Ganbold Sodbayar v. Torture Claims Appeal Board

HCAL 877/2020

[2023] HKCFI 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 877 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Mongolia who last arrived in Hong Kong on 3 July 2019 but remained within the airport until 22 July 2019 when he was arrested by police for shoplifting, for which he was convicted and sentenced to prison for 2 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Mongolia he would be harmed or killed by his former employers for refusing to continue to work in their illicit/illegal business.

2.The Applicant was born and raised in Darkhan-Uul Aimag, Darkhan Soum, Mongolia. After leaving school he worked in a mining company and kitchen catering business, got married and raised a family with 2 children in Ulaanbaatar City in Khan Uul District.

3.In 2017 he started to work in a company which dealt in properties trading and money-lending business, but soon he discovered that his employers’ activities were actually illicit and illegal involving scamming and swindling properties and money from their customers, and after one occasion in late 2017 when he witnessed his employers using violence on one such customer, he stopped going to work and hid in his friends’ places to avoid his employers.

4.However, one day in December 2017 he was tracked down by his employers who then forcibly brought him to a remote area and beat him violently before eventually releasing him with a warning that he would be killed if he still failed to return to work for them.

5.Thereafter the Applicant fled from his home to hide amongst his friends, but after another violent attack in January 2018 by some unknown men suspected to be sent by his employers, the Applicant fled to the Sukhbaatar District to hide in a relative’s place, and on 22 July 2018 he departed Mongolia with his family for Hong Kong, and on 2 August 2018 they flew to South Korea where they stayed for several weeks, but as his family was unable to accustom to living there, they eventually returned to Mongolia in September 2018.

6.Shortly after returning to his home district, the Applicant discovered that the police were looking for him over some false charges made against him by his former employers, and so on 15 November 2018 he departed for Hong Kong and then to Macau where he stayed until 3 July 2019 before again travelling to Hong Kong where he was arrested for shoplifting and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 11 December 2019 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”).

8.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 harm from his former employers upon his return to Mongolia as low due to the low intensity and frequency of past ill-treatment from them, that there is no substantial ground or reason to believe that there would still be any adverse interest from anyone in him, that in any event his problem with his former employers was a private personal dispute between them without 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 (“COI”) 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 the country away from his home district in large cities such as Darkhan where it would be difficult if not impossible for his former employers to locate him.

9.On 17 December 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended 2 oral hearings on 19 and 20 March 2020 with his lawyer from DLS before the Board during which he gave evidence and answered raised of his claim by the Adjudicator for the Board and with submission made on his behalf by his lawyer. On 24 April 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found on the whole of the Applicant’s evidence which was less than coherent and strained plausibility that it had grave doubts over his claim of threats and assaults by his former employers against him just to force him to continue to work for them when even on the factual basis of his own case at the highest that there was no logical reasons for them to do so in the absence of any expertise or educational background or experience which the Applicant might have for their business that it was not accepted that the Applicant would face any real risk of harm from them or from anyone upon his return to Mongolia, and that in any event even if such risk is real that in the absence of any evidence of any official involvement that state/police protection would be available to the Applicant if so needed that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.On 12 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as his life is still in danger in his home country but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 basis for his intended challenge.

12.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.

13.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 75 – 170 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 basis to challenge the finding of the Board.

14.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mongolia without any risk of being located, 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.

15.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.

16.Furthermore, the Applicant recently on 21 February 2023 in writing requested to “cancel” his application as he has decided to return to his home country.

17.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his decision to return to Mongolia, I accordingly refuse his leave application.

Dated the 19^th day of April 2023

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