Litu Mia v Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Judgment Date23 April 2021
Neutral Citation[2021] HKCA 535
Judgement NumberCAMP176/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP176/2020 LITU MIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 176/2020

[2021] HKCA 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1278 OF 2018)

________________________

BETWEEN
Litu Mia Applicant
and
Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office Putative Respondent
and
Director of Immigration Putative Interested Party

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 23 April 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 10 June 2020, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2. On 7 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 24 June 2020. The application was heard by the judge on 6 August 2020 and dismissed on 10 September 2020[2].

3. On 25 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge’s decision of 10 June 2020.

4. The applicant is a national of Bangladesh. He is 41 years old. He entered Hong Kong illegally in October 2013 and was arrested by police on 14 November 2013. He raised a non-refoulement claim on 27 June 2014 on the basis that if he returns to Bangladesh he will be harmed or killed by a local leader of the rival political party Awami League (“AL”) for failing to pay extortion money.

The Director’s decision

5. By a Notice of Decision dated 17 March 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. An oral hearing was conducted before the Board on 13 June 2018. The Board found that the applicant’s case is not genuine because of the significant inconsistencies in his evidence. The Board held that there is no substantial ground for believing that the applicant would be in danger of being tortured or killed by the AL supporters or members. The Board considered that it would be safe for the applicant to return to his home country and dismissed the appeal on 22 June 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 4 July 2018 to seek leave to apply for judicial review against the decision the Board. He put forward the following grounds for his intended challenge:

(1) misdirection in law for the adjudicator to wrongfully take into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there would be risk of torture in future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin Information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or to put proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyse and assess whether state protection exists in Bangladesh and misdirecting himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

The judge’s decision

8. DHCJ Bruno Chan heard the leave application on 11 September 2019. The judge found that the applicant’s complaint for which he has provided some elaboration is the one concerned with the...

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1 cases
  • Litu Mia v Torture Claims Appeal Board / Non-refoulement Claims Petition Office
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 11 June 2021
    ...to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 23 April 2021 ([2021] HKCA 535). The Court of Appeal dismissed his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan da......

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