Hutapea Nopitasari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1435/2025

[2026] HKCFI 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1435 of 2025

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:

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 18 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not ask for a hearing.

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 brother because he discovered that she is a lesbian. She also fears that she would be discriminated by the society at large because of her sexual orientation.

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/2025/HCAL001435_2025_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 the Notice of Decision dated 14 April 2014 (“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 13 June 2025, the Board conducted an oral hearing for her.  The applicant had given evidence and answered the Board’s questions.

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

(1)   It seems that the Board did not dispute that the applicant is a lesbian,

(2)   The Board found that there is nothing in her case section 37U(1) of the Ordinance applies. [47]

(3)   The whereabouts of her brother is unknown.  Other members of her family did not threaten to harm her. [46]

(4)   The country of origin information (“COI”) suggests that the Indonesian government and certain non-government organizations in Indonesia have taken steps to protect the rights of sexual minorities. [50]

(5)   Police directives provide for protection of the right of the minority groups, including those of sexual orientation. [51]

(6)   Non-government organizations like the Women Headed Household Empowerment Program also exists in Indonesia to protect women from gender-based violence. [52]

(7)   The Board found that there was no evidence to support that the applicant will face real risk of torture if she returns to Indonesia. [53]

(8)   The Board also found that there was no real risk of other applicable risks to the applicant if she returns to Indonesia. [56]-[59]

(9)   Internal relocation is viable. [60]-[61]

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 23 June 2025 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant has not raised any valid specific ground to challenge the Board’s Decision.

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.  

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

DISPOSITION

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

Dated the 25^th day of March 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