RODRIGUEZ CARRENO SAMUEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 66/2025, [2025] HKCA 631

On An Intended Appeal From [2025] HKCFI 401 &

[2025] HKCFI 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 66 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1741 OF 2024)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  On 3 April 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 28 February 2025 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 28 January 2025 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 5 March 2024, whereby the Board dismissed the Applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 1 November 2013 and 13 July 2018.

3.  Having considered the documents filed herein, we are of the view that it is appropriate to determine the present application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Colombia.  He arrived in Hong Kong with a Colombian passport on 16 September 2006, but was refused entry and arrested by the Customs and Excise (“C&E”) for the offence of trafficking in a dangerous drug.  On 27 April 2007, he was convicted of that offence and sentenced to ten years’ imprisonment.

5.  On 24 May 2013, he raised a torture claim[1] on the basis that, if refouled, he would be harmed or killed by (i) members of a guerrilla group in Colombia called the Revolutionary Armed Forces of Colombia (“FARC”), because he refused to join them, and (ii) members of the then pro-government paramilitary group called the Autodefensas Unidas de Colombia (“AUC”), which forced him to smuggle in drugs and weapons with death threats.

6.  On 11 July 2013, he was discharged from prison for the conviction and sentence mentioned in paragraph 4 above.

7.  By a Notice of Decision dated 1 November 2013 (“the Director’s 1^st Decision”), the Director rejected the Applicant’s torture claim.

8.  On 11 November 2013, the Applicant appealed the Director’s 1^st Decision to the Board.

9.  Pending the determination of his appeal in respect of the Director’s 1^st Decision, the Applicant lodged a non-refoulement claim on 1 April 2014, which was assessed on all applicable grounds other than the risk of torture.  His non-refoulement claim was based on the same grounds raised under his torture claim.  In addition, he claimed that he would also be at risk of harm from members of the AUC because he had given evidence or offered to give evidence against some AUC drug traffickers in Hong Kong, and was perceived to be an informant and traitor.  Details of the Applicant’s claim have been summarised by the Judge at §§18-23 of the CALL-1 Form ([2025] HKCFI 401).

10.  On 10 August 2016, the Applicant was arrested together with an AUC accomplice for, amongst other things, trafficking in a dangerous drug.  On 23 August 2018, he was convicted on his own guilty plea, and sentenced to 12 years’ imprisonment.  He served his sentence in Tai Lam Correctional Institution (“Tai Lam”) until he was transferred to be held under immigration detention in another correctional institution on 14 August 2024. 

11.  By a Notice of Decision dated 13 July 2018 (“the Director’s 2^nd Decision”), the Director dismissed the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].  The Applicant lodged an appeal against the Director’s 2^nd Decision to the Board. 

12.  The Board determined the Applicant’s appeals against the Director’s 1^st and 2^nd Decisions together.  On 5 March 2024, the Board dismissed the Applicant’s appeals, and confirmed both of the Director’s decisions (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§25-34 of the CALL-1 Form.  In short:

(1)  The Board, having considered the relevant country of origin information (“COI”) and the Applicant’s evidence, accepted his account concerning his background in Colombia and his claim that he was forced to smuggle drugs and weapons in the past prior to his departure for Hong Kong.  However, the Board did not believe his claims with respect to his account of events that happened since his arrival in Hong Kong, his family circumstances and the risks he would face if he returned to Colombia now.  The Board did not find the Applicant to be a reliable witness.

(2)  The Board did not find any or sufficient evidence to show that the information the Applicant had given to the authorities led to any convictions or other adverse consequences for any AUC drug traffickers, or that the Applicant would be targeted or threatened in Colombia by reason of being an informant. 

(3)  Based on the COI, the Board found that the FARC had abandoned its armed struggle and entered the political mainstream in Colombia, and that the AUC had also been demobilised since 2006 and no longer existed.  The Board did not consider the Applicant would face any risk of harm from either of these groups or their members.

(4)  The Board also considered that there was only a remote likelihood that the Applicant would be coerced to resume his role in drugs trafficking or other criminal activities by the former AUC members, or harmed by them for his failure to discharge the drugs delivery tasks in 2006 upon refoulement.  In any event, the Board considered that such risk of harm was a localised one and the Applicant could relocate to other parts of Colombia.

(5)  The Board did not believe that the Applicant would be targeted or harmed by the Colombian government on account of being a FARC spy.  

(6)  In conclusion, the Board did not consider that the Applicant would face any relevant risk of harm in Colombia now or in the reasonably foreseeable future under the applicable grounds for non-refoulement protection.

13.  On 3 October 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By then, he was around four months out of time in making his leave application.  The Applicant’s grounds of intended challenge, as set out in a two-page statement attached to his supporting affirmation of the same date, have been summarised by the Judge at §36 of the CALL-1 Form, as follows:

“(1) The immigration officer never really investigated into his case but made a determination on the basis of information found on the internet;

(2) Relocation is impossible because Colombia is now governed by the FARC which tortured him since he was a child;

(3) The immigration officer ignored his injuries and found he had not been tortured;

(4) The immigration officer changed his declaration and misrepresented his case saying that he was working on drugs and weapon and not that he was forced into trafficking by the AUC;

(5) By the order of the Colombian mafia and with the cooperation of the C&E, [an AUC member named Posso Vergara Cristhian Enrique (‘Vergara’)] framed him for trafficking drugs in Hong Kong so that the Immigration Department may send him back to Colombia and sabotage his non-refoulement claim; but he had never committed the offences;

(6) In 2013 or 2014, he gave information to the Hong Kong Police to enable the police to arrest many Colombian traffickers; hence he could not return to Colombia for fear of revenge; and

(7) The Board rejected his request to adjourn the hearing of the appeal until he was released from prison so that he could furnish the Board with supporting evidence.”

14.  The Applicant attended hearings before the Judge on 13 and 23 December 2024.  At the hearing on 13 December 2024, he admitted having received the Board’s Decision in Tai Lam in March 2024.  He said that he was illiterate and could not read or understand the Board’s Decision written in English.  He also said that he did not know how to apply for judicial review and had no assistance from the prison officers while serving his sentence or being held under the immigration detention.  At the adjourned hearing on 23 December 2024, the Applicant produced documents to show, among other things, that he was suffering from medical conditions that prevented him from preparing the Form 86. 

THE JUDGE’S DECISION

15.  On 28 January 2025, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review, and dismissed the leave application.

16.  The Judge considered that the Applicant’s delay in making the leave application was substantial and without any reasonable explanation. The Judge refused to grant the Applicant leave to apply for judicial review on the ground of delay for the reasons fully set out at §§4-17 of the CALL-1 Form, which it is not necessary to repeat in this Judgment.  The Judge also found that the Applicant was reasonably or at least adequately communicable in English.  The Judge did not believe that the Applicant was suffering from any medical condition, or that any such condition was so serious as to prevent him from making his leave application timely (§§11 and 16).

17.  In any event, the Judge proceeded to consider the merits of the Applicant’s grounds of intended challenge and refused to grant leave to apply for judicial review on the merits, for the following reasons:

“[38] These grounds are mainly directed at the immigration officer or the decision of the Director in the Notices. However, the decisions in the Notices were superseded by the Board’s Decision. For his benefit, the Court assumed that these grounds are also directed at the Board insofar as the context permits. However, on a proper and fair reading of the Director’s Notices and the Board’s Decision, it is manifestly clear that except for grounds (2) and (7) the grounds or assertions, properly called, are factually untrue or incorrect. They are his own assertions and misrepresentation of the truth.

[39] The Board investigated fully into his case. It studied and accepted the evidence in the COI relating to the Applicant’s background before he came to Hong Kong. It fully accepted his evidence about such background, the threats from the FARC and the AUC and that he was forced to traffic for the AUC. The Board accepted that he had been tortured, but found as a matter of law that the ill-treatment did not fall within the definition of ‘torture’ for the purpose of Torture Risk claim due to lack of involvement by a public official or other person acting in an official capacity. It accepted that at least some of the treatment in the past amounted to cruel, inhuman or degrading treatment or punishment for the purposes of BOR 3, but found the current risk is low in view of change of the political scene today, twenty years later. It is not the case that the Board turned a blind eye to the injuries he suffered. Copies of his original statements, the NCF etc are in the hearing bundle. There was no alteration of the Applicant’s documents or declarations by the immigration officer. His grounds (3) and (4) are factually untrue or are his own misrepresentation of the truth.

[40] The Board did refer to the current COI from independent, credible and authoritative sources which also form the basis of the Board’s Decision that the current risk is low due to change of the political scene. The Applicant had been held in custody in Venezuela or Hong Kong for the last 20 years and had never returned to Colombia. He has no personal experience about the current situation in Colombia and has produced no current COI to contradict those relied on by the Board and the Board’s finding. The Board’s finding on current conditions in Colombia and feasibility of internal relocation are findings of fact solely within the realm of the Board. These findings could not be criticised as error of law, procedural unfairness and irrational. There is no substance in his grounds (1) and (2).

[41] The Applicant’s grounds (5) and (6) are simply his own speculation which is not supported by any objective evidence or reasonable inference. Not only that, they are contradicted by the judgements of the High Court and Court of Appeal which show that he was caught red-handed by C&E officers who observed his collection and possession of drugs, and more importantly, that he pleaded guilty to the charges on both occasions. The Board had comprehensively studied the judgments of the High Court and Court of Appeal which showed that the Applicant never gave evidence against Vergara or anybody else and that his name was not among the list of prosecution witnesses. The Applicant also admitted to the Board that he had not given evidence in against Vergara or his uncle. See paragraphs 26 and 27 for a more comprehensive analysis of the Board’s finding on this issue.

[42] As for his complaint about the Board’s refusal to adjourn the hearing until after he had served his sentence and to grant him bail so that he may obtain evidence to support his claim, it does not appear from the Decision that these matters had been raised.  In any event, the Board has no authority to grant him bail. Whether to allow the Applicant to be released on recognisance is a matter solely for the Director.  In any event, all the materials he required to prove his case had been submitted by him and were in the hearing bundle.  The Board fully accepted his background before he came to Hong Kong as he asserted.  It even rendered assistance to enable him to recover messages from his telephones as evidence of the threats he received while in Hong Kong.  The Board acted mostly on incontrovertible evidence, such as the COI relating to his background and relating to the current conditions in Colombia, the judgments of the court relating to his and Vergara’s convictions, etc.  On the other hand, he has not identified any particular evidence which he claimed he has and which he was prevented from adducing.  There is no substance in his [ground (7)].”

18.  Overall, the Judge considered that there was no error of law, Wednesbury unreasonableness or irrationality in the Board’s Decision, or procedural unfairness at any stage of the non-refoulement proceedings.  The Judge concluded that there was no merit in the Applicant’s leave application and his intended judicial review had no realistic prospect of success (§43).

19.  On 13 February 2025, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, he was two days late to lodge his appeal.  As summarised by the Judge, the Applicant raised two grounds of intended appeal, namely, his leave application was refused because of discrimination due to his criminal records, and also because the court did not believe that he had been suffering from cancer.  On 28 February 2025, the Judge refused the Applicant’s application, holding that he had failed to put forth any arguable grounds of appeal, and he did not have any prospect of success in his intended appeal ([2025] HKCFI 768).

THIS APPLICATION

20.  By a summons taken out on 3 April 2025, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Judge’s order of 28 February 2025.

21.  Attached to his supporting affirmation of the same date is, amongst other things, a 6-page document titled “Grounds For [His] CAMP Appeal”.  In that document, the Applicant raised various grounds of intended appeal, which may be summarised as follows:

(1)  In considering his explanation for the delay in making his leave application to apply for judicial review, the Judge failed to take into account that he was helpless in prison without any language or legal assistance, and further that he was suffering from tuberculosis and lung cancer (Ground 1).

(2)  The immigration officer did not determine his case fairly by relying only on information from government website(s) without investigating into his case or taking into account relevant news (Ground 2).

(3)  The immigration officer failed to take into account that he was forced to smuggle drugs and weapons against his own will. He asserted that he did not commit the crime(s) that he had been charged with (Ground 3).

(4)  The immigration officer’s finding that he could relocate himself to another city in Colombia is unrealistic because he was targeted by the Colombian government and active members of the FARC.  He also claimed that he had problem with the Colombian mafia because he was an informant to the police in Hong Kong (Ground 4).

(5)  The immigration officer erred in rejecting his claims because he would impose a danger to the society in Hong Kong following his criminal convictions (Ground 5).

(6)  The Board and the Judge erred in not allowing him to have time or opportunity to provide all his evidence to support his case as it was difficult for him to provide them when he was in prison or was detained (Ground 6).  

(7)  To deport him or to keep him in detention would be against the “immigration rules” that one cannot be deported or detained when there are outstanding cases to attend to (Ground 7).

22.  Attached to his supporting affirmation are various documents which the Applicant seeks to rely upon for the purpose of his intended appeal:

(1)  a medical report dated 13 February 2025 (“the Medical Report”) and other medical records which appear to show the medical examination and treatments received by the Applicant between January 2023 and May 2024 (“the Medical Records”);

(2)  two news articles purported to be from the South China Morning Post with their dates of publication marked as 21 January 2025 and 9 March 2025 respectively (“the News Articles”), in which it was reported that there was an outbreak of guerrilla violence, and another incident involving a taking of hostage that occurred in the cocaine-growing regions of Colombia, and both incidents were believed to be connected with the FARC; and

(3)  case managements directions made by the Small Claims Tribunal in SCTC 3844/2022 following a hearing on 21 January 2025 and a letter by the Small Claims Tribunal dated 21 February 2025 (“the Small Claims Materials”).  It appears that the Applicant is a party to the action in the Small Claims Tribunal with a trial fixed to be heard on 30 July 2025.

23.  The Applicant has failed to lodge written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals in 3 April 2025.

DISCUSSION

24.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

25.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

26.  In the present case, the Applicant’s delay of two days is not substantial, and we shall focus on the merits of the Applicant’s intended appeal.

27.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

28.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

29.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

30.  Grounds 1 to 4 and 6 are essentially repetitions of the matters raised before the Judge in the proceedings below, but correctly rejected by the Judge for the reasons set out in the decision of 28 January 2025.  In particular, in respect of Ground 6, the Applicant plainly had ample opportunities to gather evidence to substantiate his case.  He had in fact made use of those opportunities by providing various documents and making submissions to the Board and to the Judge at different stages.  None of the above grounds constitutes any viable grounds of appeal against the Order.

31.  Ground 5 is directed at the decisions of the Director, which have been overtaken by the Board’s Decision, and is likewise not a viable ground of appeal against the Judge’s decision.  In any event, Ground 5 has no substance.  In confirming the two decisions of the Director and rejecting the Applicant’s appeals, the Board did not make, or rely on, any finding as to whether the Applicant would impose any danger or potential danger to the society if his appeals were allowed.

32.  The Applicant’s repeated assertions that he did not traffick in dangerous drugs on his own free will, and denials of commission of offences of drugs trafficking cannot assist him in his intended appeal.  In any event, as pointed out by the Judge in his decision of 28 January 2025, the Applicant pleaded guilty to the criminal charges on both occasions (§41).  His convictions on the charges of drugs trafficking have never been overturned.

33.  Ground 7 is a new point which was not raised below.  The Applicant is not entitled to raise it as a ground of appeal against the Judge’s decision.  In any event, it has no substance.  His detention has no bearing on the merits of his intended application for judicial review or appeal.  His application for leave to apply for judicial review has already been refused by the Court of First Instance.  There is no legal impediment to his deportation after the refusal of his application for leave to apply for judicial review, even though he may be seeking an extension of time to appeal against that refusal. 

34.  Finally, the documents attached to his supporting affirmation are new evidence.  The Applicant has not made any formal application for leave to adduce new evidence in support of his intended appeal.  In any event, to justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489[5] (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)). 

35.  We do not consider the second Ladd v Marshall condition is satisfied in the present case, as the proposed new evidence adds nothing of substance to the Applicant’s intended appeal.

(1)  In respect of the Medical Report and Medical Records, they show that the Applicant has received, amongst other things, anti-tuberculosis treatment from hospital since April 2024, and that he has recovered from tuberculosis since 5 July 2024.  We agree with the Judge’s view that the medical conditions asserted by the Applicant do not constitute any reasonable explanation for his delay in filing the Form 86.

(2)  In respect of the News Articles, although the two reported violent incidents in Colombia were both said to be attributable to guerrilla groups formed by former members of the FARC, the Board’s finding that the FARC had been disarmed or defunct was reinforced in the news.  The Board took into account the Applicant’s admission that he no longer had any problem with the FARC, and found that the Applicant would not be subjected to any real risk of being harmed or killed by the FARC or by the Colombian government (see §§169, 235, 242 and 246 of the Board’s Decision).  The Board also rejected the Applicant’s challenge in respect of viability of internal relocation, and confirmed the Director’s finding that reasonable internal relocation was available to the Applicant (see §§42, 58 and 221 of the Board’s Decision).  These are matters primarily within the province of the Board.

(3)  In respect of the Small Claims Materials, the fact that the Applicant has an outstanding claim in the Small Claims Tribunal to attend to is not a valid ground to prevent his deportation from Hong Kong.

36.  Having reached the view that the second Ladd v Marshall condition is not satisfied, it is not necessary to consider the first or third Ladd v Marshall conditions.  Finally, we do not consider that there is any, or any sufficient, exceptional circumstance to justify exercising our residual discretion to admit the proposed new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions. In all, we do not consider that the Applicant should be permitted to rely on the proposed new evidence for his intended appeal.

37.  The Applicant has failed to point to or show any error in the decision by the Judge refusing to extend time for him to apply for leave to apply for judicial review, or grant leave to apply for judicial review. 

38.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

39.  The Applicant’s summons taken out on 3 April 2025 is dismissed.