NJOROGE MARTHA NJERI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3422/2019

[2025] HKCFI 6237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3422 OF 2019

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;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 18 October 2019.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 November 2019, 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 18 October 2019 (“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/2019/HCAL003422_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out her claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 27 December 2018, which rejected her non-refoulement claim.

3.  By way of a summons filed on 23 August 2024, the applicant applied to amend her Form 86 as per the appendix attached to her said summons. On 13 September 2024, DHCJ Lung granted leave to the applicant to amend her Form 86 as requested, but no such amended Form 86 was filed.

4.  Nevertheless, by way of an ex-parte summons filed on 19 November 2025, the applicant applied for leave to amend her Form 86 as per the appendix attached to the said ex parte summons. At the oral hearing before this court on 20 November 2025, leave was granted to the applicant to amend her Form 86 as per the draft submitted. The applicant was directed to file the Amended Form 86 on or before 27 November 2025. The applicant complied with the order and filed the Amended Form 86 on 26 November 2025.

5.  Thus, the Leave Application is considered by reference to the context in the Amended Form 86 filed on 26 November 2025.

Amendment

6.  The applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondents in the Amended Form 86, when only the Board should be the putative respondent.

7.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

8.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because if refouled to Kenya, she would be at risk of harm from, ill-treated or killed by her father and other members of her family in relation to a property dispute.

Oral hearing

11.  The applicant requested for an oral hearing and her case was heard on 20 November 2025.

12.  The applicant confirmed that she would rely on the grounds as stated in the Amended Form 86 for the intended judicial review. She told this court that everything was written there and she had nothing else to say.

Grounds for judicial review

13.  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).

14.  In the Amended Form 86, the applicant raised four grounds to challenge the Board’s Decision, namely:-

“(a)  Ground 1: The Adjudicator took into account irrelevant considerations and/or erred in law in assessing my credibility under s37ZD of the Immigration Ordinance (“IO”);

(b)  Ground 2: The Adjudicator was irrational and/or biased and/or breached procedural fairness in finding that I lied to the immigration official that she was visiting Hong Kong as a tourist;

(c)  Ground 3: The Adjudicator took into account irrelevant consideration in finding that there was no evidence to show that my family members would harm or kill me if I were to return to Kenya; and

(d)  Ground 4: The Adjudicator’s assessment of the possibility of internal relocation was irrational or erred in law.”

Discussion

15.  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).

16.  Thus, it is for this court to scrutinize the Board’s Decision and to intervene when there are errors of law, procedural unfairness, or irrationality.

17.  In relation to Ground 1, the applicant has elaborated her arguments in paragraphs 8 to 18 of the Amended Form 86. It is not necessary for this court to deal with each and every argument raised by the applicant, as the essence of Ground 1 is concerning the interpretation of section 37ZD(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”), which reads as follows:-

“(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

…

(b)  a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);”

18.  As can be seen in paragraph 27 of the Board’s Decision, the Board found that pursuant to section 37ZD(1)(b) of the Ordinance, the applicant’s failure to take advantage of all the opportunities she had to claim non-refoulement protection promptly was behaviour that was detrimental to her credibility.

19.  However, the Board’s finding in paragraph 27 as aforesaid followed immediately after the Board’s discussion in paragraph 26 of the Board’s Decision, in which the Board only mentioned about the applicant not seeking protection in Hong Kong shortly after her arrival but claimed to be a tourist instead. The Board did not mention that the applicant did not seek protection outside Hong Kong (other than Kenya) at all.

20.  As stated in paragraph 9 of the Board’s Decision, the applicant travelled from Kenya (via a number of other countries) to Hong Kong. It is unclear which countries the applicant had travelled to before arriving in Hong Kong, whether the applicant had stayed in any of those countries or was just in transit, whether the Convention[1] applied to any of those countries and whether she could have any reasonable opportunity to claim non-refoulement protection whilst there.

21.  Thus, it seems that the Board was applying section 37ZD(1)(b) just based on the fact that the applicant did not take advantage of a reasonable opportunity to claim non-refoulement protection while “in” Hong Kong. However, section 37ZD(1)(b) applied only to such an opportunity while the applicant was in a place “outside”  Hong Kong (other than Kenya).

22.  This court is of the view that the Board might have committed an error of law in applying section 37ZD(1)(b) of the Ordinance to find the applicant’s credibility damaged. Thus, Ground 1 is reasonably arguable.

23.  The applicant has elaborated Ground 2 in paragraphs 19 to 24 of the Amended Form 86. The crux of the applicant’s arguments is that the Board was wrong in finding her not telling the truth when she entered Hong Kong and told the immigration official that she was visiting Hong Kong as a tourist.

24.  As can be seen in paragraphs 26 and 27 of the Board’s Decision, the Board’s finding in this regard was for it to conclude that the applicant’s behaviour was not reflective of someone in fear for her safety and her failure to take advantage of all the opportunities she had to claim non-refoulement protection promptly damaged her credibility.

25.  Again, it is not necessary for this court to deal with all the arguments raised. It seems that the applicant is saying that she entered into Hong Kong initially for tourism and changed the purpose of stay subsequently. This court is of the view that it may not be entirely impossible for the applicant to come in as a tourist first before deciding to claim non-refoulement protection. Thus, it is reasonably arguable that the Board’s finding that the applicant was not credible just because she did not claim for non-refoulement protection immediately upon arrival might be flawed. In other words, Ground 2 is reasonably arguable.

26.  In Ground 3, which is elaborated in paragraphs 25 to 28 of the Amended Form 86, the applicant challenged that the Board had took into account irrelevant consideration and/or was being Wednesbury unreasonable in finding no evidence of harm when the Board ruled that the applicant’s fear that the members of her family would do anything serious against her was speculative, given that the applicant had been away for around two years.

27.  This court notes that the Board accepted that the applicant’s property dispute with her father and other members of the family that arose from her grandmother’s will was still ongoing and was pending the determination of the courts in Kenya at the time of the Board’s Decision. The dispute formed the basis of the applicant’s fear, which started in 2008 when the applicant was attacked by her father. The applicant claimed that she was receiving continuous verbal threats by phone calls or SMS since then, even when she was physically away from her father and her family in Kenya. Thus, the Board’s finding that the applicant’s risk of being harmed was or could have been reduced after she had been away from Kenya for two years was not based on evidence.

28.  This court is of the view that Ground 3 is reasonably arguable as the Board might have wrongly considered that the applicant’s risk was reduced after the period of two years when she was away.

29.  In Ground 4, which is elaborated in paragraphs 29 to 37 of the Amended Form 86, the applicant asserted that the Board was irrational or erred in the assessment of her possibility of internal relocation.

30.  The applicant has referred to country of origin information showing that internal relocation for women in Kenya may be more difficult than for men due to the existing discrimination and restrictions in women’s social and economic rights. However, the Board did not seem to have taken that into consideration when assessing internal relocation for the applicant.

31.  As such, Ground 4 concerning the Board’s finding on the viability of the applicant’s internal relocation could be arguable.

32.  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 grounds raised by the applicant are reasonably arguable and enjoy realistic prospects of success. Hence, leave should be granted to the applicant to proceed with the intended judicial review.

Conclusion

33.  For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

34.  The applicant is directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the 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

Form CALL-1