RAGAB FATHELBAB RAGAB ABDALLA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1180/2018

[2021] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1180 OF 2018

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.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 4 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is citizen of Egypt.  He came to Hong Kong as a visitor on 9 December 2016.  He overstayed.  He surrendered to the Immigration Department on 20 December 2016.  By a written signification dated 6 January 2017, he lodged his non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by one of his customers if he returned to Egypt because he was not able to repay him the money due to bankruptcy.  He had a business of cars, spare part and second-hand cars in Egypt.  His customer is called Mahmoud Hassan Ali Hassan Zangir (“Mahmoud”).  In 2016, whilst he was in Hong Kong, Mahmoud came and demanded him to repay HK$59,000 (US$7,500) to him because the applicant had caused him to lose money.  He paid the money.  However, Mahmoud later said that he had not paid the money and demanded him to pay him again.  He had no money to pay him.  Mahmoud filed a suit in Egypt and the court ruled against him in his absence.  The court sentenced him to 6 years’ imprisonment.  Mahmoud continued to press him for payment of the money.  He harassed his sons and wife in Egypt.  His wife filed a divorce petition in Egypt.  Mahmoud had even brought his two brothers to Hong Kong to see him and told him that the Egyptian police had raided his home in Egypt on many occasions.  Details of the incidents are contained in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 29 June 2017 (“the Director’s Decision”), the Director refused his claim for the reason that there were no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by Mahmoud and his associates if he returned to Egypt [11]; that state protection would be available to him [14] and that internal relocation was an option open to him [15].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  He attended the hearing before the Board on 29 January 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out in paragraphs 50-75 of the Board’s Decision. Below is a summary of its findings.

(1)   The applicant’s evidence was inconsistent and confusing and his claim to fear violence or imprisonment should he return to Egypt had no credibility.  The Board did not accept his claim. [47-60]

(2)   For the reason that the Board did not accept that he would be at risk of harm at the hands of Mahmoud or his brothers, the police or the Egyptian government if he returned to Egypt, it rejects his claim on the Torture risk, BOR 2 risk, BOR 3 risk and Prosecution Risk.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 22 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he said that he was not satisfied with the Board’s Decision rejecting his case without taking into consideration the real threat of his life. His opponents would kill him if he returns to his own country.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), 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.”

14.  His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

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