Emil Farag Girgis Meawd and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 714/2019

[2023] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.714 of 2019

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;

Order by Deputy High Court Judge K.W. Lung:

1.  leave be granted to the applicants to amended their Form 86 and to file their affidavits in support of the Amended Form 86 as per the drafts submitted to the Court;

2.  the applicants’ application for leave to apply for judicial review of the Board’s Decision be dismissed;

3.  the applicants’ own costs be taxed in accordance with the Legal Aid Regulations, such costs shall exclude any COI before the Deportation Order or deemed to be irrelevant to this application.

THE APPLICATION

1.The applicants are a family and nationals of Egypt.  The 1^st applicant and 2^nd applicant are Husband and Wife whilst the 3^rd applicant to the 5^th applicant are respectively their elder daughter, younger daughter and son (“the children”).  The facts of the children’s cases depend on the facts of the Husband and the Wife.

2.This is the applicants’ joint application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 17 December 2018 (the “Board’s Decision”) confirming the Notice of Decision dated 28 April 2017 by the Director of Immigration (the “Director’s Decision”) rejecting their joint application for refugee status. 

3.The hearing before this Court was held on 25May 2023.  The applicants were represented by Mr Francis Ngan, counsel on the instructions of Messrs Daly & Associates assigned by the Director of Legal Aid (“DLA”).

4.Leave was granted to the applicants to amended their Form 86 and to file their affidavits in support of the Amended Form 86.

The applicants

5.On 18 October 2016, the applicants attempted to enter Hong Kong but were refused permission to land.  While pending removal by the first available flight, the applicants indicated, through their legal representative, their intentions to lodge non-refoulement claims.  On 19 October 2016, they lodged their joint non-refoulement claims.  Their claims were made on the basis that, if refouled, they would be harmed or killed by (i) the family members of the Wife, (ii) the Muslims, because the Husband, a Christian, married a Muslim wife, and (iii) the Egyptian government as it would arrest and imprison the Husband for preaching Christianity in Egypt. 

6.According to the Husband, he met the Wife in around late 2003 or early 2004 in a church in Cairo.  The Wife was born in a Muslim family but she learnt Christianity at her secondary school.  One day, the Husband visited the Wife at her home to fix her video player.  He used a video about Jesus to test the player and it was seen by the Wife’s mother.  They had a heated argument over God.  On 18 July 2004, the Wife converted to Christianity and the couple got married in the end of 2004.  The Wife’s family was not aware of the marriage. However, a marriage between a male Christian and a female Muslim would not be accepted by the Egyptian Government and thus the couple only obtained their marriage certificate on 31 May 2006 after the Wife obtained a Christian identity card. 

7.One day in January 2005, while the couple were on a taxi, they were stopped by the Wife’s family members.  They accused the Husband of kidnapping the Wife, resulting in the assaults against the Husband.  The Husband managed to escape the scene.  On the other hand, the Wife was beaten up at home and detained as her family members suspected of her conversion.  They also posed death threats.  Nevertheless, they once called the Husband and invited him to solve the problem by converting to Islam.  The Husband refused. 

8.A month later, the Wife’s attempted escape led to a more severe assault from her mother.  She hit the Wife with plastic stick and threw a glass bottle at the Wife.  While the glass bottle did not hit the Wife, she stepped on the shattered glass and injured her leg.  Her mother also assaulted her with a metal spatula stained with hot oil and hurt the Wife’s right eye. 

9.In around March 2005, the Husband successfully rescued the Wife from her home after 74 days’ detention.  They escaped to Alexandria.  During their stay in Alexandria, the Husband was informed by his parents that the Wife’s family visited them and threatened to kidnap the Husband’s sister.  Meanwhile, the Husband’s deposit to purchase an apartment was taken away by the seller who sold the apartment to someone else upon knowing the Wife’s conversion.  The Wife was further informed of her friend’s unpleasant and torturous experience by the police due to the friend’s conversion to Christianity. 

10.Feared that their location would be disclosed, the couple escaped to Sudan with the 3^rd applicant.  From 2006 to late 2011, nothing eventful happened and the couple gave birth to the 4^th applicant in Sudan.  In late 2011 or early 2012, the Wife was approached by a colleague named Ahmed.  Ahmed recognized the Wife as the one who was reported missing by her family.  He had since then threatened the couple and asked them to return to Egypt.  The couple’s attempts to relocate to other areas failed as Ahmed was able to find them.  In 2013, Ahmed further threatened to kidnap their daughters if they refused to return to Egypt.  Meanwhile, the Husband was detained once in Sudan by the police because he was complained by his landlord to draw a cross on the wall. 

11.Additionally, the Husband stated that he was threatened by a former Egyptian diplomat named Afifi who knew about the Wife’s conversion from their family doctor, Dr. Abed.  Afifi used to work for the security service of Egypt and he told the Husband that he had put the Husband’s name on the wanted list at the Egyptian airports. 

12.In order to avoid Ahmed’s threats, the couple went into hiding with their daughters in Sudan.  While it appeared that the family lived a decent or even luxurious life in Sudan, the Husband insisted that they did not have sufficient fund to leave Sudan.  In addition, the Husband was interviewed by a TV program called “Jesus Set Me Free” and the interview, including pictures of his family, was broadcast.  As the program aimed to help people who converted to Christians, the TV host gave the Husband money for the application of the family’s Sudanese passports.  Yet, the applications for travel documents for the 4^th and 5^th applicants were rejected by the Sudanese authorities.

13.In late July 2016, the Husband returned to Egypt.  He was stopped at the Customs and was interviewed for two or three hours.  While nothing eventful happened, the family worried that they would be traced by the Wife’s family or arrested by the Egyptian authorities.  They decided to come to Hong Kong for protection.  As the Wife’s family members were still looking for her, and there were threats from the Muslims in Egypt, the family deemed necessary to seek protection.  Details of their claims are set out at paragraph 11 of the Notice of Decision dated 28 April 2017 by the Director (the “Director’s Decision”).        

The Director’s Decision

14.The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

15.The Director considered the applicants’ claims and their supporting documents.  By way of the Director’s Decision, the Director dismissed the applicants’ claims.  In elaboration, the Director found that (i) the applicants’ claimed fear of harm was assessed to be low [22]; (ii) state protection would be available to them [23]-[25]; (iii) internal relocation was a viable option [26]-[27]; (iv) the credibility of the Wife’s conversion and her true identity as a Muslim was in doubt and not accepted [28]; and (v) the supporting documents were insufficient to establish their non-refoulement claims and their claimed fear of harm was also inconsistent with the country of origin information (“COI”) [29]-[30]. 

The Board’s Decision

16.The applicants appealed the Director’s Decision to the Board.  On 18 December 2017 and 22 January 2018, the Board conducted an oral hearing for their appeals, during which they were assisted by duty lawyer and the Husband and Wife testified for themselves and on the family’s behalf [6].

17.The Board considered the applicants’ case [27]-[62], their notices of appeal [63]-[65], the new evidence submitted to the Board, namely, the Wife’s baptism certificate [66], the parties’ submissions [67]-[68], the applicants’ oral testimonies [69]-[125], and the parties’ closing submissions [126]-[129]. Having reminded itself of the relevant legal principles and considered the above evidence, the Board concluded that the applicants’ evidence was inconsistent and their explanations not accepted [135].  In summary, the Board, while accepted the couple were both Coptic Christians from Egypt, was not satisfied that the Wife was a converted Christian but instead a Coptic Christian from birth and found that their non-refoulement claims were fabricated for reasons summarized below [136].

18.At the outset, the Board expressed significant concern over the discrepancies in the evidence of the Husband and the Wife in relation to the method of departure when they left Egypt to travel to Sudan [137].  On the available evidence, the Board accepted that the couple and their daughters lived in Sudan between November 2006 and October 2016 and that they traveled by air from Egypt to Sudan despite the inconsistent and changing evidence without cogent explanations [138]-[140].  In this light, the applicants’ claim that they traveled to Sudan by road due to the fact that the Wife’s father worked in the airport in Egypt was entirely falsehood [141].  It therefore found that this deliberate provision of false information was motivated by an attempt to demonstrate that they were in fear of the Wife’s family and this deception had undermined the claim that they were in any subjective fear of the Wife’s family [142]-[145].

19.Further, the Board also identified numerous irregularities and inconsistencies arising from the Wife’s baptism certificate and the couple’s marriage certificate [146]-[147].  It considered the chronology of events in the applicants’ evidence and the documents.  The Board found that it was illogical and implausible for the church to issue the baptism certificate to the Wife documented with a Christian identity which the applicants claimed to obtain long after the alleged baptism as it was not persuaded by the applicants’ explanations when inquired with this irregularity [148]-[151]. Meanwhile, the Board noted that the certificates made no reference to the places where the baptism and the marriage took place [152] and that the baptism certificate bore a wrong date, i.e., a Tuesday, which ought to be on a Sunday [153].  Accordingly, the Board refused to accord any probative weight on these documents.  Besides, the Board also noted that the couple’s evidence was inconsistent as to where they first met [155].

20.Moreover, the Board cast doubt on the documents purporting to support the Wife’s claimed identity as a Muslim [156]-[158] and concluded that it was not satisfied that the Wife was born a Muslim and subsequently converted to Christian.  Instead, the Board found that the Wife’s Christian identity was her birth and true identity [159].

21.Insofar as the claimed threats from different parties, the Board found that the inconsistencies in the evidence about Ahmed rendered their claimed fear of harm from Ahmed unacceptable [161].  Also, the applicants’ late provision of information about Afifi and Dr. Abed, unsupported by any satisfactory explanation of the omission, led the Board to concluded that such information was manufactured [162]- [164].

22.For the above reasons, the Board refused to accept that the applicants would face any risk of harm from the Wife’s family; that they were identified in Sudan by Ahmed or Afifi or any Egyptians; and that, despite the broadcasting of the TV program, nothing raised anything more than a remote prospect of the applicants being identified [165]-[170].  

23.In any event, although the Board accepted that, as Coptic Christians in Egypt, the applicants might face social and official discrimination or harassments, it refused to accept that these would warrant their non-refoulement protections [171]-[176].  Meanwhile, the Board noticed that the applicants made no claims that they had faced any accusations of blasphemy in the past [177].  Overall, the Board found that it was only a remote or speculative risk that the applicants would face the proscribed harm from anti-Christian militant groups but the said harm would be mitigated if they resided in Cairo or Alexandria where they had lived without encountering any problems [178]-[179].

24.As to the claimed risk of harm from the Egyptian authorities, in light of the aforesaid findings about the Wife’s identity, the Board concluded that they would not face any real risk of harm from the Egyptian authorities [180]-[184].

25.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

26.The applicants have filed Form 86 as amended for leave to apply for judicial review of the Board’s Decision.

27.Counsel for the applicants has set out 4 grounds in support of the applicants’ application:

(1)   The Board erred in treating the applicants’ claims as if they were one composite claim without separately considering the personal circumstances of each of the children, in particular given the minor-specific risks were plain and obvious.

(2)   The Board multiply erred in his approach to the assessment of the evidence before him, and/or failing to give any or any adequate reasons for his assessment of and/or conclusion on such evidence.

(3)   Even assuming the Board had been correct on its conclusion that A2 was not a Christian convert (which is denied), the Board failed to consider whether or not A2 would be perceived to be so and hence the consequential risk of harm; and

(4)   The Board failed to give adequate reasons for his ‘findings’ on the relevant country conditions.

DISCUSSION

28.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

29.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

30.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

31.The Court will consider the grounds in accordance with the above legal principles.

32.It should be noted that before the Board, the applicants were represented by Mr Phillip Ross, counsel as Duty Lawyer and Ms Karen Ngai, government counsel represented the Director.

33.Before the discussion of the individual grounds, counsel submitted that the Board had not taken into account the following factors in its assessment of the evidence, in particular, the credibility of the applicants’ evidence:

(1)   why do the applicants leave Egypt for 10 years?

(2)   why did they not wait for the decision of the United Nations High Commissioner for Refugees (“UNHCR”) and left Khartoum, Sudan? and

(3)   the 1^st applicant and the 2^nd applicant had participated in a television programme called “Jesus Set Me Free”, in which they told their story and their problems, therefore, they had exposed their identity to their enemies.

34.In accordance with Re Katini, those questions are not for this Court as I have no jurisdiction to make investigation into the facts of the case myself.  This is the exclusive power of the Board.

35.I therefore asked counsel if those questions were raised before the Board for its consideration.  Counsel’s answer is “No”.

36.The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, Hon Lam (as he then was) and Barma JA held:

“5. Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.”

37.The questions raised above are not the materials, but rather, they are the legal arguments before the Board, which are within the province of the legal representatives.  If Mr Ross did not raise them with the Board, counsel before this Court is not allowed to lay blame on the Board for not answering the questions.  The Board has no positive duty to frame legal arguments for the parties before it.  The Board’s position is neutral.

Ground (1)- Failure to properly and separately consider the children’s own non-refoulement claims

38.It is clear that the Board considered the claims of the applicants, including the children, as a composite claim.  As I see it, this is because Mr Ross did not raise child-specific claims or issues for the Board’s consideration.  The Board, therefore, simply dealt with the evidence and materials before it.

39.Counsel argued that the issue is not whether or not a child claimant was legally represented before Board^[1], but whether or not there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board^[2]. Upon enquiry from the Bench, counsel further submitted that there is a duty on the Board to make investigation into the case for such child-specific issues, irrespective of whether the minor applicants were legally represented.

40.The questions for the discussion of this ground will be on:

(1)   whether this case bears the same main issue with Fabio’s case;

(2)   whether the Board has the duty under the law to make investigation into the facts of the case for minors even if they were legally represented before the Board?

(3)   is the case of Fabio applicable to this case?

41.The Court of Appeal in Fabio’s case was concerned that the children in the case were not legally represented, therefore the child-specific claim, which should be separately considered by the Board, were not brought to the Board’s attention for its consideration.  The following paragraphs of the Court of Appeal’s judgment will illustrate this issue:

“37. In the present case, though a barrister was assigned by the Duty Lawyer Scheme to represent the mother as well as the two children in the presentation of their case to the Director, they had no legal representation at the hearing before the Board on 18 May 2017.

43. On a fair reading of the Board’s Decision, notwithstanding that the Adjudicator did not discuss the case of the children under a separate section, it is clear that she had given due consideration to their claims put forward before the Board. The Adjudicator did not reject their claims simply because she rejected the mother’s claim.

44. It should be noted that in terms of the children’s case on risk of harm as presented in their respective Non-refoulement Claim Form with the assistance of their lawyer before the Director was based on the alleged threat from the first husband of their mother and nothing else.

45. This brings us to the consideration of the lack of legal representation for the children before the Board. In Hong Kong, all non-refoulement claimants have access to legal assistance by the Duty Lawyer Scheme at the first tier assessment of their claims by the Director. Though it has been well settled in Hong Kong that the lack of legal representation for an adult claimant at the second-tier Board hearing is not, per se, a ground for holding that the proceedings were unfair, different considerations apply to cases involving children claimants.

46. Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.

49. When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director.” (emphasis added)

42.The Court of Appeal, in a more recent decision, has further elaborated this issue.  In Siti Naisah Tasya Stephanie, a minor, by her next friend and mother, Siti Naisah v Torture Claims Appeal Board/Non-refoulement Petition Office [2023] HKCA 336, Hon Chu VP and Barma JA, it was held:

“19. As regard the proper approach to a non-refoulement claim of a minor, the relevant principles have been set out in Fabio, supra; and Re Jasvir Singh & others [2021] HKCA 53. …

(1) Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.

(2) When dealing with an application by a non-legally represented minor for leave to apply for judicial review … because of the absence of legal representation.

(3) If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters indicating there may be minor-specific grounds which had not been adequately advanced before the Board due to lack of legal representation, the court should …” (emphasis added)

43.Counsel submitted that even if the minors were legally represented before the Board, the Board still has a duty to make investigation into the child-specific claim.  This is tantamount to suggesting that the Board has a duty of investigation.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were) has rejected this suggestion:

“26. In the court below, the screening process has been described as “inquisitorial” in nature (paragraph 30 of the judgment).  This is not a description used in Prabakar….

27. In my view, the description is at best a shorthand for the high standards of fairness required of the screening process.  It is prone to create unnecessary confusion and arguments.  Its use in the present context should be avoided.”

44.The Court of Appeal further discussed the situation where the applicants were legally represented before the Board and it held:

“52. …the applicant is and was throughout legally represented. If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. …’

45.It is therefore clear that where the applicants were legally represented before the Board, the burden will be on the legal representative and the applicants to produce evidence and proofs to the Board for consideration.  Where the children were legally represented before the Board and the legal representative did not put forth any child-specific claim for the Board, the Board would be quite justified to assume that there were no child-specific claims for its consideration.  If there are evidence or materials that are obvious minor-specific issues, there is simply no reason that the duty lawyer should not bring them to the Board for its consideration.  It will be unreasonable to require the Board to make wild guesses on any other possible child-specific claims under the circumstances as suggested by counsel.  To do so will be asking the Board to fill in any shortcomings of the legal representative.  The Court of Appeal in Re: RS [2013] CACV 206/2012, unrep. Hon Lam, Barma JJA and Macrae J. (as they then were) has clearly rejected this burden on the Board:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

46.The Board was therefore entitled to deal with the applicants’ case on the evidence and submissions by Mr Ross acting on their behalf.

47.To answer the above questions: (1) is no because in this case the applicants were legally represented; (2) is no; and (3) is no.

48.This ground fails.

Ground (2) – Erroneous assessment of evidence

49.Counsel has raised 2 errors on the part of the Board:

(1)   failing to apply all relevant principles when assessing the evidence before him and the parents’ credibility; and

(2)   failing to give any adequate reasons for its conclusion on such assessment.

50.Since counsel has laid heavy burden on the Board to explain the reasons for its finding of the facts and complains that the Board did not consider all evidence in the round or it had failed to give reasons of the findings, it will be convenient to first consider the issue of giving adequate reasons for the Board’s conclusion on its assessment.

51.Counsel relies upon the legal principles in RM v Gerard Paul Muttre, Esq [2016] HKCFI 336 at [34]:

“… the Adjudicator was also required to employ high standards of fairness and the most anxious scrutiny in his fact-finding exercise, and in so doing he should look at all the material evidence, including COI materials, and carry out a proper analysis. The Adjudicator should also provide adequate reasons in his decisions to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant.”

52.This Court, for the reasons below, does not accept the decision of the RM case as generally applicable legal principles for adequate reasons to be given by the Board.

53.The Court of Final Appeal in Oriental Daily Publisher Limited v Commissioner for Television and Entertainment Licensing Authority (1997-98) I HKCFAR 279, 25 November 1998, pages 16-17

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question…. … First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered…. … Secondly, … … why the Tribunal has come to such conclusions…. … Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly. … … Fourthly, where a point of law is raised the point has to be decided… … Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”

54.More aptly on this subject, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004, held:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. … (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

55.The RM judgment did not refer to the Court of Final Appeal cases preceding it and has not discussed why it should not follow the higher authorities’ rulings.  The RM’s approach may be appropriate for the particular case before the learned judge.  However, I consider that the decision should not be generalized as the standard formula for every case or cases of the same kind because of its lack of flexibility to cope with multifaceted and varying situations of the cases.  Mechanical application of this approach will not be conducive to proper analysis of the cases or for the clear understanding of the issues in question.  No doubt, the Court of Final Appeal’s decisions have the overriding authority.

56.This Court will adopt the Court of Final Appeal’s decisions for this case.

57.The above reasons [51] – [56] were given in my previous decisions in NMW v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCFI 3463, [51] to [55].  Before the hearing of that case, I had written to the same firm of solicitors, Messrs Daly & Associates on the above Court of Final Appeal cases.  Whilst it is counsel’s duty to assist the Court with the appropriate and updated legal authorities for the case, Mr Daly should know these cases and should have referred them to counsel for this application.  Again, counsel has not made any submission why this Court should not follow the approach of the Court of Final Appeal.

58.According to the Court of Final Appeal decisions, the Board is not required “to have evaluated each piece of evidence one by one, made clear findings on each of them and, if certain piece of evidence was not accepted, provided adequate reasons.”  See paragraph 63 of the Grounds of Review.

59.Counsel complained that the Board’s rejection of the Wife’s Muslim identity and concluded that the Wife was not born Muslim was a result of its choosing to consider the relatively less relevant and direct document, i.e. the baptism and marriage certificates, to determine whether or not the Wife is a Christian convert without giving weight to other Muslim Identity Documents: the Wife’s birth certificates and marriage certificates issued by the church of Saint Mark, the birth certificate in the Wife’s claimed Muslim identity and the ID card of the Wife’s mother issued in July 2016.

60.Counsel further complained that it is wrong for the Board to attach little or no weight to those documents without giving reasons based upon the available evidence regarding its reliability.

61.It is not in dispute that the Board had taken on board those Muslim Identity Documents adduced at the hearing.  The dispute is that the Board attached little or no weight to them without giving reasons, as complained by counsel, based upon the available evidence regarding its reliability.

62.The Board came to its conclusion as to the fact whether the Wife was born a Muslim and converted to Christianity at paragraph 159:

“After careful and cumulative consideration of the documentation and the claims before it, the Board is not satisfied that the wife was born a Muslim with a Muslim name and converted to Christianity, assuming a new identity in a Christian name. It is the Board’s conclusion instead that the wife’s assumed identity is her identity and her true identity.”

63.The Board’s findings of the facts above are the results of its consideration of the evidence as follows (the references are found in the Board’s Decision):

(1)   as the certificate from the church concerning the Wife’s baptism, the Board does not consider it plausible for a church to include details regarding the Wife that only came into existence after the events of the claimed baptism and marriage respectively [148];

(2)   the applicants were unable to provide any plausible explanation for there being two marriage certificates with different serial numbers [150];

(3)   on the evidence provided the Board retains significant doubts as to the authenticity of the Wife’s baptism documentation and the marriage certificates issued by the church of Saint Mark in Caro [151];

(4)   accordingly, references to the documentation on the letterhead of the Cairn Church of Saint Mark to the Wife’s Muslim identity are not accorded probative weight by the Board [154];

(5)   the Husband and the Wife have provided inconsistent evidence in relation to where they met [155];

(6)   documents provided support of the claim that the Wife was born a Muslim include references to her Muslim name on the birth certificate and marriage certificates issued by the church of Saint Mark, the authenticity of which has not been established and concerning which the Board has considerable doubts [156];

(7)   as to the birth certificate in the Wife’s claimed Muslim identity with English translation, the Board finds itself unable to give this photocopy any probative weight in light of its other findings [158].

64.Before the Board came to those conclusions above, the Board had considered the Wife’s explanations and rejected them.

65.As to counsel’s complaint that the Board, in its assessment of the evidence, it has selected those less significant of important evidence instead of the core evidence, it seems that it is within the province of the Board in its assessment of the evidence.  It is trite that where a tribunal has to make assessment of the evidence in its fact-finding exercise, it has the discretion to make evaluation of the evidence before it and selects such evidence that it considers relevant and reliable and rejects the other evidence which it finds unreliable.  The Court of Appeal in Wong Kin Kwok Michael v The Dental Council of Hong Kong CACV 183/2014, Hon Yuen, Kwan and Chu JJA, 20 May 2015 held:

“23.2 … a fact-finding tribunal is entitled to accept parts of a witness’ [sic] evidence and to reject other parts. …”

66.The wide discretion of the Board in selecting evidence is further demonstrated by Mr Recorder Stewart Wong SC in Leung Wan Kee Shipyard Limited v Dragon Pearl Night Club Restaurant Limited and Chan Siu Tung HCA 1288 of 2010 referring to Mr Mortimer J in All Best Wishes Ltd v Commissioner of Inland Revenue (1992) HKTC 750 at 773:

“A tribunal, which hears oral evidence and considers documents, is not in the position (as is submitted) that it has to find what the witness says is the fact, even if he is not cross-examined, and even if he is not contradicted by other evidence. A tribunal, in those circumstances, may look at the whole of the circumstances presented to it and may find that the oral evidence is not acceptable on particular matters. Or, may find certain facts contrary to the evidence that has been given and, indeed, contrary to what appears in the documents and other material before it.”

67.This Court, as guided by the Court of Appeal in the Kartini’s case, should not interfere with the Board’s discretion in its assessment of the evidence before it.

68.Counsel raised the issue of the TV Programme in Sudan, in which the Wife had told about her story and asked for help for herself and family to an Egyptian professor of Islamic studies.  Counsel argued that the Wife had disclosed her identity and if the children’s faces were not covered in the TV Programme, the risk of them being identified would very likely be significant.  However, the Board’s view was merely that the risk of them being identified would be remote and that, even if they were identified, there was no risk of harm to them.  Counsel submitted that the Board did not provide any or any adequate reasons for his view.

69.The Board’s view is necessarily based upon the evidence before it.  The Board had considered the evidence in the round and finally came to its conclusion with reasons given.  See paragraphs 17-22, supra.

70.There is no evidence that the Board should not have made such view.

71.Counsel then referred to the Arabic interpreter issue before the Board.  Paragraph 69 of the Board’s Decision has stated clearly that the Board, with no objection from the Director, had acceded to the applicants’ request for the previous interpreter at the screening to be the interpreter for the hearing.  For this purpose, the Board had adjourned the hearing to accommodate their request.  The applicants had suffered no prejudice in this arrangement.  It is not open to them to make any complaint.

72.In the Grounds of Review, Counsel challenged the Board’s finding of the facts, referring to the various aspects of the evidence considered by the Board:

(1)   the Board’s reliance on the Parents’ lies in respect of the family travel from Egypt to Sudan in 2006 and 2016 in rejecting their claims [74];

(2)   the Parents’ credibility [80] and the way counsel considers the Board was in error in the assessment of the evidence [81];

(3)    the discrepancies between the Wife’s statement to Justice Centre of Hong Kong and her statement in her NCF and oral evidence before the Board [82] and counsel pointed out that the Board assessed the evidence without taking into account of the presumptions which should give credit to her credibility [83] to [85] and that the Board should not have given weight on the Wife’s change of evidence and the Board should have accepted the Wife’s explanation [86];

(4)   the Wife’s failure to include all details of claim as earliest as possible [87] and it was wrong for the Board not to accept the Wife’s explanation [91]; and

(5)   the Board’s requirement of corroborative evidence in respect of the threat posed by Ahmed, which is contrary to the well-established principle in K v Torture Claims Appeal Board [HKCFI 495 at [23]-[26] citing SS (Iran v Secretary of State of the Home Department [2008] EWCA Civ 310.

73.As stated in paragraph 28, supra, the role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.

74.The submissions above should have been the submissions by Mr Philip Ross, the duty lawyer acting for the applicants, for the Board’s consideration of the evidence.  This Court should not interfere with the Board’s fact finding power.  My analysis below will be confined to whether there has been an error of law or the findings are Wedniesbury unreasonable on the part of the Board.

75.I accept counsel’s submissions, relying upon the UK Guidebook [LA/3/21] at p.48, inter alia, that

“… The impact of lies will depend on their relevance in the context of the claim and you must avoid dismissing as unreliable everything the claimant has said solely because they have lied about one aspect of their claim. Instead you must assess the relevance of lies in the context of the evidence in the round and you must give the claimant a chance to explain any inconsistencies in their account…”

76.I also accept the exposition of lies by the Supreme Court in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 (24 November 2010:

“… … The significance of lies will vary from case to case. In some cases, the AIT [tribunal] may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance.”

77.The Board’s explanation why it placed significance on the Parents’ lies in relation to their travel from Egypt to Sudan can be found in paragraph 141 of the Board’s Decision:

“The Board concludes as a result of the preceding findings that the claim to have left Egypt to Sudan in 2006 by road to avoid the wife’s family who worked in the airport, to have been a deliberate falsehood….”

78.This is an important issue for their claim as one of their reasons in support of their claim is their fear that they will be harmed or killed by the Wife’s family if they return to their country.  The Board should not be criticized for relying on the Parents’ lies for the assessment of their claim.

79.The assessment of the Parents’ credibility of their evidence is within the province of the Board.  The suggestion that the church might have been in error in the issuance of the certificates has no evidential support and is therefore speculative.  The applicants cannot complain that the Board did not make enquiry if such mistakes existed as the burden of proof that the church had made the mistakes is on them.

80.As discussed in paragraphs 65-67, supra, the acceptance or the weight of the evidence in relation of the claim is within the Board’s province and this Court should not interfere with the Board’s discretion.

81.The requirement of corroborative material is not for the proof of the Wife’s case, but rather to rebut the Board’s finding that the evidence was inconsistent and unsatisfactory.  It is only fair for the Board to consider any evidence that is contrary to its initial findings.  There is nothing amiss about this approach.  At paragraph 167 of the Board’s Decision, the Board stated:

“…As noted above, the evidence of the wife concerning threats made by Ahmed to kidnap the children was inconsistent and unsatisfactory. The Appellants have provided no corroborative material to support the claim that Ahmed had seen their story reported on a television program and the Board considers this claim to be far-fetched.”

82.There is no evidence to show that the Board’s decision in relation to the assessment of the evidence is in any way Wednesbury unreasonable.

Ground (3) – Failure to consider A2’s perceived status as a Christian convert

83.Counsel submitted that even assuming that the Board had been correct on its conclusion that the Wife was not a Christian convert, the Board failed to proceed to consider whether or not the Wife would be perceived to be so.  This is on the basis that the TV Programme was published on YouTube and is readily available on the internet.  Anyone can see it on the internet and the Board had failed to consider this.

84.Counsel relied on the case of F v Bevandorlasi es Allampolgararsagi Hivatel [2018] 2 CMLR 31 [LA/3/32].  The Grand Chamber of the European Court of Justice:

“31. ... when the Member States assess whether an applicant has a well-founded fear of being persecuted, it is immaterial whether he actually possesses the characteristic linked to the membership of a particular social group which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecutor.” and

Interviewing Applicants with Religion-based Asylum Claims, November 2022 [LA/3/34] at [1.3.4]:

“When examining asylum claims, the perspective of the persecutor is as important as – or can even be more important than – the perspective of the applicant to determine if religion is the ground for persecution. …”

85.There are three obstacles for counsel’s argument.

86.Firstly, the Board refused to accept that the applicants would face any risk of harm from the Wife’s family; that they were identified in Sudan by Ahmed or Afifi or any Egyptians; and that, despite the broadcasting of the TV Programme, nothing raised anything more than a remote prospect of the applicants being identified.  See paragraph 22, supra.  These are finding of the facts by the Board and the applicants fail to show that the Board had committed error in law or its conclusions are Wednesbury unreasonable.  Against such factual background, it is not open to the applicants to complain that the Board had not considered the perspective of the persecutor as this issue is non-existent.

87.Secondly, there is no evidence on the perspective of the persecutor, which the Board should take into consideration.

88.Thirdly, there is no evidence that the above issues had been raised by Mr Philip Ross to the Board for its consideration.  If Mr Ross did not raise this issue to the Board, there is no obligation on the Board to make investigation and fill in the gap of the applicants’ case.  The Court of Appeal in The Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. (as they then were), held:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

89.If Mr Philip Ross had raised the above issue to the Board and the Board had failed to consider it, it will be an obvious ground in support of the applicants’ application.

Ground (4) – Failing to make sufficient inquiry and/or provide adequate reasons on conclusion on the country conditions

90.Counsel submitted that the Board had only considered the country conditions relevant to Coptic Christian.  He did not consider the situation of Christian convert.  Counsel also argued that even assuming the Board had been correct to say that the Wife was not a Christian convert, the Board failed to explain why the COI before him showed ‘more of societal discrimination rather than acts of persecution’, saying that this was a conclusion, not analysis.  Counsel further submitted that as the applicants had appeared in the TV Programme, their risk would be significantly higher than any other ordinary Christian in Egypt, even if, in respect of the latter, they might only face ‘societal discrimination’.

91.It is only natural that the Board only considered the COI on Coptic Christian, which it found to be the fact, and not the situation of Christian convert, which has become irrelevant for its consideration.

92.The Board agreed with the Director’s submissions that the COI referred to by the Board during the hearing are illustrative more of societal discrimination rather than acts of persecution [173].  The analysis lied in the legal submissions.  Counsel has not brought to this Court’s attention why such legal submissions should not be accepted.

93.The issue of the applicants appearing in the TV Programme has been considered by the Board.  Having considered the evidence, the Board found, at paragraph 170 of the Board’s Decision:

“… However, having carefully viewed the YouTube video of the telephone conversation conducted between Dr. Rohama and the wife, in which she was identified with pseudonym, with several still photographs of the family with the wife’s face blacked out and only some still photographs of the children’s faces without cover, the Board considers that nothing in this publicly available peace raises anything more than a remote prospect of the Appellants being identified. Furthermore, as the Board has found that the wife is not a Christian convert and was rather born a Christian and is therefore not at risk from her family, the Board does not consider there to be any risk to the Appellants in the event that members of the wife’s family were able to identify her in this YouTube video.”

94.The applicants or counsel acting for them may disagree with the Board’s view.  But the reasons given by the Board cannot be regarded as Wednesbury unreasonable. Nor has counsel given any reasons to say that such views are Wednesbury unreasonable. As guided by the Court of Appeal in Katini’s case, this Court should not interfere with the Board’s views.

CONCLUSION

95.In the circumstances, having considered the applicants’ ground individually or cumulatively, I find that there is no realistic prospect of success in their intended application for judicial review of the Board’s Decision.

DISPOSITION

96.I shall make an Order in terms as follows:

(1)   leave be granted to the applicants to amended their Form 86 and to file their affidavits in support of the Amended Form 86 as per the drafts submitted to the Court;

(2)   the applicants’ application for leave to apply for judicial review of the Board’s Decision be dismissed;

(3)   the applicants’ own costs be taxed in accordance with the Legal Aid Regulations, such costs shall exclude any COI before the Deportation Order or deemed to be irrelevant to this application.

.

Dated the 28^th day of June 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