Choi Jaemyoung v. Torture Claims Appeal Board

HCAL 987/2022

[2023] HKCFI 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 987 of 2022

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of South Korea who last arrived in Hong Kong on 27 April 2015 as a visitor with permission to remain as such up to 26 July 2015 when he did not depart and instead overstayed, and was arrested by police more than 6 years later on 7 September 2021 for which he was subsequently convicted for breaching his conditions of stay and was sent to prison for 4 months. After his release from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to South Korea he would be harmed or killed by a local gang in his home town for taking their money but failed to deliver their illegal drugs to Hong Kong. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dae Gu City, South Korea. After leaving school he served in the army for 2 years before travelling to Perth, Australia in 2009 to study for a diploma in management, during which he met a girl from Hong Kong in her working holiday and subsequently formed a relationship with her.

3.After his girlfriend had returned to Hong Kong, the Applicant visited her in March 2014 and stayed at her home until March 2015 when they decided to get married later in the year.

4.The Applicant therefore returned to his home in South Korea to collect his things and to borrow money for the wedding, during which a high school friend who happened to be a local gangster dealing in various illegal activities including drug trafficking offered to pay him a large sum for delivering some package to Hong Kong in a flight planned and paid for by his friend, to which the Applicant agreed and accepted the money from his friend.

5.However, upon receiving the package the Applicant became concerned that it could be narcotics which would put him in big trouble if caught by police, and so he just threw it away and fled to Seoul without taking the arranged flight, and on 25 April 2015 he departed South Korea for Hong Kong to meet up with his girlfriend as planned.

6.The Applicant then changed his mobile phone to avoid any further contact with his gangster friend as he knew that he and his gang would be looking for him everywhere, and to avoid placing his girlfriend at such risk he did not go ahead with their planned marriage, although he did continue with their relationship in Hong Kong until they eventually broke up in 2016.

7.Sometime in 2017 he was informed by a friend in his home town in South Korea that his gangster friend and his gang had spread words that they would not spare any efforts to track him down and kill him for betraying them and as a warning to everyone, and so he was afraid to return to South Korea and went into hiding in Hong Kong, and after his eventual arrest by the police in 2021, he then raised his refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 11 January 2022 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 his 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the local gang upon his return to South Korea as low due to the low intensity and frequency of past ill-treatment from them, that in any event in the absence of 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 South Korea with a large population of 51 million people spread across a vast territory of more than 99,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Busan where it would be difficult if not impossible for those gangsters to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 7 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 August 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board accepted the Applicant’s claim of fear of harm from the local gang over his failed drugs trafficking arrangement but found in the absence of any official involvement that state/police protection would be available to him upon his return to South Korea as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by those gangsters that his claim for non-refoulement protection failed on all applicable grounds.

12.On 22 September 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date and his subsequent written submissions he merely repeated his claim as before that his life would be in danger in his home country but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge.

13.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.

14.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of South Korea, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 his leave application.

Dated the 10^th day of February 2023.

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