Safitri Kurnia Sari v. Torture Claims Appeal Board

HCAL 1324/2025

[2026] HKCFI 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1324 OF 2025

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 10 June 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 27 March 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001324_2025_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 December 2024 and confirmed the same.

Amendment

3.The applicant named the Board and Non-refoulement Claims Petition Office as the putative respondents in Form 86, when only the Board should be the putative respondent.

4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed or killed by her elder brother due to her sexual orientation.

Withdrawal of the Leave Application

8.Before the Leave Application was dealt with, the Director informed this court that the applicant had written a letter dated 26 October 2025 to cancel her non-refoulement claim including judicial review. However, she did not state that it was safe for her to return to her home country or that her problem in her home country had been solved.

9.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

10.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

11.Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

12.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.The applicant did not assert any grounds for her intended judicial review in Form 86. In a 5-page document handwritten in Indonesian and annexed to her supporting affidavit/affirmation dated 10 June 2025, she repeated her danger from her elder brother in Indonesia as she was a lesbian. She further stated that Muslim people in Indonesia were against same sex relationship and she was also at risk of being killed by the man to whom her family had arranged her to marry, as she refused to marry the man after her family had received a very large sum of money from him.

14.The applicant’s said handwritten document was translated by an interpreter engaged by the Court Language Section.

Discussion

15.First of all, the applicant’s claimed threats from the Muslims as a whole in Indonesia or from the man to whom her family arranged her to marry were not presented before the Board for assessment. As can be seen from paragraph 12 of the Board’s Decision, she mentioned to the Board that the only fear she had upon refoulement was from her elder brother, and apart from her elder brother, she did not encounter any discrimination or harm in Indonesia because of her sexual orientation.

16.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

17.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

18.Thus, the applicant cannot rely on any materials not placed before the Board as a ground for her intended judicial review. There is no reason for this court to consider her non-refoulement claim afresh based on the new alleged threats raised by the applicant in her supporting affidavit/affirmation.

19.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, supra).

20.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

21.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 25 February 2025 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

22.Having considered the applicant’s claims and all the evidence, the Board found that the applicant’s claim of threat from her elder brother arising from her sexual orientation was unconvincing and unreliable. The applicant was unable to provide even the most basic information, including the full names, birthdays etc relating to her alleged three lovers. The Board rejected the three photographs submitted by the applicant to support her claims that she was a lesbian. The Board found no reliable evidence that the applicant’s alleged three lovers actually existed, and even if they did, the Board rejected that they were engaged in a homosexual relationship.

23.Moreover, the Board found significant inconsistencies between the applicant’s claims before the Director and her evidence at the Board’s hearing. The Board did not accept the applicant’s claim about the alleged actions taken by her elder brother after November 2018.

24.The Board found that, even if the applicant’s claimed attack by her elder brother in November 2018 did happen, the injuries she sustained was not serious. The Board did not find that her elder brother had a real intention to seriously harm or kill her.

25.The applicant did not make her non-refoulement claim when she arrived in Hong Kong in 2019, but only did so when she was arrested by the police in 2024. It was not suggested that the threat from her brother was imminent.

26.There was no evidence that the applicant’s elder brother was a public official or acting in any official capacity, or that the Indonesian government was involved in the applicant’s private dispute with her elder brother. The Board also found that the applicant’s claimed threat from her elder brother had not reached a minimum level of severity. There was no evidence that the applicant’s elder brother had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or that the applicant had a well-founded fear of persecution for one or more reasons enumerated in Article 1A(2) of the RC[1].

27.Although the applicant confirmed that her only fear for returning to Indonesia arose from her elder brother, the Board did assess the applicant’s situation if she were to return to Indonesia as a lesbian. The Board found from country of origin information (“COI”) that despite the existence of incompetence and corruption in government authorities, steps were being taken by the Indonesian government to combat corruption, to protect the rights of women and to provide supports to LGBT community. COI also showed increasing supports from the state and NGOs for LGBT in Indonesia. The Board found that reasonable state protection would be available to the applicant if she needed it.

28.Given its findings, it was not strictly necessary for the Board to assess the viability of internal relocation for the applicant. However, the Board did do so as a matter of caution. The Board considered that the applicant, being able-bodied with 9 years of formal education and work experience, could relocate to other parts of Indonesia without undue hardship. It would be highly unlikely for her elder brother who only worked as a farmer to be able to locate her in such a vast country.

29.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection based on any of the applicable grounds under the USM.

30.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

31.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 14^th day of January 2026

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