Mohamed Sarifdeen Sithy Sakeela v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 47/2018

[2018] HKCFI 1958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 47 of 2018

BETWEEN

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 44-year-old national of Sri Lanka who last arrived in Hong Kong on 26 July 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 July 2009 or within 14 days of its early termination.  However, when her contract was prematurely terminated on 30 November 2007 she did not depart at the end of her extended stay on 4 January 2008 and instead overstayed until 19 April 2010 when she was arrested by the police.  After she was referred to the Immigration Department for investigation, she raised a torture claim on 22 April 2010 with the Department which was rejected on 16 May 2011, and when her appeal was dismissed on 4 August 2011 she lodged a non-refoulement claim on 3 November 2013 on the basis that if she returned to Sri Lanka she would be harmed or killed by a man in high position of the Sri Lankan army who had raped her or by people from the Mosque and the Muslim community who had accused her of degrading Islam, or that she would be arrested by the Sri Lankan police due to her husband’s connection with the Liberation Tigers of Tamil Eelam (“LTTE”), or that she would be discriminated by the Sinhalese people.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Kurunegala, Sri Lanka.  After leaving school she worked as a foreign domestic helper in various places including Kuwait, Dubai, Saudi Arabia and eventually in Hong Kong.

3.One day in 1992 when she was still a school student on her way home from school, she was abducted by three men in army uniform and brought to a room tied and blindfolded where she was abused and raped by the three men and with photographs taken of her naked.  The applicant recognized two of them respectively as Nandasena and Sarath.  Afterwards she was taken to another room where there were other women and discovered that they were being used by the army as sex slaves. After being held for about 10 days the applicant and the other women managed to escape from the place.

4.After her return home the applicant discovered that Nandasena had forged a marriage certificate that they were married to each other and had distributed the photographs of her being naked in the village.  As a result she was being abused and ostracized by members of the mosque and the Muslim community, and when she discovered that she had become pregnant as a result of the rape, she moved to another place where she subsequent gave birth to a son whom she named Nandasena as the father.

5.In 1995 she travelled to Kuwait to work as a domestic helper while her mother looked after her son.  In 1997 she returned to Sri Lanka and when she discovered that she was being followed by Nandasena, she decided to travel to Dubai to work as a domestic helper when she met a Tamil man named Karan at the airport.  She became his girlfriend and corresponded regularly while he worked in Saudi Arabia.  In 1999 they returned to Sri Lanka and got married in Colombo where they stayed in the house of her husband’s friend named Raja.

6.After the marriage the applicant noticed scars on her husband’s body and weapons stored in the house of his family in Baticaloa of North Sri Lanka.  Upon leaving Baticaloa she lost contact with her husband, and later when she returned to Baticaloa she found his family house destroyed and she was arrested by the solders there.  She was then taken to an army base where she was questioned about her husband whom they suspected to be connected with LTTE during which she was abused and raped.  Eventually she was released after being forced to sign a document promising to assist the army to locate her husband, she then fled to the home of Raja in Colombo before departing for Saudi Arabia with his help to work as a domestic helper.

7.In April 2000 with the help of Raja she was able to contact her husband and was told that he was living in France as a recognized refugee.  She thereafter travelled with her employer to Paris where she spent the evenings with her husband.  Afterwards she left with her employer to the United Kingdom and Germany before returning to Saudi Arabia.

8.In late 2001 she lost her job in Saudi Arabia and returned to Sri Lanka where she stayed at Raja’s place in Colombo until June 2002 when she left for Hong Kong to work as a domestic helper.  In late 2006 she returned to Sri Lanka where she noticed that she was being followed by Nandasena and that she was in the police’s watch list, she therefore decided to leave for Hong Kong again but when she was on her way to the airport she was kidnapped by three men on a van and managed to escape after the van had an accident with another vehicle and fled to her parents’ home in Kurunegala.

9.One day in April 2007 whilst she was waiting in her parents’ home for her agent to find work for her in Hong Kong, two men wearing helmets approached her and when she fled to her neighbour’s house she heard gun shots from behind.  Eventually she was able to return to Hong Kong on 26 July 2007 to work as a domestic helper and subsequently overstayed and raised her torture claim.

10.In 2011 while her torture claim was being processed she was informed by her mother in Sri Lanka that her son had been arrested by police for taking part in a school strike, and after he was released he was abducted on the next day by members of the Navy Special Task Force and has not been seen again, and that Nandasena had also kidnapped, raped and killed a cousin of hers, information which she subsequently included in her non-refoulement claim when she completed a Supplementary Claim Form (“SCF”) on 20 August 2015 with legal representation from the Duty Lawyer Service.  In support of her claim she also submitted various documents including the marriage certificate allegedly forged by Nandasena, the birth certificate of her son, and a report by Ms Janice Chan of RainLily Project Office with whom she had been receiving counselling and which suggested that the applicant is suffering from Post-Traumatic Stress Disorder (“PTSD”).     

11.By a Notice of Decision dated 13 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

12.In his decision the Director found inconsistencies and discrepancies in the applicant’s statements made in her SCF and Records of Interviews (“ROI”) that caused grave doubt as to her credibility, that there was no evidence at all of any problem from the mosque or the Sinhalese people as asserted, that it is not accepted that she is in the watch-list of the Sri Lankan government or is wanted by the police, that if such risks of her asserted fear of harms are real and still persist, objective Country of Origin Information (“COI”) show that state protection would be available to her if resorted to, and that COI also show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for her as an able-bodied adult with work experiences to safely move to other areas away from her home district such as Colombo where she had lived before and where it would be difficult if not impossible for her enemies to locate her.     

13.By a Notice of Further Decision dated 25 July 2017 the Director again rejected the applicant’s claim after considering further submission by her relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

14.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the appeal of which she filed on 27 July 2016, and for which she attended an oral hearing on 6 October 2017 with legal representation before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board whilst her counsel also made arguments and submissions on her behalf.  On 20 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

15.In its decision the Board found the applicant’s account riddled with material and unexplained inconsistencies, was extremely vague and incoherent in relation to fundamentally important points, was self-contradictory and evasive which could not account for matters which the adjudicator considered to be serious general credibility concerns, and concluded that even taking into account the lower standard of proof and the severe consequences to the applicant by a wrong decision, the description that the applicant has given of her rape in 1992 and of later events arising from it can be given no credence whatsoever, and that even if she has experienced an event so traumatized her in some way and even if she does suffer from some form of PTSD according to her report, it was found that she has chosen to provide no true information about what could have caused those psychological consequences that nothing she has told the adjudicator can be given any credence whatsoever, and similarly none of the other matters put forward by her can be given any credence whatsoever, in particular her claim to have been linked in any way with the LTTE, or to have been picked up in the North during the civil war, or to have been abused and ostracized by the Muslim community, or her claim that her son has disappeared and other members of her family have been murdered by the person who raped her.    

16.On 9 January 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that the adjudicator should have granted an adjournment to obtain the statement of Ms Janice Chan or to call her to give evidence on her behalf as to her Post Traumatic Stress Disorder, or that her report should have been accepted as evidence as neither the Director nor the Board has called any medical evidence to rebut her findings; and

(2)  that the adjudicator should have considered each fact separately when deciding on her credibility instead of rejecting all her claim when only parts of her evidence were not accepted. 

17.The second ground can be disposed of quickly for lack of particulars or specifics or elaboration by the applicant as to how it applied to her case.  Clearly the adjudicator did carefully consider the facts and evidence of each relevant issue both separately and as a whole in her very detailed analysis and examination set out at length in her 38-page decision, and I do not find any basis at all in this complaint of the applicant.

18.As for the first ground in which the applicant complains that the adjudicator failed to adjourn the hearing to obtain a statement from Ms Chan with whom she attended one session of post-traumatic counselling on 3 August 2015, or to call her to give evidence or to accept her report as evidence as neither the Director nor the Board has called any medical evidence to rebut Ms Chan’s findings, it would be relevant to first consider how Ms Chan came about preparing her report on the applicant.  

19.According to her report Ms Chan had one single meeting with the applicant on 3 August 2015 during which the applicant presented “by self-report and the counselor’s observations” with symptoms that suggest PTSD as characterized by certain criteria listed in the report.  Ms Chan also included her educational qualifications with a Bachelor of Science in Psychology and a Master of Arts in Professional Counselling with occupational background as a professional counselor in various projects including post-traumatic counselling for sexual violence survivors.  

20.As noted above this report of Ms Chan was earlier made available to the Director and was referred to in his decision, and at her appeal hearing before the Board on 6 October 2017 counsel for the applicant requested for an adjournment of the hearing so that Ms Chan could be called as her witness but was refused by the adjudicator who gave the following reasons and findings over Ms Chan’s report in her decision, starting first as to why she did not regard Ms Chan as appropriately qualified to make any medical diagnosis of the applicant:

“ 59. Since it would be potentially significant for the presentation of the appellant’s entire claim, I turn first to the medical evidence consisting of an undated report from Ms Janice Chan, apparently based on a single meeting with the appellant on 3 August 2015 (although I understand there have been subsequent counselling meetings since then). Ms Chan sets out her qualifications in the report and these include a BSc in Psychology and an MA in professional counselling. She is described as a licensed counsellor in the US State of Illinois. She is not, from the qualifications in the report, a medical practitioner, a psychiatrist, a registered clinical psychologist or a person appropriately qualified to make a medical diagnosis as counsel for the appellant suggests she does in the report. Ms Chan sets out her experience as a counsellor and project officer working with crisis intervention and post-trauma counselling for victims of sexual violence both in local organizations and the UNHCR, but again this does not suggest she is medically qualified and can make a diagnosis of a mental disorder.

60. The submissions made on behalf of the appellant were to the effect that Ms Chan has diagnosed the appellant as a person who suffers from post-traumatic stress disorder (“PTSD”), that the appellant’s account to Ms Chan of the rape incident is the cause of that diagnosis and that I should therefore accept the rape incident. One difficulty with those submissions, quite apart from the other problems identified above and below with the report itself, is that the report makes no diagnosis at all (perhaps quite properly as the writer is not appropriately qualified). The most Ms Chan says is that ‘Ms Mohammed presented (by self-report and counsellor’s observations) with symptoms that suggest post-traumatic stress disorder (emphasis added)’. This is very far indeed from an actual diagnosis.

61. Furthermore, the report states that the criteria referred to by Ms Chan have been established by observation and by the self-report of the appellant.  The writer of the report provides no information whatsoever about the diagnostic tests that have been carried out in order to establish the possibility of PTSD, makes no mention whatsoever of the symptoms she regarded as suggestive of the various criteria for PTSD she sets out and says nothing about the diagnostic criteria she considers establish the particular form of PTSD or why.”

21.The adjudicator then proceeded to explain why she refused the applicant’s request for an adjournment of the hearing:

“ 62. Counsel for the appellant had wished to call the writer of this report to give evidence and had requested an adjournment on that basis. Given the fact that the writer of the report is not appropriately qualified, merely being a licensed counsellor in the USA and not a medical practitioner with expertise in psychological disorders such as PTSD, and given she herself does not purport to make a firm diagnosis (contrary to counsel’s suggestion), her appearance before me could not have taken the matter very much further, even if I accepted (as I do) that she has been seeing the appellant regularly for counselling as was put to me during the hearing.”

22.The adjudicator then explained her findings of the relevancy of possible PTSD in the applicant to her credibility in her claim:

“ 63. Even if I were to accept on its face what the report says in relation to the appellant suffering from some form of PTSD, it does not follow that I must inevitably accept the explanation given for those symptoms or that her PTSD could reasonably explain the very serious, material and fundamental discrepancies in her account both relating to the alleged rape event and to all other aspects of her claim, including those which had nothing to do with her alleged trauma. I note that even on the face of the report Ms Chan says that one of the criteria for a diagnosis of PTSD is the ‘inability to recall an important aspect of the trauma’. This does not suggest an inability to coherently to remember even the most basic aspects of the event or subsequent events leading from it, or accurately to describe events that had nothing whatsoever to do with the trauma many years later. For the reasons I set out in detail below, even if this appellant does suffer from some form of PTSD consequent on some traumatic event in her past, whether rape or otherwise, I have no doubt whatsoever that the account she gave me contained no other element of the truth.”

23.Given the fact that notwithstanding that the report had earlier been submitted as evidence before the Director when the applicant’s credibility was still called into grave doubt in his decision, the applicant and her legal representation should have been well aware that her credibility would again become a major issue in her appeal before the Board and hence would have had ample time and opportunity to call Ms Chan to give evidence as her witness at the appeal hearing instead of having to seek an adjournment to do so, which when coupled that with the reasons given above, I can well see why the adjudicator was not sympathetic to the applicant’s request for adjournment, or why she did not find Ms Chan’s report would advance the applicant’s case any further when it came to the assessment of the applicant’s credibility.

24.As noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.  In the circumstances I do not find that the adjudicator had erred in law in her decision regarding Ms Chan’s report or that it was irrational or Wednesbury unreasonable, or that there was any procedural unfairness in her refusal of the applicant’s request for adjournment.     

25.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

26.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 7^th day of September 2018.

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