MAMOZAI IQBAL v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

CACV 449/2019

[2020] HKCA 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 449 OF 2019

(ON APPEAL FROM HCAL NO 775 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.1  This is an appeal by Mr. Mamozai Iqbal (“the appellant”) from an order of DHCJ Bruno Chan (“the Judge”) given on 20 September 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as “CALL-1” (“the Judge’s Decision”)[1].    

1.2  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decisions made by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“TCAB”) rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s Decision (defined in [7.2] below) was an appeal against the decision of the Director who had earlier rejected that claim.  

Background

2.1  The appellant is a national of Afghanistan now aged 25.  The appellant did not receive any education and worked as a shepherd and shoe shiner.  His father was associated with the Taliban and used to transport weapons for it.  He learnt from the Taliban that his father had died in American custody.  However, the appellant himself refused to help the Taliban. 

2.2  On 19 August 2015, the appellant entered Hong Kong illegally and was arrested by the police on 9 September 2015.  He raised a claim for non-refoulement by way of written representation dated 12 September 2015.  Subsequently, he submitted his non-refoulement claim form dated 1 April 2016. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  In or about 2003, the appellant’s family house was searched by American troops for weapons.  His father ran away and after 2 or 3 months, the appellant was informed by the Taliban that his father died in the American troops’ custody. He was requested to join the Taliban as a suicide bomber. 

-  The appellant refused the Taliban’s request and was beaten by them twice.  They also threatened to kill him for his refusal.  The appellant did not suffer from serious injury and did not report these incidents to the police. 

-  In or about 2014, the appellant went to stay in Peshawar, Pakistan for about 6 to 7 months and worked as a shoe shiner.  Later, he was deported from Pakistan, so he went back to Kabul and continue to work as a shoe shiner.  He left his country on 13 August 2015 for China since he feared being located and killed by the Taliban.

-  The appellant did not seek assistance from any authorities in Afghanistan.  He thought there was no state protection and internal relocation is not a viable option for him as the Taliban is very influential, so he would be located, harmed or even killed by the Taliban.  He did not have contact with his family members. 

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks if he returned to the Afghanistan: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1  What is often referred to as “BOR 3 risk” (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4  What is often referred to as “BOR 2 risk” (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance Cap.383) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 26 July 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1   The appellant appealed to the TCAB which held a hearing at which the appellant was present.  The TCAB reviewed the evidence of the appellant in detail. 

7.2  The TCAB found that there were discrepancies in the evidence provided by the appellant, which undermined the reliability of the appellant’s allegations and credibility ([43]).  The TCAB did not accept that the Taliban had an intention to further harm the appellant upon his refusal of working for them.  Even if they had beaten him with sticks in 2003-4 (when he was 8-9 years old), they had not escalated the attack or further harmed the appellant ([85]), nor was there any evidence showing threats and attacks against him, in the decade between 2004 and 2015 ([86]-[88]).  Upon assessing the evidence, the TCAB did not consider the appellant faced a real risk of harm from the Taliban if he was refouled to his country ([89]-[90]). The TCAB dismissed the appeal by its decision given on 30 April 2018 (“the TCAB’s Decision”).     

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the decisions of the Director and the TCAB. The appellant’s grounds of judicial review are summarized by the Judge in the Judge’s Decision as follows ([10]):

“(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the consideration of the applicant’s case resulting in an unfair outcome of rejecting his non-refoulement claim;

(2) that the Director failed to properly recognize that the applicant was tortured at the behest of and with full collusion of the police and the state law enforcement agencies and politicians that the state should be rendered liable to the applicant by the failure of the public officials to provide reasonable protection for its citizens;

(3) that the Director failed to take such argument into account or to give sufficient weight to such argument before reaching his decision;

(4) that the Director failed to properly consider or give sufficient weight to the relevant COI which support the applicant’s case that the police in Afghanistan would not be able to protect its citizens;

(5) that the Director failed to recognize that corruption and incompetency of the administration of Afghanistan were still serious problems;

(6) that the Director failed to apply the high standards of fairness required by the Wednesbury test in his consideration of the applicant’s claim;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the determination of the applicant’s claim; and

(8) that the adjudicator failed to give sufficient chance for the applicant to arrange relevant evidence to support his non-refoulement claim and his appeal.”

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge with assistance from an interpreter. As mentioned earlier, the Judge refused leave for the reasons set out in [11] - [18] of CALL-1 ([2019] HKCFI 1350):

“11.  These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account relevant COI or fail to place proper weight in them, or why it was necessary or relevant to consider the concept of state acquiescence when the West-backed Afghan government clearly had since been at war with the Taliban, or how did the Board failed to apply the high standards of fairness in the consideration of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.  Whilst it is true that the COI available to the Board show that the police and authorities in Afghanistan may not be totally effective in protecting its citizens against the Taliban, of which the adjudicator did acknowledge in the assessment of the applicant’s claim, and that the COI also illustrated the steps taken by the Afghan government to put in place improved security for its citizens and to step up its military actions to combat the Taliban, of which the adjudicator did invite the applicant to comment which was taken into account in his assessment of the claim, as he stated in the decision:

“68. I accept that Taliban’s presence in Afghanistan remains a problem and that the police and Afghan authorities are being regarded as inefficient and corruptive. I also accept that incidents of impunity, corruption and abuse of human rights existed within the police. Suffice to say that I am of the view that the Afghan government is taking steps to improve the capacity, effectiveness and ethics of the police and authorities. I am also satisfied, as I have outlined above, that the Afghan authorities are taking steps to combat Taliban and has been setting up measures to combat Taliban. I form the view that state protection is available to the Appellant and that the Afghanistan government is willing to act to protect its citizens.”

13.  As pointed out by the Board, state protection does not necessarily mean that the state government must provide round-the-clock protection and guarantee against all forms of attacks on the person, as it was held in Horvath v Secretary of State for the Home Department [2000] UKHL 37, in which the UK House of Lords dismissed an appeal by an applicant for refugee status who feared persecution in his home state in Slovakia by skinheads against whom the Slovak police were failing to provide protection, when Lord Hope of Craighead stated at §18:

“ … I consider that the obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy.”

14.  His Lordship then said this about the duty to provide protection at §21:

“ … The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said at p.44G, under reference to Professor Hathaway’s observation in his book at p. 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. …”

15.  Further, the Court of Appeal has held that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return, see: Re RS CACV 206/2012, 20 August 2013, §59; and Re Fitri Ambarwati & Anor [2018] HKCA 461 (CACV 110/2018, 2 August 2018), §16.  

16.  As there is no basis for any suggestion that the extended concept of state acquiescence is applicable in this case, I agree with the Board that there is also no basis to accept that upon his return to Afghanistan, the applicant would face any more real or personal risk of being subjected to harm by the Taliban than the average young man in his community.    

17.  In the premises and 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.

18.  For these reasons I do not find any of the grounds of the applicant reasonably arguable, or that there is any realistic prospect of success in his intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 25 September 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his Notice of Appeal:

“I am not satisfied with the decision because I have problem in my own country. I can’t go back at this moment. Please help me to process further process my case.”

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and we will not repeat them here.

11.3  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Submissions

12.1  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 13 January 2020. In his submissions, he mainly repeated that his life is in danger and his enemies were still searching for him.  The police could not protect him.  He would like to stay in Hong Kong until his problem is resolved.

12.2  At the hearing before this court, he alleged orally that he had not given a full account of his case as his English was not good and the interpreter at the TCAB had told him not to say anything.  However, when this court asked him why he had not previously raised this allegation against the interpreter as a ground for judicial review, he said it was because he thought the interpreter was a government employee and it would not be good for him (the appellant) to raise the point.       

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1  The appellant’s grounds of appeal are not valid.  He has simply repeated his factual allegations.  The Judge had considered the decision of the TCAB, and found that there was no procedural unfairness or error of law. Even if the appellant’s allegation about the interpreter was true (and there is no affirmation or other supporting evidence), it is clear that it was the appellant’s choice not to raise it below.  As such, this court would not consider it.   

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.