Mamozai Jalat Khan v. Torture Claims Appeal Board

HCAL 1242/2019

[2023] HKCFI 2061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1242 OF 2019

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Afghanistan who entered Hong Kong illegally on 21 October 2018 and surrendered to the Immigration Department on 23 October 2018 when 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 having informed the Army of their terrorist activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mamozai, Tameer City, Afghanistan. After leaving school he worked as an excavator driver in his home village.

3.One day in May 2018 the Applicant was approached by 2 men for an excavation job, and was taken to a site in the neighboring mountain where there was a group of armed Taliban who told him to arrange for an excavator for use to hide large caches of their weapons.

4.The Applicant was scared of being killed by the terrorists and so he did as he was told by calling his co-worker to drive the excavator to the site where they made an excavation to hide the caches of weapons as directed by the Taliban.

5.They were then taken by the Taliban to another site to carry out similar excavation for their weapons, but while they were working, the Army arrived and killed all the Taliban except 2 who were able to make their escape, and that the Applicant and his co-worker later took the Army to the earlier site where the Taliban’s hidden weapons were recovered by the Army.

6.The Applicant was then taken by the Army to Kabul where he was interrogated and then put in safe custody from the Taliban for one month before he was eventually released.

7.However, when he was later told by his boss that his co-worker had subsequently been killed by the Taliban in retaliation, and that the Taliban were also looking for him, the Applicant feared that he would also be killed and so he fled to hide in Kabul, and on 19 October 2018 he departed Afghanistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 25 January 2019 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

9.In his decision the Director took into account of 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 or killed by the Taliban upon his return to Afghanistan due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the Taliban in the Applicant or that they were pursuing him prior to his departure of the country, that in any event the Taliban were terrorists that state 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 35 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Kabul where it would be difficult if not impossible for the Taliban to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found that the Applicant had never been inflicted with any harm or serious injuries by the Taliban prior to his departure of Afghanistan, that it was only hearsay that he was told of being pursued by the Taliban, that the Taliban was merely an insurgent force in some areas of Afghanistan with no influence all over the country that state protection would be available to the Applicant as well as reasonable internal relocation for him to move safely to other area of the country without any risk of being located by the Taliban that his claim for non-refoulement protection failed on all applicable grounds.

12.On 8 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the fact is that it was established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim was a localized one and that it was not unreasonable or unsafe for him to relocate to other part of Afghanistan, there was no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

17.I do however take judicial notice that Taliban have since returned to power in Afghanistan in 2021 and now rule the country. As such, and given that both the Director and the Board in their decisions did not disbelieve the Applicant’s alleged involvements with the Taliban in the past, the Applicant may in my view make a request to the Director for a subsequent claim under Section 37ZO (2) of the Immigration Ordinance.

Dated the 9^th day of August 2023

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