Velasquez Gutierrez Elizabeth Cristina v. Torture Claims Appeal Board

HCAL 1820/2019

[2023] HKCFI 1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1820 OF 2019

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 37-year-old national of Colombia who arrived in Hong Kong on 9 November 2016 as a visitor with permission to remain as such up to 7 February 2017 when she did not depart and instead overstayed, and on 8 February 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Colombia she would be harmed or killed by some local gangsters over their dispute with her former boyfriend. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Quindio, Colombia. After leaving school she worked in a beauty salon in her home district, and in 2002 she met and started a relationship with her boyfriend Francisco who was however secretive about his job or occupation, and that he had to travel from time to time but without disclosing any details to the Applicant.

3.One day in mid-2014 the Applicant was informed by Francisco’s sister that he had been killed by some gangsters over some dispute, and soon thereafter the Applicant started to receive phone calls from men claiming to be from a local gang known as the Black Eagle demanding for the return of drug money which Francisco had taken from them, and as they suspected that Francisco had hidden the money with her, they threatened that they would kill her too if she failed to hand over the money to them, and despite her repeated denial to have anything to do with the money, the threatening phone calls persisted.

4.One day in early 2016 while walking on the street the Applicant was struck on the head by someone from behind and lost consciousness, and was subsequently taken by some passer-by to the hospital for treatment.

5.Upon her discharge from hospital, the Applicant became fearful for her life as she suspected that the attack was carried out by those gangsters of the Black Eagle, and so in January 2016 she fled to Ecuador, but after another attack by some unknown men on the street, she returned to Colombia in July 2016, and on 10 October 2016 she departed Colombia for China, and from there she later travelled to Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 30 January 2018 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 her 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 local gangsters upon her 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 47 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 areas of the country away from her home district in large cities such as Bogota where it would be difficult if not impossible for anyone to locate her.

8.On 12 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 16 April 2019 without any explanation, and that the Board proceeded to deal with her appeal in her absence and on papers. On 27 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim earlier provided to the Director that it wanted to raise with her in her appeal hearing but which she failed to attend so as to explain or clarify those issues to the Board that it was not satisfied that the Applicant had established her claim of fear of harm from those local gangsters that caused her to leave her country to come to Hong Kong, or why she could not seek state or police protection which would be available to her upon her return to Colombia or why she could not safely relocate to other part of the country away from her home district without any risk of being located that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

10.On 2 July 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Applicant was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submissions for her appeal before the Board;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculation that it is safe for her to return to her home country.

11.These are however all just some vague and bare assertions of the Applicant with a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner, or what source of news or COI relied on by the Board were not officially recognized or were hearsay or outdated, while it is clearly factually incorrect for her to complain of not provided any oral hearing or to be given any opportunity to put forward her submissions when the record shows that she failed to attend the scheduled oral hearing on 16 April 2019 before the Board without any explanation. 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 her intended challenge or any merits in her intended application.

12.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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Colombia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK vJenkins & 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 has recently filed an affirmation requesting to withdraw her application as her problem in Colombia has been solved and that she now wants to return to her home country.

16.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 her latest confirmation of no problem returning to her home country, I accordingly dismiss her leave application.

Dated the 2^nd day of August 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