SARI YUNINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1624/2025

[2026] HKCFI 3719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1624 of 2025

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 10 July 2025 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 did not ask for a hearing.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  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 father because of her sexual orientation and by her brother because of family assets distribution.  

5.  Details of her claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001624_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.  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”).

7.  By way of Notice of Decision dated 15 May 2025 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 30 June 2025, the Board conducted an oral hearing for her.  The applicant had given evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board made the findings below.

(1)   There was no evidence that her father or her brother had issued death menace to her. [54]

(2)   There was no evidence that the state was involved. [56]

(3)   Although LGBT will be discriminated in Indonesia, the Indonesian government has been making improvements on the situation and there was no national law against homosexual activities in Indonesia. [67]-[68]

(4)   State protection will be available to the applicant if she returns to Indonesia and internal relocation is viable. [70] & [77]

10.  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

11.  The applicant has filed Form 86 dated 18 July 2025 for leave to apply for judicial review of the Board’s Decision.

12.  In support of her application, the applicant said she is still scared of her brother and she is a lesbian.  She has attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The applicant’s reasons under paragraph 12 are not valid to challenge the Board’s Decision as the Board has found against her on those issues in the Board’s Decision.

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

DISPOSITION

18.  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