OBINDA DIANA ATIENO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1014/2020

[2023] HKCFI 11

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1014 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Kenya who last arrived in Hong Kong on 8 September 2017 as a visitor with permission to remain up to 7 December 2017 when she did not depart and instead overstayed, and on 8 December 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Kenya she would be harmed or killed by a political opponent of her father. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in West Pokot, Kenya, and soon after she moved with her parents to Nairobi where she completed her college diploma, and then worked as a salesperson of hair products before running her own boutique shop.

3.  In 2013 her father started to be involved with the political party Orange Democratic Party (“ODM”) to oppose President Kenyatta’s government, and in 2013 he became a candidate in his home district in the General Election for a seat at the National Assembly running against the pro-government candidate Jackton who however had used various means to threaten and harass her father in his election campaign.

4.  Eventually Jackton won the election and became a member of the National Assembly, but somehow he continued to threaten and harass the Applicant’s father, and one day in July 2013 the Applicant was told by her aunt that her parents had been found dead next to their car on some road, of which the Applicant suspected that Jackton was behind their murder due to his threats made in the past, but the police refused to conduct any investigation against Jackton due to lack of evidence.

5.  Fearing for her own safety, the Applicant for the next several years kept a low profile to avoid any contact with Jackton, but in August 2017 when she heard that he was going to run for re-election, she feared that he would eventually come after her, and so she departed Kenya for Singapore, and from there she travelled to Hong Kong in September 2017 and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 October 2018 the Director of Immigration (“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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by Jackton upon her return to Kenya due to the absence of any past ill-treatment from him, that whatever hostility Jackton might have towards her father which had nothing to do with the Applicant, that there is no evidence or reason whatsoever for Jackton to have any adverse interest in the Applicant, that in fact there is no reliable evidence that Jackton was behind her parents’ death and that any threats that Jackton might have against the Applicant was wholly based on her own speculations, that in any even 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 Kenya with a large population of 47.6 million people spread across a vast territory of more than 569,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Mombasa where it would be difficult if not impossible for Jackton or anyone to locate her.

8.  On 13 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 May 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found even on the factual basis of the Applicant’s own case of no reliable or objective evidence to suggest any hostile or adverse interest of Jackton in her for political or any reason given that she was never involved in her father’s political activities in the past and would not post any threats to the political career of Jackton for him to form any adverse interest towards the Applicant or that there is any risk anyone in Kenya will harm her for any of the reasons claimed by her upon her return to Kenya that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 26 May 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when 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; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on the credibility of her claimed fear of harm from her father’s former political opponent for the thorough and detailed analysis and reasoning set out in paragraphs 62 – 97 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Kenya, a decision also confirmed by the Board, 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.  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.  Furthermore, the Applicant recently on 20 October 2022 filed an affidavit to withdraw her application as she has now settled and resolved her problem in her home country.

16.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation of no longer having any problem in her home country, I accordingly dismiss her leave application.

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