SI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2065/2020

[2026] HKCFI 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2065 OF 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Indonesia who arrived in Hong Kong on 24 January 2014 as a visitor with permission to remain as such up to 31 January 2014 when she did not depart and instead overstayed, and was arrested by police on 28 October 2018, and for which she was subsequently convicted and sentenced to prison for 4 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that she being a transgender female of Muslim religion if returned to Indonesia she would be harmed persecuted or persecuted by the Muslim community and/or the Indonesia authorities. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born as a male and raised as a Muslim in Perumahan Guru, Karang Sari Permai Kec, Siantar Martoba, Pematang Siantar, Indonesia. After leaving school she worked as a waiter in Bali to make her living.

3.  While born biologically a male, the Applicant always felt to be a female, and acted accordingly since primary school by dressing and acting like a girl which however attracted criticisms and threats and sometimes beatings from other boys at school, and in particularly from her step-brother and his friends who often beat her causing cuts and bruises all over her body.

4.  In 2002 after graduating from university and at the age of 21 she moved to Bali where she believed to be more liberal towards the LGBTI community, and where she worked as a restaurant waitress and commenced her sex re-assignment process and hormone treatments as well as undergoing a surgery in Thailand, and was eventually transformed to become a female.

5.  However she also started to receive harassments and persecutions by the local security force who would arrest and detain her on multiple occasions, and that she either by herself or with her LGBTI friends had also been harassed and attacked by some local teens and residents on various occasions that caused her fear and distress.

6.  In 2010 she moved to Jakarta believing that as the capital and a major city it would be a safer place for her, but during her stay for 2 years she often met with discriminations and rejections by landlords and employers as well as local clinics when she needed medical attention or treatments.

7.  By 2012 she found it intolerable to remain in Jakarta and returned to Bali, but as she continued to face discriminations and harassments there, and fearing that the anti-LGBTI sentiments from both the Muslim community and the Indonesian authorities were increasing and deteriorating, the Applicant on 24 January 2014 departed Indonesia for Hong Kong when she subsequently overstayed, and upon her arrest by the police she then raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 March 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 4 October 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm arising from her transgender and homosexual identities upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her perceived enemies, that there is no reliable evidence of any real risk of harm or persecution from the Muslim community or the Indonesian authorities other than some isolated incidents with relatively insignificant consequences, that in any event state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 263 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country in large cities such as Yogyakarta or Bali where it is more open and tolerable to the LGBTI community.

10.  On 16 October 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 8 May 2020 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions by her lawyer on her behalf. On 16 July 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted that the Applicant is a transgender and would fall within the definition of a particular social group under the UNHCR Guidelines on International Protection, but did not find on her return to Indonesia that she would face a real chance of serious harm for being a transgender or homosexual person in relation to Indonesia as a whole as independent COI show that homosexuality is not illegal under the national Penal Code for Indonesia, that despite condemnation of homosexuality in the conservative regions of the country that there is more generally a tolerance for LGBTI people as demonstrated by the availability of open support networks, an active political movement and a LGBTI rights movement within the country, that while being a Muslim that the Applicant may also be at risk of some discriminations on the basis that she is a transgendered Muslim but that it is not satisfied on the evidence that such conduct would be systemic and discriminatory, that COI show that whatever risk that the Applicant might face as being a localized one, and concluded that it is not accepted that she would face a real chance of persecution by the state of Indonesia by reason of her membership of a particular social group as a transgender person or for any other Convention related reasons, and that if she were at risk of persecution on a local level that reasonable and safe relocation within Indonesia away from her home district would be available to her upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds. 

12.  On 15 October 2020 the Applicant by her lawyer filed her Form 86 as amended for leave to apply for judicial review of the Board’s decision, and for which she was represented by Mr Francis Ngan of Counsel at the hearing with the following proposed grounds for her intended challenge:

(1)  Illegality/Irrationality in that the Board’s decision was illegal and/or Wednesbury unreasonable in failing to make sufficient inquiry into the relevant COI and hence reached the wrong findings and/or failing to give adequate reasons for its purported findings on the relevant COI including those available in the hearing bundle for the Applicant’s appeal before the Board;

(2)  Illegality in the Board’s assessment of state protection as unreasonable in failing to apply the correct test and was wrong in its assessment of the nature of the Security Forces in Indonesia;

(3)  Illegality in the Board’s failure to sufficiently assess the Applicant’s claimed risk of facing religious persecution as transgender person;

(4)  Illegality in the Board’s assessment of the Applicant’s credibility by wrongly applying the test and/or the relevant legal principles for assessing evidence in the context of non-refoulement claims;

(5)  Illegality in that the Board applied the wrong test for persecution risk in its assessment of the Applicant’s claim.   

13.  Before proceeding to consider and determine whether these grounds are reasonably arguable for the Applicant’s intended challenge of the Board’s decision, it would be relevant to first note that the Board did properly identify the Applicant’s case in its decision as follows (BD1/7/82-83):

“The Appellant’s case

34. The Appellant claims, in relation to being refouled to Indonesia, that she has a fear of harm based on:

(i) being a pre-operative transgender person (with apparent physical transgender characteristics such as breast implant surgery);

(ii) being a transgendered Muslim (persons who are often stigmatized, especially during prayers in mosques); and/or

(iii) being a homosexual (if she is not recognized as a woman).

35. Her fear of returning to Indonesia is based on (1) past incidents of harm; and (2) anticipated future harm (in light of prevailing treatment of transgendered individuals in Indonesia).”

14.  As for her anticipated future harm, the Board also correctly identified those perpetrators feared by the Applicant and stated in her Skeleton Submissions of 31 January 2020, and set out in its decision as follows (BD1/7/84):

“Future harm

39. At the same time, the Appellant claims, if refouled, that she will face a real and substantial risk of being harmed in the future by:

(i) transphobic and/or homophobic members of the public;

(ii) police force and/or auxiliary police force and/or local security forces;

(iii) radical Islamic militant groups; and/or

40. As Mr Daly expressed at the Hearing, the predicament of LGBT individuals in Indonesia has worsened since around 2016 on the basis of:

(i) the rampant and pervasive discrimination and societal disapproval towards transgender persons and/or homosexual persons; and

(ii) the increasingly draconian and persecutory government policies and actions taken against transgender persons and/or homosexual persons.”

15.  In order to make an objective assessment of the claimed risk of persecution faced by the Applicant, the Board also agreed that relevant COI materials are of utmost importance in assessing the objective situation in an applicant’s country of origin, as it so stated in its decision (BD1/7/90):

“COI Materials

61. Since the decision maker must make an objective assessment of the risk of persecution faced by an appellant, relevant COI materials are of utmost importance as relevant COI and human rights information will assist in assessing the objective situation in an appellant’s country of origin.

62. As the Court of Appeal in Hong Kong has said, a claimant having stated his claim, is not entitled “to simply sit back and require the Director to disprove it.” A claimant who only sits back is “merely crying of fear and obviously cannot discharge the burden of proof.” A claimant must establish substantial grounds showing a foreseeable, real and personal risk.

63. In view of the particulars of an appellant’s situation, the Board shares the duty to ascertain and evaluate all the relevant facts. The high standards of fairness require a “joint endeavor” in achieving a fair result such that, where an appellant has failed to provide relevant COI materials, it falls upon the Board to look for the same. I was referred to a large number of COI references by both sides and which I have considered.”

16.  It is on these bases that the Board proceeded to assess the Applicant’s claimed fear of future harm from those state and/or non-state actors as follows (BD1/7/90-93):

“Risk of Harm from State and/or Non-State Actors

64. I accept that if it were held that there was a real risk of harm from the state of Indonesia as a whole, the Appellant would have no reasonable expectation of protection from the state. The Appellant would also have no reasonable expectation of protection from the state if she were harmed or threatened harm by a non-state actor if the acts committed against her had been knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection …

…

68. There was no dispute that the first two groups of alleged abusers are non-state actors in relation to the Appellant’s alleged situation(s).

69. The Appellant, however, claims the third group (namely the “local security force”) is a “state actor.” As Mr Daly submitted: “the Appellant’s case relates to harm directly emanating from State apparatuses (i.e. arbitrary arrest and unlawful detention by the police, auxiliary police and/or local security forces) as well as harm inflicted with the passive and/or active acquiescence of persons acting in official capacities).”

70. From the COI, I do not consider the “local security force” (as identified by the Appellant) to be a “state actor.” No evidence was produced to support the Appellant’s contention that the local security force that apparently troubled her in Bali comprised the “police, auxiliary police force and/or local security force.” As submitted. Indeed she accepted that the local security force (which she also confirmed to be the “Pecalang”) are not the police.”

17.  The Board then proceeded to ask itself this question “What is the current situation facing transgenders in Indonesia?”, and upon considering the relevant COI arrived at the following conclusion (BD1/7/101-102):

“89. In light of the decision maker’s role, which is to make an objective assessment of the risk of harm, relevant COI materials are of utmost importance, as relevant COI and human rights information will assist in assessing the objective situation in an appellant’s country of origin.

90. Transgender identity (also called waria) has long been part of Indonesian culture and society. While transgender people in Indonesia are generally more accepted than gays, lesbians and bisexuals they have, in recent years, faced growing discrimination and rejection, mostly from sharia-supporting Muslim groups, which have become more and more popular in Indonesia. The status of a transgender person in Indonesia is complex. Cross-dressing is not, per se, illegal and some public tolerance is given to some transgender people working in beauty salons, or in the entertainment industry, most notably the celebrity talk show host Dorce Gamalama. Transgender people are allowed to change their legal gender on official documents after undergoing sex reassignment surgery and after receiving a judge’s approval. Individuals who undergo such surgery are later capable of marrying people of the same biological sex. The COI confirms that discrimination, harassment, even violence directed at transgender or LGBTI people is not uncommon. Indonesian law does not protect LGBTI people from discrimination or harassment. Transgender people who do not hide their gender identity often find it difficult to maintain legitimate employment.

91. Under current Indonesian national law, homosexuality is not illegal under the Penal Code. Recently, the Indonesian Constitutional Court rejected a petition by a conservative group to criminalise gay sex on the basis of immorality. The judges in their ruling said it is not the Constitutional Court’s role to criminalise private behavior or to usurp parliament by imposing laws on it.

92. Whilst the decision of the Constitutional Court means that same sex has not been criminalized, the Board notes that there are ongoing efforts by conservative religious groups who advocate that this be done.”

18.  As for the Applicant’s claimed fear of harm for being a homosexual Muslim if not recognized as a woman, the Board made the following findings from COI that it would be in the form of discriminations carried out mainly by religious extremists:

“97. From the COI, explicit discrimination and homophobia is carried out mainly by religious extremists, while subtle discrimination and marginalization occurs in daily life among friends, family, at work or school. Indonesia, however, does have a reputation as being a relatively moderate and tolerant Muslim nation, which does have some application to LGBTI people. LGBTI people are visible in the media and the national government has allowed a discreet LGBTI community to exist, which sometimes organizes public events. However, conservative Islamic social mores tend to dominate within the broader society. Homosexuality and cross-dressing remain taboo and periodically LGBTI people become the targets of local religious laws or fanatical vigilante groups.

98. Traditionally, Indonesians are quite tolerant towards LGBTI people who keep quiet and stay discreet about their private lives. However, this level of tolerance is not extended towards the LGBTI rights movements, which has faced fierce condemnation in the public sphere from Indonesian authorities. However, numerous officials such as the former Governor of Jakarta, Basuki Tjahaja Purnama and former Political, Legal and Security Affairs Minister, Luhut Binsar Panjaitan have defended the LGBTI community. The former Governor has been noted as stating, “Whoever they are, wherever they work, he or she continues to be an Indonesian citizen. They have the right to be protected as well.” President Widodo has also expressed support for LGBTI rights and has called for an end to discrimination.”

19.  The Board did in its decision acknowledge the Applicant’s fear of facing a real and substantial risk of harm if she were to act opening as a transgender if refouled today because the plight facing transgendered individuals in Indonesia has become more dangerous, but found no indication of systemic violence against LGBTI people and that reports of ‘attacks’ largely confined to public statements and intimidations while violent acts are mainly localized in certain conservative regions (B1/7/107):

“Treatment of LGBTI people in Indonesia

103. First, it is clear that while the state as a whole does not target sexual minorities, LGBTI people living in certain conservative regions of Indonesia are not treated or viewed favourably – legislation in local areas such as Aceh, South Sumatra, Pariaman, Palembang and even the Home Village have criminalized same-sex activity. Notwithstanding this approach, the COI indicates that Aceh is the only province that can adopt bylaws from Islamic Sharia law and that Sharia does not apply to non-Muslims, foreigners, or Muslim Indonesians not resident in Aceh.

104.  Second, the Board accepts and the COI confirms, that discrimination of LGBTI people in Indonesia does exist. However, whilst LGBTI people may deal with varying levels of discrimination and acceptability in their communities, there is no indication of systemic violence against LGBTI people – reports of ‘attacks’ on sexual minorities appear to be largely confined to public statements, intimidation, some violence, protests, occasional threats and political or religious expressions of intolerance.”

20.  The Board proceeded to find many networks of LGBTI people and organizations exist in Indonesia that the Applicant could link up for support upon her return, and that she would be afforded the requisite level of protection from the government of Indonesia, while as to the numerous COI relied on by the Applicant to show LBGTI opposition in Indonesia at the government level and nationwide, of which it was submitted that the whole country was unsafe for her because of national legislation, sentiment and policies against LGBTI individuals, the Board was of the view that they were mainly confined to conservative regions of Indonesia, and that views of individual officials and politicians that are against LGBTI people do not mean that they represent the national policies:

“124. However, upon a holistic assessment of the COI against the backdrop of the Appellant’s individual background and experiences, the Board concludes that the risk of serious harm the Appellant might face would be confined to conservative regions of Indonesia.

125. For example, it is well documented that conservative areas, with their own local legislation, operate differently to other less conservative regions.

126. See: Freedom in the World – Indonesia 2020:

“F4. LGBT+ people suffer from widespread discrimination, and authorities continued to target LGBT+ people with inflammatory and discriminatory rhetoric. LGBT+ people also risk attacks by hard-line Islamist groups, sometimes with support from local authorities.” (Emphasis added)

127. See: UN Development Programme (UNDP), Being LGBT in Asia: Indonesia Country Report:

“Laws: National laws generally do not recognize or support the rights of LGBT people, even though homosexuality is not criminalized. Neither marriage nor adoption by LGBT people is permitted. There are no specific anti-discrimination laws that pertain to sexual orientation or gender identity (SOGI). As Indonesian law only recognizes male and female genders, transgender people who do not choose to undergo gender reassignment surgery can have problems with identity documents and related issues. Homosexuality is criminalized in local ordinances where it is seen as an immoral behavior, although four out of five relevant ordinances do not state an explicit punishment. Police generally fail to protect LGBT people from attacks by hardline Islamist activists and thugs. Those LGBT people who are classified as vagrants for being in public spaces may be subject to abuse and extortion at the hands of officials.” (Emphasis added)

128. At the same time it cannot be forgotten that, nationally, homosexuality is not illegal under the Penal Code despite there being a vocal minority, including politicians, calling for changes to the law.

“In the last few years harassment, intimidation, attacks and discrimination increased against lesbian, gay, bisexual, transgender and intersex (LBGT) in Indonesia after several public officials made inflammatory, inaccurate or misleading statements in January 2016 on the grounds of “defending the country’s public morality and public security.”

129. However, what individual officials might say publicly against transgenders or the wider LGBTI community, including calling for stronger anti-LGBTI legislation, does not mean that such views represent national policy.”   

21.  The Board then concluded that in any event relocation options within the country would be available to the Applicant to avoid her asserted risks:

“Relocation options

130. Even if the Appellant were afraid to return to Bali or the Home Village, which is located on the island of Sumatra (where both Aceh and South Sumatra are located), the Board is not satisfied that she would, on account of her sexuality, face systemic and discriminatory conduct throughout the country. The Board is of the view that it would not be unduly harsh for her to relocate to other parts of Indonesia.

131. Indeed, she did stay in Jakarta without incident in the past (albeit this before 2016). If she were to stay there or other less conservative regions in Indonesia now (where anti-LGBTI legislation has not been passed) and with the help of various LGBT organizations, if needed (see above), the chance of her being personally targeted because she is a transgender would be low.” 

22.  It is on these findings and bases that the Board concluded that the Applicant’s non‑refoulement claims failed on all the applicable grounds, and accordingly dismissed her appeal (B1/7/115-117), whereupon I shall now proceed to consider the proposed grounds of the Applicant for her intended challenge of the Board’s decision, starting with Ground (1).

23.  For this ground Mr Ngan submits for the Applicant that the Board effectively ‘cherry‑picked’ from those COI relied on by the Applicant for her appeal to arrive at its decision but for which it also failed to give adequate reasons for its purported findings based on the relevant COI.

24.  Mr Ngan further submits that the relevant COI in fact show that the LGBTI+ situation in Indonesia has dramatically deteriorated since 2016, of which the Board was apparently aware or should have been aware given that they were all available in the appeal hearing bundle, and were clearly and heavily relied on by the Applicant and argued by her lawyer at the appeal, but of which Mr Ngan submits that there was no material or sufficient reference to, let alone of, those COI whether qualitatively or quantitatively in the Board’s decision despite their high relevance, and that the Board appeared to have just brushed them aside as peripheral and that whatever discriminations against LGBTI people there may have been that they were confined locally to more conservative regions in Indonesia.

25.  Mr Ngan highlighted those relevant COI, in particularly those about what the Applicant argued to be deteriorating situations in Indonesia since 2016 and which were available before the Board, in the following summaries:

(1)  That Human Rights Watch in 2017 stated: “The Indonesian government stoked an unprecedented attack on the security and rights of sexual and gender minorities in early 2016. Anti-LGBT statements by government officials provided social sanction for harassment and violence against LGBT Indonesians, and even death threats by Islamists. State institutions, including the National Broadcasting Commission and the National Child Protection Commission, issued censorship directives banning information and broadcasts that portrayed the lives of LGBT people as “normal” as well as so-called “propaganda” about LGBT lives. That combination of discriminatory rhetoric and policy decisions harmed the physical security and right to free expression of LGBT people across the country”. (B1/26/387)

(2)  That Human Rights Watch in 2019 described the events in 2018: “Following a 2016 deluge of government-driven anti-lesbian, gay, bisexual, and transgender (LGBT) rhetoric, authorities in 2018 continued to target private gatherings and LGBT individuals – a serious threat to privacy and public health initiatives in the country …

Indonesian authorities continued to fail to uphold basic rights of LGBT people, fueling a spike in the country’s HIV epidemic. Police arbitrary and unlawfully raids on private LGBT gatherings, assisted by militant Islamists, has effectively derailed public health outreach efforts to vulnerable populations. HIV rates among men who have sex with men (MSM) have consequently increased five-fold since 2007 from 5 to 25 percent.” (B1/28/433 & 436)

(3)  Government officials publicly called for policies that would target LGBTQ+ people for arrest and ‘rehabilitation’. The authorities, including the police, repeatedly abused their power and targeted LGBTQ+ people. (B1/30-32/446-458)

(4)  Attacks on LGBTQ+ people were advocated and perpetrated by the government, militant Islamists and mainstream religious organizations. Their combined efforts led to immediate deterioration of the human rights of LGBTQ+ people. (B2/33/467-468)

(5)  Under the de-centralized legal system, local governments enacted discriminatory laws targeting and impinging on the fundamental rights of LGBTQ+ people. (B2/33/475)

(6)  Contrary to the Board’s view, Yogyakarta was not a safe place for LGBTQ+ people. (B2/33/493-499)

(7)  Contrary to the Board’s view, Bali was not a safe place for LGBTQ+ people. (B2/74/830-836)

(8)  The Psychiatrist and Mental Health Director of the Ministry of Health of the Indonesian government in a live television programme labeled LGBTQ+ people as having mental illnesses and claimed that they should be treated. (B2/33/505-509)

(9)  The mainstream religious organizations called upon the government to enact legislation to end LGBTQ+ activities. (B2/33/509-512)

(10)  The Indonesian authorities continued to target LGBTQ+ people. (B2,3/35-44, 49, 59-74/556-622, 721-723, 766-836)

(11)  The Australian government observed in 2019: “LGBTI people face a high risk of societal discrimination: traditional views about sexuality and gender restrict their participation in the workforce and the broader community. This applies particularly in areas outside of Jakarta and Bali and for those from poorer backgrounds. Those perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas, including Muslim and Christian communities. DFAT assesses that LGBTI people face a moderate risk of homophobic        

26.  Mr Ngan submits that these COI put forward on behalf of the Applicant were more updated and overwhelming as to the problems faced by LGBTQ+ people in Indonesia which the Board was required to address them sufficiently, and if it rejected or discounted them, it would have to provide adequate reasons for doing so, but a careful reading of the decision shows that even if the Board did consider them, it does not reveal why it did not place any weight or appropriate weight on such COI, or why it rejected or discounted them, as there were no or no sufficient reasons given in the decision.

27.  Mr Ngan further submits that one of the most glaring errors of the Board was that it predominantly referred to those COI in or before 2016, whereas the gist of the Applicant’s main concern was the deteriorating situation after 2016 but which the Board just superficially referred to and completely failed to address those far more important matters highlighted above, and thus failed to discharge its duty of conducting adequate inquiry into the relevant COI and/or to provide adequate reasons for its decision.

28.  Given that the Board did not take any issue with the Applicant’s claim of being a transgender Muslim from a pre-dominantly Islamic and conservative population of Indonesia, and with the abundance of COI relied upon in support of her claim of fear of persecutions by the Muslim community and more significantly by the State or government of Indonesia as argued by her lawyer before the Board, and while the Board is not required to refer to or take into consideration of each and every piece of COI submitted by an applicant, high standards of fairness require the adjudicator to adopt an active role in screening the claim properly and adequately, and to make sufficient inquiry into the relevant and more current COI up to the present time of the decision as pertaining to the central core of the applicant’s claim, and to give adequate reasons why they are not accepted or rejected, it seems to me reasonably arguable that the Board in the Applicant’s case had failed to make proper or sufficient inquiry into the relevant and current COI in its assessment of her claim and/or failed to give adequate reasons for its decision: See Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at 206‑207, and AM v Director of Immigration [2014] 1 HKC 416 at [95] - [107].

29.  Henceforth, and for the same reasons it follows that it is in my view also reasonably arguable that the Board had failed to properly assess state protection and/or religious persecution and/or erred in the assessment of the option of internal relocation under Grounds (2) and (3) of the Applicant.                                

30.  In the premises, and for the given reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable based on those grounds stated above, and meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

31.  Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on those grounds stated above, and direct that she shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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