MORENO PAZ ALEJANDRO v. DIRECTOR OF IMMIGRATION

HCAL 326/2024

[2024] HKCFI 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 326 of 2024

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 to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 15 February 2024 for leave to apply for judicial review (the “leave application”) of a decision of the Director of Immigration (the “Director”) made on 25 January 2024. He named the Director and the “Adjudicator of the non-refoulement claim petition on office appointed to determine of applicated petition” as the proposed respondents in the Form 86.

2.  The Applicant is a Mexican national. He entered Hong Kong on 22 December 2022 as a visitor and was permitted to remain until 22 March 2023. He was arrested on 7 January 2023 and was later convicted in relation to a dangerous drugs offence. On 5 September 2023, while serving his prison sentence, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed by the Director of Immigration (“Director”) on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice of Decision dated 13 November 2023 (the “Notice”) the Director rejected his claim. His appeal against the Notice was dismissed by the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 25 January 2024 (the “Decision”). He also annexed a copy of that Decision in his affirmation in support of his leave application. There was no decision by the Director relating to the Applicant dated 25 January 2024. Pulling all these facts together, it is obviously the Applicant’s intention to seek judicial review of the Decision of the Board dated 25 January 2024 dismissing his appeal against the decision of the Director in his Notice dated 13 November 2023. The Board and the Director should respectively be the proper proposed respondent and proposed interested party. Accordingly, leave is granted to amend his Form 86 as aforesaid to give effect to his intention.

4.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he will be harmed or even killed by his ex-tuition student “LHG”) upon his return because LHG failed an examination for which the Applicant had given him private paid tuition. At the appeal before the Board, he also added that he had been living in fear of an infamous cartel in Mexico named the “Sinaloa cartel” (“Sinaloa”),

6.  The Applicant, now aged 42, was born in Guadalajara, Jalisco, Mexico. He received 15 years of education and has 14 years of working experience as a construction worker, an office cleaner and a physiotherapy assistant. He obtained a degree in physiotherapy in 2016 and started working as an assistant in a local physiotherapy centre in 2017. He also gave private tutorials to students trying to seek admitted to the physiotherapy programme of an educational institute.

7.  In November 2018, LHG paid the Applicant US$1,000 for 8 classes of tutorial. LHG failed the admission examination and demanded a refund of US$3,000. The Applicant refused.

8.  One day in 2019, the Applicant was attacked by three unknown men near his workplace (the “incident”). The assailants were armed with what looked like baseball bats. They hit his face, nose and limbs. He suffered a bleeding nose and had scars on his limbs. The assailants told him that they came to teach him a lesson for his wrongdoing.

9.  After discussing with his living partner, he concluded that the assailants were sent by LHG. He did not seek medical treatment because he was concerned that he would be asked by the medical staff about the incident and have to make a police report.

10.  He told his students about the attack and he learnt that LHG was a distant relative of a notorious gangster (“JG”). JG was a powerful figure in the Mexican territories bordering on the United States. JG was imprisoned twice in Mexico but he managed to escape on both occasions. JG was later sent to the US to be imprisoned.

11.  He tried to make a report to the Mexican police but the officers told him to better stay silent or he would get into more trouble. LHG continued to harass him, so he quit his job at the physiotherapy centre in around 2020. He also stopped giving tutorials. He worked as a construction worker and nothing eventful happened until August 2022 when he ran into LHG in a shopping mall. LHG shouted foul language at him and he walked away. A few weeks later, he ran into LHG near his home. LHG told him to leave the city because he had made a police report against LHG. LHG also threatened to kill him unless he left. The Applicant stayed at his home for four months until 20 or 21 December 2022 when he took a bus to Cancun and then flew to Hong Kong via Frankfurt.

12.  When asked by the Director why he did not seek non-refoulement protection immediately after coming to Hong Kong, he said his friend had a restaurant in Hong Kong and his friend wanted him to find a job in Hong Kong as well as to look for protection. He explained that “coming to Hong Kong is not for seeking refuge but to find a job … to help myself settle my problem with LHG. Only after being imprisoned in Hong Kong I will not be let outside and will be deported, so I seek protection in order not to be returned to Mexico.”

13.  He does not believe the Mexican police would protect him, as they are corrupt and had informed LHG about his attempt to make a police report against LHG. He did not believe internal relocation would be viable because it was dangerous to live anywhere in Mexico due to cartel activities.

The finding of the Board

14.  The Applicant testified before the Board. He repeated his case regarding LHG and added that he faced risks from the Sinaloa cartel because LHG had previously offered him a job in his illegal activities as a means to pay off the money LHG demanded from him, but the Applicant refused. As a result, the Sinaloa cartel targeted him since 2020. He also claimed that LHG had told his partner and his son to leave their home. His partner and their son were unharmed, but nevertheless moved to Columbia.

15.  In answer to the Board’s query asked why he did not mention the threats from the Sinaloa cartel in his claim before the Director, he put the blame on the standard of translation by the interpreters. The Board did not accept this explanation, as he had at least three opportunities to provide the information during the screening interview. Further, his answers during the interview had been read back to him and he had confirmed their content by signing on every page. More importantly, it was his evidence before the Director that nothing eventful happened between 2019 and August 2022, which directly contradicted his claim to the Board that the Sinaloa cartel started targeting him since 2020. The Board therefore rejected his claim that he had been personally targeted by the Sinaloa cartel or that he had been harassed by the Sinaloa cartel when he went to Cancun. It nonetheless accepted that he might hold a subjective belief that the Sinaloa cartel posed risks to him.

16.  The Board accepted that he had a private monetary dispute with LHG and that the amount of money under dispute had grown to US$10,000 when his appeal came to be heard by the Board.  However, it did not accept that LHG posed any serious threats to him. There was no evidence linking LHG with JG or the Sinaloa cartel. There was also no evidence to link the incident with LHG. Although he claimed that LHG had threatened him during his last encounter with LHG in August 2022, he was not attacked during that occasion. Further, notwithstanding the alleged threats from LHG, the Applicant stayed at his home for four months after August 2022 without being harmed. The Board therefore found LHG had no intention to seriously harm or kill the Applicant. It also doubted whether LHG would cause him harm upon his return, as he had been away from Mexico for more than a year and he had not heard any update about LHG after his family moved to Colombia.

17.  The Board accepted on the basis of authoritative and credible country of origin information (“COI”) that there may be doubts about the effectiveness of the Mexican police. However, the same COI also suggested that there are objective indications that the government has taken practical steps to maintain public order and safety in its jurisdiction and to improve the effectiveness and monitor the conduct of the police. The Applicant’s complaint about ineffectiveness of the police is a general one. As the alleged threats from LHG were limited to his home area, the Board found that the Applicant could safely relocate to another part of the country to avoid the perceived risks. Even if the Board was prepared to accept that the local police had refused to file a report for him, it found that the Applicant could seek help from the police in another part of the country and that state protection would be available to him.

18.  For Persecution Risk ground, the Board found that neither LHG nor the Sinaloa cartel could be considered as state actors for the purpose of considering persecution risk. It also found that the Applicant’s dispute with them had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground. In any event, state protection would be available to avoid the risk of harm.

19.  In respect of BOR 2 Risk ground, the Board found that there was nothing to suggest that the Applicant would be deprived of his life by the Mexican government or that his life would be threatened by a risk targeting him personally.

20.  As for BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest he would be at such risk of such harm if refouled.

21.  As for Torture Risk ground, the Board found that there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant. It was also not his case that there was any acquiescence by the state in inflicting the ill-treatment on him or there is any consistent pattern of gross, flagrant or mass violation of human rights. The claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

22.  On the basis of the COI, the Board found that as an able-bodied person, the Applicant could safely relocate to Mexico city or Oaxaca to avoid the perceived risks from LHG, which were localised within his home area.

23.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

24.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

25.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he reiterated his dangerous situation if returned to Mexico. He repeated the same in response to the Court’s invitation to file submission via its letter dated 12 March 2024.

26.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Mexico. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

27.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

28.  The Board assessed the Applicant’s claim primarily on the basis of the case as he asserted. It accepted the Applicant’s account and found that he was subjectively in fear of harm from LHG and Sinaloa cartel. The Applicant could not have any complaint about this finding of primary facts. On the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for his fears and his feared risk of harm is not real. It gave full reasoning for its finding. These is a finding of fact which is 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. Furthermore, on the basis of the COI, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

29.  For the above reasons, leave to amend the Notice of application for leave to apply for judicial review is granted, but the application for leave is refused.

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