Soplapuco Matute Manuel Andres v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1239/2018

[2021] HKCFI 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1239 OF 2018

BETWEEN

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 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 22 June 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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Peruvian national. He came to Hong Kong on 15 November 2011 as a visitor. He overstayed and surrendered to the Immigration Department on 23 November 2011. On 24 October 2012, he lodged his claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with the Immigration Department. His claim was taken as torture claim under part VIIC of the Immigration Ordinance, Cap. 152 (“the Ordinance”).

5.He claimed that if refouled, he would be tortured by the indigenous people and the drug traffickers in Lima, Peru. This was because he was accidentally involved in a political conflict between the indigenous people and the government. The drug traffickers are behind the indigenous. He was a witness of the conflict in Tarapato near his home in Lima. The indigenous people said he was a coward for not fighting the government with them. He was then threatened by letters from the indigenous people. He came to Hong Kong for protection. Details of the incidents are set out in pages 3 to 6 of the Director’s Decision described below.

The Director’s Decisions

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

a.  risk of torture under Part VII C 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”).

7.By Notice of Decision dated 24 April 2013 (“the Director’s Decision”), the Director refused his claim on Torture risk for the reason that his claim was not substantiated. The Director found that even if his evidence were accepted, which the Director did not accept [pg.12], there was no risk of torture. [pg.10]

8.By Notice of Further Decision dated 19 July 2017 (“the Director’s Further Decision”), the Director considered his claim on BOR2 risk, BOR 3 risk and Persecution risk and found that the level of risk of serious harm from the indigenous people and the drug traffickers upon his return to Peru was assessed to be low [16]; that state protection was available to him [20] and internal relocation was an option open to him [26].  He was also unable to establish a personal and real risk of his right under the Hong Kong Bill of Rights being violated upon his return to Peru. [37].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and Further Decision. He attended the hearing before the Board on 23 April 2018.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision and Further Decision for the reasons as set out below.

(1)   The Board found that the applicant was not a credible witness as his evidence was inconsistent and implausible. [49]

(2)   The Board did not accept that he would face a real risk of proscribed harm from any indigenous groups or drug traffickers, Shining Path, MRTA and/or the Peruvian authorities if he returned to Peru. [50]

(3)   For the reasons above, the Board rejected his claim on the risks set out in paragraph 6 above.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he said that he was unable to return to his home country Peru because he was being sought by a mafia/terrorist group who are threatening his life.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.It is obvious that since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim.

16.His ground in support of this application does not assist his application.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.There is no evidence that shows that the applicant has any reasonable chance of success in 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 14^th day of April 2021

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