Mohammed Saaed Mohammed Hossin Elsamahi v. Torture Claims Appeal Board

HCAL 2167/2018

[2022] HKCFI 2554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2167 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by (counsel for) 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 be refused.

Observations for the Applicant:

1.The Applicant is a 27-year-old national of Egypt who last arrived in Hong Kong on 3 August 2017 as a visitor with permission to remain up to 1 November 2017 when he did not depart and instead overstayed, and on 2 November 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Egypt he would be harmed or killed by his girlfriend’s family over her pregnancy out of wedlock and/or by the police over certain charges brought against him by his girlfriend’s family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Etay el Barod, El Beheira Governorate, Egypt where he dated his girlfriend in 2014, but later when his girlfriend became pregnant by him, her father and uncle were furious and beat her so badly that caused her to suffer an abortion, and when the Applicant later heard that her father and uncle were looking to kill him over the matter, the Applicant fled from his home district to other places including Alexandria, Cairo and Sharm el-Sheikh, and in August 2016 he departed Egypt for Hong Kong and China before returning to Egypt in July 2017.

3.Upon returning to Egypt, the Applicant stayed in Cairo, but when he later heard that some men claimed to be government officials had come to his parents looking for him claiming that there was a warrant for his arrest over some serious charges brought by his girlfriend’s family for which he could be liable to imprisonment for 12 years, he therefore departed Egypt in August 2017 again for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 31 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 19 June 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”).

5.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 risk of him harmed by his girlfriend’s family upon his return to Egypt due to the absence of any past ill-treatment from them, that there was no reliable evidence of any threats from his girlfriend’s family or that he was being pursued by the Egyptian police or authorities over any charge other than hearsays and his own speculations and the fact that he was able to come and leave the country without any problem, that in any event it was a private dispute between him and his girlfriend’s family without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Egypt, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Egypt with a large population of 97 million people spread across a vast territory of more than 1 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other part of the country away from his home district in large cities such as Cairo where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

6.On 29 June 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 18 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found inconsistencies and discrepancies in his evidence as to his claimed fear of harm from his girlfriend’s family or the Egyptian authorities that caused him to leave his country for Hong Kong that it doubted the credibility of his claim, nor is there any reliable evidence of him being pursued by the Egyptian police or authorities over any criminal charge and of which if true that he would be running away from justice as a fugitive for which he would not be entitled to non-refoulement protection, and that his problem with his girlfriend’s family if true was a private personal dispute without any official involvement that state/police protection would be available to him upon his return to Egypt as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

8.On 8 October 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 his Form, and in his supporting affirmation of the same date he only stated that the decision was unfair and unreasonable 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.

9.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.

10.In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in his claim from his girlfriend’s family if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Egypt, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.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.

12.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 17^th day of August 2022

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