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HCAL 850/2023
[2024] HKCFI 3590
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 850 of 2023
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BETWEEN
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Muiruri Emily Wairimu |
1st Applicant |
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Loukeba Witness |
2nd Applicant |
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Loukeba Bethel Nduta |
3rd Applicant |
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Loukeba Bernice Wanjiku |
4th Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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 To:
1. Leave to apply for Judicial Review be granted; and
2. The Court makes no order as to costs, save that the Applicants’ own costs shall be taxed in accordance with Legal Aid Regulations.
Observations for the Applicants:
Introduction
1. This is the Applicants’ application by Form 86 filed on 1 June 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 8 March 2023 (the “Decision”) dismissing their appeals against the decisions of the Director of Immigration (the “Director”) in his Notices of Decision dated 12 September 2013 (the “2013 Notice”) and 16 April 2019 (the “2019 Notice”). They are legally aided. At the hearing, leave was granted to the Applicants to amend their Form 86.
Background
2. The 1st Applicant is a Kenyan national. She entered Hong Kong as a visitor on 26 May 2008. She overstayed and then surrendered to the Immigration Department on 30 June 2009. While in Hong Kong, she gave birth to three daughters, the 2nd to 4th Applicants herein. She raised non-refoulement claims for herself and on behalf of the 2nd to 4th Applicants. In due course, their claims were assessed on all four applicable ground under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3] and Persecution Risk[4] grounds. Their claims were rejected by the Director’s decision in via two Notices of Decision. Their appeals against those decisions were dismissed by the Board’s Decision. They now apply for leave to apply for judicial review of that Decision.
3. In gist, the 1st Applicant claims that if she and the other Applicants are to be returned to Kenya, they would each be harmed or killed by the Mungiki sect because of her status as a former member (or perceived former member) of the sect; the persistent and widespread discrimination and gender-based violence (“GBV”) against women; the lack of state protection and internal relocation alternatives in Kenya. The 2nd to 4th Applicants would face the same risks arising from the 1st Applicant’ connection to the Mungiki and in addition, the risk of forcible female genital mutilation (“FGM”) and other forms of GBV.
Conclusion
4. Having read the Decision, the amended Form 86, and having heard counsel’s submission, this Court is satisfied that the grounds of the proposed judicial review are arguable and the proposed review has good prospect of success. Accordingly, leave is granted to the Applicants to apply for judicial review.
5. The Court makes no order as to costs, save that the Applicants’ own costs shall be taxed in accordance with Legal Aid Regulations.
Dated the 18th day of December 2024.
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( Seline Sze )
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicants
on 18/12/2024
Muiruri Emily Wairimu
Loukeba Witness
Loukeba Bethel Nduta
Loukeba Bernice Wanjiku
Applicant’s ref. no:
Nil |
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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 18/12/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15852-15855, TCAB 785-786
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 380/13 (formerly RBCZ/195/10)
QA T/C 381/13 (formerly RBCZ/596/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
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