Rincon Marin Wilder Esneider v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 967/2019[2022] HKCFI 3194

Court

High Court CFI

Date18 Oct 2022

Judge—

Case Document

100%Judiciary

HCAL 967/2019

[2022] HKCFI 3194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 967 OF 2019

BETWEEN
	Rincon Marin Wilder Esneider	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	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 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.The applicant applies for leave to apply for judicial review of the Decision dated 4 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed and the applicant attended on 27 September 2022.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, 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. He entered Hong Kong on 18 November 2016 as a visitor and was permitted to remain until 16 February 2017. He did not depart and had overstayed since 17 February 2017. On 17 February 2017, he surrendered himself to the Immigration Department. On 2 March 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of an armed group named La Terraza (“LT”).

5.In brevity, in around mid-2014, the LT was in power in the applicant’s villages. They printed notices to evacuate the villagers, who would be killed in the case of non-compliance. The applicant reported the LT’s wrongdoings to the police which led to the arrest of the LT’s leader. The leader was made aware of the applicant’s report and started posting death threats to him. Meanwhile, the LT members also threatened the applicant’s family in a shooting incident, and also killed the applicant’s friends for the applicant’s whereabouts when he hid in other villages. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 April 2018 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:

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

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the circumstances of the event indicated that LT had no real intention to cause harm or even kill him [14]-[16]; (ii) state protection would be available to him [17]; and (iii) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. Having reviewed the documents, including the country of origin information (“COI”), and the relevant legal principles, the Board decided that the applicant’s appeal could be fairly disposed on paper without an oral hearing [17]-[21].

9.The Board recapped the applicant’s claim and his personal background [22]. It noticed that the applicant and his family had never suffered any physical harms; that there was no evidence that the LT had targeted the applicant and his family members; and that the detention of the leader of LT after the applicant’s report showed that the state protection would be available [24]. Further, the COI indicated that the Colombian police was reforming to enhance the work efficiency [33]. As a result, the applicant’s claim on the ground of Persecution risk failed. For the same reasons, his claim on the remaining grounds also failed. In any event, internal relocation was a viable option [45]-[46]. In light of these findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant set out the grounds below.

(1)  The Board acted in a procedurally unfair manner. He was not given a hearing where he could make his submissions.

(2)  The hearing bundle was served some 6 days before the hearing. The documents therein are in English. He did not have sufficient time to prepare for the hearing as he was not good at English and there was no interpretation service for him. However, he had answered all the questions with honesty.

(3)  The Board had relied upon on the sources of news which is not officially recognized or is simply hearsay. It has also relied on some cases which are outdated considering the dramatic changes.

(4)  The Board had unlawfully fettered its discretion by refusing the appeal on the ground that it was not satisfied with the requirement.

(5)  The Board’s decisions are unreasonable or irrational as it failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he just asked for more time to stay in Hong Kong.

14.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.”

15.As to the grounds set out in paragraph 11 above, ground (1) fails as the Board was entitled to determine the appeal without a hearing under the Ordinance and the applicant has not shown what submissions he intended to make at the hearing to clarify his case. Ground (2) does not succeed as he said that he was able to understand the questions and he had answered them with honesty. There is no obligation on the Board to provide him with interpretation service as held by the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019. Grounds (3), (4) and (5) are only his opinions or assertions without any evidence in support.

16.There is no valid reason to challenge the Board’s Decision.

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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 18^th day of October 2022

(Chung Lai Fan, Christine)
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 the Applicant’s 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 18 October 2022 Rincon Marin Wilder Esneider 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 18 October 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11476/18/5/61/GOL21 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1027/18 (Formerly RBCZ 11050/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)