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HCAL 194/2021
[2025] HKCFI 6271
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 194 of 2021
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BETWEEN
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Amour Naila Seif |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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 Levy:
1. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
2. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Observations for the Applicant:
A. Introduction
1. By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 22 February 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“Board”) dated 18 November 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 27 June 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000194_2021_files/the_Board's_Decision.pdf
2. On 21 March 2025, a court granted leave to the applicant to amend her Form 86 as per the copy annexed to the applicant’s summons dated 25 February 2025. On the day of hearing on 2 December 2025, the applicant attended in person. This court noted that the applicant had not filed the amended 86, and therefore ordered the applicant to file the amended 86 within 14 days. For the present purpose, the court would consider the Leave Application as if the amended Form 86 (“Amended Form 86”) has been properly filed.
3. The applicant was a bisexual woman and a Muslim. The basis of the applicant’s claim was that if refouled to Tanzania, she would be harmed or killed by the parents of her lesbian lover. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
B. Applicant’s grounds of review
4. In the Amended Form 86, the applicant advanced the following grounds in support of the Leave Application, asserting that the Board failed to comply with the established principles of procedural fairness by failing to:
(1) Ground 1: put adverse findings to the applicant and to give her an opportunity to respond.
(2) Ground 2: make evidence-based assessments.
(3) Ground 3: consider COI that there is no safe place for members of the LGBT community in Tanzania. The internal flight assessment was therefore flawed and unlawful.
C. The applicant’s life as a lesbian and a Muslim
5. To put the applicant’s grounds for the Leave Application in context, it is necessary to discuss her personal background and claims. After having questioned the applicant in detail about her relationship with Jokate John (the applicant’s gay lover) and what happened after their families found out (about the relationship), the Board found that the applicant was generally consistent in relation to her relationship with Jokate John but not about what happened after their families found out the relationship (Board’s Decision [63]). Owing to the discrepancies the Board found in the applicant’s evidence in relation to the arson incident to the applicant’s rented flat and her return to the family home after the arson incident as well as her delay in the raising of the non-refoulement claim, the Board found that the applicant was not a witness of truth and did not accept that the applicant had told the Board the truth in relation to the critical elements of her claim. The Board did not accept that the applicant was a homosexual or a lesbian or that she was in a lesbian relationship with Jokate John. The Board did not accept that the applicant had been threatened by her father or Jokate John’s family. The Board did not accept that the applicant was known as a lesbian or that her family had been shamed in their community (Board’s Decision [96]). Whilst the Board accepted that there were laws criminalizing homosexual, the Board did not accept that the applicant would be subjected to any risk of harm if refouled as it found that she was not a homosexual or lesbian. The Board also did not accept that the applicant would seek lesbian activity in the future. Therefore, the Board found that the laws criminalizing homosexual and lesbian activity did not affect the applicant (Board’s Decision [109]).
D. Discussion
6. It is trite that a Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations in respect of each of the above grounds after considering the Board’s Decision and the applicant’s materials adduced.
D.1 Ground 1: Failing to put adverse findings to the applicant and to give her an opportunity to respond
7. In this ground, the applicant submitted that in refusing to accept the applicant as a homosexual or lesbian, the Board had erred by denying the applicant an opportunity to adduce additional evidence about her sexual orientation, citing Re Masud Md[2] , ST v Betty Kwan [3] and Prabakar v Secretary for Security[4].
8. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness when it rejected the central part of the applicant’s claim that she was a lesbian/bisexual. As noted above, the Board had concluded in various parts of the Board’s Decision that the applicant was not a homosexual/ lesbian and that she would not engage in gay activity in the future. In such situation, the Board should adhere to a rule of fair play and professional practice applicable to non-foulement claim hearings as laid down in the English authority of Brown v Dunn (1894) 6 R 67, which was applied by analogy by the Court of Appeal in Re Masud Md[5]. The rule in Brown v Dunn:
“[32] … requires that if a cross-examiner intends to challenge a witness's evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.
[33] There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”
While the rule of Brown v Dunn was usually considered in the context of where a claimant has remained silent, the rule of fairness also means that where a decision-maker decides to make an adverse finding on a particular aspect which is going to be fatal to a claimant’s claim, “the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached”: Re Masud Md at [33].
9. In the present case, not only the Board did not seem to have questioned the applicant’s evidence about her gay relationship with Jokate John, the Board had in fact accepted that it had happened. Against this positive finding, it would therefore be irrational for the Board to later conclude that the applicant was not a lesbian and that she was in a lesbian relationship with Jokate John. A high standard of fairness would have obliged the Board to inform the applicant that despite its acceptance of her past gay relationship, the Board would reject that the applicant was a lesbian. In having failed to do so, particularly that the Board’s apparent inconsistent conclusion with its finding of the happening of a past lesbian relationship, it is therefore reasonably arguable that the Board’s Decision is erroneous, and is tainted with procedural unfairness in its finding that the applicant was not a lesbian.
D.2 Ground 2: Failing to make evidence-based assessments
10. In this ground, the applicant asserted that the Board’s determination that she was not a lesbian was based on alleged inconsistences about the journey that she took after fleeing her home rather than the actual evidence on lesbian relationship.
11. The Board cited various inconsistencies concerning what happened after her relationship was discovered by her lover’s family as well as her own family. Nowhere was it however mentioned that the Board rejected the applicant’s evidence that her family had been shamed by the lesbian activity. At [20] of the Board’s Decision, the Board set out in detail how the applicant’s father lost his leadership position in the Muslim Council and in the political party due to the report of her lesbian activities. The father was disappointed and ashamed. In the circumstances, it seems reasonably arguable that the Board’s finding that the applicant was not lesbian was not based on the evidence the Board had accepted. The Board’s Decision is therefore arguably erroneous.
D.3 Ground 3: failing to consider COI that there is no safe place for members of the LGBT community in Tanzania. The internal flight assessment was therefore flawed and unlawful
12. The applicant submitted that the Board had failed to take into account the relevant COI that shows that it was not safe or practical for the applicant to relocate within Tanzania due to her sexual orientation.
13. The Board’s assessment of the lack of future risk was entirely based on its conclusion at [109] of the Board’s Decision that the applicant would not seek lesbian activity. Whilst the Board acknowledged that there was criminalization of homosexual activities in Tanzania, the Board however found that it would not affect the applicant because of its finding that the applicant would not involve with lesbian activity. In my view, the Board seems to have fallen into the similar error identified in JB (DR Congo) v Home Secretary[6]. Like the JB (DR Congo) case, the Board in this case had given no indication about the areas in which it found the applicant would not engage in future lesbian activity. Given that the applicant appeared before the Board to answer questions, if the Board had thought that the applicant needed to give more detail than she had, the Board should have sought such details. If the applicant had not provided the detail as in this aspect, it was only then the Board could properly have reached such conclusion about what the applicant would likely do or not do: see JB (DR Congo) at [7].
14. By merely concluding that the applicant would not engage in future lesbian activity, it would appear that the Board had erroneously applied its subjective common sense. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[7] (which was later followed in TI v Winston Leung[8] at [61]. A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: TI [9] at [61].
15. In light of the lack of meaningful assessment of this portion of the applicant’s evidence, the lack of reasoning for its conclusion that the applicant would not engage in future lesbian activity, the Board has apparently applied its own common sense or assumptions rather than actual evidence, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.
16. Apart from having seemingly applied its own assumption in concluding that the applicant would not in future engage in lesbian activity, the Board’s conclusion also seems to have been based on its view that the applicant could refrain from such future activity in order to avoid being criminalized.
17. In HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596, Lord Roger set out (at [82]) comprehensively the correct approach to be adopted when a tribunal assesses a claimant’s fear of persecution because of a person’s sexual orientation:
“[82] When an applicant applies for asylum on the ground of a well‑founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution even if he could avoid the risk by living discreetly. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him…” (Emphasis added)
18. In this present case, the Board did not seem to have specifically asked the applicant whether she would or would not continue lesbian relationship in the future if refouled. The Board however was prepared to assess the applicant’s case on the basis that the applicant would not do so in the future (see Board’s Decision at [82]). Hence, applying the principle concerning sexual orientation in HJ (Iran), it is plain that the Board was erroneous in expecting the applicant to refrain from engaging lesbian relationship in the future.
19. In the present case, the Board was alive to and in fact accepted the applicant’s past lesbian relationship with Jokate John. Hence, the requirement of a decision-maker to apply “anxious scrutiny” by adopting a fair procedure in reaching a rational decision[10] would have obliged the Board to take into account this particular aspect of the applicant’s evidence as the core part of the applicant’s claim when assessing the sufficiency of state protection. This would entail the Board’s careful weighing up of all relevant COI materials, particularly those adverse to the availability of state protection: AM (supra.) at [107] as well as an inquiry into the applicant’s intention as to whether she would be able to abandon her sexual orientation and the impact it might have on her in the event of abandonment.
20. In the present case, given the fact that the Board accepted the applicant’s account of her past lesbian relationship, the Board’s assessment of state protection is arguably irrational as there is no consideration as to the harm the applicant feared, which could negate any meaningful protection: see TK v Jenkins [2013] HKC 526 at [49].
21. The Board’s assessment and conclusion to the reasonable viability of internal relocation was substantially based on the Board’s view of the applicant’s life as a normal heterosexual woman. The Board therefore took that view the laws criminalizing homosexual activity would not affect her.
22. In my view, not only had the Board plainly neglected to consider the personal circumstances of the applicant that she was a lesbian and a Muslim, it has similarly erred by making assumption that the applicant was not a lesbian and would not engage lesbian activity in the future.
23. For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.
E. Conclusion
24. In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
25. Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Order
26. Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.
27. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Dated the 23rd day of December 2025
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(Alfred Chan)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 23/12/2025
Amour Naila Seif
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12378/18/7/128/TA33
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1631/18 (Formerly RBCZ 10584/15 (PSO))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re Zunartyah [2018] HKCA 14 at [23].
[2] [2021] HKCA 1449 (G Lam JA and Coleman J).
[3] [2014] 4 HKLRD 277.
[4] [2004] HKCFA 43.
[5] [2021] HKCA 1449 (G Lam JA and Coleman J).
[6] [2003] UKIAT 12 at [7].
[7] [2014] 4 HKLRD 277 (CA) at [ 43].
[8] HCAL 66/2015, unreported, 3 October 2016.
[9] HCAL 66/2015, unreported, 3 October 2016.
[10] AM v Director of Immigration [2014] 1 HKC 416 at [33] to [34].
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