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

CACV 52/2020, [2023] HKCA 693

On Appeal From [2019] HKCFI 2871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 144 OF 2021

(ON APPEAL FROM HCAL 1007 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  Introduction

1.  This is the applicant’s appeal against the judgment of Chow J (as he then was)  (“the Judge”)  dated 26 November 2019 ([2019] HKCFI 2871; [2020] 1 HKLRD 153)  (“the Judgment”), whereby the Judge dismissed his application for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 28 March 2018 (“the Board’s Decision”), which dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 26 July 2016 and 2 August 2017 (collectively referred as “the Director’s Decisions”)  respectively rejecting the applicant’s non-refoulement claim.

B.  Background

3.  The background facts of the present appeal have been comprehensively summarised by the Judge at [4] - [11] of the Judgment. It suffices to highlight the following for the purpose of the present appeal.

4.  The applicant is a Somalian born in Afgooye and belongs to a minority clan called Gaboye, which is considered as a low caste of the Somalia society.  He first entered Hong Kong on 20 January 2014 and raised a non-refoulement claim on 22 January 2014.  On 24 January 2014, he withdrew his non-refoulement claim but resubmitted it on 23 April 2014.  On 7 July 2015, the applicant lodged a non-refoulement claim form through the Duty Lawyer Service.  In essence, he claimed for non-refoulement protection on the basis that he would be at risk of persecution on account of his membership of a particular social group (“PSG”), ie, the Gaboye clan, were he to return to Somalia.

5.  In support of his claim, the applicant relied on the following:

(1)  He was verbally abused and discriminated against by other children in the neighbourhood since childhood.

(2)  In around 2000 when he was about 10 years old, his sister had a relationship with a man from the Benadiri clan, which was also a minority clan in Somalia.  The man’s family opposed their relationship and his sister was later accused by the man’s family to have used “black magic” on him and was later killed by his family.

(3)  In about February 2005 when he was about 15 years old, he was kidnapped by a group of young men living in the neighbourhood whom he believed to be members from a majority tribe.  He was beaten up with wooden sticks but did not report the matter to the police as they were from the majority clans and would not help anyone from the minority clan.

(4)  In 2009, he worked in a farm for someone from the majority clan but was not paid for his work.  His requests for payments were not met and when he decided to leave the farm, his employer ran him down with a car, breaking his right leg.  His aunt and uncle later took him to Mogadishu for medical treatment and he stayed in a hospital for 1.5 months.

(5)  In or about April 2013, a patient who belonged to a majority clan went to the applicant’s father’s clinic for medical treatment and later died.  The patient’s family held the applicant’s father responsible and shot his father dead in the same month.  The applicant also received death threats from the patient’s elder brother and from a 15-year old boy.

6.  In November 2013, the applicant left Somalia.  According to the applicant, the security situation in Somalia had become increasingly violent since that time due to, inter alia, clan conflicts, military operations, and attacks on civilians and the government by Al-Shabaab, a fundamentalist group based in East Africa.  Al-Shabaab had also targeted minority clan members for forcible recruitment to its organization.

7.  By a Notice of Decision dated 26 July 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2], and persecution risk[3]. By a Notice of Further Decision dated 2 August 2017, the Director rejected his non-refoulement claim on the basis of BOR2 risk[4].

8.  The applicant appealed the Director’s Decisions to the Board.

9.  On 28 March 2018, the Board dismissed the applicant’s appeal.  The Judge summarized the relevant findings by the Board in dismissing the appeal at [11] of the Judgment as follows:

“11. In the written decision of the Board dated 28 March 2018 (‘the Written Decision’), the Board made, inter alia, the following findings:

(1)  The Applicant’s evidence that he had received death threats from the deceased patient’s elder brother and a 15-year old boy was rejected (see paragraph 41 of the Written Decision). There would be no risk of the Applicant being killed or harmed by the deceased patient’s family, whether in Afgooye, Mogadishu or anywhere else in Somalia (see paragraph 45 of the Written Decision).

(2)  The Applicant was being ‘less than honest’ in stating that in the event of his being returned to Somalia, he did not know his family’s whereabouts, would not know where to find them, had no means of contacting his uncle, and would not know how to travel from Mogadishu to Afgooye (see paragraph 52 of the Written Decision). The compelling likelihood on the evidence was that his mother and brother, uncle and aunt, and four other Gaboye families whom the Applicant described as ‘close relatives’ would still be living in Afgooye, and it would not be unduly difficult for him to establish where they were living, and to contact them should he return to Somalia (see paragraphs 53 and 57 of the Written Decision).

(3)  The Applicant’s evidence that his uncle would be reluctant to offer him a job in his business on account of his Gaboye status was rejected. Bearing in mind that his uncle, who belonged to the Murisade majority clan, had been successful in his trading business and was married to the Applicant’s aunt who was also a Gaboye, it simply ‘did not add up’, and had a ‘hollow ring’ for the Applicant to allege that his uncle would not employ him because of his Gaboye status (see paragraph 60 of the Written Decision).

(4)  The Applicant’s statements to the effect that there was no point in him as a minority clan member to report to the police about the various wrongdoings against him or his family members because they would do nothing were not based on any personal experience but were pure conjecture on his part, and no weight would be accorded to the Applicant’s allegations in this respect (see paragraph 75 of the Written Decision).

(5)  The totality of the physical and mental violence which was inflicted on the Applicant before he departed from Somalia was as follows –

(a)  the regular bullying he experienced at school in his youth;

(b)  the beating he received with wooden sticks and punches on his head in 2005 when he was 15 years old by some young men from the community; and

(c)  his right leg being driven over by his employer’s car, which fractured his leg and caused a minor head injury in 2009 (see paragraph 76 of the Written Decision).

(6)  While the Applicant suffered a degree of physical pain in consequence of the various assaults as mentioned above, and also a degree of psychological pain from being discriminated against as a Gaboye in Somalia, the degree of pain, both physical and mental, experienced by him did not constitute ‘severe pain or suffering, whether physical or mental’ as stipulated in the definition of ‘torture’ in the Ordinance, nor did it attain the minimum level of severity so as to qualify as torture or CIDTP for the purpose of BOR 3 (see paragraph 77 of the Written Decision).

(7)  In view of the relatively low intensity of pain and suffering which was inflicted upon the Applicant before he left Somalia, and there was no danger that he would be harmed by the deceased patient’s family should he return to Somalia, and also the fact that in important respects the situation in Somalia had improved, including that there was no longer any clan-based discriminatory treatment in Mogadishu, the Applicant had failed to establish that there were substantial reasons to believe that if he were refouled to Somalia, he would be at risk of being tortured or harmed (see paragraph 78 of the Written Decision).

(8)  The fact that there were frequent asymmetrical attacks by Al-Shabaab taking place in Mogadishu with consequential civilian casualties was not sufficient in itself to indicate that the Applicant would be in danger of becoming a casualty if he were refouled to Mogadishu. The Applicant had no connection or relationship with any aspect of the governmental or official administration, or the security forces or any NGO or international organization. His profile was not such as would be likely to attract Al-Shabaab’s adverse attention and lead to him being targeted as a result (see paragraphs 88 and 89 of the Written Decision).

(9)  It was an irresistible inference on the evidence that the Applicant’s aunt and uncle would not allow the Applicant to live in an Internally Displaced Persons (‘IDP’)  camp if he were returned to Mogadishu. He could live with his mother and brother, or aunt or uncle, or one of the other four families of close relatives who lived in Afgooye. Even if he chose to work in Mogadishu rather than Afgooye, there was no reason why he would not be able to live with them in Afgooye, and commute to Mogadishu as often as necessary (see paragraphs 95 to 97 of the Written Decision).

(10)  In all, the Applicant had failed to show that there were substantial reasons to believe that if he were henceforth refouled to Somalia, he would face a real danger of being killed or seriously harmed. It followed that his application for non-refoulement protection in Hong Kong based on torture risk failed (see paragraph 98 of the Written Decision).

(11)  For the same reasons, the Applicant had failed to establish that there was a real risk or danger that he would be arbitrarily deprived of his life, or would face a genuine and substantial risk of being subjected to torture or CIDTP, if he were henceforth refouled to Somalia. It followed that his claim for non-refoulement protection in Hong Kong based on BOR 2 or BOR 3 risks failed (see paragraphs 103 and 109 of the Written Decision).

(12)  The Applicant and his family members, as Gaboye, are members of a particular social group (PSG), and they experienced instances of discrimination from members of the majority clans in Somalia, in the Applicant’s case since childhood (see paragraph 113 of the Written Decision).

(13)  However, the discrimination which the Applicant experienced from time to time was not so severe as to amount to persecution or serious harm for the purposes of the Refugee Convention (see paragraph 122 of the Written Decision).

(14)  Furthermore, based on relevant country information and judicial authority, the situation with regard to clan-based discrimination appeared to have changed substantially for the better since the Applicant left Somalia in November 2013, to the extent that in 2014 there was no longer any clan-based discrimination in Mogadishu as stated in the Country Guidance case issued by the UKUT in MOJ[5] in 2014 (see paragraph 123 of the Written Decision).

(15)  Accordingly, the Applicant had failed to establish that if he were henceforth refouled to Somalia, there would be a reasonable degree of likelihood or real risk that he would suffer from persecution or serious harm, and his fears in that respect were not well-founded. It followed that his claim for non-refoulement protection in Hong Kong based on persecution risk likewise failed (see paragraph 124 of the Written Decision).

(16)  Lastly, internal relocation to Mogadishu would be a reasonable option for the Applicant.  It would be for the Applicant to decide whether to base himself with his family in Afgooye or, with the assistance of his aunt and uncle, in Mogadishu.  It was an irresistible inference that he would be assisted by his aunt and uncle making full use of their social and business contacts to find suitable employment for him, quite apart from the possibility of his uncle offering him employment in his own business, in Mogadishu (see paragraphs 155, 156 and 157 of the Written Decision).”

10.  Thus, in essence and relevant for the purposes of this appeal, in rejecting the applicant’s appeal against the Director’s Decisions, the Board found that (a)  the applicant had failed to show that, if refouled, he would be subject to the requisite degree of persecution risk by reason of clan-based discrimination, and (b)  in any event, internal relocation to Mogadishu would be a reasonable option for the applicant.

C.  The judicial review and the Judgment

11.  On 4 June 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decisions[6]. The applicant was now on legal aid.  At the hearing on 28 March 2019, the Judge granted leave for the applicant to amend the Form 86 and further granted leave to apply for judicial review of the Board’s Decision.

12.  In his Amended Form 86, the following four grounds were advanced by the applicant in support of his judicial review:

(1)  The Board failed to properly assess persecution risk based on membership of a PSG;

(2)  The Board failed to have regard to the evidence including COI, making assumptions and speculations on the applicant’s claim;

(3)  It was Wednesbury unreasonable and irrational for the Board to decide to refoule the applicant so that he could contact family members once in Somalia to assist him in the relocation to Mogadishu, and

(4)  The Board failed to properly apply the guiding principles established in MOJ[7]when considering the issue of internal relocation to Mogadishu.

13.  The applicant was represented by leading counsel at the hearing before the Judge[8]. By way of the Judgment, the Judge dismissed the application for judicial review.  Essentially, although the Judge observed that there might be merits in the applicant’s complaint that the Board had failed to properly assess the alleged persecution risks premised on clan discrimination, the Judge rejected the contentions that that would materially affect the Board’s conclusion that it was reasonably open to the applicant to relocate to Mogadishu.  Hence, the Judge refused to quash the Board’s Decision as its conclusion on internal relocation was not tainted by any public law errors as asserted by the applicant.

14.  Relevantly, the Judge explained his reasons as follows:

(1)  After considering the Country Guidance case YS and HA (Midgan – not generally at risk)  Somalia [2005] UKIAT 00088 and “Country Policy and Information Note Somalia: Majority clans and minority groups in south and central Somalia” published by the United Kingdom Home Office, version 2.0 June 2017 (“the 2017 Somalia UK Home Office Report”), the Judge considered that it was clear that one of the important issues which the Board ought to have considered was whether the applicant could avail himself of patronage and therefore protection afforded by a majority clan in his home town in Afgooye should he be required to return to Somalia.  The evidence suggested that the applicant might not receive such patronage and protection, in view of the fact that (i)  he was harmed by his former employer (Abdiwali)  as a result of his demand for payment of outstanding wages in 2009, and (ii)  his father was blamed for the death of a patient belonging to a majority clan (Hawiye)  and was killed as a result in 2013.  The question of lack of protection by a majority clan was, unfortunately, not considered by the Board.  See [27] - [30] of the Judgment.

(2)  There was also force in the applicant’s submission that the Board, in its cumulative assessment of the persecution risks, appeared to have failed to consider other specific incidents complained of by the applicant which the Board did not reject.  These asserted incidents included the complaints that (i)  he was beaten up by a group of young men in the neighbourhood of his home in 2005 for no apparent reason, (ii)  he was harmed by his former employer because he had demanded for payment of outstanding wages and decided to leave his employer’s farm in 2009, and (iii)  his father was killed by the family of a patient belonging to a majority clan in 2013, in its consideration of the issue of persecution risk (see Warner v The Minister of Citizenship and Immigration, 2011 FC 363, a decision of the Federal Court of Toronto, at paragraph 9).  It is possible that the Board had these incidents in mind when referring to the “discrimination” from the majority clan members which the applicant experienced from time to time in paragraph 122 of the Board’s Decision.  However, this was not clearly stated.  The Court should not be required to speculate on this matter, particularly where the Director has not seen it fit to support a favourable reading of the Board’s Decision to uphold the Board’s Decision.  See [30] - [31] of the Judgment.

(3)  However, after taking into account the Country Guidance cases YS and HA and MOJ,and also the 2017 Somalia UK Home Office Report, the Judge concluded that it was open to the Board, after carefully considering all the circumstances of the present case including the applicant’s evidence, to make the finding that it was a reasonable option open to the applicant to relocate to Mogadishu and work there with the general assistance, including adequate financial assistance, from his aunt and uncle.  The Judge did not accept the applicant’s contention that it was not possible, or was meaningless, for the Board to determine whether it was unduly harsh to expect the applicant to relocate to Mogadishu merely because the Board had failed to properly understand the nature of the applicant’s claim or assess the risk of persecution on account of his PSG.  See [32] - [36] of the Judgment.

(4)  The other grounds as put forth in the Amended Form 86 also did not have merit and the Board was entitled to reject the applicant’s appeal on the basis of its finding that he could reasonably relocate to Mogadishu.  See [36] of the Judgment.

D.  This appeal

15.  In his Notice of Appeal, the applicant raised two grounds of appeal, namely:

(1)  Ground 1 – In the context of this case, the failure to properly determine persecution risk based on PSG was fatal to the whole of the Board’s Decision since it led to an erroneous consideration of the “risk profile” of the applicant.  A failure to properly determine the persecution risk in this case renders the assessment on internal relocation meaningless, as the Board would have proceeded with an erroneous “risk profile”.

(2)  Ground 2 – Having erred in his assessment of risk of persecution, the Board erroneously dismissed the applicant’s explanations for his difficulties in obtaining patronage and protection and did not find the applicant credible regarding his risk of persecution and difficulties in contacting home and family.  It would be Wednesbury unreasonable and irrational to expect the applicant to return home and re-establish contacts and protection for relocation if by so doing would subject him to the risk of persecution.  The Judge also did not provide reasons for dismissing these arguments as without merit.

16.  At the hearing of this appeal, we further drew parties’ attention to the “Country Policy and Information Note Somalia: security and humanitarian situation in Mogadishu” published by the UK Home Office in May 2022 and the recent country guidance case OA (Somalia)  Somalia CG [2022] UKUT 00033 (IAC). We also asked counsel for both parties to make written submissions (if any)  within 14 days after the hearing of the appeal addressing this Court on the relevance of OA (Somalia)  Somalia CG for the purpose of the present appeal.  The parties have respectively lodged their further written submissions.

E.  Legal principles

17.  The relevant legal principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

18.  In particular, the Court of Appeal has repeatedly emphasised that the role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration, supra, at [14(1)]; Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].

19.  Further, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration, supra, at [14(2)] and United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22 at [38] and [39].

20.  Bearing in mind the legal principles above, we will turn to consider the grounds of appeal.

F.  Analysis

21.  Although two separate grounds of appeal were raised, in essence, they boil down to one principal issue, namely: whether the Judge had erred in not disturbing the Board’s ruling on the availability of internal relocation to Mogadishu in this case, when the Judge held that the reasoning as to whether the applicant faced persecution had been flawed by failing to properly consider whether the applicant might not have majority clan patronage.

22.  In this regard, Mr Wong for the applicant helpfully summarised the applicant’s case for the purpose of the present appeal in his skeleton submissions dated 13 May 2022 as follows:

“5. The Notice of Appeal contains two separate Grounds, although they are in effect the two tiers of the same proposition. The failure to consider ‘lost patronage’ would affect the Applicant’s ‘risk profile’ both in relation to his risk of persecution and as to the availability of internal relocation. At a conceptual level, the assessment of internal relocation is only meaningful assuming the Applicant is indeed being persecuted and has lost patronage (otherwise why relocate at all). An internal relocation assessment must be conducted on the assumption that the Applicant is being persecuted for his PSG, has lost patronage, and is therefore an outcast in society – Ground 1. At a more fact-specific level, there is a real nexus between the failure to consider lost patronage, and the rejection of certain evidence and adoption of inferences unfavourable to the Applicant – Ground 2. …”

23.  Mr Wong then argued that the assessment of internal relocation was only meaningful assuming the applicant was being persecuted and had lost patronage and that there was a real nexus between the failure to consider lost patronage, and the rejection of certain evidence and adoption of inferences unfavourable to the applicant.  Mr Wong then submitted that the reason given by the applicant before the Board that his uncle and aunt would no longer assist him credibly resembled a situation in which a Gaboye had lost patronage.  Given that the applicant’s father died and patronage was lost after the majority clan had accused that the patient’s death was caused by the father’s fault, the Board failed to consider whether the uncle would radically change his position towards the applicant because he is now an outcast without patronage.  Mr Wong also argued that given the applicant’s fear was due to the persecution on account of his PSG, it made him at risk throughout Somalia and the Board had erred in considering internal relocation as if the applicant were never in fear of persecution in the first place.

24.  With respect, we are not persuaded.  We will explain why.

25.  The underlying plank of Mr Wong’s above contentions is that the question of whether it is reasonably open for the applicant to relocate to and live in Mogadishu is linked to and must be considered in the context of the clan-based discrimination persecution risks that were faced by the applicant.  Given that the Board, as rightly found by the Judge, had failed to properly assess the persecution risk as a whole by failing to take into account and make findings in various persecution linked incidents stated by the applicant, its assessment and conclusion on internal relocation must also be tainted.

26.  However, in this respect, one must properly understand the basis of the Board’s conclusion on internal relocation.  In this respect, it is pertinent to first set out what the applicant’s contentions were before the Board in saying that he could not relocate to Mogadishu.  This was summarized by the Board at paragraph 48 of the Board’s Decision as follows:

“48. He stated he could not live in Mogadishu, since he has no family there, does not know anybody there, and would not be able to support himself. If he looked for accommodation and work there, the first question he would be asked is which clan he belonged to, and when they discovered he was Gaboye, he would not be offered a job – or if he was employed, he might be treated like slave labour and not paid for his work. He would be subjected to the same discrimination and harassment which he had always experienced in the past.”

27.  In rejecting this, the Board has made the following material and important findings.

28.  First, after taking into account the various relevant COI and Country Guidance cases, the Board concluded that there was “no longer any clan-based discrimination” in Mogadishu.  In the premises, the only question was whether a person relocating to Mogadishu would be able to establish himself there financially and economically, in particular in accessing the economic opportunities there that had been produced by the “economic boom”.  The Board explained this at paragraphs 150 - 155 of the Board’s Decision as follows:

“150. I note the following in paragraph 2.5.2 of the Country Policy and Information Note: Somalia, loc.sit.:

‘In general, internal relocation for members of a majority clan or minority group may be viable to Mogadishu and to areas of south and central Somalia not controlled by Al-Shabaab.’

151. Referring again to the Country Guidance provided in MOJ & Ors (Return to Mogadishu), loc. cit. I note that ‘it will be for the person facing return to Mogadishu to explain why he would not be able to access the economic opportunities that have been produced by the ‘economic boom.’

152. If the Appellant were henceforth to be refouled to Somalia, an obvious and real option would be for him to rejoin his mother and brother in Afgooye, which has always been his home base, where he would also be in contact with his uncle and aunt, and his other close relatives (four families)  who also live there – they in effect constitute a well-established little community in Afgooye – and he would be able to commute, initially with his uncle and thereafter on his own, to Mogadishu as necessary.

153. If however the Appellant chose not to live in Afgooye, after careful consideration of all the evidence it would in my view be a reasonable option, and not unduly harsh in the light of my findings above, for him as an able-bodied 29-year old, educated up to Primary 7 level, having assisted in his father’s clinic and worked on Abdiwali’s farm for some 3 months, to relocate to Mogadishu, where importantly there is no longer any clan-based discrimination, and I have found that it is an irresistible inference that if he did decide to live in Mogadishu, his aunt and uncle would provide general assistance and specifically adequate financial assistance to him to enable him to establish himself-including securing reasonable accommodation, and finding a job, possibly in his uncle’s business, but otherwise one of the many job opportunities created by the rapid development and reconstruction taking place in Mogadishu.

154. In paragraph 7 of the Appellant’s Grounds of Appeal/Petition, it is submitted that: ‘The UNHCR maintains its position against forced returns to Somalia due to continued insecurity and violence both by State actors, international forces and non-State actors such as Al-Shabaab’.

155. This would not in my view preclude a finding that internal relocation to Mogadishu would be a reasonable option for the Appellant on all the evidence in the present case, including the Country Guidance provided by the UKUT in MOJ & Ors (loc.cit.)  and the Country Policy and Information Note: Somalia (south and central)  version 3.0 July 2017 which necessarily take into account, inter alia, the security situation and the fact that there is no longer clan-based discrimination in Mogadishu.” (emphasis added)

29.  Second, after taking into account the relevant evidence, the Board found it an “irresistible inference” that, if the applicant decided to live in Mogadishu, his aunt and uncle would provide general assistance and adequate financial assistance to him to enable him to establish himself there.  See: paragraphs 153 and 157 of the Board’s Decision.

30.  Third, in this respect, it rejected the applicant’s evidence and contentions that he had lost contact with his uncle and aunt and therefore would not be able to find them to help him to establish himself in Mogadishu.  The Board explained in detail as to why it rejected the applicant’s assertion and found that he should be able to contact his uncle and aunt, and that they would continue to offer him support in Mogadishu at paragraphs 50 - 63 and 92 - 98 as follows:

“Appellant’s Aunt and Uncle

50. The Appellant’s aunt was Gaboye, however her husband (Appellant’s uncle)  belonged to the Murisade majority clan. He is a successful businessman, a trader, he has warehouses where he sells foodstuffs.

51. The Appellant has not alleged that he and his own family suffered any financial difficulties, although after the death of his father in 2013 his mother had to go back to selling fruit and vegetables to support the family’s living expenses. He said that although his own family was generally financially self-sufficient, on those occasions when they did need financial assistance, whenever his aunt asked his uncle to assist the Appellant’s family financially, his uncle did so. The Appellant confirmed this several times during his testimony in the hearing:

(i)  ‘ ... he (his uncle)  could give me some financial assistance, but he has a difficult time even protecting his wife’.

(ii)  ‘ ... my uncle can not only help his own family, but he also helps us’.

(iii)  When the Appellant was asked: ‘if you return to Mogadishu could you seek financial support from your uncle?’ he did not suggest that his uncle would have any difficulty to afford to pay him such financial support; he only replied obliquely: ‘I have no means to contact him’.

(iv)  It was put to him that if he went back to Somalia, he would surely have no difficulty contacting his uncle? He replied: ‘I could only travel to Afgooye, but I don’t know how I would travel to Afgooye’.

(v)  I note that when he was asked again whether, if he were henceforth refouled to Somalia, he would not expect to receive financial assistance from his aunt and uncle-having regard to their generous support of him in the past-he did not give a straightforward answer to the question: he replied that ‘assistance’ is not about financial assistance, but ‘protection’. His uncle had paid for all his travel expenses because he was not able to protect the Appellant against the family of the patient who had died in his father’s clinic-and that he would still face that same danger from the deceased’s family if he went back to Somalia.

(vi)  He again alleged that he had no means to contact his uncle-and he does not know how he would travel from Mogadishu to Afgooye, where his aunt and uncle live.

52. In my view the Appellant was being less than honest in stating that in the event of his being returned to Somalia, he does not know his family’s whereabouts, and would not know where to find them; and that he has no means of contacting his uncle, and further he would not know how to travel back from Mogadishu to Afgooye.

53. While noting his evidence that he has had no contact with his family since he left Somalia, the compelling likelihood on all the evidence is that if he were henceforth refouled to Somalia, his mother and brother, uncle and aunt and the four other Gaboye families (whom the Appellant described as ‘close relatives’)  would still be living in Afgooye. It would not be unduly difficult for him to establish where they were living, and to contact them after he returned to Somalia.

Regular bus service Mogadishu-Afgooye

54. He confirmed that there is a regular bus service between Mogadishu and Afgooye, but he said that if he tried to use it, people at the checkpoints would immediately ask him which clan he belonged to, and on discovering that he was Gaboye, anything could happen to him.

55. The LandInfo report dated 4 April 2016 attached to the Appellant’s Closing Submissions, entitled: ‘Somalia: Practical issues and security challenges associated with travels in Southern Somalia’, states that:

(i)  The report is mainly based on information obtained from drivers and travelers through a local resource person in Mogadishu, whom LandInfo has met and assessed him to be highly reliable, it states in paragraph 2 that ‘fully loaded buses run daily from Mogadishu to various destinations in Southern Somalia. Thus it is LandInfo’s impression that many people travel despite the security challenges involved in such travels. ‘

(ii)  The table in paragraph 2.1.1 states that Afgooye is situated in Lower Shabelle, and the journey from Mogadishu to Afgooye takes 30 mins to 1 hour.

(iii)  Paragraph 4 ‘Risk Reducing Measures’ states inter alia that ‘the risk associated with such checkpoints is primarily of being suspected of belonging to the enemy .... travellers try to avoid arousing suspicion by keeping a low profile and not standing out from other travelers ... travelling without objects that may arouse suspicion ... it may also be an advantage to travel with or have a reference to call if problems arise.’

56. According to Country Information and Guidance, Somalia: Security and humanitarian situation in South and Central Somalia, December 2014:

‘2.6.3 According to representatives of an international agency, ordinary civilians (ie people not working for the SNG)  are able to travel between Mogadishu and Kismayo, Baidoa, Jowhar and Afgooye. They mostly travel by bus, and there are now fewer checkpoints ...

2.6.4 ... ordinary people will travel by bus or other transportation along these roads as well as to other locations in south and central Somalia, irrespective of whether Al-Shabaab is in control of the area’

57. On all the evidence including COI, it is clear in my view that it would not be unduly difficult for the Appellant to make contact with his family, if he were henceforth refouled to Somalia. He confirmed that he does have a mobile phone since he has been in Hong Kong, and he does use social media such as facebook. Since his uncle frequently travelled by car from Afgooye to Mogadishu, as a result of which he was well-known to the men who manned the checkpoints, it would not be difficult for the Appellant to make contact with him, for example by obtaining his uncle’s contact details from one of his warehouses in Mogadishu, or leaving a message for him with the staff at one of the warehouses.

58. Alternatively he could take one of the daily buses travelling from Mogadishu to Afgooye-using his uncle’s name as a reference if necessary at a checkpoint-and make contact with his mother and brother, and his uncle and aunt in Afgooye.

59. The Appellant was asked whether his uncle would not be able to offer him a job in his business? He replied that his uncle was not even happy to have the Appellant’s family visiting him at his house, because of their Gaboye status; his uncle would not be able to employ him, because according to the Appellant ‘he would be in trouble’ if people saw him employ a Gaboye in his business.

60. On all the evidence, including the relevant COI, I do not believe the Appellant’s allegation that his uncle would be reluctant to offer him a job in his business on account of the Appellant’s Gaboye status. Bearing in mind that his uncle has been so successful in his trading business in Somalia, notwithstanding the fact that he is married to the Appellant’s aunt who is a Gaboye, it simply does not add up, and has a hollow ring for the Appellant to allege that his uncle would not employ him because of his Gaboye status.

61. This is particularly so in the light of the Country Guidance issued by the UKUT in MOJ & Ors (Return to Mogadishu), Somalia CG 2014 UKUT 00442 (IAC), and specifically paragraph (g)  thereof: ‘The significance of clan membership in Mogadishu has changed ... There are no clan militias in Mogadishu, no clan violence, and no clan-based discriminatory treatment, even for minority clan members.’

62. When the Appellant was referred to this Country Guidance, his reply was simply: ‘I have lived in Somalia, I witnessed what happens there ... I don’t believe much has changed’.

63. However it was clear to me from the Appellant’s reply quoted in the preceding paragraph, and also from other aspects of his testimony, that he has not kept abreast of the aforesaid and other major developments that have occurred in Somalia, and particularly Mogadishu, during the more than four years since he left in November 2013.

…

Appellant’s aunt and uncle

92. Having regard to the Appellant’s testimony that whenever his family needed financial assistance in the past, his aunt and uncle have always readily provided it, and the fact that they paid all the Appellant’s medical expenses surrounding the operation and treatment of his fractured right leg, and also all his travel expenses involved in departing from Somalia, the only reasonable conclusion to be drawn in my view is that if he is henceforth refouled to Somalia, his aunt and uncle would provide him with sufficient support generally and financial support in particular, to enable him to establish himself after returning, whether he chose to settle in Afgooye or Mogadishu.

93. This could quite conceivably include an offer by his uncle to employ the Appellant in his business; however if this did not materialize for any reason, there can be no doubt, having regard to all the evidence, that his aunt and uncle would use their social and business contacts to help him find a suitable job, in either Mogadishu or Afgooye. (The Appellant stated during his testimony that he has no specific skills, and the only employment he could think of doing would be to work as a casual labourer. However his lack of a specific skill would in itself not necessarily preclude his uncle from finding a suitable niche to employ the Appellant within his own business, if the Appellant were henceforth refouled to Somalia).

94. If the Appellant chose to live in Mogadishu rather than Afgooye, there is every reason to believe, on all the evidence, that his aunt and uncle would at least help him to locate and pay for suitable accommodation.

95. Ms. McLellan suggested that if the Appellant was returned to Mogadishu, he might find that he had no option but to live in an Internally Displaced Persons (‘IDP’)  camp.

96. However it is an irresistible inference from all the evidence that his aunt and uncle would never for one moment allow such a situation to exist, which involved the Appellant living in an IDP camp for even the briefest period of time.

97. Nor would there conceivably be any need for such a situation to ever arise, given that the Appellant would always have the option to live with his mother and brother, or aunt and uncle or one of the other four families of close relatives who live in Afgooye. Even if he chose to work in Mogadishu rather than Afgooye, there would be no reason why he would not be able to live with one or other of his family members in Afgooye, and commute to Mogadishu as often as necessary.

98. For all the reasons discussed above, the Appellant has failed to show that there are substantial reasons to believe that if he were henceforth refouled to Somalia, he would face a real danger of being killed or seriously harmed. It follows that his application for non-refoulement protection in Hong Kong on the basis of torture risk fails.” (emphasis added)

31.  In our view, all these findings are reasonably and properly open to the Board to make.

32.  First, in relation to the finding that there was no longer any clan-based discrimination in Mogadishu, this is well supported by the relevant Country Guidance cases and COI as summarized at paragraphs 61, 150, 151 and 155 of the Board’s Decision.

33.  In MOJ the Upper Tribunal (Immigration and Asylum Chamber)  considered specifically the possibility of relocation to Mogadishu, and stated at paragraphs 407, 408, 424 and 425 as follows:

“407. Distilled to its essence, and on the basis of all the evidence before us, we give the following country guidance:

…

f. A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.

g. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

h. If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

(i)  circumstances in Mogadishu before departure;

(ii)  length of absence from Mogadishu;

(iii)  family or clan associations to call upon in Mogadishu;

(iv)  access to financial resources;

(v)  prospects of securing a livelihood, whether that be employment or self employment;

(vi)  availability of remittances from abroad;

(vii)  means of support during the time spent in the United Kingdom;

(viii)  why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.

Put another way, it will be for the person facing return to Mogadishu to explain why he would not be able to access the economic opportunities that have been produced by the ‘economic boom’, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.

408. It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

…

424. The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c)  risk or facing a real risk of destitution. Large numbers of Somali citizens have moved to Mogadishu where, as we have seen there is now freedom of movement and no clan based discrimination. Such a person seeking to settle in Mogadishu but who has not previously lived there would be able to do so provided he had either some form of social support network, which might be in the form of membership of a majority clan or having relatives living in the city, or having access to funds such as would be required to establish accommodation and a means of on-going support. That might be in terms of continuing remittances or securing a livelihood, based on employment or self employment.

425. On the other hand, relocation in Mogadishu for a person of minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.” (emphasis added)

34.  This position is also supported and confirmed by the Upper Tribunal in the recent decision in OA (Somalia)  Somalia CG at [356a] that the country guidance given in [407] of MOJ remained applicable. The Upper Tribunal further observed in OA at [356p] that:

(1)  [408] of MOJ shall be replaced by its [356m] which states: “It will only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which would be reasonable for internal relocation purposes”; and

(2)  [425] of MOJ should be read as though the reference to “having to live in conditions that will fall below acceptable humanitarian standards” were a reference to “living in circumstances falling below that which would be reasonable for internal relocation purposes.”

35.  Mr Wong in his Supplemental Note of the Appellant contends that the Board misapplied MOJ as the issue is whether a person, who is a Gaboye (Midgan), facing persecution because of his PSG, may be able to relocate anywhere in Somalia[9].

36.  With respect, this is a mischaracterisation of the issue at hand.  Internal relocation is always an assessment by reference to a specific place but not anywhere within the country in question.  In this case, the Board considered specifically relocation to Mogadishu, and MOJ is plainly relevant where the Upper Tribunal specifically laid down the country guidance in relation to relocation to Mogadishu.

37.  Mr Wong also argues that MOJ and OA both relate to “returnees” to Mogadishu but not people who are born elsewhere in Somalia relocating there.  It is therefore inappropriate for the Board to rely on MOJ to assess whether it is reasonable for the applicant to relocate to there[10].

38.  We also do not think there is anything in this.  As seen above, the Upper Tribunal, in laying down the country guidance, observed and concluded in MOJ that “The significance of clan membership in Mogadishu has changed ... There are no clan militias in Mogadishu, no clan violence, and no clan-based discriminatory treatment, even for minority clan members”.  In other words, as a fact, there is no clan-based discrimination, and thus clan-based persecution, in Mogadishu.  This has nothing to do with whether someone belonging to a minority clan is coming from another part of Somalia.  The applicant has also not provided any support to show that somehow, despite the absence of any clan-based discrimination in Mogadishu, residents there coming from another part of Somalia will be subject to such discrimination.

39.  Quite to the contrary, at [424] and [425] of MOJ, the Upper Tribunal in fact also considered the situation of people of a minority clan originally from other parts of Somalia who were to relocate or move to Mogadishu.  Similarly, the only and real concerns raised by the Upper Tribunal in regard to these situations was not about clan-based discrimination or persecution, but the potential ability of these people who had no previous clan-links in Mogadishu to establish themselves there financially and economically.  The Upper Tribunal was particularly concerned that they would not be able to find reasonable accommodation meeting acceptable humanitarian standards, and had to live in IDP camp.

40.  Hence, according to these materials, the only and real question even for relocation to Mogadishu is about whether the person relocating would be able to establish himself financially and economically there, taking into account the fact that he or she had no previous link with Mogadishu.  This question has nothing to do with the persecution risk relating to clan discrimination said to be faced by the applicant.

41.  In this respect, the Board had rightly relied on MOJ and specifically considered these matters and found that, with the assistance of the uncle and aunt, the applicant would reasonably be able to find suitable accommodation in Mogadishu and establish himself in Mogadishu.  In particular, the Board had concluded that there was no possibility that the applicant would have to live in an IDP camp (see in particular paragraphs 92 - 96 of the Board’s Decision as quoted above).

42.  Second, in relation to the rejection of the applicant’s assertion that he would not be able to find and contact his uncle and auntie, the Board had taken into account all the relevant evidence, including the applicant’s responses to questions raised by the Board.  It is plain that, in light of such evidence, it is reasonably open to the Board to reject the applicant’s assertions and find instead that he would reasonably be able to find his uncle and auntie once he returned to Somalia.  This assessment as to whether the applicant could contact his uncle and aunt again also has nothing to do with the clan discrimination persecution risk said to be faced by the applicant.

43.  Third, given the above two findings and conclusions, it is also reasonably open to the Board to conclude that it was an “irresistible inference” that if the applicant decided to live in Mogadishu, his aunt and uncle would provide general assistance and adequate financial assistance to him to enable him to establish himself there.

44.  As such, it can be seen that the Board had holistically considered and assessed the evidence, including the relevant COI and Country Guidance cases, before coming to the conclusion that it would not be unduly harsh for the applicant to relocate to Mogadishu.

45.  In particular, the Board had given due regard to the applicant’s age, work experiences and the previous assistance from his aunt and uncle before considering that internal relocation would not be unduly harsh. The Board had also carefully assessed and considered the evidence before finding that the applicant would be able to obtain general and financial support from his aunt and uncle upon his return to Somalia, relocating to Mogadishu.

46.  Once the Board’s conclusion on internal relocation to Mogadishu is properly considered as above, Mr Wong’s submissions that this assessment is flawed or tainted by reason of the Board’s lack of proper assessment of the persecution risks must be rejected.  As explained, given the well supported finding that there is no longer any clan discrimination in Mogadishu and the only question for reasonable relocation is whether the applicant could establish himself there financially and economically, the issue of persecution risks falls away and is not relevant to the assessment.

47.  This court also notes that one of the main contentions of the applicant’s case now seems to rest on the allegation that the applicant had “lost patronage” subsequent to the death of his father following the death of the Hawiye patient.

48.  Insofar as this allegation of “lost patronage” is related to the complaint about the Board having failed to properly assess the overall persecution risks faced by the applicant, given our above analysis, this is neither here nor there as it will not have any effect on challenging the Board’s assessment and conclusion on internal relocation to Mogadishu.

49.  But in any event, this allegation is not open to the applicant at this stage and is also not supported by evidence.

50.  As we have pointed out to Mr Wong at the hearing, that was plainly not the case advanced by the applicant before the Board.  Insofar as the applicant’s PSG is concerned, his case as advanced before the Board was that he did not have majority clan patronage throughout instead of only losing majority clan patronage subsequent to the deaths of his father and his father’s patient: as set out at paragraphs 11 and 12 of the Skeleton Submissions of the Appellant/Petitioner dated 23 October 2017 provided to the Board, the applicant’s case was that he did not have majority clan protection even before the death of his father:

“11. The Appellant has also provided evidence that he and his family have been targeted by and do not have the protection of local majority Hawiye clan or any other majority clan in Afggoye:-

(a)   The Appellant was attacked by members of the Hawiye clan in 2005 [B1/7/170]

(b)   The Appellant was subjected to forced labour and ultimately attacked by his employer (a Hawiye clan member)  in 2009 [B1/7/172]

(c)   The Appellant’s father was killed at his clinic following the death of a Hawiye patient (and death threats from the patient’s family)  in 2013 [B1/7/172]

(d)   The Appellant received death threats from members of the deceased patient’s family in 2013 [B1/7/172]

(e)   The Appellant has not been in contact with family members in Somalia [B1/7/174]

12. As the Appellant does not have the patronage or protection of a majority clan in his home area, he cannot safely return there. Similarly he would not be able to relocate safely to another destination in Somalia. As noted in YS and HA:-

‘65. That said, we consider that internal relocation would rarely, if ever, be a viable option for a Midgan.

…

Specifically we bear in mind that for Midgan any available majority clan patron protection will normally exist in his or her home area only: there are no Midgan communities in Somalia. Thus, if it has been found that a Midgan would be at risk in his or her home area, then it is difficult to see how he or she could move elsewhere with any real prospect of securing an alternative source of majority clan protection.”’ (emphases added)

51.  Similarly, regarding Mr Wong’s argument that the Board failed to consider whether the applicant’s uncle would radically change his position towards the applicant because of his “lost patronage”, this was also not the applicant’s case before the Board.  As noted by the Board at paragraph 51 of the Board’s Decision (quoted above), when questioned by the Board whether he could seek financial support from his uncle, the applicant’s evidence was that he would not be able to contact his family upon his return to Somalia.

52.  Further, as summarized above, as a matter of fact, even after the death of the applicant’s father, his uncle continued to assist him in leaving Somalia in November 2013.

53.  Accordingly, it is not open for the applicant to now complain that the Board had failed to take into account the issue of “lost patronage”, when that was plainly not his case and evidence advanced before the Board.

54.  Under Ground 2, the applicant further complains that the Judge did not provide reasons for dismissing the applicant’s argument that it would be Wednesbury unreasonable and irrational to expect the applicant to return home and re-establish contacts and protection for relocation if by so doing would subject him to the risk of persecution.  This is similarly without merits:

(1)  The Judge dismissed the judicial review on the basis that the Board’s conclusion on internal relocation to Mogadishu is not tainted by any public law errors as, based on the available evidence and COI materials, it was reasonably open to the Board to make the various relevant findings that led to that conclusion;

(2)  As explained by the Board in detail at paragraph 57 of the Board’s Decision (quoted above), it formed the view that given that the uncle had been travelling to Mogadishu regularly and had established businesses there, it would not be too difficult for the applicant, while in Mogadishu upon refoulment, to find his uncle’s contact through making inquiries with the staff at the uncle’s warehouses in Mogadishu.  This finding means that the applicant would not be required to go back to his home town Afgooye first, where he would allegedly be subject to persecution risks.

(3)  In this respect, the Judge in concluding at [36] of the Judgment that it was open to the Board to come to the various findings in the Board’s Decision based on the evidence before it must also be so understood in this context.

55.  For all the above reasons, Grounds 1 and 2 must be rejected and the Judge was correct in dismissing the judicial review.

G.  Disposition

56.  There is no merit in the present appeal and we dismiss the appeal.

57.  As to costs, Mr Wong for the applicant fairly indicated at the end of the hearing that, if the appeal was dismissed, he could not in principle resist costs although he drew our attention to the fact that the Judge made no order as to costs in the court below.  When asked as to the Director’s position, Ms Cheung for the Director only submitted that she was here to make submissions to assist the court.  In this respect, it is pertinent to note that the Director by way of the Department of Justice’s letter dated 28 December 2021 to the court also stated that she would adopt a neutral stance in the appeal (a position she had similarly adopted before the Judge)  and would appear to make submissions to assist the court.

58.  In these circumstances and given that the Director, in only adopting a neutral position in this appeal, is effectively not opposing the appeal, we also find it just and fair to make no order as to costs for the appeal, and we so order.  We further order that the applicant’s own costs be taxed in accordance with Legal Aid Regulations.

59.  Last but not the least, we thank counsel for both sides for the assistance rendered.