KHERLEN GANTULGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2024/2018

[2021] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2024 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 oral submissions by the Applicant in open court;

1.  Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 September 2018.  In fact, the Director had not made any decision relating to the Applicant dated 10 September 2018.  The Director had made a decision in his Notice of Decision dated 27 February 2017 (the “Notice”), refusing the Applicant’s claims for non-refoulement protection.  The Applicant appealed that the decision.  His appeal was dismissed by the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) in its decision dated 10 September 2018 (the “Decision”).  Thus, the decision dated 10 September 2018 in respect of which the Applicant sought leave to apply for judicial review should be the Decision of the Board.  Accordingly, leave was granted to amend his application by substituting the Board for the Director.

2.  The Applicant is a Mongolian national.  He arrived Hong Kong as a visitor on 21 September 2012 with permission to stay for 14 days. He overstayed and was arrested by the police on 30 October 2012 and referred to the Immigration Department.  On 2 November 2012, he applied for a non-refoulement protection claiming that he will be harmed, prosecuted or tortured by the Mongolian police for offences he never committed if returned to Mongolia.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice dated 27 February 2017, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Decision of the Board. 

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant said he got acquainted with two delinquents, Munkhbat and Enkhbat.  He was arrested by the police for a case of hooliganism which happened in July 2010.  He was oppressed and ill-treated by the police during his detention.  He was subsequently granted bail.

6.  In late August 2010, he had a scuffle with other people in a bar and was arrested by the police.  He was detained in a detention centre because he had committed a crime while he was on bail.  During his detention, he was tortured for four to six times a month.  He was told that a charge of robbery would be laid against him.  He was denied legal representation.  He was released after he had participated in a hunger strike in June 2011 after ten months’ detention. 

7.  After his release, he was told by his friends that three gangsters were looking for him probably with a view to force him to admit the crime which they committed.  He was told that these gangsters were well connected and knew many people working in the law enforcement department as well as in the government.  Then, he fled to Hong Kong to seek non-refoulement protection.  He did not consider internal relocation an option as the police had extensive network with local communities and informants.

The finding of the Board

8.  At the hearing before the Board, the Applicant confirmed that his evidence in the NCF and the record of screening interview was true and correct.  When the Board first asked if he would be giving evidence, he repeatedly said he was not feeling well; that he did not have much to add to the information contained in the hearing bundle and that he was not able to obtain documents.  After a few questions, the Board was satisfied that he was smart, not forgetful and fit to testify.  When confronted with inconsistencies in his evidence, he turned difficult and refused to answer questions.  The hearing terminated after only about one third of the questions which the Board contemplated asking had been put to him.  In the end, the Board was unable to make any finding that he was harmed by the three gangsters and the police.  The Board was not persuaded even to the low standard applicable the reasons why the Applicant left Mongolia and that he would suffer ill-treatment of any sort if refouled.  In other words, the Applicant failed to discharge the burden of proving his fear and risk and he had no factual basis to support his claim for non-refoulement protection on any of the four applicable grounds under the USM.

Grounds for judicial review

9.  The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review (ie Form 86). He filed an affirmation dated 24 September 2018 setting out four grounds:

(1)  Applicant was not educated;

(2)  no lawyer was provided for him to advice;

(3)  the Board decided the case an assumption even without considering my truth and serious and evidence presented by the Applicant; and

(4)  the absence of another evidence to prove his case, the Board cannot infer that the Applicant has no case.

At the hearing, the Applicant produced a written submission in Mongolian.  It was read out by him and interpreted by the interpreter.  In his submission, he repeated the above points.  He disagreed with the Decision.  He disputed the Country of Origin Information (“COI”) saying that the information is unconfirmed and written by foreigners on-line.  He said that in truth the authorities protect the rich and powerful, accuse the innocent and put them in jail.  He also repeated his lack of legal representation before the Board and his lack of legal knowledge.  These are amplifications of his grounds already set out above.

Ground (1) – Lack of education

10.  By this ground, the Applicant claimed he was not educated.  However, in his NCF, he said he had received four years’ education. Now, before the Court, he said he had received secondary education.  He was able to prepare his Form 86, his supporting affirmation and his various letters to the Court in English without the assistance of an interpreter.  Though his English is not perfect, he is apparently communicable in English.  Whatever the truth, with his age and experience, being a man of 28 years of age at the time of the appeal before the Board, he had sufficient maturity, mental capacity and communication ability to conduct his appeal and look after his interest, particularly with the assistance given by the Board as is shown in the Decision.

11.  Besides, his lack of education is a fact which cannot change over a brief period of time.  He said he was not educated when he appeared before the Board.  Equally, he is also not educated when he appeared before this Court when applying for leave.  If lack of education could be a ground for granting leave to apply for judicial review of the Decision of the Board, it could also be a ground to overturn the decision of this Court.  On such logic, this ground could bar any proceedings.  The real question is whether in the light of his disability, the proceedings had been fairly conducted without taking advantage of his disability.  Having rigorously examined the Decision and the papers, the Court was satisfied that the answer is an emphatic “yes”.

Ground (2) – Lack of legal representation

12.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] 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 Applicant was prejudiced by the lack of legal representation before the Board.

13.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director.  The appeal bundle is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  The NCF was prepared by him under legal advice.  The answers in the record of the screening interview were given by him in the presence of his lawyer and assistance of an interpreter.  He also had the services of a qualified interpreter at the oral hearing before the Board. He certainly knew what were in the NCF and the record of the screening interview.  The Notice of the Director was issued to him on 27 February 2017. It was not until 22 August 2018 that the oral hearing was held.  In between, he had 18 months to seek assistance from among his own circle to prepare for his appeal.  All the benefits that legal representation could have afforded him are all contained in the hearing bundle which was before the Board.  It would be ideal if he was legal represented before the Board; but he was not prejudiced by the fact that he was not.

Grounds (3) and (4) – Board’s reliance on inference

14.  These two grounds are different aspects of the same ground and may be conveniently dealt with together.  By these grounds, the Applicant complained that the Board acted on the COI without receiving actual evidence presented before the Board, particularly without accepting his evidence of police abuse in Mongolia.  Though the Board did refer to some COI, it only did so for the purpose of understanding the context in which the Applicant’s case arose.  Since the Board found that Applicant failed to discharge the burden of proving his fear and risk was genuine, there was no factual case to support his claim for non-refoulement protection on any of the four applicable grounds.  It was unnecessary for the Board to consider state protection and internal relocation to prevent or avoid the risk, which are the two issues in respect of which the COI becomes relevant. The COI is unnecessary for the Board’s Decision.  Thus, these grounds are misconceived.

15.  Furthermore, the COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2014 - Mongolia  and Country Reports on Human Rights Practices for 2015 - Mongolia published by the United States Department of State; The World Factbook – Mongolia, issued by United States Central Intelligence Agency; Committee against Torture considers report of Mongolia published by the United Nations Human Rights Office of the High Commissioner on 3 August 2016; Freedom in the World 2015 Report – Mongolia published by Freedom House; and an article titled Judicial corruption and the remedies to prevent it published by Transparency International – Mongolia.  The Country Reports on Human Rights Practices for 2014 - Mongolia was in fact submitted and relied on by the Applicant.  Indeed, among the COI provided by the Director is a more up-to-date report for 2015.  Other than making a bald assertion that the COI considered by the Board was unreliable and hearsay, the Applicant provided no information from credible sources as to the true position. The Court considered these grounds totally groundless.

Conclusion

16.  The real thrust of the Applicant’s submission is his disagreement with the Board’s assessment of his credibility and the finding that he failed to discharge the burden of proving his fear and risk.  These are challenges of the Board’s findings of facts which is solely within the province of the Board as the tribunal of fact.  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[12]. 

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are findings of facts which are exclusively within the province 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.  There were no such elements in the Board’s Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

18.  For the above reasons, leave was granted to amend the application by substituting the Board for the Director and the amended application was refused.

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

[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] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] [2018] HKCA 524 at para 14(1)