SE AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1422/2018

[2019] HKCFI 2317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1422 of 2018

  Application for Leave to Apply for Judicial Review

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

Following:

1.   Leave be granted to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision based on the amended Notice of Application for Leave to Apply for Judicial Review (“Form 86”) filed on 12 September 2019;

2.   Costs be in the cause; and

3.   The applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

It is further directed that:

4.  The applicants shall within 14 days of the receipt of this decision on their solicitors to issue their Originating Summons accordingly and to serve a copy with all the relevant documents on the Board as the respondent and on the Director as the interested party.

Observations for the Applicants:

1.  The applicants, a mother and her three children, are all Coptic Christians of Egyptian nationality who arrived in Hong Kong on 8 December 2014 with permission to remain as visitors up to 8 March 2015 when they did not depart, and on the following day they surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to Egypt they would be persecuted, harmed or killed by reason of their Coptic Christian faith, and that the daughter, the 3^rd applicant, would be at risk to Female Genital Mutilation (“FGM”) being forcibly performed on her.  They were subsequently released on recognizance pending the determination of their claim.

2.  The 1^st applicant (“A1”) was born and raised in the city of Sohag, Egypt.  After leaving school she worked as a sales representative in an insurance company, and in 1996 married her husband who was a government doctor, and gave birth to her three children,the 2^nd, 3^rd and 4^th applicants (“A2”, “A3” and “A4”).  Both she and her husband as well as their children are all Coptic Christians.

3.  In the rural areas where her husband worked, many Muslims had approached him in his clinic to ask him to perform circumcisions or FGM on their daughters, and were not happy when he always refused due to his Christian belief, but they would normally just leave without any incidents.

4.  The situation however deteriorated in 2007 when her husband refused the same request from a wealthy and influential Muslim man from neighbouring Saqoulta Village to perform circumcision on his daughter, that the man was insistent and eventually left angrily, but several days later while her husband was driving through Saqoulta Village, he was stopped in the middle of the road by some men who then pulled him out of his car and stabbed him repeatedly with knives before fleeing from the scene.

5.  As a result her husband sustained serious injuries and was hospitalized for one week.  Upon his discharge from the hospital, her husband suspected that the attack had something to do with that wealthy Muslim man from Village Saqoulta but did not go to the police due to lack of evidence.  However, for his protection his supervisors arranged for him to work away in a different district for a short period before returning to his home town in Sohag. 

6.  One day in 2009 another Muslim family from Sohag came to her husband’s clinic to request him to perform circumcision on their daughter, and when her husband refused,they asked whether he had done the same for his own daughter, to which he replied that he had not as it would be against his religion as a Coptic Christian.  The Muslim family then insisted that his daughter must be circumcised before leaving his clinic angrily.

7.  Soon thereafter her husband started to receive threatening phone calls that if he did not carry out circumcision for his daughter, they would do it for him.  In addition to these threatening phone calls, her husband also found window of his car smashed and its tires were cut and punctured, while her elder son A2 was also bullied by Muslim boys at school,including a particularly violent incident when he was attacked with knives that his right forearm was severely cut and required hospital treatments.  To avoid further threats from the Muslims, she and her family had to take a low profile to avoid further confrontations from the Muslims in their neighbourhood. 

8.  The situation turned for the worse during the 2011 Egyptian revolution caused by massive demonstrations, strikes and acts of civil disobediences that swept across the country which eventually overthrew the Mubarak government, and with the Muslim Brotherhood taking power with the election of the Islamist Morsi as the new president in 2012 who tried to impose the Islamic-leaning constitution, the applicants felt even bigger threats from the Muslim population especially Muslim extremists who were against Christians.

9.  Although the Morsi government was subsequently deposed by the military in 2013 with the election of a new president, there were widespread attacks on Christians and churches by Muslim extremists, and so in May 2014 A1 moved with her children to stay at her sister’s home in Village Akhmim, but shortly thereafter she and her sister were confronted by three Muslim men on the street who insulted them and then attacked them with sticks that her sister suffered a cut to her arm, and before the assailants left they warned that as they knew where they lived, they could easily find them and do the same to them again.

10.  After the attack, A1 moved with her children to take shelter at her mother’s home in Sohag, but as she continued to receive phone calls from unknown Muslims threatening to harm or kill her and her family for being Coptic Christians, A1 felt that it was no longer safe for her and her children to remain in Egypt, and so on 8 December 2014 she and the children departed for Hong Kong, while her husband had to stay behind in Egypt due to his job requirement, and upon surrendering to the Immigration Department, the applicants raised their non-refoulement claim for protection, for which A1 later completed a Non-refoulement Claim Form for herself and the children on 13 May 2015 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.  

11.  By a Notice of Decision dated 9 March 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

12.  In his decision the Director took into account all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that there will be any risk of them being harmed or killed by Muslims and/or the Egyptian authorities upon their return to Egypt as low due to the low intensity and frequency of past ill-treatments from them, that such ill-treatments did not attain the minimum level of severity under any of the applicable risks, that in the absence of any official involvement that state or police protection would be available to the applicants 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 95 million people spread across a vast territory of more than 1 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to safely move with her children to other part of Egypt away from their home district in large cities such as Cairo where it would be difficult if not impossible for the Muslim extremists to locate them.

13.  On 23 March 2017 the applicants filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 7 February 2018 before the Board with legal representation during which A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board and with submissions made on their behalf by their lawyer.  On 20 April 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

14.  In its decision the Board found that with the subsequent retirement of A1’s husband that the issue of FGM no longer presented as any risk, while there is no evidence that the applicants had ever been subjected to any torture risk, and that in the light of the COI available before the Board, it was not accepted that the applicants as Coptic Christians have been targeted for serious harm, nor will there be any risk of them being pursued by those wealthy Muslim families given the retirement of A1’s husband, and that in any event there are many places in Egypt other than their home district that the applicants can safely live without undue hardship that it concluded that their claim for non-refoulement claim failed on all the applicable grounds.  

15.  On 19 July 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds, as amended and summarized, for their intended challenge:

  (1)  failure to properly assess the applicants’ claim as to persecution risk;

  (2)  failure to properly consider COI and evidence of similarly situated persons;

  (3)  failure to consider COI adequately and objectively;

  (4)  error in law to require that the applicants must have suffered past harm to establish substantial future risk; and

  (5)  failure to consider A3’s persecution risk for FGM.  

16.  The applicants have since been granted legal aid for their application, and upon which I shall proceed to consider their proposed grounds for their intended challenge of the Board’s decision, starting with Ground (1). 

Ground (1): failure to assess persecution risk properly

17.  It is the applicants’ case that in its assessment of their claim, the Board focused on whether they had had any “personal encounter” of ill-treatment and whether they had suffered any “injuries requiring major medical treatment”, “severe injury or serious harm”,and then proceeded to find that they were not under any substantial risk of harm, and had thereby departed from the established approach and erred in law in failing to adopt the correct approach in its assessment of the applicants’ persecution risk.

18.  Mr Randy Shek for the applicants submits that in assessing persecution risk, the Board must apply the tests and principles for non-refoulement protection under the Refugee Convention, with consideration given to whether or not there is a well-founded fear that a key human right or human dignity is at risk of being denied or infringed by reason of race,religion, nationality, membership of a particular group or political opinion.

19.  To consider whether there is such a well-founded fear, Mr Shek submits that there should be a two-stage process: (i) whether the claimant has a subjective fear of persecution;and (ii) whether there is a valid basis for such fear in light of the evidence.

20.  Mr Shek submits that once it is satisfied that the claimant does hold such a fear of persecution, the decision-maker must then consider if there is a reasonable chance that such persecution would take place, including by referring to COI as to the human rights condition of the home country and by considering the treatment of persons in similar situation as that of the claimant.

21.  Mr Shek submits that in assessing the applicants’ claim, the Board however just focused on whether the applicants had had any “personal encounter” of ill-treatment,and whether they had suffered any “injuries requiring major medical treatment” or “severe injury or serious harm” instead, and proceeded to find that the applicants were not under any substantial risk of harm, which he submits was a departure from the established approach and had therefore erred in law by failing to adopt the correct approach in his assessment of the applicants’ persecution risk.

22.  It is well established that the asylum seeker has to do no more than prove that he has a well-founded fear that there is a “real and substantial risk” or a “reasonable degree of likelihood” of persecution for a Convention reason: R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958.

23.  In C v Director of Immigration, United Nations High Commissioner for Refugees intervening (2013) 16 HKCFAR 280, where Bokhary NPJ stated:

“ 63. There are parts of the world where some people are sometimes subjected to persecution on account of their race, religion, nationality,membership of a particular social group or political opinion. In the context of the present case, the word ‘persecution’ means persecution on account of one or more of those things. What happens when persons — each of these appellants being such a person — arrive in Hong Kong and ask not to be returned to the place from whence they came, saying that they would be subjected to persecution there if returned? On the evidence before the Court, the answer is that they will not be returned (or ‘refouled’, to use the legal term) if their fear is well-founded. …

64.  So Hong Kong’s practice conforms with the principle of ‘persecution non-refoulement’.  Such a practice necessarily includes — because it would be unworkable unless it includes — determining whether the asserted fear of persecution in the event of return is well-founded.  Axiomatically it is for the official or officials through whom the government’s ‘persecution non-refoulement’ practice is conducted to make a determination on whether such fear is well-founded.  In making such a determination, that official or those officials must proceed fairly, with due regard to the vulnerability of the person concerned and with a degree of care commensurate with what is at stake. If the determination is adverse to the person resisting return, the reasons for it must be given.  And the reasons must be sufficient to meet the reasonable needs for judicial review purposes of that person’s legal advisers and of the court.”

24.  In the present case, the Board’s assessment of the applicants’ claim under persecution risk is as follows [B1/9/93]:  

“ Facts of today’s case assessed under persecution

29. … Today’s Appellants have not suffered serious ill-treatment or severe injury or serious harm which would place them within the criteria of Persecution. In any event, for reasons stated I find no substantial ground to believe they will face any future risk of serious harm. In other words any future risk of persecution is remote. In addition, the vaguely asserted and unspecified handful of assailants do not come within the meaning of ‘populace’in refugee law. The situation falls far short of establishing ‘Persecution Risk’.

30.  Further and in any event, they are safe to live in Egypt, at least other than in their original locality, which is a reason in addition to, and independent of, the reason in the paragraph above for a claim under ‘Persecution Risk’ to fail.”

25.  Prior to arriving at the above assessment, the Board referred to some COI about the then situation faced by Coptic Christians in Egypt including one incident of attack on them with 28 killed in May 2017, and of which it made the following comments [B1/9/90]:

“(The above publications show that there is no perfect peace for Christians living in Egypt (for example the terrorist bus attack), but there is obviously no‘universal persecution’ of all Christians, otherwise there cannot be a modern Christian population as big as 10% in Egypt. General country information may be helpful to refugee applications, but non-refoulement claims have different legal considerations, as the law referred to earlier in this Decision shows).”

26.  On the basis of these COI and A1’s evidence given at the hearing, the Board found no substantial risk or any substantial basis of fear on the part of the applicants as Coptic Christians in Egypt, as it explained in its decision [B1/9/91]:

“ 18. Especially in light of the COI, I do not accept that as Coptic Christians the Appellants have been targeted for serious harm, nor will the vaguely asserted ‘two powerful Muslim families’ and/or the three assailants upon H [A1’s husband] are interested in locating the Appellants all over Egypt,especially when H has now retired and the risk of harm has dissipated, and that is even if the previously hostile families should have huge resources and manpower, as well as are willing to expend same to look for a needle in a haystack. I find no substantial risk or any substantial basis of fear. There are many places in Egypt, at least other than the Appellant’s home locality,where A1, as a 42-year-old and able-bodied young woman with 14 years of work experience and her 3 able-bodied children, can safely live without undue hardship, which is another independent reason for the appeal to fail.”

27.  The applicants argue that in arriving at such findings and conclusions, the Board failed to properly consider the COI and evidence before it, which are in fact their Grounds (2) and (3), of which I propose to consider together.

Ground (2): failure to properly consider COI and evidence of similarly situated persons; and

Ground (3): failure to consider COI adequately and objectively

28.  For Ground (2), the applicants argue that in making out their claim, they did not have to show that they themselves had been persecuted in the past or would themselves be persecuted in the future, but instead if they can show that the persecution has been committed or likely to be committed against members of a group to which they belonged,as Coptic Christians in their case, as amply shown or supported by the COI available before the Board, but that it clearly erred in holding that general statements about a country do not advance a claim unless there is personal encounter, and failed to adopt the correct legal approach that their claim could be advanced by COI of general statements showing that there exists a ‘consistent pattern of gross and systemic violations‘ of Coptic Christians that the applicants could face a real risk of harm as one of them.

29.  As for Ground (3), the applicants argue that notwithstanding the fact that they had produced numerous COI in support of their claim, even some which the Board referred to have reported “widespread attacks on Coptic Christians and institutions in Egypt by Sunni Muslims” that “are the worst violence against Coptic Church since the 14^th century” [§16 of the Board’s decision], the Board did not consider them adequately and objectively, nor did it address any of the materials reporting the extensive persecution of Coptic Christians in general and the applicants in particular, and instead just dismissed their COI materials by stating that “there is obviously no ‘universal persecution’ of all Christians” as noted above.

30.  In Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal held that high standards of fairness require that in assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered.  In the present case, Mr Shek submits for the applicants that such matters required for consideration include those referred to above but which the Board did not do so in its assessment of the applicants’ claim.  

31.  Given the amount of relevant COI available before the Board which reported on widespread violence against Coptic Christians at the time when the applicants left Egypt, I agree that it is reasonably arguable that the Board failed to assess the applicants’ persecution risk properly, and/or to consider the relevant COI in assessing their risk as Coptic Christians properly and objectively, and/or to assess the reasonableness of internal relocation within Egypt available to the applicants in the circumstances of their case properly or adequately.

Ground (4):  error in law in finding that the applicants must have suffered past harm to establish substantial future risk

32.  For this ground the applicants argue that the Board had placed great emphasis on whether the applicants had suffered past severe injury or serious harm when deciding if there was any substantial future risk of harm, but had given little weight and consideration to the systemic and widespread violence and hostility towards Coptic Christians as a particular social group and the evidence of a consistent pattern of gross, flagrant and mass violation of human rights in Egypt, and as such, it strongly suggests that the Board had taken an approach that required past exposure to harm before a future danger of harm can be established.   

33.  For the reasons already given, I agree that it is reasonably arguable that Board erred in adopting the approach as it did in assessing the applicants’ persecution risk. 

Ground (5): failure to consider A3’s persecution risk for FGM

34.  It is the applicants’ case that the Board did not in its decision properly address the issue of A3 being under risk for circumcision or FGM, when the COI clearly show how widespread the practice of FGM being performed amongst the female population in Egypt, including fatalities arising from its clandestine practice despite government’s efforts to outlaw it, yet the Board erred in law in failing to properly consider such risk by simply dismissing it as no longer in existence because A3’s father has retired from medical practice and was no longer required or requested to perform FGM.

35.  In its decision, the Board dealt with this risk as follows:

“ The issue about FGM is now no more risk

14.  At the oral hearing A1 said that H has now retired for a year, admitting that there is now no more risk of harm because H would no longer be required to perform FGM.  She even gave an example that if people threaten to damage your car, but you have sold your car, such risk can exist no more.  Accordingly for the purpose of the present claim the only possible issue left is the alleged threat of harm to Coptic Christians as a special group of people in Egypt.”

36.  It seems to me that the Board’s finding that FGM was no longer a risk to the daughter(A3) upon her father’s retirement was on the assumption that he would no longer be required to perform FGM on her, and as it also cited the example given by A1 as quoted above in support of its such finding.

37.  According to the transcript of the hearing, it appears to me that the example was used by A1 in a different context when she was cross-examined by counsel for the Director as to her husband’s situation in Egypt [B5/30/1191–1192]:

“ Q: I’ll first ask about the present situation. So, have you contacted your husband recently?

A: Yes, I contacted him recently.

Q: When was that?

A: Yes, about ten days ago.

Q: So, is he still working as the government doctor?

A: No, he is retired.

Q: When did he retire?

A: About one year ago.

…

Q: So, did he mention if he has received any further threats or threatening phone calls recently?

A:     I just want to make one point very clear, that the threats were the worst at the time we were there because they knew that the daughter … our daughter is within their reach but, since we left, it’s much less because they know that they cannot reach her so they cannot really materialize or act upon their threats.  So, it’s like if someone threatens to burn your car and you don’t even have a car, so there is nothing to fear.”

38.  There A1 appeared to have used the example to explain that the threats were no longer there after she and her children had left Egypt, and that she was referring to threats from other people and not from her husband being requested to that FGM would forcibly be performed on her daughter, as she clearly so stated in her Notice of Appeal to the Board [B1/10/102].   

39.  In the premises and for the reasons given, I agree that the intended application for judicial review is reasonably arguable, having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

40.  Accordingly, I grant leave for the applicants to apply for judicial review of the Board’s decision based on their amended Form 86, and direct that they shall within 14 days of the receipt of this decision on their solicitors to issue their originating summons accordingly,and to serve a copy with all the relevant documents on the Board as the respondent and on the Director as the interested party, with an order that costs be in the cause, with legal aid taxation.

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