Supriatin v. Director of Immigration

HCAL 454/2025

[2025] HKCFI 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 454 OF 2025

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 To:

1.  Leave to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 18 February 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (“the Director”) dated 30 December 2024 (the “Decision”) refusing her application to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by the Director under QA T/C 5188/18 (T1S110) and by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) under USM 15509/19/2/28/I1635 on all applicable grounds under the Unified Screening Mechanism (“USM”).

Background

2.The Applicant is an Indonesian national who last arrived in Hong Kong to work as a foreign domestic helper on 25 October 2014. She overstayed since 15 February 2016. Then, she filed a non-refoulement claim. Her claim, her personal background and the procedural background of her previous claim can be found in the Form CALL-1 dated 29 January 2024 under HCAL 1541/2019. In gist, she claims that if returned to Indonesia, she would be harmed or killed by (i) her sister because she exclusively inherited her parents’ property and refused her sister’s demand to join Moro Islamic Liberation Front (“MILF”), a terrorist organisation; and (ii) by her husband because she failed to repay the loan he borrowed to enable her to seek new employment in Hong Kong. She has exhausted all available legal processes in prosecuting her claim. Her application for protection had been rejected by the Director’s Notice of Decision dated 30 December 2024, her appeal against the Director’s decision was dismissed by the Board’s Decision dated 3 May 2019, and her leave application was refused by this Court on 29 January 2024.

3.By a letter dated 14 October 2024 (“Letter 1”), the Applicant wrote to the Director requesting to make a subsequent claim (the “Request”). On 25 October 2024, an immigration officer delivered a written reply to her reminding her (1) that her claim had been finally determined; (2) the requirements of making a subsequent claim including that she had to provide further information and evidence in writing in support of her Request within 14 days, ie on or before 9 December 2024; and (3) advising her of availability of publicly-funded legal assistance. The officer also informed her that if the Immigration Department does not receive further information and evidence from her in support of her Request by 9 December 2024, it would be assumed that she does not have further evidence to submit in support of her Request. The Applicant did not respond. On 30 December 2025, the Director issued the Decision refusing her Request for making a subsequent claim.

The Director’s finding and reasons for the Decision

4.All the information and evidence in support of the subsequent claim provided by the Applicant are contained in the two letters she wrote to the Director, namely Letter 1 and Letter 2. In Letter 1, she reiterated that she does not want to go back to Indonesia and her life is still in danger. In Letter 2, she repeated what she had said in Letter 1. She added that she is afraid of being forced to join ISIS by her elder sister and if she does not join, she will be killed by her sister, ISIS or MILF. She also raised a new claim of fear that her family do not like her because she “like same sex”.

5.The Director took the view that the Applicant’s claimed fear from her sister, ISIS, MILF or her husband was the basis of her previous claim which had been considered by the Director and the Board. Both the Board and the Director found such basis could not support her claim for non-refoulement protection under her previous claim. The Applicant having produced no further information or evidence in her Letter 1 and Letter 2, the Director found she is now relying on the same source of fear for a second time, but nothing had changed. As for her claim of “like same sex”, the Director accepted that is a new source of fear as it had not been raised in the original claim. Despite she had been specifically reminded by the Director’s letter dated 25 November 2024, to provide information or evidence in support of this new source of fear, she adduced no evidence to indicate her change of sexual orientation. The Director considered her claim is just a bare allegation, which is unsupported by any evidence, documentary or otherwise.

6.For completeness, the Director also considered that the Applicant had produced no fresh evidence about the fear from her husband or new evidence contradicting the Director’s finding of availability of state protection. Hence, he was satisfied that there are no further evidence and information adduced by the Applicant that constitute a significant change of circumstances, which when taken together with the evidence submitted in support of the previous claim would give the intended subsequent claim a realistic prospect of success. Accordingly, the Director refused her Request to make a subsequent claim.

Legal principles applicable to judicial review

7.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[1].

Grounds for judicial review

8.At the hearing, after having been reminded of the legal principles in the preceding section, the Applicant confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. She did not advance any grounds for judicial review in her Form 86. In her supporting affirmation dated 18 February 2025, she merely reiterated her “request for making a subsequent claim”. She has offered no special grounds for judicial review. In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.

9.In her letter received by the Court on 15 February 2025, apart from repeating her USM case and the content of her letter dated 16 December 2024, the Applicant explained that her family was angry at her because:

(1)  she had become a lesbian; and

(2)  she had changed her religion from Muslim to Buddhism.

These are statements of facts or evidence which had not been mentioned in her previous claim. They are not grounds of application for review.

10.The Applicant had mentioned the first assertion in her Letter 2 in which she claimed she “likes same sex”. That fact or evidence has been considered by the Director. However, the Director considered it was a bare assertion and rejected it as not being supported by any evidence, documentary or otherwise.

11.The second assertion has not been mentioned in any of the submissions made by the Applicant. The Director could not have made any finding of fact in relation to this assertion or taken it into account. Because of the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the decision maker, namely the Director, to contend that he erred in not taking those matters into account, unless the decision maker has a positive duty to elicit such information on his own volition. In fact, as mentioned above, in writing to the Applicant upon receiving her Letter 2 and requesting for additional information as to her “like same sex” assertion, the Director has discharged his duty of joint endeavour. It was the Applicant herself who failed her obligation to respond or provide information or further particulars for the consideration of the Director and thus let go her chance of discharging her burden of proving her subsequent claim.

12.Having considered the Director’s Decision with rigorous examination and anxious scrutiny, this Court is satisfied that the Director’s Decision has not been tainted by any error of law or procedural unfairness. His Decision satisfied the high standard of fairness as required under the Wednesbury test. The Applicant’s intended leave application has no prospect of success. Accordingly, her leave application is refused.

Restricted Proceedings Order

13.The Applicant’s non-refoulement claim had already been finally and conclusively determined in the previous proceedings, ie HCAL 1541/2019, ending with the order of this Court dated 29 January 2024 refusing her application for leave to apply for judicial review of the Board’s decision dismissing her appeal against the Director’s decision refusing her application for non-refoulement protection. However, she made the Request to make this subsequent claim based on essentially the same facts and basis which had been proven to be invalid. Yet, when that failed, she still re-litigated her claim by seeking leave to apply for judicial review of the Director’s Decision.

14.Worst still, after this Court has patiently explained to her about the factual basis of her claim, the procedural background, the reasons why the Board and the Director refused her claim for non-refoulement protection, the reasons why this Court refused her leave application, and the law applicable to making Request for filing a subsequent claim, she was undeterred and said her life will be in danger if returned to Indonesia and she will re-apply. Her repeated actions and the making of her Request evinced a calculated attempt to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation. Her Request was a clear attempt to re-open matters already determined in a previous action and may be regarded as vexatious legal proceedings. She has indicated every intention to re-commence such vexatious legal proceedings unless restrained. Her avowed intention justifies a Restricted Proceedings Order (“RPO”) being made against her under section 27 of the High Court Ordinance, Cap 4. The provisions under sections 27 and 27A of the High Court Ordinance and the terms of the RPO intended to be made against her having been explained and understood by her, this Court makes the following Order:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with her said application for leave;

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings;

(8)  Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

(9)  No more than one leave application under paragraph (1) may be made by the Applicants within any period of 3 months;

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge;

(11)  This order shall cease to have effect at the end of 5 years from the date of this Order; and

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

Conclusion

15.For the above reasons, the leave application is refused, and a RPO in terms of paragraph 14 be made against the Applicant.

Dated the 8^th day of April 2025

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