Case Document

100%Judiciary

HCAL 2922/2018

[2021] HKCFI 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2922 of 2018

BETWEEN

	Characo Characo Genesis Haidee	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant left Venezuela on 22/1/2018. She entered Hong Kong on 22/2/2018 en route Cambodia and China. She claimed that she was invited by a church for sharing. She was allowed to stay until 23/5/2018. She overstayed and surrendered to the Immigration Department on 28/5/2018. She filed the non-refoulement claim in this case on 4/6/2018.

2.The non-refoulement claim was dismissed by the Director on 28/8/2018. Her appeal to the TCAB was dismissed on 11/12/2018. The applicant filed the leave application for judicial review on 19/12/2018.

Background

3.The applicant was born on 28/9/1991. Her family was in Estado Monagas, Venezuela. She had education up to tertiary level.

4.In 2008, she met her boyfriend in the university. They subsequently cohabited. They had a son and a daughter in 2011 and 2013. Around July 2017, she broke up with her boyfriend who left the family.

5.Around August 2017, she visited her sister nearby. Five robbers held everyone under gun point. The robbers took away some valuables and properties. No one was injured. Her sister reported the robbery the next day but the police did not take any action.

6.Around January 2018, the cousin of her boyfriend came to her house. He alleged that her boyfriend owed him USD$20,000 but there was no IOU. The cousin asked for the whereabouts of her boyfriend. The cousin also admitted that he robbed her sister as a repayment for the debt. The cousin also threatened to kill her if she did not repay the debt for her boyfriend. She reported to the police. She did not follow up the case.

7.She moved to her parents’ house. She decided to leave Venezuela for her safety. In the meantime, she received a message from a friend that the cousin had taken her belongings from her house.

8.She explained in the interview before the Director that she was not aware of the non-refoulement protection scheme. She just came to Hong Kong as a tourist.

9.In April 2018, her father met the cousin on the street. The cousin still threatened to kill her if she failed to repay. While she did not know much about the background of the cousin, she believed that he could locate her sooner or later. Venezuela was a dangerous place. She did not know there was any channel to complain against the police.

10.She feared that the cousin would kill her if she returned to Venezuela. However, her family was not injured.

The Decision of the Director

11.The Director pointed out the following to conclude that the level of risk of harm from the cousin was low:

(a) She was never harmed by the cousin. She could hide safely from the cousin. She could arrange a trip en route Colombia, Cambodia and China to Hong Kong. These were indicative of low risk of harm and that she was not affected mentally. There was no ill-treatment to a minimum level of severity.

(b) During the robbery, none of the robbers mentioned about the debt. The robbers did not harm anyone. There was no reason that they robbed her sister’s house. The threat by the cousin was about 5 months after the robbery. It was inexplicable that the cousin revealed his involvement.

(c) The applicant and his sister was not harmed during the robbery. Even if there was such a robbery, the intention was just to take money back. There was no intention to harm.

(d) There was no evidence to suggest that the cousin had the resources to locate her country wide. It was pure speculation that he could be so powerful.

(e) She delayed for 3 months before surrendering to the Immigration Department. She only filed her claim after that. She misrepresented to the Immigration officer at Lo Wu Checkpoint that she came for sharing in a church. The conduct was inconsistent with genuine fear as she claimed.

(f) There was no evidence that the police were unwilling to investigate the reports or reluctant to assist. The conduct of those officers she encountered was not sufficient evidence of systemic failure to discharge duties.

(g) There were COI reporting corruption and extra-judicial killings by the security forces. The government was not effective in tackling the problems. The police was also corrupt and inefficient. There was abuse of power. There were human rights abuses and societal violence. On the other hand, there were COI which showed measures to monitor police abuse and to improve efficiency. The Ministry of Interior, Justice and Peace oversaw most criminal investigations. There were police disciplinary council responsible for investigating police abuse of power. The Ombudsman’s office was responsible for monitoring human rights abuses in the country. NGO such as Transparencia Venezuela assisted in the prevention of corruption and facilitated complaints. News reports revealed that high ranking officials were arrested for corruption. There was reasonable State protection in Venezuela.

(h) The law permitted internal movement. Venezuela was a large country with a population of 31 million. Caracas and Valencia were possible options. It would be difficult for the cousin to locate her. It would not be unduly harsh for her to relocate. [1]

12.The Director found no evidence of ill-treatment amounting to ‘a minimum level of severity’. There was no ‘torture’ as defined under s. 37U. There was no official involvement. There was reasonable State protection and internal relocation options. Her fear was not within the ambit of persecution. It was a private dispute. All claims were rejected. [2]

The Decision of TCAB

13.The applicant attended an oral hearing at the TCAB on 28/11/2018. The applicant confirmed that the evidence in the appeal bundle was accurate. The adjudicator pointed out the following salient points: [3]

(a) She conceded that it was only her belief that the police took no action about the robbery of her sister.

(b) Her children were taken care of by her mother. They lived at her parents’ house which was about 5 minutes’ walk from her sister’s house. They were safe.

(c) She conceded that the cousin knew she cohabited with her boyfriend for over 9 years. The cousin knew that she had no means to repay the debt.

(d) She knew nothing about the background of the cousin. She was unable to explain why the cousin held her liable for her boyfriend’s debt.

(e) There was no evidence that the applicant had physical or mental suffering. There was no ill-treatment nor ‘torture’ under s.37U.

(f) There was no evidence that the police were unwilling or unable to protect the applicant. In reality, the applicant could provide very little information of the cousin to the police.

(g) There was no evidence that this case arose from a Convention reason.

(h) Given the evidence in this case, the issue of internal relocation did not arise.

14.The adjudicator rejected her appeal on all grounds.

Judicial Review

15.The applicant filed the leave application for judicial review on 19/12/2018. In her affirmation, she stressed that the decision of the TCAB was unfair. There was no specific unfairness alleged.

16.In my view, the case of the applicant only supports a private dispute on a debt. It cannot establish any claim warranting non-refoulement protection. There is no error of fact and law. The decision is reasonable.

Conclusion

17.The leave application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.

Dated the 25^th day of March 2021

	(Mike Mak)
	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 the Applicant’s 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 to the Applicant on 25 March 2021 Characo Characo Genesis Haidee Applicant’s ref. no: Nil.		Sent 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 25 March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13449/18/9/210/VEN3 Director of Immigration Putative Interested Party’s ref. no.: Q/A T/C 3077/18 (formerly RBCZ 10599/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Decision of the Director, §§11—24.

[2] Decision of the Director, §§25—38.

[3] Decision of the TCAB, §§25—65.

Cites 1 case

Cases cited in this judgment

Re Characo Characo Genesis Haidee

HCAL 2922/2018

High Court CFI09 Sep 2021

Cited by 1 case

Other judgments that cite this case

Characo Characo Genesis Haidee v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Court of Appeal23 Mar 2022

Other Judgments in This Case

Further hearings and rulings under HCAL 2922/2018

Re Characo Characo Genesis Haidee

High Court CFI09 Sep 2021