Ajab Khan Khalil v. Torture Claims Appeal Board

HCAL 2285/2024

[2025] HKCFI 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2285 OF 2024

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 submission by the Applicant in open court.

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.   The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.   The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Afghanistan who entered Hong Kong illegally on 8 July 2024 and surrendered to the Immigration Department on 15 July 2024 when he raised a non-refoulement claim for protection on the basis that if he returned to Afghanistan he would be harmed or killed by the Taliban government for violating the ban and repeated warnings not to give tuitions to girls beyond the 6^th grade imposed by the Taliban on the country.

2.The Applicant was born in Sahak Haidri, Qila, Marzak, Afghanistan and raised in Pir Bagh, Gardez, Paktia. After graduating from Paktia University in 2021 with a Bachelor degree in Science, he worked as a school teacher in his home district by giving lessons to both boys and girls between the age of 6 and 20 years in his neighbourhood.

3.However, after the Taliban had regained control of Afghanistan in August 2021, they revised many policies of their previous rule on the country, including banning girls from receiving education beyond 6^th grade, but which the Applicant ignored and continued to give tuitions to girls beyond 6^th grade in his home district in his home.

4.One day in April 2024 three Taliban members came to the Applicant’s home to bring him to their office in Village Zurmat for questioning over his giving lessons to those girls in his neighbourhood against the ban imposed by the Taliban government since March 2022, of which the Applicant explained that he was not aware, and for which he was given a stern warning not to do so again or else he would be in serious trouble before he was allowed to leave.

5.As a result the Applicant felt intimidated and therefore informed his female students of the Taliban’s warning, but upon their pleadings he eventually decided to ignore the warning and continued to give tuitions to those girls beyond their 6^th grade.

6.About 8 days later 3 Taliban members came to the Applicant’s home to again take him to their office in Village Zurmat where they accused him of ignoring their warning and proceeded to beat him by punching and kicking him as well as striking his head with the butt of their pistols, and threatened to kill him next time if he still failed to heed their warning to stop giving tuitions to girls beyond the 6^th grade before releasing him.

7.However, some 10 days later while shopping in the village market, the Applicant was informed by his parents on the phone that a group of Taliban members had just come to his home looking for him, and when they could not find him they then set fire to the room which he used to give tuitions to his female students, and warned his parents that if the Applicant did not hand himself over to their office in Village Surmat within the next few days, they would come again to arrest him.

8.Whereupon the Applicant became fearful for his safety and stayed away from his home by hiding in a hostel near his university, and later when he was told by his parents that the Taliban members had returned to look for him again twice within 2 days and made “life threats” against him should he still fail to hand himself over to them, the Applicant fled to Kabul to hide in a friend’s place, and on 22 June 2024 he departed Afghanistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non‑refoulement claim for protection to the Immigration Department, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 10 September 2024 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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Taliban upon his return to Afghanistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the Taliban to seriously harm or kill him other than their angry words and empty threats due to his failure to heed their warning not to give tuitions to girls beyond the 6^th grade, that although since taking control of the entire Afghanistan government that the Taliban’s de facto administration has been described as working in arbitrary and unpredictable ways and generally without observing human rights practices, nevertheless  there are objective Country of Information (“COI”) showing that improvement in the security situation of Afghanistan and the current government controlled by the Taliban have taken steps to improve its effectiveness and other state apparatus and to protect the rights of its citizens without tolerating misbehaviours of their members, that there are existing channels for redress if the police failed to discharge their duties in offering assistances to citizens like the Applicant, and that there are also reasonable internal relocation alternatives available within Afghanistan with a large population of 40 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‑body young man to move to other part of the country away from his home district to large cities such as Kabul where it would be difficult if not impossible for anyone to locate him.

11.On 17 September 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 October 2024 from his detention at Castle Peak Bay Immigration Centre (“CIC”) before the Board through video conferencing system and assisted by an interpreter during which the Applicant gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 November 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board did not take any issue with the Applicant’s claim of having violated the ban imposed by the Taliban not to give tuitions to girls beyond their 6^th grade but found that apart from issuing warnings to the Applicant once and again that the Taliban members did not do anything to harm the Applicant seriously let alone to kill him, that he was able to leave the country subsequently in June 2024 without encountering any problem with the authority in the airport which indicated that he was not a target of the Taliban government, hence it is reasonably anticipated that if the Applicant returned to Afghanistan there would be no difficulty for him to continue his living same as the one before he left Afghanistan so long that he stops giving tuitions to girls beyond the 6^th grade, and that reasonable internal relocation alternatives are available within Afghanistan for him to move safely to other parts of the country away from his home district to avoid any risk of being harmed or killed by the Taliban members of his locality that it concluded that the Applicant had failed to establish that there are substantial grounds for believing that he would face any risk of being harmed or killed by the Taliban that his claim for non-refoulement protection failed on all applicable grounds.

13.On 27 November 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)    That the Board reached the decision wrongly in assessing his non‑refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case;

(5)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions;

(6)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational;

(7)  That the Adjudicator failed to provide the Applicant with sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and appeal that such procedural failure undermined his ability to present a comprehensive case;

(8)  That the Board’s decision contained all the necessary details of the Applicant’s claim which indicates that there are no missing or incomplete elements that would warrant the dismissal of his claim.

14.While some of these grounds appear to be just bare and vague assertions of the Applicant containing a few key words or phrases but without much relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in exactly what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, but given the facts that the Adjudicator did not appear to have taken any issue as to the credibility of his claim of having violated the Taliban’s ban and warnings from giving tuitions to girls beyond the 6^th grade and thus received warnings and threats from the Taliban which have taken over the Afghanistan government since August 2021, and that relevant COI which were available before the Board have shown a deterioration of human rights situation within the country since with widespread human rights violations in particularly against women and girls as acknowledged by the Board in its decision, and in view of the seriousness of the issue at hand and the gravity of the consequences of the Board’s decision to dismiss the Applicant’s appeal, high standards of fairness require that the Board’s reasons or bases for rejecting the Applicant’s claim be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process.

15.Firstly, it is relevant to note in its decision the Board made the following findings and reasons for rejecting the Applicant’s claim and appeal:

“ 41. In determining whether or not the Appellant’s fear of being harmed or killed by the Taliban government is well-founded, I asked the following question: what treatment the Appellant had received before he left Afghanistan, and what the Appellant’s situation will be if he be returned to Afghanistan?

42. Before the Appellant left Afghanistan in June 2024, he had been teaching girls beyond the 6^th grade ignoring the restriction laid down by the Taliban government for several years, i.e. from August/September 2021 to April 2024. Nothing happened to him until April 2024 when he was first warned by some Taliban members to comply with the government’s restriction.

43. Apparently, the Applicant chose to ignore the warning and continued to teach girls beyond the 6^th grade. Then he received the second warning and he was beaten up, but with no serious injuries inflicted.

44. When the Taliban members looked for the Appellant on the third occasion, the Appellant was not at home, and the Taliban members then set fire to the room which the Appellant gave his tuition to the girls. Apparently, that was just another warning to the Appellant.

45. Therefore, it’s clear that apart from issuing warnings to the Appellant once and again, the Taliban members didn’t do anything to harm the Appellant seriously, let alone to kill him.

46. As a matter of fact, when the Appellant left Afghanistan in June 2024 by plane, he encountered no problem with the authority in the airport. This indicated that the Appellant was not a target of the Taliban controlled government at all.

47. Furthermore, the Appellant agreed that he was not clear whether or not those Taliban members who visited him were actually government officials, or just Taliban members of his locality. Therefore, there is no evidence suggesting that the government of Afghanistan was involved on those occasions when these warnings were issued by the Taliban members.

48. What the Appellant’s situation will be if he be returned to Afghanistan?

49. As pointed out in the above, it’s obvious that the Appellant was not a target of the Taliban controlled government. It’s also clear that the main concern of those Taliban members in his locality was that the Appellant continued to give tuition to girls beyond the 6^th grade. Their warnings to the Appellant was to stop giving tuition to girls beyond the 6^th grade, not to stop the Appellant from giving tuition to girls who were under the 6^th grade. Therefore, if the Appellant returns and stops giving tuition to girls beyond the 6^th grade, these Taliban members would not do anything to harm the Appellant, let alone to kill him.

50. In approaching this question of what the Appellant’s situation will be if he be returned to Afghanistan. It is pointed out by His Lordship in the case HJ (Iran) & HT (Cameroon), which concerns the situation of a gay person returning to his country, that “it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person so he would be able to do so if he were not returned.”

51, Applying the same approach, it is reasonably anticipated that if the Appellant be returned to Afghanistan, there would be no difficulty for him to continue his living same as the one before he left Afghanistan so long he stops giving tuition to girls beyond the 6^th grade.

52. The Appellant claims that it’s unrealistic to have state protection because the whole country is under the control of Taliban.

53. According to the COI of Afghanistan, it’s true that since the Taliban was in control of the country in August 2021, there has been a deterioration of the human rights situation, including widespread human rights violations, particularly against women and girls. However, there is no evidence suggesting that the Appellant will be victim of these violations. The Appellant’s family members are still living in Afghanistan. Evidence suggested that they have never been accused, charged, interrogated, arrested, detained or imprisoned in Afghanistan. Although they are close relative of the Appellant whom the Taliban found had breached the restriction laid down by the Taliban controlled government, they continue to live their normal life in Afghanistan.

54. After careful consideration of the case, I find that the Appellant’s fear of being tortured within the meaning of “torture” under Section 37U(1) of the Immigration Ordinance is not well-founded.

55. Therefore, I find the Appellant has failed to establish that there are substantial grounds for believing that he would be liable to be subjected to torture if he be sent back to Afghanistan. His claim under this heading fails.”

16.Essentially the Board found that the Taliban members had only wanted to warn the Applicant not to give tuitions to girls beyond the 6^th grade, that they did not do anything else against him or his family which was why he encountered no problem with the authority in the airport when he left the country, and that in any event as long as he stops giving tuitions to girls beyond the 6^th grade, he should be able to return to Afghanistan without any fear or difficulty to continue his living the same as before.

17.The Board also found that there was no evidence suggesting that the government of Afghanistan was actually involved when those warnings were issued to the Applicant or that those Taliban members who visited him were just ordinary members from his locality, and hence internal relocation would be a viable option to the Applicant to move away from his home district to another city to avoid those Taliban members from his locality (see [62] – [66] of the Decision), and concluded that the Applicant’s non‑refoulement claim therefore failed on all applicable grounds.

18.Firstly, it is relevant to note from those COI referred to in the Director’s decision on Taliban’s violations of human rights in Afghanistan since taking over the control of the government, which were available before the Board as noted above and of which the Board had also acknowledged, in particularly of the following reports (see [18] of the Director’s decision):

-The “Country Reports on Human Rights Practices for 2023 – Afghanistan” published by the United States Department of State (“USSD 2023 Report) (item 2 of Appendix) mentioned in Section 1(d) that “The 2004 constitution prohibited arbitrary arrest and detention and provided for the right of any person to challenge the lawfulness of their arrest or detention in court. The Taliban generally did not observe these requirements. The Taliban reportedly frequently detained citizens arbitrarily without a clear legal basis and without regard to substantive or procedural legal protection. Local Taliban “police” reportedly detained persons capriciously on charges without a clear connection to any law. In a September 2023 report on the treatment of detainees, UNAMA found that the systematic violation of a detainee’s right to access a lawyer, and to challenge the legality of detention before a court while in the custody of the Interior Ministry and so-called GDI resulted in unjust and prolonged detention, frequently concluding without charges and judicial process. In almost all cases, arrests and detentions carried out by the Taliban were unjust because there was no clear connection to law, individuals were not informed of the reasons for their arrest or charges they were facing, pretrial detentions were lengthy, and detainees were not afforded access to legal counsel.” “Despite the general amnesty announced by the Taliban in August 2021, there were widespread reports of unjust detentions for lengthy periods of individuals associated with the pre-August 2021 government.” ([18](b) of the Director’s Decision)

-According to paragraph 2.4.3 of “Country policy and information note: fear of the Taliban, Afghanistan” published by the United Kingdom Home Office in April 2022 (“UKHO 2022 Report”) (Item 4 of Appendix), it stated that “Although Taliban soldiers have been instructed not to impose arbitrary penalties and to await a court’s judgment, acts of punishment have been reported in some areas, including public shaming of men accused of petty crimes, executions of persons accused of kidnap, whose bodies are then publicly displayed with signs warning other criminals of the same fate, and public stoning”.([18](d) of Decision)

-According to the Executive Summary of USSD 2023 Report (“USSD 2023 Report”] (Item 2 of Appendix), “Significant human rights issues included credible reports of: killings; severe physical abuse; harsh and life-threatening prison conditions; unjust detention and abductions, including disappearances; serious problems with independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offences of a relative; serious abuses in a conflict, including widespread civilian deaths or harm, disappearances and abductions …”  ([18] (f) of Decision)

19.Given such clear indications before the Board of the deteriorating human rights situations in Afghanistan since the Taliban had taken control of the government in August 2021 with widespread arbitrary arrests detentions and executions, and the actions taken by those Taliban members against the Applicant including setting fire to his room and making “life threats” against him should he fail to hand himself over to them for violating the ban and their repeated warnings not to give tuitions to girls beyond the 6^th grade, and yet for the Board to proceed to find that upon his return to Afghanistan the Applicant can reasonably anticipate that there would be no difficulty for him to continue his living same as before so long that he stops giving tuitions to those girls, and to conclude that there are no substantial grounds for believing that he would be liable to be subjected to any of the applicable risks if he were to be returned to Afghanistan, it seems to me reasonably arguable that the Board had failed to properly consider the relevant COI in its assessment of the claimed risk in the Applicant’s claim and/or that its such conclusion is in the circumstances unreasonable or irrational.

20.It also seems to me reasonably arguable that there was no proper or sufficient basis for the Board to find the fact that the Applicant encountered no problem with the authority at the airport when he left Afghanistan should indicate that he was not a target of the Taliban controlled government when it appears that it was just a relatively short period of time after the Taliban had come looking for him on the 3^rd occasion for ignoring their warnings and then set fire to his room with “life threats” made against him that the Applicant shortly thereafter left the country on 22 June 2024 from Kabul, and that there was also no information before the Board to conclude that the Taliban controlled government was then capable of placing the Applicant in a nation-wide stop-list at any airport within the country in the absence of any evidence that they were aware that the Applicant had by then already fled to Kabul, and that it is not proper for the Board to make findings based on its own assumptions and subjective speculations (see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p41).

21.Furthermore, notwithstanding the clear fact that the Afghanistan government is under the control of the Taliban, it also seems to me reasonably arguable that the Board erred in law in finding that internal relocation within the country would be a viable option to the Applicant to avoid any trouble from the Taliban, or that its such assessment is unreasonable or irrational.

22.In the premises, and for all these reasons, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds and bases as stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

23.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 9^th day of May 2025

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