Munkhjargal Tuvshintur v. Torture Claims Appeal Board
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HCAL 289/2020 [2024] HKCFI 1628 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 289 OF 2020
Application for Leave to Apply for Judicial Review Following:
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 33-year-old national of Mongolia who arrived in Hong Kong on 7 March 2019 as a visitor with permission to remain as such up to 21 March 2019 when he did not depart and instead overstayed, and on 26 March 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Mongolia he would be harmed or killed by the Mongolian police or authorities over some alleged involvements in money laundering activities. On 20 May 2019 a removal order was issued against him by the Immigration Department. 2.The Applicant was born and raised in Lun soum, Tuv aimag Province, Mongolia. After leaving school he ran his own business, got married and raised a family with 2 children in his home district. 3.In 2018 he together with other persons were investigated by police in connection with some charges of money laundering activities of certain mining company when he was detained and interrogated for hours during which he was beaten by 2 police officers until his release later on the same day on bail pending further investigations. 4.Later when some of the people under investigation had been formally charged by the police, the Applicant feared that he would be wrongfully charged as such, and that he would be tortured into confessing the crime which he had not committed, he therefore went into hiding, and on 4 January 2019 he departed Mongolia for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 July 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By a Notice of Decision dated 29 August 2019 the Director of Immigration (“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”). 6.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 the Mongolian police or authorities upon his return to Mongolia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the authorities in the Applicant given the fact that he has never been formally charged and was able to leave the country without any problem, that in any event that reliable and objective Country of Origin Information (“COI”) show that in citizens in Mongolia are entitled to due process by legal representation and fair trials under the current legal and judicial systems that it is not accepted that the Applicant will face any real risk of being harmed or killed by the police or authorities upon his return to Mongolia that his claim for non-refoulement protection failed on all the applicable grounds. 7.On 11 September 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On his appeal was dismissed by the Board which also confirmed the Director’s decision. 8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Mongolian police or authorities that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any adverse interest of the Mongolian authorities in him as he has never been formally charged by the police and that he was able to leave the country without any problem, and that in any event relevant COI show that he will be entitled to due process and to defend any prosecution to be brought against him in a fair trial with legal representation under the existing legal and judicial systems in Mongolia that it is not accepted that he will face any real risk of being harmed or killed by the authorities upon his return to Mongolia that his claim for non-refoulement protection failed on all applicable grounds. 9.On 3 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge. 10.However, before his application could be heard or dealt with by the Court, the Immigration Department in writing on 30 May 2024 informed the Court that the Applicant had earlier been removed from Hong Kong to his home country in Mongolia. 11.In the premises, and as Section 37ZF (1) of the Immigration Ordinance stipulates that a non-refoulement claim pending determination made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, as did the Applicant on 3 May 2024 as confirmed by the Immigration Department, I accordingly dismiss his leave application. Dated the 20th day of June 2024
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 |