Sheik Mohammad Mizanur v. Torture Claims Appeal Board and Another

Case No.HCAL 2113/2018[2020] HKCFI 1343

Court

High Court CFI

Date07 Jul 2020

Judge—

Case Document

100%Judiciary

HCAL 2113/2018

[2020] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2113 of 2018

BETWEEN

	Sheik Mohammad Mizanur	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The Applicant is a national of Bangladesh who entered Hong Kong illegally on 14 November 2015 and three days later surrendered to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by a group of local supporters of rival political party Awami League.

2.By a Notice of Decision dated 12 December 2017 the Director of Immigration (“the Director”) rejected his 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.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but on 26 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

4.On 4 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 attached copies of those decisions without putting forward any proper ground for his intended challenge.

5.However, before his application could be dealt with by the court, on 15 June 2020 the Applicant filed an affirmation requesting to withdraw his application because his problem in his home country has been solved and that he wants to go home.

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for his non-refoulement claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn, and accordingly I dismiss his leave application.

Dated the 7^th day of July 2020.

(NG Hang-yin)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7^th July 2020 Sheik Mohammad Mizanur Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7^th July 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 9623/17/12/290/B1101 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 3114/17 (Formerly RBCZ 12691/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1