ELSHERBINI IHAB TALAAT YOUSSEF v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1707/2018

[2020] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1707 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 1 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 20 December 2019 without prior notice or explanation. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Egyptian national. He came to Hong Kong on 3 November 2016 and was permitted to stay as a visitor until 1 February 2017. He overstayed and surrendered himself to the Immigration Department on 2 February 2017. He lodged his non-refoulement claim by a written representation dated 6 March 2017.

5.  He claimed that if refouled, he would be ill-treated by the Egyptian authorities and be killed by the Muslims there.

6.  He had a family in Egypt. He had two children, but he had divorced his wife. He claimed that he owned a cafeteria in Egypt between 2000 to 2015. He was disappointed with his country because he was arrested from time to time for 30-40 times during the years for various offences, the most usual one being stealing electricity. He was taken to court and charged. His lawyer did not render assistance to him. He was detained and tortured by police officers for no reason. He converted from Muslim to Christianity. He sold his cafeteria and left his country for Hong Kong. He was sent to South Korea from where he was sent back to Hong Kong again. He sought asylum in Hong Kong.

The Director’s Decision

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

a.     risk of torture under Part VIIC 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”).

8.  By Notice of Decision dated 28 July 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that the risk of harm from the Egyptian authorities and Muslims upon his return was likely to materialize [14]; that there was no evidence to show that the state was involved in any of the risks claimed [24] and for the reason that the state was not involved, internal relocation was an option open to him [25]. His claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 22 March 2018.

10.  By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found that it accepted that the applicant might genuinely have the feeling of the risks as he alleged. However, his evidence was vague and lacking details, inconsistent with other facts or with reality that verged upon being nonsensical and that there being no evidence in support of his allegations, it had doubt about his allegations of police harassing him or torturing him, his running of his cafeteria business and his fear that he might be ill-treated for his conversion from Muslim to Christianity.  See §§50-68 of the Board’s Decision.

Application for leave to apply for judicial review

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

13.  In his affidavit in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave to the applicant to apply for 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