TSEGMID NYAMDAVAG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2353/2018

[2022] HKCFI 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2353 of 2018

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant was last permitted to stay in Hong Kong as a visitor until 2/12/2017.[1] He was arrested by the police on 23/11/2017 for theft.[2]  He filed this non-refoulement claim on 8/3/2018. 

Background

2.  The applicant was born on 6/1/1985 in Ulaanbaatar City, Mongolia. He had a business selling vehicle spare parts in 2009. He did not belong to any political parties.

3.  One evening in August 2014 at Ulaanbaatar City, he witnessed a woman kidnapped by 2 men. She was pushed into a jeep by force. He reported to the police in person but the officer refused to take any statement. The officer told him that there was insufficient evidence and to mind his own business.

4.  A few days later, he described the appearance of the kidnappers to his friend (“B”) who was an ex-police officer. B recognized the kidnappers and told him that they were connected with the police. B told him not to be involved in this incident.

5.  One evening around 9 p.m. in September 2014, 4 men assaulted him while he was on his way back home. His left hand was cut and bled. His left eye was bruised. He recognized that some of them were the kidnappers. They warned him not to approach any authorities. He received stitches and was hospitalized for a month.

6.  While in hospital, 2 officers came and took a statement from him about the attack. He also received threats from some unknown people. They threatened to kill him. He did not follow up with the police.

7.  On discharge from the hospital, he found out that his house was burnt down. He went to stay with B for a week. He then moved back to live with his mother.

8.  In late October on a cold day[3], he was kidnapped by some men on his way to shopping. He was blindfolded. He was assaulted at an unknown spot in the countryside. He fainted. They left him naked in the countryside. When he regained consciousness, he walked for 3 hours back to his mother’s house. His mother gave him some medicine at home. He did not report to the police.

9.  Around November 2014, B told him on the phone that he was wanted by the police. A friend knew his situation and assisted him to leave for Russia. He bribed the officer at the checkpoint. His mother told him not to return as the police and some unknown people came and asked about him.

10.  He stayed in Russia for 2½ years. He could not afford the cost of living. He then travelled to various places including China, Malaysia, Vietnam, Macau and Hong Kong.  Hewasonlysightseeing. He had been to Hong Kong 9 times since July 2017. He only learned of the protection scheme in Hong Kong after he was arrested.

11.  Internal relocation was not viable as the authorities would be able to trace him in Mongolia. They had an extensive network. In addition, the authorities were corrupt. He would not be treated fairly.

The decision of the Director

12.  The Director found that the assertions of the applicant were implausible and unreliable. There was no real risk of harm for the following reasons:

(a)   For the alleged kidnap he witnessed, the applicant asserted that the kidnappers took revenge on him for reporting to the police. There was no reason for the kidnappers just to assault him or made threatening calls. There were plenty of opportunities to kill him. However, they had not done so. The asserted fear of being killed was unreal.

(b)   After his house was burnt, he could stay safely with B. It was inexplicable that he moved back to his mother’s house and risk his life in the same district.  

(c)   He was left in severe cold in the countryside naked after being assaulted by some kidnappers. He did not suffer any frostbite/hypothermia but just injuries from the assault. He could walk for 3 hours back to his mother’s house. He needed no formal medical treatment. All these were implausible.

(d)   He had been to Hong Kong 9 times since 3/7/2017. He made no effort to ask about any protection scheme. His conduct was inconsistent with a genuine claimant whose life was in danger.

(e)   He was assaulted several times by the kidnappers. He could fully recover and fled to Russia. He then travelled around in various places sightseeing. The injuries he suffered did not amount to a minimum level of severity.

(f)    The assertion that he was wanted by the police was pure hearsay. He could give no detail as to the charge. There was no evidence that the police were connected with the kidnappers in this regard.

(g)   The background of the kidnappers was not known. There was no evidence that they could locate him elsewhere in Mongolia. 

(h)   Having studied various COI, the Director acknowledged that there were corruption and police abuse of power in Mongolia. Judicial corruption and third-party influence continued. However, victims could complain to the NHRC[4]. The IAAC[5] was effective in investigating corruption case. The law protected rights of an accused and ensured a fair trial. There was reasonable State protection.

(i)     Mongolia was a large country with a population of 3 million.  The law allowed freedom of movement within the country.  Darkhan and Khovd were possible alternatives.  Given his age and experience, it was not unduly harsh for him to relocate.

13.  The Director rejected all claims on 13/6/2018.

The decision of TCAB

14.  The applicant attended a hearing on 12/9/2018. The adjudicator found him untruthful. He failed to establish a real risk of harm. The findings are as follows:

(a)   The applicant told the adjudicator that the area where he witnessed the kidnap was a low income area and people seldom went out in the evening. The adjudicator found that there was an international school in that area. There was a shopping mall which was still open at that time. These contradicted what the applicant asserted.

(b)   His description of the kidnappers was a bare minimum apart from build and height. He could not recall the registration number of the jeep. It was not surprising that the police had insufficient evidence to launch a search.

(c)   The applicant told the adjudicator that he saved 1 million MNT[6] to start his business selling automobile spare parts. He was unable to explain how he could have saved this sum. How he could make a profit of 1 million MNT per month in his business.

(d)   The HK$10,000 bribe to the immigration officer would consist of 156 banknotes. It would be a 1.5-inch-thick pile. This would be implausible to insert between pages of his passport. In any event, the bribe amounted to over 3 million MNT. It would be an impossible sum given his past earnings.

(e)   The applicant told the adjudicator that the kidnappers untied his hands before leaving him naked in the severe cold. This was unconvincing if they wanted him to die.

(f)    The streets of Ulaanbaatar were congested with traffic most of the time. It was implausible that no one noticed a naked man walking. It was surprising that he did not suffer any injury due to the cold.

(g)   The applicant did not apply for protection in Russia, China and Macau. All these places were signatories of the Refugee Convention. 

(h)   The website of the National Police Agency of Mongolia showed the photographs of those wanted and the crimes committed. Had the applicant wanted to prove that he was wanted, it would not be difficult. However, that was not done.

15.  The adjudicator rejected the factual basis of the applicant’s claim and dismissed the appeal on 3/10/2018.

Judicial review

16.  The applicant filed the leave application for judicial review on 25/10/2018. He complained that he had no legal assistance. The adjudicator had not considered the truth of his case.

17.  In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB.   

18.  The factual basis of his claim should have been set out in his NCF. It was prepared with the assistance of the DLS. The adjudicator had analyzed the evidence in detail. She disbelieved the applicant.  She pointed out various implausible circumstances which substantially undermined the credibility of the applicant. I agree with the findings. The illogicalities showed that the applicant was not credible.

19.  In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

20.  The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for the intended judicial review.

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