MTANGI EMILY MOSSES v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 324/2018

[2020] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 324 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Tanzania who arrived in Hong Kong 11 November 2015 with permission to remain as a visitor up to 9 February 2016 when she did not depart, and on 11 February 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Tanzania she would be harmed or killed by the father of her former girlfriend over their lesbian relationship and/or prosecution/persecution by the government or authorities as homosexual activities are illegal in Tanzania and punishable by lengthy imprisonments. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ilala District, Dar es Salaam, Tanzania. When she was small her parents divorced and she was raised by her Muslim mother.  After leaving school she worked in a hair salon and lived with her mother.

3.  At the age of 18 she realized that she was a lesbian but she did not tell her mother,and when she started dating a female friend in Temeke she also did so discreetly without letting anyone knew their real relationship including her mother except a few friends, but one day in 2014 the father of her girlfriend saw them kissing and reacted angrily by slapping both of them and warned the Applicant to stay away from his daughter or else he would harm her or report her to the police as homosexual activities were criminal offences in Tanzania and punishable by lengthy imprisonments.

4.  The Applicant therefore ceased her relationship with her girlfriend and took shelter at a friend’s place in Kinondoni District and in other places to avoid any pursuit of her father, but as she was concerned that he may report the matter to the police, she decided to leave Tanzania, which she eventually did on 10 November 2015 when she departed for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 2 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the 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 (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and expressed doubt as to the credibility of her claimed fear of harm to her for her homosexuality upon her return to Tanzania, that in any event there was no or insufficient evidence that her claimed ill-treatment is real and foreseeable that she would be harmed by her former girlfriend’s father given that she had already ceased their relationship for several years since, or that she was being pursued by the police given that she had lived in various places in Tanzania for more than one year prior to her departure without incidents and that she was able to leave the country without any difficulty, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 52 million people spread across a vast territory of more than 947,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Tanzania where it would be difficult if not impossible for her former girlfriend’s father to locate her.

7.  On 13 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 13 November 2017 before the Board with legal representation during which she gave evidence and answered questions put to her by the adjudicator for the Board and with submissions made by her lawyer on her behalf.  On 9 February 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s evidence that she was a lesbian but that she never got involved with any LGBT group or organization in Tanzania, nor did she have any record with the police or the authorities over her homosexuality, nor did she disclose to anyone or even her own mother except a few of her friends about her sexual orientation, nor did she claim that she would live openly as a lesbian if returned to Tanzania that the Board concluded that as she had lived discreetly and so avoided prosecution in Tanzania in the past and that she would continue to do so if returned to Tanzania that she would not face any real or substantial risk of prosecution or persecution that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 1 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she merely exhibited a copy of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246;Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, and on the basis of her own case at the highest, the Board correctly applied the guidance laid down by the English Supreme Court in HJ and HT v Secretary of State for the Home Department [2010] UKSC 31 to find and conclude that she would in fact live discreetly to avoid persecution because that was how she would wish to live due to social pressure and so as not to distress her mother or embarrass her friends that she has no well-founded fear of persecution because for reasons that have nothing to do with any fear of persecution that she has chosen to adopt a way of life which means that she is not in fact liable to be persecuted because she is a lesbian upon her return to Tanzania. As such and in the absence of any legal error or procedural unfairness being shown by the Applicant in her process before the Board or in its decision,I do not find any arguable basis to challenge such finding and conclusion of the Board.

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave 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