EMAD AMIN BARBARY SEDRAK AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2367/2018

[2023] HKCFI 36

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2367 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 submissions by the 1st and 2nd Applicants in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 for leave to apply for judicial review (“leave application”) of the decision of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (the “Board”) dated 2 August 2018 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 July 2017 (the “Notice”).  Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director.

2.  Initially, the 1^st Applicant (“Emad”) was the sole applicant in the Form 86.  He is the father of a family of five, comprising of his wife, i.e. the 2^nd Applicant (“Nasrallah”), and their three children, the 3^rd to 5^th Applicants.  On 4 January 2022, Deputy High Court Judge (“DHCJ”) P Li directed Emad to seek legal aid or obtain representation for his three children by a firm of solicitors in order to have the issues related to his three minor children considered[1].  His application was adjourned to 4 April 2022 to enable him to appear with legal representation.  Emad delayed applying for legal aid until 4 April 2022.  He made the application on behalf of the 3^rd to 5^th Applicants.  The application was rejected by the Director of Legal Aid on 6 June 2022. 

3.  Despite notice of two hearings on 25 August and 8 September had been posted to Emad at his stated address, he did not attend the hearing.  His application was considered by this Court on paper.  After the notice of handing down of the Form Call-1 was posted to his same address on 30 September 2022, Emad responded claiming he had never received the two notices of hearing and requested another hearing.  The double coincidence is hardly credible.  But out of abundance of caution and indulgence, the issue of Form Call-1 was withheld and a third hearing was scheduled for the Applicants.  On 22 November 2022, DHCJ Bruno Chan granted leave for the other four applicants herein to be joined and for an amended Form 86 to be filed to include their case and grounds for application; and adjourned the hearing to December 2022.  The amended Form 86 and a written submission which repeated the contents in the amended Form 86 were filed on 2 December 2022.    

Application to stay

4.  At 4:22 pm on the date before the hearing for 20 December 2022, Emad faxed a letter to the Court seeking an urgent adjournment because the Applicants had made an application for legal aid on 6 December 2022 and the application is still pending.  He was verbally informed by the Court clerk to make his application in open court on the day of hearing.

5.  Emad and Nasrallah appeared in person at the hearing representing themselves and their three children, i.e. the 3^rd to 5^th Applicants.  They renewed their application for adjournment.  Their grounds are that the Applicants need legal representation but do not have the means to do so.  Emad accounted for the delay by asserting that they could only obtain some assistance from a non-governmental organization to prepare the amended Form 86 which took him a lot of time.  

6.  Completing the amended Form 86 and applying for legal aid are separate matters.  There was no need for them to be proceeded in that sequence.  Emad had been advised as early as 4 January 2022 to seek legal representation and to apply for legal aid for himself and his children.  His application for legal aid had been rejected.  He did not appeal against that decision.  Instead, he waited until 6 December 2022, two weeks before the hearing, to make a fresh legal aid application; and then sought an adjournment by letter on the late afternoon of the day before the hearing.  He explained that he had never received notice of refusal of his first legal aid application. He said he did not follow up with his application any earlier because he thought he had to wait for three months before chasing the Legal Aid Department and that it was only until December 2022 (which should be 22 November 2022) that he was informed that the present leave application will be heard and he made the application immediately.  This explanation is yet the third coincidence of non-delivery which cast serious doubt on its credibility.  But even on that account, it is a lame excuse for he never followed up with his application despite six months (not three months) had lapsed. 

7.  He had previous experience about the application procedure and the time it would take for processing.  His alleged non-delivery of the notice of hearing and notice of refusal of his legal aid application are incredible.  His delay in making the first legal aid application until the date of the hearing on 4 April 2022 and the delay in making this second legal aid application invite suspicion as to his motive.  His conduct carries the hallmark of a deliberate delay.  It was calculated to delay the hearing which he had already delayed for a year since DHCJ P Li’s direction requiring him to seek legal representation.  He could advance no evidence of change in circumstances to support a successful legal aid application. Granting him a legal aid stay would serve no purpose other than causing further delay and encouraging others to do the same.  His application for adjournment is a clear abuse of legal process. 

8.  Next, the Applicants produced a letter dated 10 August 2022 from Immigration Canada as evidence of their application for permanent residence in Canada which is under consideration. They submitted that they need the adjournment in order to give them time to obtain approval for immigration by the Canadian authorities.  They are concerned that they would be returned to Egypt before their application would be approved by the Canadian authorities and then their lives would be in danger.  This concern is perhaps the real motive of their deliberate delay of the proceedings.  If they need time, they should apply to the Director setting out in good faith their reasons and belief in their prospect in their application with the Canadian authorities.  They should not have invoked the judicial review process and delay that process by their legal aid application and legal aid stay thereby wasting the host country’s legal and judicial resources and public funds with their abuse of legal process.  Their concern is understandable, but their conduct is clear abuse of the legal process and the non-refoulement proceedings, which should not be tolerated.  As the matter now stands, the question is whether the Decision is reviewable by judicial process.  This is a good reason that the leave application should proceed.

9.  Whatever the outcome of this hearing, the inevitable consequence of the delay will be prejudicial to the ultimate interest and welfare of their children.  If they have to be returned to Egypt, it will be in their best interest to be returned earlier than later.

10.  Furthermore, if their legal aid application were successful but the adjournment was wrongly refused and resulted in an adverse decision against the Applicants, they will surely be granted legal aid to appeal and to put right any wrong caused by the refusal. Accordingly, the application for adjournment is refused and the Court proceeded to hear the leave application. 

Background

11.  In their non-refoulement claims before the Director and their appeal before the Board, the Applicants’ family claimed as one entity with Emad and Nasrallah as the 1^st and 2^nd Claimants / Appellants respectively and their children as the 3^rd to 5^th Claimants / Appellants.  Nasrallah was identified as the lead applicant and the remaining Applicants’ claims are dependent on hers.

12.  The Applicants are Egyptian nationals.  They entered Hong Kong on 27 July 2016 as visitors and were permitted to remain until 25 October 2016.  They surrendered to the Immigration Department on 26 October 2016 and raised non-refoulement claims. 

13.  In due course, their non-refoulement claims were assessed under all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By a Notice of Decision dated 21 July 2017, the Director rejected their claims under all four applicable grounds.  They appealed to the Board the decision of the Director in the Notice.  Their appeal was dismissed by the Board on 2 August 2018.  They now seek leave to apply for judicial review against that Decision.

The Applicants’ case

14.  The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms prepared by Emad and Nasrallah with legal assistance and the record of their screening interview in the presence of their lawyer.  In gist, the Applicants claimed that they would be harmed by Nasrallah’s former Muslim husband (“Mohamed”) and his people, the Salafi movement/Salafi Jihadists, other Muslim extremists and the Egyptian government because of Nasrallah’s reconversion from Islam to Christianity, leaving her Muslim husband to marry the 1^st Applicant who is a Christian, and their faith as a Coptic Christians.

15.  Emad was born in Alexandria, Egypt.  He received 12 years of formal education and has 21 years of working experience in Egypt in an import and export company and in his own IT company.  He has also worked as a casual worker in South Korea for two years.  He married Nasrallah on 12 January 2003.  They have three children, all born in Egypt.  All members of his family were born and registered as Coptic Christians.  Nasrallah converted to Islam in around 1998/1999 but she re-converted to Christianity since early 2000.

16.  The Applicants mostly relied on incidents which happened to Nasrallah for their non-refoulement claims.  Nasrallah was born in a Christian family in Egypt.  In around 1997, while she was studying in high school in Alexandria, her father forced her to marry her cousin.  She refused and fled to the home of her Muslim classmate, Sahar.  She fell in love with Sahar’s brother, Mohamed. She was converted to Islam and married Mohamed on the same day.  After the wedding, Mohamed began to abuse and assault her.

17.  In around 1999, Nasrallah managed to flee from Mohamed’s family. She stayed with her childhood friend Mariam who introduced her to a Christian priest, Fr Maiez.  Fr Maiez tried to arrange her reconciliation with her father, but her father refused.  At the suggestion of Fr Maiez, Nasrallah agreed to reconvert back to Christianity and to marry Emad who was a Christian and the maintenance worker in Fr Maiez’s church.  Then, Nasrallah took refuge in a Coptic Orthodox Monastery in Cairo for three years to restore her Christian faith.  After her reconvertion, she reconciled with her father and married Emad on 12 January 2003.

18.  Approximately three months after the wedding (i.e. about April 2003), Emad and Nasrallah ran into Mohamed in a market in Al Montazah area in Alexandria.  Mohamed tried to grab Nasrallah, claiming that she was still his wife and a Muslim; and vowed to take her back.  Emad and Nasrallah managed to escape.

19.  Emad and Nasrallah fled to Port Said on the same day where they lived for two odd years.  Then, around November 2005, Nasrallah saw Sahar in Port Said.  Thereafter, she claimed that some strangers asked her neighbours about a woman from Alexandria with the same name as her Muslim name who had run away from her husband.

20.  A few days later, Emad and his family moved from Port Said to his mother’s home in a remote area in Alexandria.  After staying with his mother for three months, they moved to Al Mansoura in Alexandria and opened an IT shop there.  Towards the end of 2012, Emad and Nasrallah went into an imam who had taught Nasrallah Islam in the past.  The imam argued with them and vowed to bring Nasrallah back to Mohamed and Islam.  Nasrallah took fright and moved to her aunt’s home in Alexandria.

21.  Emad and Nasrallah believed there was nowhere for them to hide in Egypt from the Muslim community.  They fled to Georgia in late 2013 with their children.  They could not file any claim with the local UNHCR because the staff there told them there were too many cases.  They could not find employment and returned to Alexandria.  Then Emad flew to South Korea on 30 November 2013 to find work, while Nasrallah and their children continued to stay with the 1^st Applicant’s mother in Alexandria.

22.  In around 2015, Emad returned to Egypt from South Korea.  Seven months later, they came to Hong Kong.  They did not raise their claims for protection immediately upon arrival because they did not know about this protection.

23.  The Applicants claimed that they were at risk from Mohamed’s family because the latter were powerful.  They would also be targeted by Islamic extremists because Nasrallah had reconverted from Islam to Christianity.  They claimed that there was a webpage organized by the Muslim community of Alexandria about those who had renounced Islam.  Nasrallah is afraid that she will be killed upon her return because some Muslims may feel justified in taking her life for having left her former Muslim husband and Islam.  They did not believe state protection would be available, as many Christians in similar situation as Nasrallah had been killed.  They did not believe the Egyptian government was interested in protecting the Christian community.  They also believed internal relocation was not viable because they had no place to hide and there are Muslim communities all over Egypt.   They had to hide from Mohamed’s family and the children could not go to school.

The finding of the Board

24.  The Applicants’ claims are based on Nasrallah’s fear of harm and death.  The Board considered the case advanced by Nasrallah on her own behalf and on behalf of her family incredible.  It noted that Nasrallah only encountered her former Muslim husband by coincidence once and there is no evidence that he pursued her since she left him 19 years ago.  Nasrallah’s account rests on a series of coincidences of her encountering her former Muslim husband, Sahar and the imam who had converted her to Islam and met her 13 years later.  The Board found “this series of coincidences stretches the credulity of the Board, even giving her the benefit of the doubt”.  The Board found not a scintilla of evidence that Salafists in Egypt knew of Nasrallah or cared about her reconversion from Islam to Christianity.  On her own evidence, neither she nor her family encountered any problems with Salafists during the years she was in Egypt after leaving her former Muslim husband.

25.  The Board noted that Nasrallah moved even closer to, not further away from, her former Muslim husband’s family in Alexandria after allegedly encountering his sister Sahar in Port Said by chance; and again when she returned from Georgia.  Such conduct is inconsistent with her fear of harm from her former Muslim husband.

26.  The Board also observed that Nasrallah had not lodged any claim for protection in Georgia and neither had Emad in South Korea.  Their family were able to live peacefully in Alexandria after the 1^st Applicant returned from South Korea and there would have been no reason for them to suddenly decide to move to Hong Kong.  All of the above cast doubts on the credibility of the case advanced by Nasrallah.

27.  Further, even on Nasrallah’s own account, she was able to live peacefully in Alexandria for eight to nine years.  Her encounter with the imam outside a mosque showed that she did not have to stay hidden with her family, as she alleged.  There was no evidence of any serious action taken by her former Muslim husband’s family to forcefully take her or harm her.  By her account, the Salafists had done nothing to her.  It was also doubtful whether her former Muslim husband would still be interested in pursuing her after some 19 years since she had left him.  Even if her account was accepted, the Board did not believe she faced any risk upon her return to Egypt.  Accordingly, the Board concluded that Nasrallah and her family failed to establish any well-founded fear from any of the proscribed risks of harm upon their return.

28.  The Board also considered the issues of state protection and internal relocation.  The Board accepted that minority Coptic Christians had unfortunately been the victims of unjustified attacks and there were reports of them being shot at by the army[6] and the police[7].  Some Country of Origin Information (“COI”) reports suggest that the Egyptian government failed to provide adequate protection to Christians.  But there are reports which suggested the contrary.

29.  Notwithstanding the above, the Board held as a matter of law that a person cannot succeed in claiming non-refoulement protection simply by being a Coptic Christian.  As the Board found that the alleged threats to Nasrallah and her family were not credible, there was nothing to suggest that they needed protection by the state upon their return[8].

30.  The Board also found that internal relocation would be viable.  Emad had a history of working experience and entrepreneurship.   Nasrallah is a healthy adult.  Their children are of school age and healthy.  They were able to live peacefully in Alexandria for eight to nine years.  All these suggest they could safely relocate to other parts of Egypt.

31.  For all these reasons, the Board dismissed the Applicants’ appeal.

Legal principles applicable to judicial review

32.  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[9].

The Applicants’ grounds for judicial review

33.  In his supporting affirmation dated 26 October 2018, Emad complained that the “decision maker made my decision unfairly and unlikely approach only COI information”.  In substance, he complained about procedural unfairness, particularly in the Board’s handling of COI, but he gave no particulars.  In his amended Form 86 and written submission, he advanced three specific grounds which repeated the above complaints with some particulars, namely:

(1)   the Board erred in law by failing to consider a child-specific assessment of the risk of harm to the children;

(2)   the Board erred by relying on outdated COI; and

(3)   the Board erred by failing to properly consider domestic violence in the light of the social and political context.

These grounds will be explored in depth particularly in the light of the usual challenges raised in a judicial review, namely, error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Ground (1) – child-specific assessment of risk

34.  The thrust of the Applicants’ complaint is that the Board “failed to conduct a child-specific assessment of [the] children’s cases having regard to their individual circumstances”; and in particular “how removal from Hong Kong would affect them as children, especially the potential negative impacts on their mental health.”  They complained that the Board treated the children’s claim as inseparable from Emad’s and Nasrallah’s without considering their personal situations.  There was a complete lack of analysis of the children’s personal circumstances or the possible effect their return would have on the children.  They said that the only references made to the children was at paragraph 45 of the Decision where the Board stated “Her children are of school age and are heathy.  There are no obstacles to their relocation to another part of Egypt.”

35.  They quoted the oft cited legal principle in Fabio and others v Evan Ruth Esq and others[10] that non-refoulement claims of children must be given specific and individual consideration separate from the claims of their parents and that the Board must consider the individual circumstances of the child when assessing their risk of harm.  They also quoted UNHCR’s Guidelines on International Protection: Child Asylum Claims under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees.  The Guidelines remind those assessing the risk of harm to children to be alive to psychological harm and the fact that children are more likely to be distressed by hostile situations.  The Court has no quarrel with these legal principles.  They are well established and are entirely correct.  The only questions are: (1) what is the children’s case; and (2) has the Board failed to conduct a proper assessment specific to that children’s case? 

36.  The Court has patiently attempted to adduce from Nasrallah the specific case of her children, the psychological harm which they suffered and their special circumstances which she alleged had not been considered by the Board.  She said her former Muslim husband and all Muslim community felt justified to take their lives because she had been converted from Christian faith to Muslim and then reconverted from Muslim back to Christian faith.  Her children had to move from place to place and could not settle down in one school.  She said one of her children suffered psychological harm caused by the traumatic experience but could not give any particulars of that experience and harm.  Indeed, Nasrallah agreed that she and her children were unharmed because she was able to escape from harm and to keep hiding.  She also agreed that the children’s risk is inseparable from the risk she is facing. 

37.  Nasrallah said she had put down her children’s case and everything in her non-refoulement claim form.  The Court has carefully examined Nasrallah’s 38-page non-refoulement claim form.  Nowhere in that form has Nasrallah presented any case specific to the children or any one of them.  Likewise, the Court cannot find any child-specific case presented on behalf of the children in the Director’s 34-page Notice.  At paragraph 39 of the Notice, the Director found:

“Based on the available information, and coupled with the assessment on risk and availability of state protection and internal relocation alternatives as explained in paragraph (IV)(A) above, it is considered that the risk of the feared ill-treatment by Mohamed and his people, the Salafi movement/Salafi Jihadists and the other Muslim extremists, and the Egyptian Government is assessed to be not real and not foreseeable. There is no supportive evidence that you and your family have been subjected to systematic religious motivated attacks/threats by the Muslims extremists and/or the Egyptian authorities in the past apart from [Nasrallah’s] unpleasant experience with Mohamed’s family in between 1997 to 1999. We have also considered whether there is a real risk that you and your family will suffer significant harm as a result of generalized violence in Egypt as Coptic Christians. As assessed in paragraph 23 above, it is considered that the chance of you and your family being harmed in an act of violence targeting Coptic Christians to be remote, because you and your family are just ordinary Coptic Christian without a high profile, who have not participated/will not participate in political protest, and who will not be targeted for the reasons as claimed, should your family return to Egypt in the reasonably foreseeable future. There is not a real chance your family would generally suffer serious harm or ill-treatment because of your religion.”

38.  The Applicants’ case as summarised by the Board in paragraphs 3 to 11 of its Decision contains no reference to any case specific to the children.  Against this background, it was entirely correct for the Board to find as it did in its opening paragraph in the Decision that the “identified lead Appellant in this matter is [Nasrallah] and the remaining Appellants’ claims are dependent on her claim.”  In answer to the Court’s question, Nasrallah admitted that the children’s risk is inseparable from the risk she is facing.  That was what the Board actually found.

39.  The 1^st and 2^nd Applicants never put forward a separate or specific case for the children.  They never advanced any particular circumstances in respect of the children.  They never complained that their children suffered a mental or psychological condition.  It is not open to them to now allege that the Board failed to conduct a child-specific assessment of [the] children’s cases having regard to their individual circumstances.  Even now, it is not clear what are “their individual circumstances” which the Board failed to give regard to and what are “the potential negative impacts on their mental health” which they are now alleging.  While relying on the importance of psychological harm mentioned in the UNHCR’s Guidelines, no particular psychological harm has been asserted in the non-refoulement claim form.  The only finding the Board could make was its observation at paragraph 45 that the “children are of school age and healthy” and “there are no obstacles to their relocation to another part of Egypt”.  Emad and Nasrallah had not presented any case which is specific to their children.   The Board’s duty of joint endeavour does not require the Board to find or make out a case which the Applicants never asserted. There is nothing in the evidence to suggest that the children will be subject to psychological harm on their return to Egypt. 

40.  The Applicants’ claims before the Director and their subsequent appeal before the Board were founded on incidents which happened to Nasrallah and her fear of harm, so much so that Nasrallah was labelled by the Board as the lead applicant.  Emad had not advanced any grounds of claim based on incidents happening to him.  Neither had the children.  Emad and the children had never claimed they had problems with Salafi Jihadists or other Islamic extremists or for being Coptic Christians.  They had no problems living in Alexandria where Nasrallah’s former Muslim husband lives or anywhere else in Egypt.  Their appeal failed because Nasrallah, on whose evidence the 1^st Applicant and his children relied, was disbelieved.  Nasrallah failed to prove the factual basis of her or her family’s case for protection.  As mentioned above, the Board took a step further and assessed Nasrallah’s claims on the basis of the facts as she asserted.  Despite that, the Board could not be satisfied that she would face any risk upon her return to Egypt.  Accordingly, it found that Nasrallah and her family failed to establish any well-founded fear from any of the proscribed risks of harm upon their return.  Based on authoritative and credible COI, the Board was also satisfied that adequate state protection and internal relocation are available to reduce or avoid the risk (This finding is unnecessary because of the absence of any real risk of proscribed harm).  Hence, it dismissed the Applicants’ appeal.  Thus, the children’s claims also failed.  These are finding of facts solely within the province of the Board which the Court in a judicial review will not interfere save for errors of law, procedural unfairness or irrationality in the Decision.  No such vitiating elements had been identified. There is no substance in this ground.

Ground (2) – Board’s reliance on outdated COI

41.  By this ground, the Applicants complained that the Decision was made in 2018 by relying on COI based on incidents in 2011 to 2013 which are outdated and did not consider COI based on incidents in 2016 and 2017.  They relied on the Country Policy and Information Note – Egypt: Christians published by the UK Home Office dated July 2017; Egypt: Prosecution Undermines Anti-Corruption Efforts published by Human Rights Watch dated 9 August 2016; Country Reports on Human Rights Practices for 2016 – Egypt published by the United States Department of State; and The World Fact Book, Egypt 2017 published by the United States Central Intelligence Agency on 11 July 2017.  They were unable to identify the particular pieces of COI which they alleged had been presented to the Board but which the Board failed to consider.  Again, Emad asked for time to allow him to produce new COI about persecution of Coptic Christians.  This is not their ground of application and those new COI had never been presented before the Board.  An adjournment would not assist them.  They had identified the four COI which were placed before the Board, but were unable to particularise the relevant pieces of COI and argue how they would support their case.

42.  The Board had given serious and ample consideration to COI in its assessment of the risks of harm facing Nasrallah and her family.  In paragraphs 17 to 19 of its Decision, the Board reminded itself of the duty of joint endeavour in establishing Nasrallah’s and her family’s claims and the severe consequences to Nasrallah and her family of an incorrect decision being made (see paragraph 17).  It reminded itself that the highest standard of fairness must be applied and gave the most anxious scrutiny to the issues in the appeal before the Board and where possible to resolve any doubts in the evidence in the Nasrallah’s favour (see paragraph 19).  It was with such cautions in mind that more than one-third of the Decision was devoted to consideration of COI relating to risks facing Coptic Christians in Egypt (from paragraphs 21 to 45, covering pages 7 to 13 of the seventeen-page Decision).

43.  In paragraphs 21 to 24, the Board referred to contemporaneous COI relating to risks facing Coptic Christians in Egypt and the finding by various authoritative tribunals in MS (Coptic Christians) Egypt CG[11]; ME v France[12] and AQ (Egypt)[13].  In MS (Coptic Christians) Egypt CG, the Upper Tribunal of the United Kingdom acknowledged the inadequacy in state protection for Coptic Christians in Egypt, but held that Coptic Christians as such are not at a general risk of persecution or ill-treatment.  It acknowledged that Coptic Christians will face a real risk in some areas outside the large cities, where radical Islamists have a strong foothold, and where there have been recent attacks on Coptic Christians or their churches, businesses or properties. It also recognised converts to Coptic Christianity is a particular risk category. This is the risk particularly emphasised by the Applicants.  The Upper Tribunal also accepted that Coptic Christian women face difficulties additional to other women in the form of sometimes being the target of disappearances, forced abduction and forced conversion.  However, the Upper Tribunal held that even if a claimant is able to establish that in his home area he falls within one or more of the risk categories or that he comes from an area where the local Coptic population faces a real risk of persecution, it will not necessarily follow that he qualifies for protection.  It all depends on a fact-specific assessment. In ME v France, the European Court of Human Rights held in spite of many acts of violence suffered by Coptic Christians and the authorities’ reluctance to prosecute the aggressors, it was unable to conclude that there is a general risk for all Coptic Christians that would suffice to entail protection.  In AQ (Egypt), the New Zealand Immigration & Protection Tribunal held on the facts before it, there is a real chance that the appellant would be the subject of serious physical assaults.  The well-considered opinion of these tribunals is that though Coptic Christians may be at some kind of risk in Egypt and the Egyptian authorities are reluctant to give them protection, as such they are not at a general risk of persecution or ill-treatment as to entitle them to protection.  Whether they are entitled to protection depends on the facts of the particular case, including the locality, their particular circumstances including whether they fall within a recognised risk category.  Ultimately, this is a question of fact for the tribunal.

44.  Though the Board did not quote the four COI identified by the Applicants, these COI had been quoted and considered by the Director in his Notice.  Most of them are in fact unfavourable to the Applicants.  The Country Policy and Information Note showed that the Supreme Council of the Armed Forces issued a decree in 2011 which amended the Egyptian Criminal Code to explicitly prohibit religious and other forms of discrimination imposing heavy sanctions against violation (see paragraph 24(b)(iii) of the Notice).  It also stated that the government prosecuted and convicted perpetrators of some of the attacks on churches with life imprisonment and other long term sentences in 2015.  The Country Reports on Human Rights Practices for 2016 reported that the government has pursued corruption cases against senior officials and submitted reports to the president and prime minister, though there is also report of inconsistency in punishment and prosecution (see paragraph 24(a)(ii) and (b)(ii)).  The Human Right Watch also reported that bribery is still pervasive (see paragraph 24(a)(iii)). The World Fact Book, Egypt 2017 and World Population Review, Cairo, 2016 show that Egypt’s capital, Cairo, has a metropolitan population of 20.5 million, about 10% of which are Coptic Christians (see paragraph 27(a)).  It will be very difficult for Nasrallah’s Muslim husband to locate her and her family. 

45.  As mentioned above, most of the COI mentioned by the Applicants are in fact unfavourable to the Applicants.  Even if the Board had failed to consider them, it would not be prejudicial to the Applicants.  As the COI had been mentioned in the Notice, the probability is that they had also been duly considered by the Board, though not quoted by the Board obviously because they would not assist the Applicants’ case.  In fact, the four COI relied on by the Applicants added nothing new to the COI quoted by the Board.  The situation for Coptic Christians in Egypt is unfavourable.  They, women in particular, are subject to some risk of persecution and discrimination in some heavily Muslim dominated community.  However, even a 10% minority for Coptic Christians is safe in big cities such as Cairo.  The Board accepted that converts to Coptic Christianity like Nasrallah is a vulnerable category.  The more recent COI, particularly those relied on by the Applicants, show some improvements in the situation.  The COI provided conflicting information.   Relevance and weight to be attached to a piece of COI is a question of fact for the Board.

46.  It was with the above legal principles, the available COI and the above authorities in mind that the Board embarked on its fact finding process.  It found for reasons as given in the Decision and as summarised in paragraphs 21 to 28 above that the case as advanced by Nasrallah is incredible.  Not only that, it found even on the case as she asserted Nasrallah and her family failed to establish any well-founded fear from any of the proscribed risks of harm upon their return to Egypt and that internal relocation is available to avoid the risk of harm.  All these are finding of facts which is open to the Board to find on the evidence before it.   Having regard to the considerations given by the Board to the authorities and COI available before it, the Court considered the Board’s handling of the COI is wholly un-reproachable.  It cannot be said that the Board has failed its duty of joint endeavour or breached the high standard of fairness required of it or that its Decision is reached unfairly or is Wednesbury unreasonable.   

Ground (3) – The Board failed to consider domestic violence in the light of the social and political context  

47.  Nasrallah emphasised her position as a Christian who had been converted to Muslim and then reconverted back to Christian faith is fatal as the Muslim community felt justified to take her life and those of her children’s.  Both Emad and Nasrallah said that this is a fact of life but admitted that this allegation is not supported by any COI.  The existence of this risk was accepted by the Board: see paragraph 43.  However, the Board found as a matter of law, this risk as such does not mean such converts are at a general risk of persecution or ill-treatment as to entitle them to protection.  Whether they are entitled to protection depends on the facts of the particular case.  Ultimately, this is a question of fact for the tribunal.  Putting a flavor of domestic violence in a social and political context as asserted by the Applicants to the case cannot change the Board’s finding on credibility.  Basically, the Board found for good reasons, which this Court may not intervene, that Nasrallah is incredible and did not accept her evidence.  This ground is in substance a complaint against the finding of fact by the Board which is outside the realm of judicial review.  There is no substance in this ground of application.

Conclusion

48.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  There is no substance in the Applicants’ grounds of application.  Their claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.

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