DEL AGUILA PERALTA FRANCISCO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 985/2024

[2024] HKCFI 2642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 985 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 May 2014 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, refusing to deal with is appeal for the reason that he had withdrawn his appeal (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before this Court on 23 September 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 59, is a Bolivian. He last entered Hong Kong as a visitor and was permitted to stay until 30 March 2020. He overstayed since 31 March 2020 and he surrendered to the Immigration Department on 27 May 2020. The applicant made a non-refoulement claim on 5 June 2020. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay a loan owed to him. The applicant also feared harm from the Bolivian government because of the political affiliation of his eldest brother.

5.  According to the applicant, his eldest brother joined the party “Creemos We Believe” in 2019, which was in opposition to the ruling party. The applicant helped his brother out during political campaign. However, his brother had left the party in late 2020 after he lost the election.

6.  Meanwhile, prior to the applicant’s business trip to Hong Kong in February 2020, he took out a loan from the creditor. Due to the COVID-19 pandemic, the border was closed and the applicant was unable to return to Bolivia to repay the creditor. He told the creditor about his situation over the phone in May and June 2020, who demanded him to repay the loan as soon as possible. The applicant then cut off all his contact with the creditor.

7.  Thereafter, the applicant was told by his colleague in Bolivia that the creditor had gone to his office looking for him. The applicant did not seek assistance from the police because he had no money to bribe them. He also considered internal relocation not viable because he believed that the creditor had the ability to locate him anywhere within Bolivia.

8.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 10 May 2021 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the creditor was not as powerful and influential as he claimed, so that the risk of harm was not that imminent [13]-[14]; (ii) it was his mere speculation that he faced risk of harm from the Bolivian government due his eldest brother’s political affiliation [15]-[17]; (iii) state protection would be available [18]-[23]; (iv) internal relocation would be viable [24]-[25] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[40].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 15 October 2021, he applied, through the Director, to withdraw his appeal. The Board advised him to seek independent advice as to the consequences of his application. The Board further advised him that if it did not receive his reply on or before 1 November 2021, the Board would consider approving his application for withdrawal. On 3 November 2021, as no reply from the applicant had been received, the Board disposed of the applicant’s appeal. In practical effect, the Board had dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 24 June 2024 for leave to apply for judicial review of the Board’s Decision.

13.  In the affirmation in support of his application, the applicant said that the Director’s decision was wrong because he did not make inquiry to understand his dangerous situation in his country. He says if he returns to his country, his enemies will kill him.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  Before me, the applicant admitted that he withdrew his appeal in October 2021 because he wanted to go back to his country. He says that now he cannot go back as he has a family here with his wife and a child of two and a half years old. His wife is a Filippo and she was successful in her non-refoulement application.

17.  The question here is whether the Board was correct to say that the applicant’s appeal had been disposed of and finally determined by it and no further action will be taken by it in respect of his appeal.

18.  Section ZTA of the Ordinance provides:

“(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

19.  The applicant admits that he made his application for withdrawal of his appeal out of his own free will.

20.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

21.  The fact that the applicant has a family in Hong Kong will not change the legal position.

22.  The applicant has shown no realistic prospect of success in his intended application for judicial review of the Board’s Decision.

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.