MOHAMED HASAM NIRMALA GHOUSE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2435/2019

[2025] HKCFI 1505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2435 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 13 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 June 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is a Sri Lankan national.  She last entered Hong Kong on 16 November 2016 to work as a foreign domestic helper.  She overstayed since 6 August 2017 after her employment was prematurely terminated.  She surrendered to the Immigration Department on 31 August 2017. On 18 September 2017, she made a non-refoulement claim.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Si Lanka, she will be harmed or killed by her husband, her lover, their political parties, and gangsters because of her extra-marital affairs and by religious groups because she had adopted her father’s Muslim name.

4.  The Applicant, now aged 42, was born in Colombo, Sri Lanka.  She is married with no children.  Her parents, two siblings, husband and lover are living in Sri Lanka.  She received formal education for 11 years and had seven years’ experience working as a casual factory worker, and as a domestic helper in Singapore and Hong Kong.  

5.  She said she married her husband in January 2003 when he was a sergeant in the army.  He is a dominating and violent person.  He left the army in 2004 to join his friends to work for some political parties, such as the United People’s Freedom Alliance (“UPFA”) and the United National Party (“UNP”).  He had connections with underworld gangsters.  He did all kinds of dirty work for the political parties in power to harass the opposing parties.  She witnessed him killing and assaulting civilians.  Since 2004, he subjected her to domestic violence when he was drunk.  He always told his men that they could have a “good time” with her.  His men did indecent acts before her and forced her to watch porn video with them.  To avoid her husband and his men, she hid in her parents’ home.  There was an occasion in 2007 that her husband and his men forced her out of her parents’ home and attempted to rape her.

6.  Towards the end of 2007, the Applicant started a love affair with a friend of her husband who was a UPFA member doing similar kind of work as her husband’s for the UPFA and the UNP.  She said that her lover had a good relationship with gangsters and a minister of the government called Chula Mendis.  He gave her money and asked her to divorce her husband, but she refused as she was afraid to propose a divorce.  Then, he assaulted her, threatened to post their love photographs up in the Buddhist temple in her village, and demanded her to repay all the debt she owed him amounting to about 200,000 Sri Lankan Rupee.  After knowing about her relationship with her lover, her husband assaulted her more frequently and fiercely.

7.  To stay away from her husband and her lover, the Applicant went to work in Singapore as a domestic helper from 2014 to 2015.  Before coming to work in Hong Kong in 2016, she stayed in her parents’ home, during which time she had not been harassed by her husband or her lover. 

8.  The Applicant also claimed she is at risk of being killed or attacked by religious groups such as Buddhists because she had adopted her father’s Muslim surname and Muslims are in the minority in her locality.  

9.  The Applicant claims that state protection is not available because the police in Sri Lanka is corrupt.  She does not believe internal relocation feasible, as her husband and her lover could locate her throughout the country through their powerful network.

The finding of the Board

10.  The Applicant testified before the Board.  The Board found her evidence about her husband’s employment background unconvincing and inconsistent.  She claimed her husband resigned from the army in 2004 and suggested that he resigned because of old age.  When confronted with the fact that her husband was only 32 years old then, she admitted she did not know the reason of his resignation.  But on her evidence, at the time her husband started a career as an underworld gangster working for politicians or their political parties to harass their opponents.  The Board found her ignorance about the reasons of her husband’s resignation from the army in 2004 concerning.

11.  She told the immigration officer at the screening interview in June 2018 that she had no idea about her husband’s political affiliation.  But she told the Board for the first time that her husband was a member of the UFPA and worked since 2005 as a bodyguard of Chula Mendis of UPFA who was a minister of the government.  When confronted with the inconsistency, she said she only learned about his political affiliation and Chula Mendis’ position as a minister from one of her good friends after the screening interview some thirteen years later.  The Board found it utterly implausible because if her husband had worked for this minister as a bodyguard, she would have known and mentioned it in her NCF or screening interview.  The Board found it far-fetched that while claiming her husband had told her about the murders and assaults he allegedly committed, he would not have told her anything about her employer.  Most importantly, the Board could not find any reference from country of origin information to a minister by the name of Chula Mendis.  As such, the Board was not satisfied that there was a minister in Sri Lanka by that name and that her husband and her lover worked for him.

12.  The Board found her evidence about her relationship with her lover confusing and inconsistent.  In the additional pages attached to her NCF, she said on the one hand that her lover did not want her to tell her husband about their relationship, but on the other hand she said he informed her husband about their relationship.  Not only that what she said in those additional pages are internally inconsistent, she told the Board that she did not actually know how her husband learned about her affair and suggested he learned about it through a friend.  She had also given yet another different account in her earlier written signification that one day her husband saw her and her lover together and told her to leave him and tortured her in front of her lover.  Regardless of how her husband learned about their affair, she said she continued that relationship with him until she went to Singapore in February 2015.  That allegation is inconsistent with her evidence that her lover refused to continue their relationship because she refused to divorce her husband.  Yet, she had also claimed that their relationship had ended after it became known, which was some four or so years earlier.  The Board considered it far-fetched that if she was being regularly abused by her husband she would enter into an affair with one of his co-workers and friends, who was also allegedly an underworld gangster, particularly after only having seen him twice or thrice when he came to her house.  It also found it implausible that her husband would not have done anything against her lover after discovering their relationship, particularly as she claimed her husband was a murderer.  There are other less significant inconsistencies.  For instance, she said previously that her relationship with her lover began at the end of 2007, but she told the Board that it started on 12 October 2008.  She told the Board that her lover slapped her only once whereas she previously claimed that he had been violent towards her on many occasions.  The Board also noted inconsistencies in her evidence as to when and where she lived in Sri Lanka, her employment history and her reporting of the assaults on her to the police in Sri Lanka.

13.  As for her fear of harm from the local community because she will be perceived to be a Muslim because of her name, the Applicant confirmed at the hearing that she has not experienced any problems in the past in Sri Lanka nor have her father and brothers who are Muslims.  She also confirmed that there is no problem for her now.  This is in stark contrast with her evidence at the screening interview that that she and her parents had been threatened and their house vandalized.  On her evidence, the Board did not accept either the Applicant or her family members have been threatened or their house vandalized because they are Muslims or she was perceived to be a Muslim.

14.  In light of the Board’s numerous and varied concerns in respect of the central and significant aspects of the Applicant’s claims, the Board found the Applicant was not a witness of truth and that she fabricated her claims regarding her violent relationship with her husband, her affair with her lover, and the ill-treatment she experienced from both of them.  In the circumstances, the Board found there could not possibly be any substantial grounds for finding that she would face a real risk of ill-treatment, if refouled to Sri Lanka.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the decision in the Notice.

Legal principles applicable to judicial review

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds of judicial review

16.  In her supporting affirmation, the Applicant annexed a letter reiterating her USM case.  She claimed that she could not complain about the violence from her husband and her lover because there was institutional corruption in Sri Lanka that torture claim victims became “disappeared or missing after the arrest or visits to the police stations”.  She further claimed that she could not hide in her home country, as her husband and her lover had a strong affiliation with the police, political parties and local government that they could locate her with their widespread intelligence. 

17.  Thus, the essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk of harm if returned to Sri Lanka.  That is not permissible.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality, which this Court will explore in its overall scrutiny of the Decision in the following section.

18.  At the hearing, after the legal principles in the preceding section had been explained to her, the Applicant advanced lack of proper language assistance as a ground of application based on procedural unfairness.  Her complaint is that she was not given proper language assistance during the screening interview.  She said she has general knowledge of the English language.  She noticed that the interpreter who provided interpretation service to her during the interview was not proficient.  She said the interpreter did not interpret exactly what she said to the immigration officer.  She complained to her duty lawyer after the interview was finished and as they were walking out of the interview room.  She told her lawyer that the interpreter made mistakes.  The lawyer replied that he would go through the documents and see what happened.  But there was no follow up.

19.  When asked about what the mistakes were, she replied that she could not remember as she did not have a good memory and she was under stress because her father had passed away.  Despite repeated attempts to assist her to give particulars of the mistake, she could not provide any.

20.  Her account of her lawyer’s response does not appear to be credible.  A reasonable lawyer would have immediately asked for particulars of the mistakes to satisfy him that the complaint should be taken up, lodged a complaint with the interviewing officer, kept the interpreter on the hold, sought out the mistakes there and then instead of telling the Applicant that he would go over the documents and see what had happened.  The complaint was about mistakes in interpretation, going through the documents could not verify the mistake and address the problem. 

21.  She was asked if she had signed the record of interview at the end of the interview, if the record had been read back to her, if she had been told she could make alterations, deletions and amendments.  These are standard procedural safeguards which in the Court’s knowledge are invariably applied in the screening interviews.  She answered them all in the affirmative.

22.  As the Applicant could not give particulars of the alleged mistakes in interpretation, there was no way this Court could verify her complaint.  But according to her, the record had been read back to her and she had been informed she could make alterations, deletions and amendments and she signed to acknowledge the accuracy of the record.  All the necessary safeguards to ensure the accuracy of the interpretation service had been engaged.  It is not credible that a person could remember mistakes relating to a matter of significant importance having been made, but could not recall any particulars of any of the mistakes.  If she had noticed the mistakes, she should and would have raised them during the interview or corrected the interpreter or repeated her answer as a subtle and courteous way of bringing out the mistakes.  Her claim is of vital importance to her.  A reasonable claimant in her position would no doubt have made alterations, deletions and amendments when asked to confirm the correctness of the record and told she could do so.  In the Court’s opinion, the Applicant’s account does not appear credible.  She has failed to substantiate her ground of application.

Overall scrutiny

23.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s evidence carefully and tested it against common sense and inherent probability.  It accepted part of her evidence, but found her incredible as regards the core issues of her claim.  It gave full reasons for its finding.  It was on that basis that the Board found her claim was fabricated and she failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review may not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  For reasons as explained in the preceding section, the Applicant has failed to substantiate her ground of application based on procedural unfairness.  The proposed judicial review has no realistic prospect of success. 

Conclusion

24.  For the above reasons, the leave application is refused.

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

[1] 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

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]