Islam Ashraful v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 1003
Judgement NumberHCAL2998/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL2998/2018 ISLAM ASHRAFUL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2998/2018

[2020] HKCFI 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2998 of 2018

BETWEEN

Islam Ashraful Applicant
and
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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 documents only; or
consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1. The applicant is a Bangladeshi national. He came to Hong Kong illegally on 14 March 2014, the same day he was arrested by police. On 19 March 2014, he lodged a non‑refoulement claim.

2. He claimed that if refouled, he would be killed by the members of the Awami League (“AL”) owing to the fact that he was a member of Chatra Dal, the student group of Bangladesh Nationalist Party (“BNP”).

3. He had mentioned two incidents in Bangladesh, which caused him to leave his country and fled for Hong Kong. The first incident happened in mid-2011 where there was an election for Tontor Union Chariman. The AL group announced victory, but his group took the view that the election was raked. His group did not recognize the result and they had a fight with the AL members. Each group had about 15 to 20 people. Police came and one officer was injured. He and another member fled. He went home, but was told that police were coming for him. He went to Dhaka to stay in his friend’s place. The second incident took place in March 2014 where the BNP member won the election as chairman of Shreenagar Police Station. He and his group of people went celebrating in the street. Sixty to seventy AL members came to attacked them with sticks and knives. His left elbow was twisted and he had sustained bruises. However, he managed to escape. He went to Dhaka and other places at his friends’ homes. He decided to leave the country. He was advised to come to Hong Kong.

The Director’s Decision

4. The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5. By Notice of Decision dated 5 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6. The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 16 August 2018.

7. By Decision dated 3 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8. The Board considered the applicant’s evidence. It came to the conclusion that those incidents were fighting for the sake of antagonism, not for political opinion argument [29]. The Country of Origin Information showed that there would be state protection for the applicant if he returned to Bangladesh [31]. Also, the Board found that the incidents were local incidents. The option of internal relocation was open to him [32]. The applicant has stayed in Hong Kong for four and a half years. The AL members should have forgotten about him [36]. The applicant had not established that he had genuine and substantial risk to life to face in Bangladesh [37].

9. The Adjudicator came to the above conclusion having applied the relevant statutory provisions and the...

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