Case Document

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HCAL 1167/2017

[2025] HKCFI 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1167 OF 2017

BETWEEN
	Khurelbaatar Naranbayar	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 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 39-year-old national of Mongolia who last arrived in Hong Kong on 25 March 2016 as a visitor with permission to remain as such up to 8 April 2016 but was arrested by police on 31 March 2016 for the offence of attempting to obtain property by deception, and for which he was subsequently convicted and sentenced to prison for 2 years and 4 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Mongolia he would be harmed or killed by his creditor over his unpaid debts.

2.The Applicant was born and raised in Ulaanbaatar, Mongolia. After completing his studies in both Mongolia and United States where he got married and raised a family with children before returning to Mongolia in 2013 to start his own recycling business in his home district in Ulaanbaatar.

3.For the start-up of his business the Applicant resorted to a loan borrowed from a local money-lender with monthly interest payments until full repayment by December 2014, but by then when he was unable to do so, the Applicant was threatened by his creditor who then sent men to beat him with a warning to kill him if next time he still failed to repay his loan.

4.As he became fearful for his life, the Applicant started to take trips leaving the country for Hong Kong to avoid the threats from his creditor, and on his last trip to Hong Kong on 25 March 2016, he was subsequently arrested by police for the offence of attempting to obtain property by deception, for which he was convicted and sentenced to prison, during which he raised his non-refoulement claim for protection to the Immigration Department, and for which he completed a Non-refoulement Claim Form (“NCF”) on 7 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 22 November 2016 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 his creditor and followers 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 real intention of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for his creditor to locate him.

7.On 2 December 2016 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 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 December 2017 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 his creditor and rejected his account of having ever borrowed any loan from any money-lender or that he had ever been threatened by any creditor over any outstanding debts that it concluded that he has failed to establish his claim that he is at risk of being subjected to any proscribed harm upon his return to Mongolia that his claim for non-refoulement protection failed on all applicable grounds.

9.On 29 December 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and amongst various cited general principles and legal authorities which had no direct bearing to his case, the Applicant just put forward a bare assertion that the Board had failed to maintain high standards of fairness by not taking into account that the Applicant was in prison and that he had no reasonable chances of communicating with his family and friends in Mongolia, but without providing any further relevant or necessary details or particulars or elaboration as to how that would prejudice him or affect his case. As such, and as his assertion was not properly elaborated with the relevant and necessary details or particulars, I do not find it reasonably arguable for his intended challenge.

10.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.

11.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 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.

12.Furthermore, 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 real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mongolia, a decision also agreed and 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.

13.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.

14.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

15.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I accordingly direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Mongolia

Dated the 13^th day of February 2025

(Chung Lai Fan, Christine)
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:
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)).		Sent to the Applicant on 13 February 2025 Khurelbaatar Naranbayar Applicant’s ref. no.: Nil.		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 13 February 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5373/16/12/20/MNG7 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2447/16 (formerly RBCZ 12979/16)(T7I65) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)