ENDANG SUSILOWATI SAMUJI AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

ENDANG SUSILOWATI SAMUJI AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

The court refused leave because the applicants relied on the same facts already rejected by the Director and the Board, provided no new child-specific or other material creating a realistic prospect of success under s37ZO, and therefore there was no arguable public law error warranting judicial review; because the history showed repeated attempts to relitigate the same issues, a five-year Restricted Proceedings Order was necessary to prevent abuse of process.

Citation
[2023] HKCFI 1721
Parties
1st Applicant: Endang Susilowati Samuji; 2nd Applicant: Endang Susilowati Samuji Rihanna Blezhera; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 July 2023
Case Number
HCAL99/2023
Procedural Posture
Application for Leave to Apply for Judicial Review / Decision on Leave Application and Restricted Proceedings Order (rpo) Made
Outcome
Application for leave to apply for judicial review refused; Restricted Proceedings Order made; absence of legal representation for the 2nd applicant treated as irregularity not nullity.
Legal Topics
Non Refoulement, Subsequent Claim Under S37 ZO Immigration Ordinance, Restricted Proceedings Order (rpo), Abuse of Process, Child Specific Considerations
Source Language
EN
Constitutional and Administrative Law Immigration Law Public Law Non Refoulement Subsequent Claim Under S37 ZO Immigration Ordinance Restricted Proceedings Order (rpo) Abuse of Process Child Specific Considerations

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Parties

Endang Susilowati Samuji

1st Applicant

Endang Susilowati Samuji Rihanna Blezhera

2nd Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Decision on Leave Application and Restricted Proceedings Order (rpo) Made

Legal Issues

  1. 1 Whether the Director lawfully refused the subsequent non-refoulement claim under section 37ZO of the Immigration Ordinance
  2. 2 Whether the applicants demonstrated a significant change in circumstances giving a realistic prospect of success
  3. 3 Whether child-specific issues relating to the minor were separately and adequately considered

Ratio Decidendi

The court refused leave because the applicants relied on the same facts already rejected by the Director and the Board, provided no new child-specific or other material creating a realistic prospect of success under s37ZO, and therefore there was no arguable public law error warranting judicial review; because the history showed repeated attempts to relitigate the same issues, a five-year Restricted Proceedings Order was necessary to prevent abuse of process.

Court Disposition

Application for leave to apply for judicial review refused; Restricted Proceedings Order made; absence of legal representation for the 2nd applicant treated as irregularity not nullity.

Orders

  • Absence of legal representation for the 2nd applicant treated as irregularity only and shall not render the proceeding nullity under Order 2 RHC
  • The applicants' joint application for leave to apply for judicial review is dismissed