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HCAL 2827/2019
[2022] HKCFI 302
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2827 of 2019
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Shurenchimeg Naranchimeg |
Applicant |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
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consideration of the documents only; or |
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consideration of the documents and the Applicant being absent in open court; |
Order by Deputy High Court Judge P Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1.The applicant was permitted to stay in Hong Kong as a visitor until 28/11/2017. She was arrested by the police on 9/12/2017 for overstaying and theft.[1] She filed this non-refoulement claim on 13/12/2017.
Background
2.The applicant was born on 1/8/1985 in Selenge Province, Mongolia. She had a diploma in electrical engineering in 2003. She was a self-employed merchant since 2004 in Darkhan Uul Province. Her family was in Mongolia. She got married in 2005 and had 2 daughters. She divorced in 2009.
3.One evening in February 2017 at Ulaanbaatart City, she witnessed a scuffle between a young girl and a man inside a deserted house. It was dim and she could not recognize anyone in the scuffle. At that time, she was on the way to a supermarket. She called the police. The next day, she gave a witness statement.
4.A few days later, the officer-in-charge of the case contacted her. The officer accused her of misleading the police. She was arrested. It transpired that the man in the scuffle was a high-ranking officer.
5.Since then, some police officers visited her every week at his home. They threatened her to withdraw her statement and apologize, or else, she would be in trouble. She was slapped and punched. It took a week to recover.
6.In March 2017, she was detained at the pre-trial detention centre. She wrote complaint letters to the Justice Ministry and Parliament. She also complained to the Police Head Quarters. There was no reply. More than a month later, her mother bailed her out.
7.After her release, the officer-in-charge told her that the man involved in the scuffle was a high-ranking officer. That officer bribed the young girl to withdraw the complaint. The case she witnessed was closed. She was never brought to court for trial of misleading the police.
8.Between May to September 2017, she wrote complaint letters to the police about her experience. One day in September, a stranger came to her house. When she opened the door, that stranger stabbed her shoulder. She fainted and was taken to a hospital. She was hospitalized for 3 weeks. It took another 3 weeks to recover. She did not report to the police as it was useless.
9.After recovery, she went to Beijing and Inner Mongolia by train several times for business. On 14/11/2017, she finally left Mongolian for Hong Kong on the advice of her boyfriend. Internal relocation was not viable as the high-ranking officer would be able to trace her in Mongolia.
10.She feared that she would be persecuted if refouled.
The decision of the Director
11.The Director found that there was no real risk of harm for the following reasons:[2]
(a) For the alleged scuffle, the applicant knew nothing about the high-ranking officer. It was pure hearsay that he had bribed the young girl. In fact, the police had arrested the high-ranking officer at scene. They had also taken a statement from the applicant. It was plausible that the case might have closed because of lack of evidence given that it was dim at the scene.
(b) Even assuming those officers were sent by the high-ranking officer to her home, they only slapped her. They had no intention to kill her.
(c) She was not taken to court eventually. She was also granted bail though after a period of detention. There was no evidence that the government acquiesced the conduct of the local police.
(d) She could travel to China and Inner Mongolia several times without any problem. She was not targeted by the government. This was inconsistent with the asserted fear that her life was in danger.
(e) She was wanted for jumping bail albeit she alleged it arose from a false case. This should not be taken as any abuse of power.
(f) There was no evidence that the government was behind this incident. She had not sought assistance from other police station.
(g) She was stabbed by a stranger. There was no evidence that the assailant was sent by the high-ranking officer.
(h) Having studied various COI, the Director acknowledged that there were corruption and police abuse of power in Mongolia. The National Police Agency had special division to investigate abuse of police power. Victims of abuse could complain to the National Human Rights Commission. The IAAC[3] was effective in investigating corruption case. Public servants were required to file a private interest declaration to prevent conflict of interest. High-ranking officials were prosecuted for corruption. There were steps taken to ensure fair trial. There was reasonable State protection.
(i) Mongolia was a large country with a big population. The law allowed freedom of movement within the country. Khovd and Zamyn-Uud were possible alternatives. Given her age and experience, she should be able to relocate. It was not unduly harsh.
12.The Director rejected all claims on 31/1/2019.
The decision of TCAB
13.The applicant attended a hearing on 25/7/2019. The adjudicator found her untruthful. The findings are as follows:[4]
(a) The applicant told the adjudicator that about 4 officers attended the scene. However, she told the Director that there were 2 to 3 officers.
(b) She told the adjudicator that she was only arrested sometime after the officer-in-charge of the case accused her of misleading the police. However, she told the Director that she was arrested immediately.
(c) During detention, she was kept in a cell with 4 to 5 detainees. She was visited by her family. She however told the Director that she was in a cell with 8 others. She was not allowed to have visitors.
(d) She wrote complaint letters to the police headquarters only. However, she told the Director she made written complaints to the Justice Ministry and the Parliament.
(e) She told the adjudicator that the officers who came to her home were in uniforms. She told the Director that they were in plain clothes.
(f) She did not mention that officers came to her home during the TCAB hearing until she was reminded. She explained that she was not asked about it. The adjudicator found this unconvincing.
(g) She did not tell the adjudicator that the assailant in the deserted house was a high-ranking officer. She was not forced to withdraw her statement whereas she asserted to the Director that this was the motive behind the threat by the police.
(h) She did not apply for protection in Hong Kong until her arrest for theft and overstaying.
(i) She had travelled to China and Inner Mongolia before finally leaving her home country. This was not consistent with her assertion that she was charged for perjury. This also discredit her assertion that she was on the stop list.
14.The adjudicator found that the applicant would not be subject to any real risk of harm in future if returned to Mongolia.
15.The adjudicator rejected her claim on 21 August 2019.
Judicial review
16.The applicant filed the leave application for judicial review on 25/9/2019. She did not specify any grounds in her affirmation.
17.In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. The applicant had not made specific complaint of any error in the decision of the TCAB.
18.The adjudicator had analyzed the evidence in detail. She disbelieved the applicant. She was not persuaded that the applicant had told the truth. I agree with the findings. The inconsistencies showed that the applicant was not credible.
19.In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
20.The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for the intended judicial review.
Dated the 26th day of January 2022.
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(Mike Mak) |
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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:
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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)).
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Sent to the Applicant
on 26 January 2022
Shurenchimeg Naranchimeg
Applicant’s ref. no:
Nil.
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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 26 January 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15590/19/2/109/MNG27
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4924/18
(Formerly RBCZ/10116/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] She was sentenced to imprisonment for 2 weeks suspended for 1 year. During the period of recognizance afterwards, she was convicted of theft in April and July 2018. She was last sentenced to imprisonment for 14 months in November 2018.
[2] Decision of the Director dated 31/1/2019, §§18—44.
[3] Independent Authority against Corruption.
[4] Decision of the TCAB dated 21/8/2019, §§59—92.
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