ERDENEBAT BOLORJARGAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 862/2019

[2022] HKCFI 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 862 of 2019

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Mongolia who last arrived in Hong Kong on 6 April 2018 with permission to remain as a visitor up to 20 April 2018 but was arrested by police on 7 April 2018 for theft for which he was subsequently convicted and sentenced to prison for 12 months, and upon his release from prison and was transferred 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 friend’s family who blamed him for his friend’s death.  

2.  The Applicant was born and raised in Ulaanbaatar City, Mongolia.  After leaving school he worked as a restaurant cook and then an operator in a local television station, and resided with his mother in his home district. 

3.  In July 2017, he borrowed a loan from his good friend to pay for his mother’s cancer operation, but later lost his job as he had to stay home to look after his mother, and as a result he was unable to repay his loan to his friend.

4.  One day in December 2017 his friend came to his home to discuss about repayment of his loan, but upon leaving his place his friend was later found dead after being robbed near the Applicant’s home, and the Applicant was as a result taken by the police for interrogation during which he was beaten by the police who tried to extract a confession from him for the murder of his friend, but eventually he was released without charge due to lack of evidence against him.

5.  However, his friend’s family insisted that he was to be blamed for his friend’s death, and two brothers of his friend had on two occasions abducted him to a hidden place where he was severely beaten, and later when the police failed to conduct any investigation, and when his friend’s family continued to make death threats against him, the Applicant became fearful for his life and therefore departed Mongolia in March 2018 for China, and from there he later travelled to Hong Kong as a visitor when he was later arrested by police for theft, for which he was subsequently convicted and sentenced to prison for 12 months, and upon his discharge from prison and was transferred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 November 2018 with legal representation from the Duty Lawyer Service (“DLS”) but without attending any screening interview before an immigration officer due to alleged health reason.

6.  By a Notice of Decision dated 11 December 2018 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his perceived fear is real and foreseeable upon his return to Mongolia due to the low intensity and frequency of past ill-treatment from his friend’s family, that the dispute between the Applicant and his friend’s family was a private matter without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Mongolia, 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 Mongolia away from his home district in large cities such as Darkhan where it would be difficult if not impossible for his friend’s family to locate him.

8.  On 19 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he requested that no oral hearing be held, and the Board therefore proceeded to deal with the appeal in his absence and on papers, and on 22 February 2019 it dismissed his appeal and confirmed the decision of the Director.

9.  In its decision the Board found that there were problematic issues in the Applicant’s claim not clarified or explained by him when he chose not to require any oral hearing so as to give oral evidence and to answer questions raised of his claim, that the credibility of his claim was further undermined by his failure to raise it at the earliest opportunity upon his arrival in Hong Kong, that in any event his problem with his friend’s family was a private and personal dispute between them without any official involvement that state/police protection would be available to him upon his return to Mongolia as well as reasonable internal relocation for him to safely move to other area away form his home district without any fear of being located that his claim for non-refoulement protection failed on all applicable grounds.   

10.  On 28 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor did he request any oral hearing for his application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mongolia, 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.  I should also note that sometimes in early 2020 the Court received a letter from someone in the same name of the Applicant but with an unidentifiable number issued by the Immigration Department requesting to withdraw his application for judicial review as he wanted to return to his home country as his problem had been resolved, but upon further enquiry raised by the Court, there was no further response from the person.    

15.  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, I therefore accordingly refuse his leave application.

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