Romero Bello Adriana Vanessa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1042/2021 [2026] HKCFI 4427 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1042 of 2021
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 23 July 2021 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 24 June 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 December 2018 (the “Notice”). 2.The Applicant had requested an oral hearing. However, before her leave application came to be processed, she had been removed from Hong Kong. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing. Background 3.The Applicant was a Venezuelan national. She travelled frequently between Hong Kong and Mainland China between March and December 2017. She last entered Hong Kong on 1 December 2017 and overstayed since 2 March 2018. On 24 May 2018, she made a non-refoulement claim. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She sought leave to apply for judicial review of that Decision. The Applicant’s case 4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed she will be harmed or killed by her former boyfriend, if returned to Venezuela. 5.The Applicant, now aged 32, was born in Ciudad Cabimas, Estado Zulia, Venezuela. She is single. Her parents and two siblings are living in Venezuela. From 2011 to 2016, she studied at the University of Unermb, but she did not complete her study. She had about one year’s experience working as a cashier. 6.In 2014 or 2015, the Applicant met her former boyfriend, and they soon developed a relationship. After one and a half years, the relationship turned sour, and she wanted to break up with him. From that moment, her former boyfriend became physically violent towards her. In September 2016, he locked her up in his house. During the five-month confinement, he hit and kicked her for more than 15 times. He damaged her cell phone so she could not seek help. She was denied medical treatment so she could only take tablets to alleviate the pain. In January 2017, she deceived her former boyfriend to take her to hospital for a pregnancy check up and took the opportunity to escape back home. She did not report the case to the police because her former boyfriend’s family was rich, influential, and had good relationship with the police. She left Venezuela for Columbia on 5 January 2017 and then went to Mainland China on 16 March 2017. On 25 March 2017, she entered Hong Kong. While she was in Columbia, her former boyfriend started verbally threatening her parents that if she did not return to him, he would kill them all. 7.The Applicant does not believe the Venezuelan authorities and police would help her because of her former boyfriend’s good relationship with them. She does not believe internal relocation viable because he could locate her throughout the country through his powerful network. The finding of the Board 8.The Board identified numerous and significant issues in the Applicant’s claim and scheduled a hearing on 7 May 2021, but the Applicant did not appear. She did not respond to the Board’s notice demanding for a written explanation of her absence. The Board required the Applicant’s clarifications on some aspects of her case including the following. She claimed she had lived with her former boyfriend for one and half years before their relationship deteriorated. Yet her parents did not know where they were living for the five months when she was confined. She also said that she could not call for help because her former boyfriend had damaged her cell phone; but she did not explain why none of her friends would have known where she lived or would not have either told her family or come to look for her themselves. She claimed her former boyfriend’s family was powerful and influential, but provided no further details as to their background. She gave no explanation why she could not have stayed in Columbia. The Board also wanted to hear her explanation for failing to produce documents to support her claim. 9.On the evidence, the Board reached the conclusion that the Applicant’s claim was lacking in detail and that her failure to attend the hearing caused serious doubts to the credibility of her claim. It found the Applicant had failed to establish the factual basis in support of her claim. Hence, it dismissed her appeal. Legal principles applicable to judicial review 10.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[5]. 11.The Applicant did not advance any ground of judicial review in her Form 86. In the absence of any specific grounds of application or application with sufficient particulars, the court in an application for leave to apply for judicial review could only examine the Decision for errors of law, procedural unfairness or irrationality in the Decision. Discussion 12.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 applicable to non-refoulement protection 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 analyzed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It found gaps in the Applicant’s evidence which require clarification in a scheduled hearing. But the Applicant did not appear and did not respond to the Board’s request for explanation of her absence. The Board was unable to seek clarifications on aspects of her case mentioned above including the claimed physical and sexual violence. When the lack of details about these claims is taken together with the vagueness and lack of details about the other aspects of her case identified above, the Board was left with serious doubts as to the credibility of the Applicant’s claim in general. It found her incredible and did not accept her evidence. This is a finding fact solely within the realm of the Board. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused. 13.The Applicant has been removed to Venezuela. The Court does not have her contact address in Venezuela. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forwarded them to the Applicant. Dated the 6th day of August 2026
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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at [14(1)] | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment