Seclen Briceno Felix Brayar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1736/2018

[2020] HKCFI 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1736 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Director of Immigration (the “Director”) with the Board as proposed respondent and adding the Director as interested party.

The applicant

4.The applicant is a Peruvian national.  He came to Hong Kong on 6 June 2010 as visitor and was permitted to stay until 6 July 2010.  He lodged a non-refoulement claim on 21 June 2010.  On 19 June 2015, he was arrested for breach of condition of stay.

5.He claimed that if refouled, he would be harmed or killed by the family members of Rojas Perez Balerio (Rojas) because they suspected that his father was related to the disappearance of Rojas and he also had left the Tupac Amaru Revolutionary Movement (MRTA).

6.His father and Rojas were friends, Rojas belonged to MRTA and his father was a gang leader, who left MRTA in 2001 or 2002.  After that, Rojas disappeared.  The Rojas’s family blamed his father and attempted to kill him.  His father then went to Shanghai in China.  The applicant and his mother moved from place to place on his father’s advice.  They settled in Chiclayo.  In 2007, two men accosted him and called him a traitor.  They made a threatening gesture of a firearm at him.  On 9 February 2008, two unknown men on a motorcycle accosted him and threatened him that he would be killed.  He ran away and reported this matter to police.  Police did not assist him.  On 2 March 2008, he was attacked by two unknown men when he walked out from a restaurant in Chiclayo.  They punched and kicked him, ramming the back of his head on the ground.  He woke up in a hospital.  He had suffered a blood clot at the back of the head, his arms were bruised and his face cut.  At his father’s advice, he joined his father in Shanghai on 22 March 2008.  He moved between Shanghai and Hong Kong.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 31 October 2017 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated.  The Director found that the level of risk of harm upon his return was assessed to be low [11]; that state protection would be available to him [16] and internal relocation was an option open to him [17].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 25 April 2018.  The Adjudicator of the Board raised questions with the applicant.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.In its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 52-57, it found that even if the applicant’s account of fact was true, there was no evidence on which it could find that there was a risk to him from the Rojas family or the MRTA if he returned to Peru. [58].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavits in support of his application, he said that he was not satisfied with the Board’s decision and that he considered that he would be in danger if he returned to Peru.

DISCUSSION

14.It is obvious that the Board had considered his evidence and found that he had no evidence in support of his application.  This is a finding of the facts of the case.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The grounds that he has raised in support of this application are his opinions without any evidence or specifics in support of them.

17.There is no evidence to show that the Board erred in the application of the laws to his case.

18.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 31^st day of July 2020

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