Ismael Ismael Mohamed Shawky Abouelseoud v. Torture Claims Appeal Board
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HCAL 360/2024 [2026] HKCFI 5053 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 360 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 22 February 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 November 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 May 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent, when only the Board should be so named. 4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”. The applicant’s case 6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Egypt, he would be at risk of harm from the Egyptian army and the Egyptian police and his paternal cousins (“the Cousins”). The applicant claimed that he and his brothers had a dispute with their uncle and the Cousins over family property. The applicant claimed that his uncle took the title document of the property in dispute away without their knowing. After the uncle passed away, the Cousins continuously harassed him to force him to give up his entitlement of the property. The applicant claimed that one of the Cousins was an army officer, and the other was a police officer. The applicant’s brothers had all left Egypt. 8.Apart from his fear of the Cousins for the reasons aforesaid, the applicant also claimed to fear harm since his sister was a supporter of the Muslim Brotherhood and that he would be perceived as having association with that society. 9.The applicant also claimed to fear harm from the former husband of his current wife. Oral hearings 10.The applicant requested for an oral hearing of the Leave Application and his case was heard on 20 August 2026. 11.The applicant stated in Form 86 that the Board’s Decision was substantially unfair and he reserved his right to amend his grounds in due course. In his supporting affirmation dated 22 February 2024, the applicant stated that the Board’s Decision was not made correctly and that he would submit additional grounds to support his claim. 12.Before the hearing, the applicant submitted a handwritten letter dated 31 July 2026 stating that he wanted to adjourn the hearing for him to find some supporting documents. The applicant’s request for an adjournment was refused by this court on 5 August 2026. 13.At the oral hearing on 20 August 2026, the applicant said that he had a document with him, which was new evidence written by himself. As the document was written in Arabic, the content of the document was translated by the interpreter to this court at the hearing. The letter was also translated by an interpreter engaged by the Court Language Section after the hearing. 14.When this court asked the applicant whether he would amend his grounds as mentioned in his Form 86, he replied that he had the right to have legal representation. This court then explained to him that he was already represented by a duty lawyer at the initial stage when his case was dealt with by the Director and he could not have free legal representation at all stages. 15.The applicant then said that he had other documents held by his friend and himself outside. This court explained to him that it was not for this court to receive new evidence, but to see if the Board had made any mistakes. 16.When this court asked the applicant whether he had any additional grounds as mentioned in his supporting affirmation, the applicant replied that the new grounds were contained in the handwritten document submitted at the hearing as aforesaid, and he would rely on what were stated therein as his grounds for judicial review. He asked this court to consider this case once again. Grounds for judicial review 17.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 18.As aforesaid, the applicant stated in Form 86 and his supporting affirmation that the Board’s Decision was substantially unfair and not made correctly. 19.In the handwritten document that was submitted to this court at the oral hearing, the applicant mentioned a number of matters that are summarised as follows:-
20.As aforesaid, the applicant confirmed at the oral hearing before this court that he would rely on the grounds stated in the said document as his grounds for judicial review, and did not further elaborate on any of the grounds mentioned therein. 21.The said grounds as summarised above will be discussed in the ensuing paragraphs. Discussion 22.First of all, the applicant said at the oral hearing before this court that he had the right to legal representation. However, the applicant had already been legally represented at the first tier of the screening process by the Director. 23.The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). 24.Thus, the applicant could not ask for free legal representation again at the oral hearing before this court. If he wanted to have his own private lawyer to represent him, it was entirely a matter for him to make his own arrangement, but he did not do so. In any event, he had prepared the said written document in his own language with the grounds as aforesaid. It is clear to this court that the applicant could represent himself without any problem and there was no prejudice to him at all. 25.This court now turns to deal with the 11 Grounds contained in the applicant’s handwritten document as summarised above. 26.Ground (1) was advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), this paragraph can simply be ignored. 27.In Ground (2), the applicant stated that he was unable to contact his family in Egypt to obtain documents since he was in prison. However, this court notes that the applicant had made the same claim that he would submit documents to support his claims when his case was assessed by the Board. The Board noted that the applicant had about 11 months since his entry to Hong Kong until his case was heard by the Board and he had time to obtain documents in support of his case. The Board further allowed the applicant until 10 October 2023, ie 2 weeks after the Board’s hearing, to provide any documents and to comply with the requirements regarding the acceptance of new evidence. However, the applicant did not provide any further supporting documents to the Board up to the time the Board made its decision (see paragraph 56 of the Board’s Decision). 28.Furthermore, even if the applicant can submit further documents to support his non-refoulement claim, it is not for this court to receive such documents and to re-assess his non-refoulement claim. The applicant cannot ask this court to re-consider his case as such. Ground (2) is not arguable. 29.Ground (3) is irrelevant. It is not for this court to decide whether he should be released from prison or detention. 30.Ground (4) is not a ground at all. The applicant’s Habeas Corpus application is unrelated to the Leave Application. 31.It does not appear that the matters listed in Grounds (5), (7), (8), (9), (10) and (11) were presented to the Board for its assessment of the applicant’s claims. 32.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 33.In any event, if the applicant is complaining about the general situation in Egypt, the Board had discussed the general situation of the country in paragraphs 70 and 98 of the Board’s Decision. 34.In gist, the Board noted the significant corruption and human rights problems in Egypt, police corruption and inefficiencies, and that there were security challenges in terms of broader safety issues in parts of Egypt. However, country of origin information (“COI”) also showed that there was a functioning government in place with a functioning judiciary and other government authorities that would be able to provide a reasonable level of state protection to the applicant on the basis of his claims. Furthermore, the Board was of the view that the evidence and information before it did not indicate or suggest that the humanitarian conditions in Egypt were so bad as to render refoulement a violation of the applicant’s right to life. 35.Thus, the problem of corruption, human rights issues and the general situation of the applicant’s country had already been taken into account by the Board. 36.Finally, the applicant’s reiteration of the basis of his claim in Ground (6) as summarised above, namely his fear of the Cousins over family property dispute, cannot assist him at all. His alleged danger from the Cousins had been duly considered but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 37.Thus, none of the matters that were raised by the applicant in his Form 86, supporting affirmation, his handwritten document submitted at the oral hearing and what he said at the oral hearing before this court could amount to any valid grounds for the intended judicial review. 38.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 39.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 40.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 September 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 41.As can be seen from the Board’s Decision, the Board had questioned the applicant extensively at the Board’s hearing in order to understand his case better. All the matters of concern of the applicant, as raised by him in his Non-refoulement Claim Form, the Record of Interview, the Notice of Appeal/Petition and at the Board’s hearing had been fully addressed and considered by the Board. 42.The Board had laid out the credibility issues in the applicant’s claims in paragraphs 78 to 82 of the Board’s Decision, and it is not necessary to repeat the same here. In sum, the Board found the applicant to be an unimpressive witness in relation to his evidence and claims. After considering the totality of the applicant’s claims, his evidence, the materials that he provided and COI material, the Board did not accept that the applicant was a credible witness or his claims were credible. 43.The Board also laid out its material findings of facts in paragraph 83 of the Board’s Decision. In gist, the Board did not accept the applicant’s claims that (a) he feared harm from the Cousins or from members of the Egyptian police or military on the basis of his claims; (b) he could not return to Egypt because he feared harm from the Cousins and the Egyptian police and military on the basis of his claims; (c) he was involved in a dispute with the Cousins about the inheritance of the house property that he had referred to in his claims and that he could not return to Egypt for that reason; (d) he was threatened and detained and assaulted by the Cousins or people who were associated with the Cousins on numerous occasions in relation to the claimed house/property dispute; (e) he was at risk of harm because his sister was claimed to be a supporter of the Muslim Brotherhood and he could not return to Egypt for that reason; (f) he was arrested and charged by the police on numerous occasions in relation to claims that he was involved as a supporter or member of the Muslim Brotherhood; (g) he was at risk of harm from the ex-husband of his wife if he returned to Egypt; (h) his wife and stepdaughters were threatened or harmed by the ex-husband; and (i) his wife was threatened by the Cousins and/or representatives of the Cousins. 44.Essentially, all aspects of the applicant’s claimed fear were rejected by the Board. Thus, the Board concluded that there was no substantial ground to believe that the applicant would face any of the proscribed forms of harm if he was to return to Egypt, and therefore he was not entitled to non-refoulement protection in Hong Kong. 45.Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 46.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 47.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 48.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 49.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 50.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 2026
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 |