Turbat Undrakhbayar v. Torture Claims Appeal Board

HCAL 1309/2018

[2020] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1309 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Mongolia who arrived in Hong Kong on 15 October 2015 with permission to remain as a visitor up to 29 October 2015, but on 16 October 2015 he was arrested by police for theft for which he was subsequently convicted and sentenced to prison for four months.  Upon discharge from prison he was referred to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to Mongolia he would be harmed or killed in revenge by the family of the victim struck and killed by the car driven by him in a road accident.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dundgobi Province, Saintsagaan Soum, Mongolia.  After leaving school he worked as a repair technician in his home town in Mongolia.

3.One evening on 3 September 2012 while he was driving home from work, his car struck a man crossing the road.  The Applicant then stopped his car and called the police when the victim was taken to the local hospital where he subsequently died from his injuries.

4.As a result the Applicant was arrested and charged for careless driving, for which he was subsequently convicted and sentenced to prison for 2 years and 6 months which he served in Kharkhorin Prison.

5.After his discharge from prison in March 2015, the Applicant started to receive threats from some strangers blaming him for the accident, and one day in June 2015 while he was on his way home from work, he was confronted by three strangers who accused him of being a murderer and proceeded to punch and kick him.  After they left, the Applicant sought medical treatments at a local clinic and was found to have suffered fractured ribs.

6.The Applicant then reported the attack to the local police, but no arrest had been made, while he would continue to receive threatening phone calls from some unknown men threatening to kill him over the said traffic accident.

7.One day in July 2015 while the Applicant was on the street, two unknown men who appeared to be drunk bumped into him, and proceeded to punch him and threw him onto the ground, and then kicked him several times before they left.

8.Given the increasing frequency of threats and attacks made against him, the Applicant suspected that they were made by the family of the traffic accident victim who were trying to take revenge against him, and so to avoid further attacks, he departed Mongolia on 30 September 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 10 February 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 (“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”).

10.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being ill-treated by the family of the accident victim upon his return to Mongolia due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that those threats or attacks from unknown strangers were directed by the victim’s family against the Applicant, that in any event it was a private personal dispute between them without 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 (“COI”) show that reasonable internal relocation alternatives are available in Mongolia with a large population of 3 million people spread across a vast territory of more than 1.5 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Mongolia away from his home district in large provinces such as Dundgobi Province where it would be difficult if not impossible for the family of the traffic victim to locate him.

11.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 29 January 2018 and 7 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found inconsistencies and discrepancies as well as many other significant problems with the Applicant’s evidence in respect of his claim that it formed the view that he is not a witness of truth, and that he has fabricated the claim in relation to the problems he faced after serving a sentence for causing the death of the person in a motor vehicle accident, and concluded that he was never involved in any car accident in which a pedestrian was killed, nor did he stand trial or was imprisoned in his home country, and that he was never threatened, harassed or assaulted as alleged, nor would he face any real risk of harm for any reason upon his return to Mongolia that his claim for non-refoulement protection failed on all applicable grounds.

13.On 6 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) that the Board erred in failing to maintain high standards of fairness in not taking into account that the Applicant had adduced substantial evidence to support his claim and that minor discrepancies under cross-examination should not be the cause to find the Applicant as unreliable;

(2) that the Board failed to apply high standards of fairness in the determination of the Applicant’s claim; and

(3) that the Board erred in approaching the matter by trying to see whether it could find fault with the decision of the immigration officer as shown by the fact that the Director was excused from attending the appeal hearing as it is not the general practice for the Board to question or find fault with the Director’s decision. 

14.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision,or how did the Board fail to apply high standard of fairness in considering his claim or to take into account his adduced evidence.  As such I do not find any of them reasonably arguable for his intended challenge. 

15.As for his complaint over the non-attendance of the Director in his appeal hearing,I fail to see the rationale behind it as the mechanism for the appeal before the Board which is a rehearing of his claim before another person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no basis or merit in this complaint of the Applicant.

16.As has been repeatedly emphasized by the Court of Appeal, 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.

17.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 92 – 125 of its decision with the benefit of hearing him in his oral testimony and his answers to questions raised of his claim during his appeal hearing before the Board,and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity,I do not find any reasonably arguable basis to challenge the finding of the Board.

18.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 Mongolia, 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.

19.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.

20.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.

Dated the 8^th day of January 2020.

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