RAMOS GUTIERREZ CARMEN ROSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 66/2022

[2025] HKCFI 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 66 OF 2022

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 63-year-old national of Peru who entered Hong Kong on 24 January 2019 as a visitor with permission to remain as such up to 23 February 2019 when she did not depart and instead overstayed, and on 25 February 2019 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Peru she would be harmed or killed by her estranged husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Lima, Peru. After leaving school she worked in various jobs to support herself, and in 1993 she went to Panama to look for jobs, and while working in a local nightclub, she befriended an American who was there dealing in drugs trafficking activities, and eventually they got married in Peru, and in 1994 her American husband brought her back to his home in New Jersey, USA where they lived together.

3.  However, the Applicant soon found her American husband to be a violent and abusive man who would frequently demand to have sex with her without any regard for her health or emotion, and would often threaten her and beat her at will.

4.  Eventually the Applicant found herself unable to tolerate living with her American husband, and in 1996 she left him and USA, and for the next twenty years she travelled to various places in South America and Europe to work to make her living.

5.  However, due to deteriorating health she decided to stay in Spain and then in Switzerland by seeking for asylum in both countries, and when her applications were both rejected, she then travelled to Hong Kong in January 2019 to raise her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 September 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 14 January 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her American husband upon her return to Peru as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence or indication at all that her husband would be in Peru to harm her after she left him in USA in 1996 without any further contact between the 2 of them that it is not accepted that her American husband would still have any adverse interest in her after all these years, and that in any event it was a private marital dispute between her and her husband only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Peru with a large population of 31 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities where it would be difficult if not impossible for her American husband to locate her.

8.  On 24 January 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 8 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 November 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of an abusive relationship with her American husband years ago but found no evidence of any real intention of him to seriously harm or kill her or that he would still have any adverse interest in her after all these years without any contact between the 2 of them, and that in any event it was a private marital dispute between them only without any official involvement that state or police protection would be available to the Applicant upon her return to Peru if resorted to that the Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 18 January 2022 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 or her supporting affirmation of the same date to which she just attached a copy of the Board’s decision but without putting forth any proper ground for her intended challenge. 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.

11.  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.

12.  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 even if real was a private marital dispute between her and her American husband only without any official involvement that state protection would be available to her upon her return to Peru, and that it was also correctly found by the Director that such risk even if real is a localized one and that it is not unreasonable or unsafe for the Applicant to relocate to other part of Peru, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

15.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to her home country, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order to the Applicant in Peru.

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