Case Document

100%Judiciary

HCAL 2851/2018

[2020] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2851 of 2018

BETWEEN

	Darisuren Ganbold	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Director of Immigration (the “Director”) with the Board as proposed respondent and by adding the Director as interested party.

The applicant

4.The applicant is a Mongolian national. He came to Hong Kong on the strength of a visa. But he overstayed since 24 February 2018. He applied for non-refoulement protection on 26 March 2018.

5.He claimed that if refouled, he would be harmed or killed by his previous employers S. Erdene and Gansukh and their people because he had informed Gansukh’s criminal activities to a journalist. The facts of the case can be found in paragraphs 2 & 3 of the Board’s Decision.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 4 October 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe that there would be any real risk as he alleged if he returned to Mongolia [12]; that state protection would be available to him [16] and internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He specifically requested for a decision without hearing. The Board acceded to his request and assessed his appeal on paper from the available documents [4].

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons below.

a.The evidence that S. Erdene would harm him was from his wife – hearsay evidence.

b.His evidence was not reliable because he only raised non-refoulement some 8 months after he came to Hong Kong, relying upon Usman Butt, Sunil Koirala, Wasim Ashraf & Others HCMA 70,114, 244, 379, 402/2010 at §41.

c.His evidence was not credible because he committed crimes in Hong Kong, section 37ZD(3).

d.Even if he established the facts, they did not support his non-refoulement claim.

See paragraphs 30-33 of the Board’s Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 12 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he set out the grounds below:

1.he was not educated;

2.he had no legal advice;

3.the Board did not consider his evidence; and

4.the Board should not infer that he had no case.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 9 above.

13.The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.Ground (1) does not assist him. Ground (2) fails in view of the Court of Appeal’s decision. Grounds (3) and (4) are his opinions without any evidence in support. They fail too.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 5^th day of August 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 5/8/2020 Darisuren Ganbold Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13911/18/10/253/MNG23 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2907/18 (formerly RBCZ/10392/18) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)