AS v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2023] 5 HKC 1, [2023] HKCA 693

Albert NB Wong represented the applicant in AS v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2023] 5 HKC 1, [2023] HKCA 693.

The applicant was a Somalian born in Afgooye and belonged to a minority clan called Gaboye, which was considered a low caste of the Somalian society. He first entered Hong Kong in 2014 and raised a non-refoulement claim shortly thereafter, claiming for non-refoulement protection that he would be at risk of persecution on account of his membership of the Gaboye clan, a particular social group (PSG) were he to return to Somalia. The Director of Immigration (Director) rejected the applicant’s non-refoulement claim. The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (Board) dismissed the applicant’s appeal, finding that the applicant had failed to show the requisite degree of persecution risk by reason of clan-based discrimination if refouled, and that internal relocation to Mogadishu would be a reasonable option. The applicant was granted leave to apply for judicial review of the Board’s decision. A judge of the Court of First Instance dismissed the application for judicial review (see [2020] 3 HKC 187 ; [2019] HKCFI 2871). Although the judge observed that there might be merits in the complaint that the Board had failed to properly assess the alleged persecution risks premised on clan discrimination, he rejected the contentions that it would materially affect the Board’s conclusion on relocation. The applicant appealed, contending that (i) the failure to properly determine persecution risk based on PSG was fatal to the whole of the Board’s decision since it led to an erroneous consideration of the applicant’s risk profile which rendered the assessment on internal relocation meaningless; and (ii) it would be Wednesbury unreasonable and irrational to expect the applicant to return home and re-establish contacts and protection for relocation if by so doing would subject him to the risk of persecution.

Held, unanimously, dismissing the appeal:

Per Au JA

• (1) Judicial review was not a further avenue of appeal as the primary decision makers were the Director and the Board. Whilst adopting an enhanced standard in scrutinizing the Board’s decision, the Board’s role should not be usurped. Assessment of evidence and country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board and the Director. The Court would not intervene unless there were errors of law, procedural unfairness or irrationality in the decision of the Board. Nupur Mst v Director of Immigration [2018] HKCA 524 ; [2018] HKCU 2819; Re Md Shohel Sheak [2018] HKCA 714 ; [2018] HKCU 3906; and Re Limbu Birkhaman [2019] HKCA 50 ; [2019] HKCU 285 followed (para 18).
• (2) An appeal against the refusal of leave was not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In determining an appeal, the decision of the judge would only be focused on and only be reversed if an appellant could demonstrate that the judge had made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong. Nupur Mst v Director of Immigration (above); and United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22 ; [2018] HKCA 451 ; [2018] HKCU 2585 followed (para 19).
• (3) Internal relocation was always an assessment by reference to a specific place but not anywhere within the country in question. In the present case, the Board’s assessment on internal relocation to Mogadishu was not flawed by reason of its lack of proper assessment of persecution risks. Given the Board’s conclusion in light of the country guidance observed and concluded by the Upper Tribunal (Immigration and Asylum Chamber) that there was no clan-based violence, discriminatory treatment and persecution in Mogadishu, the only question for reasonable relocation was whether the applicant could establish himself financially and economically, which he was found to be able to receive adequate assistance by the Board’s holistic assessment of the evidence, the COI and the Country Guidance cases. The issue of persecution risks was thus irrelevant. The allegation of lost patronage was related to persecution risks and was accordingly irrelevant to the Board’s assessment on internal relocation. MOJ (Return to Mogadishu: Somalia GC) v Secretary of State for the Home Department [2014] UKUT 00442 (Upper Tribunal (Immigration and Asylum Chamber)); OA (Somalia) Somalia CG [2022] UKUT 00033 (IAC) (Upper Tribunal (Immigration and Asylum Chamber)) considered (paras 32-33, 36, 38, 40-46, 48).
• (4) The complaints that the judge did not provide reasons for dismissing the argument that it would be Wednesbury unreasonable and irrational to expect the applicant to return home and re-establish contacts and protection for relocation if by so doing would subject him to the risk of persecution was without merits. The dismissal of the judicial review was not tainted by any public law errors. Based on the available evidence and COI materials, it was reasonably open to the Board to make the various relevant findings leading to the conclusion. With the business established by his uncle in Mogadishu, the applicant would not be required to go back to his home town first where he would allegedly be subject to persecution risks (para 54).

[The above is excerpted from the headnote to the report in HKC.]