Miah Sentu v. Torture Claims Appeal Board

Case No.HCAL 719/2019[2020] HKCFI 3036

Court

High Court CFI

Date04 Dec 2020

Judge—

Case Document

100%Judiciary

HCAL 719/2019

[2020] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 719 of 2019

BETWEEN
	Miah Sentu	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 national of Bangladesh who arrived in Hong Kong on 23 April 2015 with permission to remain as a visitor up to 7 May 2015 when he did not depart and instead overstayed and was arrested by police on 4 September 2015. 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 the family of his neighbor who blamed him for the death of the neighbor and/or by the political party Awami League (“AL”) with which the family had connections.

2.By a Notice of Decision dated 12 December 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 his neighbour’s family or the AL people upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that they were private personal disputes 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 (“COI”) 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 where it would be difficult if not impossible for his enemies to locate him.

4.On 21 December 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 28 November 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 11 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 14 March 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 a copy of the decision without putting forward any ground for his intended challenge.

6.However, before his application could be dealt with by the court, the Applicant on 16 November 2020 filed an affirmation requesting to withdraw his application because all his political problems in Bangladesh are “finished” and that he wants to return to his home country as soon as possible.

7.In the premises, and as the basis for his claim no longer exists and that the Applicant wants to return to his home country as soon as possible, it would in the circumstances be appropriate for his application to be dismissed rather than withdrawn. Accordingly I dismiss his leave application.

Dated the 4^th day of December 2020.

	(TAM Kam-man)
	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 4^th December 2020 Miah Sentu 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 4^th December 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9618/17/12/285/B1099 Director of Immigration Putative Interested Party’s ref. no.: Nil. Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1