TUNGALAGDOLGION BUYANJARGAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1414/2020

[2023] HKCFI 1603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1414 OF 2020

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 the Applicant in open court / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 March 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Mongolia who last arrived in Hong Kong on 20 December 2018 as a visitor and with permission to remain as such up to 3 January 2019 when she did not depart and instead overstayed, and was arrested by police on 7 January 2019. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Mongolia she would be harmed or killed by the authorities over a false charge of murder being brought against her and/or by the family of the murdered victim in revenge. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dornod Aimag, Mongolia. After leaving school she assisted in her mother’s beauty salon, got married and raised a family with a daughter in her home district.

3.  In 2017 the Applicant met a girl Khaliun in a driving course and subsequently became friends. One evening in early November 2018 she met up with Khaliun together with Khaliun’s 2 friends Zulaa and Solongo for singing in a local karaoke bar during which a quarrel broke out between Khaliun and Zulaa which deteriorated into a fight when Khaliun smashed a bottle on Zulaa’s head who then collapsed onto the floor and lost consciousness.

4.  Later the police arrived to find Zulaa had died from her injury, and brought the rest of them to the police station for investigation, and after each of them had given a witness statement to the police, they were released on bail.

5.  On the next day the Applicant was asked to return to the police station and was told by the investigating officer that both Khaliun and Solongo had put the blame of Zulaa’s death on her, and that she should confess to the murder to save the police’s time, but the Applicant insisted that Khaliun was the culprit and refused to confess.

6.  As a result the Applicant was detained by the police for 3 weeks for interrogation during which she was repeatedly beaten by the investigating officer who tried to force a confession out of her of the killing of Zulaa but in vain.

7.  Eventually by the end of November 2018 the Applicant was released by the police after her parents had hired a lawyer to bail her out.

8.  Upon her release on bail the Applicant received telephone calls from the family of Zulaa demanding her to confess to the murder of Zulaa to the police, to which she refused, but as she was fearful of being harmed by them in revenge and that the police might torture her into a false confession and for which she might be imprisoned for years for a crime that she did not commit, and so on 6 December 2018 she departed Mongolia for Hong Kong and was allowed to stay as a visitor until 19 December 2018 when she then departed for Macau.

9.  On the following day of 20 December 2018 she returned to Hong Kong and subsequently overstayed, and upon her arrest by the police and was referred to the Immigration Department, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 March 2019 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged health reason.

10.  By a Notice of Decision dated 20 May 2019 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”).

11.  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 there will be any real risk of her being harmed or killed by the Mongolian police or authorities or Zulaa’s family upon her return to Mongolia due to the absence of or low intensity and frequency of past ill-treatment from them, that the credibility of her claim of being falsely charged by police for murder is doubted in the absence of any corroborating evidence and that she was able to leave the country without difficulty, that in any event if she is indeed being charged for a criminal offence by the Mongolian police or authorities then she would be a fugitive of the law and not entitled to non-refoulement protection, and that reliable and objective Country of Origin Information (“COI”) show that she would be entitled to proper legal representation to defend the charge in a fair trial in a court of law under the current legal system in Mongolia, while any problem that she might have with Zulaa’s family would be a private dispute between them without any official involvement that state or police protection would be available to her upon her return to Mongolia if resorted to, and that reasonable internal relocation alternatives would also be available in Mongolia with a large population of 3.1 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 the country away from her home district in large cities such as Darkhan where it would be difficult if not impossible for anyone to locate her.

12.  On 3 June 2019 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 1 November 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 March 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

13.  In its decision the Board found numerous inconsistencies discrepancies and contradictions in the Applicant’s evidence as to her alleged arrest by the police over the murder of Zulaa that she was considered as an unsatisfactory witness who had attempted to frequently obfuscate her case during the hearing, that her evidence was further undermined by her failure to attend any screening interview before the Director for no good or acceptable reason, and in the absence of any corroborating evidence that it rejected the credibility of her claim of fear of harm from either the Mongolian authorities or the family of any murdered victim that caused her to leave her home country to come to Hong Kong, which was further undermined by her failure to raise her claim upon first arriving in Hong Kong until much later and only after her arrest by the police that it rejected her claim as false and wholly fabricated by her and concluded that her claim for non-refoulement protection failed on all applicable grounds.

14.  On 7 July 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

15.  By then the Applicant was however also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.  As the last day of the 3 month-period for her to file her Form 86 fell on 3 June 2020, the Applicant was therefore more than one month late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of more than one month must be considered as substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good reason for her serious delay.

18.  As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forth any ground for her intended challenge. 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 am unable to find any merits in her intended application either.

19.  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.

20.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 68 – 93 of 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.

21.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim from the family of the murdered victim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Mongolia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  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.

23.  Furthermore, the Applicant recently filed an affirmation requesting to “close” her case as she wants to go back to her home country.

24.  In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay as well as her latest confirmation of her wish to return to her home country, I refuse to extend time and 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