M v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 587/2019

[2021] HKCA 1523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 587 OF 2019

(ON APPEAL FROM HCAL NO. 179 OF 2016)

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Before: Hon Poon CJHC, Barma JA and Au JA in Court

Date of the Applicant’s Written Submissions: 27 February 2020

Date of the Putative Interested Party’s Written Submissions: 16 March 2020

Date of Judgment: 19 October 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge ST Poon (as he then was) dated 29 June 2018 refusing to grant extension of time for the applicant’s application for leave for judicial review ([2018] HKCFI 1461).  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 June 2016 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2014 in rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Sri Lanka.  She entered Hong Kong on 7 July 2007 to work as a foreign domestic helper.  When her contract was prematurely terminated, she overstayed and was arrested by the police on 26 July 2009. 

3.On 28 July 2009, the applicant filed an Interview Report (Grounds for non-removal) to the Immigration Department (“Written Signification”) in which she stated:

“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 Rs350,000 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.”

4.On 25 July 2013, the applicant completed a torture claim form (“TCF”) where she stated that her late father was a businessman and had a dispute with the Provincial Councillor of Monaragala District (“PC”).  The applicant understood from a friend (Gamini) that her father died from electrocution on 19 April 2005.  The applicant suspected his death was connected with PC. 

5.In around July 2005 she went to the Monaragala Police Station to report her father’s death.  She was told her complaint could not be registered because by then more than 3 months had passed since her father’s demise.  The police officer also stated he would not record a complaint against “his friend”.  She was then led to a room where 3 police officers took turns to rape her.

6.The applicant lost consciousness and woke up in a hospital the following day.  The applicant was hospitalized for 2 days.  The doctor called the applicant’s brother and mother and told them she was raped.

7.On the day after she returned home, her mother and brother reported the rape in the Minuwangoda Police Station.  The police officers promised to investigate. In around August 2005, the PC came to her home with other police officers and made threats to her mother.  After this incident, PC, the police and other people made threats against her to her family.  Fearing for her life, she applied to work as a foreign domestic helper in Hong Kong with the assistance of a friend in 2007.

The Board’s decision

8.By a Notice of Decision dated 31 October 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

9.The applicant appealed to the Torture Claims Appeal Board.  After the hearings on 9 March 2015 and 7 July 2015 in which the applicant gave evidence, the Board dismissed the appeal on 8 June 2016 (“the Board’s Decision”).

10.The Board held that the credibility of the applicant was questionable.  The Board made the following observations at [32] and [34] – [37] of the Board’s Decision:

“32. Overall, the credibility of [the applicant] is questionable. She gave conflicting answers in relation to an important element of 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.

37.  Whilst hearsay evidence is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced.  Hearsay evidence cannot prove the truth of facts which are asserted by way of hearsay. Speculation or theory can never support any element of the [applicant’s] case.”

The judge’s decision

11.The applicant filed a Form 86 on 12 October 2016 (amended on 26 June 2017) which contained the following grounds for judicial review:

(1)  in the Director’s Decision, the Director conceded that the applicant had been raped.  Because of this concession, the applicant was led to believe that this was no longer an issue and did not address this issue before the Board.  The Board was wrong to question her credibility for this reason.  Further, the Board failed to consider the applicant’s justification for the inconsistency between the Written Signification and the case before the Board (“Ground 1”);

(2)  the Board was wrong in (i) finding that the applicant was not credible because her account on being raped was inconsistent ([43] – [45] of the Board’s Decision) and (ii) finding that the diagnosis ticket which reported “forceful vaginal intercourse” did not corroborate the applicant’s case of rape (“Ground 2”); and

(3)  the Board misdirected itself on the law by attaching no weight to hearsay evidence adduced by the applicant and further, its reasoning with regard to such hearsay evidence was self-contradictory (“Ground 3”).

12.The applicant accepted that she was late in bringing the application for leave for judicial review.  In §36 of the Amended Form 86, she explained that the delay was mainly contributed by the time taken by the unsuccessful legal aid application (2 months and 9 days).  Further, those representing the applicant were acting on a pro bono basis and were occupied by other cases.  The applicant and those representing her had used their best efforts in trying to bring the judicial review application as early as possible.

13.On 17 July 2017, Ms Law Siu Wai Sophia of the Immigration Department filed an affidavit on behalf of the putative interested party.  She deposed that the applicant failed to fulfil her duty of full disclosure by disclosing all the steps she took between the day when the Board’s Decision was handed down and when she filed the Form 86.  The court should not grant an extension of time for bringing the application for leave for judicial review.

14.On 9 August 2017, the applicant filed an affirmation stating that she had disclosed all the necessary facts.  She also took the opportunity to inform the court that the Director had refused her claim under the BOR 2 risk^[4] on 7 July 2017 and that she had filed a petition to make an appeal to the Board against the decision by the Director. 

15.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [21] to [31] of the judgment dated 29 June 2018:

“21. In AM v Director of Immigration [[2014] 1 HKC 416], McWalters J (as he then was) had this to say:

‘… 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.

23. The standard of proof is a degree of likelihood or a ‘real chance’ of harm if refouled. While the difficulties of proof faced by persons fleeing their countries should be recognised.

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 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 [Putative] Interested Party, it is well established that a hearing before the Appeal Board is a fresh hearing 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.”

Grounds for appeal

16.In the Notice of Appeal dated 17 December 2019 the applicant advanced the following grounds of appeal:

(1)  the judge erred in finding there was no merit in each of the applicant’s three grounds of review;

(2)  the judge failed to properly address the applicant’s complaints in each ground of review;

(3)  the judge failed to give adequate reasons for his findings in the judgment;

(4)  the judge failed in his duty to engage substantively with the issues and matters raised in the Amended Form 86; and

(5)  the judge erred in refusing leave on the ground of delay when the applicant’s application has merits and she was not guilty of delay.

17.On 27 February 2020, Ms Kirsteen J Lau, counsel for the applicant lodged skeleton submissions where it was submitted that:

(1)  the applicant duly made an application for legal aid after receiving the Board’s Decision and that her application was delayed by the unavailability of an interpreter.  Further, those representing her had been acting on a pro bono basis and the delay was only about a month.  Her application should not have been dismissed on the basis of delay;

(2)  the restatement by the judge of the applicable public law principles in his decision does not by itself show that the judge had engaged and dealt with the grounds for judicial review; and

(3)  the grounds for judicial review were all reasonably arguable and the judge should have granted leave for judicial review.

18.On 16 March 2020, the Director (the putative interested party herein) lodged skeleton submissions with a view to assisting the court.  The Director was represented by Ms Leona Cheung (with Ms Karen Ngai).  It was submitted that the Director maintains a neutral stance in the appeal and that no costs order should be made for or against the Director.  The Director reserves his position in the substantive application for judicial review.

19.The Director submitted that:

(1)  on the proper interpretation of the Director’s Decision and the submissions provided by the Director at the hearing before the Board, the Director never conceded that the applicant had been raped. In fact, the applicant’s submissions before the Board suggests that those representing the applicant were aware of the true position of the Director as well;

(2)  the Director accepted that the judge did not deal with the second limb of Ground 1 concerning the lack of consideration by the Board for the applicant’s justification regarding the inconsistency between the Written Signification and the TCF;

(3)  the Director accepted that the judge did not consider one of the issues in Ground 2, namely, the Board was wrong in its evaluation of the applicant’s account as to how she found out she had been raped.  It is reasonably arguable that the account given by the applicant for this issue was not on its face inconsistent;

(4)  the Director also accepted that it is reasonably arguable that the Board misdirected itself in the law regarding hearsay evidence when it held that “hearsay evidence cannot prove the truth of facts which are asserted by way of hearsay”; and

(5)  given the above, the Director does not take issue with delay.

20.The hearing for the appeal was originally fixed to be heard on 26 March 2020.  Due to the closure of the court in the light of the then public health crisis, the appeal could not be heard on 26 March 2020.  On 23 March 2020 the court made the directions that parties should indicate whether they would agree to paper disposal and to show cause if they did not.  Both parties confirmed in writing that they would consent to paper disposal and accordingly the appeal was disposed of on paper.

Discussion

21.We first deal with the merits of the applicant’s complaints.  We agree with the judge’s assessment of the first limb of Ground 1 in relation to the alleged concession by the Director: see [25] - [26] of his judgment.  A careful reading of the Director’s Decision and the submissions by the Director clearly shows that the Director had not made any concession that the applicant had been raped, as she contended.  The matter, however, did not stop there.  For irrespective of whether the Director had made the concession, the Board is under a duty to make its own finding of facts after a rehearing ([70] – [71] of IL v TCAB & Anor (HCAL238/2015, 11 July 2017, unreported)).  In this regard, the applicant complained that the Board failed to consider her explanation for the inconsistency between the Written Signification and the claims in the TCF.  At §21 of the TCF, the applicant stated:

“When I was in CIC, I was told by the interpreter that I could be released by putting forward the reasons as those stated in the interview report (grounds for non-removal). I could not relate my problems to him because it was a male interpreter.”

22.At [34] of the Board’s Decision, the Board noted the apparent inconsistency between the reasons given in the Written Signification and the TCF and held that it undermined the applicant’s credibility.  The Board neither referred to the applicant’s explanation at §21 of the TCF nor asked the applicant to explain the inconsistency.  In our view, this gives rise to a serious issue of whether the Board had properly considered all relevant factors in assessing the applicant’s credibility.  And apparently, the judge had not addressed this aspect of the applicant’s complaint.

23.As for Ground 3, we accept that it is reasonably arguable that the Board made an error of law in its treatment of hearsay evidence.  At [37] of the Board’s Decision it was held that:

“Whilst hearsay evidence is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced. Hearsay evidence cannot prove the truth of facts which are asserted by way of hearsay…”

24.At [55] the Board held that:

“All of this evidence [on the threats made by PC, the police and other people to her family] is based solely on hearsay and, for that reason, I am unable to attach any weight to the evidence.”

25.At [59] the Board held that:

“[The applicant’s] evidence that the PC, the police and other people had regularly called to her mother’s home is based solely on hearsay evidence and, for that reason, I am unable to attach any weight to the evidence.”

26.From the paragraphs above, it is at least reasonably arguable that the Board took the erroneous view that no weight should be attached to all hearsay evidence. 

27.As for Ground 2, this court has repeatedly held that the primary decision maker is the Board and that an applicant for leave for judicial review needs to identify public law errors in the Board’s Decision.  That said, the challenges to the findings of fact by the Board referred to in Ground 2 may become arguable in light of the issues raised in Ground 1 and Ground 3.  If the applicant is ultimately successful in any of those grounds, every aspect of the fact-finding exercise by the Board would be brought into question. 

28.As to delay, the Director is correct in our view in not taking any issue as to this.

Conclusion

29.For the above reasons, we allow the appeal.  We grant leave to the applicant for judicial review based on Ground 1 (save and except the limb based on the Director’s concession that she had been raped), Grounds 2 and 3.  We further order costs of the appeal be in the cause of the judicial review and the applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Ms Kirsteen J Lau, instructed by Vidler & Co, assigned by the Director of Legal Aid, for the applicant

Ms Leona Cheung, Senior Assistant Law Officer and Ms Karen Ngai, Government Counsel, of the Department of Justice, for the putative interested party