Ganbold Munkh Erdene v. Torture Claims Appeal Board

HCAL 1333/2018

[2020] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1333 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 38-year-old national of Mongolia who arrived in Hong Kong on 14 April 2014 with permission to remain as a visitor up to 29 April 2014 but was arrested by police on 22 April 2014 for theft and was subsequently convicted and sentenced to prison for 21 months, during which he raised a non-refoulement claim on the basis that if he returned to Mongolia he would be harmed or killed by a senior police officer for possessing some incriminating evidence against him.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bayanzurkh District, Tuvaimag Province, Mongolia.  After leaving school he worked both in Mongolia as well as in Shenzhen selling mobile phone spare parts and accessories.

3.One day in August 2013 a lawyer friend of his asked him to keep for him for a while a USB containing some information of certain police officer accepting bribes until he was ready to release it to the media, which the Applicant agreed.

4.However, one night in September 2013, the Applicant was attacked by several unknown men on the street with punches and kicks violently which broke his nose and some ribs, and before they left they warned him to keep his mouth shut.

5.About two weeks after the attack, the Applicant received a telephone call from a stranger who warned that he would be killed next time.

6.One day in late October 2013 the Applicant was attacked by two unknown men who accused him of keeping something which he should give to them, and proceeded to punch and kick him violently that he lost consciousness, and was taken to a hospital for medical treatments.

7.After his discharge from the hospital, the Applicant suspected that these assaults must have something to do with the USB placed with him by his lawyer friend, but when he wanted to return it to his friend, he was asked to hold on to it a little longer.

8.Soon thereafter his lawyer friend was beaten brutally in an incident, and later when the Applicant heard that his friend had died in suspicious circumstances, and shortly after his friend’s funeral, he received another phone call from some unknown man threatening that he would be killed next.

9.As the Applicant felt that his life was in danger, and despite his reports of the earlier assaults to the police but no action or investigation appeared to have been taken by them, he therefore departed Mongolia for China in November 2013, and from there he later travelled to Hong Kong in April 2014, and after he was arrested by police for theft and was subsequently convicted and sentenced to prison, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 1 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.While being released on recognizance pending determination of his claim, the Applicant was again arrested by police in September 2016 for theft and was subsequently convicted and served another term of imprisonment.

11.By a Notice of Decision dated 24 April 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”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of him being harmed or killed upon his return to Mongolia as low due to the absence of any reliable evidence that he was being pursued by any police officer over the USB placed with him by his lawyer friend, that during those attacks on him by unknown men there was no evidence of any real intention to kill him despite the ample opportunities, 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 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 working experience to move to other part of Mongolia away from his home district in large cities such as Erdenet or Darhan where it would be difficult if not impossible for his perceived enemies to locate him.

13.On 12 May 2017 the Applicant lodged an unsigned notice of appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, which was subsequently accepted by the Board after he later signed a copy, and for which he attended an oral hearing on 9 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found such discrepancies and inconsistencies in the Applicant’s evidence that it doubted his claim as illogical and incredible, that there is no reliable evidence that he was being pursued by any police official, and concluded that he failed to establish his claim under any of the applicable grounds.      

15.On 9 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward essentially one ground for his intended challenge: that the Board failed to maintain high standard of fairness in failing to take into account that the Applicant had adduced substantial evidence in support of his claim, and that minor discrepancies under cross-examination should not be the cause to find his evidence unreliable.

16.This is however just a broad and vague assertion of the Applicant containing several pages of key words and phrases as well as citing various applicable principles and authorities 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 in what way did the adjudicator fail to take into account of the evidence adduced by him or what minor discrepancies under cross-examination were he referring to, or generally in what way did the adjudicator fail to apply high standards of fairness in the determination of his claim.  As such I do not find this ground of the Applicant reasonably arguable.

17.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.

18.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 48 – 60 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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, I do not find any reasonably arguable ground to challenge the finding of the Board.

19.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.     

20.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.

21.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 9^th day of July 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