Gaitan Hernandez Ardul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2949/2018

[2021] HKCFI 2140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2949 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 P. Li:

1.  Extension of time for application for leave to apply for Judicial Review be refused;

and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant came to Hong Kong on 16/10/2014.  He was allowed to stay until 14/1/2015.  He was arrested by the police for overstaying on 9/6/2015 [1]. He filed the non-refoulement claim in this case on 11/7/2015.  

2.He was in fear that he would be harmed or killed by Cordillera gangsters if he returned to Colombia.  He owed a debt to “A” who was a member of Cordillera.  He also refused to join Cordillera.

3.His claim was dismissed by the Director on 26/10/2015 [2] and 5/1/2017 [3].  His appeal to the TCAB was rejected on 23/7/2018.  He filed the leave application for judicial review of the TCAB decision on 21/12/2018.  He was about 2 months out of time.

Background [4]

4.The applicant was born on 15/9/1983 in Pereira of Colombia.  He had education for 8 years.  Before leaving Colombia, he had been running a stationery shop.  He took over the business from his father since 2013.  He was single.  His parents and siblings were in Colombia.  He had never been charged, arrested or imprisoned in Colombia.

5.About late 2012, he and his father borrowed USD $5,000 from “A” to renovate his house and shop[5]. He later learned that “A” was a member of Cordillera.[6]  The written loan agreement required him or his father to repay the principal and interest (15%) within 3 months.  At that time, his father paid extortion money of USD$100 bi-weekly to some Cordillera gangsters who were allegedly the assistants of “A”.  Since he took over the shop in 2013, business was not good.  He was unable to repay the loan.

6.One afternoon in 2013, two Cordillera gangsters came to his shop asking for repayment.  They threatened to kill him if he failed to repay.  He was not assaulted.  Since mid-2013, they came more frequently and abused him with foul language.  They threatened to beat him up.  They even raised the interest rate.

7.One afternoon in 2014, the same gangsters came for repayment.  As he could not repay, they assaulted him causing fracture of his right wrist.  He was taken to a hospital by his friend.  He had to undergo surgery.  He recovered in 6 months.  His father did not report to the police who were corrupt and associated with criminals.

8.At that time, he and his father decided to sell the shop and the business for USD$12,000 to repay part of the loan.  However, they still owed “A” USD$3,000.

9.During that time, he met some gangsters on the streets about 5 times. They asked him to join the Cordillera group.  He refused.  They threatened to kill him.  After discussing with his family, he came to Hong Kong on 14/10/2014 via China and Macau to seek asylum.

10.In October 2015, he learned from his mother that the gangsters were still looking for him.  The situation in Columbia was unstable.  There was a long standing civil war between the FARC and the government.  There were gangsters on the streets.  He did not feel safe in Columbia.

11.He could not relocate as the gangsters had a country-wide network. He could be located.  He did not want to trouble his siblings and parents albeit they were not harassed by any Cordillera gangsters.  The police were corrupted and could not protect him.  He had not sought assistance from the police before.  He was not persuaded by the COI which reported that the situation in Columbia had improved.

The decision of the Director

12.The Director based on the following to conclude that the future risk of harm from Cordillera gangsters was low:

(a)  The applicant was only attacked once resulted in fracture wrist.  In other occasions, he was just threatened verbally.  This showed that there was no real intention to seriously harm or kill him.  The ill-treatment did not amount to ‘a minimum level of severity’.

(b)  The dispute with the Cordillera gangsters was the default loan payment and his refusal to join the group.  It was not connected with any government officials of Colombia.

(c)  The applicant had not report to the police about any of the incidents. There was no evidence that the police would not assist him if he had reported. He had never sought assistance from the police before.

(d)  He did not know whether the Cordillera gangsters were connected with any political group.  There was no evidence that those incidents were instigated, consented or acquiesced by any government officials.

(e)  There were serious human rights problems in Colombia such as impunity, inefficient judiciary, corruption and discrimination. It was aggravated by rampant drug trafficking activities.  On the other hand, the Presidential Program for Modernization, Efficiency, Transparency and Combating Corruption continued to tackle corruption.  The investigative unit of the Supreme Court had targeted high ranking officials for abuse of power.  There were news reports revealing prosecution of corrupt police officers.  Complaints office was set up in Bogota against police abuse of power.  The Attorney General’s Office was responsible for investigating human rights abuses by security forces and the police.  The Director found that there was reasonable State protection.

(f)  The population in Colombia in 2015 was 46 million.  It was a country of an area over 1.1 million km ².  Given his experience, Bogota would be a reasonable alternative for relocation.  It would be very difficult for the Cordillera gangsters to locate him.  

13.The Director rejected his non-refoulement claim on BOR 3, persecution risk and torture risk grounds on 26/10/2015.

14.The applicant did not furnish further information in relation to BOR 2 ground.  Based on the existing information, the Director rejected this claim on 5/1/2017.

The decision of TCAB [7]

15.The adjudicator held a hearing on 19/12/2017.  He rejected the appeal on 23/7/2018.  The reasons were:

(a)  Torture risk

i.  The applicant sustained fracture wrist during an attack in 2014 despite the Cordillera gangsters had threatened him on many previous occasions.  In the latter, it was just verbal threat with no physical violence.  The injury sustained was not severe pain and suffering.  It was not within the ambit of ‘torture’.

ii.  The purpose of the threat and assault was to pursue the debt and for extortion of money.   It was not for the purposes set out in the definition of ‘torture’ under s.37U of the Immigration Ordinance.

iii.  There was no evidence that the gangsters were acting in any official capacity.  There was no official involvement.

iv.  There was reasonable State protection according to the COI.  There was no evidence that the police were unwilling to investigate.  There was no evidence of a consistent pattern of gross and flagrant violation of human rights which render the applicant personally at risk.

v.  The applicant had left Colombia for 4 years, there was no evidence that he was still targeted by the gangsters.

vi.  The applicant failed to prove that he was tortured.  There was no real chance that he would be subject to torture if returned to Colombia.

(b)  BOR 3 and BOR 2

i.  The injury did not amount to ‘a minimum level of severity’.

ii.  Given the background and reasonable State protection.  There was no real risk that the applicant would be subjected to ill-treatment if returned to Colombia.

iii.  There was no additional information on the BOR 2 claim.  There was no evidence that there would be arbitrary deprivation of life based on the existing evidence.

(c)  Persecution risk

i.  The problem between the applicant and the gangsters arose from the unpaid debt.  He also refused to join the gangsters.  These were not within the categories of persecution set out in the Refugee Convention.

ii.  There was reasonable State protection.  Since there was no real risk of persecution, the issue of relocation did not arise.

Judicial review

16.The applicant filed the leave application for judicial review on 21/12/2018.  In his supporting affirmation, he alleged that the decisions were unfair.  However, there was no specifics.

17.In judicial review, this court decides whether there is any error in law and procedures.  Whether the decision of the TCAB is irrational.  Finding of facts is the duty of the TCAB.  In general, this court would not interfere.

18.I agree with the adjudicator.  The applicant’s evidence failed to prove his claims.  In my judgment, there is no error of law or procedure.  The TCAB decision is reasonable.

19.The applicant was out of time in filing the leave application by about 2 months.  The applicant should have applied for extension of time.  He did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [8]

Conclusion

20.There is no explanation for the undue delay.  The substantive application is not reasonably arguable.  There is no reasonable prospect of success.  In the circumstances, there is no good reason in extending the time for the leave application.

21.I refuse leave for judicial review.

Dated 27^th day of July 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

Form CALL-1