LOPEZ BASTIDAS JEAN CARLOS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1036/2021

[2026] HKCFI 2414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1036 OF 2021

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “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 14 July 2021 and filed on 22 July 2021, 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 30 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/2021/HCAL001036_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 October 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board (but spelt its name wrong) and the Director as the putative respondents and did not name any putative interested party in Form 86.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Venezuela, he would be harmed or killed by his friend Adriana, Adriana’s boyfriend and their associated mafia due to the applicant’s failure to repay a loan.

Disposal on paper

8.  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

9.  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).

10.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 22 July 2021, the applicant mentioned that the Director and the Board reached their decisions wrongly and the decisions were not reasonable and fair. He  further stated that his right to life should be protected under article 28 of the Basic Law and article 2 of the Bill of Rights.

Discussion

11.  First of all, the applicant’s allegations in his affirmation were all very general.

12.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, such general allegations that the Board’s Decision was wrong, unreasonable or unfair cannot help the applicant at all.

13.  It does not help the applicant to establish any ground by just mentioning the right to life either.

14.  In any event, the Board did assess the applicant’s risk of right to life. The Board had assessed the issue of whether substantial grounds had been shown for the existence of a real risk to the applicant’s life being arbitrarily deprived of. However, the Board found that simply by being a Venezuelan male did not establish a genuine risk of such ill-treatment if he were refouled to Venezuela.

15.  Thus, none of the allegations in the applicant’s affirmation constitutes a valid ground for challenging the Board’s Decision.

16.  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).

17.  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.

18.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 7 May 2021. The applicant was present and was thus given the chance to present his case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

20.  The Board found the applicant’s evidence to be wholly unreliable. There were material inconsistencies and omissions between his letters to the Immigration Department, his Non-refoulement Claim Form and his evidence at the Board’s hearing. The applicant’s explanations for the inconsistencies were unconvincing. The numerous inconsistencies were laid out in paragraph 64 of the Board’s Decision.

21.  Although the Board found it clear that the applicant came to Hong Kong from Bogota to sell cocaine and was later arrested, charged, convicted and sentenced for doing so, the Board found the numerous inconsistencies and omissions, together with his unconvincing explanations and implausible claims, cast doubt on his credibility regarding the remainder of his claims.

22.  The Board concluded that what the applicant presented to the Director as evidence and what he told the Board at the hearing were not credible and could not be relied upon. The Board found that the applicant was not a witness of truth. It was the Board’s view that his claim of being forced to sell drugs in Hong Kong by a female friend to repay a loan from her mafia boyfriend was fabricated. The Board was not persuaded that any harm or any threat of serious harm to the applicant or his family had taken place.

23.  Thus, all the applicant’s claims in relation to his non-refoulement claim were rejected.

24.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

25.  As to internal relocation, 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).

26.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

27.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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.

28.  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.

29.  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

30.  For reasons aforesaid, the Leave Application is dismissed.

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