Badamkhand Batchuluun v. Torture Claims Appeal Board

HCAL 2121/2018

[2020] HKCFI 2037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2121 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 54-year-old national of Mongolia who last arrived in Hong Kong on 6 February 2018 with permission to remain as a visitor up to 20 February 2018 but was arrested by police on 13 February 2018 for theft for which he was subsequently convicted and sentenced to prison for 8 months, during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to Mongolia he would be harmed or killed by the people of a crime syndicate for being a police informant.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Zuunmod Soum, Tuv Aimag, Mongolia before moving with his family to Ulaanbaatar in 1973.  Whilst there he was involved in various delinquent crimes including fighting and theft, and was constantly in and out of the local correctional institutes for delinquents. 

3.In 1981 he became a member of a local crime syndicate headed by Dorj Bayarjav engaging in various criminal activities in addition to running his own garment trading business for which he had taken various trips to Russia and Poland.

4.In 1995 he was convicted of theft and served 2 years in prison in Mongolia, and in 1998 during a trip to Moscow, he was also arrested for theft for which he was imprisoned until December 1999 when he was released and returned to Mongolia.

5.From 2004 to 2006 he became an informant for the Mongolian police in Ulaanbaatar providing them with information for monetary rewards on Mongolian fugitives who had fled to Russia and China.

6.In 2006 he provided information to the Mongolian police to enable them to arrest Bayarjav for murder in a robbery case, for which Bayarjav’s brother Purvee later in revenge killed 3 members of the syndicate whom he suspected to be police informants. 

7.Fearing that his secret identity as a police informant had been exposed and that Purvee would come after him, the Applicant on 2 August 2006 departed Mongolia for Hong Kong as a visitor during which he was arrested by police for theft for which he was subsequently convicted and sentenced to prison for 10 months when he raised a torture claim but later withdrew it upon his release from prison and left Hong Kong on 14 March 2007 for China.

8.For the next 10 years in China he never sought non-refoulement protection, during which he had also travelled to various places in South East Asia, including one trip to Bangkok in 2013 when he was arrested by police for theft for which he was imprisoned for 6 months.

9.In June 2017 he returned to Mongolia to stay in a friend’s place in Ulaanbaatar to avoid Purvee, but as he was still fearful for his own safety, he departed Mongolia again in September 2017 for Russia, and from there he travelled to various other places including Manila, China, and Macau before arriving in Hong Kong on 6 February 2018 as a visitor, during which he was again arrested by police for theft, and subsequently raised his non-refoulement claim for protection whilst in prison, and for which he completed a Non-refoulement Claim Form on 10 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.By a Notice of Decision dated 31 May 2018 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 and 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 no substantial grounds for believing that his perceived fear is real and foreseeable upon his return to Mongolia due to the absence of any past ill-treatment from Purvee or his people, that there is no evidence that Purvee was aware that he was a police informant, that in any event after all these years that it is doubtful that Purvee would still have any adverse interest in him, that as a police informant that state/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 area away from his home district in large cities such as Darkhan where he had stayed before without incidents and where it would be difficult if not impossible for Purvee or his men to locate him.   

12.On 13 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 August 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found even if the Applicant’s identity as a police informant had indeed been exposed in 2006 that he had never been threatened or harmed by Purvee or his men all these years, that as a former police informant he would certainly be entitled to state or police protection if indeed such threats from Purvee existed upon his return to Mongolia, as well as reasonable internal relocation for him to move safely to other parts away from his home district in large cities such as Darkhan or Ulaanbaatar where he had stayed before without incidents or any risk of being located by Purvee or his men that his claim for non-refoulement protection failed on all applicable grounds.   

14.On 4 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     that he was not educated and was not provided with legal representation or assistance in his appeal before the Board;

(2)     that the Board decided on his claim on assumptions without proper consideration of all the evidence presented by him; and

(3)     that the absence of further evidence from the Applicant did not entitle the Board to infer that there is no further evidence in support of his claim.

15.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

16.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

17.As for his complaints under the other two grounds, they are just his bare and vague assertions without any particulars or specifics or elaborations as to how they were so.  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 clearly and properly identified by the Applicant, I do not find either of them reasonably arguable for his intended challenge.

18.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

19.In the Applicant’s case, even if indeed the risk of harm from Purvee does exist, the fact is that it has been established by both the Director and the Board in their decisions that such risk of harm is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mongolia, 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 19^th day of August 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