TEJEDOR SERNA JORGE ANDRES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 423/2019

[2022] HKCFI 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 423 OF 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Leave to apply for judicial review be refused

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally on 12 July 2017, but eventually overstayed having extended his permitted stay by travelling to Macau.  Two days after his visitor visa expired, he surrendered to the Immigration Department, which was on 3 October 2017.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on the same date. He was released upon recognisance on 10 October 2017.

2.  On 1 March 2018, the applicant was convicted of Trafficking in a Dangerous Drug (“TDD”) and sentenced to a period of imprisonment of 18 months.  He was discharged from prison on 10 November 2018 and therefore must have spent a period of time on remand prior to his conviction and sentence.  With good behaviour he would have served a period of actual imprisonment of 12 months, which suggests that he spent some four months on remand prior to sentence.  It is likely therefore that he committed the offence of TDD within a month or two of being released upon recognisance on 10 October 2017.

3.  He supplemented his NRF claim by way of written representation on 5 July 2018 and 11 July 2018, whilst in prison.  His substantive NRF claim form was submitted on 8 August 2018, also whilst in prison, and supplemented on 9 August 2018. 

4.  The applicant attended a screening interview in prison on 7 November 2018.  His application was dealt with under the USM[1].The Director of Immigration (“the Director”) dismissed his claim on all grounds (including that under BOR 2) by Notice of Decision (“the Decision”) on 14 November 2018, by which time, the applicant had been discharged but was immediately detained at Castle Peak Bay Immigration Centre (“CIC”).  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 22 November 2018.  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”) considered his appeal on the papers[2] on all applicable grounds including BOR 2 and refused his appeal on 17 January 2019.

5.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 2019 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

6.  The applicant is a Columbian national.  He was born and raised in Pereira.  He worked with his father in the garment business.  In 2009, the applicant started his own business, which prospered until 2011.  At that time, he was approached by members of a criminal gang known as Clan Usuga (“the Clan”).  They wanted protection money.  He avoided contact initially but eventually he was approached by a group of men who demanded he pay protection money by the end of the month otherwise he would not be allowed to continue to operate his business.  He believed they were carrying weapons although he did not see any.  As a result of that intimidation, the applicant and some other shop owners packed up their goods and left the mall in which they were operating.

7.  The applicant found another shop to rent which was some 30 minutes’ walk from his first shop.  This was in the suburb of Corosito.  He was not approached whilst in Corosito but he knew that the Clan were looking for people who refused to pay them and therefore decided to move once more to Dos Quebradas, which is about 2 hours by bus from Corosito.  He stayed in Dos Quebradas for a few months and tried to start another business but it did not thrive and in any event the applicant was still concerned that the Clan would look for protection money in Dos Quebradas as he had been told of shootings in the vicinity.  As a result, he joined his brother in Brazil in November 2014.  At no stage up to this point had the applicant sought any assistance from the police.

8.  Between November 2014 and 2017, the applicant operated a garment business with his brother in Brazil but he heard that the Clan had approached his mother and threatened her.  She too had moved away although she then received threatening letters demanding that she contact the applicant in order to tell him to pay them protection money otherwise his mother would be harmed.  These letters had been disposed of by his mother.  She did not report the threats to the police.  Whilst in Brazil, the applicant received no direct threats from the Clan and did not seek refugee status.  Hs business went well.  The applicant had come to Hong Kong in 2017 to look for business opportunities.  Whilst in Hong Kong on a visitor visa, his brother had informed him that he had received threats from the Clan and a demand to pay them 5,000,000 Pesos per week[3] to take into account how much money he owed them since 2011.  If he did not pay, they would kill him even if he were in Brazil.

The non-refoulement claim

9.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim.  The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

11.  The Form 86 is not clear.  It may be that the applicant seeks to review the Decisions of both the Director and the Adjudicator.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, albeit on paper, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[4].

Decision of the Adjudicator

12.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  The applicant confirmed he did not want an oral hearing and therefore his appeal was dealt with on the papers. He correctly set out the law and key legal principles including the burden and standard of proof. The summary of his analysis is at paragraph 32 of his Decision which can be encapsulated by the fact that he found the applicant had never been attacked, had no evidence to support the suggestion that threats had been made against him or his family, his alleged future attackers were criminals not state agents, he had not sought the assistance of any state authority to deal with his concerns, and had not sought refugee status between leaving Columbia and coming to Hong Kong even though he had ample opportunity to do so.

Leave to apply for Judicial Review

13.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location.  The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the Decision of the Adjudicator,it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him/her.

Grounds of Review

14.  There were no grounds of review as such.  The applicant maintained that the lack of supporting evidence was because he had been detained at CIC.  This is in response to [32(a)] of the Decision but in no way addresses the remainder of the concerns identified by the Adjudicator and does not raise an issue susceptible to judicial review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  An applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15.  Since his entry into Hong Kong, the applicant has been the subject of criminal proceedings and has served a term of imprisonment.  Whilst not to his credit, this Court has not taken that behaviour into account when deciding whether there are any grounds to grant leave to apply for judicial review.  The most obvious issue arising is the fact that he did not attend a hearing before the TCAB and was not therefore granted an opportunity to expand upon his claim.  However, the applicant confirmed not once but twice that he did not wish to attend a hearing before the TCAB.  He did so at a time when he was detained in CIC and would have had the benefit of advice from the staff of the Immigration Department and also other detainees. He would have known that his case was based upon bare assertions[5] alone and that he had provided no documentary proof of what he said had happened.  Despite that fact and the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully.  I have looked in particular inter alia, into the suggestion that the applicant was, in some way, prejudiced by his inability to obtain evidence because of his detention.  However, I have not found any error of law or procedure on the part of the Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The Adjudicator considered all relevant criteria; gave the applicant an opportunity to state his case, which he rejected but nevertheless enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and  reasonable[6].  

16.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

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

[1] Unified Screening Mechanism

[2] [4] TCAB Decision dated 17 January 2019 as the applicant had asked for it to be dealt with on paper by letter of 7 December 2018 and 22 December 2018, presumably whilst still detained at CIC.

[3] Approximately USD 1700

[4] Re Moshsin Ali CACV 54/2018; [2018] HKCA 549

[5] [6] TCAB Decision dated 17 January 2019

[6] Nupur Mst v Director of Immigration [2018] HKCA 524