Rodriguez Carreno Samuel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1741/2024

[2025] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1741 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 3 October 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 March 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 November 2013 and Notice of Decision dated 13 July 2018 (respectively, the “2013 Notice” and the “2018 Notice”, collectively, the “Notices”).

2.The leave application was filed 6 months and 29 days after the date of the Decision sought to be reviewed. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. By 3 October 2024 when his application was filed, it is almost 4 months out of time. Extension of time to file the leave application is required.

3.In considering whether to grant extension of time to file a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (v) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1]. Merits is usually a very important factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone without consideration of merits.

Extension of time to file the leave application

4.Despite clear directions in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither. At the first hearing before this Court on 13 December 2024, the Court attempted to explore the reasons for the delay with him. He gave a very ludicrous explanation.

5.He admitted receiving the Decision in Tai Lam Correctional Institution (“Tai Lam”) in March 2024 while he was serving his sentence for trafficking in dangerous drugs. After serving that sentence, he was transferred to Tai Tam Gap Correctional Institution (“Tai Tam Gap”) on 14 August 2024 and held under immigration detention. In essence, his explanation is that he is illiterate and could not read and understand the Decision which is written in English, he did not know how to apply for judicial review and he could obtain no assistance from the prison officers, whether in Tai Lam or Tai Tam Gap. He admitted there are two welfare officers stationed in the correctional institutions on a full time basis and he could freely access them anytime. However, the welfare officers in Tai Lam just dragged their feet, gave him no assistance on how to apply, told him that he needed a lawyer to apply, and that he should wait until he was transferred to Tai Tam Gap when help would be available. He complained to the superintendent, but the superintendent took no follow up action. He complained many times to the Commissioner of Correctional Services, the justices of peace visiting the prison, the Independent Commission Against Corruption and the Ombudsman. He was declined assistance for want of evidence. He said he had documentary evidence to support these very serious and ludicrous allegations. The Court therefore adjourned the hearing to 23 December 2024 for him to produce the documentary evidence. Another subsidiary reason is that he was suffering from lung cancer, tuberculosis and pain in his leg during the material time which prevented him from making the leave application.

6.At the adjourned hearing, he produced the following documents in support of his explanation:

(1)  a copy of a letter dated 26 October 2022 from the Private Secretary to the Chief Executive;

(2)  his application dated 25 October 2024 requesting Tai Tam Gap to obtain a copy of his various medical reports from Queen Elizabeth Hospital;

(3)  his application dated 16 December 2024 to Tai Tam Gap requesting for:

(i)  “a copy of the data when [he applied] for the JR Form in Tai Lam Correctional Institution”;

(ii)  “all the request I make to welfare officer in Tai Tam Gap for my form for JR and for help on it”;

(iii)  “data when I talk to superintendent when welfare refuse to help me 2 times I talk supperintenedent (sic) data when I request to welfare about my medical reports data when the Tai Lam Correctional Institution give to me the bundle of desicion (decision?) of my apail (appeal?)”; and

(iv)  “copy of my sumicion (submission?) of all my request on Tai Tam Gap including my application for JR Also for my food change and for my underchave”;

(4)  a Data Access Request Form issued by Tai Tam Gap received by the Applicant today requesting him for particulars of the data requested under items (2) and/or (3) above;

(5)  a blank Form 86 and blank Form 86A; and

(6)  a copy of the Form 86 filed with Court.

7.The Applicant reiterated that between March and October 2024, he visited the welfare officers twice or thrice a week, that every time he was told to wait or to wait until he was transferred to Tai Tam Gap. Despite the fruitlessness of the visits, he continued visiting the welfare officers two to three times a week asking for assistance. It was only until end of September 2024 that he had help from an inmate in Tai Tam Gap to complete the Form 86 for him, which was then filed by the welfare officer with the Court. I now turn to the documents.

8.Item (1) is a letter from the Private Secretary to the Chief Executive referring to the Applicant’s letter, presumably complaint, dated 12 October 2022. The Private Secretary said she had related the matter to the Security Bureau and a reply will be given to the Applicant in due course. There is nothing to suggest that the Security Bureau would have ignored the request of the Chief Executive, through his Private Secretary, to respond to the Applicant’s letter. The Applicant having kept the letter since October 2022, there is no reason to doubt he would not have kept a copy of the replies thereafter, if he had received them. Whatever the situation, as Item (1) is related to events which occurred before 12 October 2022, it could offer no explanation to the delay which commenced after March 2024. The Court notes that all his allegations about complaining to the Commissioner of Correctional Services, the superintendents of Tai Lam or Tai Tam Gap, the visiting justices of peace, the Independent Commission Against Corruption and the Ombudsman are unsupported empty allegations. These are all very reputable public officers or statutory bodies and it is very doubtful that they would not have responded, not even with an acknowledgement of receipt, had a complaint been received by them. It is the Applicant’s case that he had received replies from these public officers or bodies and that his complaints were not processed for want of evidence. If he had kept an old document from the Private Secretary of the Chief Executive dated October 2022, there is no reason why he would not have kept such responses from these public officers or bodies. The absence of documentary support suggests his allegations are just empty irresponsible exaggerations. His complaints are all lacking in particulars and timing. It is not even clear if they are relevant in terms of contents and timing. It would be futile to explore these complaints further for the purpose of supporting his explanation for delay. His assertions reflect his tendency to exaggerate for the purpose of advancing his goal.

9.Item (2) is a request to Tai Tam Gap requesting for a copy of all his medical reports from Queen Elizabeth Hospital. He did not produce the reports. Presumably, the reports are to support his claim that he was suffering from lung cancer, tuberculosis and pain in his leg which prevented him from preparing the Form 86. The request was made on 25 October 2024. The reports may not have been available within the short span of time available. Even assuming he was suffering from those illnesses, there is no evidence that his condition was so serious as would prevent him from even filling in the Form 86 or preparing the supporting affirmation. On the other hand, it is his evidence that he was able to visit the welfare officers twice or thrice a week asking for assistance. His condition could not have been so feeble as to make it impossible to fill in the Form 86. The real issue is whether he was minded to fill in the form and not whether he was so feeble as to make it impossible for him to do so. He could have at least produced appointment cards to support his claim that he was receiving regular treatment at the material time, but he did not. His claim about his medical conditions is just a convenient excuse. It would serve no purpose to wait for the medical reports. The application has to proceed with the procedural economy it deserves.

10.Item (3) is the Applicant’s request to Tai Tam Gap for his own personal data. The first sub-item under Item (3) is related to his personal data when he applied for a blank Form 86 in Tai Lam. The second sub-item under Item (3) is related to his personal data when he applied for the blank Form 86 in Tai Tam Gap and the refusal of assistance by the welfare officers. On his own evidence, he admitted receiving the Form in late March or early April 2024 when he was in Tai Lam (see paragraph 19). Nothing arises from the fact whether and when he was given a copy of the blank Form 86 in Tai Lam or Tai Tam Gap. He could also have no complaint, if I assess the reasonableness of his explanation by generously assuming that time started to run from 8 April 2024, giving him the greatest benefit which the doubt could afford him. That would save the need to wait for response to his request.

11.As for his complaint about lack of assistance from the welfare officers, even assuming that were true (which this Court does not accept to be), for reason as explained below, it is immaterial, but a mere excuse. First, the Applicant had no problem completing the Form 86, identifying the parties and the Decision sought to be reviewed, which is all that is needed in completing that form. He argued that he needed assistance to prepare the supporting affirmation. The supporting affirmation he filed consist of documents extracted from the hearing bundle and one hand written document which is of the nature of a submission. That submission basically is a reiteration of his case. He said he is the author of that document. The document was written in English without assistance from his in-mates. At the hearing before this Court, he had time and again by-passed the interpreter and directly answered the Court’s question in English. The same was observed by the Board at the hearing of the appeal. His oral English is fluent. He is reasonably or at least adequately, communicable in English. He made the affirmation before the superintendent without the need of an interpreter. He has no need to call for language assistance from the welfare officers. This ground of lack of language assistance is immaterial, but a mere and convenient excuse. He made the affirmation on 2 October 2024 before the superintendent. It was filed by the welfare officer on his behalf the following day. The delay was largely on his part in preparing the affirmation rather than on the welfare officers’ part in failing to provide him with the blank Form 86, or language assistance or assistance in filing the Form 86.

12.The third sub-item is about his request for medical reports, which has been dealt with under Item (2) and shall not be repeated.

13.The fourth sub-item is a request relating to his application for judicial review (ie the Form 86), which is a non-issue as he admitted having been given the blank form before April 2024. The other requests are about his “food change and for [his] underchave”. Whatever these are, they have no bearing on his explanation for the delay.

14.Item (4) is Tai Tam Gap’s request to him for further and better particulars of his data requests in Item (3). He received this request just before he appeared in Court this morning. He has no time to provide the particulars and has not received the information he requested from Tai Tam Gap. His requests in Item (3) is so vague that this Court could have no idea what he was requesting and how his own personal data could have supported his explanation for the delay or his other allegations. Again, for the reasons given above and below, there is no need to wait for the Applicant to provide the particulars and for Tai Tam Gap to provide the personal data.

15.Then, all out of the blues, the Applicant produced Items (5) and (6). Item (6) is a copy of his Form 86 filed with the Court. He identified the date ‘January 22-2024’ written under the Relief Sought section as evidence to support his claim that he had completed the Form in January 2024 but the welfare officers refused to file it for him. This is a thoughtless lie. The Decision was not issued until 5 March 2024. The Applicant could not have attempted to file a leave application before the Decision had been issued. I accept that was an honest mistake, but it seriously dented his credibility. It also destroyed his story about making two or three weekly visits to the welfare officers between April and October 2024, about 150 visits a mockery. His behaviour demonstrates that he is an opportunist who is always ready to make whatever false allegations to advance his purpose. He is not credible. Then, he smartly attempted to rescue his explanation by admitting that he had received the blank form in Tai Lam about 15 days after he received the Decision, ie before end of March 2024, but relied on his illiteracy and lack of language assistance to complete it. He claimed he had asked the welfare officers to teach him how to complete the form, but the officers refused.

16.The Decision was issued on 5 March 2024. Generously allowing seven days for delivery to Tai Lam and for it to processed for delivery to the Applicant, he should have received it by mid-March 2024. On the basis of his own admission that he received the blank Form 86 two weeks after he received the Decision, he should have received the blank Form 86 before the end of March 2024 in Tai Lam. He was able to complete the Form and prepare the supporting affirmation. He appeared before the superintendent on 2 October 2024 to make his affirmation. Also, on his own evidence, he had access to the welfare officers anytime and had access to the superintendent. He even claimed to have access to the Commissioner. In the circumstances, even assuming that time started to run from the moment he received the blank Form 86 before the end of March 2024 (instead of from the date of issue of the Decision on 5 March 2024) and that he is deemed to have completed the filing when he made the affirmation before the superintendent on 2 October 2024, it took him more than six months to file the leave application. He was more than three months late and he had no reasonable explanation for the delay. As for his claimed medical condition, for reasons as explained about there is no evidence that he was suffering a medical condition, not to mention one which was so serious as could prevent him from even filing in the Form 86 or preparing the supporting affirmation. It is just a convenient excuse.

17.Looked at in the round, the Applicant did not apply for non-refoulement protection at an early stage of his arrest, but waited until he had almost completely served his ten year sentence for trafficking. He explained that he only learned about the availability of non-refoulement protection from another inmate towards the end of his sentence. That is hardly credible. If he was facing such serious risk to his life, he would have raised this with the immigration officer upon his arrest or the welfare officer soon after he was sent to prison and not waited until he had served more than six years’ imprisonment. What else better has he to do during those six years than to work out his non-refoulement claim so that if successful he would be released a free man after serving his sentence? Obviously, he deliberately delayed making the leave application. The delay reflects not only an absence of will to prosecute his claim for protection, but an underlying acknowledgement by himself of the lack of merits in his claim. His claim was rejected after the two tiers screening process. His delay in seeking leave to apply for judicial review is substantial and unexplained. His leave application is clearly one to which the principle in Po Fun Chan v Winnie Cheung is applicable. It is one for which extension of time to file the leave application should be refused and the leave application be dismissed on the ground of delay alone however strong the merits. Having come to the above conclusion, there is no need to consider merits of the leave application. Nevertheless, in view of the seriousness of the consequence of the Decision, merits are considered below, just for completeness.

Background

18.The Applicant is a Columbian national from Saravena, Arauca, now aged 52. The essence of his claim is that his life is said to be in danger from three sources: (1) a guerrilla group in his home country called the Revolutionary Armed Force (“FARC”) for his refusing to join the group; (2) the then pro-government paramilitary group called Autodefensas Unidas de Colombia (“AUC”) which forced him to smuggle in drugs and weapon under the threat of death; and (3) the AUC because he has given evidence, offered to give evidence or perceived to have given evidence against his fellow AUC drug traffickers.

19.He was born in Saravena which was inhabited by the FARC which forced people born there to provide services to the organization. He did not want to be part of the crimes committed by the FARC. Since 1985, he was harassed and assaulted by FARC members for refusing to join the organisation. In April 1991, he was given an ultimatum that they would kill him if he still refused to join. Then he fled the region with 14 other companions. They travelled to Villavicencio and worked as construction workers there. He learned from his parents that his brother was killed by the FARC for helping him to flee Saravena. Concerned about staying for too long in one place and thereby being located by the FARC, the Applicant and his companions moved to Cucuta, North Satander in December 1991.

20.He and his companions were soon discriminated by some demobilized farmers who learned from rumours that they were FARC spies. One night in early 1993, he and his companions were arrested by six armed men claiming to be members of the AUC. They were assaulted, interrogated and abused. About ten of his companions were executed by the AUC. He and a few others were forced to work in coca farms to produce cocaine and then traffick in drugs and weapons since 1994. In 1995, he was arrested and detained at the Cucuta police station for one week and then released upon bribes by the AUC. In 1999, he was sent to traffick in drugs to Venezuela where he was arrested. He was returned to Colombia on 14 February 2006 after serving a seven-year sentence. He was again forced to traffick in drugs and weapons. He was sent to Amsterdam, but the trafficking was aborted as he was refused entry into Portugal. He was then sent to Hong Kong on 16 September 2006 after having swallowed about 1.1 kilograms of cocaine. Under the mistaken belief that trafficking in dangerous drugs is punishable by death in Hong Kong, he got rid of more than half of the drugs en route in Sao Paulo, Brazil where the AUC left him. He was refused permission to land in Hong Kong and was arrested by the Customs and Excise (“C&E”) officers for trafficking in 412 grams of dangerous drugs inside his body. He was convicted and sentenced to 10 years’ imprisonment on 27 April 2007. Shortly before completing his sentence, he made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 24 May 2013. Upon his discharge from prison, he was transferred to the Immigration detention and then released on recognizance on 5 September 2013.

21.His Torture Claim was rejected by the Director by his Notice dated 1 November 2013. Then, on 1 April 2014, he made a non-refoulement claim under the Unified Screening Mechanism (the “USM”). While his USM claim was being processed, he was arrested by C&E officers together with an AUC accomplice, Vergara Clavijo Miller (“Miller”) for the trafficking in dangerous drugs and using a false instrument on 10 August 2016. They both pleaded guilty to the charges. He was sentenced to 12 years’ imprisonment on 23 August 2018 while Miller was sentenced to 11 years’ and two months’ imprisonment[3]. Miller is the uncle of another AUC member called Posso Vergara Cristhian Enrique (“Vergara”) who allegedly harassed and threatened the Applicant.

22.The Applicant said that in around 2014 he gave information to the Hong Kong Police about trafficking activities involving Colombians which led to arrest of a number of people in Hong Kong including Vergara. He said he received threats of death from Vergara and whenever he met Vergara in prison he was assaulted by Vergara for having given information to the police against him.

23.The Applicant maintained contact with his family in Colombia via telephone and email. His family members told him that the situation in Colombia has not improved, some of his friends have left the country while others who remained have been assassinated, exiled or disappeared. They also told him that FARC and AUC members are still looking for him. He fears that if returned to Colombia, FARC members will kill him for refusing to join their organization and AUC members will force him to resume trafficking in drugs and weapon or kill him if he refuses to work for them. In addition, as AUC believe he is a FARC spy, he may be arrested and sent to prison if he approached the police. He believes the Colombian police will not protect him because they are corrupt and he does not have money to bribe them. He also fears that as the FARC and AUC have connections with the police and authorities, they would harm him or his family if they found out he had reported or filed a case against them. He does not think internal relocation feasible as the FARC and AUC have wide connections throughout Colombia.

24.In due course, his USM claim was assessed on all three applicable grounds other than Torture Risk ground, namely: BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim was rejected by the Director by his Notices. His appeal against the Notices was dismissed by the Board’s Decision dated 5 March 2024. He now seeks leave to apply for judicial review of that Decision.

The finding of the Board

25.The Board thoroughly studied the country information about Colombia (“COI”) and accepted that the Applicant has given a detailed and largely consistent account of his background in Colombia which accords with the COI and the Board’s understanding of the situation in Colombia at the material time. It accepted most of the Applicant’s evidence about his background and his claim that he was forced to traffick in drugs and weapon, but has significant concerns about the credibility of his claims with respect to what he says has happened since his arrival in Hong Kong, his family circumstances and the risks he faces if returned to Colombia now. The Board found many of the concerns to be significant and serious, especially when viewed cumulatively. It concluded that the Applicant is not a reliable witness and at least some of his claims about recent events have been fabricated while other concerns have been exaggerated.

26.The Board carefully considered his evidence about having provided information to the authorities about trafficking activities. It accepted objective evidence in the form of a letter from the Department of Justice that he had given information to the C&E Department, but the information was of no assistance to the authorities. It tested the Applicant’s evidence against the judgments from the High Court and Court of Appeal relating to Vergara’s only two available convictions on significant crimes in 2011 and 2018. Vergara was convicted of trafficking on 13 December 2011 and sentenced to eight years’ imprisonment[7] and on 12 December 2018 and sentenced to 24 years’ imprisonment[8]. Obviously, the Applicant’s information in 2014 could not have brought about Vergara’s conviction in 2011. He also confirmed that he had no involvement in that conviction. According to the judgment in relation to Vergara’s 2018 conviction, 13 prosecution witnesses gave evidence including the co-accused who pleaded guilty, but the Applicant was not one of the thirteen. He eventually conceded that he had not given evidence but insisted he had given information which led to Vergara’s conviction. He made a ludicrous assertion that he had friends in the police force and the police visited him to inform him that without his help Vergara would probably have been released. Then, he changed the subject, asserting that Vergara was behind everything in his own conviction, that Vergara was the one who sent the drugs to him and then send the police to arrest him. When he was reminded that Vergara’s uncle was also arrested and convicted with him, he responded that Vergara did so in order to put the Applicant in prison and sabotage his non-refoulement claim. He also made extravagant claims about the role of the former Colombian consul-general asserting that the consul-general must have had leaked information about him to his enemies in Colombia. He also made extravagant claims about the conduct of the Hong Kong police for having informed Vergara that he is an informant and providing Vergara with his hearing bundle in of his appeal before the Board.

27.In conclusion, the Board disbelieved his evidence. It found there is scant evidence to show that the information he gave to the authorities led to any convictions or other adverse consequences for Vergara or anyone else or that he has been targeted or even threatened for that reason in Hong Kong, and no evidence to demonstrate that he faces adverse consequences in Colombia on account of being an actual or perceived informant.

28.The Applicant also made other extravagant allegations about threats to his family members in Colombia. The evidence are inconsistent. He said his siblings have all left Colombia and are now living in Spain or the USA, which is contradicted by information in the Facebook. He said the information in the Facebook was a façade. He made other nonsensical or far-fetched claims which are all disbelieved by the Board.

29.On the basis of COI, the Board accepted his account about his background in Colombia prior to his departure for Hong Kong. It accepted he had been subjected to ongoing harassment and assaults by FARC members attempting to recruit him while he was still a child in Saravena, and that his brother was killed by FARC in 1991 after helping him escape to Villavicenio. It also accepted that he was forcibly and violently recruited to the AUC in Cucutta and engaged in drug production and then drugs and arms trafficking.

30.The Board did not accept he has any adverse profile with the Colombian government on the basis of having been denounced by the AUC as a FARC spy, a claim which is at odds with the fact that he was issued a passport by the government in his own name and travelled in and out of Colombia using that passport, but also with the fact that he worked for the AUC for some 15 years. The Applicant had left Colombia for almost 20 years during which there has been significant changes in the political scene in Colombia, particularly that FARC had demobilized and joined the political mainstream. Thus, any possible concern about fears from FARC would appear to have been superseded by the change in political scene in Columbia.

31.Though the Board was not satisfied that the past harm the Applicant had been subjected to at the hands of FARC or AUC amounted to torture within the meaning of the Torture Convention for want of involvement by a public official or other person acting in an official capacity, it accepted that at least some of the treatment amounted to cruel, inhuman or degrading treatment or punishment for the purposes of BOR 3.

32.It also accepted that the Applicant may still have been the subject of some casual local interest from FARC in Saravena and/or his former AUC associates in Cucuta. It cannot exclude the possibility that people associated with one or others of those groups might still have maintained some adverse interest in the Applicant in 2011 and 2012. However, in view of the Applicant’s conflicting and problematic evidence, it did not accept that his family had made any report or complaint to the Cucuta police in 2012, that his sister had tried to follow up that report in 2013 and she was threatened, her home damaged as a result and that she fled to Venezuela for her safety. It also did not accept the Applicant’s belated and highly problematic claim that all of his family members have since fled abroad for their own safety. It found the Applicant fabricated his claim in an attempt to bolster his case by exaggerating the seriousness and currency of the risks he faces.

33.It found that the Applicant does not face any appreciable risk of being harmed by criminal gangs including former AUC members for reason of him having been an informant in Hong Kong. It also considered the possibility of former AUC members wanting the Applicant to resume his criminal role with them or even to punish him for failing to discharge the drug delivery tasks in 2006, but concluded that there is only a remote likelihood of him being targeted and harmed for such reason and even then only in the event that he returned to his former home area in Cucuta where he was recruited by the then AUC and that this came to the attention of those former AUC operatives who are still engaged in illegal activities such as drug trafficking and also happens to hold a grudge against him.

34.In conclusion, the Board is not satisfied that the Applicant faces any relevant risk of harm under the applicable grounds in Colombia now or in the reasonably foreseeable future. Applying the law to these finding of fact, the Board is not satisfied that the Applicant is entitled to protection under any of the applicable grounds under the USM. Hence it confirmed the decision of the Director in the Notice.

Legal principles applicable to judicial review

35.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[9].

Grounds for judicial review

36.In his supporting affirmation, the Applicant annexed a two-page statement making the following assertions which arguably revolved around the issue of procedural unfairness and may be regarded as grounds of judicial review:

(1)  The immigration officer never really investigated into his case but made a determination on the basis of information found on the internet;

(2)  Relocation is impossible because Colombia is now governed by the FARC which tortured him since he was a child;

(3)  The immigration officer ignored his injuries and found he had not been tortured;

(4)  The immigration officer changed his declaration and misrepresented his case saying that he was working on drugs and weapon and not that he was forced into trafficking by the AUC;

(5)  By the order of the Colombian mafia and with the cooperation of the C&E, Vergara framed him for trafficking drugs in Hong Kong so that the Immigration Department may send him back to Colombia and sabotage his non-refoulement claim; but he had never committed the offences;

(6)  In 2013 or 2014, he gave information to the Hong Kong Police to enable the police to arrest many Colombian traffickers; hence he could not return to Colombia for fear of revenge; and

(7)  The Board rejected his request to adjourn the hearing of the appeal until he was released from prison so that he could furnish the Board with supporting evidence.

He invited this Court to grant him bail so that he can be released to obtain treatment for his medical condition and to produce the original documents to support his case.

37.He also wrote two letters dated 13 December 2024 repeating the above assertions and requests. He added a specific request that he be informed three days before his refoulement so that he could arrange for air ticket to fly him to the Philippines direct from the airport in Colombia so as to avoid the risk of his being tortured by the Colombian government.

38.These grounds are mainly directed at the immigration officer or the decision of the Director in the Notices. However, the decisions in the Notices were superseded by the Board’s Decision. For his benefit, the Court assumed that these grounds are also directed at the Board insofar as the context permits. However, on a proper and fair reading of the Director’s Notices and the Board’s Decision, it is manifestly clear that except for grounds (2) and (7) the grounds or assertions, properly called, are factually untrue or incorrect. They are his own assertions and misrepresentation of the truth.

39.The Board investigated fully into his case. It studied and accepted the evidence in the COI relating to the Applicant’s background before he came to Hong Kong. It fully accepted his evidence about such background, the threats from the FARC and the AUC and that he was forced to traffic for the AUC. The Board accepted that he had been tortured, but found as a matter of law that the ill-treatment did not fall within the definition of ‘torture’ for the purpose of Torture Risk claim due to lack of involvement by a public official or other person acting in an official capacity. It accepted that at least some of the treatment in the past amounted to cruel, inhuman or degrading treatment or punishment for the purposes of BOR 3, but found the current risk is low in view of change of the political scene today, twenty years later. It is not the case that the Board turned a blind eye to the injuries he suffered. Copies of his original statements, the NCF etc are in the hearing bundle. There was no alteration of the Applicant’s documents or declarations by the immigration officer. His grounds (3) and (4) are factually untrue or are his own misrepresentation of the truth.

40.The Board did refer to the current COI from independent, credible and authoritative sources which also form the basis of the Board’s Decision that the current risk is low due to change of the political scene. The Applicant had been held in custody in Venezuela or Hong Kong for the last 20 years and had never returned to Colombia. He has no personal experience about the current situation in Colombia and has produced no current COI to contradict those relied on by the Board and the Board’s finding. The Board’s finding on current conditions in Colombia and feasibility of internal relocation are findings of fact solely within the realm of the Board. These findings could not be criticised as error of law, procedural unfairness and irrational. There is no substance in his grounds (1) and (2).

41.The Applicant’s grounds (5) and (6) are simply his own speculation which is not supported by any objective evidence or reasonable inference. Not only that, they are contradicted by the judgements of the High Court and Court of Appeal which show that he was caught red-handed by C&E officers who observed his collection and possession of drugs, and more importantly, that he pleaded guilty to the charges on both occasions. The Board had comprehensively studied the judgments of the High Court and Court of Appeal which showed that the Applicant never gave evidence against Vergara or anybody else and that his name was not among the list of prosecution witnesses. The Applicant also admitted to the Board that he had not given evidence in against Vergara or his uncle. See paragraphs 26 and 27 for a more comprehensive analysis of the Board’s finding on this issue.

42.As for his complaint about the Board’s refusal to adjourn the hearing until after he had served his sentence and to grant him bail so that he may obtain evidence to support his claim, it does not appear from the Decision that these matters had been raised. In any event, the Board has no authority to grant him bail. Whether to allow the Applicant to be released on recognisance is a matter solely for the Director. In any event, all the materials he required to prove his case had been submitted by him and were in the hearing bundle. The Board fully accepted his background before he came to Hong Kong as he asserted. It even rendered assistance to enable him to recover messages from his telephones as evidence of the threats he received while in Hong Kong. The Board acted mostly on incontrovertible evidence, such as the COI relating to his background and relating to the current conditions in Colombia, the judgments of the court relating to his and Vergara’s convictions, etc. On the other hand, he has not identified any particular evidence which he claimed he has and which he was prevented from adducing. There is no substance in his ground (8).

Overall scrutiny of the Decision

43.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board made many findings of fact and of the law and mixed finding of law and fact. It accepted the Applicant’s evidence about his background before he came to Hong Kong and the ill-treatment he had suffered at the hands of the FARC and AUC. On the basis of his own admission and incontrovertible evidence, it rejected his evidence that he had given information or evidence against Colombian drug traffickers which would attract retaliation, if he is returned to Colombia. In short, the Board was not satisfied on the evidence before it that the Applicant had a well-founded fear of being persecuted or tortured in Colombia in view of the change of the political scene more than twenty years after he had left Colombia. As he bears the burden of proof, albeit on a low standard, these findings are necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Insofar as these findings are finding of law, they are absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. In any event, there are no merits in the leave application and the proposed judicial review has no realistic prospect of success. This is a further reason not to grant him extension of time to file the leave application.

Conclusion

44.By reason of his unexplained and substantial delay, extension of time to file the application for leave to apply for judicial review is refused. For that reason, his leave application is also refused.

Dated the 28^th day of January 2025

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