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HCAL 384/2020
[2025] HKCFI 5148
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 384 OF 2020
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BETWEEN
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Arango Castano Johny Ricardo |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 11 March 2020 and filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 March 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000384_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 14 March 2019, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Director as both the putative respondent and the putative interested party, when the putative respondent should be the Board.
4. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
The applicant’s case
5. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
6. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Colombia, he would face serious harm or death at the hands of Los Urabeños, a paramilitary/criminal group, as he wanted to leave his employment with them as a security guard. He claimed that he was warned that Los Urabeños would kill him and that they tried to kidnap him.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 19 August 2025.
8. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
9. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
10. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
11. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affidavit/affirmation dated 11 March 2020. The applicant merely stated in his affidavit/affirmation that the Board’s Decision was not fair.
Discussion
12. 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 [2018] HKCA 524).
13. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the appeal by the applicant, the Board arranged an oral hearing on 21 January 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
15. As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The Board found that the applicant’s claims about his recruitment and work for Los Urabeños were not just simply vague and inconsistent. His inability to give any details whatsoever about the month that he spent at the Los Urabeños hacienda led the Board to conclude that his claim to have worked there at all was simply false.
16. The Board did not accept that it was credible or plausible that he would be recruited to work for an unknown employer to do work about which he was unable to provide any detail but for which he claimed to have had no relevant experience or skills. Further, the Board did not find it credible that the applicant could have worked for Los Urabeños in Antioquia during 2018 without being aware of the conflicts between the police and the group and without being aware that the police were targeting the group on a crackdown during that period.
17. The Board concluded that the applicant’s claim to have worked for the group was untrue, and therefore there was no basis for his claim that the group had sought to harm him in the past or that they would do so in the future.
18. Moreover, the Board found extensive country of origin information (“COI”) that did not support the applicant’s claim that the Colombian police would not take any action to protect him from Los Urabeños should that be necessary. Hence, the Board found that the applicant had not established substantial grounds, or indeed any grounds, which supported the conclusion that he faced a real risk of ill-treatment, torture, persecution or arbitrary deprivation of life upon his return to Colombia.
19. Although the Board did not make findings as to the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).
20. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
21. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
22. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
23. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 31st day of October 2025
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( Irene LEE )
for Registrar, High Court
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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 the applicant’s 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/Handed to the applicant/the applicant’s solicitors on:
31 October 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 31 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15803/19/4/61/COL45
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 62/19
(Formerly RBCZ 11001/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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