AWRANG AMIR MOHAMMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 73/2021

[2022] HKCA 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2021

(ON APPEAL FROM HCAL NO 963 OF 2019)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  On 11 February 2021, DHCJ C P Pang (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 January 2019 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 23 February 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

3.  The applicant is a national of Afghanistan. He entered Hong Kong illegally on 21 October 2018 and he surrendered to the Immigration Department two days after.  He raised a non-refoulement claim by way of written representation on 27 and 30 November 2018 on the basis thatif refouled, he would be harmed or even killed by members of the Taliban. The factual background of this case was succinctly summarized by the Judge in [4] of the Form CALL-1 ([2021] HKCFI 130).

4.  By a Notice of Decision dated 21 January 2019, the Director had assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He did not request an oral hearing and the Board disposed of the appeal on paper.  By its decision dated 22 March 2019, the Board dismissed the appeal.  

6.  It was the applicant’s case that in early August 2018, 4 armed unknown men approached him and his cousin Umair and asked them to join the Taliban.  When they refused, they were both slapped and given 1 day to reconsider.  A few days later, Umair was killed.  The applicant’s uncle told him that Umair had been killed by the Taliban for his refusal to join them.  For the reasons stated at [5] to [30] of the Board’s decision, 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 that he will face future risk of serious harm if refouled. 

7.  The Board noted that the Taliban was an anti-government organisation and not a state agent, and thus there was no “official acquiescence” or “passive acquiescence” (para 7). Relevant Country of origin information suggested that cases of forced recruitment were exceptional as recruitment to the Taliban was generally not characterized by coercion, threats and violence.  Thus, the Board considered the applicant’s fear of forced recruitment to be remote if not untenable.  In any event, internal relocation to big cities like Kabul etc was a viable option and the Board did not accept the Taliban would be interested in trying to locating the applicant all over Afghanistan upon his return.  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

8.  On 9 April 2019, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  He advanced the following grounds of relief (as summarized by the Judge at [17] of the Form Call-1): 

(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 averment that the police in his country would not be able to protect him.

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

9.  In his affirmation in support, he further alleged that the Director and the Board did not thoroughly account for the risks he would face in Afghanistan.

10.  The applicant attended an oral hearing on 26 November 2020 for his application for leave to apply for judicial review.  By the decision dated 11 February 2021, the Judge refused to grant him leave to apply for judicial review and the reasons for the refusal were set out at [21] – [44] of the Form CALL-1 as follows:

“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.

Ground1

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.

Ground6

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. Having considered 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.”

Appeal to this Court

11.  On 23 February 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“1. In this Judicial Review Decision, the Honourable Judge did not consider the standard of fairness by the Immigration Department and Torture Claims Appeal Board, that my life would be at danger upon refoulement to my country.

2. Failure to proper assess my claim under BOR 2 and BOR 3 risk that I would still face risk.

3.  Failure to proper observe country of origin condition (COI) information.”

12.  In compliance with the Court’s directions of 28 April 2021, the applicant lodged his written submissions on 7 May 2021.  In his written submissions, he referred to his “Notice of Motion for leave to the Court of Final Appeal”, and to an “Order and Judgment given on 15 March 2021 by the Appellate Court”.  The Court file does not disclose any such order or judgment of this court of that date.  It is therefore assumed that those references were in error.  Apart from that, he submitted that the Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials, and hence the decisions are illegal and they failed to give due regard to the following:

(a)  It was improper for the Judge to support the Board’s decision as they did not follow the high standard of fairness in assessing his claim.

(b)  His claim was based on a true story of his life and the decision makers did not observe his fear well, but his life would be at risk if he were to return to his own country.

He further contended that he would face real risk of harm if he were to return to Afghanistan and that his claim is not personal and private in nature but the Judge failed to observe his fear properly.

Legal principles

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  The applicant’s complaint that the Judge had failed to adhere to high standards of fairness in reviewing the Board’s and the Director’s decisions are a vague and general assertion, without specifics or elaboration. 

15.  We are satisfied that high standard of fairness has been applied by the Judge in dealing with the applicant’s application.  We are satisfied that the Judge had examined the Director’s and Board’s decisions with anxious scrutiny and rigorous examination and had duly considered each and every ground of review raised by the applicant.

16.  Indeed, we note that the Judge was acutely conscious of the volatile situation in Afghanistan and, at paras 34 – 43, had further considered the prevailing situation in Afghanistan with updated COIs at the time of the hearing. He concluded that as the applicant was only a farmer and a person of low profile, Kabul would be safe as an internal relocation alternative.

17.  In so far as the applicant’s appeal against the Judge’s decision of 11 February 2021 is concerned, we do not find any errors of law, nor had the Judge failed to take into account relevant matters, nor was he plainly wrong.  The grounds of appeal against the Judge’s decision cannot stand.

18.  For the aforesaid reasons, this appeal should be dismissed.

19.  However, having said that, this Court notes that at the time of the Judge’s decision, Kabul was still under government control (this was specifically referred to in para 41). In view of the recent change in the political situation in Afghanistan (whereby the Taliban has taken control of cities including Kabul, and apparently formed a new government), which may affect the viability of relocation, the applicant may wish to make a “subsequent claim” if he fulfils the requirements of s.37ZO of Immigration Ordinance (Cap.115).  For this purpose, we trust the Director will not take steps to refoule him within say, the next 28 days, to enable him to make a subsequent claim if he wishes to do so.