GONCALVES CASTRO CRISTHIAN FELIPE v. TORTURE CLAIMS APPEAL BOARD

HCAL 2755/2018

[2022] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2755 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Colombia who arrived in Hong Kong on 19 June 2013 as a visitor with permission to remain up to 17 September 2013 when he did not depart and instead overstayed, and was arrested by police almost 5 years later on 15 March 2018 for possession of dangerous drugs for which he was subsequently convicted and sentenced to prison for 6 month, during which he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Colombia he would be harmed or killed by his father’s creditors over his father’s outstanding loans. 

2.  The Applicant was born and raised in Pereira, Risaralda, Colombia. After leaving school he worked as a fitness trainer in his home village, and after having developed a relationship with a Spanish girl residing in Hong Kong via the internet, he subsequently departed Colombia on 17 June 2013 for Hong Kong to meet her, and when they decided to live together, he then overstayed in Hong Kong.

3.  In 2015 he was informed by his mother in Colombia on the phone that his father had fled from Colombia to Portugal after some local loan sharks had made death threats against him over his outstanding loans, and when the loan sharks were unable to find his father, they threatened his mother the Applicant should repay the loans for his father or else the Applicant would be killed, and hence later when the Applicant was arrested by police for drugs possession, he feared that he would be killed if deported back to Colombia, and therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 31 August 2018 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 his 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted his claim of fear of harm from his father’s creditor due to lack of any reliable evidence of such threats, that the credibility of such claim was further undermined by his failure to raise it at the earliest opportunity until much later after his arrest, that even if such threats were true that it is assessed that the level of risk of harm from his father’s creditors upon his return to Colombia as low due to the absence of any past ill-treatment from them, that it was in any event a private monetary dispute between his father and the creditors 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 Colombia with a large population of 47 million people spread across a vast territory of more than 1.1 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 part of Colombia away from his home district in large cities such as Bogota where it would be difficult if not impossible for his father’s creditors to locate him.

6.  On 5 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 31 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the credibility of the Applicant’s claim based entirely on hearsays from his mother or other third party doubtful and unreliable, and that in any event it was a private monetary dispute between his father and the creditors without any official involvement that state/police protection would be available to him if needed upon his return to Colombia as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

8.  On 4 December 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his 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 his claim even if true would be a localized one and that in which case it would not be unreasonable or unsafe for him to relocate to other part of Colombia, there is simply no justification to afford him 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.

12.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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