OLLANGO JOYCE ANNE ACHIENG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1914/2018

[2021] HKCFI 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1914 of 2018

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 the Counsel of the Applicant in open court ;

1.  Leave to apply for Judicial Review be granted.

2.  Costs of this application be in the cause; and

3.  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is an ex parte application.  The applicant is represented by counsel under the Legal Aid scheme.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 3 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which dealt with two decisions of the Director of Immigration (“the Director”) respectively dated 26 March 2015 and 4 October 2017.   I shall call these decisions (“the Director’s First Decision and the Director’s Further Decision”).

3.  There is an application for amending Form 86. I see no reason why the application should not be allowed as the amended form was prepared by her legal representatives and the amended form set out the grounds in support of her application in a more legalistic manner for the Court’s consideration and the amendments should cause no prejudice to the Director.  The application is therefore allowed, with costs be in the cause of the judicial review application and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

4.  Having heard counsel’s submissions, I decide to grant leave to the applicant to file her application for judicial review in accordance with Order 53, rule 5 of the Rules of the High Court (“RHC”). Reasons in form of Call-1 will be delivered in due course.  The costs of this application are in the cause of the judicial review application.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

5.  As this is an ex parte application, my reasons for my decision will be brief.

The applicant

6.  The applicant is a Kenyan national, aged 46. She arrived in Hong Kong on 7 April 2009 on a visitor’s visa for three months. She overstayed and surrendered herself to the Immigration Department on 6 August 2009.  She claimed that she had lost her passport on 9 May 2009. On 21 June 2011, she lodged her non-refoulment claim with the Director.

7.  In support of her claim, she said that if refouled, she feared that she would be harmed by members of the Kikuyu majority tribe and Mungiki gangsters because she was a member of Luo and a supporter of the opposition party called the Orange Democratic Movement (“ODM”).  Kikuyu tribe practiced woman circumcision whilst the Luo tribe did not. The relationship of these two tribes has been bad since long time ago.

8.  The applicant made garments advertising for ODM and held rallies and road shows.  But she had stopped working for ODM since the national election in December 2007. In May 2008, she travelled to India, Dubai, Hong Kong and China. She claimed that her domestic helper was harassed by the Mungiki people in August 2008 and they had threatened her to be careful.  Around the same period of time, her shop was burgled by the Mungiki, who wrote on the mirrors telling her to move out.  She was not assaulted.  She reported the burglary to police at the Langata Police Station and the police officers came to her shop to make investigation.

9.  She further claimed that two weeks later, she started receiving text messages of threats that all Luo females would be circumcised and this had continued for half of a year until February 2009.  She reported those threats to the same police station. But she did not obtain any help.

10.  In April 2009, she left Kenya for Hong Kong.  She claimed that while in Hong Kong, she had lost her passport and her air ticket. She reported loss to police, but she did not raise claim for non-refoulement until 2 years later in June 2011.

The Director’s First Decision and Further Decision

11.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

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

d.  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”).

12.  By the Director’s First Decision and the Director’s Further Decision, the Director refused her application on those risks above.

13.  Having considered the relevant circumstances, the Director found that there were no substantial reasons to believe that she would be in danger of being harmed or killed by members of Kikuyu Tribe and/or members of Mungiki gang upon her return. [13-16]

14.  The Director had considered the country of origin information (“COI”) in favour of her assertions [17] and those not in her favour [18] and came to the finding that the Kenyan government and committed itself in improving the police professionalism and fighting against the Mungiki and female circumcision and that the Kenyan government had not colluded with the Mungiki and were in fact actively fighting against them [19]; that there was no evidence that she would be arrested, detained or imprisoned if she returned to Kenya [20]; that internal relocation were available to her [22-28] and that the Kenyan police and authorities would carry out their duties to provide sufficient protection to its citizens against the Mungiki.  [29] For those reasons, the Director did not accept that she faced a genuine and substantial risk of being subjected to BOR 3 risk [32], Persecution risk [35] or Torture risk [38-40].  The Director had also considered additional information and found that she was unable to establish BOR 2 risk. See paragraph 7 of the Director’s Further Decision.

The Board’s Decision

15.  The applicant appealed to the Board against the Director’s First and Further Decision and attended the hearing on 29 March 2018.

16.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.

17.  The Board considered the applicant’s evidence and noted the Director’s First Decision under the part entitled “How likely it is that your feared treatment would materialize” where the Director had explained in detail why the applicant was safe to return to Kenya.  [15] For the reasons he had given, the adjudicator held that her claim under Torture risk failed [19]; that her claim under BOR 3 risk failed [23]; that her claim under BOR 2 failed [25]; that her claim under Persecution risk failed [29] and that her evidence was not credible or reliable [31-34].  The adjudicator had tested her evidence given to the immigration officer by way of cross-examination.  After careful analysis of the discrepancies between the evidence that she gave to the immigration officer and the evidence she gave to him, the adjudicator rejected the applicant’s stories wholesale.

Application for leave to apply for judicial review

18.  The applicant filed Form 86 dated 11 September 2018 for leave to apply for judicial review of the Board’s Decision.  Form 86 has now been amended.

19.  The applicant relies upon her evidence in her affidavit and the evidence of her solicitor dated 28 January 2021, exhibiting the COI information set out therein.

DISCUSSION

20.  The applicant is represented by Mr. Geoffrey Yeung, counsel. Counsel has helpfully submitted his written submission of 49 pages for this Court’s consideration.

21.  Counsel for the applicant has raised the following issues the Board found against the applicant:

(1)  risk of future harm;

(2)  severity of any such harm;

(3)  availability of internal relocation;

(4)  availability of state protection;

(5)  state acquiescence (relevant to Torture risk only); and

(6)  the applicant’s credibility.

22.  Counsel submitted that the Board failed to give adequate reasons for its decisions and its findings on the applicant’s credibility and its application of the legal principles to the evidence are fundamentally flawed in many ways. Its decision, therefore, is tainted with illegality, irrationality and procedural impropriety.

23.  In support of the above allegations, counsel submitted that the Board referred to the COI in support of his findings on future risk of harm, internal relocation and state protection without any adequate explanation; that the Board failed to properly consider and apply the concept of state acquiescence in relation to Torture risk in that the Board selectively relies upon the information in the COI adverse to the applicant without at the same time referring to those in her favour; that the Board failed to consider the relevant threats of Female Genital Mutilation, ie female circumcision, its severity under BOR 3 risk, resulting in irrational findings; that the Board considered the applicant’s credibility on a material error of fact, erroneous legal approaches, failing to take into account relevant considers and/or was irrational and that the Board erred in requiring corroboration for assessing the applicant’s evidence and it had failed to give adequate reasons in this regard.

24.  He submitted that the above allegations, if sustained, would render the Board’s Decision to be set aside by way of certiorari.

25.  The Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676 held:

“15. The test which should be applied is the arguability test. Under this test, arguability must mean reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonably arguable case is one which enjoys realistic prospects of success….”

26.  As appeared from the Board’s Decision, on a broad brush approach, it seems that he did not state that he adopted the Director’s findings of the facts of the case in the Board’s Decision. He has only noted the Director’s Decision.  Counsel submitted that the Court should not assume that the Board had adopted the Directors’ Decision because it had not especially said so in its Decision.  This may be open to argument.  The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] HKC, 526 held:

“30.  … …In deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact.  …In relation to the primary facts comprising the applicant’s story, the Director and adjudicator had to make findings of fact.  The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).”

27.  The Board did not set out the information from the COI in support of the applicant’s allegation that the government was in close relationship with the Mungiki gangsters, which are clearly stated in the Director’s First Decision. In deciding the applicant’s credibility, the adjudicator had asked some rhetorical questions as to why the applicant had gone all the way from her own country of a distance over 12,000 km to Hong Kong instead of going to some other nearer places within or outside her own country without allowing the applicant to explain.  The adjudicator had also relied on those queries to doubt the applicant’s credibility. These are examples of procedural irregularities, which are, on the face of it, arguability unfair to the applicant.

28.  As the applicant has shown that her case is reasonably arguable, I grant leave for her to file her application for judicial review under Order 53, rule 5 of the RHC.

Mr. Geoffrey YEUNG instructed by M/s Patricia Ho & Associates, forthe Applicant – Ollango Joyce Anne Achieng

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