SHEIKH MOHAMMAD MITHU v. TORTURE CLAIMS APPEAL BOARD

HCAL 2376/2018

[2020] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 2376 OF 2018

     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 35-year-old national of Bangladesh who entered Hong Kong illegally on 31 August 2013 and was arrested by police on 1 September 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he was a supporter of rival Bangladesh Nationalist Party (“BNP”) in his home village.      

2.  By a Notice of Decision dated 19 June 2017 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 assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that it is not accepted that he had been specifically targeted for harassments given that he was just a supporter without any official position in BNP, 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 156 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 Sylhet or Rajshahi where it would be difficult if not impossible for those local AL supporters to locate him.

4.  On 3 July 2017 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 29 March 2018 before the Board during which he however declined to give evidence or to answer any questions put to him by the adjudicator for the Board.  On 17 April 2018 his appeal was dismissed by the Board upon finding his claim not credible or established, and also confirmed the decision of the Director.

5.  On 29 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger if he is refouled to his home country but without putting forward any proper ground for his intended challenge, and that he was then also late with his application as it was filed more than 3 months outside the 3-month period required by Order 53 rule 4(1) of the High Court Ordinance, Cap 4, of which he also failed to provide any explanation for his substantial delay.  

6.  However, before his application could be dealt with by the court, the Applicant on 3 August 2020 filed an affirmation to apply for his application to be withdrawn as his problem in his home country has been solved.  

7.  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 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