Case Document

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HCAL 1268/2022

[2025] HKCFI 3727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1268 OF 2022

BETWEEN
	Gaid Safaa Melad Hennawy	1^st Applicant
	Anton Michael Mohsen Nabih Elkomos	2^nd Applicant
	Elkomos Anton Selvia Mohsen Nabih	3^rd Applicant
	Elkomos Anton Yassa Mohsen Nabih	4^th 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 1^st to 4^th Applicants’ application for leave to apply for

Judicial Review be dismissed.

Observations for the Applicants:

1.The Applicants, a mother and her 3 children, are all nationals of Egypt who arrived in Hong Kong on 8 December 2014 as visitors with permission to remain as such up to 8 March 2015 when they did not depart and instead overstayed, and on the following day of 9 March 2015 they surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if they returned to Egypt they would be harmed or killed by Islamic extremist groups for their Coptic Christian faith, and that the daughter may also be at risk to Female Genital Mutilation (“FGM”) being performed on her. They were subsequently released on recognizance pending the determination of their claim.

2.The mother, 1^st Applicant (“A1”) now aged 50 was born and raised in the city of Sohag, Egypt. After leaving school she worked as a sales representative in an insurance company, and in 1996 married her husband who was a government doctor, and raised a family with their 3 children, ie 2^nd Applicant (“A2”) a son now aged 26, 3^rd Applicant (“A3”) a daughter now aged 27, and 4^th Applicant (“A4”) a son now aged 17, in their home district.

3.All the Applicants as well as A1’s husband are Coptic Christians, and as a family they regularly observed many of the Coptic Christian rituals including daily prayers, fasting and attending church in their home district.

4.In 2007 A1’s husband started to receive threats from some local Muslim families for refusing to perform FGM on their female members at their requests, and on one occasion he was attacked by some men of one of those families with knives that he suffered serious injuries which required hospitalization for a week, and before his assailants left, they threatened to perform FGM on his daughter A3 by force instead.

5.However, greater threats were to come after the 2011 revolution in Egypt when civil disobediences swept across the country that some Islamic extremists groups started to attack Christians and their churches, including in the Applicants’ home district, and so A1 brought their children to hide in her sister’s home in Village Akhmim, but after her sister was attacked by some Muslims on the street, A1 and her children then took shelter in her mother’s place in Sohag, but in 2014 when she received threatening calls from unknown Muslims threatening to harm her and her children for being Coptic Christians, A1 decided it was no longer safe for her family to remain in Egypt, and so on 8 December 2014 she and her children departed for Hong Kong where they subsequently overstayed and raised their non-refoulement claims for protection, for which A1 completed a Non‑refoulement Claim Form (“NCF”) on 13 May 2015 for herself and her children, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 9 March 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 Applicants’ claim and found no substantial grounds for believing that there will be any risk of them being harmed or killed by Muslims and/or the Egyptian authorities upon their return to Egypt due to the low intensity and frequency of past ill-treatment from their perceived enemies, that any such ill-treatment inflicted on any of them as asserted did not attain the minimum level of severity under any of the applicable risks, that in any event in the absence of any official involvement that state or police protection would be available to the Applicants 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 95 million people spread across a vast territory of more than 1 million square kilometers that it would not be unduly harsh for A1 as an able‑bodied adult with working experience to move with her children to other areas of the country away from her home district in large cities such as Cairo where it would be difficult if not impossible for anyone to locate them.

8.On 23 March 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 3 oral hearings on 6 – 8 December 2021 with their lawyer from DLS before the Board composed of 3 Adjudicators during which they gave evidence and answered questions raised of their claims by the Adjudicators for the Board as well as with submission made on their behalves by their lawyer. On 19 August 2022 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicants’ claim of being Coptic Christians or Christians but found their claimed fears not well-founded in view of the short duration or low repetition or intensity of their asserted ill-treatments even if true or real were indicative of a low future risk of harm upon their return to Egypt, that it is not accepted that they will personally face any risk of serious harm in their own circumstances of being Coptic Christians or that A3 will face any real risk of FGM being performed on her or of child-specific issues in relation to A4, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicants upon their return to Egypt as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

10.On 15 November 2022 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just stated that the decision was not fair or correct but without providing any details or particulars or elaboration as to how it was so. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing them in their oral evidence for 3 days of their appeal hearings as well as their answers to questions raised of their claims by 3 Adjudicators and with submission made on their behalves by their lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in their claims even if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Egypt, there is simply no justification to afford any of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claims.

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

Dated the 29^th day of August 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 Applicants on 29 August 2025 Gaid Safaa Melad Hennawy Anton Michael Mohsen Nabih Elkomos Elkomos Anton Selvia Mohsen Nabih Elkomos Anton Yassa Mohsen Nabih Applicants’ 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 29 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6647-6650/17/3/302/305/E29-32 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 448, 453-455/15 (formerly RBCZ 161-164/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)