MUNYASYA CAROLINE WAVINYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3384/2019

[2026] HKCFI 4426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3384 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Counsel for the Applicant in open court;

1.  Leave to apply for Judicial Review be granted; and

2.  There be no order as to costs, save that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 14 November 2019 as re-amended at the hearing for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 November 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 June 2018 (the “Notice”), refusing her application for non-refoulement protection.

Background

2.  The Applicant is a national of the Republic of Kenya. She had previously entered Hong Kong in April 2009 and travelled between Hong Kong and Mainland China on a number of occasions and then returned to Kenya in October 2009. She last entered Hong Kong on 19 June 2010 as a visitor. She overstayed since 18 September 2010. She was arrested for overstaying in Hong Kong on 8 November 2010 and referred to the Immigration Department. On 13 November 2010, she made a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (the “Torture Claim”). On 10 November 2011, she was arrested by the police and subsequently convicted of the offence of soliciting for an immoral purpose. She did not return the completed Torture Claim form within the specified time, but continued to stay in Hong Kong.

3.  Upon the commencement of the Unified Screening Mechanism (the “USM”), her Torture Claim was allowed to be re-opened and converted into a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the USM, namely: Torture Risk[1], BOR 3 Risk [2], BOR 2 Risk[3] and Prosecution Risk[4]. Her claim was rejected by the Director’s Notice on 29 June 2018. Her appeal against that Notice was dismissed by the Board’s Decision on 1 November 2019. By then, she had enjoyed de facto protection in Hong Kong for over ten years. She now applies for judicial review of that Decision.

4.  The first hearing was scheduled at 10 am on 24 May 2019. The Applicant appeared in person. However, the interpreter had misunderstood the time of hearing to be in the afternoon. Despite apologies from the Board, the Applicant kept repeatedly complaining why she had been told to come at 10 am, why she was told she had to wait for somebody and why the Board was wasting her time. Eventually, the hearing had to be aborted because the Applicant said she was too upset and unwell to continue with the hearing. The second hearing on 17 July 2019 was brought to an end under circumstances, which the Applicant alleges amounted to procedural impropriety. This will be discussed in greater details under the grounds of application. The Applicant was legally represented at the second hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the supplementary claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to Kenya, she will be harmed or killed by her brother-in-law (“Francis”) for refusing to marry him in accordance with the widow inheritance tradition and practiced in Kathiani Village where Francis, her late husband, her children and she lived.  

6.  The Applicant, now aged 48, was born and raised in Mumbuni Village, Machakos Town, Eastern Province, Kenya. She had received eight years’ education. She has two sons and two daughters. Her husband died in a traffic accident in 2008. About three months after her husband’s death, Francis decided to marry her and made it clear that he would do so by force. He went to the Applicant’s home twice to ask her to marry him, but she refused. On both occasions, she reported the incident to the police. But the police refused to help as it was a family matter. A few months later, Francis went to her home to renew his demand. Again, the Applicant refused. This time, Francis was infuriated and raped her in front of her children. The Applicant was unable to seek medical treatment as she was traumatised and the hospital was far from her home. On the following day, she went to report the incident to the police. The police told her that she need to attend a medical assessment in a hospital and be witnessed by a village elder. As Francis is one of the village elders, the Applicant believed all other village elders would side with him. Hence, she decided not to make a police report.

7.  Francis continued to harass and threaten the Applicant and her children. The Applicant and her children went to stay at her parents’ home in Mumbuni Village 70 to 80 kilometres away and did not return to Kathiani Village. After a few months, Francis went to her parents’ home twice with three family elders of his family. They asked the Applicant to marry Francis, but the Applicant refused. Then, they threatened to kill her, though they did not physically hurt her. To avoid threats, the Applicant came to Hong Kong in April 2009, leaving her children to the care of her parents. She claimed that she did not seek protection then because she had no idea she could make a torture claim.

8.  In October 2009, the Applicant returned to her parents’ home in Kenya to see her children. To avoid the threats, she went to Tanzania for two weeks. Then she returned to her parents’ home in Kenya. She was told by her parents and some villagers that Francis had been looking for her here and there in the village. To avoid the threats, she moved to another place in the same village some five to six hours away on foot. She stayed there for about six months. During that period of time nothing eventful happened, except that she heard rumours from the villagers that Francis had been seen around. Because of the deep-rooted tradition of wife inheritance, the Applicant thought she could not escape forever. With the help of a distant cousin, she flew to Shenzhen where she stayed for a week before entering Hong Kong. Whilst in Hong Kong, she learnt from her mother that Francis no longer came to visit or ask for her whereabouts because he knew that she was no longer in Kenya.

9.  The Applicant does not think state protection is available in Kenya because Francis had connections with the local police. She does not believe internal relocation is viable, as she could hardly sustain her livelihood in other areas and Francis is a resourceful person who could locate her upon her return.

10.  About five weeks before the second hearing, the Applicant legally married a non-refoulement claimant from Tanzania whom she met in Hong Kong.

Finding of the Board

11.  By reason of the delay in the processing of the Applicant’s claim, the Applicant had enjoyed de facto protection in Hong Kong for nine years by the time her claim was rejected by the Director, or ten years by the time of the hearing before the Board. The Applicant testified before the Board at the second hearing. On the basis of the country of origin information (“COI”), the Board accepted that “wife inheritance” is still being practiced in some communities in Kenya and that much of Kenya held to traditions that upon remarriage a woman loses her claims to her deceased husband’s property. It also accepted the Applicant’s claim that Francis wanted to marry her in 2008 and harmed her on one occasion. Seemingly, the Board accepted that the Applicant’s life was at risk when she left Kenya in April 2009 and June 2010. At the second hearing the Board focused on two issues: first, why the Applicant could not return to Kenya after a lapse of ten years and, second, whether the fact that she was suffering from human immunodeficiency (“HIV”) could constitute a ground for non-refoulement.

12.  The Board explained to the Applicant on a number of occasions during the two hearings that it had invited her to a hearing to provide her an opportunity to elaborate on her claims, and to assess the situation for her upon her return to Kenya. It explained to her that the onus was on her to substantiate her claims for protection in Hong Kong. It even unequivocally informed her that it did not consider she had discharged her onus. Despite repeated prompting and probing by the Board, all that the Applicant said is that she does not know what will happen if she returns, although she believes she will have problems due to a “case”. She said that is because she had been away from Kenya for ten years and had no communication with anybody in Kenya since eight years ago.

13.  Previously, in May 2018, the Applicant told the immigration officer that she had communication with her mother twice a year. At the beginning of the second hearing, she told the Board that she had four children, that they were living with her mother, that the two elder children were neither studying nor working and that they helped in looking after the two younger children who were studying. But when she was cross-examined on why she would not go back to live with her mother and children (Q39), the Applicant changed her evidence and said her children were being kicked out from her mother’s home, that her two older children were “looking for life” and staying elsewhere unknown to her while each of her other two younger children was living with one of her two sisters. When the Board queried why she did not know what would happen if she returned to Kenya, she changed her evidence and said for the last eight years she had not been communicating with anybody in Kenya. When the Board asked why she would not communicate with her children, she repeated that they were not living with her mother and she did not know where they were. When the Board asked why she had not communicated with her mother or children, she said she had a lot of stress right now and cannot talk with them. Then she closed the door to that line of questions by adding that she did not even have their telephone numbers.

14.  Obviously, the Board had gone as far as it could on the first issue and moved to explore the second issue, ie the Applicant’s HIV condition. That line of enquiries was quickly aborted on the Applicant’s confirmation that her problem was not her treatment but her case.

15.  Obviously, the Board had asked all that it wanted to ask and discharged its duty of joint endeavour. It could go no further and started to wind up the hearing. It told the Applicant unreservedly that she had hardly told the Board anything at all about her case and that the Board is “none the wiser” after hearing her testimony. It reminded her that this is her chance to tell the Board about her case if she wanted to tell, otherwise it would conclude the hearing. The Applicant replied “my mind is not going so well; I’m very tired. All my case is in these documents.”  She confirmed that she did not have anything to say. After seeking a further re-confirmation that she did not want to say anything more, the Board concluded the hearing.

16.  In view of the contradictions in her evidence, the Board could not accept the Applicant had no contact with her family members or communication with anybody in Kenya. It found the Applicant “unforthcoming in relation to further details regarding the situation she may face upon her return to Kenya … asserting that she no longer has contact with anyone in Kenya.”  It found “she was deliberately evasive and unwilling to explain why she was seeking to remain in Hong Kong.” 

17.  The Board noted that the Applicant had returned to her home village in Kenya in October 2009 and stayed there for eight months until June 2010. It found during those eight months “her evidence did not indicate Francis approached her or harmed her again, even though he was apparently aware that she was in her village for several months.”  It also noted that “the Applicant appears to have married in Hong Kong and is no longer an unmarried woman.”  On the basis of the Applicant’s evidence, the Board was not satisfied that more than ten years after Francis attempted to force her to marry him there is still a real risk, a real chance or substantial or strong grounds for believing that the Applicant would be harmed by him because of her refusal to marry him. It did not accept that she had satisfactorily explained why she would be unable to return to her village and reside with her mother and children if she returned to Kenya. It considered her claimed fear of harm from Francis “highly speculative”.

18.  For the above reasons, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. Accordingly, it dismissed her appeal against the Director’s Notice.

Grounds for judicial review

19.  The Applicant advanced the following four grounds of appeal:

(1)  Procedural impropriety in failing to draw attention to matters of concern;

(2)  Procedural impropriety in failing to adjourn the second hearing; in view of the Applicant’s condition;

(3)  Error of law/procedural impropriety in material misunderstanding of the Applicant’s evidence; and

(4)  Procedural impropriety/irrationality in failing to give adequate reasons for its finding.

The second hearing and the transcript

20.  To assess these grounds, it is necessary to examine the transcript of hearing to find out what transpired during the second hearing. For ease of reading, the relevant parts of the transcript are reproduced in Annex I at the end of this Form CALL-1.

21.  The Board began the hearing by giving an opening introduction, explanation of the law and reminding the Applicant about the situation of her children in Kenya and her previous travels between Hong Kong and Kenya, the Board asked why the Applicant is seeking protection in Hong Kong (Q30). In Q31, it asked by way of an introductory question what was her problem. In Q32, it asked in plain simple language, “what was the problem that [she] can’t return” to Kenya after a lapse of ten years.

22.  The Applicant’s reply was that she did not know what was going on in Kenya because she has been staying in Hong Kong for the last ten years and has no communication with anybody in Kenya. Then, instead of answering the Board’s question, she rhetorically asked the Board what could she do, presumably for her living, in Kenya (A32). She was not answering the Board’s question. It is her obligation under the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to assist the decision-maker in ascertaining and evaluating the facts in support of her non-refoulement claim. These obligations include: (i) to tell the truth and assist the decision-maker to the full in establishing the facts of his case; (ii) to make an effort to support her statements by any available evidence and give a satisfactory explanation for any lack of evidence; and (iii) to supply all pertinent information concerning herself and her past experience in as much detail as is necessary to enable the decision-maker to establish the relevant facts. She cannot avoid answering the Board’s question with a question to the Board on a wholly irrelevant matter.

23.  The Board reminded the Applicant that it is her burden to make out her case for international protection and told her in unequivocal terms that it was not for the Board to make out a case for her (Q33). It frankly cautioned her that she did not seem to be willing to answer the Board’s questions. It told her that if she did not give meaningful answer, the Board could only rely on the information then available (Q34). Seemingly, the Applicant noted the warning and said in A35 that she would tell the Board what it wanted to know. However, she just repeated that she could not explain the situation because she had been away for ten years. Then the Board made a second attempt to prompt the Applicant by asking her what is the situation in Kenya (Q36). Despite the Board’s three attempts to prompt the Applicant for an answer, the Applicant kept telling the Board that she did not know why she could not return to Kenya because she has been living in Hong Kong for the last ten years and again asked the Board what could she do in Kenya (A39). She was not answering the Board’s questions.

24.  Then the Board attempted to explore the issue from a different angle by suggesting to the Applicant that she could, as a start, live with her mother. Unfortunately, that opened a Pandora’s box. In answer to the Board’s suggestion that her mother could provide her with a safe haven to start with, the Applicant departed from the easy or familial scenario she had painted and confirmed at the beginning of the hearing that all of her four children were living with her mother with the elder two helping in looking after the younger two (A12 to A19). She asserted that her mother’s home turned hostile, her children were being kicked out every day, the two elder children had been kicked out, left her mother’s home, went to look for their own living, and she did not know where they are; while the two younger ones had also been kicked out and each of them is living with one of her two sisters.

25.  The Applicant attempted to explain the change in her evidence by saying that the children regarded that they were living with her mother because they treated “her mother’s home as their home because that’s where they grew up.” That could hardly explain the inconsistency because it was the Applicant’s own evidence to the Board at the beginning of the second hearing that her two elder children were living in her mother’s home helping to look after the younger two children. It never was her evidence that she learned from her children that they were living with her mother. Her children misapprehension could not explain the inconsistency.

26.  Then the Applicant repeated that she did not know what was going on in Kenya because she has been living in Hong Kong for ten years and for the last eight years she had not been communicating with anybody in Kenya. This new assertion contradicts her evidence before the immigration officer in May 2018, just one year before the second hearing, that she had regular contacts with her mother twice a year. It could not be true that for the last eight years before the second hearing she had no contact with her children and mother. Obviously, these drastic changes in evidence were proffered to deal with the Board’s question as to why she could not return to Kenya to live with her mother. The Board did not accept they were true.

27.  Her new evidence prompted the Board to ask why she did not ask her mother and children about the situation back in Kenya. To avoid answering that question, the Applicant said that right now she has a lot of stress and cannot talk to them over the phone. Though she used the words “right now”, she could not be talking about stress at the hearing because she would not have contemplated talking to her children during the hearing. She must be referring to stress at home. To close this line of the Board’s enquiry, she added that she does not even have her mother’s or children’s phone numbers and had lost contact with them. Given the history how this answer came to be evolved, the Board found this answer incredible and at paragraph 47 of its Decision rejected her evidence that the Applicant had no contact with her mother and children.

28.  Then the Board moved to a different topic about the Applicant’s HIV condition, but the Applicant indicated she has no concern about that problem: see Q43 to Q48 and A43 to A48. With that, the Board had asked all that it wanted to ask and started to wind up the hearing. It unequivocally told the Applicant that she had hardly told the Board anything about why she could not return to Kenya after a lapse of ten years and reminded her this is her chance to tell the Board about her case, if she wanted to (Q49). The Applicant replied that she was tired and “all my case is in these documents” (A49). Then the Board wound up the hearing by repeating the above and reminding her that this was the opportunity for her to tell her case to the Board; but if she preferred otherwise she could conclude the hearing. The Applicant said she had nothing to say and wanted to “finish here”. Then, the Board concluded the hearing.

Ground (1): Procedural impropriety in failing to draw the Applicant’s attention to matters of concern

29.  Mr Wan, counsel for the Applicant, submits that the Decision is tainted by procedural impropriety in that the Board failed to observe its high standard of fairness in not drawing the Applicant’s attention to the inadequacies in her evidence or to warn her of the consequences of not answering further questions. He submits that the Board should have drawn the claimant’s attention to matters that require clarification or elaboration so that they can be addressed by the applicant. He quoted the following authorities in support of his proposition: Secretary for Security v Sakthevel Prabakar[5]; ST v Betty Kwan[6] and Afzal Muhammad Ahsan v Torture Claims Appeal Board [7].  He referred the Court to the following dicta of Barma JA in Kulwinder Kaur v Director of Immigration[8]:

“Fairness requires that she be told and understands the consequences of not giving evidence before she can be expected to make an informed decision as to whether or not to answer any questions. In our view, she should have been warned that a failure to answer questions might lead to an adverse view of her credibility or might adversely impact on her case if the Adjudicator should be left in doubt as to the position on particular matters, even though he might not positively determine them against her.”

30.  Mr Wan also reminds what this Court had held in Afzal[9] that where the Board found there are clear vagueness, uncertainties and inconsistencies in the Applicant’s account which call for explanation, elucidation and clarification but the claimant refused to answer its questions to explain the inconsistencies and to perfect his case, it is at least arguable that the Board failed to observe its high standard of fairness by not drawing the claimant’s attention to those matters which if not properly dealt with may damage his credibility and the credibility of his claim.

31.  He then referred to paragraph 47 of the Decision where the Board found the Applicant had not “satisfactorily explained why she would be unable to return to her village and reside with her mother and children if she returns to Kenya.”  He submits that similar to Afzal, the Applicant was not informed by the Board of the inadequacies of her evidence; she had not been explained the damaging effect of her failure to address certain issues. He submits that it is not enough for the Board to simply mention that it wanted to “discuss [her] case in more detail and [it] could find out what the current situation is” and “otherwise it would just conclude the hearing”.

32.  These principles quoted by Mr Wan are trite and very well know. However, the standard of fairness is difficult, if not impossible, to define. It is difficult as well as inappropriate to lay down hard and fast rules. It all depends on the circumstances, including the context of the decision, and this is to be taken into account in all its aspects. There are no absolute standards. The standard of fairness may even change with time. It also varies according to circumstances. It is not to be applied by rote identically in every situation. As was held by Lord Mustill in Secretary of State for the Home Department, ex p Doody[10], what fairness requires is essentially an intuitive judgment. The standards of fairness are not immutable. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  With that note and in order to properly assess if the high standard of fairness has been maintained by the Board, this Court turned to scrutinise the transcript to understand the context in which the evidence was given and assess if the high standard of fairness had been observed. 

33.  To begin with, the Board asked the Applicant in plain simple language, “what was the problem that [she] can’t return” to Kenya after a lapse of ten years (see paragraph 22). The issue could not be put clearer and simpler. That was effectively the sole issue asked in the hearing. The Board had time and again during the course of her testimony explained to her that the purpose of the hearing was to find out why she was still in need of protection after she had been away for ten years (Q32, Q33, Q34, Q50 and Q51). It cannot be said that the Board had failed to draw the Applicant’s attention to matters that obviously require clarification or elaboration. This is not a case where an applicant refused to answer the Board’s question. The Applicant understood the question and answered, but her answer is that she cannot explain.

34.  Mr Wan’s first complaint is that the Board failed to draw the Applicant’s attention to the inadequacies of her evidence. He submits, quoting the following dicta of this Court in Afzal:

“… the Court could find nothing to suggest that the Applicant had been informed of at least some of the major inadequacies in his evidence. He had not been explained, not even in general terms, the damaging effect of inconsistencies in his evidence. It appeared that the Board’s reaction was neutral when the Applicant said he wished to rely on the material in the hearing bundle only and declined to answer the Board’s question. The Board then simply informed him “that the Board would therefore rely on the information contained in the appeal bundle.”  The Court is therefore concerned whether when deciding not to testify, the Applicant was aware that there may be credibility issues in his claim, if the vagueness, uncertainties and inconsistencies were not explained. I think it is at least arguable that the Board failed to observe its high standard of fairness by failing to draw the Applicant’s attention to the fact that certain aspects of his evidence calls for expansion, explanation, elucidation and clarification which, if not properly dealt with may damage his credibility and the credibility of his claim.”

35.  On the facts of this case, as summarized in paragraph 23, the Board reminded the Applicant that it is her burden to make out her case and not for the Board to make out a case for her (Q33). It frankly cautioned her that the Board did not consider she was willing to answer the Board’s questions. It told her that if she did not give meaningful answer, the Board could only rely on the information then available (Q34). That effectively is a warning. In that context, the Applicant must appreciate that if she gave answers which were not meaningful, it must necessarily follow that she failed to make out her case for international protection. Seemingly, the Applicant noted the warning and said in A35 that she would tell the Board what it wanted to know, but she just repeated that she could not explain the situation because she had been away for ten years. Not only that the Board had warned her of the inadequacies of her evidence and the consequence of not giving meaningful answer, the Board repeatedly attempted to prompt the Applicant for an answer. But the Applicant kept telling the Board that she did not know why she could not return to Kenya because she has been living in Hong Kong for the last ten years and asked the Board what can she do in Kenya (A39). She made the Board look like a cat chasing its own tail (Q36 to Q38 and A36 to A38). She was not answering the Board’s questions.

36.  The Applicant must understand from the foregoing that the Board considered the evidence she had presented was not sufficient. Though the Board had not given her very explicit warning, the Applicant could have no misunderstanding that the Board was warning her that on the basis of her answers she had not made out her case for international protection. What warning and how it was to be delivered is largely a matter of style for the Board depending on the circumstances, including the atmosphere of the hearing. In the context of what transpired, the Board’s expression of dissatisfaction with her answer and intimation to make a determination on the basis of inadequate information then available must be taken as a warning that her answer was not sufficient to entitle her to international protection, ie she failed to explain why she could not return to Kenya would be fatal.

37.  The present case is clearly distinguishable from Afzal in which the Board’s reaction was neutral when the Applicant said he wished to rely on the material in the hearing bundle only and the Board simply informed the applicant “that the Board would therefore rely on the information contained in the appeal bundle.”  In contrast, the Board in the present case had warned the Applicant that her evidence is inadequate and if she did not give meaningful answers it will make a determination on her inadequate evidence, impliedly meaning that she would fail to prove her claim.

38.  Reading the transcript, this Court is satisfied that the Board had explained to the Applicant a number of times that it is her onus to substantiate her claim: see Q33 and Q34; had told her in simple language to explain why she could not return to Kenya, given that any problems she may have had were some ten years ago: see Q36, Q37 and Q51; and had told her that it was not satisfied with her answers: see Q49 and Q51. It is amply clear from the Applicant’s response that she fully understood what had been explained to her and asked of her. It is also clear that the Board had unequivocally told her that she had not answered the Board’s questions. The Board had warned her the consequence of not giving meaningful answers. In coming to the above conclusion, this Court has not lost sight of the possibility that the Applicant might genuinely not know the situation in Kenya, but dismissed that possibility as remote and fanciful in the light of the multiple changes in the Applicant’s evidence. The Board had maintained the high standard of fairness required in this type of proceedings. There is no substance in this ground.

Ground (2) - Procedural impropriety in failing to adjourn the second hearing; in view of the Applicant’s condition

39.  Mr Wan submits that the Decision is tainted with procedural impropriety in that the Board had not adhered to the high standards of fairness by failing to consider an adjournment of the second hearing properly. An opportunity to make worthwhile or effective representations is an important requirement of fairness in most if not all situations: see ST v Betty Kwan[11]; MD v Torture Claims Appeal Board[12]and Principles, Procedures and Practice Directions of the Torture Claims Appeal Board[13]. He cited three examples of unfairness.

40.  In M v Torture Claims Appeal Board[14], the applicant made four applications to adjourn a hearing scheduled for 3 December 2015 on the ground that he was suffering hip pain requiring hip replacement surgery. His application was supported by medical evidence that he would probably recover in March 2016 and his lawyer’s submission that there was new evidence making it imperative for the applicant to attend the hearing. The Board refused to adjourn and the applicant declined to attend the hearing on medical ground. The Board dismissed the appeal. The Court allowed the application for judicial review holding that fairness would require a person who might be adversely affected by the decision to have an opportunity to make representations on his own behalf either before the decision was taken with a view to producing a favourable result; or after it was taken with a view to securing its modification or both.

41.  In Villarico Loutherliz Talag v Torture Claims Appeal Board[15], the Board pre-empted an application for adjournment and refused to adjourn a hearing after being informed by a heavily pregnant applicant that she was suffering stomach pain. The Court held that the Board’s failure to address the question of an adjournment properly and its threat to make a decision without setting down another hearing date showed such a lack of compassion and fairness amounted to a procedural irregularity.

42.  In MD, despite the applicant informed the Board that he was suffering from a brain problem and could not think clearly, the Board proceeded to make a determination based only on his previous written evidence. This Court held that to require the applicant to answer the Board’s question under such condition may disable him from effectively participating in the oral hearing leading to an unjust result.

43.  Mr Wan submits that the Applicant had informed the Board that her “mind is not going so well” and she is “very tired” and the Board was aware that she suffered from depression and high blood pressure, apart from being HIV positive. He submits in the circumstances it was procedurally unfair for the Board to make a determination without first adjourning the hearing and calling for a medical report to determine the course to take; and to make the adverse Decision against her without affording her the opportunity to make a worthwhile or effective representation in an oral hearing.

44.  In this Court’s opinion, whether to adjourn a hearing is largely a case management decision. The test to be applied in considering whether to grant an adjournment is whether in all the circumstances to continue may disable the applicant from effectively participating in the proceeding. The circumstances were as follows. The Applicant attended the hearing with her husband. Before the hearing started, she made no complaint whatever about depression, high blood pressure, her HIV condition or other adverse conditions. She interacted with the Board in a normal manner. She apparently understood the Board’s explanation and questions. She answered the Board’s questions, though her answers were not to the Board’s satisfaction. She even twice asked the Board the rhetoric question of what she could do returning to Kenya. She appeared to be able to present to the Board what she wanted to present. She was quick to respond to the Board’s question, though she was caught by the Board for the inconsistencies and contradictions. The inconsistencies and contradictions reflect lack of veracity rather than lack of ability to participate in the proceeding.

45.  It is important to note that the Board wished to explore two issues: first, why the Applicant could not return to Kenya after a lapse of ten years and, second, her HIV condition. Then, the Applicant got stuck with her changes in evidence and the inconsistencies. It should be recalled that she started the hearing telling the Board that she had communication with her mother twice a year, her four children were living together with her mother, her two elder children were helping in looking after the two younger ones, etc. As the Board’s questions progressed, she made multiple changes in her evidence. She said for the last eight years she had not been communicating with anybody in Kenya (A40). She said all her children were kicked out from her mother’s family, she lost contact with the two elder children, her two younger children were living with her two sisters. Then, suddenly she said she did not even have the phone numbers of her mother and her children (A42), totally contradicting her evidence before the immigration officer a year ago that she had communication with them twice a year. By that new assertion, she closed the door to further questions by the Board on why she did not know about the situation in Kenya. It is obvious from the Board’s Q43 which immediately followed that the Board considered it could explore this first issue no more and moved to explore the second issue about the Applicant’s HIV condition. Its enquiries on the second issue was quickly aborted by the Applicant’s confirmation in A48 that she had no problem about her treatment. Thus, the Board had completed its investigation and had fully discharged its duty of joint endeavour.

46.  Up to this stage of the hearing, there is nothing to suggest that the Applicant was suffering any adverse condition. The Board had properly explained the purpose of the hearing to her, which she obviously understood. It unequivocally told her that her answers were not satisfactory and reminded her the hearing was the occasion for her to present her case. It even warned her that if she did not give meaningful answers, the Board would have to determine her claim on the basis of her unsatisfactory answers, implying that unless she gave meaningful answers her appeal would fail. Despite she was uncooperative, the Board repeatedly probed and prompted her and encouraged her to tell the Board her case. The Applicant was nevertheless unforthcoming. The Board felt enough was enough and concluded the inquiries on the two issues. But up till the conclusion of the Board’s inquiries, the Applicant never gave the slightest indication that she was suffering any adverse condition, confusion or tiredness. Unlike the three cases cited by Mr Wan, the Applicant had made no complaint of any adverse conditions and the Board had exerted absolutely no pressure on the Applicant to answer any question or to soldier on with the proceeding. The Applicant answered the questions freely and voluntarily.

47.  Starting from Q49, the Board started to wind up the hearing. It summarised its investigation on the first issue, warned the Applicant that she had hardly told the Board anything about her case and reminded her that this was the chance for her to tell the Board about it if she wanted to. These are repetitions of Q33 and Q34. It was only at this moment that the Applicant said for the first time that “[her] mind is not going so well; [she is] very tired”, and “all [her] case is in these documents” (A49). But she gave no indication that she wanted an adjournment because she had more to tell but for her mental condition or tiredness. Instead, she said “all [her] case is in these documents”, implying she had said everything. Indeed, that was also the impression she gave during the hearing. Thus, it was natural for the Board to continue with its winding up speech. It reminded her the purpose of the hearing and for the last time warned her that the Board was “none the wiser at the moment”, ie she had hardly told the Board anything about her case; and that this is the opportunity for her to tell the Board her case if she wished to or to conclude the hearing if that’s what she preferred (Q51). Despite the warning, the Applicant replied that she had nothing to say because she was repeating the case (A51). After making its last attempt to probe the Applicant to tell the Board more about her case, the Applicant confirmed that she wished to “finish here”.

48.  There was no suggestion at all that the Applicant wanted an adjournment because she was tired but she still had more to tell the Board. Nor did it ever appear to the Board that the Applicant was not fit to attend the hearing. The objective circumstance is that she had said everything she wished to tell and everything is in the documents. From point of view of the Board, it had completed its investigation and fully discharged its duty of joint endeavour to help the Applicant to prove her case. There was no purpose for an adjournment. The Board might or might not have considered an adjournment. If it had, that would have been a case management decision properly made as there was no purpose for an adjournment. But even if it had not, for the same reason the Board could not be criticised as having committed a procedural irregularity. The Board had fairly re-explained the purpose of the hearing and warned the applicant about the inadequacy of her evidence. It did not apply pressure on the Applicant to continue to testify or to end the hearing. It gave her the option to conclude only if she so preferred. She chose to “finish here.”  It was only after re-confirming that she had nothing else to tell that the Board concluded the hearing. There is no substance in this ground. The question of adjournment did not arise.

Ground (3) - Error of law/procedural impropriety in material misunderstanding of the Applicant’s evidence

49.  Mr Wan submits that a misunderstanding of the evidence may amount to an error of law: Stefan v General Medical Council[16]and a misapprehension of the evidence may procedurally taint the Board’s decision: Imran Muhammad v Torture Claims Appeal Board[17].  This Court has no disagreement with these propositions. Mr Wan refers to the Board’s finding at paragraph 45 of the Decision where it held:

“… [the Applicant’s] evidence does not indicate her brother in law approached her or harmed her again, even though he was apparently aware that she was in her village for several months.”

He submits this is a misapprehension of the Applicant’s evidence for there was no evidence that Francis was in fact aware of the Applicant’s presence in the village at the time. The Applicant’s evidence was only that when she returned to her home village Kenya, she was told by her parents and some villagers that “Francis has been looking for [her] here and there in the village”. To avoid the threats from Francis, the Applicant moved out from her parents’ house and hid in a friend’s house in the same village five to six hours away by walking. She also heard from the villagers that “Francis had been seen around.”

50.  With respect, counsel’s submission is splitting hair. It is correct that there is no direct evidence that Francis was in fact aware of the Applicant’s presence in the village when she returned to Kenya between the end of 2009 and June 2010. But on the Applicant’s own evidence as quoted by Mr Wan above, when she returned to her home village, she was told by her parents and some villagers that Francis had been looking for her here and there in the village. Though this is hearsay evidence, if accepted, it is evidence on which the inference that Francis knew, believed, suspect or was aware that the Applicant had returned to Kenya during those few months may be drawn, otherwise he would not have travelled 70 to 80 kilometres from his home in Kathiani Village to the Applicant’s parents’ home in Mumbuni Village during those few months looking for the Applicant here and there in Mumbuni Village. It was the Applicant’s evidence that she heard from her mother and villagers that Francis was looking for her. She probably adduced that evidence to support and fortify her fear of harm from Francis. She was only required to prove her case on a low standard of proof. It puzzles the Court why counsel is now seeking to challenge her own evidence. Counsel’s criticism of the Board’s finding is not justified.

Ground (4) - Procedural impropriety/irrationality in failing to give adequate reasons for its finding

51.  Mr Wan submits, quoting Prabaka[18] and Azfal[19] that the high standards of fairness requires that adequate reasons should be given by the decision maker where the non-refoulement claim is rejected. He also submits, quoting Demirkaya v Secretary of State for Home Department[20], that past persecution substantially supports the well-foundedness of the fear in the absence of a significant change of circumstances; and “if it is the opinion of the Tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why this is so.”  This Court has no disagreement with these legal propositions.

52.  Mr Wan further submits that the Board accepted the Applicant’s evidence in paragraph 45 of its Decision that her “brother in law wanted to marry her in 2008 and harmed her on one occasion”. He also referred to the country of origin information (“COI”) which suggests that “[s]ome in-laws physically attack widows to get their property or compel them to be cleansed or inherited”. As the Applicant is still not “inherited”, there does not appear to be any significant change of circumstances. However, the Board gave no reason for its finding in paragraph 50 in which the Board held:

“I am not, therefore, satisfied, on the basis of the evidence before me that more than 10 years after she claims her brother in law attempted to force her to marry him that there is a real risk, a real chance or substantial or strong grounds for believing that the Appellant would be harmed by her brother in law because of her refusal to marry him.”

53.  In fairness to the Board, its finding was prefaced by the words that “I am not, therefore, satisfied, on the basis of the evidence before me”. The Board’s reasons were given in paragraphs 45 to 49. The Board accepted in paragraph 45 that Francis had wanted to inherit the Applicant and harmed her on one occasion. It then referred to the Applicant having fled Kenya for a year and returned in October 2009. Apart from a two-week trip to Tanzania, the Applicant stayed for about six months in Mumbuni Village. During those six months nothing eventful happened, though Francis was “apparently aware” of her return to the village. The evidence indicates even a year or so after inflicting the harm on the Applicant, Francis did not approach her though he was apparently aware of her return. This indicates a lack of zeal on the part of Francis to pursue the Applicant and his lack of means and resources to locate her 70 to 80 kilometres away. That was just a year or so after the harming incident when the Applicant’s risk was still at its highest. More significantly, the Board pointed out that the Applicant is now married. The Applicant confirmed in the second hearing at A2 and A3 that she and her husband were legally married on 19 June 2019. The Applicant is no longer an unmarried woman and is incapable of being inherited. That is a very significant change of circumstances. That was 10 years after the harming incident, which by itself is a very long time and that makes the Applicant’s marriage even more significant. Though the Board did not say so, it is common sense that ten years is a long time for circumstances to change. One's emotion or passion for another may change or usually dilute with time.

54.  Then in the light of its finding in paragraph 45, the Board went on in paragraph 46 to assess the Applicant’s risk. It found on her own evidence that the Applicant does not know what will happen if she returns. It was only her belief that she will have problems. This Court notes that the word “not” is missing in paragraph 46 of the Decision but that is an obvious typographical omission: see Q40 to Q42 and A40 to A42. For these reasons, the Board found the Applicant’s claim of harm speculative.

55.  In paragraph 47 of the Decision, the Board rejected the Applicant’s evidence that she has no contact with her family members. This is a finding of fact solely for the Board. This Court had gone through the evidence when considering Grounds (1) and (2). There is no need to repeat, save to say that it is at least open to the Board to make that finding in view of the inconsistencies and contradictions in the Applicant’s evidence.

56.  In paragraph 48 of the Decision, the Board referred to the COI. It accepted that wife inheritance is still being practiced in certain communities in Kenya. In paragraph 49, the Board held it was not satisfied on the basis of the evidence that any demands the Applicant may have had from Francis 10 years ago will result in any harm for the Applicant upon her return to Kenya. Paragraph 50 relied on by Mr Wan is only a conclusion of the Board’s finding the reasons for which are fully given in paragraphs 45 to 49.

57.  Mr Wan quoted this Court’s criticisms in MD of the Board’s failure to give reasons for its finding. The present case is wholly distinguishable from MD.  The Board in MD gave no reasons for its finding. Here, the Board gave full reasons. There is no substance in this ground.

Conclusion

58.  For the above reasons, there is no substance in any of the grounds of application. The Board gave full reasons for its finding. It demonstrated a full understanding of the Applicant’s situation. It handled the Applicant with understanding and sympathy. It also exercised great patience and tolerance in the conduct of the hearing. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board analyzed the evidence properly and there are no errors of law or procedural unfairness in the Board’s Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

59.  There be no order as to costs, save that the Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

Annex I

The transcript of the second hearing

Q11:	… last time, you told me you have four children in Kenya and your mother’s there, as well; is that right?
A:	Yes. Yes.
Q12:	Okay. And your children are living with your mother; its that right?
A:	Yes.
Q13:	Okay. Okay, and your mother is still in the village, … Mumbuni village?
A:	Mm-hm
…
Q17:	Okay. So that’s where your – is that where your children live with your mother?
A:	Yes
Q18:	Okay. And are the children all still at school?
A:	No, not all of them. Some of them don’t go to school. The last two are the ones who go to school.
Q19:	Okay. And what do the older two children do?
A:	There’s nothing that they do. They’re just trying to help the younger ones.
	… (Evidence about leaving Kenya in 2008 for Hong Kong, returning to Kenya in 2009 and leaving for Hong Kong again in 2010) …
…
Q 30:	Okay. So why are you seeking protection in Hong Kong, Miss Munyasya?
A:	I cannot go back home because I have a problem.
Q 31:	Okay. And what’s that problem?
A:	I cannot go back because of my brother-in-law. …  I cannot go back home because I still have a problem with my brother-in-law, the one who strangled me. And we still have an issue with that family.
Q32:	Okay. What’s the problem? You haven’t been in your home country for about ten years, so what’s the problem that you can’t return? What’s the problem with your brother-in-law?
A:	So, first of all, I don’t have any communication with anybody there and then I don’t know what’s going on, and I cannot go back. I’m going to go back (Swahili) … I’m going to go back – I have lived here for ten years – and do what?
Q33:	Well, you’ve applied for what’s called international protection here, so it’s not really the issue about what you will do; it’s whether you are in need of international protection in Hong Kong. Okay. Okay, so you’ve come here today to give evidence and I’m trying to ask you what the problem is, and you don’t seem to be willing to answer questions. So, I’m not here to make out your case for you; it’s for you to make out your case yourself.
A:	… (inaudible) …
Q34:	Okay, you’re claiming that you’re in need of Hong Kong’s protection, international protection, so you need to tell me why that is; otherwise, I’m just going to rely on the information that I have.
A:	(No audible response)
Q 35:	Okay. So would you like to tell me that?
A:	Yes, I’ll explain to you what you would like to know.
Q 36:	Well, you tell me why you think you’re in need of international protection when you’ve been here for ten years, and what is the situation in your home country that you can’t return.
A:	So, first of all, I cannot explain to you the situation back home or about my country because I have been living here for ten years; I don’t know.
Q 37:	Well, why are you seeking protection? What do you think will happen if you return?
A:	So the problem is I don’t know if the person that I had a case with is still there, because he wanted to kill me, and, if he still has that plan of wanting to kill me, I don’t know.
Q 38:	Okay. Why would he want to kill you now, after all these years that you’ve been away?
A:	First of all, I had a case with him because they took away all my things and they wanted to kill me, so now, if I go back home right now, I don’t know where to begin. I don’t have anything; I don’t have anywhere to live; where do I start?
Q 39:	Why wouldn’t you go back and live with your family, with your mother and your children?
A:	So, even my children have a case where they live because my children are boys. They are living with my mother; they are not supposed to be living there. So, even they are constantly being kicked out every day, so I will go back there and do what?
Q 40:	Okay. So what you’re telling me is that you really don’t know what would happen? You don’t know what the situation is with this man, your brother-in-law, this family, so it seems like you don’t really know what would happen; is that correct?
A:	So now I cannot explain to you anything or even tell you what’s going on because I’ve been here for ten years and, for the last eight years, I have not been communicating with anybody, so don’t know what the situation is.
41:	Well, you must have been communicating with them because you know that your children – that two of – the older children aren’t at school and the younger children are at school; so how did you know that?
A:	So my children are not living on my husband’s side; they are living with my mother, on my mother’s side, so my youngest child lives with my younger sister and the other one lives with my other sister, my middle sister, because they were chased from home. Now, those other two, they are looking for life. They stay elsewhere; I don’t know where. But, you see, they call my mother’s home their home because that’s where they grew up.
Q 42:	So why haven’t you been in contact with your mother or children?
A:	Right now, I have a lot of stress so I cannot talk to them over the phone. I don’t even have phone numbers.
Q 43:	Okay. So I asked you to bring medical documents …  (changed topic to the Applicant’s treatment)
…
Q 48:	… there are various treatment centres; …
A:	My problem is not my treatment; the problem is my case.
Q 49:	Okay. Well, I’m sorry, Miss Munyasya, but you’ve hardly told me anything at all about that case. So this is your chance to tell me about that, if you want to tell me about it.
A:	My mind is not going so well; I’m very tired. All my case is in these documents.
Q 50:	Okay. Well, the reason you were in – you were invited here to a hearing so that you could discuss your case in more detail and I could find out what the current situation is. Okay, so …
A:	So, I’m tired because, every day, I’m talking about my problems and the things that I’m going through, and it’s torturing my mind. You see, the problem is I can’t sleep; I’m not doing anything; my children are suffering.
Q 51:	Okay. Well, I’m very sorry to hear that but what I’m saying to you is that you have been invited to a hearing to discuss what your problems are if you return to Kenya. I’m none the wiser at the moment, so this is your opportunity and you can conclude the hearing if that’s what you prefer. Okay, this is the second time we’ve tried to have this hearing.
A:	So, I don’t have anything to say because, every day, I’m saying the same case. I’m getting confused; I’m just adding things.
Q 52:	Okay. Did you want to tell me anything more? Otherwise, we’re going to conclude the hearing.
A:	Let’s just finish here.
Q 53:	Okay.

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