NANI YUDANINGSIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2186/2020 and HCAL 1615/2024

(Heard together)

[2025] HKCFI 4611

HCAL 2186/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2186 of 2020

_____________

AND

HCAL 1615/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1615 of 2024

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 the Applicants in open court;

HCAL 2186/2020

1.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to issue the application for judicial review be dismissed.

HCAL 1615/2024

1.  The Form 86 be amended on the court’s own motion.

2.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

HCAL 2186/2020

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 October 2020, the applicant applied for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“Board”) dated 24 September 2020 dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) respectively dated 15 October 2018 refusing to reopen the applicant’s non-refoulement claim after she had failed to return a completed Non-refoulement Claim Form within the prescribed 28 days as required under s. 37Y(2) of the Immigration Ordinance . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002186_2020_files/1st_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

HCAL 1615/2024

3.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 17 September 2024, the applicant applied for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office dated 5 September 2024 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director dated 27 June 2023 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002186_2020_files/2nd_Board's_Decision.pdf

4.  In the Form 86, the applicant named the Board and the Director as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

5.  The original basis of the applicant’s claim was that she would be harmed or killed by the creditors for an unpaid loan. However, the alleged risk and fear had dissipated due to lapse of time. The remaining basis was that she feared being discriminated and persecuted due to her gender identity and sexuality. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

Withdrawal of HCAL 2186 of 2020

6.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 16 September 2025. The applicant attended the hearing in person. After the court explained to her that the application in HCAL 2186 of 2020 had been overtaken by the Leave Application, she agreed that it was no longer necessary for her to continue with the 2020 application. She applied to withdraw the application.

7.  I believe that it was proper for the applicant to withdraw the application. In the circumstances, I accede to her application to withdraw and dismiss the applicant’s application for leave to apply for judicial review in HCAL 2186 of 2020.

8.  Hence, the discussion below is only in relation to HCAL 1615 of 2024.

Discussion

9.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

10.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.  In her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

12.  At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application. The applicant stated that she could not go home as the problem had not yet been solved.

13.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board accepted that the applicant is a lesbian and a transgender and that she was going to live openly as one of the LGBTIQ [4]person. However, the Board concluded that there was no real and personal risk of harm against the applicant as the Board found that there was no evidence of any real intention of her family to harm or kill her. It also found that state protection as well as internal relocation would be reasonably available to the applicant. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

14.  At the hearing before the Board, both the applicant and the Director were legally represented. According to the agreed list of issues (“List of Issues”) submitted to the Board’s determination (App. E to the Board’s Decision), the parties submitted 5 issues for the Board’s assessment. In my view, issues (1) to (3) can be grouped as one single issue, which is the question as to whether there was a well-founded fear of being discriminated or subjected to ill-treatment by the Muslims in Indonesia on account of her gender identity /sexual orientation.

15.  Hence, there were effectively 3 issues as follows:

(1)  Issue 1: whether there was a real risk of discrimination or ill-treatment due to the applicant’s sexual orientation.

(2)  Issue 2: whether state protection was available ;

(3)  Issue 3: whether internal relocation was viable.

16.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I believe that the Board’s Decision on the above 3 Issues are arguably wrong.

Issue 1

17.  The Board set out 5 reasons to support its conclusion of the lack of risk of harm (Board’s Decision [77] (iv) to (viii)).

18.  As for the 1^st reason (Board’s Decision [77] (iv)), the Board referred to the Criminal Code (“Criminal Code”) , which was promulgated on 2 January 2023, and would come into effect after 3 years . The Board considered that the legal effect of the existing Penal Code of Indonesia before the implementation of the Criminal Code. The Board considered that the existing Penal Code did not prohibit same-sex relation with the exception of the some specific cities which local ordinances criminalized homosexuality. The Board found that the applicant would not face a real risk of harm to continue to practice same-sex relations so long as she could stay outside those specific cities.

19.  In my view, the Board had made an error in its reason when it found that the applicant could avoid the risk of harm by restricting her movement. In other words, the applicant, if refouled, would not be freely and openly live as a lesbian in certain areas. The Board has arguably failed to adopt a correct approach when assessing the applicant’s fear of persecution because of her sexual orientation as expounded in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 . Lord Roger in [82] stated:

“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution even if he could avoid the risk by living discreetly. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him…” (Emphasis added).

20.  Lord Roger’s reference in HJ (Iran) on a gay person’s avoidance of persecution “by living discreetly”, can be applied analogously to the Board’s conclusion that the applicant could avoid any criminalization of her practice as a lesbian by avoiding going to certain cities in Indonesia. In the circumstances, the reason is arguably wrong in law.

21.  As for the 2^nd reason (Board’s Decision [77] (v)), after the Board considered the impact of the Criminal Code, relevantly articles 411 and 412, the Board concluded that neither of the articles would apply to the applicant’s situation (Board’s Decision [82] (m) & (p)).

22.  The Criminal Code was a new piece of legislation that was to be implemented in 3 years’ time. Hence, there were little precedents or judicial interpretation of these statutory provisions. In the present case, both parties declined to adduce expert evidence but relied on their closing submissions regarding the new legislation. In the applicant’s closing submissions, counsel for the applicant had submitted that the Criminal Code did not recognize same-sex marriage and that the applicant would not be allowed by the Criminal Code to have sexual relations or otherwise cohabited with her same-sex partner. The Director’s submissions were that the likelihood of the applicant being prosecuted for offences contrary to Articles 411 and 412 was not high because the offences were complaint-based.

23.  Without addressing these submissions both parties relied on, the Board appeared to have applied its own common sense and deduced that Articles 411 and 412 did not apply to the applicant.[5] It is also established that a decision-maker is not allowed to apply his or her own common sense in non-refoulement claims : ST v Betty Kwan[6] (which was later followed in TI v Winston Leung[7] at [61]). Hence, the Board’s reasons is arguably unreasonable.

24.  In the applicant’s closing submissions, counsel had referred to the Board 6 items of the relevant COI materials that tended to show that the applicant would be subjected to ill-treatment and persecution. Even in the Director’s closing submissions, the Director had conceded that the offences under the new legislations were “complaint based”. The Board however did not weigh up any of these submissions and give the appropriate weight to these submissions. A high standard of fairness requires a decision-maker in non-refoulement claims to evaluate information that goes “beyond the testimony of the applicant and include[s] in-country reports, expert testimony”, and attach weight to everything that is capable of having a bearing, be it great or little. In the circumstances, the Board’s reason was unfair.

25.  In relation to the 3^rd reason (Board’s Decision 77(vi)), the Board relied on a COI that stated that the percentage of people accepting homosexuality had increased from 3% in 2013 to 9% in 2019. The Board therefore concluded that the instances of hostility, threats or violence were sporadic and unconnected.

26.  It however appears that not only the Board’s above conclusion was not supported by the COIs it considered in [83] of the Board’s Decision, it was contradicted by them. For example, the Board did not give weight to the report stated in COI at item 5 of Appendix F that states “… Lesbians may be vulnerable to violent attacks by family members and this occurrence may be under-reported” (Board’s Decision at [83] (b)). In [83] (c) of the Board’s Decision, the Board also referred to the COI that stated that “… Other reports indicate that lesbians may be forced to hide their sexual orientation to avoid ill-treatment…”.

27.  As to the rest of the COIs the Board considered (at [83](f) to (i)), they were about the accomplishments of the various LGBTI individuals, which are not relevant to the question of risk of harm and fear specific to the applicant as a lesbian with limited education and connection.

28.  Hence, the 3^rd reason arguably was irrational due to the lack of evidence to support the Board’s conclusion.

29.  The 4^th reason is in fact Issue 2, state protection, which will be separately discussed below.

30.  As for the 5^th reason (Board’s Decision [77](viii)) regarding the risk of harm from the family. The List of Issues had not referred to the risk of harm from the family. Hence, it is strictly an irrelevant consideration.

31.  In conclusion, of all the 4 relevant reasons the Board relied on in concluding that the applicant would not face a risk of harm is arguably unreasonable, unfair and irrational.

State Protection

32.  The 4^th reason of the Board (Board’s Decision [77](vii)) is state protection. The Board’s conclusion on the availability of state protection was based on the Board’s finding that there were legislative measures and supports from the NGOs for victims from abuses or persecutions for the LGBTIQ in Indonesia.

33.  In assessing the risk of harm in the present case, the Board was required to consider the future harm should she be refouled. Hence, the Criminal Code as discussed above would be a relevant consideration. The Board’s reliance on the Constitution that provides for the equality of the citizens would seem to suggest that the Board had failed to apply the correct principle by assessing whether the state was able to provide “sufficient”[8] and “meaningful” [9] state protection with reference to the relevant COI, which is relevantly the Criminal Code discussed above.

34.  The Board’s reliance on the number of LGBT organizations, NGOs and community groups in various provinces to reach its conclusion also seems to have been irrational. The Board’s omission to refer to more updated COIs provided by the applicant’s counsel (Board’s Discussion [68] (5) would arguably is a failure to observe a high standard of fairness by undertaking a proper and independent assessment.

35.  In the circumstances, the Board’s assessment of state protection is arguably irrational, and the Board’s Decision is tainted with procedural unfairness.

Erroneous assessment of internal relocation

36.  The Board’s conclusion of the viability of internal relocation was based on the applicant’s experience (as a domestic helper) and education (6 years) as well as the economic situation in the large cities of Indonesia.

37.  It is trite that when assessing the viability of internal relocation, a decision-maker is required to take into consideration the personal circumstances specific to a claimant so that a holistic assessment can be made before deciding whether it would be unduly harsh for the claimant to relocate elsewhere: Md Nazir Ahmed Sarkar v Torture Claims Appeal Board [2021] 5 HKC 237 at [73].

38.  In the present case, the Board should have therefore taken into account the applicant’s personal background that she belonged to the ethnic group of Sunda, and that she had altogether only successfully worked for 3 months as a domestic helper and that for the two contracts, she only worked for 1 month and 2 months respectively. Hence, the Board ought to have considered the kind of employment that she could reasonably obtain as a transgender person in a conservative Muslim country.

39.  In my view, the Board’s assessment on internal relocation appears to be flawed as it has failed to consider the specific risk of harm the applicant would face. I therefore conclude that it is at least arguable that the Board’s conclusion is erroneous.

40.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.

Conclusion

41.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

42.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

HCAL 2186/2020

43.  The Form 86 be amended on the court’s own motion.

44.  The applicant’s application for leave to issue the application for judicial review be dismissed.

HCAL 1615/2024

45.  The Form 86 be amended on the court’s own motion.

46.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

47.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an 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