Castrillon Velasquez Andres Felipe v. Torture Claims Appeal Board

HCAL 161/2020

[2023] HKCFI 1453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 161 OF 2020

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Colombia who last arrived in Hong Kong on 10 February 2018 as a visitor with permission to remain as such up to 11 May 2018 when he did not depart and instead overstayed, and on 15 May 2018 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Colombia he would be harmed or killed by some drugs trafficking gangsters for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Andalucia, Colombia. After leaving school he remained living with his parents but ran his own clothing trading business which required him to frequently travel to China and Hong Kong to look for merchandises for his business in his home district.

3.In June 2017 while he was on such a business trips to China, the Applicant was informed by his parents that some members of the notorious drugs trafficking gang Los Rastrojos had come to their home demanding for “protection money”. To avoid any trouble from them, the Applicant agreed to pay them as long as his business could afford it.

4.However, as those gangsters kept returning and asked for more money, the Applicant in December 2017 stopped paying them, but after he heard that one of his cousins was attacked by those gangsters in February 2018, he suspected that it was a warning to him for refusing to pay the extortion money, and to protect his family he therefore resumed his payments to those gangsters.

5.Unfortunately, in June 2018 he lost his business and was unable to make any further payments to those gangsters, and when he started to receive death threats from those gangsters, the Applicant became fearful for his life, and so on in February 2018 he departed Colombia for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 March 2019 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 17 June 2019 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”).

7.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 those gangsters upon his return to Colombia as low due to the low intensity and frequency of past ill-treatment from them, that 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 Colombia with a large population of 48 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 adult with working experience to move to other part of the country away from his home district in large cities such as Santa Marta where it would be difficult if not impossible for anyone to locate him.

8.On 2 July 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 October 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found significant inconsistencies and implausibility in the Applicant’s evidence that it did not consider him to be a credible witness and doubted his claim of fear of harm from the Los Rastrojos gangsters that caused him to leave his home country to come to Hong Kong, that relevant COI show that the Los Rastrojos have since lost their influence and activities in many areas including the Applicant’s home district that it doubted that they would still have any adverse interest in the Applicant since his departure, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Colombia 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 15 January 2020 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 or in his supporting affirmation of the same date. 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.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 99 – 133 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.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 the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Colombia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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.

15.Furthermore, the Applicant recently field an affirmation requesting to withdraw his application as all his problems in his home country have now been resolved that he wants to go back home.

16.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 31^st day of May 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