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

HCAL 1426/2021

[2026] HKCFI 4306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1426 of 2021

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 Levy:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 12 October 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director (“Director”) dated 11 August 2021 (“Director’s Subsequent Decision”) refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s 37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 25 April 2017 (“Director’s Earlier Decision”), the Director rejected the non-refoulement claim under all applicable grounds[1]. The basis of the applicant’s claim was then if refouled to Indonesia, she would be harmed or killed by a village gangster called Kurmen when she asked him for a salary raise while she was working for him.

2.On 19 January 2018, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeal against the Director’s Earlier Decision. On 24 September 2018, a Deputy High Court Judge refused to grant leave ([2018] HKCFI 2123; HCAL 211/2018) to the applicant to apply for judicial review of the Board’s Decision. On 26 March 2019, the Court of Appeal dismissed the applicant’s appeal. On 5 September 2019, the Court of Final Appeal refused to grant leave to the applicant to appeal.

Background

3.The background can be viewed at the following hyperlink in ([2018] HKCFI 2123 (ALFRED INSERT LINK).

4.On 14 December 2020, the applicant made the Request, and was represented by the Duty Lawyer Service. The duty lawyer representing the applicant submitted further information on the applicant’s behalf in support of the Request.

The statutory provisions on subsequent claims

5.Subsequent non-refoulement claims are regulated by s 37ZO of the Immigration Ordinance (Cap 115), which provides:

Section 37ZO. “Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)   A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

6.The applicant submitted 2 letters in support of the Request. The Request was based on the same fear of harm from Kurmen. The applicant stated in the supporting letters that her friends informed her that Kurman was still looking for her and threatening to kill her.

Discussion

7.A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no such grounds. In the supporting affirmation, the applicant stated that the Director’s Subsequent Decision was wrong as the Director failed to conduct proper inquiry.

9.As the applicant had requested for a hearing, the court scheduled a hearing on 21 July 2026. The applicant attended in person, and asked the court to let her stay in Hong Kong. The applicant said that she had lost contact with her family back home.

10.In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision and the decision of the Board, the Director found that the applicant’s claimed fear of Kurmen remain unchanged. The Director also considered that the applicant did not provide new evidence or documents to support her Request. Since the applicant had left Indonesia for more than 17 years, the Director found that it was unlikely that Kurmen would still be interested in pursuing her. The Director found that the fact that she had lost contact with her family back home could not advance her case further. After having given further consideration to the COI, the Director found that internal relocation continued to be reasonably available. He concluded that the Request had no realistic prospect of success and refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

11.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s grounds in the supporting affirmation were vague and lacked particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

12.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 7^th day of August 2026

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