AMINDAVAA SUGARMAA v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Mongolia who last arrived in Hong Kong on 4 October 2024 as a visitor with permission to remain as such up to 7 October 2024 when she did not depart and instead overstayed, and on 22 October 2024 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Mongolia she would be harmed or killed by her former employer and/or the Mongolian police or authorities for reporting and disclosing certain corrupt activities between her former employer and the Minister of Roads and Transport.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tsetserleg City, Arkhangai Province, Mongolia.  After leaving school with an university degree she went to Ulaanbaatar City to work as an assistant officer in a building company specializing in the constructions of infrastructure and roads for the city.

3.  In early 2023 she noticed that her employer had submitted some false documents to the Ministry of Roads and Transport, but when she raised her concern to the company chairman, she was threatened not to disclose it to anyone or else she would be killed, and so she became fearful for her safety and therefore resigned from her job and left the company in June 2023, whereupon she was again warned by the company not to disclose anything to the press or else she would be killed.

4.  Several months later one day in September 2023 she was asked by the police to go to the Sukhbaatar District Police Station where she was interrogated by a police officer of any intention to disclose the wrongdoing of her former employer to the press, and was warned not to do so or else there would be serious consequences before she was released.

5.  Later in October 2023 she was again asked by the police to go to the police station for further questioning about what she knew of any wrongdoing of her former employer, during which she was threatened and slapped by the same police officer on the face several times before she was eventually allowed to leave without charges.

6.  However, in February 2024 she started to receive threatening phone calls from unknown persons warning her not to disclose what she knew about the wrongdoings of her former employer or else she would be killed.     

7.  As a result the Applicant became fearful for her safety, and so in April 2024 she departed Mongolia for various places including Hong Kong, Thailand, Vietnam and China before eventually returning to Hong Kong on 4 October 2024 when she subsequently overstayed and then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 February 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 9 June 2025 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 her 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of her claimed risk of harm from her former employer or the Mongolian authorities upon her return to Mongolia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her or any reason for them to do so, that in any event the Mongolian authorities or police were entitled to carry out their legal duties to investigate any wrongdoings that the Applicant may know of by taking her to the police station for interrogations and that no charges had ever been brought against her prior to her departure of the country or at all, that any issues she might have with her former employer was a private dispute between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 3.2 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 highly educated adult with working experience to move to other areas of the country away from her home district in large cities where it would be difficult if not impossible for anyone to locate her.

10.  On 18 June 2025 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 18 August 2025 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 16 September 2025 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former employer or the Mongolian authorities that caused her to leave her country to come to Hong Kong to seek protection, that even if her account of event prior to her departure of Mongolia were true that there was no reliable evidence of any real intention of either of them to seriously harm or kill her, that in any event the Mongolian authorities and police were entitled to carry out any investigation of any crime or wrongdoings by subjecting the Applicant to proper interrogations when eventually she was released without any harm or charges and to leave the country without any problem, while any issue she might have with her former employer was a private dispute between them only without any official involvement that state or police protection would be available to the Applicant upon her return to Mongolia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former employer that her claim for non-refoulement protection failed on all applicable grounds.    

12.  On 22 September 2025 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just asserted that no lawyer was provided for legal advice to her and that the Board failed to take proper consideration of her claim before dismissing her appeal but without providing any details or particulars as to how it did so, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

13.  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.

14.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her claim from her former employer even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Mongolia, there is simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.  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.

17.  It is also of note that the Applicant recently in writing as well as filing an affirmation requesting to withdraw her application as her issue in her home country has been resolved that it is now safe for her to return to Mongolia.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her 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