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HCAL 398/2019
[2022] HKCFI 709
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 398 OF 2019
BETWEEN
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Gallego Valdes Augusto |
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 The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Procedural history
1. The applicant first arrived in Hong Kong in September 2017 and had returned to China to renew his visitor’s visa on 28 November 2017. He therefore entered Hong Kong legally on 28 November 2017 on the strength of a visitor’s visa but surrendered to the Immigration Department on 28 February 2018, two days after its expiration. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 3 August 2018. His NRF claim form was submitted on 14 September 2018 and dealt with under the USM[1].
2. The applicant attended a screening interview on 21 September 2018. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 September 2018. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 4 October 2018. The adjudicator of the TCAB, Ms Chan Ling-ling Tracy (“the Adjudicator”), heard his appeal on 14 January 2019. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 25 January 2019.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 February 2019 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Columbian national. He was born on 27 August 1983 in El Aguila, Valle, Colombia. He was educated up to university level with a degree in architecture. After 2008, he worked in management as well as running his own architectural projects business. In 2002, the applicant commenced a relationship with Yennifer Catano Parra (“Yennifer”) and eventually had two children with her. That relationship broke down at some stage after 2008 and by 2010 Yennifer had entered into a relationship with a man called Jose Miguel Taborda Zamora (“Jose”). According to the applicant, Jose was known to be the leader of a drug cartel called OE[2]. During this period there was considerable disagreement over the custody and care of the applicant’s two sons. The applicant states that Jose used his connections to threaten him and attempted to have him killed in 2010 but these threats were not reported to the police as the applicant considered it to be a personal matter. He remained near to his sons throughout the following four years only moving home to Pereira in 2014 when he considered the situation had become too dangerous. However, he was the subject of a further attack in his home town in September 2014, in which he suffered an injury to his leg (which was like a scratch) and further injury when trying to escape (cutting his arm on window glass and/or objects in the river into which he had jumped). He reported this attack to the police but when he later checked its progress, the police could find no trace of the report. The applicant stopped attempting to contact Yennifer or see his sons from that time onwards. Despite further threats by telephone to the applicant’s parents, the applicant remained living close to his parent’s home and kept a low profile. In 2017, some three years after this attack, the applicant moved once more for fear of being located. He maintains his parents still received threats against him throughout but that once the harassers were told that the applicant had left the country, no more was heard from them.
The non-refoulement claim
5. Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:
i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. 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”). Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.
6. It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.
Decision of the Adjudicator
7. The applicant seeks to review the Decision of the Adjudicator. The Adjudicator analysed the applicant’s claim on all applicable grounds in a document which is 22 pages in length. She arranged for an oral hearing and treated the appeal as a rehearing and had available to her all the relevant documentation submitted by the applicant and the notes of interview by the screening officer. The Adjudicator noted that the applicant complained that the screening officer had mistakenly recorded the dispute with Jose as a land dispute[3] and that he had not been competently represented by the Duty Lawyer Service. She correctly set out the law and key legal principles including the burden and standard of proof[4].
8. There were significant factual discrepancies which the Adjudicator described within her Decision[5]. As a result, the Adjudicator asked the applicant for an explanation and did not find the evidence of the applicant in reply to be credible. She applied the facts as she found them to be to the relevant principles and burden of proof and found that the claim had not been made out.
Leave to apply for judicial review
9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review her.
Grounds of review
10. There were no grounds of review. He has not complained to this Court of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
11. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determination, which was open to her on the facts and eminently reasonable[6].
12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.
Dated the 15th day of March 2022.
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(Trista Wong) |
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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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent/s and such interested parties as may be directed by the court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the registrar;
(i) a copy of the sealed judgement or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice Order 59, rule 5(1); and
d) the registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served Order 59 rule 5(3); and
e) comply with Order 59 the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 15/03/2022
Gallego Valdes Augusto
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 15/03/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13735/18/10/77/COL32
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3623/18 (formerly
RBCZ 78/18)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Unified Screening Mechanism
[2] Office of Envigado – a coalition of mid-sized criminal organisations that provide services to transnational drug traffickers.
[3] There is no reference to a land dispute in the Decision dated 28 September 2018
[4] E.g. TCAB Decision [9]
[5] E.g. TCAB Decision [29] [35]
[6] Nupur Mst v Director of Immigration [2018] HKCA 524
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