PATINO LOPEZ KATERINE v. TOTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETTION OFFICE

HCAL 2417/2018

[2021] HKCFI 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2417 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 27 September 2018.  In fact, the Board did not make any decision relating to the Applicant on that day.  It heard the Applicant’s appeal on that day and delivered its decision on 10 October 2018 (the “Decision”).  Accordingly, the Court granted leave to amend the date of the decision in respect of which leave to apply for judicial review is sought.   

2.  The Applicant is a Columbian.  She last arrived in Hong Kong at the Macau Ferry Terminal on 2 December 2017 and was permitted to remain as a visitor until 23 December 2017.  She overstayed thereafter.  She surrendered to the Immigration Department on 28 December 2017.   On 1 and 6 March 2018, she lodged a non-refoulement protection application claiming she will be harmed or killed by her boyfriend, if returned to Columbia.

3.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 25 June 2018, the Director of Immigration (the “Director”) rejected her claims (the “Notice”).  Her appeal to the Board against the decision in the Notice was heard by the Board on 27 September 2018 and dismissed by the Board’s Decision dated 10 October 2018.

4.  She sought leave to apply for judicial review of the Decision of the Board on 26 October 2018.  On 25 November 2019, she applied by affirmation to withdraw her leave application.  Deputy High Court Judge Lung directed her to write a letter to court confirming her agreement that the court may deal with her application on paper and that her application may be dismissed for the reason that she wished to withdraw her application.  The Applicant did not respond.  Her leave application was processed in the usual manner.  A notice of hearing scheduled for her on 7 February 2020 was sent to her by registered post.  The notice was returned unclaimed.  Having perused the documents, this Court considered this was an appropriate case for paper determination and made the following determination accordingly.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

6.  The Applicant came to know her boyfriend in 2013 and lived together with him in 2014.  They travelled around Columbia.  Her boyfriend behaved violently towards her.  The Applicant believed he is a member of a group called “the Urabeños” which is engaged in drug trafficking and other illegal activities.

7.  In 2015, the Applicant and her brother borrowed 230 million pesos from the boyfriend for the purpose of starting a shop selling clothes.  Her brother ran away with the money.  Her boyfriend vented his anger by assaulting the Applicant.  One day, the Applicant saw her brother being assaulted and tortured by her boyfriend’s men.  She questioned him and was assaulted.

8.  One day, her boyfriend and his bodyguards went to the Applicant’s family and demanded them to leave everything to him.  After they had assaulted the Applicant and her brother, the family decided to abandon their property and go into hiding.  The Applicant’s father reported the matter to the police but the police did not take any action.

9.  The Applicant travelled between Peru and Chile hiding and to avoid her boyfriend.  Eventually, she came to Hong Kong.

The finding of the Board

10.  The Board found that the dispute between the Applicant and the boyfriend is a personal monetary dispute; that the boyfriend had been violent to the Applicant but the ill-treatment was by a non-state actor; that there was no evidence that the Columbian government acquiesced in the alleged ill-treatment of the Applicant; that the boyfriend ill-treated the Applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance; and that the Columbian government was unwilling to help the Applicant for a convention reason, ie race, religion, nationality, membership of a particular social group or political opinion.   Applying those findings to the considerations in relation to the four applicable grounds under the USM, the Board concluded that the Applicant failed to discharge the burden of proving her entitlement to non-refoulement protection.

Grounds for judicial review

11.  The Applicant did not state her grounds of application in her notice of application for leave to apply for judicial review (Form 86).  In her supporting affirmation filed on 26 October 2018, she alleged that the Decision was unfair and erroneous, but gave no particulars.  Given the absence of specific grounds, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering her application.

12.  Her affirmation, at the highest, is a challenge of the Board’s finding of fact. The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

13.  An applicant has to prove not only that her fears and risks are genuine, but also fall within the criteria set out under the four applicable grounds.   On the basis of her evidence, the Board was not satisfied that the Applicant has proved her fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving her fears and risks and her entitlement to non-refoulement protection on all applicable grounds.   The Board gave very detailed reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success. 

Conclusion

15.  For the above reasons, the Court granted leave to amend the Applicant’s application by substituting the date of the decision sought to be reviewed by “10 October 2018” and refused her application for leave to apply for judicial review.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)