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HCAL 532/2019
[2022] HKCFI 695
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 532 of 2019
BETWEEN
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Saavedra Silva Sergio Ricardo |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 11 January 2019 (the “Decision”).
2. The Applicant is a Peruvian national, now aged 36. He arrived in Hong Kong on 4 December 2016 and was allowed to remain as a visitor until 3 January 2017. He surrendered to the Immigration Department on 4 January 2017 and then lodged his claim for non-refoulement protection.
3. In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By the Notice dated 1 June 2018, the Director rejected his claims. He appealed against the decision in the Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and his written statement. In gist, his case is that if returned to his home country, he would be at risk of being harmed or killed by a drug gang.
5. According to his written statement, his problems in Peru were caused by his sister, Gisela who was pushed by the drug gang to traffic in dangerous drugs. Gisela was arrested in Hong Kong, sentenced to imprisonment and then released in early 2015 after serving her sentence. The drug gang gave the Applicant and her other sister, Norma, until November 2016 to “provide” Gisela. The Applicant made a report to the police. The drug gang retaliated by killing his brother on 2 November 2016. Then, the Applicant fled to Hong Kong.
The finding of the Board
6. The Applicant testified before the Board. The Board found numerous significant inconsistencies between the Applicant’s evidence oral testimony and that disclosed in his NCF and written statement, including which of his sisters was pushed by the drug gang to traffic in dangerous drugs. The Board found the Applicant not a witness of truth and that he had fabricated claims in relation to his fears and risks. In conclusion, the Board found he had failed to discharge his burden of proving his entitlement to non-refoulement protection under any of the applicable grounds under the USM and hence dismissed his appeal.
Grounds for judicial review
7. The Applicant’s ground of application as stated in his supporting affirmation is that the Decision was bias and unreasonable. He gave no particulars of the alleged bias and unreasonableness. After some exchanges with the Applicant during the hearing on 2 March 2022, it became clear that the Applicant wanted to stay in Hong Kong and the sole basis his complaint is that his appeal was dismissed by the Board. As a result, he is not allowed to stay in Hong Kong. His application is therefore a challenge of the Board’s finding of fact in the guise of judicial review.
8. Probably upon a realisation of his situation, the Applicant said he wanted to return to Peru and did not want to pursue his application for judicial review during the hearing on 2 March 2022. To ensure that his decision was freely made and that it is safe for him to return to his home country, the Court engaged in further discussion with him about his alleged fears and risks. He said that both Gisela and Norma had returned to live in a remote village in Peru far away from the city where the drug gang would be unlikely to find them. He also wished to do the same. He said he would be able to find employment. He said he would seek assistance from the police if necessary, though he is not confident he could obtain adequate protection. Nevertheless, he believes it is safe to return to Peru now and he knows how to survive.
9. The Applicant’s views are in line with the Board’s finding that there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to his home country. The Court was also satisfied that his decision to return was made freely and voluntarily. Accordingly, the Court dismissed his application for leave to apply for judicial review.
Dated 23rd day of March 2022.
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( Allen LEE )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 23/3/2022
Saavedra Silva Sergio Ricardo
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/3/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12086/18/6/265/PER3
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 10218/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
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