Rodarte Soto Alfredo Omar v. Torture Claims Appeal Board

HCAL 1067/2022

[2023] HKCFI 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1067 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 10 January 2022 refused; and

2.  The application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Mexico who last arrived in Hong Kong on 22 January 2020 as a visitor with permission to remain as such up to 5 July 2020 as extended when he did not depart and instead overstayed, and was arrested by police more than 7 months later on 11 February 2021.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Mexico he would be harmed or killed by some local gangsters for having witnessed their crime. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Zacatecas, Mexico. After leaving school he worked as a mechanic in his home district to make his living.

3.One evening in November 2017 he went out with his friends for drinks in a local bar in Zacatecas, and later upon coming out from the bathroom, he saw his friends arguing with some men who then pulled out their guns and shot his friends. The Applicant was shocked and fled from the bar to take shelter in a friend’s place.     

4.Later when he was informed by a friend that 3 of his friends had died from the shooting in the bar, and that those gunmen were gangsters from a local gang and were looking for him everywhere for having witnessed the murder of his friends, the Applicant felt it was no longer safe to remain in Mexico, and so in October 2019 he departed for Spain and China, and from there he later travelled to Hong Kong where he subsequently overstayed, and after his arrest by the police some 7 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 30 July 2021 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local gangsters upon his return to Mexico due to the absence of any past ill-treatment from them, that there is no reliable evidence that they were looking for him or were even aware of his presence at the bar or had witnessed the killings, 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 Mexico with a large population of 130 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Mexico City where it would be difficult if not impossible for anyone to locate him.

7.On 13 August 2021 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 21 October 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 January 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those gangsters that caused him to leave his country to come to Hong Kong, which was further undermined by his failure to raise his claim upon first arriving in Hong Kong until after his arrest by the police some 7 months later that it did not accept his claim as credible that he had left Mexico as a result of being targeted by some gangsters for having witnessed their crime or that he would face any risk of harm as claimed upon his return to Mexico, and concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 11 October 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board had misdirected itself and/or failed to give sufficient reasons as to the Applicant’s source of fear;

(2) That the Board erred in law in assessing internal relocation alternatives in failing to identify the link between the agents and persecution and the state;

(3) That the Board erred in law in assessing the Applicant’s risk of harm by engaging its own speculation of the persecuting agents;

(4) That the Board failed to take account and/or cherry-picked COI materials in assessing the availability of state protection.  

10.By then the Applicant was however already out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.As the last day of the 3 month-period for him to file his Form 86 fell on 10 April 2022, the Applicant was therefore some 6 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of 6 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.    

13.As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just vague and bare assertions of his with a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision on assessing of his claimed risk or the availability of state protection or internal relocation to the Applicant, or in what way did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

14.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.

15.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 31 – 60 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.  

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

17.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.

18.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems in his home country have been solved and that he now wants to return to Mexico as soon as possible.

19.In the premises, as I am for the given 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 further problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 14^th day of July 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