Ojodo Emilly Achieng v. Torture Claims Appeal Board

HCAL 1048/2020

[2023] HKCFI 2764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1048 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;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Kenya who arrived in Hong Kong on 1 December 2018 as a visitor with permission to remain as such up to 1 March 2019 when she did not depart and instead overstayed, and on 5 March 2019 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Kenya she would be harmed or killed by her father for being a lesbian. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Nyando, Kenya. After leaving school she remained residing with her parents and siblings until 2003 when she moved to cohabit with her boyfriend Jeremy in Nyabondo, Kisumu.

3.Despite having lived together as husband and wife for 12 years, the Applicant was unable to bear any children, and so in 2015 Jeremy brought another girlfriend Grace into their home to live together as he wanted to have a child with Grace.

4.After sometime, the Applicant and Grace became close and started to form a lesbian relationship behind Jeremy’s back.

5.However, one day in 2017 Jeremy discovered their relationship and became furious, and beat both of them with a stick violently that the Applicant had to flee from their house to take shelter in her parents’ home, but when her father later found out what happened from Jeremy, he also became furious over the Applicant’s homosexual behaviour that he beat her and threatened to kill her if she remained as a lesbian.

6.In order to escape from her father’s wrath, the Applicant fled to Kisumu Town to stay in her cousin’s place, but as the threats from her father persisted, she then moved to Mombasa to stay with a friend, and from February 2018 she travelled back and forth between Kenya and Tanzania, and later also to South East Asia including Thailand, Indonesia, Malaysia and Macau before arriving in Hong Kong on 1 December 2018 where she eventually overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 June 2019 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 16 August 2019 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”).

8.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 father upon her return to Kenya as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her father to seriously harm or kill her, that in any event it was a private family dispute between the 2 of them 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 48 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 Nairobi where it would be difficult if not impossible for her father to locate her.

9.On 27 August 2019 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 4 December 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 May 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found on the available evidence that the risk of harm from the Applicant’s father to her was not imminent or attained the minimum level of severity, nor was there any reliable evidence of any real intention of her father to seriously harm or kill her over her alleged homosexuality, that according to reliable and relevant COI that LGBT people in Kenya are entitled to proper protection and with support from various government departments and NGOs, that in any event the Applicant’s problem with her father was a private personal dispute within her 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 for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.On 1 June 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affidavit of the same date to which she just attached her entire appeal bundle of documents but without putting forward any proper ground for her intended challenge. 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.

12.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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm 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.

14.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.

15.Moreover, the Applicant recently on 4 September 2023 filed an affirmation requesting to ‘cancel’ her application as she has already been issued with a visa but without providing any further details or supporting documentary evidence.

16.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 request to withdraw her application, I accordingly dismiss her leave application.

Dated the 26^th day of October 2023

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