Taher Mohammad Abu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2221/2018 on BabelCite. This High Court CFI judgment was delivered on 3 May 2022.
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).
Cites 1 case
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HCAL 2221/2018 [2022] HKCFI 1205 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2221 of 2018
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 K.W. Lung: Leave to apply for Judicial Review be dismissed. Observations for the Applicant: THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). 2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, he was absent without prior notice to the court. I decided to deal with his application on paper. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party. The applicant 4.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 24 April 2013. He was arrested by the police on 18 August 2013. On 7 April 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Awani League (“AL”). 5.According to the applicant, he had been a supporter of the Bangladesh Nationalist Party (“BNP”) since 2004 before he joined BNP as a member in 2012. He was actively involved in the party’s rallies and events. In April or May 2012, the applicant was approached by some AL members and was threatened by them to leave the BNP. Two days later, he was attacked by 10 to 15 men with hockey and wooden sticks. They also threatened to kill him if he refused to leave the BNP. Shortly after, when the applicant was on his way to make a police report, he was again attacked by the AL members. He was even advised by the police officers to leave Bangladesh. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 2 June 2016 (the “Director’s First Decision”) and paragraph 8 of the Board’s Decision as described below. The Director’s Decisions 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) there was no evidence that the AL members targeted the applicant given the low intensity and frequency of past ill-treatments [19]-[23]; (ii) state protection would be available to him [24]; and (iii) internal relocation was also an option [25]. In the Notice of Further Decision dated 10 July 2017, the Director also rejected his claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that his right to life would be violated upon his return to Bangladesh. 8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”. The Board’s Decision 9.The applicant appealed the Director’s Decisions to the Board. An oral hearing was held on 15 June 2018 for his appeal, during which the applicant provided further information for his case [9]-[10]. 10.Having considered the applicant’s evidence, the Board accepted the applicant’s version of events except for three material aspects, namely, he would not be safe if refouled; he left Bangladesh due to a fear of safety; and his belief that the government and police would not protect him [13]. In elaboration, the Board stated that there was no evidence of the applicant’s prominent role in the BNP; that he was able to live an ordinary life for 6 to 7 months in Botrist; that no one searched the applicant when he left the home village; that the alleged injuries were not severe; and that, based on the country of origin information, there were on-going reforms to improve the law enforcements [14]. 11.In assessing the individual grounds, the Board further held that the applicant’s alleged threats did not exist [18]-[19] and internal relocation would be a viable option for the applicant [38]. 12.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal. Application for leave to apply for judicial review 13.The applicant filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Decision. 14.In his affirmation in support of his application, he said, “… the Board did decide the case on assumption, without considering many issues and serious evidence presented by the applicant … the Board cannot infer that the applicant had no case.” 15.In another affirmation dated 13 December 2021, the applicant said, “… I want to go back to my home country, Bangladesh. All my problem now finished. Now… my mother is very sick. I want to go return to my home country …” DISCUSSION 16.The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:
17.As it would serve no practical purpose for his application, the Court should refuse to grant him the remedy and the applicant’s application should be dismissed. 18.The application is therefore dismissed. Dated the 3rd day of May 2022
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
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Cases cited in this judgment