M v. Torture Claims Appeal Board

HCAL 179/2016

[2018] HKCFI 1461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 179 OF 2016

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J U D G M E N T

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Introduction

1.On 31 October 2014, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim under the Unified Screening Mechanism (“USM”).  The Applicant appealed/petitioned to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Appeal Board”) and the Adjudicator[1] refused her appeal/petition on 6 June 2016 (“the Decision”), following two hearings held on 9 March and 7 July 2015. 

2.This is the Applicant’s application for leave to apply for judicial review against the Decision.  The Form 86  was filed on 12 October 2016 and hence, the application was out of time for over 1 month[2].

The Applicant’s claim

3.The Applicant is a Sri Lankan national.  She was born on 26 March 1984 in the town of Elpitiya, Sri Lanka.   

4.The Applicant first entered Hong Kong for employment as a foreign domestic helper on 7 July 2007 but her employment contract was prematurely terminated on 17 February 2008. She overstayed from 3 May 2008 onwards and was arrested by the police on 26 July 2009.  She was then referred to the Immigration Department on 27 July 2009.  She completed a torture claim form on 25 July 2013 (“the TCF”) and a supplementary claim form on 5 May 2014.  Five screening interviews were conducted thereafter for consideration of her claim.

5.The Applicant’s case, as disclosed in the TCF, is that, in 2005 she was raped by a number of police officers when she went to the police station to report the involvement of a provincial councillor in the killing of her father.  She believes the rape was carried out at the instigation of the provincial councillor.  Thereafter, the police and other representatives of the provincial councillor searched for her and threatened her and her family.  She then left her district and eventually left Sri Lanka.  She fears that she would be harmed or killed by the provincial councillor, the police or any person acting under their instructions if she were to be returned to Sri Lanka.  

6.However, in the Applicant’s written grounds for non-removal dated 28 July 2009 (“the Written Signification”), which was prepared one day after her referral to the Immigration Department, she stated that she feared refoulement to Sri Lanka as she owed money to a loan-shark and it reads:

“I cannot go back to my country as my life is in danger. Prior to coming to Hong Kong I had borrowed a large sum of money amounting to Rp350,000 from a loan shark in order to get a job in Hong Kong through an agent. I was only able to work for 9 months. The money is due with interest and the loan shark is threatening my family and me. They have told my parents if I return to Sri Lanka without paying the loan that they will kill me. So please help me.”

7.Nothing was mentioned then about the rape and the suspected killing of his father by somebody.  The explanation given by the Applicant on the inconsistency is that she was told by the interpreter assisting her to give this account.

The Decision

8.In assessing the credibility of the Applicant, the Adjudicator has the following to say in his written decision[3]:

“32. Overall, the credibility of [the Applicant] is questionable. She gave conflicting answers in relation to several matters, including an important element for her case, i.e. the alleged rape…

34. In general, [the Applicant] did not appear to be a witness of truth and her answers were often evasive. After she came to Hong Kong, [the Applicant] did not tell anybody about her alleged rape although she had sought assistance from the charity Christian Aid when she experienced difficulty with her employment in Hong Kong. In her grounds for non-removal given shortly after her arrest, [the Applicant] only mentioned that she was being threatened by a loan-shark.

35. Her failure to mention the sole ground on which she now relies is not compatible with her claimed fear of ill-treatment if she is refouled to Sri Lanka.

36.   A large part of the [Applicant’s] case is based on what she had been told by others. She has no personal knowledge of those facts asserted by her since she did not personally witness those events.  All of this evidence amounts to hearsay.  Much of [the Applicant’s] evidence in relation to her father’s death, and all of her evidence as to future risk is based solely on speculation.”

9.While acknowledging that hearsay evidence is not of itself inadmissible, the Adjudicator expressed that the weight which can be attached to such evidence is, by its nature, greatly reduced.

10.The Adjudicator finds that all of the Applicant’s evidence relating to her father’s death and the relationship between her father and the provincial councillor is based on hearsay and her evidence that the provincial councillor had deliberately engineered the death of her father is based solely on speculation. As regard the alleged threats by the people of the provincial councillor and the police to her and her family, it is also based solely on hearsay evidence.

11.In addition, the Adjudicator also finds that the Applicant’s evidence that the provincial councillor, the police and other people had regularly called to her mother’s home is based solely on hearsay evidence.

12.Regarding the alleged rape by policemen at the police station, the Adjudicator comments that the Applicant’s evidence is rather vague and general.  Although the “Diagnosis Ticket” submitted by the Applicant shows that the Applicant was subjected to forceful sexual intercourse, it does not, of itself, corroborate the Applicant’s evidence that she was raped.

13.The Adjudicator finds that the Applicant’s assertion that the provincial councillor had instigated the alleged sexual assault at the police station is based entirely on her own speculation based on hearsay evidence.

14.The Adjudicator finds himself not persuaded, even to the low standard applicable, that the Applicant would face ill-treatment of any sort if she is refouled to Sri Lanka.

15.Based on such finding the Adjudicator decided that the Applicant fails under all heads of her claims and affirmed the decision of the Director of Immigration. 

The Applicant’s grounds of judicial review

16.The Applicant has advanced 3 grounds of review in her Amended Form 86 which are as follows:

(1)   the Decision was procedurally unfair and/or improper;

(2)   the Decision was irrational; and

(3)   the Decision was unlawful and/or unreasonable.

17.Regarding the Applicant’s first ground of review, the Applicant argues that the Director has conceded that she was raped in the past and therefore it was no longer a live issue before the Appeal Board as to whether the rape had happened or not.  The Applicant submitted that the Principles, Procedure and Practice Directions of the Appeal Board required hearings to be directed at live issues only and there is a limit to which appeals before the Appeal Board are hearings de novo. The Adjudicator was therefore wrong in going behind the concession made by the Director and relying on the inconsistency to make an adverse finding against the Applicant on her credibility.

18.Besides, the Applicant also complains that the Adjudicator did not directly address the Applicant on the inconsistency between the Written Signification and her eventual claim at the hearings before the Appeal Board.  As such, the Applicant and her legal representatives did not know the case that the Applicant had to answer and were denied the opportunity to make worthwhile representations.  Also, the Adjudicator had failed to take into account the Applicant’s explanation for the inconsistency in finding her evidence incredible.

19.The Applicant’s second ground of review relates to the Adjudicator’s finding that the “Diagnosis Ticket” submitted by the Applicant shows that the Applicant was subjected to forceful sexual intercourse but it does not, of itself, corroborate the Applicant’s evidence that she was raped.  The Applicant submitted that it was irrational of the Adjudicator to reject her evidence which is supported by contemporaneous medical evidence.

20.The Applicant’s complaint in respect of his third ground of review is that the Adjudicator has misdirected himself on the law by attaching no weight to the hearsay evidence adduced by the Applicant. 

Discussion

21.In AM v Director of Immigration[4], McWalter J (as he then was) had this to say[5]:

“… irrespective of how poor a country’s security position may be and irrespective of the extent to which the State, by its attitude and inaction, may have contributed to this situation, the question always returns to the position of the claimant himself and whether it has been established that ‘there are substantial grounds for believing that he would be subjected to torture’ should he be returned to his country of origin.”

22.The burden of proving that there are substantial grounds for believing that the Applicant would be subjected to torture lies on the Applicant.  The Applicant must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity”; and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment[6].

23.The standard of proof is a degree of likelihood or a “real chance[7]” of harm if refouled. While the difficulties of proof faced by persons fleeing their countries should be recognised[8].

24.The main reason for the Adjudicator to reject the Applicant’s claim is that the Adjudicator was not satisfied that the Applicant has discharged her burden to prove that she would face ill-treatment of any sort if refouled.  The Adjudicator has in his Decision[9] correctly set out the relevant legal principles regarding the burden and standard of proof.

25.Regarding the Applicant’s first ground of review, as submitted by Ms Lui, counsel for the Interested Party, it is well established that a hearing before the Appeal Board is a fresh hearing[10] and the Adjudicator should not be bound by any concession made by the Director. 

26.Moreover, I agree with Ms Lui that the Director had only assumed that the rape had actually happened in giving his analysis which cannot be regarded as having conceded that the rape had actually happened.

27.In my view, the first ground of review of the Applicant is not reasonably arguable and have no realistic prospect of success.

28.As regard the second ground of review.  Although it might be true that the Diagnosis Ticket of the Applicant does to some extent support the Applicant’s case that she has been raped and admitted to the hospital.  However, what was written on it was only that she was subjected to forceful sexual intercourse.  I am of the view that the Adjudicator is entitled to form a view that the allegation of the Applicant that she was raped by policemen in the police station is untrue taking into account the overall quality of the Applicant’s evidence.  It cannot be said that the Adjudicator’s Decision is irrational in any sense.

29.The third ground is equally without force.  The Adjudicator has made it clear in his Decision that hearsay evidence is not of itself inadmissible.  He is entitled to attach little weight to the hearsay evidence in the circumstances.

Delay

30.In the light of my above findings, the Applicant’s application for extension of time to apply for judicial review shall be refused for devoid of merits.

31.The Applicant’s application for leave is dismissed on the merits and also for the reason of delay.

Ms Kirsteen James Lau, instructed by Vidler & Co, for the Applicant

Ms Ann T Y Lui, instructed by the Department of Justice, for the Putative Interested Party