GONZALEZ ROALINA MARIA v. TORTURE CLAIMS APPEAL BOARD

HCAL 174/2022

[2026] HKCFI 2951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 174 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, “Director of Immigration” be added as the putative interested party.

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 3 March 2022 and filed on 2 March 2022, 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 15 June 2021 (“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/2022/HCAL000174_2022_files/the_Board's_ Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 27 December 2018, which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.  Thus, this court makes an order on its own motion to add “Director of Immigration” as the putative interested party.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed her Form 86 on 2 March 2022, which was more than 8 months after the Board’s Decision (made on 15 June 2021).  The applicant was hence late for more than 5 months in making the Leave Application.

7.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 

9.  A delay of more than 5 months is substantial, and there is simply no reason for this court to grant an extension of time to file the Leave Application when no explanation was given.  More importantly, there is no merit in the Leave Application at all as discussed below.

10.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to Colombia, she would be harmed or even killed by members of a paramilitary, quasi-political criminal organization called the National Liberation Army or “ELN” (Ejército de Liberación Nacional), as she implicated an ELN group member in the murder of her father.

Disposal on paper

14.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

15.  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).

16.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 28 February 2022.  In her affidavit, the applicant only mentioned that her father was her reason why she could not go back to her country Colombia, the ELN group who killed her father was still looking for her as she was the only witness who was there, and she needed to hide far away from her family for her mother’s safety.

Discussion

17.  First of all, what the applicant mentioned in her affidavit was basically a reiteration of the basis of her non-refoulement claim, which had already been fully assessed by the Board.  Thus, the applicant’s danger upon return to her country had been duly analyzed and determined.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

18.  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).

19.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 February 2021.  The applicant was present and was thus given the chance to present her case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s non-refoulement claim. 

22.  The Board had laid out its findings on the applicant’s case in paragraphs 72 to 86 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

23.  In gist, the Board accepted the applicant’s claims that her father had been killed and those responsible for the attack might have belonged to or been associated with ELN, which, as the country of origin information (“COI”) indicated, was a prominent organisation responsible for much criminal activity in Colombia.  The Board was also ready to accept that the applicant’s testimony helped to identify and convict one of those responsible, and that she and her family were subsequently pressured by that man’s associates both before and after that conviction in an attempt to dissuade her from testifying and to punish her for having done so.  The Board further accepted that the applicant’s mother was assaulted and her brother was kidnapped, the applicant left Colombia for her own safety, and in an attempt to avoid the threats and harassment to which they had been subjected, her family had relocated a number of times, stopped using social media, changed their phone numbers and stopped registering their phones in their own names.

24.  Nevertheless, the Board found that the ill-treatment the applicant feared was not for a Convention reason.  The applicant had never been physically harmed in the past when she was in Colombia, despite having been followed by her enemies on a number of occasions.  There was ample time and opportunity for her enemies to seriously harm her had they been determined to do so.  The Board hence found that there was only a remote likelihood of the applicant being subjected to serious harm if she returned to Colombia.

25.  With regards to state protection, the Board noted that the police in Colombia investigated the killing of the applicant’s father, identified and prosecuted the person responsible, and secured his conviction.  The Board adopted the principle laid down in Horvath[1] and found that despite the existence of shortcomings including corruption within the police force in Colombia, it was apparent from COI that the government of Colombia was not acquiescing, but actively tackling corruption and that it had actively pursued and prosecuted members of the ELN.  The Board was therefore satisfied that state protection was available to the applicant in Colombia to further reduce or alleviate the remote risk of serious or significant harm she faced in her hometown in Colombia.

26.  More importantly, the Board had laid out its full reasons in paragraphs 81 to 86 of the Board’s Decision for finding that internal relocation was a viable option to the applicant.  The Board found that it would not be unduly harsh to expect the applicant to relocate within the country to avoid the harm she feared.  This court finds no flaw in the said finding.

27.  Given its findings as summarised above, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

28.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  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. 

30.  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

31.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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