Case Document

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HCAL 862/2017

[2025] HKCFI 464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 862 OF 2017

BETWEEN
	Balamoun Tamer Wadie Saad	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Egypt who arrived in Hong Kong on 18 April 2016 as a visitor with permission to remain as such up to 17 July 2016 when he did not depart and instead overstayed, and on 18 July 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Egypt he would be harmed or killed by a man known as Tawfiq and/or his family and associates for bringing legal action against him for being involved in a traffic accident that killed the Applicant’s father. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Nag Hammadi, Qena, Egypt. After leaving school he worked as a sales manager to make his living in his home district.

3.One day in early 2013 his father was killed in a traffic accident when he was knocked down by a vehicle driven by Tawfiq without a driving license, and for which the Applicant brought legal action against Tawfiq who was subsequently convicted and was given a sentence of 6 months imprisonment, but from which Tawfiq had gone missing into hiding, and thereafter sent his family members and associates to try to settle the legal action with the Applicant, and when the Applicant refused, Tawfiq’s family then made threats against him.

4.After being attacked by Tawfiq’s family members and associates on several occasions, and in order to avoid such further threats, the Applicant in February 2015 left the country to work in Kuwait before returning to Egypt later in the same year.

5.However, as the threats and attacks from Tawfiq’s family and associates persisted, and after an attack was made against his brother by one of them by the name of Younis, the Applicant felt it was no longer safe to remain in Egypt and so on 17 April 2016 he departed the country 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 5 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 19 May 2017 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 of all the relevant circumstances of the Applicant’s claim and doubted the credibility of the Applicant’s claim of fear of harm from Tawfiq and his family and/or associates as inconsistent and contradictory, that even if the account of his claim were true that the level of risk of harm from Tawfiq and his family or associates upon his return to Egypt is assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private dispute between them only 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”) show 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 1 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Cairo where it would be difficult if not impossible for anyone to locate him.

8.On 1 June 2017 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 22 September 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 October 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of threats and attacks from Tawfiq and family/associates including Younis but no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Egypt as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 9 November 2017 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 or his supporting affirmation of the same date other than some bare and vague assertions of procedural unfairness in his process before the Board and that its decision was Wednesbury unreasonable but without providing any relevant or necessary details or particulars or elaboration to corroborate such assertions, 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 of the Board’s decision.

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

13.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.

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

15.As the Court has recently informed by the Immigration department that the Applicant has since been removed from Hong Kong, and accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Egypt.

Dated the 13^th day of February 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 13 February 2025 Balamoun Tamer Wadie Saad Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 February 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 7312/17/6/318/E52 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 385/17 (formerly RBCZ/13452/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)