SISWAYANI v. DIRECTOR OF IMMIGRATION

HCAL 771/2025

[2025] HKCFI 3601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 771 of 2025

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;

1.  Application to withdraw the application for leave to apply for judicial review be refused; and

2.  Application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 27 March 2025 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 7 January 2025 (the “Notice”) refusing her request (the “Request”) to make a subsequent claim.

2.  The Applicant is an Indonesian national. She last entered Hong Kong on 26 November 2019 to work as a foreign domestic helper. She overstayed since 5 October 2020 when her employment was prematurely terminated. She lodged a non-refoulement claim by written signification on 6 and 13 December 2021 (the “previous claim”). Her previous claim was rejected by the Director. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office on 15 September 2022.

3.  The Applicant did not leave Hong Kong. She had a brief relationship with someone and became pregnant in 2020. That pregnancy terminated in a miscarriage. Then she developed another relationship with a Hong Kong resident and gave birth to a son on 9 November 2022. She married that Hong Kong resident on 5 May 2023. On 3 November 2023, she gave birth to a second son. On 13 December 2023, she was arrested for establishing or joining in business while being a person in respect of whom a removal order is in force. She was convicted and sentenced to 15 months’ imprisonment. On 3 October 2024 a deportation order was issued against her. After serving her sentence, she was transferred to immigration detention. In November 2024, she made the Request for making a subsequent claim. Her Request was rejected by the Director’s Notice. She now applies for leave to apply for judicial review of that Notice.

4.  Her leave application was heard on 9 June 2025. Unknown to the Court at the time, she had written a note to the Registrar requesting to withdraw all her cases because she wanted to return to her home country, her issues there had been resolved and she could return home (the “withdrawal application”). The note was faxed by the Immigration Department to the Registry on 28 June 2025. At the hearing, the Court explained to her the law applicable to making a subsequent claim and judicial review. She participated in the hearing and confirmed she had no complaints about errors of law, procedural unfairness or irrationality in the Director’s decision in the Notice. She made no mention about her withdrawal application. The hearing continued and concluded with the Court reserving its Decision. In view of the Applicant’s participation in the hearing and her failure to alert the Court of her withdrawal application, the Court could not be satisfied that her decision to withdraw was an informed decision freely made with full knowledge of the consequence of the withdrawal. Her withdrawal application was refused.

The Applicant’s previous claim

5.  In gist, the Applicant’s previous claim was based on her fear of being harmed or killed by her ex-husband because she had become pregnant with another person in Hong Kong. The Board did not accept she was a witness of truth and rejected her allegations that she had been assaulted by her ex-husband and that she was in genuine fear of being harmed or killed upon her return to Indonesia. It also found that she could access state protection and avoid the harm by internal relocation.

Additional information in support of the subsequent claim

6.  In her Request, the Applicant claimed that she was in fear of harm from her ex-husband and her family. She advanced the following fears.

7.  First, she restated her fear of harm from her ex-husband because she refused his demand for costs of their divorce proceedings. That fear had been fully canvassed by the Board and rejected. The Applicant claimed to have last communicated with her mother and sister in Indonesia in 2024 and they did not have any updates about him. Hence, the immigration officer found there was no significant change of circumstances in relation to this claim.

8.  Second, the Applicant said she had a strong feeling that someone must have informed her ex-husband about her re-marriage and her having given birth to two sons. She said the information would trigger his emotion and intensify his hatred towards her. However, she produced no supporting evidence. There is no evidence that her ex-husband had knowledge of her re-marriage in 2023 and the birth of her two sons. There is also no indication that he had approached, threatened or harmed her in any way for that reason. Nothing was mentioned about her ex-husband in this respect in her mother’s and sister’s letter to the Applicant in November 2024. Thus, the Board found her fear was purely her speculation which is not supported by any evidence.

9.  Third, the Applicant claimed that her family did not accept her anymore and were very angry with her because she married a Hong Kong husband and had two sons. This claim is inconsistent with her evidence that she maintained a good relationship with her family. The Applicant did not explain why her family were very angry. There is also nothing to demonstrate that her family has done anything to threaten or harm her. Thus, the immigration officer considered there was insufficient ground to believe that the Applicant would be subject to risk of harm from her family if she return to Indonesia.

10.  Fourth, the Applicant feared that her two sons will not be safe if they return with her to Indonesia. This is not relevant as her sons have permanent residence status in Hong Kong and are not seeking non-refoulement protection.

11.  Fifth, the Applicant claimed that she could not access state protection and that she had nowhere else in Indonesia to go to. These issues had been argued before the Board and rejected. The Applicant offered no new material to support her claim.

12.  For these reasons, the immigration officer did not accept there has been any significant change of circumstances and refused her Request.

Grounds for judicial review

13.  The Applicant did not advance any grounds of application in her Form 86. She wrote a number of letters to the Court in which she reiterated her danger if returned to Indonesia and emphasized her sons’ need for her to stay in Hong Kong to look after them. None of these constitutes relevant consideration in a non-refoulement claim. After having been explained the law applicable to judicial review, the Applicant confirmed she had no complaints about procedural unfairness and irrationality in the Notice and would leave the issue of errors of law for the Court. 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 unreasonableness or irrationality in the Decision.

14.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 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; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting her Request and referred her claim to the Duty Lawyer Service which subsequently acted for her. On any objective view, there is no new evidence or information which suggests that there has been a significant change in circumstance since her previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success. These are finding of facts which are exclusively within the province of the Director to make, 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 in the Notice. The Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

Conclusion

15.  For the above reasons, the Applicant’s application to withdraw her application for leave to apply for judicial review of the Director’s Notice and the leave application are 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