AWRANG AMIR MOHAMMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 963/2019

[2021] HKCFI 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 963 OF 2019

     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 submission by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Background

1.  This is an application for leave to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.  The applicant, born in 1996, is a national of Afghanistan.  He speaks Pushto and his religion is Islam.  He is single with his parents and 3 siblings still living in his home village, Zurmat, in Afghanistan.  He assisted his family for 8 years in cultivating his family farmland before he left his country.

3.  On 23 October 2018 he surrendered himself to the Immigration Department claiming that he sneaked illegally into Hong Kong on foot from Mainland China two days ago.  A month later, he lodged a non-refoulement claim.  According to his passport and records, he was issued an Afghan passport on 4 August 2018 and a visa for China in Kabul on 11 October 2018. He departed his country on 19 October 2018 and entered Mainland China on the same day.

4.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5-6] of the decision of the Director and [2-3] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by members of the Taliban. He claimed that in early August 2018 he was working on the farmland with his cousin Umair when 4 unknown men armed with machine-guns came to ask them to join the Taliban.  As he and Umair refused, the men slapped them and gave them one day to reconsider.  He and Umair informed their uncle Fazal about the incident.  Fazal advised them not to return to the farmland.  The applicant hid himself in his family home. But Umair ignored the advice.  The next day when Umair went to the farm, he saw the Taliban members.  On the third day Umair went to the farm again, he was killed by the Taliban.  When Fazal went to the farmland to confront the Taliban men, they told him that people who refused to join them must die.  The applicant therefore hid himself for 6-8 weeks until Fazal obtained a passport and a visa for China for him.  Thereafter, his uncle brought him to Kabul where he stayed for two days before his departure from his country.  He was told by his family members that the Taliban members had visited his family home and threatened to kill him if they found him in Afghanistan.  On 19 October 2018 with his passport and visa for China, he flew out of Kabul to Kunming, China.  From Kunming he took a train to Shenzhen where he spent 2 days before sneaking into Hong Kong.

5.  At the screening interview with an immigration officer, the applicant did not consider relocation to other parts of his country such as Kabul or Herat possible to avoid his risk as he believed Taliban is linked all over Afghanistan.  He never sought assistance from the Afghan authorities as he believed Taliban members are extremely powerful in his country.  He said, for their own fear of safety, many of the public officers are reluctant to intervene or act against the Taliban.  He believed that his life will be at risk from the Taliban on return to Afghanistan.

The Director’s decision

6.  By a notice of decision dated 21 January 2019, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The Director found that there are no substantial grounds for believing that there will be any real and substantial risk of his being harmed or killed by the Taliban upon his return to his country [13-16]. Firstly, the Director noted that the frequency and intensity of the applicant’s past ill-treatment was low and did not attain the required level of severity [13]. Moreover, the Taliban did not do anything vicious to his family members in order to find him out [14]. He, being an ordinary villager, did not have a profile to stand out from the others that would set him as a target for the Taliban to make use of their resources to harm or kill him [15]. The risk of harm was therefore assessed to be low and at most localized [16]. Secondly, having considered materials including objective country of origin information (“COIs”), the Director found that Afghan government together with other international bodies endeavour to combat against or negotiate with Taliban and other anti-government forces to neutralize the security threat; and that reasonable state protection is available to the applicant [18].  The objective COIs show that the authorities of Afghanistan had performed due diligence on their duties [19].  It was the applicant’s own volition not to report the ill-treatment inflicted by the Taliban members to the police, rather than the police having refused to provide assistance to him, and there was no indication that the authorities were unwilling or unable to provide assistance to him should he resort to do so [21]. Thirdly, internal relocation is a viable option for him [22], which further lowers or negates the perceived risk.  The immigration officer raised with the applicant the possibilities of relocating to places such as Kabul and Herat which were under the control by the government.  As the applicant is an able-bodied adult of 22 years of age (by then) with 8 years’ work experience in his home country, the Director found it is not unduly harsh or unreasonable for him to relocate to an area other than his home district to avoid the Taliban [27].

7.  In reaching his decision refusing the applicant’s claim, the Director made reference to COIs including the Country Policy and Information Note – Afghanistan: Security and humanitarian situation published by United Kingdom Home Office in April 2018 [17(viii)] to consider the level of indiscriminate violence in the country as a whole and the risk in particular cities such as Kabul and Herat. As a result, the Director found state protection is available and internal relocation a viable option to the applicant, which further lowers or negates the perceived risk.

8.  The Director noted that in the applicant’s non-refoulement claim form, he indicated he wanted to submit the photographs showing the dead body of his cousin after his release from detention.  The Director was of the view that the photographs allegedly showing the corpse of his cousin can at most prove the death of his cousin and would not assist the applicant to prove his claim [43].

9.  The decision of the Director refusing the applicant’s claim covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

10.  The Board determined the appeal without a hearing as the applicant had specifically asked that there be no hearing by a letter he wrote to the Board on 3 February 2019. In the letter he wrote “…could you please send me a copy of my decision (sic) against appeal instead of hearing”.  Accordingly, the Board made its decision on the materials from the documents in the file before the Board [4].

11.  By a decision dated 22 March 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds considered by the Director.

12.  The Board gave reasons for rejecting the applicant’s claim at [5-30] of its decision.  In a nutshell, the Board first noted that the Taliban is an anti-government organisation and hence not a state agent.  There was no “official acquiescence” or “passive acquiescence” in his case [7].  The applicant has not suffered any injury and there was no evidence of pain or suffering reaching the minimum level of severity required by the law [10]. It further stressed the point that if a claimant can avoid risk of torture, CIDTP, loss of life and persecution by living in places other than where such a risk exists, he will not succeed in seeking non-refoulement [14].

13.  The Board then carefully considered the COIs referred to by the Director and summarized the relevant materials.  It observed that “Cases of forced recruitment have been documented, but are exceptional.  Recruitment to Taliban is not characterized by coercion, threats and violence (emphasis made by the Board)”.  The Board remarked that the publications “show that the applicant’s alleged fear of being forced to join the Taliban to be remote if not untenable.” [16].  As the applicant elected not to have any hearing conducted, the Board did not have his comments on the COIs [17].  The Board did not accept that the Taliban are interested in locating the applicant all over Afghanistan. It found that there are places in Afghanistan, at least other than the applicant’s home village, where as a 22-year-old and able-bodied young man he can safely live without undue hardship, which is an independent reason for the appeal to fail [18].

14.  The Board did not challenge the primary facts claimed by the applicant.  However, it found that he had not suffered any serious harm and the stated facts did not establish any substantial ground to believe he will face any future risk of serious harm [23].  In any event, the Adjudicator found the viability of internal relocation was an independent reason that the appeal must fail.

15.  Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds and confirmed the decision of the Director.

Application for leave to apply for judicial review

16.  The applicant, then represented by his solicitors, filed a Form 86 on 9 April 2019 for leave to apply for judicial review of the decisions of the Director and the Board.

17.  The grounds of judicial review stated in the Form 86 can be summarized as follows:

(1)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence.

(2)  The Adjudicator of the Board failed to make sufficient enquiries and give sufficient chance to the applicant, who was in custody, to arrange relevant evidence.

(3)  The applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as those “in the high ups of political circles”.  There was misconduct of police officials.

(4)  The state would be rendered liable “by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence”.  The Director failed to take such argument into account or give sufficient weight to such argument.

(5)  The Director failed to consider or give sufficient weight to the listed relevant COIs which support the applicant’s aversion that the police in his country would not be able to protect.

(6)  The Director while referring to the COIs “kept including meaning which suited his pre-conceived conclusion” shows his unfair attitude.

(7)  Corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organizations have compiled reports “which stand testament” to the applicant’s assertions.

(8)  The Director failed to attain the high standards of fairness required by the Wednesbury test.  The decision of the Director should be considered as unreasonable.

18.  In his affirmation in support, he further generally alleged that the Director and the Adjudicator of the Board did not thoroughly account for the risks he faces in Afghanistan.

19.  A court hearing was scheduled for the applicant on 26 November 2020.  He attended the hearing in person.

20.  At the court hearing, he had nothing to add to his written grounds for judicial review and affirmation in support. He confirmed the signature in the letter received by the Board (dispensing with an oral hearing) was his. He explained that he did not want a hearing because his application was refused by the Immigration Department. Therefore, he wanted his case to be heard by the High Court. He asked to produce photographs to prove the death of his cousin. As the court is not a further avenue for a non-refoulement claimant to submit his fresh evidence, the applicant should have produced his evidence to the Director and the Board.  Moreover, I took the same view as the Director that at most the photographs can only prove the death of the applicant’s cousin. That fact was not challenged by the Director or the Board.   I therefore refused to receive the photographs as evidence as it will not assist the applicant at all.

Discussion

21.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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, country of origin information, 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.

22.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Nevertheless, the court will examine both decisions of the Director and the Board with rigorous examination and anxious scrutiny. 

23.  In the present case, the Director did not take issue with the applicant’s asserted primary events. The Board, noting that cases of forced recruitment by the Taliban are exceptional, also did not reject the claimed incidents relating to the threats by the Taliban. However, based on the COIs and circumstances of the applicant as well as the availability of state protection and internal relocation, the Director assessed that there are no substantial grounds for believing that the applicant would face real risk for being harmed by the Taliban upon his return to his country. Having considered and summarized the objective COIs, the Board found that recruitment to Taliban is not characterized by coercion, threats and violence.  The Board referred to the structure of the police forces in Afghanistan.  It came to its view that the COIs showed the perceived fear of the applicant to be remote and untenable.  The Board further considered the information about big cities in Afghanistan including Kabul and Herat to consider the viability of internal relocation.  Given the large population in these cities, the Board was of the view that the chance of his assailants locating him is remote as “he is a needle in a haystack”.  Taking into account all the relevant circumstances, it refused the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation, having regard to the COIs before the Board.

24.  As explained above, the assessments of COIs, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

25.  Most of the applicant’s grounds of judicial review relate to the Director.  The appeal to the Board was considered by way of a rehearing and the Board was not bound by the findings of the Director.  As explained above, when the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review.  Nevertheless, I will deal with all the grounds raised.

Ground 1

26.  The complaint relating to lack of consideration of state acquiescence by the Director has no merit.  The applicant never sought assistance from the government or authorities on his own volition.  The Director found the COIs showed that the authorities of Afghanistan had performed due diligence [19].  There was no evidence to suggest that the government, or any of his organs, was involved, indifferent to, or behind his conflict with the Taliban [20].  Given the facts of this case and the findings of the Director and the Board, there is no basis for the applicant to rely on the concept of state acquiescence or involvement, whether active or passive: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

Ground 2

27.  There is no merit in this ground.  The applicant specifically wrote to the Board requesting that no hearing be conducted.  At the hearing before this court, he confirmed his signature in the letter sent to the Board.  He raised no complaint about the determination of the Board without a hearing.  He indeed explained that he did not want the hearing as his application had been refused by the Immigration Department. He wanted the High Court to consider his application.  The applicant was represented by lawyer of the Duty Lawyer Service in the first tier process with an immigration officer.  The decision of the Director was delivered to him through the Duty Lawyer Service.  He would have been given legal advice when the decision of the Director was passed to him.  There is no suggestion that the applicant did not understand his legal rights in his appeal or the consequences of his request made to the Board.  It was indeed his deliberate decision to dispense with a hearing before the Board.  In the circumstances I do not find the course taken by the Board in determining the appeal without a hearing improper or unfair to amount to an undue process.  It is unarguable that the applicant was not given sufficient chance to arrange relevant evidence when he did not want to present his case at a hearing before the Board.  In any event, the Board has evaluated all the materials before it, considered all the relevant issues and given reasons for its findings.

Grounds 3 and 4

28.  The bare assertions in the two grounds, with no specific particulars and evidence in support, must fail for reasons given for Ground 1.

Grounds 5 and 7

29.  The two grounds can also be dealt with together and both cannot stand.  The findings of both the Director and the Board, based on their evaluation of the COIs, are entirely within their province.  I do not find their evaluation unreasonable or inconsistent with the COIs before them.

Ground 6

30.  The applicant alleged that the Director demonstrated an unfair attitude in the evaluation of evidence.  It is evident from his decision that the Director engaged in a joint endeavour with the applicant and considered all relevant criteria.  The immigration officer raised the issue of internal relocation with the applicant.  He gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.  Indeed, the Director was fair enough not to challenge the core fact relied upon by the applicant that he was threatened by Taliban members in “early August 2018”, when his passport was issued on 4 August 2018.  The application for the passport should have been made earlier.  According to him, however, it was after hiding in his family home for 6-8 weeks that Fazel advised him to leave Afghanistan to avoid being killed by the Taliban members.  Fazel then obtained a passport and visa on his behalf.  The date of issue of the passport and the visa for China did not sit well with the timing of the alleged primary event of the encounter with the Taliban members.  I do not find any unfairness in the procedures or the decision of Director.

Ground 8

31.  Havingconsidered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any failure on his part to apply high standards of fairness.  The bare assertion in this ground is devoid of any merit.

32.  Paragraph 3 of the applicant’s affirmation was a bare general assertion against the Board and the Director without specifics or evidence in support. In my view, the decisions of the Board and the Director plainly demonstrated that they thoroughly accounted for the risks he alleged. The complaint is without any merit.

33.  None of the complaints of the applicant are reasonably arguable.

Recent situation in Afghanistan

34.  As mentioned above, the role of the court in a judicial review is not to provide a further avenue of appeal. On the other hand, I am conscious of the volatile situation in Afghanistan and potential grave consequence of this decision to the applicant.

35.  The decisions of the Director and the Board were probably influenced by their findings on the general situation in Afghanistan and viability of internal relocation, one of the locations being considered was Kabul.  I have no criticisms of the assessments of the Director and the Board. However, as life and limb are potentially at risk, I feel duty bound to consider if there have been any recent changes in the general situation of Afghanistan which might pose a real risk of serious harm to the applicant, and whether relocation to Kabul is still a viable option to him.

36.  The general situation and living condition in Kabul have been recently re-visited by the UK Upper Tribunal (“UT”) in AS (Safety of Kabul) Afghanistan CG [2020] UKUT 00130(IAC) (“AS [2020]”).  Having considered the evidence including experts evidence and the COIs up to January 2020 about the safety and circumstances of living in Kabul, the UT held that[5]:

“252. Taking a holistic view, and considering all of the circumstances together, we are satisfied that generally it would not be unreasonable for a single healthy man to relocate to Kabul, even if he does not have any family or network in the city and lacks a Tazkera. However, in all cases an individualised case-by-case assessment is required, taking into account an individual’s personal circumstances including factors such as his age, health, disability, languages spoken, educational and professional background, length of time outside of Afghanistan, connections to and experience of Kabul and family situation and relationships.” (emphasis added)

37.  The UT further confirmed its previous country guidance case that “A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul” (emphasis added): para 253(i).

38.  The up-to-date COIs and evidence before the UT confirmed the validity of the materials relied upon by the Director and the Board and did not suggest any material changes in the situation in Afghanistan. It would suggest that a person of low profile is not at real risk of harm at the hands of the Taliban, and the general situation now in Kabul is safe as an internal relocation alternative.  Indeed, the applicant did not claim that the conditions in Kabul would amount to any violation of his rights under the applicable grounds.  The essential issue to be considered is whether he would be at real risk of harm at the hands of the Taliban in Kabul or other places that he can relocate to.

39.  A holistic view must be taken in considering the reasonableness of internal relocation to a proposed area.  In all cases an individualized case-by-case assessment is required taking into account the applicant’s personal circumstances.

40.  In the present case, the applicant is an able bodied single young man, now aged 24, in good health or without any identified vulnerabilities or health (physical or mental) problems. He is only a farmer from a village without a high profile or ever being engaged in activities which antagonized the Taliban or attracted their interests. There is no evidence that his family members have been harmed by Taliban members after he fled.  It appears to be highly unlikely that the Taliban would have the motivation to track and pursue everywhere and harm a person of low profile like the applicant simply because he had met them once and refused to join them verbally. He was born and brought up in Afghanistan and therefore has a familiarity with the societal norms and culture of his home country.  He should not have particular difficulties to adapt to new life in other areas of his country.

41.  For reasonableness of relocation to Kabul as an option, he speaks Pashto which is widely used in Kabul.  He has been to Kabul, at least before he departed his own country, and his stay there was uneventful.  According to the COIs referred to in AS [2020], Kabul is under government control, and the chance of him personally being a casualty (either of the armed conflict or crime) is small.  Employment, at least as a day labourer, and inexpensive accommodation would be available to him.

42.  Having considered all the relevant circumstances, it would not be unreasonable or unduly harsh for the applicant to relocate to other places, in particular Kabul.

43.  Given that the applicant can safely and reasonably relocate to other places in his country of origin, there will be no justification to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.

Conclusion

44.  I do not find any error of law, irrational findings, or procedural unfairness in the decisions of the Director and the Board.  Nor do I see any failure on their part to apply high standards of fairness. There is also no reason in the interests of justice or otherwise to afford the applicant international protection.

45.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review. 

46.  Accordingly, leave to apply for judicial review is 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