KHAN KAMRAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2281/2024

[2025] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2281 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Afghanistan who entered Hong Kong illegally on 17 July 2024 and surrendered to the Immigration Department on 23 July 2024 when he raised a non-refoulement claim for protection on the basis that if he returned to Afghanistan he would be harmed or killed by the family of his neighbor in revenge for killing his neighbor over some altercation between the 2 of them and/or by the Afghanistan authorities controlled by the Taliban for causing death to his neighbor. The Applicant has since been detained at the Castle Peak Bay Immigration Centre.

2.  The Applicant was born and raised in Paktia, Afghanistan where he did not receive any formal education and worked as a farmer on his family’s farmland, and resided with his parents and siblings in his home village.

3.  One day in June 2024 while working on the farmland, the Applicant had a quarrel with his neighbor Usman over some irrigation issue which deteriorated into a fist fight between the 2 of them, during which the Applicant struck Usman on the head with a spade, and when Usman fell onto the ground bleeding profusely in his head and was unconscious, the Applicant became frightened and fled from the scene and hid in the village mosque, and on the following day he fled to Kabul to take shelter in his uncle’s home.

4.  While at his uncle’s home the Applicant was informed by his mother that Usman’s father Akhtar Zaman (“AZ”) had come looking for him after discovering Usman’s dead body, but that AZ had refused to accept any money compensation from the Applicant’s parents and instead swore to kill the Applicant in revenge for his son’s death, and as AZ was a wealthy landowner in the village with close affiliation with the Taliban who are ruling the country, and that he also had close connection with the village head Abdul Manan (“AM”) who was also a local Taliban leader, hence the Applicant was afraid to go to the authorities for assistance or protection, and instead he was advised by his parents to leave the country to save his life, and so after staying in Kabul for 6 – 10 days, the Applicant on 22 June 2024 departed Afghanistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 19 September 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from AZ or the Afghan authority and/or the Taliban upon his return to Afghanistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of AZ to seriously harm or kill the Applicant other than just verbal threats and without having ever harmed his family at all, that in any event it was a private dispute between AZ and the Applicant only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that notwithstanding various human rights concerns in Afghanistan and the Taliban that reliable and objective Country of Origin Information (“COI”) show that the Afghan government have exercised due diligence in performing their official duties and that courts run by the Taliban and their judicial system have gained the people’s trust that there are existing channels for redress available to the Applicant upon his return to Afghanistan that it is considered unlikely that his feared treatment will materialize, and that there are reasonable internal relocation alternatives available in Afghanistan with a large population of 40 million people spread across a vast territory of more than 652,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home village or district in large cities such as Kabul or Kandahar where it would be difficult if not impossible for anyone to locate him.

7.  On 26 September 2024 the Applicant lodged an appeal from CIC to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 November 2024 at CIC via video conferencing system before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 November 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from AZ for causing the death of his son Usman but found AZ’s threats to kill the Applicant just uttered out of momentary anger as AZ had never done anything suggesting he was serious in carrying out his threats as he had never harmed any of the Applicant’s family members who are still residing in Afghanistan or to pressurize the Applicant to return to Afghanistan so that he could kill him, that there is no evidence suggesting that AZ had sought the help of the Taliban to locate or apprehend the Applicant nor any evidence suggesting the involvement of the Taliban in the case as the Applicant was able to leave the country without any problem from the airport authority which indicated that he was not an adverse target of the Taliban or the Afghan government, and that in any event reasonable internal relocation would be available to the Applicant upon his return to Afghanistan to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 27 November 2024 the Applicant filed his Form 86 from CIC for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator failed to provide the Applicant with sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and appeal which was procedural unfair to undermine his ability to present a comprehensive case;

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.  Some of these complaints of the Applicants such as Grounds (1), (3), (6) & (7) are however just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational that I do not find such assertions without proper elaboration or presentation with the relevant particulars or specifics reasonably arguable for the Applicant’s intended challenge.

11.  However, for other complaints such as those under Ground (2) on state acquiescence or Grounds (4) & (5) as regard the Board’s assessments of the availability of state protection and internal relocation alternatives available to the Applicant to safely return to his home country without any risk of being located, and Ground (8) as to the rationality of the Board’s assessment of no real intention of AZ to kill the Applicant in revenge of his son’s death, that on the bases of the undisputed facts of the Applicant’s claim and given the way the state of Afghanistan is being run and governed by the Taliban as against their poor human rights records as revealed and evidenced in the relevant COI available before the Board, I am of the view that high standards of fairness require that such assessments and determination by the Board that led to its rejection of the Applicant’s claim should be subjected to much more careful examination and anxious scrutiny by the Court.

12.  For its assessments of no real threats from AZ or the Taliban or no real intention of AZ to kill the Applicant in revenge for the killing of his son Usman, the Board gave the following reasons and findings in its decision:

“30. The Appellant claims that he would be harmed or killed by AZ, or other Taliban members, including AM, if he returns to Afghanistan.

31. According to the Appellant, he had a fight with Usman, the son of AZ, in June 2024, and during the fight, he seriously wounded Usman who subsequently died. AZ accused the Appellant killing his son and threatened to kill him.

32. It is understandable that when AZ found that it was the Appellant who killed his son, out of momentary anger, AZ would utter the threat to kill.

33. Be that as it may, evidence indicated that AZ had never done anything suggesting that he was serious in carrying out his threat e.g., AZ had never harmed any of the Appellant’s family members who are still residing in Afghanistan in order to pressurize the Appellant to return to Afghanistan so that he could kill the Appellant.

34. The Appellant said AZ had a close connection with AM, who was a leader of Taliban. However, there is no evidence suggesting that AZ had sought the help of AM in locating or apprehending the Appellant. Nor is there any evidence suggesting any involvement of AM, or any Taliban members, in this case.

35. As a matter of fact, when the Appellant left Afghanistan in June 2024 by plane, he encountered no problem with the authority in the airport. This indicated that the Appellant was not an adverse target of the Taliban controlled government at all.

36. The Appellant never thought of seeking assistance from the authority because the government is Taliban controlled and AZ had close connection with members of Taliban, therefore, the authority would not help him at all.

37. According to the COI of Afghanistan, it’s true that since the Taliban was in control of the country in August 2021, there has been a deterioration of the human rights situation, including widespread human rights violations. However, there is no evidence suggesting that the Appellant will be victim of these violations. The Appellant’s family members are still living in Afghanistan. Evidence suggested that they have never been accused, charged, interrogated, arrested, detained or imprisoned in Afghanistan. Although they are close relative of the Appellant, and AZ accused the Appellant of killing his son, the Appellant’s family continue to live their normal life in Afghanistan without harassment from the Taliban government.”

13.  It was for these reasons that the Board found the Applicant to have failed to establish that there are substantial grounds for believing that he would face any of the risk of ill-treatments under any of the applicable grounds upon his return to Afghanistan, and that in any event reasonable internal relocation alternatives are available within Afghanistan for the Applicant as a healthy mature adult to move away from his home district to another city without any risk of being located by AZ.

14.  First of all, there seems to me no proper or sufficient basis for the Board to find that AZ’s threats to kill the Applicant was just uttered out of “momentary anger” or that he had “never done anything suggesting that he was serious in carrying out his threat” when the evidence clearly showed that AZ had subsequently refused to accept any cash compensation from the Applicant’s parents to settle the matter, and had sworn to take revenge for his son by killing the Applicant.

15.  Secondly, there also seems to me no proper basis for the Board to state that AZ was not serious in carrying out his threats because he “had never harmed any of the Appellant’s family members who are still residing in Afghanistan”, when the fact is that after the Applicant left Afghanistan on 22 June 2024 and arrived in Hong Kong on 17 July 2024 when he last spoke to his uncle on the phone upon his arrival, and that after his subsequent surrender to the Immigration Department on 23 July 2024, the Applicant had all along been detained at CIC up to the time when he attended his appeal hearing some 4 months later on 15 November 2024 before the Board via video conference, that there is no evidence that the Applicant during that period had had any further contact with his parents or other family members or with his uncle, and hence in the absence of any evidence from him as to his family’s situation in Afghanistan during his appeal hearing before the Board, or for that matter of any questions raised by the Adjudicator to him over such issue, there is simply no evidential basis for the Board to find that AZ had since never harmed any of the Applicant’s family members or that they are still residing in Afghanistan without any incidents, which is just based on the Board’s own assumptions or speculations only that no harm had been done to the Applicant’s family by AZ or the Taliban since the Applicant had left Afghanistan and come to Hong Kong.

16.  Thirdly, it also appears to me that the Board similarly just made assumptions about the absence of any involvement of AM or the Taliban essentially on the basis that the Applicant was able to leave the country in June 2024 by plane without any problem with the airport authority, and that it therefore indicated that the Applicant was not an adverse target of the Taliban controlled government at all, when the evidence before the Board is that the Applicant left the country on 22 June 2024 from Kabul which was according to him about 4 hours’ drive from his home village, and while it is not clear when exactly did the incident of his fight with Usman take place other than sometime in the same month of June, of which the Director in his decision put at 6 – 10 days in between when the Applicant fled from his home village to his uncle’s place in Kabul before he departed Afghanistan, and hence at most the Applicant would have left the country within 2 weeks after the incident, which seems to me a relatively short time frame for the authority to act to place him in an airport stop-list, in particularly in a vast country like Afghanistan and with a government run by the Taliban from just a few years back since 2021, and hence it seems reasonably arguable that there is no proper or sufficient basis for the Board to suggest that the Applicant was not an adverse target of the Taliban controlled government other than again just based on assumptions and speculations.

17.  In the UNHCR’s guidance for credibility assessment in asylum cases “Beyond Proof: Credibility Assessment in EU Asylum System”, May 2013, it is provided that credibility findings must be explained and supported by the evidence, and adverse credibility findings should not instead be based on unfounded assumptions or subjective speculations, as it so stated in p41:

“Credibility findings have to be explained and supported by the evidence. Where the determining authority finds a lack of credibility, there must be a basis or foundation in the evidence. This derives from the requirement that the assessment of the application must be individual, impartial, and objective. It finds further support in the case law of the European Court of Human Rights, which suggests that the assessment of credibility should be based on the examination of the statements and the documents submitted in support of the claim. The Court further indicated that the credibility of such statements should be questioned only where inconsistencies affect the core of the applicant’s story. Similarly, the Committee Against Torture has stated that state authorities must be able to substantiate a finding that a claim is not credible.

Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence. Adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings. This has been explained in the following terms in national case law:

‘4) The assessment of credibility [ … ] must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told. 5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.’

The decision-maker should therefore assess the credibility of the identified material facts by applying relevant credibility indicators.”

18.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him or her, as provided by the UK Home Office in its guidance “Asylum Policy Instruction: Assessing Credibility and Refugee Status”, 6 January 2015 at Section 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

19.  In Y v Secretary for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible, the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behavior and responses on the part of the claimant which run counter to what would be expected; and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at interview.

20.  Such views and approach have been adopted by our courts, and in ST v Betty Kwan [2014] 4 HKLRD 277, the Court of Appeal in its considerations of particular relevance to screening torture claimants, emphasized that high standards of fairness require that an adjudicator to adopt an active role in screening a claim and to draw the claimant’s attention to matters which are material to the determination of his claim that require clarification or elaboration so that they can be addressed by the claimant, and identified the dangers of adopting personal assumptions, conjecture and speculations when assessing such claim:

“39. … high standards of fairness require the Director, or for that matter, the adjudicator to adopt an active role in screening a CAT claim. They are not permitted to simply sit back and put the torture claimant to strict proof of his claim. Depending on the facts, it may be appropriate for them to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant. For instance, where it is readily apparent that something has gone amiss such as the proof documents in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. On the other hand, there may be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant and those representing him are aware of what he ahs to show and has already produced or mentioned all that he wants to produce or mention. The exercise of determining whether a torture claim is valid is one of “joint endeavor”. Prabakar, para 54; TK v Jenkins [2013] 1 HKC 526, paras 21, 24 and 25 …

40. Secondly, an adjudicator should ask himself whether there is anything in the claimant’s story, the evidence and information available, the legal issues raised, the arguments mentioned, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. An adjudicator simply cannot assume, no matter how good the legal the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.

…

42. Another example is where the adjudicator is of the view that a certain factual or legal point is relevant to the determination in question which ahs not been dealt with adequately or at all in the petition. An obvious situation is where the adjudicator is aware of an important authority on a material point which ahs been omitted or touched on superficially only in the petition. This is all the more important if the authority is one against the torture claimant. But, even if the authority is in his favour, circumstances may be such that it should still be fairly drawn to the attention of the applicant so that he can, if he wishes, fully develop and make use of the authority and other related cases or matters in his advantage in pursuing his petition.

43. A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such probing, questioning or inquiry would mean the adjudicator drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong would be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

21.  In Y v SSHD, supra, Keene LJ made the same observations at para25:

“25. There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigrant judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an applicant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the applicant comes …”

22.  In the Applicant’s case, it does not appear from the decision that the Board had ever raised such inquiry or issue with the Applicant about his family’s situation in Afghanistan since he left the country when making those findings about AZ’s intention to kill him or the involvement of the Taliban, which thus bring me to the next and in my view more significant question.

23.  As noted above the Board did not take any real issue with the Applicant’s claim of having killed Usman in a fight, whether by accident or not, and of which AZ clearly regarded as a murder, which must on any view be regarded as a very serious crime in most countries, and while one may point out that the Applicant would in the circumstances be regarded as a fugitive of the law and may not be entitled to non-refoulement protection, but given the possibility that in Afghanistan such a crime may be regarded as a capital crime which may attract the death penalty, and given the poor human rights record of the Taliban, of which the Director did in his earlier decision refer to numerous COI indicating serious abuses in para 18 as follows:

“It is your belief the authorities in Afghanistan would not protect you, as Taliban has taken control of the entire Afghan Government and AZ had close connection with the Taliban. There is information which corroborates your said assertions:-

(a) The European Union Agency for Asylum 2023 Report (“EUAA 2023 Report”) (Item 1 of Appendix) noted in its section 1.2.2 that “The de facto state administration has been described as working in arbitrary and unpredictable ways.”

(b) The “Country Reports on Human Rights Practices for 2023 – Afghanistan” published by the United States Department of States (“USSD 2023 Report”) (Item 2 of Appendix) mentioned in Section 1(d) that “The 2004 constitution prohibited arbitrary arrest and detention and provided for the right of any person to challenge the lawfulness of their arrest or detention in court. The Taliban generally did not observe these requirements. The Taliban reportedly frequently detained citizens arbitrarily without a clear legal basis and without regard to substantive or procedural legal protections. Local Taliban “police” reportedly detained persons capriciously on charges without a clear connection to any law. In a September 2023 report on the treatment of detainees, UNAMA found that the systematic violation of a detainee’s right to access a lawyer, and to challenge the legality of detention before a court while in the custody of the Interior Ministry and so-called GDI resulted in unjust and prolonged detention, frequently concluding without charges and judicial process. In almost all cases, arrests and detentions carried out by the Taliban were unjust because there was no clear connection to law, individuals were not informed of the reasons for their arrest or charges they were facing, pretrial detentions were lengthy, and detainees were not afforded access to legal counsel.” Despite the general amnesty announced by the Taliban in August 2021, there were widespread reports of unjust detentions for lengthy periods of individuals associated with the pre-August 2021 government.”

(c) Section C2 of “Freedom in the World 2024 – Afghanistan” published by Freedom House (“Freedom House Report”) (Item 3 of Appendix) reported that “The Taliban claim to have achieved progress in checking widespread corruption present under the republic, particularly in customs and tax collection. Institutionalized safeguards have been bifurcated between the amir’s office in Kandahar, which receives and investigates complaints, and the administration in Kabul, which includes an auditor general, an office to monitor implementation of decrees, and an anticorruption department. Government contracts, notably mineral concessions, are systemically used to reward senior Taliban. Widespread reports of bribery, corruption in the rewarding of contracts, and emirate officials spending beyond their legitimate means indicate that anticorruption safeguards are ineffective.”

(d) According to paragraph 3.2.2 of “Country policy and information note – Afghanistan: Fear of the Taliban” published by the United Kingdom Home Office in August 2024 (“UKHO 2024 Report”) (Item 4 of Appendix), it stated that “there are reports of the Taliban not respecting the amnesty in practice. Reported examples include extrajudicial killings, arbitrary arrests and detentions and torture and ill-treatment.”

(e) “Country of Origin Information Brief Report: Afghanistan, Recent events” published by the Danish Immigration Service in December 2021 (Item 5 of Appendix) noted at its page 24 that “On 30 November 2021, Human Rights Watch (HRW) stated in a report that they had documented the summary execution or enforced disappearance of 47 Afghans with links to the Afghan security forces in the four provinces of Ghazni, Helmand, Kandahar, and Kunduz. The HRW report further stated that family members of Afghans with links to the Afghan security forces also had been targeted by Taliban members.”

(f) In the Executive Summary of USSD 2023 Report (“USSD 2023 Report”) (Item 2 of Appendix), “Significant human rights issues included credible reports of killings; severe physical abuses; harsh and life-threatening prison conditions; unjust detentions and abductions, including disappearances; serious problems with independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offences of a relative; serious abuses in a conflict, including widespread civilian deaths or harm, disappearances and abductions …”

(g) In the “Country policy and information note: humanitarian situation, Afghanistan” published by the United Kingdom Home Office in August 2024 (“UKHO Humanitarian Report”) (Item 6 of Appendix), paragraph 3.1.6 stated that “Whilst conditions have deteriorated and the number of people in need of humanitarian assistance has increased, the humanitarian situation is not so severe that in general, a single adult male in good health is likely to face a real risk of serious harm.”

24.  On the basis of these COI which were all available before the Board, and as noted above that the Board also agreed that there has been a deterioration of the human rights situation in Afghanistan with widespread human rights violation since the Taliban were in control of the country in August 2021, it seems to me reasonably arguable that the Board had erred in law in finding no evidence to suggest that the Applicant would be a victim of such violations just based on the assumptions that his family members are still living their normal life in Afghanistan without any harassment from the Taliban government and have never been accused, charged, interrogated, arrested, detained or imprisoned in Afghanistan despite being close relatives of the Applicant who had been accused of murder, and by just seemingly brushing aside the Applicant’s claim that he would face a real risk of his right to life under BOR 2 being violated upon his return to Afghanistan.

25.  Similarly, given the nature of the crime that the Applicant had been accused of, and of AZ’s close connection with the Taliban, it also seems reasonably arguable that the Board had erred in law or was irrational in its assessment that internal relocation within Afghanistan would be a viable option to the Applicant to avoid any risk of being harmed or killed either by AZ and/or the Taliban government upon his return to his home country.

26.  In the premises, as for all these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that the Board (1) erred in finding no evidence of any real intention of AZ to harm or kill the Applicant in revenge for killing his son without proper evidential basis or just based on assumptions only; and/or (2) erred in finding no evidence of any intention of AZ to involve the Taliban and/or of any involvement of the Taliban against the Applicant for the killing of Usman just based on assumptions or speculations; and/or (3) erred in law in finding that the Applicant would not in the circumstances of his case face any real risk of his right to life under BOR 2 being violated; and/or (4) erred/irrational in its assessment of the availability of internal relocation to the Applicant upon his return to Afghanistan, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.  Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and direct that he shall file and issue the originating summons within 14 day of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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