MUMBI ALICE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 654/2020

[2024] HKCFI 3144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 654 OF 2020

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 February 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s 2^nd Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 28 October 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 50, is a Kenyan. She last entered Hong Kong as a visitor on 19 December 2007 and overstayed since 1 February 2008. The applicant was arrested by the police on 14 October 2009 for overstaying and she lodged a torture claim on 17 October 2009. The claim was made on the basis that, if refouled, she would be harmed or even killed by Mungiki members because she refused to carry out their order to kill someone. Upon the commencement of the unified screening mechanism, the applicant’s torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.  According to the applicant, she joined Mungiki in January 2007 upon suggestion by her husband. In early October 2007, her husband and 3-4 senior Mungiki members requested her to murder someone. The applicant was scared and left the scene immediately, after which she fled to her friend’s home. On 28 October 2007, she left Kenya.

6.  The applicant was of the view that she could not seek protection from the police because they were corrupted and that Mungiki was even more powerful than the police. She also considered internal relocation not viable because Mungiki could find her through its network in Kenya.

7.  Details of the applicant’s story can be found in paragraph 11 of the Director’s Decision dated 9 April 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk. The Director found that (i) the claimed ill-treatment from Mungiki members failed to attain a minimum level of severity [18]; (ii) the adverse interest from Mungiki members, if any, should have diminished given the elapse of time [19]; (iii) state protection would be available [20]-[24] and (iv) internal relocation would be viable [25].

10.  In the Notice of Further Decision dated 8 November 2016, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decision

11.  The applicant appealed the Director’s 1^st Decision to the Board, but she was late in her application. She explained that the lateness was due to her delay in receiving the Director’s 1^st Decision [8].

12.  The Board, by its decision dated 25 June 2015 (“the Board’s 1^st Decision”) rejected the applicant’s explanation for the delay because the Director’s 1^st Decision had been sent to the address of the applicant which she herself used in her Notice of Appeal/Petition. As there were no special circumstances that would make it unjust to disallow the late filing, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision [11]-[13].

13.  The applicant also appealed the Director’s 2^nd Decision to the Board, but she was again late in her application.

14.  The applicant had given no reason in support of her application for late filing. As the Board considered that there were no special circumstances that would make it unjust to disallow the late filing, by the Board’s Decision dated 24 February 2020 (“the Board’s 2^nd Decision”), the applicant’s appeal was dismissed and the Director’s 2^nd Decision was confirmed [11]-[13].

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 15 April 2020 for leave to apply for judicial review of the Board’s Decision.

16.  The applicant complained that her appeal was dismissed without a hearing.

DISCUSSION

17.  The Board had dismissed the applicant’s appeals against the Director’s 1^st and 2^nd Decisions for the reason that the applicant was late in filing his notices of appeal, without considering the merits of the applicant’s case.

18.  This is a clear contravention of the Court of Appeal’s decision in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019, in which the Court of Appeal held:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

19.  This is an error of the law. The applicant has succeeded to show that her intended applicant for judicial review of the Board’s 2^nd Decision has a realistic prospect of success.

DISPOSITION

20.  Accordingly, I grant leave to the applicant for applying for judicial review of the Board’s 2^nd Decision.

21.  The applicant shall issue the originating summons within 14 days after the date of this Order in accordance with Order 53, rule 5 of the RHC.

22.  A copy of this Order be sent to the Department of Justice for working out the appropriate directions for the hearing of the judicial review.