Shabuddin v. Torture Claims Appeal Board

Case No.HCAL 86/2018[2020] HKCFI 2315

Court

High Court CFI

Date07 Sep 2020

Judge—

Case Document

100%Judiciary

HCAL 86/2018

[2020] HKCFI 2315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 86 of 2018

BETWEEN

	Shabuddin	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

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

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Bangladesh who entered Hong Kong illegally on 22 October 2013 and was arrested by police on 9 November 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 members of the political party Awami League (“AL”) because his brother had disappeared with their money.

2.By a Notice of Decision dated 18 January 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 AL people upon his return to Bangladesh as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any harm or ill-treatment from those AL people against him or his family as alleged, that in any event 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 spread across a vast territory 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 those AL people to locate him.

4.By a Notice of Further Decision dated 28 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

5.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 26 January 2016, and for which he attended an oral hearing on 11 January 2017 before the Board during which he however declined to give any evidence or answer any questions put to him by the adjudicator for the Board other than confirming his reliance on the materials previously submitted to the Director and in his hearing bundle before the Board. On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.On 18 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward 8 grounds for his intended challenge but all were just broad and vague assertions without any particulars or elaborations as to how they applied to his case.

7.However, before his application could be dealt with by the court, the Applicant on 31 August 2020 filed an affirmation requesting to withdraw his application as his problem “is now finished” and that he wants to return to his home country as soon as possible.

8.In the premises, and as the basis for his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn, and accordingly I dismiss his application.

Dated the 7^th day of September 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 September 2020 Shabuddin 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 September 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 3012/16/1/135/B392 Director of Immigration Putative Interested Party’s ref. no.: INCZ/9001854/16 (Formerly RBCZ 848/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1