Case Document

100%Judiciary

HCAL 172/2019

[2021] HKCFI 3894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 172 of 2019

BETWEEN
	Anzola Sanchez Yesica Daniela	Applicant
	and
	Torture Claims Appeal Board	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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Colombia who entered Hong Kong as a visitor on 26 June 2017 with permission to remain up to 24 September 2017 when she did not depart and instead overstayed, and on 26 September 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Colombia she would be harmed or killed by her former boyfriend who was said to be a member of the terrorist group National Liberation Army (“ELN”) for leaving him and ending their relationship and/or by his fellow ELN members. She was subsequently released on recognizance pending the determination her claim.

2.The Applicant was born and raised in Supia, Caldas, Colombia. After leaving school she started a relationship with her boyfriend Luis who was a member of the ELN, a revolutionary armed group involved in military conflicts in Columbia for years and which has been branded as a terrorist group by the Columbian government.

3.However, the Applicant soon found Luis to be domineering and abusive towards her that she wanted to end their relationship by running away from him to return to her parents’ home, but when Luis came looking for her and made threats against her, the Applicant then fled to hide in her aunt’s place in Medellin and then to her friend in Rio Sucio, and on 17 March 2017 she departed Colombia for China, and from there she later travelled to Hong Kong on 26 June 2017 where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 27 September 2018 the Director of Immigration (“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 her 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 found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her former boyfriend or the ELN people upon her return to Colombia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats ever made against her by the ELN people while her problem with her former boyfriend was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Colombia with a large population of 47 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 young adult to move to other part of Colombia away from her home district in large cities such as Medellin where she had stayed before without incidents and where it would be difficult if not impossible for her perceived enemies to locate her.

6.On 10 October 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which she attended an oral hearing on 18 December 2018 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found no evidence even on the Applicant’s own case of any threats or risk from the ELN people, while her problem with her former boyfriend was a private personal dispute without any official involvement that state/police protection would be available to the Applicant upon her return to Colombia as well as reasonable internal relocation for her to safely move to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

8.On 17 January 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that the decision is unfair but without providing any particulars or elaborations as to how it is so or any other proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her 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 her 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 decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Colombia, there is simply no justification to afford her 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 her leave application.

Dated the 31^st day of December 2021.

(K.H. LI)
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 his 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 31 December 2021 Anzola Sanchez Yesica Daniela 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 31 December 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13876/18/10/218/COL33 Director of Immigration Putative Interested Party’s ref. no.: ImmD/CR T/C 3851/18 (Formerly RBCZ 77/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)