RE BYAMBAJAV MUNKHZUL

CACV 113 /2024, [2024] HKCA 940

On appeal from [2024] HKCFI 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 113 OF 2024

(ON APPEAL FROM HCAL NO. 3150 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 12 March 2024[1] refusing to give him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  concerning his non-refoulement protection claim.

2.  On 21 March 2024, the applicant consented to the disposal of her appeal on paper by the Court of Appeal.  He has lodged a written submission to support his appeal. 

The applicant’s claim

3.  The applicant is a Mongolian national aged 41.  He last entered Hong Kong on 20 November 2018 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 7 January 2019. On 9 January 2019, he raised a non-refoulement claim based on fear of being harmed, tortured or killed by the Mongolian law enforcement authorities because he was accused of being involved in a financial fraud case.  In gist, the applicant denied any involvement in the case and claimed that he was assaulted and forced to make confessions during detention.  The details of his claim were set out in [6] of the Director’s decision and [22] to [125] of the Board’s decision.  The Judge gave a succinct summary at [5] to [14] of the Form CALL-1.

The decisions of the Director and the Board

4.   By a Notice of Decision dated 14 May 2019, the Director rejected the applicant’s non-refoulement claim.  The decision covered the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds. 

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 1 and 29 August 2019, during which the applicant gave evidence and answered questions from the Board.  By a decision given on 16 September 2019, the Board dismissed the appeal.  

6.  The Board found the applicant’s evidence vague, ambiguous, lacking in details and full of oddities.  The Board noted that the applicant was unable to provide even the most basic information about his claim, including details of BOD, the company that he had worked for 1.5 years.  The Board also doubted the genuineness of the documents supplied by the applicant and found some of the contents to be inconsistent with his case.  The Board considered the applicant’s case incredible and rejected his evidence in its entirety.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 23 October 2019 to seek leave to apply for judicial review against the decision of the Board.  In the supporting affirmation, the applicant stated that the Board’s decision was based on irrelevant information, had failed to recognize the threat facing him in Mongolia, and had disregarded the information he provided.  He however gave no particulars for any of the grounds.  At the hearing of the leave application on 31 January 2024, the applicant further complained that he did not have legal representation and language assistance. 

8.  By a Form CALL-1 dated 12 March 2024, the Judge dismissed the application and gave his reasons at [23] to [28] as follows (footnotes omitted): 

“23.  Initially, the Applicant said he knew nothing about the Duty Lawyer Service and denied he had been provided with legal assistance and language assistance. However, when going through the refoulement proceedings with him, he admitted he had attended a screening interview in which he was assisted by an interpreter and a lawyer; and prior to that he had one or two consultation sessions of one to two hours with a lawyer. He was ambiguous as to whether he had been explained the outcome of the interview or the receipt of the Notice. However, when he was shown his notice of appeal (“NOA”)  containing a typed ground of appeal in Mongolian language and his signature, he recalled he had assistance but could not remember who assisted him. The Court is satisfied that he had legal and language assistance in the refoulement process at least from the completion of his NCF up to the filing of the NOA, including explanation of the Notice.

24.  Probably, the Applicant did not have not much assistance thereafter. He was not legally represented before the Board, but he had language assistance during the oral hearing. As was held by the Court of Appeal in Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar. Nor the judgment of FB v. Director of Immigration prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.

25.  The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in the written submissions, the NCF and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

26.  The Applicant did not raise any complaint that the hearing bundle before the Board is essentially in English. In Karamjit Singh, the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his native language for his benefit as and when he requires. It is understood that assistance in Mongolian language in the correctional institution is very limited. But it seems he has no difficulties arguing his case before this Court with the assistance of the court interpreter, which reflects that he was not prejudiced by reason of lack of language assistance prior to the court hearing. Ultimately, the Applicant admitted he had no complaint about procedural unfairness. However, this Court would not place any weight on this admission as the concept of unfairness is often well beyond the mind of an ordinary layman.

27.  The original thrust of his grounds of application is against the Board’s finding of fact. Basically, the Board found the Applicant an incredible witness and rejected the entirety of his evidence. The Applicant therefore failed to prove his case or any of the facts in support of his claim for non-refoulement protection. This is a very unusual finding for a Board to make. The Court of Appeal said in Hidayah, that although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

28.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board tested the Applicant’s evidence against credible COI and found him incredible and rejected almost the entirety of his case. This is essentially a finding of credibility of a witness which is a finding of fact solely within the realm of the Board to make. The Board gave detailed analysis of the evidence, gave full reasons for its finding. The findings are on the whole within the range of reasonable disagreement which reasonable Boards properly directed to the evidence and to the law would have made. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are finding of facts and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

The appeal

9.  By a notice of appeal dated 27 March 2024, the applicant appealed the Judge’s decision to this court.  The notice of appeal gave the following as the grounds of appeal:

(1)  The Court failed to consider the applicant’s case properly.  He had submitted evidence showing that: (a)  he had worked with the BOD; (2)  he was described as a loan expert, loan inspector and financier of BOD; (c)  he had been kept in detention; and (d)  he was released on bail which means he had jumped bail and would be arrested upon his return.

(2)  The Court did not apply legal principles applicable to judicial review.

10.  The applicant’s written submission further asserted that:

(1)  There was error of law and unfairness in the decision.

(2)  The Court failed to apply the high standard of fairness and disregarded the fact that his life would be in danger.

(3)  The Director, the Board and the Court should take into account the importance of the applicant’s human rights.

(4)  Torture risk means act by which severe pain or suffering whether physical or mental is inflicted on a person for (a)  obtaining information or confession; (b)  punishing the person for something he has or is suggested to have committed; and (c)  intimidating and coercing the person based on discrimination of whatever kind, when the pain or suffering is inflicted by, or at the instigation of, or with the acquiescence of a public officer or someone acting in an official capacity.  

Our reasons for decision

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of credibility and evidence, country-of-origin information and risk of harm are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

12.  For the following reasons, we are of the view that the grounds of appeal and written submissions have no merits:

(1)  The Board had carefully considered and analyzed the applicant’s evidence, including the documents produced by him.  For the detailed reasons given in its decision, the Board found the applicant’s evidence incredible and rejected the entire factual basis of the claim.  In the application before the Judge, the applicant only made generalized criticisms of the Board’s decision, but failed to point to any specific error in the Board’s analysis and assessment of the evidence.  He had not addressed the Board’s reasons for rejecting his evidence and documents, including the many inconsistencies and oddities that the Board found in his documents and evidence.  The Judge was accordingly correct to take the view that his intended judicial review had no realistic prospects of success.

(2)  Notwithstanding that the applicant had not identified any specific error in the Board’s reasons and decision, the Judge had undertaken a rigorous examination of the applicant’s claim, evidence and the Board’s decision.  He was satisfied that there was no basis for interfering with the Board’s decision and the intended judicial review has no realistic prospect of success.  In this appeal, the applicant while asserting there were error of law, unfairness and non-compliance with the high standard of fairness, has not provided any elaborations or particulars.  He has also not shown how the reference to the meaning of torture risks relates to his case and the appeal.  The applicant has accordingly not shown any basis for this Court to interfere with the Judge’s decision.

(3)  We have separately considered the Board’s decision and do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review does not enjoy any reasonable prospect of success. 

13.  As the appeal against the Judge’s decision is devoid of merits, we dismiss the appeal.