APRIYANA WINA alias APRIYANA WINK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 611/2023

[2026] HKCFI 4168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 611 of 2023

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:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 February 2023 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non‑refoulement claim as mentioned below.

2.  The applicant appeared before the Court on 13 July 2026.

The applicant

3.  The applicant is a national of Indonesia.  She is an illegal immigrant.  She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her elder brother because of their disputes and her sexual orientation, which would also not be tolerated by either the villagers or wider Indonesian society.    

4.  Details of her claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000611_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of Notice of Decision dated 10 February 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 6 January 2023, the Board conducted an oral hearing for her.  The applicant and the Director were legally represented.  The applicant had given evidence and answered the Board’s questions.

8.  Having considered the evidence and the legal representative’ submissions, the Board made the findings below.

(1)   The applicant’s problem with her elder brother is a personal matter without any involvement of the state. [38]

(2)   The villagers are non-state actors. [35]

(3)   The Board accepted there were disputes between herself and her elder brother.  However, there was no evidence her elder brother had done anything other than his single verbal threat. [43]

(4)   Also, there was no reliable evidence to show that:

i.   her elder brother will harm or kill her if she returns to Indonesia;

ii.   she would face risk throughout Indonesia;

iii.   she had suffered injuries to the required severity;

iv.   the Indonesian government is unwilling to protect her. [44]

(5)   As to her fear of the villagers and the Indonesian society in general due to her lesbianism, the Board found:

i.   under current Indonesian national law, homosexuality per se is not considered to be illegal [65]-[66];

ii.   she has indicated that she wishes to continue to live discreetly as a lesbian, keeping her sexual orientation a secret [80];

iii.   it is unlikely that her behaviour will expose her to persecution and/or harm protected by BOR 3 as she would keep her sexual orientation in secret and there was no evidence that the villagers and the society will know about her sexual orientation [83]-[84]; and

iv.   there was no evidence that she will change her stance of keeping her sexual orientation in secret. [83]

(6)   State protection will be available to her if she returns to Indonesia.

(7)   Internal relocation is viable. [121]

9.  For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 25 April 2023 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation, the applicant did not raise any specific reason to challenge the Board’s Decision.  She has attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said the Board’s Decision is right.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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