Mamozai Akhtar Wali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2906/2018

[2021] HKCFI 2684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2906 of 2018

BETWEEN

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

Following:

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

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

1.The applicant possessed an Afghan passport issued on 24/5/2015. He went to China on 15/10/2015. He sneaked into Hong Kong from Shenzhen on 19/10/2015. He was arrested by the police on 8/11/2015. He lodged the present non-refoulement claim on 10/11/2015.  [1]

Background

2.The applicant was born on 5/3/1993 in Paktia, Afghanistan.  He was a Muslim. He was ethnic Khan Khel. He spoke Pushto.  He was single and completed education for 6 years.  He had no work experience. His parents were killed by the Taliban. His other siblings were in Afghanistan. He had never been arrested, interrogated or imprisoned. He and his family had never joined any organization or group in Afghanistan.

3.In the beginning of July 2015, some Taliban group came to his home. They demanded his father and him to join them. He refused as he did not want to join any terrorist activities. One of them was angry and threatened that there might be consequences.  He dared not report to the police as it could be more dangerous.

4.About a week later, the same group came again. They demanded his father and him to join. He refused and was assaulted. They told him to report to their base in a few days.

5.He and his siblings were in great fear. They fled to Kabul the next day. They stayed with his uncle there. About 10 days later, his neighbor at home village told his uncle on the phone that their parents were killed during a Taliban attack.[2]

6.Subsequently, his uncle arranged him to leave for Guangzhou, China on 15/10/2015 by air. There was no problem with the Immigration in Afghanistan. He then went to Shenzhen and stayed at a hotel for a few days. He did not know if he could apply for asylum in China.

7.While in the hotel, he heard about the protection scheme in Hong Kong from a Pakistani. He followed that Pakistani to sneak into Hong Kong on 19/10/2015. He was not aware of the scheme until he was detained in CIC. In October 2015, he last contacted his uncle who told him that the Taliban group asked about him.

8.He would not be able to relocate as the Taliban were everywhere and they would be able to locate him. He did not think Kabul was safe. He did not think the police could protect him as they were weak. He maintained that the Taliban were aggressive and recruiting people to join them.

9.He was in fear that the Taliban would kill him if he returned to Afghanistan.

The Decision of the Director

10.The Director refused his claim on 13/10/2017.  The Director found that there was no real risk of harm from the Taliban.  The main reasons were:[3]

(a)   The COI indicated that the Taliban was ousted by the government military forces and the US army since 2001. There was no evidence that the State could not protect him.

(b)   His evidence could not establish that he was personally at risk of being attack by the Taliban.

(c)   He was only one of the possible recruits by the Taliban. There was no evidence that the Taliban had targeted him personally. In both incidents, the Taliban group did not cause serious harm to him.

(d)   His parents stayed behind despite the threats from the Taliban. It was not reasonable as his father was also the target for recruitment.

(e)   There was no history that his family was accused or interrogated. They had not joined any group. He could leave Afghanistan without problem.

(f)    Although he was assaulted by some Taliban people. His injury did not amount to a minimum level of severity.

(g)   He did not make any claim in India before he travelled to China. He did not file a claim immediately after sneaked into Hong Kong. His conduct was not consistent with his asserted fear.

(h)   He was safe in Kabul with his uncle. After he left, his uncle and other siblings remained safe.

(i)     There were COI which confirmed that the Taliban had been attacking government forces and civilians. Security in Afghanistan had deteriorated since 2015. The State was unable to protect civilians. While Afghanistan was troubled by terrorism and insurgencies, there were COI reporting that the Taliban had only controlled a small fraction of Afghanistan. The State forces, with the assistance from US armies, had reduced civilian casualties and kept the Taliban at bay. Police salaries had been increased to improve recruitment. The Director concluded that there was reasonable State protection.

(j)     Cities such as Kabul, Herat and Mazar were safe and protected by government and international forces. There were reasonable relocation options.

11.The Director rejected the claim on all grounds on 13/10/2017.[4]

The Decision of TCAB

12.The TCAB hearing was held on 26/9/2018.  The adjudicator rejected the appeal on 21/11/2018.

13.The adjudicator was impressed by the detailed and coherent account of the circumstances in Afghanistan from the evidence of the applicant. There was a ring of truth as to what had happened in Paktia province. The evidence was consistent with other reliable sources about the Taliban such as terrorist attacks, the recruitment of local people and the punishment on refusal to join.[5]

14.However, the adjudicator found that the events in Kabul was not credible. The following was the main points:

(a)   In his oral evidence, the applicant said he heard of the death of his parents months later when he was in China. This was inconsistent with his NCF that it occurred about 10 days after he fled to Kabul. The adjudicator found this inconsistency unacceptable given the serious trauma.

(b)   The evidence about the Taliban approaching his uncle in Kabul was vague and mere assertions. It was in stark contrast to his evidence in Paktia. This was also inconsistent with the other sources which revealed that the Taliban limit their targets on high profile officials or spies. Those with a low profile would not be at real risk at Kabul.[6]

(c)   The adjudicator acknowledged the limited State protection in the applicant’s home area Zurmat in Paktia.

(d)   Having considered the judgment from the UK country guidance case of the Upper Tribunal, the adjudicator concluded that despite the persecution risk by the Taliban in Kabul, the applicant was a low profile target and would not face any real risk of harm.[7]

(e)   The UK country guidance case concluded that there were better employment prospects for single male for manual labour in Kabul. Those who spoke local language would be at an advantage. She agreed with these findings and found that it was not unduly harsh for the applicant to relocate to Kabul.[8]

15.The adjudicator found no real risk of harm if the applicant relocated to Kabul.  His appeal was dismissed.

Judicial Review

16.The applicant filed the leave application on 18/12/2018.  In his affirmation, he stressed that his life was threatened by the Taliban.  He would be in danger if he returned to Afghanistan.

17.In a leave application for judicial review, this court would consider whether there is any error of law or procedure.  Whether the decision of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

18.The adjudicator had analyzed the evidence and rightly considered the UK country guidance case. At the time of the TCAB decision, there was no error of law and procedure.  The conclusion was reasonable.

19.However, it is common knowledge that there is substantial change of circumstances recently in Afghanistan. In 2018, the UNHCR reported that Kabul should not be regarded as a safe and reasonable place of relocation. This report, though not adopted by the adjudicator then, has since gained significance because of the recent development. It warrants further consideration.[9]

20.The fresh evidence about the situation in Afghanistan appears to be credible. It was non-existent at the time of the TCAB hearing. This evidence, if accepted, would probably have an important influence on the outcome of the claim. In my view, it would be unjust for this court to ignore the up-to-date situation.[10]

21.In the circumstances, it is reasonably arguable that there may be an error in finding of facts. This amounts to an error of law. The applicant might face a real risk of harm from the Taliban. I grant leave for judicial review.

Dated the 8^th day of September 2021.

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