Mamozai Iqbal v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition

HCAL 775/2018

[2019] HKCFI 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 24-year-old national of Afghanistan who entered Hong Kong illegally on 19 August 2015 and was arrested by police on 9 September 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Afghanistan he would be harmed or killed by the Taliban for refusing to work as a suicide bomber for them.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in the Paktia Province, Afghanistan.  He never received any formal education and worked as a shepherd in his family’s farmland.

3.His father used to be associated with the Taliban but he knew of no other details of such association other than being told of him transporting weapons for them, and in 2003 during the war between the Americans and the Taliban, the American troops had come to his home searching for weapons and taken his father away who was not seen again.

4.Some time later the Taliban came to his home twice to ask him to work for them as a suicide bomber, and when he refused, they beat him with wooden sticks and warned him of serious consequences if he persisted his refusal. After the second occasion the applicant became fearful for his life and therefore left Afghanistan in 2014 for Pakistan where he made a living shining shoes for 6 – 7 months before returning to Afghanistan in late 2014 and stayed in Kabul shining shoes without any further encounters with the Taliban.

5.However, as he was still fearful of the Taliban, he therefore departed Afghanistan again on 13 August 2015 for China, and then from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-foulement Claim Form on 1 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 26 July 2017 the Director of Immigration (“the 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 (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed by the Taliban upon his return to Afghanistan as there is no reliable evidence that he had been specifically targeted by the Taliban, that any such risk was no more than what the average young man in Afghanistan might become a target of the Taliban’s recruitment, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Afghanistan with a large population of 33 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 man with work experience to move to other part of Afghanistan away from his home district or areas with Taliban presence such as Kabul where he had stayed before without incidents and where it would be difficult if not impossible for the Taliban to locate him.

8.On 11 August 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 13 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found discrepancies and inconsistencies in the applicant’s account of events occurred in Afghanistan to have undermined the credibility of his claim, that the applicant having conceded of no further threats or encounters from the Taliban since he left his home village in 2004 that it was doubtful that he would still have a well-founded fear of risk of personal harm from the Taliban after all these years, that even on his own case that the applicant had failed to show that the ill-treatments he had received from the Taliban years ago attained the minimum level of severity for them to fall within the definition of torture, and that there was no reliable evidence that the applicant is still being targeted by the Taliban or of any real intention on their part to harm or kill him that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(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.  

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.

Dated the 20^th day of September 2019.

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