Wangui David Mbiro v. Torture Claims Appeal Board

HCAL 1098/2021

[2021] HKCFI 2634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1098 of 2021

BETWEEN

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Kenya who arrived in Hong Kong on 17 June 2005 with permission to remain as a visitor up to 24 June 2005 when he did not depart and instead overstayed and subsequently raised a torture claim with the Immigration Department on the basis that if he returned to Kenya he would be harmed or killed by a local criminal cult group known as Mungiki Sect due to their dispute with his mother over the running of her social support group in the home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mathare, Nairobi District, Kenya where he worked laying roof tiles and where his mother was the leader of a women social support group known as Muungano Women Self-Help Group (“Muungano Group”) which offered free education to children and other social self-help services and support to the local residents in needs.

3.In 2004 some of the Mungiki Sect people who were also members of the Muungano Group competed for the leadership against the Applicant’s mother and tried to remove her from the group, and one day after holding a group meeting, the Applicant’s mother fell sick and was admitted to the local hospital where she subsequently died on 15 November 2004, of which the Applicant suspected was caused by those members of the Mungiki Sect by putting poison in his mother’s food, and one month later when the Applicant noticed some strangers on the street staring suspiciously at him and following him, he became fearful that they were from the Mungiki Sect going after him as well, and so he fled from Mathare to Ngong, and from there he departed Kenya on 3 March 2005 for Hong Kong where he subsequently overstayed and raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 3 November 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.While being released on recognizance pending determination of his claim, the Applicant was arrested by police on three separate occasions for common assault and possession of dangerous drugs for which he was subsequently convicted and sentenced to imprisonments on various terms. In 2010 he married a local resident and raised a family with 2 children.      

5.By a Notice of Decision dated 28 December 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed upon his return to Kenya due to the absence of any past ill-treatment from the Mungiki group, that there is no reliable evidence of any threats being made against the Applicant by those Mungoki people prior to his departure of Kenya other than his own speculations, that in any event after all these years it is doubtful that they would still have any adverse interest in him, that in the absence of 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 53 million people spread across a vast territory of more than 580,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Kenya away from his home district where the Mungiki group was active to other cities such as Mombasa or Eldoret where it would be difficult if not impossible for them to locate him.

7.On 12 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, it was filed late but leave was granted for him to proceed out of time, and for which he attended an oral hearing on 30 June 2021before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 9 July 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted that his mother had really been murdered by the Mungiki Sect, that there is no reliable evidence of any threats from them directed at the Applicant, that in any event after all these years since his departure that it is doubtful that they would still have any adverse interest in him, and as the Mungiki Sect has been outlawed by the Kenyan authority that state/police protection would be available to the Applicant upon his return to Kenya as well as reasonable internal relocation for him to move safely to other area away from the influence of the Mungiki Sect without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

9.On 5 August 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just stated that the decision is unfair but without providing any details or particulars as to how it is so or put forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his 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 his intended challenge.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its finding of no reliable evidence of any real threats or risk directed against him prior to his departure of Kenya for the thorough and detailed analysis and reasoning set out in paragraphs 126 – 155 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

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

13.In the premises and 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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 3^rd day of September 2021

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