliciting for immoral purpose and for working without permission for which she was convicted and sentenced to 22 months’ imprisonment.
6. By a Notice of Decision dated 10 October 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
7. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the Muslim villagers in her home village and/or her uncle and his family to the applicant upon her return to Tanzania as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 53 million people spread across a vast territory of more than 947,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young adult with work experience to move to other part of Tanzania away from her home district in large cities such as Dodoma where it would be difficult if not impossible for her perceived enemies to locate her.
8. On 17 October 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 21 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 2 March 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board found numerous inconsistencies and discrepancies in the applicant’s evidence on her claim that it did not accept that she had been at risk of harm from those Muslim villagers or her uncle and his family, and as reliable COI show that 62% of the population of Tanzania is in fact Christians and that relations between various different faiths and religions are mainly peaceful in the country, it concluded that the applicant would not face discrimination or harm for reason of her being a Christian or from her uncle or his family upon her return to Tanzania, and hence her claim for non-refoulement protection failed on all applicable grounds.
10. On 9 April 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she merely exhibited copies of those decisions and other documents extracted from the hearing bundle for her appeal before the Board.
11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of the risk of harm is primarily a matter for the Director and the Board, as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.
12. In the applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in §§46 – 69 of its decision after having had the benefit of hearing her in evidence and in her answers to questions raised of her claim, and in the absence of any legal error or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
13. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Tanzania, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.
Dated the 19th day of July 2019.
| (NG Ka-wing)
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
Notesfor 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 to the Applicant on 19 July 2019
Mwajuma Patson Mwanyakule
Applicant’s ref. no.:
Nil. | | Sent 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 19 July 2019
The Adjudicator of the
Non-Refoulement Claims Petition Office
appointed to determine the Applicant’s Petition
1st Putative Respondent’s ref. no.:
USM 8898/17/10/228/TA18
The Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2199/17 (Formerly RBCZ 3001489/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1