BILLAL PARAMANIK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL650/2017

[2018] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 650 of 2017

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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Bangladeshi national who claimed to have arrived illegally in Hong Kong by boat on 21 April 2007.  He was arrested on 15 November 2007 and then lodged a torture claim on 8 December 2007.  That claim was incorporated with other claims and became a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 20 August 2015 and 14 June 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 18 August 2017.  He then filed a notice of application for leave to apply for judicial review on 19 September 2017 and requested an oral hearing.

2.  A notice of hearing for 9 February 2018 was posted to the applicant at the address supplied by him but he was absent at the appointed time.  It was posted by ordinary and registered post; the registered post letter was returned unclaimed.  A telephone call was made to the mobile telephone number supplied by the applicant in his application but that number belonged to a law clerk working in a solicitor’s firm.  Three days later on 12 February 2018, the applicant wrote and inform the court that he had a new mobile phone number and supplied it.  He also stated he was currently waiting for his legal application to be processed.  He also informed the court that on the morning of the hearing he felt unwell and went to the accident and emergency department of the Caritas Medical Centre in Sham Shui Po; he enclosed an invoice.  He wrote again on 15 January 2018 to say he was currently applying for legal aid.  In none of these letters does he disclose an address.

3.  A telephone call was made to the new mobile telephone number supplied by the applicant on 14 February 2018 but it was an unavailable and not registered telephone number.  I was satisfied that the applicant was sent a notice of hearing to the address he supplied and I was also satisfied that he was aware of the hearing date because he wrote to the court three days later but did not request another oral hearing.  He deliberately supplied a telephone number that was not registered.  I proceeded to consider his application on the papers.

4.  The basis of his claim was that if he were to return to Bangladesh he would be harmed or killed by Mohamed Selek (“Mohamed”) because the applicant had lost one of his rickshaws.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need to summarise it here.

5.  The applicant was a rickshaw driver who rented a rickshaw on a daily basis from Mohamed.  From 2001 to 2006 the applicant was used by Mohamed to transport drugs hidden in a secret compartment in his rickshaw around Dhaka.  It was only in around 2003 or 2004 that the applicant found out he was unknowingly involved in drug trafficking activities when he found a large amount of money inside a package.  However, the applicant could not stop working for Mohammed because in about 2003 the rickshaw he was driving was hijacked and stolen.  Mohammed would not let him report the robbery to the police but said that he had to continue working for him to compensate him for the loss of the vehicle.

6.  In mid-2006 the applicant’s rickshaw was stopped and searched by the police who found heroin in it.  He was arrested and detained for a few hours but was released on bail when someone sent by Mohamed bailed him out.  The applicant was never charged with possession or trafficking that heroin and he assumed it was because of Mohammed’s influence over the police.  Mohammed refused to let him stop transporting drugs around Dhaka and said that the applicant still owed him money for the loss of the rickshaw.

7.  The applicant eventually stopped working for Mohammed at the beginning of 2007 but within days of stopping work, suddenly police officers came to arrest him at his home.  He managed to hide from the police but the police left a warrant of arrest behind. After that the applicant’s uncle told him that the police had come several times looking for him when he was out.  The applicant said that he knew he was wanted by the Rapid Action Battalion (“RAB”) which meant if they found him they would kill him immediately.  He knew because they had come to his home looking for him.

8.  As soon as he knew that the RAB were involved, the applicant became very scared and left Dhaka immediately. After that, arrangements were made for the applicant to leave Bangladesh for Mainland China on 26 March 2007.

9.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

10.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He currently set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  He considered the applicant’s credibility.

11.  The adjudicator did not find the applicant a genuine claimant; his evidence contained inconsistencies and discrepancies which he did not resolve during the appeal hearing.  The adjudicator found that it damaged the applicant’s credibility that he entered Hong Kong on a passport which did not disclose his true identity and then proceeded to lodge a non-refoulement application using this false identity.  He did not thereafter produce documents of his real identity despite having ample time to do so.

12.  The adjudicator then set out the material inconsistencies and discrepancies that led him to conclude that the applicant was not telling the truth.  The evidence as to how and when he became suspicious of Mohamed’s activities was contradictory as was his evidence regarding when he finally stopped working for Mohamed.  The adjudicator believe that he continued to work for Mohamed after he knew of his illegal drug trafficking and his claim that he was not suspicious of him was inherently unbelievable.

13.  The fact the applicant did not mention his innocent involvement in drug trafficking at the beginning of his claim process to the Director further damaged his overall credibility.  Moreover, much of his evidence was hearsay, bare assertions and speculation.  Whilst hearsay was not in itself inadmissible, the weight which can be attached to such evidence is greatly reduced.

14.  The adjudicator did not believe the applicant was actually involved in any of the incidents he has described, did not attach any weight to his evidence and did not believe there was a real chance he would suffer ill-treatment of any sort if he returned to Bangladesh.  As a result of this finding, he found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.

Leave to apply for judicial review

15.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

16.  In the first ground, the applicant suggests that the appeal bundle was served just before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  In direct contradiction to this ground, the decision of the TCAB states that the applicant adopted the contents of the appeal bundle and elected to give evidence.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

17.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

18.  The third ground is a complaint that the applicant was unrepresented during the appeal hearing and the adjudicator did not tell him he could complain about the appeal bundle being in English and the applicant having insufficient funds to have it translated to him.  He was not told that he could complain about the inappropriate arrangements made for the fair disposal of the appeal.  He then added that he did not dare to complain because he was afraid of bias from the adjudicator.  I find no merit in this nonsensical ground.

19.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

20.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.

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