Case Document

100%Judiciary

HCAL 105/2020

[2025] HKCFI 2595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 105 OF 2020

BETWEEN
	Muli Mary Mukui	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.   Leave granted to the applicant to amend the name of the putative respondent to “Torture Claims Appeal Board”.

2.   Leave granted to the applicant to amend the decision in respect of which relief is sought to “the Torture Claims Appeal Board’s decision dated 12 December 2019”.

3.   Leave granted to the applicant to amend the grounds for her application for leave to apply for judicial review to those grounds stated in the draft Amended Form 86 annexed to the applicant’s affidavit dated 18 March 2025.

4.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 8 January 2020. There was in fact no such decision of the Board dated 8 January 2020.

2.By way of an affidavit filed on 18 March 2025, the applicant annexed a draft Amended Form 86 which stated that the decision in respect of which relief is sought is the decision of the Board dated 12 December 2019 (“the Board’s Decision”). Thus, it is clear that the Leave Application was made in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000105_2020_files/the_Board's_Decision.pdf

3.The Board found that the applicant’s claim failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”) and affirmed the decision of the Director of Immigration (“the Director”) dated 14 August 2018, which rejected the applicant’s claim for non-refoulement protection.

4.The Board did not deal with Torture Risk because it was rejected by the Director previously on 27 November 2013 and the applicant did not appeal against that decision.

Amendments

5.In Form 86, apart from stating a wrong date for the Board’s Decision, the applicant also misspelt the Board’s name. In the draft Amended Form 86 annexed to the applicant’s said affidavit of 18 March 2025, the applicant sought to amend the putative respondent’s name to “Torture Claims Appeal Board / Non-refoulement Claims Petition Office”.

6.However, the Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. Thus, this court allows the name of the putative respondent to be amended to “Torture Claims Appeal Board” only.

7.This court noticed that the adjudicator of the Board, Mr Bruce Henry who gave the Board’s Decision, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.

8.Mr Bruce Henry was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

9.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

10.Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Bruce Henry was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name the Non-refoulement Claims Petition Office as a party in the Leave Application.

11.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision. Leave is therefore granted to the applicant to amend the decision in respect of which relief is sought to “the Torture Claims Appeal Board’s decision dated 12 December 2019”.

12.The applicant also sought to amend her grounds for the Leave Application as stated in the said draft Amended Form 86. This court is prepared to allow such amendments in order to deal with the applicant’s grounds in proper context. Thus, this court grants leave to the applicant to amend her grounds for the Leave Application to those stated in the said draft Amended Form 86.

The applicant’s case

13.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.In sum, the applicant claimed for non-refoulement protection because she feared harm by her former partner named FW or Mungiki members should she return to Kenya, as she did not repay the money that FW gave her for her business in 2010.

Oral hearing

15.The applicant requested for an oral hearing and her case was heard on 25 March 2025.

16.The applicant told this court that the Board did not check properly her problems in her home country. She did not merely face financial problems because the people attacking her changed their mind. They raped and attacked her and they killed Muslim women. Her family, her siblings and her parents were not safe. Her daughter was very sick. These people were with the police and the government in Kenya and they were all over the country. The applicant also said that she could not get any documents from home because the situation was very bad over there.

Grounds for judicial review

17.The applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.As aforesaid, the applicant’s grounds for the Leave Application are now contained in the draft Amended Form 86 annexed to her affidavit dated 18 March 2025, which advanced two grounds as follows:-

(1) The Board acted irrationally, unfairly and/or Wednesbury unreasonable by failing to make evidence-based assessments; and

(2) Because of the Board’s failure to discharge the duty of joint endeavor & consider Country of Origin Information (“COI”) on the dangers of the Mungiki, it thus engaged in a flawed and unlawful Internal Flight Alternative assessment.

19.In support of the first ground, the applicant alleged that she was being targeted by the Mungiki for her failure to repay a loan to one of their members, and she was a survivor of rape by the Mungiki. She challenged the Board’s finding that the Mungiki were no longer active by saying that it was unclear upon what COI the Board relied in concluding that the Mungiki were no longer active and by referring to a number of articles which allegedly revealed that the Mungiki were or might still be active.

20.As to the second ground, the applicant alleged that the Mungiki were known to have government ties and the government could not protect her. She therefore claimed that there was nowhere in Kenya where she could be safe.

Discussion

21.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 [2018] HKCA 524).

22.It is the Board’s finding of facts that the applicant’s claims had no credibility. The applicant gave conflicting evidence on a number of key issues, such as whether or not FW wanted the money repaid to him, whether the applicant reported the matter to the police, whether the applicant reported the matter to the local chief, and the likelihood of FW being able to locate her should she return to Kenya. Hence, the Board did not accept that the applicant’s claim to fear harm by FW or Mungiki members should she return to Kenya was credible.

23.The Board’s finding was also based on the applicant’s own evidence that she has had no contact with FW since 2010, that he had never harmed her or anyone in her family and that she did not believe he wished her to repay the money he gave to her.

24.When the Board put to the applicant that the COI indicated that the Mungiki group was no longer active, the Board must have referred to those COI materials contained in the Bundle of Documents prepared by the Director, which was before the Board (see paragraph 6 of the Board’s Decision). In the Director’s decision of 14 August 2018, there was a schedule listing out all the COI and materials. There is no reason to suggest that the Board was not referring to those COI materials when the question was put to the applicant. If the applicant was not sure about it, she could have asked the Board which COI it was referring to, but the applicant merely replied that she believed that they were still active.

25.Likewise, the applicant could have produced all those articles she mentioned in the grounds to the Board at the hearing, or asked for an adjournment to produce the same if they were not available then. The applicant was free to put forward arguments and supporting documents in support of her claim at the Board’s hearing. It is, however, not open to the applicant to adduce new evidence at this stage.

26.The same applies to the applicant’s assertions that the Mungiki were known to have ties with the government and that the Mungiki would kill Muslim women. These matters were not even raised before the Board. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

27.It is not clear what the applicant meant in her second ground that the Board engaged in “a flawed and unlawful Internal Flight Alternative assessment”. It seems that the applicant was referring to internal relocation. However, the Board did not consider availability of state protection and viability of internal relocation, and hence made no findings of the same. The Board just rejected the applicant’s claims and the matters giving rise to her claims for non-refoulement protection completely.

28.It is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

29.As it is the Board’s finding that the applicant did not have a genuine fear of harm or would face a real risk of ill-treatment from FW or the Mungiki members, it is therefore not necessary for the Board to consider the availability of state protection or internal relocation.

30.As aforesaid, the finding of facts relating to a non-refoulement claim is solely within the ambit of the Director and the Board. This court finds no reason to usurp the fact-finding power vested in the Director and the Board.

31.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.For reasons aforesaid, the Leave Application is dismissed.

Dated the 24^thday of June 2025

( Irene LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 24 June 2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 24 June 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 13164/18/8/434/K34 Director of Immigration Putative interested party’s ref. no.: QA T/C 2535/18 (formerly RBCZ 2002057/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)