OSMAN AGAMI ABDELMAKSOUD ALI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1732/2018

[2020] HKCFI 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1732 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

(1)  Extension of time for application for leave to apply for judicial review of the decisions respectively dated 3 March 2017 and 20 July 2017 of Torture Claims Appeal Board be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decisions respectively dated 3 March 2017 and 20 July 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

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 was amended by replacing the Director of Immigration (the “Director”) with the Board as proposed respondent.

The applicant

4.  The applicant is an Egyptian national. He came to Hong Kong on 23 July 2007 as a visitor. He overstayed since 22 October 2007. He surrendered to the Immigration Department on 22 October 2007 On 23 January 2008, he lodged his non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by the Security Department of the Egyptian Government as they suspected him to be a spy for Israel.

6.  In 1985, he went to Greece as a visitor. However, he stayed and worked there. He was arrested by police and deported back to Egypt in 1989.

7.  In Egypt, the personnel of the Egyptian Intelligence Services came to his house after mid-night 3 or 4 times. They had weapons and forcibly entered his house. They searched and messed his house. They pushed him onto the wall and on the floor. He had sustained bruises over his body. But he did not receive medical treatment. He considered that someone might have written to the Egyptian authorities and said that he was a spy.

8.  In 1990, he joined the Egyptian military voluntarily and finished his service in 1992. During his military service, he considered that he was treated unfairly by his superior and was assigned heavy duties unnecessarily. He was bullied by his superior on minor mistakes. His superior slapped him and kicked him, causing bruises to his body. His colleagues shunned him. He suspected that his superior thought that he was a spy too.

9.  After military service, he set up his own business of a supermarket and a cheese factory. After his business had run smoothly, the Egyptian Intelligence Services caused the suppliers to supply him with expired products. He had to close down his cheese factory and supermarket in 1997 and 2002 respectively.

10.  After he had closed his businesses, the personnel of the Egyptian Intelligence Services came to his home after mid-night. They had weapons and they messed his house. But they did not harm him or his family members.

11.  He complained to the Headquarters of the Intelligence Services in Cairo. However, they did not take up his complaint. He was planted by the Intelligence Services and was arrested and detained by police inside a crowded cell of the police station for six days. He was bailed out by his brother. He complained to the Headquarters of the Intelligence Services in Cairo again in 1996. This time, he was again arrested and detained inside a police station for six days. He was bailed out by his brother. He decided to leave Egypt for China.

12.  In China, he studied Chinese medicine at Hunan University in Chengzhu for around 6 months. He sought asylum in China. He was dismissed from the university. He sought political asylum at the UNHCR in Beijing. He learned that China would not provide him with asylum. He came to Hong Kong. He claimed that the Egyptian government had tortured him psychologically. He believed that the present President of Egypt is a criminal himself. He suspected his friends to be agents of the Egyptian government.

The Director’s Decisions

13.  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”).

14.  By Notice of Decision dated 1 September 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that there were no substantial grounds to believe that the risk of harm from the Egyptian authorities upon his return to Egypt was real and foreseeable [21, 35, 38 & 42].

15.  By another Notice of Further Decision dated 26 April 2017 (the “Director’s Further Decision”), the Director rejected his claim on BOR 2 risk because he was unable to establish by evidence that he would be subjected to BOR 2 risk if he returned to Egypt. See paragraph 6.

The Board’s Decisions

16.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 19 August 2016.

17.  By the Board’s Decisions respectively dated 3 March 2017 and 20 July 2017, the Board rejected his appeal and confirmed the Director’s Decisions.

18.  In its Decision dated 3 March 2017, the Board considered the applicant’s evidence and made findings below.

a.  There was no medical evidence to support the applicant’s allegation of psychological damage and he had not sought psychiatric treatment [11].

b.  The alleged assaults did not constitute “torture” within the context of the statutory provisions [12 & 13].

c.  Internal relocation was an option open to him [16 – 20].

d.  There was no evidence to show that he suffered severe ill-treatment or that there was a well-found fear that he would be subjected to such harm [25].

e.  There was no evidence that he had suffered injury or serious harm or that he would face future risk of such sufferings [30].

19.  By another Decision dated 20 July 2017, the Board assessed his appeal against the Director’s Further Decision on BOR 2 risk without a hearing. It had taken into consideration those facts found in its Decision dated 3 March 2017 and concluded that the applicant had failed to establish his case under BOR 2 risk.

Application for leave to apply for judicial review

20.  The applicant filed Form 86 on 23 September 2018 for leave to apply for judicial review of the Board’s Decisions.

21.  In his affirmations in support of his application, he had raised the grounds below.

1.  He was uneducated.

2.  He did not have legal representation provided for him before the Board.

3.  The Board made the assumptions without considering the evidence presented by him.

4.  It was wrong for the Board to make the inference that he did not have a case.

DISCUSSION

22.  The applicant’s application is late; the Board’s latest Decision is dated 20 July 2017 and he filed his Form 86 on 23 August 2018. Under Order 53, rule 4(1) of the Rules of the High Court, the application has to be made promptly and in any event within 3 months from the date when the grounds of the application first arose unless the Court extends the time for him to make the application. This Court has to consider the merits of his application in order to determine whether time should be extended for him to make the application. AW v. Director of Immigration and William Lam CACV 63 of 2015.

23.  The Board had considered his evidence and did not challenge his evidence on the alleged facts.

24.  However, the Board applied the relevant statutory provisions and the Convention to the facts and found that the facts did not support the criteria of the statutory provisions and the Convention. Also, the Board considered that he may resort to internal relocation if he returns to Egypt.

25.  In Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22, the Court of Appeal held that the applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. He was represented by duty lawyer when he was interviewed by the immigration officer.

26.  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.”

27.  In Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A., the Court of Appeal held that if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT [32].

28.  Ground (1) is irrelevant. Ground (2) fails in light of the authority above. Grounds (3) and (4) are his opinions without any evidence in support of them.

29.  There is no evidence to show that the Board erred in the application of the laws to his case.

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

CONCLUSION

31.  I therefore refuse to extend time for the applicant to apply for leave for his intended judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

32.  It is further directed that:

a.  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  Liberty to apply.

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