QUINTERO CORREA JHON EDUAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 908/2019

[2022] HKCFI 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 908 of 2019

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I decided to deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of Colombia.  He last entered Hong Kong on 11 February 2017 as a visitor and was permitted to stay until 12 May 2017.  On 22 February 2017, he was arrested by police for trafficking in dangerous drug. On 12 July 2018, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Carlos Andres Colorado Echeverri (“Carlos”). 

5.  According to the applicant, he worked as a contractor for a company called Palo Verde SAS.  Carlos was his colleague.  On 3 April 2012, while they were working on a site, an expensive chemical liquid for the pool water broke. Carlos asked the applicant to add water into the bottle and seal it.  Later, the applicant told another colleague about the incident.  Carlos saw him as a whistleblower and started to threatened him.  The applicant was also attacked by Carlos twice and received medical treatments.  He filed a complaint against Carlos with the public prosecutor’s office.  However, Carlos hid and continued to make verbal threats to the applicant.  Scared of Carlos who was connected to a criminal organization, the applicant withdrew the complaint.  In April or May 2015, the applicant was almost shot by Carlos outside his house.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 13 November 2018 by the Director (the “Director’s Decision”) described below. 

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director refused to believe that he would face any real risk of harm from Carlos if refouled because (i) the low intensity and frequency of past ill-treatments indicated unlikelihood of future risk of harm [15]; (ii) his version of events was not convincing [16]; (iii) his dispute with Carlos was private without state involvement [17]; (iv) state protection would be available to him [18]-[23] and (v) internal relocation was also a viable option [24]-[29]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  He wrote to the Board and asked for a determination of his case without an oral hearing [4.1].  As a result, the Board proceeded to consider his claim on paper [4.2].

9.  The Board found that Carlos did not act on behalf of the State [7]-[9]. Nor did the alleged injuries sustained by the applicant attain the level of severity [10]-[13].  Further, the Board considered country of origin information and concluded that internal relocation was a viable alternative to the applicant [14]-[18].  In addition, the Board also noted that the applicant did not encounter hostility for over 4 years in another city in Colombia but still chose to escape to Hong Kong.  This also indicated that the applicant was not genuine in seeking protection [31].     

10.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, he said he was dissatisfied with the Board’s Decision. It was because he was being detained by the Immigration Department, therefore he was unable to obtain documents to prove his case.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. He has not been able to show what documents would assist him to prove his case.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his application.

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