RINCON MARIN WILDER ESNEIDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 434/2022

[2023] HKCA 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2022

(ON APPEAL FROM HCAL NO 967 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (the “Judge”)  given on 18 October 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (the “Board” and the “Board’s Decision”)  dated 4 March 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  dated 23 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Colombia.  He was born in 1977 in Sopia, Department of Caldas in Colombia.  When he was 13 years old, he moved to live in Medellin, Department of Antioquia in Colombia with his sister.  He was self-employed and used to work in a farm.  He entered Hong Kong on 18 November 2016 on the strength of his Colombian passport as a visitor and was permitted to remain until 16 February 2017.  He subsequently overstayed and surrendered himself to the Immigration Department on 17 February 2017.  On 2 March 2017, he lodged a non-refoulement claim. 

3.  The applicant claims that, if he returns to Colombia, he will be harmed or killed by members of an armed group called La Terraza (“LT”), because he has reported the wrongdoings of the LT to the police which led to the arrest of its leader nicknamed Cristhian.  Ever since the detention of Cristhian, the applicant had been threatened by members of the LT.  The applicant claims that in 2015, the LT has sent him condolences cards and he was named as the deceased in the cards. On another occasion, his family was almost shot to death by members of the LT whilst they were traveling to work on a bus, but they managed to escape from the attack in that incident.  Fearing for his safety, the applicant went into hiding and lived in different places in Colombia in 2015, during which he claimed that LT had killed his friends after forcing them to reveal his whereabouts.  After the applicant arrived in Hong Kong, he did not make an application for protection promptly because he was waiting for the police in Colombia to give him personal protection.  When he eventually realised that there was no hope of returning to Colombia, he applied for non-refoulement protection in Hong Kong.  The details of the applicant’s claim are set out by the Board at [22] in the Board’s Decision, and summarised by the Judge at [4] and [5] of the Form CALL-1. 

The Director’s Decision

4.  By a Notice of Decision dated 23 April 2018, the Director rejected the applicant’s claim on all applicable grounds on BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5].  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by members of the armed group LT upon his return to Colombia; that reasonable state protection was available to him and internal relocation was an option open to him. 

The Board’s Decision

5.  The applicant appealed to the Board.  The Board decided not to hold an oral hearing and proceeded to determine the appeal on paper.  By its decision dated 4 March 2019, the Board dismissed the appeal. 

6.  The Board explained the reasons for not holding an oral hearing at [17] to [21] of the Board’s Decision.  In gist, the Board stated that there was no absolute right to an oral hearing, and having considered the papers before it including the Country of Origin Information (COI), the principles set out in ST v Betty Kwan & Ors [2014] 4 HKLRD 277 at [20] to [54], and the fact that the applicant was legally represented at the departmental stage, it concluded that the necessary standard of fairness can still be maintained for the appeal to be dealt with on paper. 

7.  As to the merits of the appeal, the Board considered the legal principles of the applicable grounds on non-refoulement protection, the available COI and the documentary evidence of the applicant.  The Board does not accept that the applicant will be harmed or killed by members of the LT because neither the applicant nor his family had suffered any physical harm and there was no evidence that they were targeted by members of the LT[6]. The applicant has not reported the threats to the police or other authorities in Colombia[7]. He also did not encounter any problem with the immigration authority when he departed his home country in 2016[8]. The Board acknowledged that some COIs supported the applicant’s claim on the inefficiency and incompetence of the police in Colombia, however, there were also COIs which showed that reform was underway and that state protection was available for the applicant[9]. The Board also considered that the applicant would be able to relocate internally in Colombia without undue hardship[10]. The Board concluded that the applicant failed to satisfy the threshold of the level of risks required for non-refoulement protection on all applicable grounds. 

The Judge’s Decision

8.  The applicant filed a Form 86 on 9 April 2019 to apply for leave to judicially review the Board’s Decision.  According to his grounds of relief sought and his supporting affirmation of the same date, his grounds of challenge can be summarised as follows:

(1)  The Board’s Decision was procedurally unfair.  The applicant did not have an opportunity to put forward his submissions in an oral hearing because of the late service of the hearing bundle, which was served just 6 days before the hearing.

(2)  The documents in the hearing bundle were in English and he did not have sufficient time to prepare for the hearing due to the lack of language assistance and legal representation. Despite having answered the questions honestly, the Board found his credibility questionable. 

(3)  The Board has significantly relied on source of news which was not officially recognised or was simply hearsay.  The Board has also relied on outdated cases and the lack of credible source of information has resulted in groundless speculations that it was safe for him to return to his home country. 

(4)  The Board has unlawfully fettered its discretion by refusing the appeal on the ground that it was not satisfied with the requirement. 

(5)  The Board’s Decision was unreasonable and irrational as it failed to meet the greater care and duty owed to a self-represented claimant. 

9.  The applicant requested for an oral hearing before the Judge which he attended on 27 September 2022 with the assistance of a Spanish interpreter. 

10.  In his decision dated 18 October 2022, the Judge refused to give leave for judicial review and gave his reasons in [10] to [19] of the Form CALL-1 as follows:

“DISCUSSION

12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he just asked for more time to stay in Hong Kong.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1)  .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. As to the grounds set out in paragraph 11 above, ground (1)  fails as the Board was entitled to determine the appeal without a hearing under the Ordinance and the applicant has not shown what submissions he intended to make at the hearing to clarify his case. Ground (2)  does not succeed as he said that he was able to understand the questions and he had answered them with honesty. There is no obligation on the Board to provide him with interpretation service as held by the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019. Grounds (3), (4)  and (5)  are only his opinions or assertions without any evidence in support.

16. There is no valid reason to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

11.  The applicant filed a Notice of Appeal on 1 November 2022 to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal: 

“the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  The written submissions lodged on 27 January 2023 put forward the following arguments:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection.  Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan [2014] 4 HKLRD 277[11].

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions. 

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134]. 

13.  At the hearing of the appeal, the applicant indicated that he has nothing further to add to what was already stated in his Notice of Appeal and written submissions.

Discussion

14.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits.  Our reasons are as follows:

(1)  The applicant fails to identify any error in the Judge’s decision.  His complaints in the Notice of Appeal and written submissions are directed solely at the Board’s Decision. 

(2)  The complaint in the Notice of Appeal as to the Board’s use of and reliance on COI is vague and devoid of particulars.  The applicant has not identified which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds. The complaint about the Board’s use of COI had been considered and rejected by the Judge for the reasons he gave at [15] of the Form CALL-1.  The applicant has not pointed to any error in the Judge’s reasoning. 

(3)  The complaint in the written submission that the Board did not approach the appeal as a rehearing is factually incorrect.  It is evident from the Board’s Decision that it did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified.  On the contrary, the Board had considered and analysed the applicant’s evidence in detail as well as the COI materials before reaching its own findings and conclusion on the claim. 

(4)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to his case or appeal. 

(5)  The applicant’s assertion that he will face hardship if he returns to his home country cannot stand in light of the Board’s rejection of his claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  However, the applicant fails to advance arguable grounds in this appeal to challenge the factual findings made by the Board. 

(6)  In respect of grounds (1)  and (2)  of his application for leave to apply for judicial review (see [8] above), we would point out that, as explained in the Board’s Decision, there is no absolute right to an oral hearing of the appeal before the Board.  We have considered the reasons given by the Board and do not discern any basis for contending that the Board’s decision not to hold an oral hearing amounted to procedural unfairness or breach of the high standard of fairness.  Importantly, the applicant has not indicated with particulars what were the submissions that he would have made at an oral hearing and how they would impact on the assessment by the Board.  We would also point out that the complaint about the Board’s finding on credibility in ground (2)  is entirely misplaced because the applicant did not give oral evidence or answer questions from the Board since there was no oral hearing of the appeal to the Board.    

16.  Having considered the materials before us, we agree with the Judge that there is no error of law or procedural unfairness in the decision of the Board, that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused. 

Order

17.  For the above reasons, this appeal is dismissed.