RAMIREZ BELTRAN CLAUDIA LORENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL515/2018

[2019] HKCFI 2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 515 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 29 August 2016 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

It is further directed that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;

(5)  Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of Colombia. She is now aged 35 (DOB:  5 December 1983).

2.  The Applicant claimed she would be harmed or killed by guerrillas from the Fueras Armadas Revolucionarias de Colombia (“FARC”) because they thought the Applicant was involved in some missing firearms.

3.  The Applicant said she met a man called Victor in March 2006. They later became lovers. In February 2007, the Applicant found out Victor was a member of FARC. He was involved in smuggling including firearms. The Applicant assisted him.

4.  In late 2007, Victor argued with EL over money. EL was the leader of FARC.

5.  In December 2007, Victor asked the Applicant to return to her mother’s place.  He said the FARC members had threatened to kidnap her if he did not settle the money dispute. The Applicant then went to live with her mother but she still saw Victor weekly.

6.  In March 2008, Victor told the Applicant that the situation had got worse. He asked the Applicant to pack up to go with him into the jungle. He would wait for the Applicant in his mother’s place while the Applicant went back to her residence to pack up.

7.  Later that day, the Applicant learnt from Victor’s sister that Victor had been killed. The Applicant believed Victor was murdered by FARC.

8.  Half a month later, three unknown males forced into the Applicant's apartment. They tied her up and asked her about the money, firearms and documents kept by Victor. The Applicant said she had no idea. The men left. They did not harm the Applicant.

9.  The Applicant called her friend Adriana, who was the girlfriend of Javier. Javier was a FARC member. Adriana told the Applicant that the FARC people believed she had the information they needed. They would ask her to return the money and firearms. Adriana said the Applicant was in a very unsafe situation.

10.  Nothing happened in the next two odd years.

11.  In January 2011, two unknown males went to the Applicant’s place. They asked her to go out to talk at a coffee shop. They asked her about the money and firearms. The Applicant again said she did not know anything. The men left. They said to the Applicant, “You know nothing and you can’t help us. You are useless. But we know you know a lot.”

12.  After the Applicant had left the coffee shop, she was hit by a car. She became unconscious and woke up in the hospital. After leaving the hospital, she went to live with her grandmother until she left Colombia on 11 June 2011.

13.  The Applicant arrived in Hong Kong on 13 June 2011 as visitor. She went to China on 26 August 2011 and returned to Hong Kong on 15 September 2011. She was permitted to stay till 14 December 2011. However, she overstayed. The Applicant surrendered to the Immigration Department on 14 March 2012 to raise a torture claim.

14.  The Applicant said her brothers in Colombia were imprisoned because of her but she could not provide details.

15.  The Applicant said her mother and grandmother were fine in Colombia.

16.  On 23 September 2015, the Director of Immigration (“the Director”) rejected the Applicant’s claim with respect to risk of torture,[1] risk of persecution,[2]  and risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  [“the Director's 2015 decision”].

17.  The Applicant appealed against the Director's 2015 decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Adjudicator rejected her appeal on 29 August 2016. [“the Board’s decision”]

18.  On 15 December 2016, the Director rejected the Applicant’s claim with respect to the last applicable ground: risk of violation of the right to life (BOR2 risk)[4] [“the Director's 2016 decision”]. The Applicant did not appeal against this decision.

19.  On 28 March 2018, the Applicant applied for leave for judicial review of the Board’s decision dated 29 August 2016.

Respondent/Interested party

20.  The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

21.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

22.  In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party. 

The Director's decision

23.  In his decision dated 23 September 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s claim with respect to those three applicable grounds.

24.  In his further decision dated 15 December 2016, the Director rejected the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board’s decision

25.  The Applicant only appealed to the Board against the Director’s 2015 decision in relation to torture risk, persecution risk and BOR3 risk. The Adjudicator interviewed her on 11 August 2016.

26.  On the Applicant’s account of events, the Adjudicator found there was no evidence the FARC people tried to harm or kill her. The FARC people seemed to have accepted the Applicant did not have the information they wanted. They did not harm her when they could have done so. The Adjudicator considered the Applicant’s being knocked down by a car near the coffee shop was merely accident. The FARC people had not disturbed the Applicant’s mother and grandmother in Colombia. While the Applicant said her brothers were imprisoned because of her, there were no supporting details.

27.  The Adjudicator found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. There were no questions of state instigation, consent or acquiescence. The complained situation was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

28.  The Adjudicator noted the Applicant did not report the FARC people to the Colombia police. He studied country-of-origin information ("COI") and was satisfied reasonable state protection was available to the Applicant. He also found internal relocation was viable in the Applicant’s case.

29.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk and BOR3 risk. On 29 August 2016, he rejected the Applicant’s claim with respect to those three applicable grounds. [On 15 December 2016, the Director rejected the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. The Director reminded the Applicant that she had to lodge a separate appeal. She did not.]

Grounds of judicial review

30.  The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

31.  The Applicant also complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused.

32.  The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.

Court hearing

33.  The hearing took place on 21 September 2018. The Applicant was in person. A Spanish interpreter provided service in court.

34.  The Applicant said she received the Board's decision dated 29 August 2016 only in October 2016 because she was detained by the Immigration Department. She did not know she could apply for judicial review until March 2018, when she was told by the Immigration Department that she had to leave Hong Kong unless she applied for judicial review.

35.  The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. She had nothing to add.

36.  The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her claim.

Discussion

37.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]

Late application for leave for judicial review

39.  Order 53 rule 3(1) of the Rules of the High Court reads: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

40.  Order 53 rules 4(1) and (2) of the Rules of the High Court read: –     

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

41.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time.  The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8]  If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]

42.  In the present case, the Board’s decision was issued on 29 August 2016. I am prepared to accept the Applicant’s saying that she received it in October 2016. She applied for leave for judicial review only on 28 March 2018. Excluding the 3-month grace period for filing, the application was about 14 months late.

43.  The Applicant said she did not know there was a time limit. That was not a good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. The Applicant's application for leave for judicial review involved no issue of general importance and her complaints had no merits.

44.  The Applicant mentioned she did not have legal representation for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 23 September 2015.

45.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

46.  The Applicant raised her language problem.

47.  It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]

48.  In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

49.  The Applicant complained she received the appeal bundle only a few days before the Board hearing.

50.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

51.  The Applicant said she got the appeal bundle on 4 August 2016. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 11 August 2016. The bundle was served on the Applicant in time.

52.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

53.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

54.  The Applicant said she answered all the questions honestly in the Board hearing[14]. That means she knew what was asked and how to answer. She was not confused.

55.  There was no evidence the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay.

56.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

57.  The Applicant's application for leave for judicial review is late. She fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider her late application. I refuse to grant extension of time for the Applicant to apply for leave for judicial review. Her application is dismissed.

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