Alaisely Alsaied Lotfe Sobehy Rodoan v. Torture Claims Appeal Board

HCAL 1056/2018

[2021] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1056 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Egypt who had made multiple entries into Hong Kong previously in 2016 and 2017, but after further attempts in 2017 to enter Hong Kong with different passports were refused by the Immigration Department, and on the last attempt on 5 December 2017 when he was again refused entry, he raised a non-refoulement claim on the basis that if he returned to Egypt he would be harmed or killed by his friend’s brother who blamed him for his friend’s death in a soccer match. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Beheria, Egypt. After leaving school he worked as a security guard for a petrol company in his home district.

3.One day in March 2016 while he was playing soccer with his friends, he accidentally kicked the ball at the stomach of a friend who then collapsed and lost consciousness, and subsequently died in the hospital, for which the Applicant was arrested by the police.

4.After the police had later found that it was an accident and released the Applicant, his friend’s brother however blamed him for the death and swore to take revenge against him, and on the same night of his release, his friend’s brother came to his home with some men armed with weapons looking for him who somehow managed to escape from the back of his house and fled to Alexandria.

5.Two months later the Applicant moved to Cairo, but later when he saw his friend’s brother with his men in the area, he felt it was no longer safe to remain in Egypt, and so in mid-2016 he departed for China, and from there he made several trips to Hong Kong as a visitor, but after further attempts to enter Hong Kong in 2017 with different passports were refused by the Immigration Department, on his last failed attempt on 5 December 2017 he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 January 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 22 January 2018 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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and raised doubts on the credibility of his claim when he never sought non-refoulement protection during his many visits to Hong Kong until 5 December 2017 when he was refused entry, and aside the credibility issue assessed the level of risk of harm from his friend’s brother upon his return to Egypt as low due to the low intensity and frequency of past ill-treatment from him, that it was a private personal dispute between the two of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Egypt with a large population of 94 million people spread across a vast territory of more than one million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to move to other parts of Egypt away from his home district in large cities such as Alexandria where he had stayed before without incidents and where it would be difficult if not impossible for his friend’s brother to locate him.

8.On 26 January 2018 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 23 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 8 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant differences between the Applicant’s evidence given to the Board and the information earlier provided to the Director that it did not consider him to be a witness of truth, and did not accept his claim that he was involved in the death of his friend or that his friend’s family had held him responsible or made threats against him or that he fears returning to Egypt for the reason as claimed, and concluded that there is not a real risk that he would face any of the proscribed forms of harm upon his return to Egypt that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 8 June 2018 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 the Form, and in his supporting affidavit of the same date he merely stated that he was not satisfied with the decision of the Board and that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and was therefore unable to submit important documents in support of his claim but without putting forward any proper ground for his intended challenge, nor did he in his present application or at the hearing before me produce any such documents. As such I do not find any reasonably arguable basis for his intended challenge.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 81 – 158 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

13.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Egypt, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.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.

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

Dated the 11^th day of May 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