ZURMAT MOHAMMAD SEDIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1975/2020

[2022] HKCFI 1616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1975 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;

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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 29 September 2020 (the “Decision”) affirming the Notice of Decision of the Director of Immigration (the “Director”) dated 16 July 2020 refusing his application for non-refoulement protection (the “Notice”).

2.  The Applicant is a national of Afghanistan, now aged 24. He entered Hong Kong on 4 November 2019 illegally and surrendered to the authorities in around May 2020, half a year later. On 13 May 2020, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 16 July 2020, the Director rejected his claims under all four applicable grounds.

4.  He appealed to the Board against the decision of the Director in the Notice. On 29 September 2020, the Board dismissed his appeal (the “Decision”). On 30 September 2020, he applied for leave to apply for judicial review of the Decision of the Board.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he will be killed by the Taliban for violating strict religious rules.

6.  The Applicant was born in Paktia, Afghanistan. He is single and he has received six to seven years of school education.

7.  In around early September 2019, while he was riding a bicycle and listening to music on his mobile phone, he was stopped by four Taliban men all armed with firearms. They said he breached strict religious rules for listening to music without authorisation. They forced him to swallow the memory card from his phone and he did. They also demanded to inspect his phone. To prevent the unauthorised movie clips in his phone from being discovered, he purposefully smashed and damaged his phone.

8.  The men became furious and drove him to a graveyard. They hanged him down to the bottom of an abandoned well of some 8 to 10 meters deep. He was trapped there for at least ten or eleven days. During this period, the Taliban men returned twice a day to give him water and food but no one was allowed to visit him. The village elders and clerics at the mosque successfully negotiated with the Taliban members for his release. He was then hospitalized for about a week.

9.  On his father’s advice and with his help, the Applicant went to Guangzhou, Mainland China using his passport with a Chinese visa. His father told him not to return because he would certainly be kidnapped again or killed upon his return. He was told by some Persians that he could seek help in Hong Kong and he sneaked into Hong Kong with the help of a Pakistani agent.

The finding of the Board

10.  The Board accepted the Applicant’s account and assessed his claim on the basis of the case as he asserted. The Board noted that while he had been put inside a dry well for about 10 days, he had been given food and water during that period and had not been hurt in any other way. The Board found that the Taliban intended to punish him for listening to music which the local Taliban probably considered to be a ‘westernised’ activity; but had no intention to kill him. He was not regarded as a pro-government element, a spay, an opponent of the Taliban or someone who had expressed a strong political opinion in his home country. The Board found the ill-treatment he suffered did not attain the minimum level of severity.

11.  Further, based on the then prevailing situation in Taliban, the Board did not consider the Taliban to be state actors for the purpose of torture risk. It also did not accept that his fear from the Taliban had anything to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

12.  The Board noted that the Applicant was only punished for listening to music without permission and it was unlikely that he would be punished again for that only prior infraction. The Applicant had not taken any other action that would make him an interest to the Taliban. The Board considered his risk of being subjected to ill-treatment by the Taliban upon his return to be low. It held that “[h]aving already been punished by the Taliban at his home village area, he should be able to resume living with his family at his home village and enjoy a relatively normal living on his return”.

13.  The Board also found, based on the then situation in Afghanistan, that the Applicant may safely relocate to Kabul, Herat and Mazar-e-Sharif which were outside the control of the Taliban and it would not be unduly harsh to expect him to do so.

14.  Applying the law applicable to non-refoulement protection to the facts found, the Board was not satisfied that the Applicant had proved his entitlement to protection under any of the four applicable grounds under the USM. Hence, the Board dismissed his appeal against the Notice.

Legal principles applicable to judicial review

15.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

16.  The Applicant’s sole grounds of application as advanced in his Form 86 is that the Decision was wrong, unreasonable and unfair in the Wednesbury sense. Insofar as his complaint that the Board reached the Decision wrongly is concerned, it is a challenge of the Board’s finding of fact which the court in a judicial review will not intervene, except where the Decision involved errors of law, procedural unfairness or irrationality. His other complaint is also based on irrationality. Thus, the Court would focus its scrutiny of the Decision on errors of law, procedural unfairness or irrationality.

17.  At the hearing, the Applicant repeated his argument that it would not be safe for him to return to Afghanistan. He said he voluntarily surrendered to the Immigration Department on 13 May 2020 and was detained since without being charged. He produced six copies of Notice of Review of Detention issued by the Immigration Department ordering his detention. It was explained to him that his detention is not the subject matter of his present application over which this Court has no jurisdiction.

18.  He then produced a written submission dated 27 April 2022 purportedly written by a lawyer of the Duty Lawyer Service. It referred to the Applicant’s statement and his answers to questions raised in a screening interview conducted on 22 April 2022. That statement and the record of interview were not annexed to the submission. A bundle of documents containing Country of Origin Information (“COI”) about Afghanistan post-Taliban takeover in August 2021 is also annexed to the submission. As will become clear from this Form Call-1, for the purpose of this application there was no need to call for a copy of that statement or the record of interview, which came into existence long after the Decision was made.

19.  To the Court’s knowledge, the Duty Lawyer Service is not extended to appeals against the Notice of the Director before the Board or application for leave to apply for judicial review of the Board’s Decision. The Applicant was unable to give a reasonable explanation of the purpose of the screening interview. He might have obtained some legal advice or the submission in the course of some social and legal visits or in relation to some other applications. Most probably, a request for making a subsequent application for non-refoulement protection is in the pipeline. That was why he had another screening interview and the services of the Duty Lawyer Service. Be that as it may, the Court took time to consider the submission and its annexure.

20.  The writer of the submission referred to the following seven COI:

(1)  Afghanistan – Events of 2021 published by Human Rights Watch;

(2)  No Forgiveness for People Like You (30 November 2021) published by Human Rights Watch;

(3)  Afghanistan Country focus, Country of Origin Information Report, January 2022 published by European Asylum Support Office;

(4)  Blasts at Schools in Shiite Area of Kabul Kill at least 6 (19 April 2022) published by The New York Times;

(5)  What is Shariah law, and what does it mean for Afghan women under the Taliban (19 August 2021) published by The New York Times;

(6)  Leader of Taliban’s New Afghan Regime Says Sharia’s Law Will Govern All Aspect of Life (7 September 2021) published by Gandhara; and

(7)  Afghanistan: UN condemns deadly blasts at two schools in Kabul (19 April 2022) published by United Nations: UN News.

21.  Based on these COI, the writer submits that there is an accelerating human rights and humanitarian crisis in Afghanistan; that there are incidents of violence almost every day; that the former Afghan military personnel are killed or forcibly disappeared; and there are serious bombing incidents. He also quoted the advice of the Applicant’s friend that the Taliban would not spare the Applicant. He submits that as the Applicant had fled Afghanistan, the Applicant would be classified as a “not good enough Muslims or Afghans”. Based on all these and the fact that the Applicant had a previous record of violation of Sharia law, the writer submits that the Applicant has real fear and will face real risk of being subjected to harsh punishment to be imposed by the Taliban upon his return to Afghanistan.

22.  These COI are about the situation in Afghanistan post-Taliban takeover in August 2021 which is about a year after the Board’s Decision was made or two years from today. However, the appropriate time to assess a claimant’s feared harm and risk is at the time of the Decision. These COI are basically irrelevant for the purpose of the Board’s Decision or an application to review that Decision. If the Applicant has fear about his risk or safety after the post-Taliban takeover, he should make a request for making a subsequent claim under section 37ZO(2) of the Immigration Ordinance. If considered appropriate, the Director will make finding of fact about the Applicant’s risk in Afghanistan under the Taliban government, which this Court may not. For these reasons, this Court would not take these COI into account for the purpose of this application.

23.  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. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

24.  The Applicant’s claims were founded on his fear of harm and death likely to be inflicted on him by the Taliban because of his previous violation of Sharia law. The Board accepted the Applicant’s evidence and assessed his claim for non-refoulement protection on the basis of the case as he asserted. It carefully considered his claim and the COI. It was satisfied that the Taliban only intended to punish the Applicant for his violation of Sharia law but had no intention to seriously harm or kill him. Furthermore, the ill-treatment did not attain the minimum level of severity. The Board was satisfied that the Applicant’s father with the help of the villager elders had settled with the Taliban and secured the Applicant’s release. The Applicant having been punished and released, that violation was spent. Under the then political situation in Afghanistan, the Taliban were not state agents. The Board had good basis to find that the Applicant will not be punished again for the same violation, if refouled. The Board’s finding that the harm and risk was low at the time of its Decision could not have been faulted, even without taking into account availability of state protection and internal relocation.

25.  The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 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 finding 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 vitiating elements in the 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.

Conclusion

26.  For the above reasons, leave to apply for judicial review 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