Sedbazar Murun v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 228/2019

[2022] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 228 of 2019

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 Applicant being absent 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 29 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

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

The applicant

4.The applicant is a national of Mongolia.  He entered Hong Kong as a visitor on 18 November 2017 but had overstayed after his limitation of stay expired.  On 4 April 2018, he surrendered to the Immigration Department and lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Samdannyam Byambatsogt (“SB”).  He also feared that he would be falsely accused by the Mongolian police for initiating fights at Castle Bar and River Beach.

5.According to the applicant, he started working for a security service company in September 2017.  The company was owned by SB who was connected to political influential figures and had close connections with the police.  In November 2017, SB and his friends got into fights on two occasions and the police were investigating the fights.  Shortly after, SB requested the applicant to bear the responsibility for the fights.  Feared that SB would take actions against him, the applicant replied that he would consider the request. On 13 November 2017, the applicant went to give statement in the police station in relation to the fights.  He suspected that the police colluded with SB and sought to detain him.  The applicant escaped and hid in his friend’s place.  After the interview, SB again threatened the applicant via phone calls that he should take the blames for the fights.  Out of fear, the applicant fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 6 of the Director’s Decision as described below.     

The Director’s Decision

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

a.  risk of torture under Part VII C 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 a Notice of Decision dated 26 September 2018, the Director refused his claim (“the Director’s Decision”).  The Director concluded that no substantial grounds were present to believe that there would be real risk of the applicant being harmed or killed upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[16]; (ii) state protection would be available to him [17]-[20] and (iii) internal relocation was an option open to him [21].

The Board’s Decision

8.On 9 October 2018, the applicant filed a notice of appeal/petition against the Director’s Decision.  On 12 November 2018, the applicant applied to withdraw his appeal/petition on the basis that his father had informed him that his problems in Mongolia were solved. 

9.On 21 November 2018, the Board sought clarifications from the applicant but received no replies from him.  By way of a letter dated 29 November 2018, the Board granted the withdrawal of the applicant’s appeal/petition against the Director’s Decision as it was satisfied that (i) the withdrawal was freely sought and that the applicant understood the consequences of the withdrawal, and (ii) there was a good reason for the withdrawal as the applicant confirmed in the letter that it was safe for him to return.

10.Thus, the Board concluded that the withdrawal was granted, the applicant’s appeal/petition was disposed of and the Director’s Decision was confirmed.    

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 24 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he would like to apply for judicial review of the Board’s Decision without setting out any specific ground in support of his application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 C, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, the Court of Appeal held:

“ 41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

16.The applicant does not have any valid ground to challenge the Board’s Decision. The Board was entitled to assume that the applicant’s application to withdraw his claim was made out of his own accord. He has not stated in this application otherwise.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision nor any element of Wednesbury unreasonableness.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 21^st day of March 2022

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