FRISCA AYUDYA ARYANI AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 207/2021

[2026] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 207 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

 Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 23 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 February 2021 (the “2021 Notice”) refusing their request to make a subsequent claim (the “Request”).

2.  The Applicants are Indonesian national.  The 1^st Applicant (the “mother”) is the mother of the 2^nd Applicant (the “son”), aged 53 and 16 respectively. 

3.  The mother was married in Indonesia in 1992.  She has one daughter out of that marriage who is now living in Indonesia.  She had previously worked in Hong Kong as a foreign domestic helper and returned to Indonesia in September 2006.  While working in Hong Kong, she was informed by her neighbour in June 2005 that her husband had died.  She last arrived in Hong Kong on 11 January 2007 and overstayed since 11 February 2007.  While in Hong Kong, she had a brief relationship with a Pakistani (her “boyfriend”) and gave birth to her son.  Then, the mother made a non-refoulement claim by written signification on her own behalf in March 2014 and on her son’s behalf in March 2016 (collectively, the “previous claims”). Their personal background, the factual background leading to the present application, the basis of their previous claims and the arguments they advanced, the finding of the Board and the reasons for its Decision are all set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, the mother claims she will be harmed or killed by a moneylender for being unable to repay a loan borrowed by her late husband and will be at risk of discrimination and be expelled from the community for being a widow who had given birth to a child out of wedlock; and her son will be harmed or killed by the moneylender for the same reasons and at risk of discrimination and be expelled from the community for being an illegitimate child.

4.  Their previous claims were assessed and rejected by the Director on all four applicable grounds under the Unified Screening Mechanism (the “USM”) by his Notice of Decision dated 10 August 2016 on Torture Risk, BOR 3 Risk and Persecution Risk grounds (the “2016 Notice”) and by his Notice of Further Decision dated 11 August 2017 on BOR 2 Risk ground (the “2017 Further Notice”).  Their application for leave to apply for judicial review against the Board’s Decision was refused by Deputy High Court Judge Bruno Chan.  Their appeal against that decision was dismissed by the Court of Appeal in CACV 475/2018 on 9 January 2019 which also refused them leave to appeal to the Court of Final Appeal on 25 February 2019.  Hence, their previous claims had run its full course and is now final and binding on them.

5.  Despite these decisions, the Applicants did not leave Hong Kong. Twenty months later, they made their request to the Director for making a subsequent claim.  Their request was rejected by the Director’s decision in his 2021 Notice.  They now seek leave to apply for judicial review of that decision.

The law

6.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

7.  The immigration officer who assessed the Applicants’ previous claims (the “previous case officer”) assessed their previous claim on the basis of the case as the Applicants asserted.  She found the 1^st Applicant’s dispute with the moneylender is a private monetary dispute which had nothing to do with the reasons protected under the 1951 Convention relating to the status of refugees the 1951 Protocol and which the Indonesian government was not involved, the threats were uttered for the purpose of pressurizing the 1^st Applicant to pay without real intention of killing her and the risk of harm from the moneylender was low.  She found on the basis of country of origin information (“COI”) that despite corruption state protection is available generally to the public and also specifically for widows and their illegitimate children in Indonesia.

8.  The Board made more in-depth findings.  In respect of the Applicants’ claim relating to the moneylender, it found the 1^st Applicant incredible and her claim was a just a fabrication.  It found multiple and significant discrepancies in her evidence between her non-refoulement claim form (“NCF”) and her testimony before the Board relating to the loan.  The Board held:

“32. The rest of the [1^st Applicant’s] claims, relating to the [moneylender] and alleged difficulties repaying the loan in Indonesia, was entirely lacking in even the most basic levels of coherence, detail or fundamental credibility. I have no doubt that this aspect of the claim is simply a fabrication and that no credence whatsoever can be given to it.

…

34. The [1^st Applicant’s] account to me on this key and central element of the claim (ie borrowing of the loan) was fundamentally different. …

…

37. I note furthermore, as already pointed out by the [Director], that in response to reasonable questions seeking information about the nature of the [moneylender] his identity, the details of the loan agreement or any other similar matters, the [1^st Applicant] was entirely unable to give even the most basic information. Even if it is the case that the loan was taken out by her husband and not by her, as she maintained, I consider it very strange indeed that if she and her husband were facing death threats as a result of an inability to repay this loan, that she would not have taken steps to find out at least some minimal information about the individual who was allegedly pursuing her and her husband. Her failure to do so contributed to my overall conclusion that this of the [1^st Applicant’s] claim could not be the truth.

38. The [1^st Applicant] had given account to the [Director] of a number of incidences in which the [moneylender] and his men came threatening and carrying out violence against the [1^st Applicant] and her husband. The account to me of these various incidents was not only vague but was inconsistent with what she had previously claimed to such an extent that I take the view these incidences cannot have taken place. …

…

44.       I therefore conclude that while the [1^st Applicant’s] claim that she has given birth to an illegitimate child in Hong Kong is probably true, the remainder of her claim is entirely untrue and can be given no credence whatever.”

9.  On the issue of societal discrimination, the Board accepted that single women with children and women who have had relationship outside marriage may face a level discrimination described by the Australian Refugee Review Tribunal as amounting to community stigma and negative perception, particularly in rural areas.  The same COI refers to particular assistance available from organisations such as PEKKA, including specific services for women headed households and for those without male or family support.  The Board considered such discrimination does not raise a risk of any physical harm.  When confronted with this COI, the 1^st Applicant was unable to provide any reason why she could not access such assistance as could reduce her risk of serious discrimination which could amount to serious harm. While accepting societal discrimination against illegitimate children, the Board found such children are not at risk of any serious physical harm and that they are able to benefit from key services.   The Board then came to the conclusion that any discrimination which the Applicants may face would not rise to the level of persecution as set out in the 1951 Convention relating to the status of refugees and its 1967 Protocol.

The intended subsequent claim

10.  The Applicants were legally represented by the Duty Lawyer Service (the “DLS”).  In the intended subsequent, the 1^st Applicant claimed that she was informed by her daughter who was living with her mother-in-law that the moneylender had come to her house several times to look for her.  The moneylender last came in 2019.  The Applicant was also informed by her brother on 11 October 2020 that the moneylender and three of his underlings had come to her father’s house while he was alone at home.  They asked their father for the 1^st Applicant’s whereabouts and demanding her father to settle her outstanding loan.  When her father told them that he had no money, the moneylender twisted and injured their father’s left wrist.  He also threatened to return and cause the 1^st Applicant problems if she failed to pay.  Her brother made a report to the police station and was told by the police that they would investigate the matter.  Her parents and her brother advised that it is totally unsafe for her to return to Indonesia.

11.  Having considered the previous case officer’s and the Board’s findings in the previous claims, the immigration officer was of the opinion that the alleged threat from the moneylender had been duly considered in the Applicants’ previous claims.  He also considered the hearsay information from the 1^st Applicant’s brother about the attack on her father does not constitute a significant change of circumstance since their previous claim was finally determined.  Even assuming there has been a significant change of circumstance, the immigration officer considered such change, when taken together with the materials previously submitted in support of their previous claims would not give the subsequent claim a realistic prospect of success. Hence, he refused their request.

The legal principles applicable to judicial review

12.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

13.  The Applicants did not advance any grounds of application in their Form 86.  In the 1^st Applicant’s supporting affirmation, she reiterated that she could not go back to Indonesia at the present moment because her life is not safe.  At the hearing, after the legal principles applicable to judicial review had been explained to her, she accepted that she had no complaint about errors of law, procedural unfairness or irrationality in the 2021 Notice.  She submitted that she wished her son could continue to stay in Hong Kong to complete his secondary education. She frankly accepted that her son has no problem except that he could only speak English and the local dialect.  These are not valid ground for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. 

Overall scrutiny

14.  Having considered the Request, the 2016 Notice, the 2017 Further Notice and the Board’s Decision, and having also rigorously examined the 2021 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance, correctly identified the issues, and properly analyzed the evidence. 

15.  The immigration officer observed a very high standard of fairness.  He advised the 1^st Applicant on the law and procedure in prosecuting her Request and advised her of her right to legal representation and the availability of publicly funded legal assistance.  The Applicants were legally represented by the DLS.  The immigration officer acted fairly.  For the purpose of assessing their subsequent claim, the immigration officer assessed the Applicants’ Request on the basis of their subsequent case as the 1^st Applicant asserted.  It took into consideration the finding of the previous case officer and the Board, in particular availability of state protection and internal relocation, which he was required to under section 37ZO of the Immigration Ordinance.  On the basis of these evidence, he found the Applicants had failed to show significant change in circumstance which when taken together with the materials previously submitted in support of their previous claims would not give the subsequent claim a realistic prospect of success. 

16.  The 1^st Applicant reiterated on her fear of harm from the moneylender.  Though not so relied on her in her Request, this Court also critically scrutinized the Board’s Decision in relation to this ground.  That is why this Court quoted the Board’s finding on this issue.   

17.  The Board had studied extensively the relevant COI.  It accepted that single women with children and women who have had relationship outside marriage may face a level discrimination amounting to community stigma and negative perception, particularly in rural areas but found there are government and non-governmental organisations which provide assistance to victims of such discrimination.  On balance it considered such discrimination does not raise a risk of any physical harm.  When such COI was drawn to the 1^st Applicant’s attention, she did not disagree.  As a matter of law, societal discrimination is not a ground for protection under the USM.  Unless the discrimination is so serious as to result in actual or risk of any of the proscribed harm, a claimant is not entitled to protection.  If he is, it would be under one of the four grounds under the USM and not under discrimination as an independent ground.  The Applicant submitted that her son could only speak English and the local dialect, meaning Cantonese.  There is nothing to suggest a non-native speaker has unsurmountable difficulties living in Indonesia.  Her son’s language disability is only an inconvenience which would not pose any risk to his life.  Now being an adolescent, he is in a much stronger position than before to meet this inconvenience or difficulty. 

18.  As for their claim based on the moneylender’s threat, it is clearly a reiteration of a risk of harm which had previously been considered by the Board and the previous case officer.  On any objective view of the evidence and information provided by the Applicant, it is an extension of their previous claim.  It is open to the immigration officer to reach the conclusion as he did.  His conclusion is a mixed finding of fact and of the law, largely the former.  Insofar as it is a finding of the law, it is absolutely correct.  Insofar as it is a finding of fact, it is exclusively within the province of the Director, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law or procedural unfairness in the 2021 Notice.  The 2021 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. Hence, he refused their request.

Conclusion

19.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2021 Notice is refused.

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