Emad Amin Barbary Sedrak and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 13/2023, [2024] HKCA 68

On Appeal From [2023] HKCFI 36

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 13 OF 2023

(ON APPEAL FROM HCAL NO. 2367 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court)  :

Introduction

1.This is an appeal by all 5 applicants against the decision of Deputy High Court Judge To (“Judge”)  on 4 January 2023[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 2 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 21 July 2017 rejecting the applicants’ non-refoulement claim.

Background

2.The 1^st and 2^nd applicants are husband and wife born in 1973 and 1982 respectively, while the 3^rd to 5^th applicants are their children and they were born in 2004, 2006 and 2012 respectively.  All of the applicants were born in Egypt and are nationals of Egypt. 

3.The applicants entered Hong Kong as visitors on 27 July 2016 and were permitted to stay until 25 October 2016.  They did not depart.  On 26 October 2016, they surrendered to the Immigration Department and submitted written claims for non-refoulement.  

4.The 2^nd applicant was the lead applicant in the non-refoulement claim and the other applicants’ claims were dependent on her claim.  The 2^nd applicant’s claim was made on the basis that if she returned to Egypt, she would be harmed or killed by her former husband named Mohamed, Salafi jihadists extremists (“Salafists”), other Islamic extremists or the Government of Egypt, due to her leaving her abusive Muslim husband, her marrying a Christian, her re-conversion from Islam to Christianity and her faith as Coptic Christian.  The factual background of the applicants’ claim was set out at [4] to [10] of the Board’s decision. 

5.By notice of decision dated 21 July 2017, the Director assessed the applicants’ claims in relation to all applicable risks and determined them against all the applicants.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

6.The applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 18 April 2018, during which the 2^nd applicant gave evidence and answered questions from the Board and all the applicants were legally represented by a duty lawyer.  The Board accepted that the 2^nd applicant’s account of her experiences in Egypt had been consistent and that there were attacks and discrimination against Coptic Christians in Egypt.  However, the Board was not willing to attach any credence at all to the 2^nd applicant’s account as her account was strikingly incoherent.  Despite her alleged fear of her former husband and of his pursuit of her, she returned to live in a city where he lived and there was no pursuit of her by him.  Despite her alleged fear of Salafists, there was no pursuit of her by them.  Despite her alleged fear to return to Egypt and of persecution in Egypt, she had returned to Egypt and did not seek asylum in Georgia.  Nor did the 1^st applicant seek asylum in South Korea. 

7.The Board proceeded to consider the risk of harm faced by the 2^nd applicant if she was refouled to Egypt.  It found that she was unlikely to be of any interest to her former husband some 19 years after she left him as there was only one single, coincidental encounter in 2003 and no further encounters thereafter.  Although the Board considered the evidence of particular occasions of violence on Coptic Christians by the state or police in Egypt, it found that the 2^nd applicant had suffered no real problems and no problems at all with the authorities or Salafists. Furthermore, the Board concluded that internal relocation was viable for the 2^nd applicant as she had, with her family, moved to Port Said for two years and returned to Alexandria for 6 years thereafter.  The Board further found that there were no obstacles to relocation to other parts of Egypt as the 2^nd applicant was a fit, young woman, the 1^st applicant had a history of working and entrepreneurship, and the 3^rd to 5^th applicants were healthy children of school age.  

8.In conclusion, the Board held that there was no real risk of harm for the 2^nd applicant in the event of refoulement to Egypt.  By its written decision dated 2 August 2018, the Board dismissed the 2^nd applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.  As the Board noted that the remaining applicants’ claims were dependent on the 2^nd applicant’s claim, the 1^st, 3^rd, 4^th and 5^th applicants’ claims were accordingly dismissed. 

The Judge’s decision in the court below

9.On 2 December 2022, the applicants filed an Amended Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  Their grounds for appeal were that the Board erred in law by failing to conduct a child-specific assessment of the risks of harm for the children, by relying on outdated COI and by failing to properly consider domestic violence in light of the social political context. In the accompanying affirmation, the 1^st applicant stated that the Board’s decision was made unfairly and annexed the Board’s decision.

10.On 19 December 2022, the 1^st applicant faxed a letter to the Court of First Instance seeking an urgent adjournment due to their pending applications for legal aid made on 6 December 2022.  The oral hearing was held on 20 December 2022, the Judge considered the applicants’ application for adjournment and refused it.  The Judge proceeded to hear the leave applications.  The applicants raised three grounds, namely, that the Board erred in law by failing to consider a child-specific assessment of the risk of harm to the children, that the Board erred by relying on outdated COI, and that the Board erred by failing to properly consider domestic violence in the light of the social and political context.  On 4 January 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [36], [39] to [40], and [45] to [48] of the Form CALL-1 as follows:

“36. The Court has patiently attempted to adduce from Nasrallah the specific case of her children, the psychological harm which they suffered and their special circumstances which she alleged had not been considered by the Board. She said her former Muslim husband and all Muslim community felt justified to take their lives because she had been converted from Christian faith to Muslim and then reconverted from Muslim back to Christian faith. Her children had to move from place to place and could not settle down in one school. She said one of her children suffered psychological harm caused by the traumatic experience but could not give any particulars of that experience and harm. Indeed, Nasrallah agreed that she and her children were unharmed because she was able to escape from harm and to keep hiding. She also agreed that the children’s risk is inseparable from the risk she is facing.

…

39. The 1^st and 2^nd Applicants never put forward a separate or specific case for the children.  They never advanced any particular circumstances in respect of the children.  They never complained that their children suffered a mental or psychological condition.  It is not open to them to now allege that the Board failed to conduct a child-specific assessment of [the] children’s cases having regard to their individual circumstances.  Even now, it is not clear what are “their individual circumstances” which the Board failed to give regard to and what are “the potential negative impacts on their mental health” which they are now alleging.  While relying on the importance of psychological harm mentioned in the UNHCR’s Guidelines, no particular psychological harm has been asserted in the non-refoulement claim form.  The only finding the Board could make was its observation at paragraph 45 that the “children are of school age and healthy” and “there are no obstacles to their relocation to another part of Egypt”.  Emad and Nasrallah had not presented any case which is specific to their children.  The Board’s duty of joint endeavour does not require the Board to find or make out a case which the Applicants never asserted.  There is nothing in the evidence to suggest that the children will be subject to psychological harm on their return to Egypt.

40. The Applicants’ claims before the Director and their subsequent appeal before the Board were founded on incidents which happened to Nasrallah and her fear of harm, so much so that Nasrallah was labelled by the Board as the lead applicant.  Emad had not advanced any grounds of claim based on incidents happening to him.  Neither had the children.  Emad and the children had never claimed they had problems with Salafi Jihadists or other Islamic extremists or for being Coptic Christians.  They had no problems living in Alexandria where Nasrallah’s former Muslim husband lives or anywhere else in Egypt.  Their appeal failed because Nasrallah, on whose evidence the 1^st Applicant and his children relied, was disbelieved. Nasrallah failed to prove the factual basis of her or her family’s case for protection.  As mentioned above, the Board took a step further and assessed Nasrallah’s claims on the basis of the facts as she asserted.  Despite that, the Board could not be satisfied that she would face any risk upon her return to Egypt.  Accordingly, it found that Nasrallah and her family failed to establish any well-founded fear from any of the proscribed risks of harm upon their return.  Based on authoritative and credible COI, the Board was also satisfied that adequate state protection and internal relocation are available to reduce or avoid the risk (This finding is unnecessary because of the absence of any real risk of proscribed harm).  Hence, it dismissed the Applicants’ appeal.  Thus, the children’s claims also failed.  These are finding of facts solely within the province of the Board which the Court in a judicial review will not interfere save for errors of law, procedural unfairness or irrationality in the Decision.  No such vitiating elements had been identified. There is no substance in this ground.

…

45. As mentioned above, most of the COI mentioned by the Applicants are in fact unfavourable to the Applicants. Even if the Board had failed to consider them, it would not be prejudicial to the Applicants.  As the COI had been mentioned in the Notice, the probability is that they had also been duly considered by the Board, though not quoted by the Board obviously because they would not assist the Applicants’ case.  In fact, the four COI relied on by the Applicants added nothing new to the COI quoted by the Board.  The situation for Coptic Christians in Egypt is unfavourable.  They, women in particular, are subject to some risk of persecution and discrimination in some heavily Muslim dominated community.  However, even a 10% minority for Coptic Christians is safe in big cities such as Cairo.  The Board accepted that converts to Coptic Christianity like Nasrallah is a vulnerable category.  The more recent COI, particularly those relied on by the Applicants, show some improvements in the situation.  The COI provided conflicting information.  Relevance and weight to be attached to a piece of COI is a question of fact for the Board.

46. It was with the above legal principles, the available COI and the above authorities in mind that the Board embarked on its fact finding process.  It found for reasons as given in the Decision and as summarised in paragraphs 21 to 28 above that the case as advanced by Nasrallah is incredible.  Not only that, it found even on the case as she asserted Nasrallah and her family failed to establish any well-founded fear from any of the proscribed risks of harm upon their return to Egypt and that internal relocation is available to avoid the risk of harm.  All these are finding of facts which is open to the Board to find on the evidence before it.  Having regard to the considerations given by the Board to the authorities and COI available before it, the Court considered the Board’s handling of the COI is wholly un-reproachable.  It cannot be said that the Board has failed its duty of joint endeavour or breached the high standard of fairness required of it or that its Decision is reached unfairly or is Wednesbury unreasonable.

47. Nasrallah emphasised her position as a Christian who had been converted to Muslim and then reconverted back to Christian faith is fatal as the Muslim community felt justified to take her life and those of her children’s.  Both Emad and Nasrallah said that this is a fact of life but admitted that this allegation is not supported by any COI.  The existence of this risk was accepted by the Board: see paragraph 43.  However, the Board found as a matter of law, this risk as such does not mean such converts are at a general risk of persecution or ill-treatment as to entitle them to protection.  Whether they are entitled to protection depends on the facts of the particular case.  Ultimately, this is a question of fact for the tribunal. Putting a flavor of domestic violence in a social and political context as asserted by the Applicants to the case cannot change the Board’s finding on credibility.  Basically, the Board found for good reasons, which this Court may not intervene, that Nasrallah is incredible and did not accept her evidence.  This ground is in substance a complaint against the finding of fact by the Board which is outside the realm of judicial review.  There is no substance in this ground of application.

48. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  There is no substance in the Applicants’ grounds of application.  Their claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.”

Appeal to this Court

11.On 17 January 2023, the applicants filed their Notice of Appeal against the Judge’s decision.  One stated ground of appeal was that the Judge erred in not finding any separate basis for the children’s claims and not finding the children would be subject to risk of harm if refouled.  Another ground of appeal was a statement that the applicants allegedly raised information and facts about their children facing unique and separate risk of harm based on their Coptic Christian faith and unique vulnerability as children in the hearing bundle before the Board. 

12.As the applicants had failed to comply with the court order to lodge written submissions by 16 November 2023, the hearing scheduled for 14 December 2023 was vacated.  By letter dated 9 December 2023 and received by the Court on 11 December 2023, the 1^st applicant, on his own behalf and on behalf of the remaining applicants, requested for a hearing to be held for their appeals.  As the interests of minors were involved, the Court reinstated the hearing scheduled on 14 December 2023. 

13.The 1^st applicant, on his own behalf and on behalf of the remaining applicants, lodged written submissions on 12 December 2023.  Those submissions referred to the Board’s failure to consider COI adduced by the applicants and the Board’s error in concluding that the 2^nd applicant had suffered no real risk of harm in light of domestic violence by her first husband. 

14.At the hearing, the 2^nd and 3^rd applicants made oral submissions on behalf of themselves and the other applicants.  The 2^nd applicant said that the Judge did not consider the case of the children and he was unable to understand her explanation of the whole situation.  The 2^nd applicant said that her youngest child was 11½ years old, her son was in the 5^th form and her eldest daughter (19 years old)  was studying in college.  They grew up in Hong Kong and would not be able to adjust to living in Egypt.  It was not possible for her to keep them safe there.

15.The 3^rd applicant (eldest daughter)  asked for an adjournment for them to lodge full written submissions with supporting documents.  She said that the Egyptian Government would provide no help to Christians.  The family had applied to emigrate to Canada.  Their goal was not to stay in Hong Kong but to wait for the result of the application.

16.After hearing the submissions, the Court declined to grant the adjournment but allowed the applicants to lodge additional written submissions by 29 December 2023.  However, no further submissions have been lodged by the applicants.

17.In the premises, we shall determine the appeals on the basis of the available documents, materials and oral submissions by the 2^nd and 3^rd applicants.

Discussion

The 1^st and 2^nd Applicants’ appeals

18.In assessing the merits of the appeals, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

19.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not find the 2^nd applicant’s claim to be credible at all.  It found the 2^nd applicant’s account to be striking in its incoherence, due to the inconsistencies between her actions and her alleged fears as mentioned in [6] above.  The Board had carefully analysed relevant COI in its decision.  In its assessment of the 2^nd applicant’s risk of harm, the Board also found that the actors of potential harm were private individuals, namely, her former husband and the Salafists, and that she never suffered any serious form of attack by her former husband or the Salafists.  In any event, it found that state protection and internal relocation were viable options in light of the available evidence.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. 

20.Equally, the 2^nd applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  As the 2^nd applicant is the lead applicant and the remaining applicants’ claims would be dependent on hers, it would accordingly follow that the 1^st and 2^nd applicants have not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision either.  We are not satisfied that there is any error in the Judge’s decision.

The 3^rd to 5^th Applicants’ appeals

21.The 3^rd to 5^th applicants were aged 13, 12 and 6 at the time of the Board’s decision, and now aged 19, 17 and 11.  Although the 3^rd applicant (born on 2 November 2004)  is no longer a minor, for the purpose of her appeal she is in the same category as the 4^th and 5^th applicants by reason of her age at the time of the hearing before the Board: see Singh Santokh v Torture Claims Appeal Board [2022] HKCA 1479 at [15].

22.The proper approach to non-refoulement claims of children such as the 3^rd to 5^th applicants in this case has been considered by this court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & others [2021] HKCA 53.  We shall not repeat everything that has been said in those cases.  Suffice it for present purposes to note that, first, 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.  Ill treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.[6]

23.Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[7]

24.In this case, the 3^rd to 5^th applicants’ claims were considered by the Board at the same hearing as the 1^st and 2^nd applicants’ appeals.  It is important to note that all the applicants were legally represented at the hearing.  From its decision, it is clear that the Board had examined the position of the 3^rd to 5^th applicants themselves by acknowledging that their claims would be dependent on the 2^nd applicant’s claim and by considering the schooling age and health of the children.  It would appear that no specific risks or harm to the children were raised at the hearing or in writing prior to the hearing on their behalf.  In the absence of any special features or circumstances specific to the children and in light of the failure to establish the 2^nd applicant’s claim for risk of harm on any of the applicable grounds, the Board accordingly found no basis for any real risks to be faced by the 3^rd to 5^th applicants. 

25.From the available materials, from the Judge’s attempt to elicit information in relation to any specific harm to the children and from the submissions made in this appeal, we do not find that there are any circumstances specific to the 3^rd to 5^th applicants as minors or any level of harm that would constitute minor-specific non-refoulement grounds.  

26.Like the Judge whose analysis relating to the 3^rd to 5^th applicants is set out in [36], [39] to [40] of his decision quoted above, with which we agree, we do not find any procedural unfairness in the proceedings before the Board.

27.Accordingly, there is no reason to think that the 3^rd to 5^th applicants could raise any reasonably arguable ground for judicial review of the Board’s decision against them.  In the case of the 4^th and 5^th applicant who are mirrors, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss their appeals, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that they have not acted by a next friend acting by a solicitor)  as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

28.For the above reasons, the applicants’ appeals are dismissed.

The 1^st to 3^rd Applicants, unrepresented, appeared in person

The 4^th and 5^th Applicants, unrepresented, absent