Rincon Marin Gloria Sirley v. Torture Claims Appeal Board

HCAL 1284/2022

[2025] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1284 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:

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

Observations for the Applicant:

1.The Applicant is a 49-year-old national of Colombia who arrived in Hong Kong on 19 November 2011 as a visitor with permission to remain as such up to 17 February 2012 when she did not depart and instead overstayed, and more than 8 years later on 27 October 2020 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 her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Medellin, Colombia. After leaving school she made her living by running her own garment business in her home district by importing her merchandises from China.

3.In 2011 she suffered a huge financial loss when one of her clients failed to pay after receiving goods from her, and in order to pay her supplier in China to keep her business going, the Applicant borrowed a loan from a local money-lender to be repaid within 3 months with interests, and arranged for the money-lender to directly transfer the money to her supplier in China.

4.However, when subsequently in November 2011 when she travelled to Hong Kong and then into China to meet with her supplier, the Applicant discovered that the money was never sent by the money-lender as agreed, and when she confronted the money-lender on the phone, the money-lender insisted that he did send the money and instead demanded immediate repayment of the loan from her, and when the Applicant refused, the money-lender then threatened to kill her when she returned to Colombia, and so the Applicant became fearful for her life and therefore overstayed in Hong Kong, and subsequently in 2020 surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 May 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 26 May 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 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”).

6.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 her creditor/money-lender upon her return to Colombia as low due to the low intensity and frequency of past ill-treatment from him, that she had never received any physical harm or ill-treatment from her creditor and that there was no evidence of any real intention from her creditor to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between the 2 of them only without 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 49 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 Cali where it would be difficult if not impossible for her creditor/money-lender to locate her.

7.On 4 June 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which she attended an oral hearing on 8 December 2021 with the assistance of an interpreter before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 November 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor but found no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay the loan, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Colombia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.On 17 November 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in her supporting affirmation she cited various applicable principles and then put forward the following grounds for her intended challenge:

(1)  The Director/Board erred by refusing the Applicant’s non-refoulement claim for screening before a decision can be reached whether her non-refoulement claim was established or not;

(2)  The Director/Board failed to apply the high standards of fairness and/or to attain the minimum standard of procedural fairness required in the decision-making process as regard her non-refoulement claim.

10.Given the Court of Appeal’s decision in Re Moshsin Ali [2018] HKCA 549 in which it was held that once an appeal to the Board has been pursued, as the Applicant did in her case, the decision of the Director is consequently and within the administrative structure of the 2-tier process of non-refoulement claims no longer susceptible to judicial review, and therefore I shall treat the Applicant’s application as one to challenge the Board’s decision.

11.However, the Applicant’s proposed grounds are just some vague and bare assertions containing 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 which way did the Board fail to apply high standards of fairness or minimum procedural fairness in its determination of her non-refoulement claim. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find either of them reasonably arguable for her intended challenge.

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: 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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Colombia, there is simply no justification to afford her 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.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

16.As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to her home country, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order to the Applicant in Colombia.

Dated the 8^th day of April 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