Sumahat Endang Yulianti v. Director of Immigration

HCAL 1145/2023

[2026] HKCFI 5751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1145 of 2023

BETWEEN

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Keith Lam:

1.  Form 86 be amended, naming the Director of Immigration as the putative Respondent.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 10 July 2023 (“Form 86”), the Applicant seeks leave to apply for judicial review of the decision of the Director of Immigration dated 31 May 2023 (respectively “DOI” and “DOI Decision”). By that decision the DOI refused to allow the Applicant to make a subsequent claim for non-refoulement protection.

2.The Applicant’s previous claim had been rejected by the DOI on all applicable grounds under the Unified Screening Mechanism (USM) on 21 January 2022. The Applicant appealed to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB”), but upon her own indication (both in writing and at the hearing before the TCAB) that she wished to withdraw her appeal, her appeal was directed by the TCAB to be withdrawn on 25 October 2022, and the DOI’s decision (of 21 January 2022) was confirmed.

3.Subsequently, the Applicant raised her request to make a subsequent claim for non‑refoulement protection on 29 March 2023 and 19 April 2023.

4.The Form 86 incorrectly named the Immigration Department as the putative respondent and the DOI as the putative interested party. I therefore amend the Form 86 on my own motion to name the DOI as the putative respondent.

5.The Applicant requested for a hearing of this application and attended the same which was held on 14 September 2026. When asked if she had anything to add, she mentioned that she has health problems and can only rely on medication in Hong Kong. The day following the oral hearing, the Applicant also filed an affidavit attaching various medical records, and a record of appointment with the Kwong Wah Hospital on 11 January 2028.

Background

6.The Applicant is a national of Indonesia. In gist, she claims that she could not return to Indonesia because she feared that her ex-husband would kill or seriously harm her upon her return.

7.The Applicant’s personal background, the basis of her application for non-refoulement and relevant procedural history were set out in detail in the DOI Decision. I will not repeat them here.

Discussion

8.A decision by the DOI in refusing to allow an applicant to make a subsequent claim under section 37ZO of the Immigration Ordinance Cap 115 is not appealable to the TCAB: see section 37ZR of Cap 115; Gopal v Director of Immigration [2025] HKCA 34 at §5; Re Mandeep Singh [2024] HKCA 718 at §10.

9.Judicial review does not operate as a further avenue of appeal. The leave application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

10.An applicant is required to clearly and succinctly identify the grounds of judicial review relied upon in the Form 86 and in the supporting affirmation: Ho Loy v Director of Environment Protection, HCAL 21/2015 (unrep.) 22.12.2016 at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

11.The Applicant’s Form 86 and affirmation in support are virtually devoid of substance, save for a bare assertion in the Form 86 that “The immigration department just ignored the important evidence which I have present to them”. However, it is clear from the DOI Decision that the DOI did consider in detail and did not ignore the various matters raised by the Applicant. Other than that, the Applicant has not identified any error of law or procedural unfairness or irrationality in the DOI Decision to demonstrate a reasonably arguable case.

12.In view of the seriousness of the matter involved, I have reminded myself of the enhanced standard required by law. Despite the fact that the Applicant did not advance any valid ground for the intended judicial review, I have scrutinised the DOI Decision for any errors of law, procedural unfairness or irrationality.

13.Under section 37ZO of the Ordinance, there are constraints on an applicant who has previously made a non-refoulement claim to make a 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…”

14.As can be seen in the DOI Decision, the DOI duly considered the circumstances provided by the Applicant in her letters dated 29 March 2023, 19 April 2023 and 17 May 2023 respectively. The Director did not accept that there has been any significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success (§23). In particular:

(1)  The DOI found that the nature of the Applicant’s fear remained the same, and her love dispute with her ex-husband had been considered thoroughly in her previous claim and was not accepted as substantiated, and this did not amount to a significant change of circumstances (§12).

(2)  Regarding the alleged incident of a threat made by a stranger to the Applicant’s son (which took place after the withdrawal of her first appeal to the TCAB), the DOI considered that this was a one-sided allegation of the Applicant’s son, and it was mere speculation that the threat was related to the Applicant’s ex-husband. Although a document from the police was produced, it was merely a record of the son’s report to the police and not concrete evidence of a threat from the ex-husband (§14).

(3)  The Applicant did not adduce credible evidence that the Indonesian police was corrupt and could not help protect the Applicant, and this was a point that was raised and considered in the previous claim (§16). Further, there is nothing to indicate that the government as a whole would refuse to do anything, and it had been considered in the first claim that there were existing available channels for the Applicant to pursue her grievance. Thus, it cannot be inferred that the Indonesian police are unwilling to or incapable of offering protection to the Applicant (§§17-18).

(4)  Further and in any event, there was no new and substantial evidence to refute the previous assessment that the threat from the ex-husband was localised, and internal relocation alternatives were open to the Applicant. There was nothing substantial to suggest that the Applicant’s ex-husband was a powerful and influential person in Indonesia, or that he would have the means to track down the Applicant everywhere in Indonesia (other than to approach the Applicant’s family for details). The Applicant, being an able-bodied person with formal education and 12 years of working experience, it was not unduly harsh for her to relocate to other areas in Indonesia to earn a living and find a shelter. See: DOI Decision §§20-22.

15.I have also considered the oral submissions of the Applicant, and the additional materials submitted. The Applicant’s claimed health problems and need for medication in Hong Kong were not matters raised with the DOI, and cannot be a ground for judicial review of the DOI Decision. They are not relevant to the present application.

16.Therefore, I do not find any error of law or procedural unfairness or irrationality on the part of the DOI in the consideration and assessment of the Applicant’s request to make a subsequent claim.

Conclusion

17.I conclude that the Applicant’s intended challenge against the DOI Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 23^rd day of October 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