TAFUMA TINASHE TED v. NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the putative respondent, its decision dated 6 November 2020 as the decision sought to be reviewed and the Director of Immigration as the putative interested party;

2.  Extension of time to file Form 86 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 6 September 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of “TCAB” dated 15 June 2021.  “TCAB” is generally understood to be a reference to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.  The Applicant did not exhibit a copy of the Board’s decision he sought to review to his supporting affirmation filed together with the Form 86.  Instead, he exhibited other documents related to his non-refoulement claim, including the first-tier decision made by the Director of Immigration (“DI”) dated 13 January 2020, his notice of appeal/petition to the Board and part of the Board’s hearing bundle containing its index and country information etc.

3.  The Court’s staff later obtained from the Secretariat of the Board a copy of the Board’s written decision bearing the Applicant’s name and reference numbers.  The Board’s decision was actually made on 6 November 2020. 

4.  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the decision challenged and the parties of these proceedings.  The Applicant does not require an oral hearing; I dispose of this application by consideration of documents only.

5.  The Applicant comes from Zimbabwe.  He claimed that (a) he joined a lesbian, gay bisexual and transgender (“LGBT”) group named GALZ in Harare, Zimbabwe’s capital, via a website in 2014; (b) homosexuality is illegal in Zimbabwe and the LGBT community there has been marginalized and excluded.  He further stated that in 2015/2016 he made a boyfriend, who was assaulted by others after his confession about his sexual orientation.  The Applicant left Zimbabwe for Mainland China in October 2017 and came to Hong Kong in April 2019.  He said he was warned by his boyfriend not to go back to Zimbabwe because he would be harmed or persecuted because of his homosexuality.

6.  The Board conducted an oral hearing for the Applicant to make representations and answer questions.  The Board stated that the Applicant had not adduced any evidence of past harm or persecution; to the contrary, he gave evidence that he was able to attend church and school without any interference.  Moreover, he was able to leave the country without any difficulties and had never encountered any problems with State authorities of Zimbabwe.  The Applicant had not attended any LGBT activities physically and only joined GALZ online; he only had one boyfriend.  Based on the above, the alleged harm was found to be not imminent and it did not meet the test of a minimum level of severity.

7.  Furthermore, the Board considered country information and found that reasonable protection of LGBT people was available in Zimbabwe.  Against the above factors, the Applicant was found to be not being subject to any real or substantial risk that his rights under the applicable grounds would be violated.   

8.  The Applicant has not formulated any ground of judicial review.  I have reviewed the Board’s decision vigorously, but do not find it reasonably arguable that the Board had committed any public law error or been procedurally unfair.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill‑treatment exists lies with the decision-makers below.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

9.  The Form 86 was filed 10 months after the Board’s decision was made.  There has been no explanation for the delay in the court documents filed by the Applicant.  In any event, in view of my finding that the application lacks substantive merits, there is no reason to extend time for the filing of the Form 86.  The leave application is accordingly dismissed.

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