NYAMBURA ROSE MUTHONI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1179/2020

[2024] HKCFI 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1179 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Kenya who arrived in Hong Kong on 25 March 2017 as a visitor with permission to remain as such up to 23 June 2017 when she did not depart and instead overstayed, and on 27 June 2017 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Kenya she would be harmed or killed by her maternal uncle over their property dispute in her home district. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Murang’a, Kenya. After leaving school she worked as a laundry worker and continued to live with her mother in her mother’s house which her mother later gifted to her.

3.  In 2012 her maternal uncle moved into the house with his family, claiming to be entitled to do so, and drove the Applicant out with threats against her, and fearing for her safety the Applicant therefore moved to Ngara until early 2013 when she returned to her home district where she subsequently started a shop selling clothes to make her living.

4.  One day in December 2014 some unknown men came into her shop and took away valuable things from the shop, and afterwards she was informed by her mother that those men were sent by her uncle to scare her.

5.  In March 2017 the Applicant travelled to Hong Kong to purchase goods for her clothing business, during which she was informed by her mother that her shop had been burnt down by some unknown men whom she suspected were sent by her uncle to threaten her, and hence she was afraid to return to Kenya and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her maternal uncle upon her return to Kenya as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her or that those unknown men were sent by him to harm her, that in any event it was a private property dispute between the Applicant and her uncle within their family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Kenya with a large population of 47 million people spread across a vast territory of more than 569,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Ngara where she had stayed before without incident and where it would be difficult if not impossible for her uncle to locate her.

8.  On 29 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 9 April 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 May 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of dispute with her maternal uncle over her inheritance of her mother’s property but found no reliable evidence of any real intention of her uncle to seriously harm or kill her over their property dispute, and that in any event it was a private property dispute between the 2 of them within their family without any official involvement that state or police protection would be available to the Applicant upon her return to Kenya as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her uncle that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 15 June 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just made a bare assertion that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Kenya, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant recently on 21 February 2024 filed an affirmation requesting to withdraw her application as her problem in Kenya has been solved and that she now wants to return to her home country.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

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