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HCAL 3380/2019
[2025] HKCFI 3159
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3380 OF 2019
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Rodriguez Sepulveda Evelin |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 28 October 2019”.
2. Leave granted to the applicant to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 28 October 2019.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 12 November 2019 and filed on 14 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 28 October 2019 without identifying the decision maker, but the applicant named the Director of Immigration (“the Director”) as the putative respondent.
2. However, it was the decision of the Torture Claims Appeal Board ("the Board") that was dated 28 October 2019 (“the Board’s Decision”) and the Director’s decision was dated 9 October 2018 (“the Director’s Decision”). Thus, it is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003380_2019_files/the_Board's_Decision.pdf
3. The Board found that the applicant failed to substantiate that she qualified for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
4. The applicant named the Director of Immigration as both the putative respondent and the putative interested party in Form 86, when the Board should be named as the putative respondent. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
5. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 28 October 2019”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), a guerrilla group in Colombia, had threatened her life. The applicant also alleged that she was a victim of human trafficking to China and was controlled in prostitution in China by the Mafia who were all Colombians. As she escaped from the Mafia, the Mafia wanted to kill her.
Grounds for judicial review
8. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
9. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 11 November 2019. The applicant merely stated in her supporting affirmation that she wanted to judicially review the refusal decision of the Board because it was unfair and unreasonable.
Discussion
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 [2018] HKCA 524).
11. Thus, the applicant cannot ask this court to re-assess the facts of her case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.
12. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 September 2019. The Board assessed all the applicant’s claims in details. After considering all the evidence, the Board came to the conclusion that the applicant was not personally targeted by FARC that would make her face a personal and real risk from the group.
13. As to the applicant’s fear from the Colombian Mafia which controlled her in prostitution in China, the Board found that the applicant appeared to have accepted certain overseas arrangement to work in China, though the “job” turned out to be prostitution. The applicant was allowed to come to Hong Kong at least three times on her own to extend her visa, and the applicant decided to stay in Hong Kong after the third time and was not disturbed by the woman who had made arrangements for her to go to China.
14. The Board was of the view that if the applicant could remain undisturbed by the Mafia in Hong Kong for four months, it would be highly unlikely she would be disturbed in Colombia by Colombians who had their business in China. The Board was also of the view that the applicant might have owed the “travel expenses” to her female friend or the Mafia in China, but any troubles the applicant might have in China could not be relevant to her claim of non-refoulement protection in relation to Colombia. The Board hence concluded that the threat from the Mafia in China, if there were any, would not be relevant to the applicant’s appeal.
15. Although the assessment of evidence and risk of harm are primarily within the realm of the Board, the Board’s decision has to satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
16. This court agrees with the Board that the applicant was not personally targeted by FARC, but the applicant’s fear of harm did not just come from FARC. The applicant claimed that the Mafia also wanted to kill her as she had escaped from them.
17. It seems to this court that it was irrational for the Board to draw the conclusion that the applicant would not be harmed in Colombia because she was not disturbed in Hong Kong. The Mafia might not have any presence or operation in Hong Kong and hence they could not do anything to the applicant in Hong Kong, but it could be different if she were in Colombia. It is reasonable to assume that the Mafia who were all Colombians should have some presence or operation in Colombia, otherwise they would not be able to arrange human trafficking from Colombia to China. That being the case, the Mafia should have the channels and means to harm the applicant in Colombia if she were refouled.
18. It is therefore irrational for the Board to take the view that the applicant’s troubles in China were confined to China and would not be relevant to her claim for non-refoulement.
19. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.
20. It is the view of this court that it is reasonably arguable that the Board’s decision in respect of the applicant’s fear of harm from the Colombian Mafia was irrational and hence leave should be given to the applicant to apply for judicial review in this regard.
Conclusion
21. For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.
Dated the 29thday of July 2025
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( Irene LEE )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 29 July 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14009/18/10/351/COL34
Director of Immigration
Putative interested party’s ref. no.:
ImmD/CR T/C 2717/18
(Formerly RBCZ 10952/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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