ARNETOLI ALESSIO v. DIRECTOR OF IMMIGRATION, HKSAR

HCAL 512/2018

[2020] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 512 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Italy who last arrived in Hong Kong on 8 March 2015 with permission to remain on a dependent visa up to 8 March 2016 when he did not depart and instead overstayed and was later arrested by police on 24 December 2016 for the offence of theft for which he was subsequently convicted and sentenced to prison for 2 weeks, and upon his release from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Italy he would be harmed or killed by the local mafia for refusing to pay extortion money when he was working in his uncle’s restaurant in Naples.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Abbadia San Salvatore, Siena, Tuscany, Italy.  After leaving school he moved to Naples to work in his uncle’s restaurant making pizza.

3.  In 2010 some men known to be from the local mafia started to come to his uncle’s restaurant to demand for extortion money, and to avoid trouble his uncle would always try to meet their demands by paying them on a monthly basis.

4.  Shortly thereafter the Applicant left Italy to work in China, Hong Kong and Macau as a pizza chef before returning to Naples in mid-2012 to assist his uncle’s sons in running the restaurant after his uncle had passed away, but they stopped paying extortion money to the local mafia.

5.  One day in July 2012 while he was on his way to the restaurant, the Applicant was abducted by 4 men from the local mafia to an unknown warehouse where he was beaten for refusing to pay extortion money and was warned that he and his cousins would be killed if they still refused to do so before he was eventually released.

6.  After he made his way to the restaurant and told his cousins about his ordeal, they brought him to the hospital for medical treatment and called the police who then arrived to take a statement from the Applicant.

7.  Shortly thereafter some members of the local mafia were arrested by the police but were later released without charge, and the Applicant heard that it was because a bribe had been paid by the mafia to the police.

8.  For the next several years the mafia people would continue to harass and threaten the Applicant’s cousins, and when they still refused to pay them any money, one of his cousins’ house was burned down, while two other cousins were found dead at home or on a beach.

9.  Fearful that the mafia would eventually come after him, the Applicant departed Italy in January 2015 for China, and from there he would make frequent trips to Macau and Hong Kong until 8 March 2016 when he overstayed his last visit in Hong Kong and was subsequently arrested by the police on 24 December 2016 for theft, and upon his discharge from prison after serving 2 weeks in prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 6 November 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and 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”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found many of his claimed incidents occurred in Italy inconsistent with or contradicted the immigration records of his visits in Hong Kong between June 2011 and July 2012 during which he in fact married a local Hong Kong resident and had subsequently separated from her without revealing to the Immigration Department until his subsequent arrest by the police in late 2016 which seriously undermined or damaged the credibility of his claim, that in any event since he had not been working in his uncle’s restaurant for years that there is no reason why those local mafia would still have any adverse interest in him that the level of risk of harm upon his return to Italy was assessed as low due to the low intensity and frequency of past ill‑treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Italy with a large population of 62 million people spread across a vast territory of more than 294,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Italy away from Naples such as Tuscany where he was born and raised or even in other EU countries where it would be impossible for the local mafia in Naples to locate him.

12.  On 9 November 2017 the Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 11 and 15 January 2018 before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board similarly considered the timeline of the material events in the Applicant’s claim in relation to his credibility and found on the basis of the Immigration Department’s records that those events could not have occurred to him or which he could have witnessed during the period as claimed by him when he was in fact in Hong Kong between June 2011 and July 2012, and to which he was unable to give any valid explanation for such claim during his appeal hearing when he in fact conceded that he could not have been working in his uncle’s restaurant at that time that he was not accepted as a credible or reliable witness and rejected his claim of any well-founded fear of harm or persecution upon his return to Italy, and that with state/police protection available to him if needed in Italy that his claim for non-refoulement protection failed on all applicable grounds.      

14.  On 28 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that the rejection of his non-refoulement claim due to lack of documents was unfair and unjust as he had been unlawfully detained at the Castle Peak Bay Immigration Centre but without providing any particulars or elaborations as to why it was so, nor did he put forward any other ground in support of his application or request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being shown by the Applicant, I do not find any basis or merits in his intended application.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 11 – 75 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Italy, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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