ABDALLA GAMALELDIN MOHAMED AGIBA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1278/2021

[2026] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1278 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the applicant be amended to “Abdalla Gamaleldin Mohamed Agiba”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 August 2021”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 13 September 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 24 August 2021 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 24 August 2021 (“the Board’s Decision”), which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 May 2020 (“the Director’s Decision”).

3.  As the applicant had attached a copy of the Board’s Decision to his supporting affirmation dated 13 September 2021, it is clear that the applicant was referring to the Board’s Decision in his Form 86. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001278_2021_files/the_Board's_Decision.pdf

4.  The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

5.  In Form 86, the applicant did not spell his own name correctly. He also named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the applicant to “Abdalla Gamaleldin Mohamed Agiba”, the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 24 August 2021”.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Egypt, a Mr E would harm or kill him due to a trade dispute concerning late shipment of auto parts from Hong Kong to Egypt, and Mr E demanded the applicant to compensate him for his portion of the money invested in the business. Mr E also made a false report to the police that the applicant was a member of the Muslim Brotherhood (“MB”), which was a banned terrorist organisation in Egypt. There was a court judgment indicating that the applicant had been sentenced to prison for crimes he did not commit and he was adjudged as a member of MB. The applicant believed that Mr E used his uncle’s connections to arrange the judgment against him. Thus, the applicant feared that the Egyptian authorities would arrest, abduct, torture and/or kill him due to the false allegation that he was a member of MB.

Oral hearings

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 16 April 2026.

11.  When this court asked the applicant for the grounds of his intended judicial review, he replied that the adjudicator of the Board had misunderstood what he said and the Board’s Decision was incorrect.

12.  The applicant specifically referred to paragraph 63 of the Board’s Decision. He claimed that the Board was wrong in ruling that Mr E planned everything for him including those people who went with him to Hong Kong on the plane. The applicant said that he only met those people on the plane by chance. The Board was also wrong to say that Mr E sent him to Hong Kong when he came to Hong Kong to do business himself. It was therefore wrong for the Board to think that the applicant did not have any experience in the business and Mr E did not need the applicant to do the business for him.

13.  The applicant also disagreed with the Board’s finding that he did not have any problem with the state security of the Egyptian government.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 13 September 2021.

16.  What the applicant said at the oral hearing before this court would be discussed in the ensuing paragraphs.

Discussion

17.  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 [2018] HKCA 524).

18.  Thus, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

19.  In assessing the appeal/petition by the applicant, the Board held oral hearings on 9 October 2020, 3 May 2021, 23 June 2021 and 24 June 2021 respectively. The applicant was present and was represented by a duty lawyer assigned by the Duty Lawyer Service. Thus, the applicant was given the chance to present his case to the Board through his legal representative.

20.  As can be seen from the Board’s Decision, the Board had far too many concerns with the credibility of the applicant’s claims such that the Board was unable to give the applicant the benefit of the doubt that he genuinely had any dispute with Mr E, or that Mr E made the false allegation that in some way led to the judgment that the applicant submitted as evidence in support of his claim that he was sentenced to imprisonment and was adjudged as a member of MB.

21.  The Board allowed the applicant’s submission of new evidence, namely an email sent by his brother that contained the judgment in question, and accepted, for the purpose of the Board’s Decision, that the applicant’s brother sent the judgment to him via email from an internet café. However, the Board stated explicitly that its acceptance of the applicant’s explanation as to how the judgment came into his possession did not mean the judgment attached to that email was a reliable document. The Board in fact found various difficulties with the reliability of the judgment, which were laid out in paragraphs 53 to 56 of the Board’s Decision.

22.  The Board also laid out in paragraphs 57 to 59 of the Board’s Decision the difficulties it found with the allegation letter, which was a document submitted by the applicant, claiming that it was a letter written by Mr E to the chief prosecutor, alleging that the applicant deluded Mr E of US$15,000 by delaying a delivery of good, and that after Mr E inquired about the applicant, Mr E learnt that the applicant was a member of MB. Mr E asked the chief prosecutor to take steps against the applicant for the fraud.

23.  In view of the multiple, significant difficulties with the judgment and the allegation letter, and due to the applicant’s lack of any persuasive explanations for those difficulties, the Board had too many concerns about the reliability of either document. The Board therefore considered both documents were not reliable documents and consequently, the Board was unable to place any weight on both documents.

24.  The Board also laid out in paragraphs 61 to 64 of the Board’s Decision its concerns about the nature of the dispute between the applicant and Mr E.

25.  This is where the applicant specifically pointed out at the oral hearing before this court that the Board’s Decision was incorrect. The applicant specifically referred to paragraph 63 of the Board’s Decision and said that the Board was wrong in finding that Mr E had planned everything and did not need the applicant to come to Hong Kong to do business.

26.  In the said paragraph, the Board discussed in details its concern about the reason the applicant gave for coming to Hong Kong. Based on its findings that the applicant’s experience in auto parts trading was doubtful, the Board was not persuaded by the applicant’s explanation that the applicant was needed by Mr E due to the applicant’s experience with auto parts. It is highly unlikely that the Board would have mistaken the facts mentioned in paragraph 63 when the applicant was legally represented and assisted by an interpreter.

27.  This court finds nothing wrong or unreasonable with the Board’s reasoning in this regard. In fact, the Board had given full and justified reasons in finding that the applicant’s claims about his business dealings with Mr E were significantly lacking in commercial plausibility, and consequently found the genuineness of the applicant’s claims that he came to Hong Kong to arrange a shipment of auto parts doubtful.

28.  Thus, there is no merit in the applicant’s assertion at the oral hearing before this court that the Board’s Decision, especially the Board’s finding in paragraph 63, was wrong.

29.  Given the numerous significant implausibilities and inconsistencies in the applicant’s evidence, as well as his non-persuasive explanations, the Board considered the applicant was not a credible witness. The Board rejected all the applicant’s claims, including (1) the applicant and Mr E were business partners; (2) the applicant came to Hong Kong to arrange the shipment of auto parts to Egypt; (3) the applicant sent any shipment to Egypt from Hong Kong; (4) the applicant owed any money to Mr E; (5) Mr E made any complaints to the police or the chief prosecutor; (6) Mr E arranged the judgment against the applicant; (7) the applicant was wanted by the Egyptian authorities on suspicion of being a member or supporter of MB; (8) the Egyptian police had gone to the applicant’s house to look for him; (9) Mr E made any threats against the applicant or the applicant’s family; and (10) the applicant remained in Hong Kong in fear of harm from Mr E or the Egyptian authorities.

30.  In gist, the whole of the applicant’s claims regarding his fear of return to Egypt was rejected by the Board. There is no basis for the applicant to disagree with the Board’s finding that he did not have any problem with the state security of the Egyptian government.

31.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

32.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

33.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

34.  The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

36.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

37.  For reasons aforesaid, the Leave Application is dismissed.

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