Davaadulam, Myagmarjav v. Torture Claims Appeal Board

HCAL 482/2026

[2026] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 482 OF 2026

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 26 February 2026, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 19 December 2025 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000482_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 October 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and Immigration Department as the putative respondents, spelt the Board’s name wrong and did not name any putative interested party.

4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Mongolia, he would be ill-treated, harmed or killed by the Mongolian police and a man referred to as “Z”. The applicant claimed that while in Mongolia, he assisted Z, whose full name the applicant did not know, to install applications and set up online banking account with Z’s mobile phone.  The applicant was subsequently invited by the police to attend an inquiry, and was suspected of having transferred Z’s money to his own account.  The applicant claimed that he was assaulted by the police on two occasions.  After the applicant fled Mongolia and was in Hong Kong, his friend told him his name was in the wanted list of the Mongolian police.  He claimed that he feared false criminal charges, fabrication of evidence, unfair trial and the severe conditions in the prison of Mongolia.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 26 February 2026.  In his affirmation, the applicant merely stated that he could not go back to his country at this time as his life was still in danger.

Discussion

11.First of all, the applicant’s alleged danger in his country had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 15 December 2025.  The applicant was present and was thus given the opportunity to present his case to the Board in person.

15.The Board had laid out its analysis and findings on the credibility of the applicant’s claim in paragraphs 60 to 66 of the Board’s Decision, and it is not necessary to repeat them here.

16.In gist, the Board found the applicant’s intention to seek non-refoulement protection suspicious.  On the applicant’s evidence, Z and his family only called him to ask for compensation of his loss.  The Board found that Z had never intended to harm him physically or kill him.  Moreover, the applicant failed to provide his bank statements to the police for investigation when he had plenty of time to prepare them before he left Mongolia.  The Board did not accept the applicant’s explanation that he was scared to submit the bank statements.

17.He also confirmed that there was no criminal charge laid against him up to the hearing.  The applicant told the Board that he contacted the Consulate General of Mongolia (Hong Kong, Macau) to seek help for social welfare when he was detained in Castle Peak Bay Immigration Centre.  As found by the Board, it showed that the applicant had no issue with the Mongolian government.

18.The Board found that the applicant’s dispute with Z was a personal dispute, and neither personal dispute nor fleeing from prosecution were Convention reasons for seeking international protection.  The injuries the applicant sustained from the two alleged assaults by the police were not serious.  The applicant confirmed to the Board that he did not report the mistreatments by the police to the higher authorities.  His speculation that the higher authorities would not offer any assistance to him was not supported by any concrete evidence.  The applicant’s failure to report the alleged police assaults showed insufficient evidence to support state acquiescence.  There was no evidence that Z or his family or the police officers who mistreated the applicant were acting under the instruction of government officials or the government to harm or kill him.

19.In assessing the applicant’s claims, the Board had considered very extensive, fully-referenced country of origin information (“COI”).  The Board found that despite the seriousness of corruption reported, the Mongolian government had already tried her best to protect her citizens, combat corruption, improve police professionalism and efficiency, and provide channels to the citizens to seek justice.  The constitution and law of Mongolia provided for an independent judiciary, and the law provided that no person should be arrested, detained, or deprived of liberty except by specified procedures and provided for the right of persons to challenge the lawfulness of their arrest or detention in court.  Thus, the Board found that reasonable state protection was available to the applicant.

20.Moreover, the Board found that internal relocation option was available to the applicant, being an able-bodied adult with ten years of education and nine years of work experience.  It would not be unreasonable or unduly harsh for the applicant to relocate to say, Erdenet or Darkhan in Mongolia to reduce or negate his alleged risks of harm from Z if necessary.

21.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

24.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.For reasons aforesaid, the Leave Application is dismissed.

Dated the 20^th day of May 2026

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