Gomez Mendoza Yesica v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2190/2018

[2022] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2190 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her 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 national of Colombia.  She entered Hong Kong on 24 September 2013 as a visitor.  Nevertheless, she did not depart after her application for extension of stay was rejected and she overstayed since 7 March 2014.  On 19 October 2014, she was arrested by the Hong Kong police for theft.  On 23 December 2014, she lodged a non-refoulement claim.  The applicant’s claim was on the basis that, if refouled, she would be harmed or killed by the Fuerzas Armadas Revolucionarias de Colombia, alias Revolutionary Armed Forces of Colombia (“FARC”) because she was asked to reveal her partner’s whereabouts.   

5.According to the applicant, from July 2012 to 7 May 2013, she had three encounters with FARC members which were all traumatizing.  In the first incident in July 2012, the FARC members set a fire on the street which damaged her house and killed her then partner and daughter. In August 2012, she was evicted out of her friend’s house by FARC members and, in the third incident, she was verbally threatened by the FARC members before she left Colombia on 7 May 2013.  Thereafter in August 2016, her partner Jorge was arrested in Brazil for trafficking drug for FARC.  Since then, she was threatened by some drug dealer to reveal Jorge’s whereabouts.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out in paragraph 7 of the Director’s Decision and paragraph 11 of the Board’s Decision described below.

The Director’s Decision

6.The Director considered her 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 a Notice of Decision dated 20 July 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of harm against her from the FARC members or the unknown drug dealer upon refoulement was assessed to be low and their behaviors showed no real intention to harm her seriously [16]-[28]; that state protection would be available to her [29]-[37] and that internal relocation was available to her [38]-[44].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  An oral hearing was scheduled on 13 June 2018, during which the applicant requested an adjournment for her to seek legal assistance.  Having considered holistically the circumstances of the case, the Board refused to grant the adjournment [12]-[18]. The Board considered the applicant’s reasons for not getting legal representation before the hearing notwithstanding she had plenty of time to do so. Her explanation that her sister in the US did not have money but now had money to assist her was not accepted. The Board also considered that the applicant could have applied for free legal assistance long before the hearing. However, the Board took the view that the applicant was not entitled to free legal assistance at all stages of the proceedings even high standard of fairness was applied, citing Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Pawsan Shibu Lal, [2018] HKCA 249.  To adjourn the hearing would clearly delay the process.  In any event, the adjudicator was of the view that there would not be prejudice to her as she would only be required to give evidence on the facts of her case.

9.The Board also declined to exercise discretion to give the applicant further time to obtain documents [21]-[25].  The applicant wanted to obtain death certificate of her daughter in Colombia. The Board considered that the applicant was aware of the document for over one year and she was not certain if she could obtain the document. In the circumstances, the Board decided not to adjourn the hearing for her to obtain the death certificate, which she was uncertain if it would be available.

10.The Board also considered the birth certificate adduced by the applicant, which showed that Jorge was the father of the child.  It accepted that the applicant’s father and brother were not killed and were living in Colombia and that the applicant had never sustained any injuries inflicted by the FARC [27]-[30]. 

11.With the assistance of an interpreter, the applicant answered the Board’s thorough cross-examination in relation to her fear of harm from the FARC members.  The Board observed that the applicant provided inconsistent accounts as to the details of the material aspects of her claim.  For example, the applicant’s birth place, the house in which she lived with her former partner and where her former partner and daughter died as well as the information about her siblings [36]-[84].  In addition, the Board noted that the applicant was never harmed by the FARC in the past [85].  Given the problematic evidence, the Board refused to accept the applicant’s claimed fear of harm from the FARC members [86].  In passing, the Board also found that the FARC had reached a peace accord with the government and there was no real risk of harm if she was refouled [87]-[88].     

12.Insofar as her claimed fear of harm from the drug dealer, the Board also noticed that she provided different version of events at the hearing with those stated during the interview before the Director [89]-[97].  Further, the Board found that she failed to provide any reasonable explanation for these inconsistencies and that she failed to provide any documentary evidence, such as documents proving the alleged threats that she received via emails or the bank account provided by the drug dealer for her to send the extorted money. Viewed the evidence in its entirety, the Board found that her claim of receiving threats from email or phone unsubstantiated; her evidence was rejected in its entirety and she had invented the story to bolster her claim [98]-[113].  For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal [114]-[128].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 10 October 2018 for leave to apply for judicial review of the Board’s Decision.

14.In her affidavit in support of her application, the applicant stated:

“I want to Judicial Review the refusal decision of refusal of my Appeal from Torture Claims Appeal Board/Non-Refoulement Claims Petition Office. Their decision is unfair and unreasonable.”

DISCUSSION

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

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

18.I note that the Board had turned down her request for an adjournment of the hearing for her to obtain legal representation and to obtain the death certificate of her daughter in Colombia, which may be infringing the principle of procedural fairness for the applicant.  I have taken into account the factors below to determine whether this will give the applicant a realistic prospect of success in her intended judicial review of the Board’s Decision:

(1)   the applicant has not raised this ground in her affirmation in support of this application;

(2)   there had been plenty of time for the applicant to apply for free legal representation, which she did not do;

(3)   there was no evidence to show that her sister had the means to support her for the legal expense, nor was there any evidence that her sister was unable to afford until the time near the hearing and the reasons therefor;

(4)   the hearing would be delayed for a considerable period of time if it were adjourned;

(5)   the Board found against her not because of legal issues, but only on the factual evidence, being the inconsistencies between her evidence before the immigration officer and before the adjudicator, and legal representation would not advance her case on the facts alone;

(6)   as to obtaining the death certificate, the Board considered that it had been over a year since the applicant first expressed that she wished to obtain documents relating to her daughter and she was uncertain whether the documents would be available even if the hearing was adjourned;  

(7)   in the Director’s Decision, the Director found that even if the applicant’s story were true, the alleged threats and perceived risk of ill-treatment by the members of the FARC/drug dealers were only due to personal or private disputes and the government of Colombia was not involved [§29 of the Director’s Decision] and therefore state protection was available to her;

(8)   the Director also found that even if the applicant’s story were true, it was localized in her home areas and she would be safe to relocate to somewhere else such as Bogota [§§41-43 of the Director’s Decision]; and

(9)   there was no dispute or evidence to contradict the Director’s Decision on the issue of state protection and internal relocation from the applicant.

19.I also note that the Board’s reference to the principle of the applicant being not entitled to free legal advice at all stages of the proceedings may not be relevant to the case before the Board.  The applicant was asking for an adjournment for obtaining legal advice at her own expense.  She was not complaining of not having free legal representation or advice. But I find that this issue will not do injustice to the applicant’s case.

20.For the reasons above, I find that the applicant does not have any realistic prospect of success in her proposed judicial review.

CONCLUSION

21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 23^rd day of February 2022

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