Kalam Abul v. Torture Claims Appeal Board
Read the full judgment text of HCAL 3245/2019 on BabelCite. This High Court CFI judgment was delivered on 27 January 2021.
1. The Applicant is a 47-year-old national of Bangladesh who entered Hong Kong illegally on 16 January 2016 and surrendered to the Immigration Department on 21 January 2016 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 the political party Awami League (“AL”) for refusing to join their party.
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HCAL 3245/2019 [2021] HKCFI 246 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3245 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
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 47-year-old national of Bangladesh who entered Hong Kong illegally on 16 January 2016 and surrendered to the Immigration Department on 21 January 2016 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 the political party Awami League (“AL”) for refusing to join their party. 2.By a Notice of Decision dated 28 September 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local AL supporters upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence or reasons for the AL people to specifically target him for recruitment or to harm him for his refusal to join their party, 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 (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 140,000 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 Dhaka or Chittagong where it would be difficult if not impossible for those local AL supporters to locate him. 4.On 9 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but on 16 October 2019 he applied to the Board to withdraw his appeal, and upon being satisfied that he had good reason to withdraw his appeal on the basis of his claim that it was safe for him to return to his home country, the Board on 17 October 2019 in writing informed the Applicant that his appeal had been withdrawn and the Director’s decision accordingly confirmed. 5.On 31 October 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 stated that the Board’s decision should be reviewed because it disregarded his dangerous situation in his home country but without putting forward any proper ground for his intended challenge. 6.However, before his application could be dealt with by the court, the Applicant on 19 October 2020 filed an affirmation requesting to withdraw his application because he wants to go back to his home country as soon as possible, and did not respond to the court’s subsequent request for him to clarify the reason for the withdrawal of his application. 7.In the premises, and given the fact that he had as noted above previously made the same request to the Appeal Board to withdraw his appeal on the basis that it was safe for him to return to his home country, and in the absence of any indication otherwise from him to the contrary, it would in the circumstances be appropriate that his application be dismissed rather than withdrawn. Accordingly, I accede to the Applicant’s request and dismiss his leave application. Dated the 27th day of January 2021.
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 |