ANZOLA SANCHEZ YESICA DANIELA v. TORTURE CLAIMS APPEAL BOARD

CACV 22/2022

[2022] HKCA 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 22 OF 2022

(ON APPEAL FROM HCAL 172 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 December 2021 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 September 2018.

BACKGROUND

2.  The Applicant is a national of Columbia. She entered Hong Kong as a visitor on 26 June 2017 and was granted a limit of stay up to 24 September 2017. She overstayed after the expiry of her limit of stay. On 26 September 2017, 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 former boyfriend who was said to be a member of a terrorist group known as National Liberation Army (“ELN”) for leaving him and ending their relationship and/or by his fellow ELN members. Details of the Applicant’s claim were summarised by the Judge at §§1-3 of the CALL-1 Form ([2021] HKCFI 3894).

3.  By a Notice of Decision dated 27 September 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  On 10 October 2018, the Applicant appealed the Director’s decision to the Board. On 10 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board found no evidence even on the Applicant’s own case of any threats or risk from ELN members, while her problem with her former boyfriend was a private personal dispute without any official involvement. The Board considered that state and/or police protection would be available to the Applicant upon her return to Colombia. Further, reasonable internal relocation options were available for her to safely move to another area away from her home district without any risk of being located. The Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

5.  On 17 January 2019, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.

6.  On 31 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§8-11 of CALL-1 Form, the Judge stated as follows:

“8. On 17 January 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that the decision is unfair but without providing any particulars or elaborations as to how it is so or any other proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

9. 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.

10. 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 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.

11. In the premises and 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.”

THIS APPEAL

7.  In her Notice of Appeal dated 10 January 2022, the Applicant sought to set aside the Judge’s Order, and quash the decisions of the Director and the Board. Two grounds of appeal are raised by the Applicant:

“(1) The court relied on the fact and the decision was predictive and based on Director of Immigration Department. However, that does not depreciate the need of review in a case involving actual risks to continued access to justice.

(2) The learned judge erred in concluding that there was procedural fairness despite that I was not legally represented during … the hearing.”

8.  The Applicant failed to attend the scheduled hearing of this appeal on 16 August 2022.

DISCUSSION

9.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

10.  In relation to first ground of appeal, it is well established that the assessment of evidence and COI materials, 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: Re Kartini [2019] HKCA 1022. The Applicant has failed to show any such error of law, procedural unfairness or irrationality in the present case.

11.  In relation to the second ground of appeal, it is also well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant was legally represented by the Duty Lawyer Service in the assessment of her non-refoulement claim by the Director. The Duty Lawyer Service would have continued to represent her in the appeal to the Board if they were of the view that the appeal had merits: Karamjit Singh (CACV 78/2018, at §8). The Applicant’s appeal was carefully examined by the Board. Notwithstanding the fact that the Applicant was not legally represented in the appeal, we do not see that there was any procedural unfairness in the appeal process before the Board. Further, the issue of lack of legal representation was not raised in the Applicant’s application for leave to apply for judicial review before the Judge. We see no good or sufficient reason why the Applicant should be allowed to raise this matter for the first time in the Court of Appeal.

12.  The Applicant has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits, and is dismissed.