MARZOUK HAZEM ESSAM KHAMIS MOHAMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1057/2018

[2021] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1057 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Egypt who arrived in Hong Kong on 7 February 2017 with permission to remain as a visitor up to 8 May 2017 during which he was arrested by police on 4 separate occasions for various offences for which he was given prison terms, and upon his discharge from prison and was transferred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Egypt he would be harmed or killed by his family and/or the Muslim community for his homosexual behavior and for converting his religion from Islam to Christianity.

2.  The Applicant was born and raised as a Muslim in Alexandria, Egypt. While in secondary school he became aware of his bisexual orientation and formed a homosexual relationship with another boy, and when it was discovered by his mother, he was rebuked by his family during which his maternal uncle beat him so hard that he lost consciousness and was taken to the hospital for treatment.

3.  Upon his discharge from the hospital, his father who was then working in China arranged for him to move to live with him in Beijing in 2011 where he was enrolled into a university during which he also formed a homosexual relationship with a fellow student from Jordan who was a Christian, and due to their relationship the Applicant converted his religion from Islam to Christianity.

4.  However, his fellow Egyptian students in Beijing disapproved of his homosexual relationship, with some of them even assaulted him on various occasions that in 2017 the Applicant decided to make his escape from those threats and assaults by travelling to Hong Kong where he was subsequently arrested by police for various offences, and upon his release from prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 30 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Muslim community upon his return to Egypt as low due to the low intensity and frequency of past ill-treatment from them, that other than that one attack by his uncle there is no evidence of any threats or ill-treatment from anyone else against the Applicant prior to his departure from Egypt, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Egypt with a large population of 97 million people spread across a vast territory of more than one million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other part of Egypt away from his home district in large cities such as Cairo where it would be difficult if not impossible for him to be located.

7.  On 8 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 3 oral hearings on 18, 20 and 30 of April 2018 before the Board with his lawyer from DLS during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. In his evidence the Applicant disclosed to the Board that he is currently in a serious heterosexual relationship with his Russian girlfriend that he has no desire of resuming to his former bisexual lifestyle. On 1 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no or sufficient evidence to show that the Applicant was bisexual on the basis of the inconsistency and contradictions in his evidence on his alleged homosexual relationship in the past, that in any event in view of his present heterosexual relationship with his Russian girlfriend that that there is no risk that he would be perceived to be gay or bisexual upon his return to his home country, that all the COI adduced show that there are no laws in Egypt which directly criminalize homosexual behavior, that there is nothing to show that the Applicant’s bisexual orientation had become known in his community back home that may pose any real risk of persecution against him based on his sexual orientation, and as for his alleged religion conversion of which the Board also did not find him to be a credible or reliable witness given his display of no knowledge of the Bible or any basic tenets of the Christian faith or religion, and concluded on the evidence that the Applicant has failed to establish his claim that he was/is gay or bisexual or would be treated as such or that he has concerted his religion to Christianity that he would be at any risk of harm due to either assertions upon his return to Egypt that his claim for non-refoulement protection failed on all applicable grounds.     

9.  On 8 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that he is not satisfied with the Board’s decision as unjust and unfair as he had been detained at the Castle Peak Bay Immigration Centre and hence was unable to submit important documents in support of his claim but without providing any particulars or elaboration as to why it was so, nor did he identify what important documents he had intended to submit in support of his claim, nor did he put forward any other proper ground for his intended challenge or request any oral hearing for his application. 

10.  In fact, even up to now in his present application before me, the Applicant has not submitted any further documents which he claimed to have been unable to do in his appeal to the Board during which he was in fact as noted above represented by his lawyer from DLS and had attended not just one but three oral hearings before the Board during which he had had ample opportunities to submit whatever documents and evidence that he so intended. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 102 of its decision with the benefit of hearing him in his oral evidence in not one but three hearings and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Egypt, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave 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