|
HCAL 1800/2025
[2025] HKCFI 4296
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1800 OF 2025
| BETWEEN |
|
|
|
Lopez Lopez, Fernando |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board
|
Putative Respondent |
|
and
|
|
|
Director of Immigration
|
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”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 13 August 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect the decision of the Torture Claims Appeal Board (“the Board”) dated 31 July 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001800_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board thus affirmed the decision of the Director of Immigration (“the Director”) dated 12 May 2025 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the proposed respondent, when the putative respondent should only be the Board.
4. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
5. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
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 if returned to Colombia, he would be harmed or killed by unknown persons belonging to the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) (“the Enemies”) due to his previous involvement in coca eradication.
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 his intended judicial review in Form 86, nor in his supporting affidavit dated 13 August 2025. The applicant merely stated in his supporting affidavit that he needed justice from the High Court and he was not satisfied with the decisions of both the Director and the Board.
Discussion
10. Order 53, rule 3(3) of the Rules of the High Court, Cap 4A, stipulates that “The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.”
11. Thus, an oral hearing for the Leave Application is not a must. The applicant did not request for a hearing for the Leave Application in his notice of application, ie Form 86. After reviewing the written materials before this court, this court decides to proceed to consider the merits of the Leave Application on papers, as the applicant did not advance any ground for the intended judicial review at all.
12. Although the applicant was not satisfied with the decisions of both the Director and the Board, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.
13. 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).
14. Thus, despite that the applicant has failed to advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. The applicant was afforded an oral hearing before the Board on 22 July 2025 and the applicant was heard in person through Video Conference System of the Immigration Department with the assistance of an interpreter in Spanish and English languages. Thus, the applicant did have a chance to present his case to the Board.
16. The Board found that the evidence of the applicant given under examination was basically in line with his own Non-refoulement Claim Form and Record of interview which he adopted as evidence.
17. However, the Board found the fact that the applicant left Colombia for Hong Kong more than one year and four months after the first incident indicated that the fear for his personal safety was not imminent. The applicant could also have raised his non-refoulement claim in 2017 before he returned to Colombia if he really believed the Enemies would harm or kill him.
18. The applicant was not hurt in the second incident, which happened after his return to Colombia. The applicant complained that he was followed by unknown men from time to time on the streets. However, nothing happened to him before his departure from Colombia to China on the strength of his own passport in 2018.
19. The Board did not consider the alleged ill-treatment on the applicant, both individually and cumulatively, had reached the level of minimum severity. The disputes between the applicant and the Enemies were straightforwardly private in nature. Nothing in the applicant’s case had shown that the alleged threats by the Enemies arose out of disagreement based on race, religion, membership of a particular social group or political opinion. The Board found the applicant’s fear of being harmed or killed when refouled to Colombia was not well-founded. There was not a real risk the applicant would face ill-treatment, torture, arbitrary deprivation of life or persecution upon his return to Colombia.
20. Moreover, the Board found that reasonable state protection was available to the applicant. The Board noted objective country of origin information (“COI”) which indicated the incompetence and ineffectiveness of the Colombian police and its government. However, there were ample COI materials that showed the Colombian government had taken actions against the wrongdoers in the government and society. The authorities had performed due diligence on their duties and arrested any person who had violated the laws in Colombia. The Colombian government had upheld the rule of law. There was no indication that the authorities would fail to discharge its duties or tolerate any unlawful and abusive behaviour or misconduct committed by an individual, police officer or officials as a systemic practice. The Colombian government had also taken actions related to FARC.
21. The Board thus concluded that reasonable state protection would be available to the applicant upon his return to Colombia. Official authorities or avenues were also available to deal with the applicant’s problem and there was no indication that the applicant would encounter any hardship in acquiring their assistance.
22. The Board noted the principle as laid down in Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997 that the issue of internal relocation would only arise after the applicant had established that he qualified as a refugee under the Refugee Convention. Nevertheless, the Board assessed the viability of the internal relocation for the applicant. The Board found that it was not unduly harsh or unreasonable for the applicant, being a mature adult with formal education up to secondary school and 8 years of work experience, to relocate to other cities such as Barranquilla and Cartagena with large population to avoid the Enemies if he was returned to Colombia.
23. The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
24. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16thday of September 2025
| |
( 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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 16 September 2025
Applicant’s ref. no:
Nil
|
|
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:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26363
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 639/25
(Formerly RBCZ 5000572/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|