MD ILYES SHAIEK v. TORTURE CLAIMS APPEAL BOARD

HCAL 3474/2019

[2020] HKCFI 2085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3474 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 10 March 2012 and was arrested by police on 6 April 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by a fellow villager with political connections over some monetary dispute, and when his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.     

2.  By a Notice of Decision dated 12 December 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk but including 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 there will be any real and substantial risk of him being harmed or killed by the fellow villager upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without 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 159 million people spread across a vast territory of more than 130,000 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 or Chittagong where it would be difficult if not impossible for his fellow villager to locate him.

4.  On 19 December 2018 the Applicant 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 21 October 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 25 November 2019 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 affirmation of the same date he merely attached copies of the decision and other documents previously submitted for his claim without putting forward any proper ground for his intended challenge.

6.  However, before his application could be dealt with by the court, the Applicant on 17 July 2020 filed an affirmation to request to withdraw his application as “all his political problems in Bangladesh are finished and that he wants to return home as soon as possible”.

7.  In the premises 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