As v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 1007/2018

[2019] HKCFI 2871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1007 OF 2018

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This is an application by “AS”, a non-refoulement claimant, for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 28 March 2018 (“the Board Decision”) dismissing the Applicant’s appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 26 July 2016 and 2 August 2017 respectively rejecting his non-refoulement claim (“the First Tier Decisions”).

2.The Board, in accordance with its usual practice, has adopted a neutral stance and has not taken any substantive part in this application.  On the other hand, the Director who in principle ought to be directly interested in this matter, has not filed any evidence in these proceedings and has also decided to adopt a neutral stance in relation to the merits of the substance application, although he was represented by lawyers from the Department of Justice to make submissions on three other issues raised by the court (see paragraph 22 below).

3.The position, therefore, is that the court has received submissions by senior counsel advanced on behalf of AS on the substantive application, but no counter-submissions from any party.  Since an application for judicial review cannot be allowed by default, it is still incumbent on this court to determine whether there is/are any valid ground(s) to challenge the Board Decision by way of judicial review.

BASIC FACTS

4.The Applicant was born in Afgooye, a town in the South-western part of Somalia, on 12 May 1990.  He belongs to a minority clan called Gaboye, which is considered to be at the lowest end of the society in Somalia.  A person belonging to that clan, according to the Applicant, suffers from widespread discrimination, limited access to education and limited employment opportunities, is required to perform forced labour, and requires protection afforded by a majority clan.

5.The Applicant claims that he will be at risk of persecution on account of his membership of a particular social group, ie, the Gaboye clan, were he to return to Somalia, and relies on, inter alia, the following matters in support of his claim:

(1)  He had been discriminated against by other children in the neighbourhood of his home since childhood.  He was often verbally abused for no apparent reason.  At school, he suffered almost daily discrimination, verbal abuse, and sometimes beatings by others who belonged to the majority clans.

(2)  In around 2000 when the Applicant was about 10 years old, his sister had a relationship with a man from the Benadiri clan, also a minority clan in Somalia.  The man’s family opposed their relationship due to his sister’s Gaboye background and arranged a marriage for him, which he refused.  Later, his sister was accused by the man’s family of having used “black magic” on him, and she was killed by his family. Although the Applicant’s father sought help from the local police for his daughter’s death, nothing was done by the police.

(3)  In about February 2005, when the Applicant was about 15 years old, he was kidnapped by a group of young men living in the neighbourhood, whom he believed were from the Hawiye clan, a majority tribe in Somalia, but he had no idea as to why he was targeted by them.  He was beaten up with wooden sticks and suffered internal injuries.  He did not report the matter to the police because they were from the majority clans and he believed they would not help anyone from a minority clan.

(4)  In 2009, he did farming work for a person called Abdiwali, who belonged to the Hawiye clan, but was not paid for his work.  His repeated requests for payment were not met.  When he eventually decided to leave his employer’s farm, Abdiwali ran him down with a car, breaking his right leg.  Later, the Applicant’s aunt and uncle took him to Mogadishu for medical treatment, and he stayed in the hospital for one and a half months.  Again, he did not report the matter to the police, for the same reason mentioned in (3) above.

(5)  In or about April 2013, a patient who belonged to the Hawiye clan went to the clinic of the Applicant’s father for medical treatment, and later died after his father had prescribed some medicine to the patient.  The patient’s family held the Applicant’s father responsible for the death of the patient, and he was shot dead in the same month.  Later, the Applicant also received death threats from the patient’s elder brother and from a 15-year old boy.

6.In November 2013, the Applicant left Somalia. According to the Applicant, the security situation in Somalia has become increasingly violent since that time due to, inter alia, clan conflicts, military operations, and attacks on civilians and the government by Al-Shabaab, a fundamentalist group based in East Africa.  Al-Shabaab has also targeted minority clan members for forcible recruitment to its organization.

7.On 20 January 2014, the Applicant arrived in Hong Kong.  On 22 January 2014, the Applicant raised a non-refoulement claim with the Director.  He withdrew the non-refoulement claim on 24 January 2014, and later re-submitted his non-refoulement claim on 23 April 2014.

8.On 26 July 2016, the Director rejected the Applicant’s non-refoulement claim based on all applicable grounds, including the risk of torture under the Immigration Ordinance, Cap 115 (“the Ordinance”), the risk of torture or cruel, inhuman or degrading treatment and punishment (CIDTP) under BOR 3, and the risk of persecution.

9.On 2 August 2017, the Director rejected the Applicant’s non-refoulement claim based on any other absolute and non-derogable rights under the Hong Kong Bill of Rights, including the right to life under BOR 2.

10.On 25 October 2017, 17 January 2018 and 24 January 2018, the Board heard the Applicant’s appeal/petition against the First Tier Decisions (ie the Director’s decisions dated 26 July 2016 and 2 August 2017 respectively).  On 28 March 2018, the Board dismissed the Applicant’s appeal/petition against the First Tier Decisions.

11.In the written decision of the Board dated 28 March 2018 (“the Written Decision”), the Board made, inter alia, the following findings:

(1)  The Applicant’s evidence that he had received death threats from the deceased patient’s elder brother and a 15-year old boy was rejected (see paragraph 41 of the Written Decision).  There would be no risk of the Applicant being killed or harmed by the deceased patient’s family, whether in Afgooye, Mogadishu or anywhere else in Somalia (see paragraph 45 of the Written Decision).

(2)  The Applicant was being “less than honest” in stating that in the event of his being returned to Somalia, he did not know his family’s whereabouts, would not know where to find them, had no means of contacting his uncle, and would not know how to travel from Mogadishu to Afgooye (see paragraph 52 of the Written Decision).  The compelling likelihood on the evidence was that his mother and brother, uncle and aunt, and four other Gaboye families whom the Applicant described as “close relatives” would still be living in Afgooye, and it would not be unduly difficult for him to establish where they were living, and to contact them should he return to Somalia (see paragraphs 53 and 57 of the Written Decision).

(3)  The Applicant’s evidence that his uncle would be reluctant to offer him a job in his business on account of his Gaboye status was rejected.  Bearing in mind that his uncle, who belonged to the Murisade majority clan, had been successful in his trading business and was married to the Applicant’s aunt who was also a Gaboye, it simply “did not add up”, and had a “hollow ring” for the Applicant to allege that his uncle would not employ him because of his Gaboye status (see paragraph 60 of the Written Decision).

(4)  The Applicant’s statements to the effect that there was no point in him as a minority clan member to report to the police about the various wrongdoings against him or his family members because they would do nothing were not based on any personal experience but were pure conjecture on his part, and no weight would be accorded to the Applicant’s allegations in this respect (see paragraph 75 of the Written Decision).

(5)  The totality of the physical and mental violence which was inflicted on the Applicant before he departed from Somalia was as follows –

(a)  the regular bullying he experienced at school in his youth;

(b)  the beating he received with wooden sticks and punches on his head in 2005 when he was 15 years old by some young men from the community; and

(c)  his right leg being driven over by his employer’s car, which fractured his leg and caused a minor head injury in 2009 (see paragraph 76 of the Written Decision).

(6)  While the Applicant suffered a degree of physical pain in consequence of the various assaults as mentioned above, and also a degree of psychological pain from being discriminated against as a Gaboye in Somalia, the degree of pain, both physical and mental, experienced by him did not constitute “severe pain or suffering, whether physical or mental” as stipulated in the definition of “torture” in the Ordinance, nor did it attain the minimum level of severity so as to qualify as torture or CIDTP for the purpose of BOR 3 (see paragraph 77 of the Written Decision).

(7)  In view of the relatively low intensity of pain and suffering which was inflicted upon the Applicant before he left Somalia, and there was no danger that he would be harmed by the deceased patient’s family should he return to Somalia, and also the fact that in important respects the situation in Somalia had improved, including that there was no longer any clan-based discriminatory treatment in Mogadishu, the Applicant had failed to establish that there were substantial reasons to believe that if he were refouled to Somalia, he would be at risk of being tortured or harmed (see paragraph 78 of the Written Decision).

(8)  The fact that there were frequent asymmetrical attacks by Al-Shabaab taking place in Mogadishu with consequential civilian casualties was not sufficient in itself to indicate that the Applicant would be in danger of becoming a casualty if he were refouled to Mogadishu.  The Applicant had no connection or relationship with any aspect of the governmental or official administration, or the security forces or any NGO or international organization.  His profile was not such as would be likely to attract Al-Shabaab’s adverse attention and lead to him being targeted as a result (see paragraphs 88 and 89 of the Written Decision).

(9)  It was an irresistible inference on the evidence that the Applicant’s aunt and uncle would not allow the Applicant to live in an Internally Displaced Persons (“IDP”) camp if he were returned to Mogadishu.  He could live with his mother and brother, or aunt or uncle, or one of the other four families of close relatives who lived in Afgooye.  Even if he chose to work in Mogadishu rather than Afgooye, there was no reason why he would not be able to live with them in Afgooye, and commute to Mogadishu as often as necessary (see paragraphs 95 to 97 of the Written Decision).

(10)  In all, the Applicant had failed to show that there were substantial reasons to believe that if he were henceforth refouled to Somalia, he would face a real danger of being killed or seriously harmed. It followed that his application for non-refoulement protection in Hong Kong based on torture risk failed (see paragraph 98 of the Written Decision).

(11)  For the same reasons, the Applicant had failed to establish that there was a real risk or danger that he would be arbitrarily deprived of his life, or would face a genuine and substantial risk of being subjected to torture or CIDTP, if he were henceforth refouled to Somalia.  It followed that his claim for non-refoulement protection in Hong Kong based on BOR 2 or BOR 3 risks failed (see paragraphs 103 and 109 of the Written Decision).

(12)  The Applicant and his family members, as Gaboye, are members of a particular social group (PSG), and they experienced instances of discrimination from members of the majority clans in Somalia, in the Applicant’s case since childhood (see paragraph 113 of the Written Decision).

(13)  However, the discrimination which the Applicant experienced from time to time was not so severe as to amount to persecution or serious harm for the purposes of the Refugee Convention (see paragraph 122 of the Written Decision).

(14)  Furthermore, based on relevant country information and judicial authority, the situation with regard to clan-based discrimination appeared to have changed substantially for the better since the Applicant left Somalia in November 2013, to the extent that in 2014 there was no longer any clan-based discrimination in Mogadishu as stated in the Country Guidance case issued by the UKUT in MOJ[1] in 2014 (see paragraph 123 of the Written Decision).

(15)  Accordingly, the Applicant had failed to establish that if he were henceforth refouled to Somalia, there would be a reasonable degree of likelihood or real risk that he would suffer from persecution or serious harm, and his fears in that respect were not well-founded.  It followed that his claim for non-refoulement protection in Hong Kong based on persecution risk likewise failed (see paragraph 124 of the Written Decision).

(16)  Lastly, internal relocation to Mogadishu would be a reasonable option for the Applicant.  It would be for the Applicant to decide whether to base himself with his family in Afgooye or, with the assistance of his aunt and uncle, in Mogadishu.  It was an irresistible inference that he would be assisted by his aunt and uncle making full use of their social and business contacts to find suitable employment for him, quite apart from the possibility of his uncle offering him employment in his own business, in Mogadishu (see paragraphs 155, 156 and 157 of the Written Decision).

THE APPLICATION FOR JUDICIAL REVIEW

12.On 4 June 2018, the Applicant applied for leave to apply for judicial review of both the First Tier Decisions and the Board Decision.  The Director and the Board were named as Putative Respondents in the original Form 86.  On 5 June 2019, the court gave directions for the question of leave to apply for judicial review to be determined at an oral hearing.

13.On 20 June 2018, the Board informed the court that it intended to adopt a neutral stance in the application, and applied to be excused from attending the hearing of the leave application, which application was granted by the court on the same date.

14.On 15 January 2019, Daly & Associates on behalf of the Applicant informed the court of the Applicant’s intention to amend the Form 86, and issued a summons on 1 March 2019 for that purpose. In the draft amended Form 86, the Applicant sought to challenge only the Board Decision, and the Director was named as an “Interested Party” instead of as a “Respondent”.

15.On 20 March 2019, the Department of Justice informed the court that the Director did not intend to appear at the leave hearing, or oppose the Applicant’s application to amend the Form 86.

16.At the oral hearing on 28 March 2019, the court granted to the Applicant:

(1)  leave to amend the Form 86, and

(2)  leave to apply for judicial review of the Board Decision.

17.On 17 April 2019, the Department of Justice informed the court that the Director did not intend to participate in these proceedings, and took a neutral stance in the substantive application for judicial review.  No explanation whatsoever was provided by the Director as to why he had decided to take such position.  In the court’s letter to the parties dated 18 April 2019, the court stated (inter alia) as follows:

“The court considers that the Director of Immigration is the primary party who ought to be interested in the outcome of the application since it would have an effect on the immigration status of the Applicant in Hong Kong. If the Director of Immigration considers that there is no reasonable ground to resist the application, the court is of the provisional view that he ought to inform the court of the same in proper discharge of his duty of candour. On the other hand, if the Director of Immigration considers that there are reasonable grounds to resist the application, the court would ordinarily expect an explanation of why he does not intend to participate in these proceedings, particularly having regard to the fact that the proper approach to the question of persecution risk and how its assessment should be conducted, being issues raised in this application, are issues often raised in other non-refoulement cases, and the court’s judgement in this application may have implications on other pending or future applications. The court would invite the Director of Immigration to respond to these matters within 14 days, but would not compel him to do so.”

18.By a letter dated 16 May 2019, the Department of Justice informed the court that the Director, on legal advice, decided to maintain a neutral stance and did not intend to oppose the substantive application for judicial review.  The letter further stated the following:

“That the Director is named as an interested party (defined under Order 53 rule 1A as a ‘person (other than the applicant and respondent) who is directly affected by the application’) does not preclude the Director from taking a neutral stance if the circumstances so warrant. In considering his stance to take, the Director takes into account inter alia the merits of the issues raised, and is also conscious of the need for proportionate use of time and resources to bring about just outcomes as expeditiously as possible. In the present proceedings, upon due and careful consideration of all the circumstances, while the Director does not consider this to be a clear case where the Respondent’s determination is to be faulted, he adopts a neutral stance.

Even if the Respondent and the Director do not oppose the substantive application, the Applicant still has the burden to satisfy the Court that his arguments are made out for the granting of the [relief] sought. In Orrico, Philippe & Anor v Municipal Services Appeals Board [2015] 4 HKC 557 (paragraph 15), it was recognized by the Court of Appeal that in cases where there was no effective opposition from a tribunal and an interested party, the courts simply required an applicant to establish his challenges and it would decide whether it was appropriate to grant the relief sought”.

19.The above reply from the Department of Justice on behalf of the Director is singularly unhelpful from the point of view of the due administration of justice, procedural economy, and proper and proportionate use of judicial resources.  On the face of the letter, one may draw the inference that the Director had come to the conclusion, upon legal advice, that there is no reasonable ground, or no reasonable argument that could be advanced, to resist the application.  If that were indeed the case, it seems to me that the Director ought to make an appropriate concession, or at least candidly explain the perceived problems or deficiencies in the Board Decision, instead of adopting, effectively, the negative or passive attitude of “let the court decide”, thereby forcing the Applicant (who is legally aided) to incur the costs of the substantive hearing, causing delay in the proper resolution of his non-refoulement claim, and wasting the scarce judicial resources.

20.Furthermore, it is trite that an application for judicial review cannot be allowed by default.  The court must still be satisfied that there is/are proper and sufficient ground(s) for allowing an application for judicial review before it can grant relief in the application. Although it has often been said that judicial review is not adversarial litigation in the traditional sense, the court’s adjudicative process remains essentially adversarial in nature.  The court to a large extent depends on the parties to identify the issues in dispute, and adjudicates on those issues based on competing arguments advanced by the parties.  The consequence of the stance adopted by the Director is that the court would receive no counter arguments and no assistance form the Director when assessing the merits of the arguments put forward by the Applicant (as in fact turned out to be the case here).  At this juncture, the court should record that it is grateful to Mr McCoy, SC (leading counsel for the Applicant) for bringing to the court’s attention relevant authorities bearing on the issues to be determined in this application.

21.In my view, in a case where the Director has come to the view that there is no reasonable ground, or no reasonable argument that could be advanced, to resist an application for judicial review of a decision of the Board rejecting a non-refoulement claim, the Director ought candidly to inform the court and the Applicant why he has come to such view and should, where appropriate, utilize the procedure under paragraph 23 of Practice Direction SL3 to have the matter disposed of economically and expeditiously.  I wish to emphasize, nevertheless, that even with the parties’ consent, the court may not consider a case suitable for disposal under that paragraph of the Practice Direction.  This duty of the Director does not necessarily have to rest on the duty of candour, but can be based on the duty of a party to assist the court to further the underlying objectives of the rules of court under the CJR.  In any event, the conduct of the Director is a matter which the court can take into account when considering the issue of costs.

22.By a letter dated 17 May 2019, the court invited the Applicant to address the court, at the substantial hearing of the application for judicial review, on the following issues:

“(1)  whether it is, in principle, open to a non-refoulement claimant in the position of the Applicant to challenge not only the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’) but also the underlying decision of the Director of Immigration (‘the Director’) to reject his non-refoulement claim, joining the Director as a respondent instead of as an interested party in the application for judicial review, and the circumstances in which such non-refoulement claimant ought to do so;

(2)  in a situation where (i) a non-refoulement claimant seeks to challenge the decision of the Board but not that of the Director and joins the Director as an interested party to the application for judicial review only, (ii) the Director has come to the view that there is no reasonable ground to resist the application for judicial review, and (iii) the Board has decided, as is customary in this type of cases, to adopt a neutral stance in the application, whether it is open to the Applicant and the Director to adopt the procedure under paragraph 23(1) of Practice Direction SL-3 with a view to having the application disposed of fairly and economically; and

(3)  in the event that the court should allow the present application for judicial review, whether the court has jurisdiction to order the Director to bear the costs of this application for judicial review even though he is joined as an interested party only and takes a neutral stance in the proceedings, and what should be the proper approach to be adopted by the court in the exercise of this jurisdiction.”

23.By a letter dated 24 May 2019, the Department of Justice informed the court that the Director wished to be heard on the above issues.

24.The substantive hearing of the present application took place on 2 August 2019.  At that hearing, the Applicant was represented by Mr McCoy, SC and Mr Albert Wong, and the Director was represented by Ms Leona Cheung and Mr Ken Ip of the Department of Justice.  The Director’s submissions concentrated on the three issues mentioned above, save that in paragraph 27 of the Skeleton Submissions for the Director dated 29 July 2019, some further explanation was given by the Director for adopting a neutral stance in the substantive application:

“25  The present case is a fact-specific challenge against a particular Adjudicator’s factual finding and application of the [law] to the [facts] (as opposed to a challenge against any of the legal principles relied on by the Board)…

27  Viewed in context, this is far from a case where the Director is refraining from participating in the clarification of general and widely applicable legal principles or issues of great public importance … In the Director’s view, the case boils down to whether the Court accepts the Applicant’s arguments as to Wednesbury unreasonableness or insufficiencies in the Board’s handling and consideration of the factual evidence, on which the Director cannot improve upon the written reasons given by the Board.  Indeed, the Director’s confirmed willingness to allow the Applicant to convince the Court as to the substantive merits of his judicial review and comply with the order to be made by the Court is not unreasonable and, in fact, highly fair to the Applicant.”

THE SUBSTANTIVE APPLICATION

25.In the Amended Form 86, four grounds of judicial review are advanced, namely:

(1)  failure to properly assess persecution risk based on membership of a particular social group;

(2)  failure to have regard to the evidence including COI and making assumptions and speculations on the Applicant’s claim;

(3)  Wednesbury unreasonableness and irrationality to refoule the Applicant so as to contact family members once in Somalia to assist in the relocation to Mogadishu, and

(4)  failure to properly apply the guiding principles established in MOJ when considering the issue of internal relocation to Mogadishu.

26.In Mr McCoy’s written and oral submissions, he concentrates on Ground (1).  In particular, he argues that the Board failed to properly assess (i) the incidents relied upon by the Applicant on a cumulative basis when considering the issue of persecution, even though individually they may not meet the minimum severity of harm required for establishing a sufficient persecution risk, and/or (ii) whether the Applicant would have the patronage or protection of someone from a majority clan should he be refouled to Somalia.  In so far as Grounds (2) to (4) are concerned, which relate to the issue of “internal relocation”, Mr McCoy argues since the Board has not properly understood the nature of the Applicant’s claim and the risk of persecution on account of his PSG, it is not possible to determine whether it is unduly harsh to expect the Applicant to relocate to Mogadishu.  He further argues that a consideration of whether the Applicant can be expected to relocate, on the assumption that he faces no risk of harm or persecution, is simply meaningless.

Ground (1): assessment of persecution risk

27.The proper approach to the assessment of the persecution risk for someone belonging to a minority clan in Somalia was considered in detail by the Immigration Appeal Tribunal in a Country Guidance case known as YS and HA (Midgan – not generally at risk) Somalia [2005] UKIAT 00088.  That case raised the issue of whether members of Midgan or other caste groups are generally at risk of persecution or treatment contrary to Arts 3 or 4 of the European Convention on Human Rights (“ECHR”), and was intended to replace four previous Country Guidance determinations (see paragraph 1 of the decision).  At paragraph 42 of the decision, the Immigration Appeal Tribunal stated that what was said in that decision about Midgaan applied equally to other small groups in Somalia including “Gaboye”.  The Immigration Appeal Tribunal also referred to a 2004 report of Dr Virginia Luling entitled “Report on the Midgaan And Other Caste Groups in Somalia”, which explained the characteristics of these small groups, and their positions and conditions in Somalia, in some detail:

“There are a number of small groups in Somali society which are sometimes described as ‘caste’ groups because of their low status and specialisation in certain occupations…

These people have been described as ‘not only outcast but outside the place of classification’ and are known as ‘the people without brothers’, because they are not found in the general scheme of genealogy of the Somali ‘noble’ clans…

Midgaan and members of the other caste groups do not show any physical differences from the majority Somalia population. They do not have special dialects, but speak like the majority populations of the areas where they live: however some if not all of these groups have a special secret slang, which was developed in order to converse secretly and hide their meaning from the majority population. This is more likely to be known by older people than the young.

They are generally very poor people. The Midgaan of Hargeisa in 2003 are described as living in extreme squalor and deprivation and having no access to the hospital.

The Midgaan, like the other outcast groups, carry on trades and perform tasks that other Somalia would refuse. Traditionally they were hunters, leather workers (making shoes, belts etc) and barbers. The women were and are birth attendants, and perform girls’ circumcision, while the men perform that of boys. (However the same tasks carried out by modern trained medical personnel carry no stigma and are done by ‘noble’ Somali). The Tumaal are blacksmiths, while they have certain magical powers attributed to them. These groups can thus be compared to the ‘untouchables’ of Indian caste society.

In recent times however many of them have moved into towns, often trying to hide their origins in their new environment, and found other ways of living. Some worked as labourers or started up as shopkeepers, some joined the army, a natural way to escape or disguise their low status.

Midgaan could not intermarry with members of the ‘noble’ Somali clan. This rule is less strictly observed in modern times, but all the same there are known case of couples who tried to do so being lynched…

There are groups of Midgaan scattered all over Somalia. They are attached as servants or clients to various ‘noble’ Somalia clans and subclans, who in the traditional order would give them some degree of protection in return for the services they performed. This protection can however no longer be relied on when (a) the Midgaan have moved into towns far away from their former patrons and (b) the anarchy of the present time makes such traditional roles inoperative. In any case this protection only applied as long as the Midgaan accepted their low status…

The Midgaan have suffered greatly in the civil war and the current lack of government, as they do not belong to any of the major clans and thus do not have the power base that this affords. As no revenge will be taken by the more powerful clans they can be attacked with impunity…

I would therefore conclude that Midgaan and other caste group people are particularly at risk in the Somalia of today.”

28.At paragraph 73 of the decision, the Immigration Appeal Tribunal summarized its conclusions as follows:

“(i)  This decision should be seen as superseding four previous Country Guidance determinations …

(ii)  Each appeal must be decided on its own facts but the following should be treated as authoritative guidance on cases concerning the Midgan (also called the Migden, Midgaan and Madhiban and Madiban) in Somalia. One version of their name translates as ‘harmless’.

(iii)  This decision is also authoritative guidance for the consideration of cases of members of other small caste groups identified in paragraph 42 above.

(iv)  Midgan are expected to perform low status jobs in Somali society and are usually poor. However, they are not slaves.

(v)  Midgan living in rural communities can generally expect to receive patronage and therefore protection from noble clans.

(vi)  Midgan who have left rural communities to settle in cities will sometimes have gained the patronage and protection of noble clans.

(vii)  Midgan who enjoyed the patronage and protection of a noble clan when they left Somalia can normally be expected to regain such patronage and protection in the event of their return. The protection afforded would extend to provision being made upon return for their internal safe travel back to rural areas.

(viii)  A Midgan who has lost the protection of a local patron (or local patrons) and who had not found alternative protection in a city would be vulnerable to persecution.

(ix)  A Midgan who has lost protection from a noble clan patron or patrons in his or her home area would not be able to relocate safely within Somalia.

(x)  Being a female Midgan increases the level of risk on return but does not on its own increase it to the level of real risk under the Refugee Convention and the ECHR.”

29.In the “Country Policy and Information Note Somalia: Majority clans and minority groups in south and central Somalia” published by the United Kingdom Home Office, version 2.0 June 2017, the following is stated:

“b. Minority groups (including minority clans)

2.3.3 Members of minority groups in south and central Somalia can be at particular disadvantage in comparison to members of the majority clans. They usually lack the support network provided to members of the majority clans. However, some minority clans/groups have a well-established community in Mogadishu, and some have rebuilt their businesses and livelihoods in recent years …

2.3.4 Members of minority groups who have become internally displaced persons (IDPs) and typically end up living in an IDP camp in any part of Somalia may be particularly vulnerable and could face discrimination and various human rights abuses...

d. South and central Somalia

2.3.13 The UT in MOJ and others did not consider the position of clans (including minority clans/groups) outside of Mogadishu. There is, however, earlier caselaw that considers the position of minority groups and remains relevant to assessing cases, particularly those outside of Mogadishu. This caselaw is based on country information up to 2005/6 and so does not take into account recent changes in the human rights situation and in clan dynamics. Decision makers should, however, take into account this caselaw alongside up-to-date country information when considering cases.

2.3.14 In the case of NM and Others (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076 (31 March 2005), the Tribunal found that male and female members of minority groups from the south will, in general, be at risk of breaches of their Article 3 rights and will be refugees in the absence of evidence that they have a clan or personal patron and the means to access an area of safety without a real risk (para 117).

2.3.15 In the case of YS and HA (Midgan – not generally at risk) Somalia CG [2005] UKIAT 00088 (22 April 2005) the Tribunal held that a Midgan or Yibir who has lost the protection of a local patron (or local patrons) and who had not found alternative protection in a city would be vulnerable to persecution and would not be able to relocate safely within Somalia (para 73, viii and ix). Occupational groups generally face more severe discrimination than ethnic minorities.

2.3.17  The available country information generally indicates that members of minority groups are likely to face political, social, economic and judicial discrimination, and human rights abuses, which in some circumstances may amount to persecution. Each case will need to be carefully considered on its facts, with the onus on the person to demonstrate that they will face serious harm or persecution.”

30.It is clear that one of the important issues which the Board ought to have considered was whether the Applicant could avail himself of patronage and therefore protection afforded by a majority clan in his home town in Afgooye should he be required to return to Somalia.  The evidence suggests that the Applicant may not receive such patronage and protection, in view of the fact that (i) he was harmed by his former employer (Abdiwali) as a result of his demand for payment of outstanding wages in 2009, and (ii) his father was blamed for the death of patient belonging to a majority clan (Hawiye) and was killed as a result in 2013.  The question of protection by a majority clan was, unfortunately, not considered by the Board.

31.Further, it seems clear from paragraphs 110 to 124 of the Written Decision, where the Board dealt with the question of persecution risk, that the Board concentrated its consideration on the “discrimination” faced by the Applicant and his family as members of a particular social group.  The Board stated, at paragraph 118, that –

“there was no suggestion that he or his family were discriminated against to any greater degree than any other Gaboye people experienced in Somalia. The Appellant must inevitably have realized and accepted from a very early age that this was his and his family’s ‘lot’ in life, in view of their status as Gaboye minority clan members in Somalia”,

and concluded, at paragraph 122, that –

“the discrimination from majority clan members which the Appellant experienced from time to time was not so severe as to amount to persecution or serious harm for the purposes of the Refugee Convention.”

Mr McCoy takes particular exception to the Board’s statement in paragraph 118 of the Written Decision quoted above which Mr McCoy says “condones the denial of basic human dignity to the Gaboye minority”.  While I consider the statement could have been expressed differently, I believe the Board was merely stating the harsh reality faced the Gaboye clan members in Somalia, but never intended to condone the denial of basic human dignity to the Gaboye minority clan or any other minority clans in Somalia.  Leaving this matter aside, this is force in Mr McCoy’s submission that the Board appeared to have failed to consider other specific incidents complained of by the Applicant which the Board did not reject, including the fact that (i) he was beaten up by a group of young men in the neighbourhood of his home in 2005 for no apparent reason, (ii) he was harmed by his former employer because he had demanded for payment of outstanding wages and decided to leave his employer’s farm in 2009, and (iii) his father was killed by a patient belonging to a majority clan in 2013, on a cumulative basis in its consideration of the issue of persecution risk (see Warner v The Minister of Citizenship and Immigration, 2011 FC 363, a decision of the Federal Court of Toronto, at paragraph 9).  It is possible that the Board had these incidents in mind when referring to the “discrimination” from the majority clan members which the Applicant experienced from time to time in paragraph 122 of the Written Decision.  However, this is not clearly stated. The court should not be required to speculate on this matter, particularly where the Director has not seen it fit to support a favourable reading of the Written Decision to uphold the Board Decision.

Grounds (2) to (4): internal relocation

32.Notwithstanding the Board’s rejection of the various grounds on which the Applicant claimed non-refoulement protection, the Board went on to consider the issue of internal relocation “in case it should become relevant for any reason in future” (see paragraph 125 of the Written Decision).  The Board concluded, at paragraph 153, of the Written Decision as follows:

“… it would in my view be a reasonable option, and not unduly harsh in the light of my findings above, for him as an able-bodied 29-year old, educated up to Primary 7 level, having assisted in his father’s clinic and worked on Abdiwali’s farm for some 3 months, to relocate to Mogadishu, where importantly there is no longer any clan-based discrimination, and I have found that it is an irresistible inference that if he did decide to live in Mogadishu, his aunt and uncle would provide general assistance and specifically adequate financial assistance to him to enable him to establish himself – including securing reasonable accommodation, and finding a job, possibly in his uncle’s business, but otherwise one of the many job opportunities created by the rapid development and reconstruction taking place in Mogadishu.”

33.The issue of internal relocation in Somalia was considered in YS and HA, at paragraph 65:

“… we consider that internal relocation would rarely, if ever, be a viable option for a Midgan. We bear in mind generally the point made in the UNHCR Position on the Return of Rejected Asylum Seekers to Somalia, January 2004 about it not being reasonable ‘to expect someone to take up residence in an area or community where persons with a different ethnic, tribal, religious and/or cultural background are settled, or where they would otherwise be considered aliens’. Specifically we bear in mind that for Midgan any available majority clan patron protection will normally exist in his or her home area only: there are no Midgan communities in Somalia. Thus, if it has been found that a Midgan would be at risk in his or her home area, then it is difficult to see how he or she could move elsewhere with any real prospect of securing an alternative source of majority clan protection. It is true, that in the ordinary course of events some Midgan do move away from their home areas in search of work and this way are said to have found work in diverse occupations, usually menial. But in such circumstances it is hard to see they would be able to arrange in advance for any clan militia escort. Furthermore, from what is said by Dr Luling regarding Midgan in Hargeisa and by the October 2004 CIPU Report regarding Hargeisa, even in Somaliland (where there would not necessarily be a need for majority clan protection) Midgan face serious measures of socio-economic discrimination.”

34.In MOJ (Return to Mogadishu) Somalia GC v Secretary of State for the Home Department [2014] UKUT 00442, the Upper Tribunal (Immigration and Asylum Chamber) considered specifically the possibility of relocation to Mogadishu, and stated at paragraph 425 as follows:

“On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.”

35.Further guidance on the possibility of relocation to Mogadishu can be found in the “Country Policy and Information Note Somalia: Majority clans and minority groups in south and central Somalia”, supra:

“c. Mogadishu

2.3.9 The UT also found that a person from a minority clan with no links to Mogadishu, no access to funds and no other form of clan, family or social support, is at ‘a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards’. (para 425) (see Treatment of minority groups and Treatment of internally displaced persons).

2.3.10 The situation is Mogadishu has not significantly changed since MOJ and Ors was promulgated. While persons from minority groups may be marginalised and face discrimination in Mogadishu, such treatment is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm. In general they are unlikely to face persecution on the basis of their ethnicity alone.

2.3.11 However, minority group/clan members returning or relocating to Mogadishu without support networks, without skills or education, and who have no real prospect of securing access to a livelihood are generally likely to face difficult living conditions that amount to serious harm or persecution.

2.3.12  Each case will need to be carefully considered on its facts, with the onus on the person to demonstrate that they are at real risk of having no option but to live in makeshift accommodation in an IDP camp, or that they would have no clan or family support, would not be in receipt of remittances from abroad, and would have no real prospect of securing access to a livelihood on return, and would consequently face serious harm or persecution on return.”

36.In short, internal relocation to Mogadishu could be a viable option where a member of a minority clan has links to Mogadishu, or has access to funds or other form of clan, family or social support for him/her to settle down in Mogadishu, or has some skills or education as would give him/her a real prospect of securing access to a livelihood there.  The Board found, on the facts of the present case, that it was a reasonable option open to the Applicant to relocate to Mogadishu and work there with the general assistance, including adequate financial assistance, from his aunt and uncle.  This conclusion was reached after the Board has carefully considered all the circumstances of the present case, including the evidence given by the Applicant.  In my view, this is a finding which it was open to the Board to make.  I am unable to accept Mr McCoy’s submission that it was not possible, or was meaningless, for the Board to determine whether it was unduly harsh to expect the Applicant to relocate to Mogadishu merely because the Board had, allegedly, failed to properly understand the nature of the Applicant’s claim or assess the risk of persecution on account of his PSG.  I have also carefully considered the detailed arguments under Grounds (2) to (4) as put forth in the Amended Form 86 grounds (but not developed by Mr McCoy), but do not consider that they have merits.  In all, I am of the view that the Board was entitled to reject the Applicant’s appeal/petition against the First Tier Decisions on the basis of its findings that the Applicant could reasonably relocate to Mogadishu.

THE ADDITIONAL ISSUES REFERRED TO IN THE COURT’S LETTER DATED 17 MAY 2019

37.In relation to the three issues raised by the court, I shall state my views briefly having considered the submissions made on behalf of the Applicant and the Director.

38.In respect of issue (i), it is clear, in view of the judgment of the Court of Appeal in Re Moshin Ali [2018] HKCA 549, that generally speaking it is the decision of the Board, not the underlying decision of the Director, which should be made the subject matter of challenge in an application for judicial review by a claimant whose non-refoulement claim has been rejected by both the Director and the Board.  Generally, the Director should be joined as an interested party, rather than as a respondent, in such application.  The reasoning for this conclusion is fully set out in the judgment of McWalters JA, giving the judgment of the Court of Appeal, which is binding on me.  Nevertheless, I accept Mr McCoy’s submission that the Court of Appeal did not intend to lay down an absolute rule that in no case can the Director’s decision be challenged in an application for judicial review, and I would not rule out completely that in some exceptional circumstances it may be open to a non-refoulement claimant to challenge the Director’s decision alone (without going through the petition/appeal process) or both the Director and the Board’s decisions.  Such circumstances would necessarily be rare, and it would not be possible, or appropriate, to define such circumstances exhaustively.

39.In respect of issue (2), the Director accepts that in circumstances where (i) he has come to the view that there is no reasonable ground to resist an application for judicial review, and (ii) the Board has decided to adopt a neutral stance in the application, it is, in principle, open to the applicant and the Director to adopt the procedure under paragraph 23(1) of Practice Direction SL-3 to dispose of the application for judicial review, even though the Director is joined as an interested party only to the application.  In his submissions, Mr McCoy has raised a further complaint about the lack of reasons where cases are settled pursuant the procedure under paragraph 23(1) of Practice Direction SL-3.  Since this issue does not arise in the present case, I do not propose to express any view on it, save to point out that the court must be satisfied, based on (inter alia) the matters set out in the short statement to be submitted together with the draft consent order, that the case can properly be disposed of upon the terms of the draft order, before it will make such order.

40.In respect of issue (3), costs are ultimately matters falling within the court’s discretion.  The Director does not dispute that the court has jurisdiction to order him to bear the costs of an application for judicial review even if he is joined as an interested party to the application only.  The Director has, however, referred the court to various decisions where he had either conceded an application for judicial review (SC v Torture Claims Appeal Board [2016] 2 HKLRD 864), or adopted a neutral stance in the application (KMM v The Torture Claims Appeal Board & The Director of Immigration, HCAL 46/2014, 21 May 2015; YA v Torture Claims Appeal Board/Non Refoulement Claims Petition Office and Director of Immigration [2019] HKCFI 849), and the court made no order as to costs against him.  It seems to me that they are examples of how the court exercises its discretion on costs on the particular facts of those cases, and should not be read as laying down any rigid rules on how the court’s discretion should be exercised.  In relation to the court’s exercise of its discretion on costs, the following (amongst others) factors would be relevant, although the weight that may be given to them would vary from case to case:

(1)  whether the applicant has been wholly or only partially successful in the application for judicial review;

(2)  the grounds on which the court finds in favour of the Applicant, wholly or in part;

(3)  whether the Director has taken any step to resist the application since its commencement, or only adopts a neutral stance or concedes the application in the middle of the proceedings;

(4)  whether there was any relevant pre-application correspondence or communication from the claimant inviting the Director to agree to the quashing of the Board’s decision; and

(5)  the reason(s) why the application for judicial review has not been disposed of pursuant to the procedure under paragraph 23(1) of Practice Direction SL-3.

41.In addition, the court ought to bear in mind, when exercising its discretion on costs, that:

(1)  Although the Director is joined as an interested party only to the application for judicial review, it was the party who opposed the appeal/petition before the Board, and is the party who is in principle directly interested in the outcome of the application for judicial review and should ordinarily be the real opposite party or contradictor to the application.  If the Director decides to take a neutral stance in the application, the court expects the Director to offer an explanation for adopting such stance voluntarily.

(2)  An applicant whose non-refoulement claim has been rejected, unjustifiably, by both the Director and the Board has no alternative but to resort to legal proceedings to pursue his claim.  There is a degree of inherent injustice that he should have to shoulder the costs of the legal proceedings in order to obtain redress from the court.  The fact that he is legally aided should not make any difference for the present purpose (see KMM v Torture Claims Appeal Board and Director of Immigration [2016] 2 HKLRD 568, CA).

DISPOSITION

42.The application for judicial review is dismissed, with no order as to costs.

43.The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Gerard McCoy, SC, and Mr Albert N B Wong, instructed by Daly & Associates, assigned by Director of Legal Aid, for the Applicant

The Respondent was absent

Ms Leona Cheung, SALO (Ag.), and Mr Ken Ip, GC, instructed by Department of Justice, for the Interest Party