ALAMGIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1147/2020

[2020] HKCFI 2081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1147 of 2020

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 24 August 2015 and surrendered to the Immigration Department on the next day when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of rival political party Awami League (“AL”) in his home district.     

2.  By a Notice of Decision dated 28 August 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 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 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 162 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 where it would be difficult if not impossible for those local AL supporters to locate him.

4.  On 6 September 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 9 October 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 March 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 10 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward what appear to be some standard pro forma grounds commonly used in this type of application for his intended challenge but without any particulars or elaborations as to how they applied to his case.     

6.  However, before his application could be dealt with by the court, the Applicant on 29 July 2020 filed an affirmation to request to withdraw his application as “all his problems in his home country are finished and that he wants to return home”.

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