ROTICH WILLY KIPKEMOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1184/2021

[2022] HKCFI 2029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1184 of 2021

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 Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 July 2021 (the “Decision”) affirming the decision of the Director of Immigration (the “Director”) in his notice of decision dated 14 July 2020 (the “Notice”).

2.  The Applicant is a national of Kenya, now aged 31.   He entered Hong Kong on 10 June 2019 as a visitor and was permitted to remain until 8 September 2019.  He overstayed and surrendered to the authorities on 11 September 2019.  He was released on recognizance on 24 September 2019.  He did not report recognizance since 5 November 2019 and went underground.  He was arrested by the police on 25 May 2020 and served a removal order on 1 June 2020.  On 12 June 2020 he lodged a non-refoulement claim form (“NCF”) seeking non-refoulement protection.  He attended a screening interview on 29 June 2020.  After completing the process, he was released on recognizance on or about 15 September 2020 and he absconded again in January 2021.  He was re-arrested on 19 April 2021 and detained in Castle Peak Bay Immigration Centre when he made the present leave application.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice dated 14 July 2020.  His appealed against the Notice was dismissed by the Board’s Decision.  On 23 August 2021, he applied for leave to apply for judicial review of that Decision. 

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he would be harmed or killed by a group of professional marathon runners from Kenya(collectively and individually, the “Runners”) upon his return to Kenya because of a monetary dispute.

5.  The Applicant was born in Rift Valley Province, Kenya.  He received eight years of education.  He owned a grocery shop and a restaurant in his home village.  He was a professional marathon runner since 2008 and had participated in races in Hong Kong, Mainland China, Malaysia, Singapore and Taiwan.  He travelled outside Kenya for races two to three times a year.  He used to receive sponsorship from the Social Services of Kenya but that became unavailable since 2011.  He then engaged the services of a booking agency called “Air Ticket for Travellers”, but could not remember its exact name.  He became acquainted with its agent called Wangombe, but could not recall his full name.

6.  The Applicant met with about 20 Runners frequently.  He was able to give the names of thirteen of them.  In around mid-2015, the Applicant shared the contact information of the booking agency with the Runners because they heard he had access to cheap flight and accommodation for the upcoming marathon race in Hong Kong in February 2016 and Singapore in December 2015.  All the Runners made hotel and flight bookings through the agency.  The Applicant did not receive any benefit for sharing the information with the agency.

7.  The agency failed to deliver the tickets and some of the Runners went to its office to follow-up on the tickets. Wangombe was not at the office.  The Applicant was able to reach Wangombe by phone.  Wangombe promised to make the tickets available.  The Applicant passed the message onto the Runners.

8.  However, the tickets were never available.  The Applicant subsequently lost contact with Wangombe.  All but one of the Runners were unable to participate in those races.  In mid-2016, the Runners made a report to the police and went to office of the agency to demand refund but to no avail.

9.  Ten of the Runners demanded the Applicant to repay them for the lost tickets amounting to 3 million Kenyan shillings.  They threatened to sue him, hurt him or even kill him if their demands were not met.  They communicated their threats to him over the telephone, in person and through his parents on more than ten occasions. Because of the pressure, he settled the claims of six of the Runners from his own pocket, but the other Runners continue to cause him problems.  Some of the Runners even went to his home to demand payment.

10.  The Applicant left Kenya in mid-2016 and had never returned to the country since then.  He had been traveling to Hong Kong, Mainland China, Malaysia and Singapore for races in the three years that followed.  He learnt from his family that between 2017 and 2019 the Runners had made threats to him for more than ten times.  He also heard that Wangombe had left for the USA.

11.  The Applicant did not seek state protection because he believed the Kenyan police was corrupt and incompetent.  He thought the dispute would be deemed private in nature.  He believed both the police and the court in Kenya would simply demand him to resolve the matter with his own money and would not offer him any protection.

The finding of the Board

12.  The Applicant’s evidence consisted solely of his verbal assertions and was not supported by any documentary evidence.  The Board found his evidence vague and unreliable, and his case questionable.  It doubted his credibility because he did not raise any claim for protection immediately or soon after his arrival in Hong Kong on 10 June 2019.  His immigration history as summarized in paragraph 2 showed that he overstayed and was released on recognizance on 24 September 2019, then he absconded and was re-arrested on 5 May 2020.  On 1 June 2020, he was served a removal order.  It was then that he lodged his NCF on 12 June 2020 and attended a screening interview on 29 June 2020.  After he was released, he absconded again in January 2021.  He absconded twice showing he had no intention to pursue his non-refoulement claim and casting doubt on the genuineness of his claim.

13.  The Applicant claimed to be an international marathon runner from 2008 to 2019.  He left Kenya to come to Hong Kong for the race in 2016 and has since been running marathon races in different places in the world and staying in different cities for different periods for days to months between 2016 and 2019.  But, he could offer no evidence of having won any domestic or international races or having obtained sponsorship from Social Services of Kenya or other sponsors to support his claim to be an international marathon runner and to sustain his running career. 

14.  On the basis of his account, the Applicant had no part in Wangombe’s business.  It would be “irrational and unreasonable” for the Runners to go after him for Wangombe’s default.  Furthermore, more than five years had lapsed since Wangombe’s default. The Board considered it unrealistic to expect that the Runners would continue to go after the Applicant and therefore his risk of harm is low.

15.  For the above reasons, the Board was not satisfied even to the low standard required that his account is credible or inherently probable.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found the Applicant had failed to discharge the burden of proving the factual basis for his claim under any of the four applicable grounds. 

16.  Furthermore, the Board found there was no factual basis to support the Applicant’s allegation that that the Kenyan court would find him liable for the tickets, or that the Kenyan police would fail to protect him.  These were pure speculations on his part.  On the basis of credible COI, the Board was satisfied that state protection of an adequate standard would readily be available to him.  Lastly, as an abled-bodied 30-year old man with 8 years of education and 11 years working experience, it would not be unduly harsh to expect him to relocate to other parts of Kenya, such as Nairobi or Mombasa to avoid the threat and harm if they turn out to be real. 

17.  For the above reasons, the Board dismissed his appeal against the Notice.

Legal principles applicable to judicial reviews

18.  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[5].

Grounds for judicial review

19.  The Applicant’s ground for judicial review as stated in his supporting affirmation is as follows:

“Decision of the Director of Immigration on dated 29/July/2020 is unsafe and unfair and the affirmation of the Non-refoulement Claims Petition Office of the Board of Adjudicators is unsatisfactory as they failed to justify the refusal of my application on all applicable grounds of [cruel, inhuman, degrading treatment or punishment] and Hong Kong Bill of rights (BOR 2) to seek asylum of fear of life, if I ever return to my home country. My life is still in danger in my home country. I request for oral hearing of judicial review (J.R.) so I can further explain my case and submit evidence in support of my J.R. Application.”

The reference to the decision of the Director dated 29 July 2020 is obviously a typographical error as the Director had not made any decision in respect of him bearing such a date.  The Applicant must be referring to the Notice dated 14 July 2020.  In any event, that Notice was superseded by the Decision and is no longer susceptible to judicial review: see Re Moshsin Ali[6]. 

20.  Assuming for his benefit that his complaint against the Notice is also directed at the Decision of the Board, his grounds for judicial review are that the Decision is unsafe, unfair and unsatisfactory as the Board failed to justify its refusal of his application for non-refoulement protection and his life is still in danger in his home country.  As a matter of law, the burden of proof in non-refoulement protection claims is on the claimant to prove his entitlement and not on the decision maker to justify its refusal.  Thus, what is left of his grounds is his disagreement with the Board’s finding of fact that he has failed to prove the factual basis of his entitlement to protection and that it was safe for him to return to his home country.  The Applicant is in effect challenging the Board’s finding of fact.  As explained above, finding of fact is a matter solely for the decision maker, ie the Director or the Board.  The court in a judicial review will only intervene such finding for errors of law, procedural unfairness or irrationality.  The Applicant has advanced no other specific grounds of application.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

21.  After the above had been explained to the Applicant, he confirmed that he had no submissions to make in respect of error of law and he had no complaint about procedural unfairness.  His only complaint is irrationality.  He argued that the Decision is irrational as it is unsafe for him to return to Kenya.  He disagreed with the Board’s finding against his credibility because he had documents to support his case, but the documents kept in his hotel were lost while he was detained in Castle Peak Bay Immigration Centre.  He said he had informed the Director and the Duty Lawyer about those documents and the reason why they were not available, but his Duty Lawyer said he could not help.  When asked to clarify what those supporting documents were, he said they were email correspondence from the Runners demanding him for refund and threatening to harm him.  This ground is just another attempt to challenge the Board’s finding of fact which is not permissible unless it involved errors of law, procedural unfairness or irrationality.

22.  Furthermore, lack of supporting documents was only one of the reasons for the Board’s finding of the Applicant’s incredibility.  There were many other reasons.  Insofar as this particular reason was concerned, it had been considered by the Director.  The explanation the Applicant gave to the Court had been rehearsed before the immigration officer during the screening interview as summarised in paragraph 7.36 of the Notice.  The Director had certainly considered it when assessing the Applicant’s credibility and the inherent probability of his account. 

23.  The Board had repeatedly emphasised the lack of supporting documents.  Though it had not recited the Applicant’s explanation in its Decision, it must have considered his explanation because it had been mentioned in the Notice.  But what the Board considered important was not evidence of threat but documentary support for the Applicant’s claim that he is an international marathon running, that he had participated in various marathon races and evidence of sponsorship which sustained his travelling activities and running career around the world, particularly in the three years between 2016 and 2019.  The Applicant’s explanation did not cover any such documentary evidence.  His explanation could only have very little bearing in the Board’s assessment of his credibility and the credibility of his account.  

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his claim.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

25.  For the above reasons, leave to apply for judicial review was 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)

[6] [2018] HKCA 549