UDDIN KOMOR v. TORTURE CLAIMS APPEAL BOARD

HCAL 2254/2019

[2020] HKCFI 2108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2254 of 2019

     Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of Bangladesh who entered Hong Kong illegally on 1 March 2017, and on 9 March 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by some local supporters of political party Awami League (“AL”) as he supported their rival party Jamaat-e-Islami (“JEI”).      

2.  By a Notice of Decision dated 7 December 2018 the Director of Immigration (“the 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”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed future risk of harm by those AL supporters upon his return to Bangladesh is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, 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 show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 3 May 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 August 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 7 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but before his application could be dealt with by the court, the Applicant on 29 July 2020 filed an affirmation requesting to withdraw his application because “all his problems in his home country are finished” and that he wants to go home as soon as possible.

6.  As such and as the basis for his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn.  Accordingly I dismiss his 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