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HCAL 2982/2018
[2021] HKCFI 1109
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2982 of 2018
BETWEEN
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Samar Mohamed Ali Hassan Amer |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. On 2/3/2016, the applicant and her children [1] were refused entry to Hong Kong at the Hong Kong International Airport. They lodged a non-refoulement claim.
Background
2. The applicant was born in Zifta Gharbeya, Cairo. She had education for 10 years. She was married with 2 children. She was a housewife while her husband was a van driver.
1st abduction of her husband
3. One night in November 2013, at about 2 a.m., ten men in plainclothes with guns rushed into her home. They claimed to be officers of Homeland Security (HS). She believed them judging from their appearance. They searched her home. They told her that her husband was detained for suspected connection with the Muslim Brotherhood (MB).
4. The next day, she reported to the local police. The officer told her that they could not interfere with the HS. She took her children to her mother’s house and stayed there for the time being.
5. Two months later, her husband returned home. He told her that he was arrested as he walked with someone from the MB on the street. There was no evidence against him. Her husband had bruises over his body and red marks on his face. He was given painkiller and ointment by a doctor. He recovered in a month.
6. According to her husband, he and his friend were pushed onto a vehicle while walking on the street. They were taken to a room. He thought those men were officers from HS. He was beaten with sticks during detention.
7. She did not ask for details as her husband cried a lot. She thought her husband was mistaken being linked to the MB as he wore a long beard like most members of the MB at that time.
2nd abduction of her husband
8. About 4 months later at about 2 a.m., around ten men came and took her husband away. They claimed to be officers of HS. She did not report to the police as they could not do anything.
9. She was frightened. She relocated to Alexandria at the neighbourhood of her relatives. She took her children and furniture with her.
10. About 5 months later, her husband called her. He told her he was tortured. He would not return home. He would stay with his friends for fear of being abducted again. A week later, he met her husband on the street. She gave him some money and clothing.
11. She stayed at Alexandria and worked in a kindergarten for about 1 year. During this time, her mother told her that some people came to the neighbourhood and asked about her family. Her husband also told her on the phone that he stayed with different friends at different parts of Egypt to avoid being located.
Her abduction
12. One night at the end of 2014 at about 4 a.m., some men came to her home. They asked about her husband. They then took her away in hand-cuffs. She was taken to a room and detained. She was interrogated every day. They slapped her. She injured her left eyebrow during the detention.
13. She was released a week later. Her children were safe at home. She had stitches at her left eyebrow by a doctor. She was given ointment for the bruises. She did not report to the police. She intended to resume work at the kindergarten after 3 days. However, the headmistress fired her for the safety of other children there.
14. On the advice of her sister [2], she decided to seek asylum in Hong Kong. She applied for passports for her and her children in December 2015. She finally left Egypt smoothly on 2/2/2016.
15. Her husband supported her plan. He would not go with her for fear of bringing trouble to the family. Her husband last contacted her around September 2016. He told her that he was in constant fear. He had to change residence frequently. He did not disclose his whereabouts.
16. She thought the police would not interfere with the HS. She could not seek help from other authorities. She did not know other channels of complaint. She could not relocate as she had no relative in other cities. The HS would be able to track her down.
The Decision of the Director [3]
17. The Director found that there was no substantial ground for believing that there would be any real risk that she and her children would be harmed or killed by the HS. The Director rejected the claim on the following reasons:
(a) While her husband was abducted twice, there was no evidence that he was connected with the MB. Her husband was released eventually.
(b) She was also abducted and detained for a week. She was released as there was no evidence against her. She was not seriously harmed during the detention.
(c) The men who abducted them were in plainclothes. They had never shown any proof of identities. It was her assertion that they were officers of HS. There was no evidence whatsoever to support her believe.
(d) During her abduction, her children were safe. She could leave the children with her mother. This indicated that her children were not targeted by those men.
(e) Although her left eyebrow was injured during her detention, she was able to resume work 3 days after release. The physical or mental ill-treatment did not amount to ‘a minimum level of severity’.
(f) She and her children were able to leave Egypt smoothly without any problem. They were not targeted by the authorities. The applicant did not try to complain to other authorities. There was no evidence that the government refused to give assistance.
18. The Director had considered various COI. There was abuse of power and brutality problems with the police. There was widespread distrust of their efficiency. Complaints against the police were normally useless. Investigations on abuse of human rights were not fruitful. However, there were practical steps taken by the government to improve effectiveness. Government actions were mainly against high and mid-level leaders of the MB. Low-level members and supporters of MB were not targeted. There was independence and immunity of judges guaranteed by the Constitution. Arrest of an ordinary citizen, who were not in the process of committing a crime, must be supported by a warrant. There was a bail system, legal aid and open trial procedures. There were news reports that the police were held responsible for abuse of human rights. The government maintained effective control of security forces. The government was willing and able to perform their duties and uphold the rule of law. There was reasonable State protection.
19. The Director pointed out that Cairo and Alexandria were reasonable relocation options. The law in Egypt permitted relocation. The applicant was 29 and had worked in a kindergarten. It was not unduly harsh for her to relocate. Despite her husband was the target, he was able to relocate to other places. This showed that the applicant and her children should also be able to relocate. [4]
20. The Director opined that there was no real risk of arbitrary deprivation of life. There was no ill-treatment, physical or mental, which amounted to ‘minimum level of severity’. There was no genuine and substantial risk of ill-treatment to the applicant and her children.
21. There was no risk that she and her children would be at risk of persecution as defined under the Refugee Convention. There was no severe pain and suffering as defined under s. 37U of the Immigration Ord. There was no official involvement, instigation or acquiescence. There was no evidence of targeting by the government nor was there state involvement.[5]
22. The Director rejected the claim of the applicant and her children on 28/10/2016.
The Decision of TCAB
23. The applicant gave evidence during the hearing on 18/10/2017. The TCAB rejected her appeal on 17/11/2017.
24. The adjudicator learnt from various reports that there had been a widespread crackdown on those who supported or perceived to support the MB. There was no targeting of family members. A vast majority detained were men. Only a very small percentage were women. [6]
25. The adjudicator found that the applicant’s story not credible. There were serious inconsistencies and vagueness of her evidence which indicated that she could not genuinely have experienced the events she sought to describe. The factual basis of her claim was not based on her personal experience. The adjudicator gave the following reasons:
(a) Concerning the 1st abduction of her husband, the applicant claimed to the Director that her husband was not linked to the MB. He was mistaken to be linked because he wore a long beard. He was only walking with someone linked to the MB at the time of the arrest. However, in her evidence before the TCAB, she believed her husband was linked to the MB though he did not have a long beard, but he was walking with a person wearing a long beard. If she did not believe having a long beard was the reason of her husband’s arrest, the adjudicator found it very strange that she mentioned that fact to the Director. She could not explain the inconsistency.[7]
(b) The adjudicator observed that the 1st applicant was unable to give basic details about the 1st abduction despite repeated questioning. The adjudicator pointed out that there were ample chances during the hearing for the applicant to recall and to consult her statements.
(c) The applicant told the Director that the police informed her that they would not interfere with the HS. There was nothing they could do. In her evidence before the TCAB, she asserted that she went personally to the headquarters of the HS as there was no information from the police. She had not mentioned this before. She could not explain the inconsistency.
(d) In relation to the 2nd abduction of her husband, the applicant told the TCAB that she contacted the police and the HS. This contradicted her evidence to the Director when she said it was pointless to make any enquiry. She could not explain the difference.
(e) In her evidence before the TCAB, she mentioned that she was abducted at the family home a few months after her husband’s release from the 1st abduction. It was not in Alexandria. She injured herself at the left eyebrow when she was pushed by one of the interrogator. She was not slapped. Her husband was not at home. Whereas she told the Director that she was arrested by the HS at her home in Alexandria after the 2nd abduction of her husband. She could not explain the difference.
(f) The applicant mentioned that after she arrived in Hong Kong, she learned that her husband was in prison. She had initiated divorce proceedings. She did not want to have any connection with her husband and the MB. This was never mentioned before. The applicant could not give any explanation.
(g) It was pointed out to the applicant that the Egyptian government kept records of entries and exits from the country.[8] If she was wanted by the government as she claimed, she would not be able to obtain a passport and left in the normal way. The applicant had no explanation.
(h) Her husband was the principal target of the crackdown. He supported the applicant’s plan to leave. It was strange that he chose to remain in Egypt.
26. The adjudicator found that the applicant was not credible. She failed to establish the factual basis of her claim.
27. The adjudicator rejected the appeal of the applicant and her children. She confirmed the Director’s decision.[9]
Judicial Review
28. The applicant filed the leave application on 27 December 2018 in her name only. She had not pointed out any specific error in the decision of the TCAB.
29. The non-refoulement claim was filed in the name of the applicant and her children. So was the appeal to the TCAB. There is no reason for the applicant to apply for leave to apply for judicial review in her name only. Had it not been that the leave application was out of time, I would have ordered that the names of the children be added to the Form 86 as 2nd and 3rd applicants.[10]
Out of Time Leave Application
30. The applicant was out of time for over 10 months. She should have first sought an extension of time for the leave application. However, she had not done so.
31. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application.[11] The applicant did not apply for leave within 3 months as required under the law. The delay was substantial. She did not provide any explanation for the delay.
32. I agree with the decision of the TCAB. The applicant is not truthful given the inconsistencies in her evidence. In my judgment, there is no error of law and procedure. The decisions of the TCAB is reasonable. There is no merit in the applicant’s intended judicial review.
Conclusion
33. In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave to apply for judicial review. [12]
Dated the 27th day of April 2021.
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 27 April 2021
Samar Mohamed Ali Hassan Amer
Applicant’s ref. no:
Nil. |
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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 27 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5156/16/11/95/E12;
USM 5157/16/11/96/E13; and
USM 5158/16/11/97/E14
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 800/16
(Formerly RBCZ 47/16);
QA T/C 801/16
(Formerly RBCZ 48/16); and
QA T/C 802/16
(Formerly RBCZ 49/16);
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] They should be added to the Form 86 as the 2nd applicant (Elsayed Raafat Elsayed Elsayed Koblan) who was the son born on 19/7/2005 and the 3rd applicant (Nermin Raafat Elsayed Elsayed Koblan) who was the daughter born on 10/4/2012. See paragraph 29 below.
[2] Her sister lived in Hong Kong.
[3] Decision of the Director dated 28/10/2016, §§14—22.
[4] Decision of the Director dated 28/10/2016, §§24—34.
[5] Decision of the Director dated 28/10/2016, §§35—50.
[6] Decision of the TCAB dated 17/11/2017, §§30—32.
[7] Decision of the TCAB dated 17/11/2017, §§33—35.
[8] COI from the UK Home Office.
[9] The adjudicator used the term ‘appellant’ to include ‘all three appellants’ unless the context otherwise required. Decision of the TCAB dated 17/11/2017, §1.
[10] O 15, r.6(2)(b)(I) and r.6(5)
[11] [2020] HKCFA 22, para 37.
[12] The factual basis of the children’s claim is identical with that of the applicant. There is no issue to require that the children’s claim be dealt with separately. Given that the applicant could not establish the factual basis of her claim. The children’s claim would not succeed in any event. Had they been added as 2nd and 3rd applicant, leave would also be refused on the same reasons.
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