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HCAL 1636/2019
[2024] HKCFI 145
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1636 of 2019
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Enkhtsetseg Maral |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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 14 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 6 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 November 2018 (the “Notice”).
2. The Applicant is a Mongolian national. She first entered Hong Kong on 19 December 2017 and then travelled between Hong Kong and Macau three times before her last entry into Hong Kong on 16 March 2018 when she was permitted to remain until 30 March 2018. She was arrested on 22 March 2018 for theft, convicted and sentenced to two weeks’ imprisonment. She was discharged on 4 April 2018 and transferred to Immigration detention as her permission to stay had expired. On 6 April 2018, she raised a non-refoulement claim. She was released on recognisance. Thereafter, she committed three other thefts in July and August 2018 and was sentenced to two terms of imprisonment of six months each and another term of nine months.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
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 her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that, if refuoled, she would be harmed or killed by the family of a man known as Bold who had a grudge against her.
5. The Applicant, now aged 35, was born and raised in Ulaanbaatar, Mongolia. She obtained a diploma in Chinese Language from Mongolian National University and has held various jobs, including teaching and running her own business in a Sunday market.
6. On the evening of 25 October 2017, the Applicant and her boyfriend attended a birthday party in a bar and restaurant in Bayanzurkh District, Ulaanbaatar. Bold was drinking with another man at an adjacent table and made fun of the Applicant and her boyfriend with profanities. The Applicant’s boyfriend was provoked and attacked Bold with a glass ashtray hitting Bold’s left eye. A fight ensured which was subsequently stopped by the security guard and police was called.
7. The Applicant and her boyfriend were taken to a police station. The Applicant was assaulted by a police officer known as Lieutenant Damcbaa in an attempt to extract details about the fight from her. It took her a week to heal. The Applicant was released on cash bail of 500,000 Mongolian Tugrik (“MNT”) after three days. She did not dare to make any complaint against Lieutenant Damcbaa for fear of retribution.
8. After her release from bail, Bold’s family visited her and demanded 40 million MNT compensation for the visual impairment suffered by Bold as a result of the fight. Bold’s mother slapped her and Bold’s elder brother beat her with bare hands. They threatened to kill her unless she gave them the money in the following week. The incident lasted around 20 minutes. The Applicant suffered nose-bleeding and bruises and it took her a week to heal.
9. The Applicant reported the assault to the police but the police refused to investigate upon noticing that the incident was related to the Bold family. She believed it was due to Bold’s family connection with the government and law enforcement agencies. The Bold’s family harassed her at her home multiple times between October and mid-November 2017. She had to hide in her house to avoid Bold’s family. Then, upon the advice of her friend, she fled to Hong Kong.
10. While in Hong Kong, the Applicant was informed by her mother that her name was placed on the wanted list in Mongolia and the case against her remains open. Her mother was also continuously harassed by Bold’s family.
11. The Applicant said that since she is wanted by the police in Mongolia, they would not protect her. She also claimed that internal relocation was not possible because she was a wanted person and Bold’s family had connections with the authorities.
The finding of the Board
12. The Board noted that the Applicant gave different versions of the fight with Bold. In the first written signification, she claimed that her boyfriend got into a heated argument with a passer-by while walking. This was different from the version given by her in the NCF that the fight took place inside a bar. The Applicant also claimed in the first written signification that she was attacked on several occasions by Bold’s family, but in the NCF she said she was attacked once only.
13. The Applicant claimed that the version in the NCF was true and she had given inaccurate information in the written signification due to pressure of being held in immigration detention. The Board was not satisfied that the inconsistencies, which were material, could be explained by the pressure of detention. This is because prior to the immigration detention the Applicant had already experienced imprisonment for two weeks for the theft. Thus, she could not have been under any shock from incarceration when she made the first written signification.
14. The Board also noted that the Applicant travelled to Macau three times since arriving in Hong Kong and that she did not seek non-refoulement protection immediately upon entering Hong Kong. She could not provide any satisfactory explanation for her Macau trips and could not explain why she did not seek protection earlier, despite widespread information about availability of protection in Hong Kong on the internet. She was also unable to provide any document to show that she was on bail in Mongolia.
15. The Board considered her case inherently implausible because there was no reason for Bold’s family to go after her as she claimed when they could and should have gone after her boyfriend’s family or her family in Mongolia for the money.
16. The Board found the Applicant was not a credible witness, her account of events is not credible. It rejected her evidence about the fight at the bar, the assault by Lieutenant Damcbaa, the demand for compensation and assault by Bold’s family, that she was wanted by the Mongolian police or would be at risk of wrongful prosecution and punishment for the assault on Bold. The Board found the entirety of her case is fabricated and hence she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Mongolia.
17. The Board found that there was a functioning police and judicial system in Mongolia and that state protection would be available to her. It also held that internal relocation would be a reasonable and practicable option for her.
18. For the above reasons, the Board found that the Applicant is not entitled to protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal.
The legal principles applicable to judicial review
19. 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]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
20. The Applicant did not put forward any grounds of intended review in her Form 86 or her supporting affirmation. Presumably, she disagreed with the Board’s Decision that she would be safe returning to her home country. She had been invited by the Court via its letter dated 29 April 2020 to, amongst other things, file submissions in support of her application. She did not respond. After explaining the above legal principles to her at the hearing, she confirmed she had no complaints about procedural unfairness or irrationality, but as she had no knowledge about the applicable law, she left it to the Court to look for errors of law in the Decision for her.
Discussion
21. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to Mongolia. In effect, she is seeking to challenge the Board’s finding of fact, which is not permissible. In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
22. 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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board tested the Applicant’s evidence against COI and inherent probability. It found she was not a credible witness, rejected the entirety of her account of events as fabricated. It found she had failed to prove the basic facts of her case. Hence, the Board found she had failed to prove the factual basis to support her claim to protection. The Board gave reasons for its findings. These are findings of fact, which the Court may not intervene, save for errors of law, procedural unfairness and irrationality in the Decision. Insofar as the Decision is a finding of the law, it is absolutely correct. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
23. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 9th day of January 2024.
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( Allen LEE )
for Registrar, High Court |
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 9/1/2024
Enkhtsetseg Maral
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 9/1/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14829/18/12/186/MNG25
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3933/18 (Formerly RBCZ 10426/18)
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)]
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