Betancurth Sanchez Sergio De Jesus v. Torture Claims Appeal Board and Another

HCAL 3244/2019

[2020] HKCFI 2136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3244 of 2019

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Colombia who arrived in Hong Kong on 4 June 2012 when he was arrested for trafficking in a dangerous drug for which he was subsequently convicted and sentenced to prison for 10 years and 8 months, during which he on 13 February 2019 raised a non-refoulement claim on the basis that if he returned to Colombia upon discharge from prison he would be harmed or killed by the drug syndicate for losing the drugs due to his arrest. 

2.The Applicant was born and raised in Pereira Risaralda, Colombia.  After leaving school he had worked in various odd jobs, and in 2009 he started his own business selling garments, motor spare parts and mobile phones in Bogota.

3.During the running of his business he had been approached by a drug syndicate demanding extortion money to which he would always try to comply, but later in June 2012 the syndicate demanded that he should smuggle drugs for them to Hong Kong with death threats against him if he refused, and so on 4 June 2012 he smuggled their drugs to Hong Kong for which he was arrested, and was subsequently convicted and sentenced to prison for 10 years and 8 months, but in early 2019 when he heard from his family that the drug syndicate was looking to kill him for having disappeared with their drugs, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 March 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 30 April 2019 the Director of Immigration (“the 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 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”).

5.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 the drug syndicate upon his return to Colombia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reason for the drug syndicate to have any suspicion on him given the fact that it can be easily verified that he had indeed been arrested and sentenced to prison with the drugs being confiscated by the authority, that in any event state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Colombia with a large population of 48 million people spread across a vast territory of more than 1.1 million 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 Colombia away from his home district in large cities such as Barranquilla where it would be difficult if not impossible for the drug syndicate to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 30 August 2019 with legal representation from DLS before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board, and with submissions made on his behalf by his lawyer.  On 10 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found inconsistencies in the Applicant’s claim of threats from the drug syndicate to his family while he was in prison, that there was no reason for the drug syndicate to have any suspicion about the Applicant under the circumstances of his arrest, and that in any event with state/police protection available as well as reasonable internal relocation within Colombia for him to return safely to other areas without any risk of being located by the syndicate that his claim for non-refoulement protection failed on all applicable grounds.  

8.On 31 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely repeated his claim that he will be killed if returned to his home country but without putting forward any proper grounds for his intended challenge.  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.

9.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.

10.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 in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Colombia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

11.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.

12.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 31^st day of August 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