Arias Rios Yessica Andrea v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2191/2018

[2022] HKCFI 2493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2191 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 3 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 application is to be dealt with 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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Colombia. She entered Hong Kong on 10 June 2016 and was permitted to stay as a visitor until 26 June 2016. She departed Hong Kong for Macau and returned on 27 June 2016. She was permitted to stay until 23 July 2016. She did not depart and had overstayed since 24 July 2016. On 27 July 2016, she surrendered to the Immigration Department. On 14 November 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend Daniel Torres Montes (“Daniel”).

5.According to the applicant, she met Daniel in 2006 and fell in love with him. Daniel belonged to a rebel group and, whenever he took drugs or alcohol, he became abusive. Unable to tolerate the abusive behaviors, the applicant wanted to break up with Daniel and thus started to help her family for the electronic accessory business. In 2013, after she was assaulted by Daniel, she reported to the police. The police made a prohibition order to prevent Daniel from approaching her. Nevertheless, he was not arrested. In around 2016, the couple broke up. She came to Hong Kong to explore her accessory business. In June 2016, Daniel visited her mother’s house and demanded for the applicant’s whereabouts. He also attacked her brother and threatened her family members. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 9 of the Notice of Decision dated 30 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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.The applicant did not attend the screening interview before the Director due to her illness. The Director therefore determined her claim on her non-refoulement claim form and on her clarifications in response to a list of questions. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) Daniel’s influence was at most localized [16]; (iii) state protection would be available to her [17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 2 May 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [6].

9.The Board noticed that the applicant was not interviewed and that the information provided by her was limited. It also noted that the Director only referred to the general information in Colombia instead of those specific to the applicant’s claim [22]. Having considered the applicant’s evidence and the relevant country of origin information (“COI”) [28]-[35]; [36]-[50], the Board made the following findings.

10.It was plausible that the applicant was a victim of domestic violence [24]. However, the Board considered that the applicant’s evidence on the material aspects was vague and fundamentally inconsistent [37]. For example, she provided different names for the alleged ex-boyfriend [39]-[41]. She also gave different time periods of her relationship with Daniel [42]-[44]. Further, she contradicted her own evidence as to Daniel’s background [45]-[46]. Since the applicant based her claim on the abusive conducts of Daniel, these inconsistencies seriously undermined her credibility [47].

11.For the above reasons, the Board found that she was not a witness of truth and rejected her claim. The applicant’s appeal was therefore dismissed.

Application for leave to apply for judicial review of the Board’s Decision

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

13.In her affirmation in support of her application, the applicant said the Board’s Decision is unfair and unreasonable.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.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.”

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

17.The grounds in paragraph 13 are only her bare assertions without any evidence in support. There is no valid reason to challenge the Board’s Decision from the applicant.

18.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.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.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 11^th day of August 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