KARIUKI ALICE MURUGI v. TORTURE CLAIMS APPEAL BOARD

HCAL 69/2020

[2026] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 69 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Application filed the Form 86 against the decision of the Torture Claims Appeal Board (TCAB) exhibited to her Affirmation dated 7 January 2020.

2.  The non-refoulement claim was considered on all comprehensive grounds: (1) the risk under Part VIIC of the Immigration Ordinance (Cap.115) (“torture risk”); (2) risk to her right to life under Article 2 of the Hong Kong Bill of Rights (Cap.383) (“BOR2 risk”). (3) risk of cruel, inhumane or degrading treatment or punishment (“CIDTP risks”) under Article 3 of the Hong Kong Bill of Rights (“BOR3 risk”); (4) risk of prosecution with reference to the non-refoulement principles under Article 33 of the Convention Relating to the Status of Refugees 1951 (“persecution risk”).  Her case was dismissed by the TCAB on all grounds.

3.  The Applicant was born in Embu, Kenya in 1969.  She was in fear of being killed by her business partner.

4.  When she was 15 or 16 years old, she moved to Nairobi and met and lived together with her domestic partner John. Then her business partner Ann lent her US$20,000 to start business.

5.  In 2013, she went to Dubai to escape her partner.  In 2015, John sent people to set her shop on fire.  Ann demanded the return of US$20,000, and threatened to kill her children if not returned the money.  The children stayed with her sister.

6.  The TCAB found substantial inconsistencies in her case:

i.)   Whether the threats were mainly from John or Ann;

ii.)   Whether domestic violence from John lasted 23-year or only since 2012;

iii.)   At the hearing she said she had not seen John since 2012;

iv.)   Whether the business partnership was between Ann and her or Ann and her sister;

v.)   Whether her children were harassed when she was away from Kenya.

7.  The TCAB found that the Applicant had no credibility, and in any case it was a private or family matter.  Hence, her case was dismissed.

8.  The Form 86 and the Affidavit did not contain any specific grounds.  At the leave hearing, the Applicant added that it was not safe to return to Kenya as her “husband” was still looking for her.

9.  Judicial review does not operate as a rehearing of the refoulement claim, but to consider whether the original decision maker(s) has erred in the law, irrationality in the decision(s) or procedural unfairness (see cases: 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).

10.  The Applicant did not put forward any grounds of errors on the part of the TCAB.  In the event, the application for leave is refused.

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