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HCAL3150/2019
[2024] HKCFI 758
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3150 of 2019
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BETWEEN
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Byambajav Munkhzul |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 23 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 16 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 May 2019 (the “Notice”).
2. The Applicant is a Mongolian national. He entered Hong Kong on 20 November 2018 as a visitor and was permitted to remain until 4 December 2018. He was arrested on 7 January 2019 but no charge was laid against him. On 9 January 2019, he raised a non-refoulement claim. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
Application for adjournment and legal aid stay
3. When the hearing commenced, the Applicant applied for (1) an adjournment to enable him to wait for the outcome of his legal aid application; (2) an adjournment to enable him to wait for further documents and information from Mongolia relating to his case; and (3) bail for him to be released so that he can obtain those further documents and information. He claims he had applied for legal aid in 2019 but has never been informed the outcome of his application. This Court has not received any memorandum from the Legal Aid Department giving notice of his legal aid application. Despite much effort in ascertaining from him about the documents and information he was seeking, he could not give any particulars. Eventually, he said he meant he was waiting for documents from the Legal Aid Department about his legal aid application. After much enquiries with him, it transpired that he had made some enquiries with the Legal Aid Department and was required to complete some questionnaire which presumably he never completed. He has not yet filed any formal legal aid application. In fact, what he wanted was to be released from immigration detention so that he could contact his lawyers in Mongolia. There was no reason why he could not do that while in detention. Whether to grant him bail is a matter for the Director. This Court has no jurisdiction to grant him bail. There is no question about legal aid stay. There are no credible grounds for an adjournment. His application for adjournment is refused.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims if refouled, he would be harmed, tortured or even killed by the Mongolian law enforcement authorities in connection with a financial fraud case which he is innocent of.
5. The Applicant was born in Ulaanbaatar, Mongolia. He received fourteen years of education and has obtained a diploma from a university. He has about thirteen years of work experience.
6. From 2010 to 2016, he assisted a Mr. Chuluun Boldbaatar in processing loans to small and medium business entities. He was later transferred to work in a company known as BOD, a small non-banking financial company. The Applicant gave vague and somewhat conflicting information about BOD’s business, which had been the subject of discussion between him and the Director and the Board. It is sufficient for the present purpose to note that he claimed that the BOD acted as a middleman between private companies and a Mongolian state fund. His responsibilities in BOD included verifying loan application documents and conducting due diligence inquiries before forwarding the loan applications to the management for approval.
7. On 2 May 2018, the Applicant was arrested by two plainclothes officers from the capital police station. They accused him of being involved in a financial fraud case related to a loan of 2 billion Mongolian Tugrik. He was shown the loan application documents bearing his employee number and what he claimed to be his forged signature. He had never seen those documents before. His explanation was not accepted and he was detained by the police.
8. Around 14 days into his detention, his lawyer told him that the government suspected he was responsible for submitting false information in respect of the loan application. While he was detained, two or three officers in the detention centre forced him to confess by punching and kicking him about twice a week. He was also visited by four or five unknown men, whom he believed to be officers from the Independent Authority Against Corruption (“IAAC”) because the IAAC was responsible for investigating monetary crimes.
9. He held two hunger strikes but the officers tied him to a chair and forced him to eat by punching him. His health rapidly deteriorated and he was released on bail on 6 November 2018.
10. He learnt that BOD shut down after his arrest and four or five of his colleagues out of 27 were arrested for the same case. He sought a re-investigation of the case from the Prosecutor General’s Office.
11. Three days after his release, four men abducted him and brought him to an old house. They attacked him with bare hands and threatened to kill him unless he withdrew his request for re-investigation. The men left after the assault and he went home on foot.
12. Three days later, the same group of men abducted him to the same old house again. They asked him why he did not withdraw the re-investigation request and stabbed his left chest, waist and belly with small knives. He escaped and went to a hospital for treatment. During his one week stay in the hospital, he was approached by the police. He made a report of the kidnapping incident. He believed the men who abducted and assaulted him were members of the IAAC. It appeared that no action was taken by the police.
13. Fearing for his safety, he jumped bail and fled to Hong Kong. He had to pay a bribe to be able to leave Mongolia using his passport.
14. The Applicant claims that internal relocation would not be viable because he could be easily located through the well-developed police network in Mongolia.
The finding of the Board
15. The Applicant testified before the Board. The Board asked him to provide specifics about his claim such as the service provided by BOD, the office in which BOD operated, his responsibilities in BOD, the state fund from which BOD drew the loan and the contact person in the state fund. The Applicant only provided vague and general answers. He was unable to provide details about any of the above. The Board found it incredible that he was unable to provide even the most basic information, such as the address of BOD in which he claimed to have worked for one and half years.
16. The Applicant relied on three documents purporting to be decrees issued by the Sukhbaatar District Court ordering commencement of criminal lawsuit against him and other BOD personnel in support of his claim. In the document dated 16 April 2018, the Applicant was identified as a “Loan expert, Loan inspector and Financier” of BOD which was inconsistent with the Applicant’s claim that he only checked the documents before passing the application to BOD management for approval. The document dated 2 May 2018 authorised the Applicant’s pre-trial detention. The third document dated 6 November 2018 authorised his release on bail. The Board believed the documents were not genuine.
17. The Applicant produced additional documents at the adjourned hearing on 29 August 2019. One such document was dated 26 November 2018 which purports to be an order for his arrest for deliberately giving false testimony. The document referred to the same court case as in the earlier three documents and alleged that he had been “summoned for further investigation for committing perjury concerning a case” and “he failed to report to the police”. The Applicant claimed that the document was obtained from his lawyer through an intermediary. The Board found it odd that he was able to obtain such a document which on the face was an order to border control officers and at the eleventh hour. The Board found this document to be forged because the Applicant had confirmed to the Board that he had never testified in the BOD case and there was no chance for him to commit perjury.
18. The Applicant also produced a recording of a television programme about two Mongolian citizens being wrongfully convicted of murdering a Mongolian politician and being tortured during their detention. The recording purported to show collusion between the judiciary, prosecution and law enforcement agencies. He also relied on two news reports about the Mongolian justice system. The Board found that the above did not relate to the Applicant personally and they were at best relevant to show the situation in Mongolia.
19. The Board found numerous oddities in the Applicant’s evidence. His evidence is woefully vague and ambiguous about the progress in the investigation of his case. He was vague and inconsistent about his role in BOD. While asserting that loans approved by BOD would still have to be approved by a certain state establishment, he did not know the name of that state establishment or the name of the state fund providing the loan. His evidence about BOD is inconsistent with the authoritative and credible country of origin information (“COI”) which does not support his claim that loan applications were processed by any intermediary company like BOD. He was shifty whether BOD had one office or several branch offices. That is unusual for someone who had worked for one and half years for someone whose job was to conduct due diligence investigation before submitting the loan applications to the management for approval, including 25 overseas visits to Hong Kong. He was vague about his request for a total re-investigation of his case which is the cause of his torture and fear of harm by IAAC.
20. The Board found the Applicant incredible and rejected his evidence in its entirety. It did not accept that he was investigated or detained for any criminal investigation or that he had been kidnapped after his release. It did not accept that he fled to Hong Kong to seek protection. The Board found that he failed to establish that he would be subject to any of the proscribed risks of harm upon his return. The Board could also find nothing extraneous to his case that would establish any of the applicable grounds for non-refoulement protection. Hence, it dismissed his appeal and confirmed the decision of the Director in the Notice.
The legal principles applicable to judicial review
21. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
22. The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he complained: (1) that the Decision was based on irrelevant information; (2) the Board failed to determine the threat facing him on his return to Mongolia; and (3) the Board was negligent in its finding. He did not give particulars, but in essence these criticisms are directed at the finding of fact by the Board. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. At the hearing, after he was explained the legal principles in the preceding section, he shifted the focus of his complaints to lack of legal representation and language assistance.
Discussion
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[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] nor the judgment of FB v. Director of Immigration[12] 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[13], 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[14], 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.
Conclusion
29. For the above reasons, leave to apply for judicial review was refused.
Dated 12th day of March 2024.
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(Allen LEE)
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent to the Applicant
on 12/3/2024
Byambajav Munkhzul
Applicant’s ref. no:
Nil. |
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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 12/3/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15938/19/5/78/MNG30
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 10107/19
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] CACV 2/2018, (unreported) 23 March 2018
[7] [2018] HKCA 14
[8] [2018] HKCA 15
[9] [2018] HKCA 17
[10] [2018] HKCA 37
[11] (2004) 7 HKCFAR 187
[12] HCAL 51 of 2007
[13] CACV 78/2018
[14] CACV 160/2018, [2018] HKCA 595
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