LILI LESTARI AND ANOTHER v. MR WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 545/2018

[2020] HKCFI 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 545 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 37-year-old national of Indonesia who last arrived in Hong Kong on 5 March 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 5 March 2015 or within 14 days of its early termination.  On 5 May 2013 her employment contract was prematurely terminated, but she did not depart and instead overstayed in Hong Kong until she was arrested by police on 18August 2013.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a money-lender for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim, during which she gave birth to the 2^nd Applicant (“A2”) and for whom she also made a non-refoulement claim on the same basis and which was assessed jointly with her own claim.     

2.  By a Notice of Decision dated 17 April 2015 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“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”).

3.  In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the money-lender to the Applicants upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from the money-lender, that it was a private monetary dispute without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 200 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for the money-lender to locate them.

4.  On 29 April 2015 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 28 April 2016 before the Board during which A1 declined to give any evidence or to answer questions raised of her claim by the adjudicator for the Board.  On 14 December 2016 their appeal was dismissed by the Board which also confirmed the Director’s decision.

5.  By a Notice of Further Decision dated 13 April 2017 the Director again rejected the Applicants’ claim after receiving and considering additional submissions from them relevant to their 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”).

6.  Meanwhile on 22 December 2016 the Applicants filed their Form 86 under HCAL 240/2016 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date she put forward the following grounds for their intended challenge:

     (1)     procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

     (2)     irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

     (3)     irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

     (4)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

     (5)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

     (6)     procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicants;

     (7)     procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

     (8)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicants resulting in unfair procedure.  

7.  On 23 March 2018 their application was refused by Hon Yau J upon finding none of their grounds reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended application.

8.  The Applicants did not lodge any appeal against the court’s decision, but instead on 3 April 2018 filed another Form 86 in these proceedings for leave to apply for judicial review again of the Board’s decision, and put forward essentially the same or similar grounds as before for their intended application but none of which was found to be reasonably arguable by the court in their previous application.

9.  Clearly the principle of res judicata applies, and it is an abuse of process for the Applicants to re-litigate their case by bringing a second judicial review in respect of the samedecision of the Board after they failed to obtain leave from the court under HCAL240/2016 against which they never lodged any appeal, and also for failing to inform the Registry of the same when they filed their second Form 86 and issued their ex parte application in theseproceedings, resulting in much judicial and public resources in processing these proceedings.

10.  In the premises and for these reasons, this second application by the Applicants for judicial review of the Board’s decision is hereby struck out and dismissed.

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