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Lili Lestari And Another v Mr William Lam, Esq., Torture Claims Appeal Board

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date24 August 2021
Neutral Citation[2021] HKCA 1209
Year2021
Judgement NumberCAMP249/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP249/2020 LILI LESTARI AND ANOTHER v. MR WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD

CAMP 249/2020

[2021] HKCA 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 249 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 545 OF 2018)

________________________

RE: LILI LESTARI 1st Applicant
EDI SUBAGIO MEILANI SUBAGIO 2nd Applicant

and
MR WILLIAM LAM, ESQ.,
TORTURE CLAIMS APPEAL BOARD		 Putative
Respondent

and
THE DIRECTOR OF IMMIGRATION Putative
Interested Party

________________________

Before: Hon Au and Chow JJA in Court

Date of Written Submissions: 17 May 2021

Date of Decision: 24 August 2021

________________________

DECISION

________________________

Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1. By summons dated 21 December 2020, the applicants applied to this Court for leave to appeal against the decision of Deputy High Court Judge Bruno Chan dated 1 December 2020 (“the Deputy Judge’s EOT Decision”) refusing to grant an extension of time for them to appeal the Deputy Judge’s earlier decision refusing their application for leave to apply for judicial review dated 30 June 2020 (“the Deputy Judge’s Leave Decision”).

2. Having considered the papers, we are of the view that it is appropriate to determine the present application on paper without a hearing under Order 59, rule 14A of the Rules of the High Court (“RHC”).

BACKGROUND

3. The 1st applicant is a national of Indonesia. She previously worked as a foreign domestic helper in Hong Kong. She last entered Hong Kong on 5 March 2013 as a foreign domestic helper, with permission to stay until 5 March 2015 or 14 days after the termination of her employment contract, whichever was the earlier. Her employment contract was terminated early on 5 May 2013. She was arrested by the police on 18 August 2013 for overstaying, and was subsequently referred to the Immigration Department for investigation. She then raised a non-refoulement claim, and was released on recognizance on 5 October 2013 pending the determination of her claim. She later gave birth to a daughter, the 2nd applicant, on 2 May 2014 in Hong Kong, and raised a non-refoulement claim on behalf of the 2nd applicant as well. The non-refoulement claims of the applicants were assessed jointly.

4. The applicants’ claims were based on an alleged fear that, if they were to return to Indonesia, they would be harmed or killed by a money-lender, from whom the 1st applicant and her husband had previously borrowed some money but they failed to repay the loan. The factual details of the applicants’ claims were summarized by Yau J in [3] – [9] of the CALL-1 Form in HCAL 240/2016 ([2018] HKCFI 664).

DIRECTOR’S DECISION

5. By a Notice of Decision dated 17 April 2015, the Director of Immigration (“the Director”), having assessed the applicants’ claims based on BOR 3 risk[1], persecution risk[2], and torture risk[3], rejected the Applicants’ non-refoulement claims. The Director considered that the level of risk of harm was low because of the absence, or low intensity and frequency, of past ill-treatment from the money lender, and that the matter was a private dispute without official involvement. The Director also considered that state protection was available and internal relocation was viable.

6. By a Notice of Further Decision dated 13 April 2017, the Director rejected the applicants’ claims after receiving and considering additional submissions from them relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under BOR 2.

THE BOARD’S DECISION

7. The applicants appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”). They attended a hearing before the Board on 28 April 2016 in person. The Board dismissed the appeal in a decision given on 14 December 2016. It considered that there was no evidence of the applicants having suffered, or the applicants being at risk of suffering in the future, physical or mental pain of the required minimal level of severity. There was no evidence of any harm or threat instigated by the State. Even if the money lender were to assault the applicants, the money lender would not be acting for the Indonesian government. Based on country of origin information (“COI”) materials, the Board considered that state protection was available and internal relocation was viable.

FIRST APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IN HCAL 240/2016

8. On 22 December 2016, the applicants filed a Form 86 in HCAL 240/2016 to apply for leave to apply for judicial review of the Board’s decision. Their grounds of application were summarised by the Deputy Judge in the CALL-1 Form in the proceedings below ([2020] HKCFI 1323), at [6]:

“(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.”

9. Leave to apply for judicial review was refused by Yau J on 23 March 2018 (“Yau J’s Decision”) for the reasons set out at in the CALL-1 Form in HCAL 240/2016 ([2018] HKCFI 664) as follows:

“[14] I have considered the evidence of the case and the decisions of the Director of Immigration and the Appeal Board. They have looked into all the available grounds of non-refoulement claims of the applicants and I do not find any error in law or procedure.

[15] A1 submits in this application that the Appeal Board failed to carry out sufficient research and enquiries into the conditions of Indonesia and failed to have regard to the circumstances of A1 and A2, thus dismissing the appeal of the 2 applicants upon an unfair procedure.

[16] A1 also complains that the Appeal Board failed to evaluate and make a finding of whether there existed a consistent pattern of gross, flagrant or mass violation of human rights in Indonesia and wrongly applied the law and standard of proof in determination of the appeals of A1 and A2.

[17] The complaints of the 2 applicants are totally unfounded. Their non-refoulement claims and all the issues raised have been fully and fairly considered by the Immigration Department and the Appeal Board in accordance with the law and legal procedure.

[18] There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.”

THE PROCEEDINGS BELOW

10. On 3 April 2018, the applicants, instead of lodging an appeal against Yau J’s Decision, filed another Form 86 in HCAL 545/2018 to apply for a second time for leave to apply for judicial review of the Board’s decision. On 30 June 2020, the Deputy Judge struck out and dismissed the applicants’ second application for leave to apply for judicial review. Having referred to Yau J’s refusal of leave in HCAL 240/2016, the Deputy Judge went on to hold that [4]:-

“[8] The Applicants] did not lodge any appeal against [Yau J’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 same decision of the Board after they failed to obtain leave from the court under HCAL 240/2016 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 these proceedings,...

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