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HCAL 1716/2025
[2026] HKCFI 4645
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1716 of 2025
BETWEEN
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Amr Mohamed Abdelgayed Kamel Elsharkawy |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review
of the Decision dated 22 July 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the
appeal against the Director’s Decision as described below.
2. The applicant did not ask for a hearing.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the
Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the
Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Egypt. He is an illegal
immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis
that, if refouled, he will be killed by his father because he converted from Islam to Christianity.
5. Details of his claim are set out in the Board’s Decision. See
hyperlink.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001716_2025_files/the_Board's_Decision.pdf
The Director’s Decision
6. The Director considered the applicant’s claim in relation to
the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)
(“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of
Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
7. By way of Notice of Decision dated 21 March 2025 (“the
Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was
unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board.
On 8 May 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the
Board’s questions.
9. Having considered the evidence, the Board found that the
applicant would not require non-refoulement protection as he did not suffer injuries up to the level of severity
required; that he did not seek protection in Hong Kong until after he was arrested; that there was no evidence
that the state was involved; that state protection will be available and internal relocation is viable as the
risk, if any, is localized, if he returns to Egypt. [34]-[38], [54], [58] & [90]
10. For the reasons above, the Board dismissed his appeal and
affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 31 July 2025 for
leave to apply for judicial review of the Board’s Decision.
12. The applicant has raised the issues of
(1) failure to properly assess credibility and account for vulnerability: failing to consider his
vulnerability as a self-represented person and his psychological trauma he had suffered before of religion
conversion;
(2) misapplication of the burden of proof and failure to assist a self-represented applicant:
failing to appreciate his difficulties in obtaining evidence as a self-represented person;
(3) failure to adequately consider the risk harm and internal relocation: failing to address the
severity of the threats and the consistent pattern of violence and discrimination against the Christians in
Egypt; no reason given for viability of internal relocation; and
(4) procedural unfairness and lack of process: hearing was unfair to him and failing to give
reason on each of his claims.
DISCUSSION
13. The role of this Court is supervisory, meaning that it
ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the
applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See
TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director
of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision
should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
16. The applicant’s reasons under 12 are generally bare
assertions or his opinions without any evidence in support. They are invalid to challenge the Board’s Decision[1]. The Board has made its finding that the
applicant, on the facts of his case, did not suffer serious harm that meets the requirements of BOR 3 risk; that
state protection will be available; and that his risk, if any, is localized and therefore internal relocation is
viable. The applicant has given no evidence to refute these findings.
17. The applicant fails to show that he has any realistic
prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for
judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 19th day of August 2026
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order
granting leave and any directions given within 14 days after the leave was granted (Order 53,
rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in
accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at
the hearing, including the affidavit in support of the application for leave (Order 53, rule
6(5)).
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Sent to the Applicant
on 19/8/2026
Amr Mohamed Abdelgayed Kamel Elsharkawy
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested
Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on
19/8/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25976
Director of Immigration
Putative Interested Party’s ref. no.: INCL-0000976-24(1) (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD
Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to
condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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