Lyimo Vivian Jerry v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1139/2019

[2023] HKCFI 2223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1139 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for her on 1 March 2023. However, she was absent on the date of hearing without prior notice to the Court. Therefore, I shall deal with her application on paper.

The applicant

3.The applicant is a national of Tanzania. She last entered Hong Kong as a visitor on 7 April 2014 and was permitted to stay until 11 April 2014. She did not depart and had overstayed since 12 April 2014. She attempted to depart Hong Kong on 24 October 2014 but her case was already referred to the Immigration Department. On 12 December 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband. She also feared that she would be discriminated as a lesbian and that she would face criminal sanction as she committed a criminal offence against the Muslim tradition.

4.The applicant claimed that she was forced to marry her Muslim husband in around 2006 and they separated in 2012. Since then, the applicant had maintained no contact with him. According to the applicant, she was a lesbian and had kept a long term relationship with a girl called Joyce. Her relationship with Joyce ended in October 2012. The applicant’s parents were not aware of her sexual orientation. Meanwhile, the whole society was not tolerant towards homosexuals.

5.In June 2011, the applicant claimed that her husband found out about her affair with his cousin. He was furious about her homosexuality and had been abusive towards her. One day in October 2011, he used a hot iron box to burn her, resulting in her hospitalization for a week. Later, in February 2012, in a drunken state, her husband poured hot water on her, burning her left leg. In addition, in March 2012, when he saw her talking to his cousin in the garden, he assaulted her. Other than these incidents, her husband constantly threatened to kill her. Unable to cope with the abusive behaviors, the applicant escaped.

6.Thereafter, the applicant learnt that her husband had filed a separation application with the Muslim Marriage Committee on the basis of the applicant’s homosexuality. As the Tanzanian society discriminated against the lesbian, gay, bisexual, transgender and intersex (“LGBTI”) people and its laws criminalized same-sex relations, the applicant decided to leave the country to seek protection. Meanwhile, the applicant still maintained a relationship with her husband’s cousin, which she believed that, as a lesbian, she committed a criminal offence and an offence against her religion in Tanzania. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed her claim. In elaboration, the Director found that (i) the applicant’s claimed sexual orientation and the incidents were in doubt [12]-[14]; (ii) her credibility on her intention to seek protection in Hong Kong was also in doubt [15]; (iii) based on her own accounts, it was far-fetched to claim that she would face a real or substantial risk of harm if refouled [17]; (iv) there was no evidence to show that she could not maintain a normal life even if her sexual orientation was exposed [18]; (v) there was no evidence that the Tanzanian government had adverse interest in her [19]; (vi) state protection would be available to her [20]-[23]; and (vii) internal relocation was a viable option [24].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 November 2018, the Board conducted an oral hearing for her appeal, during which she was assisted with a Swahili interpreter [13].

10.The Board recapped the applicant’s claim and her personal background [27]-[45]. It also summarized the applicant’s oral testimonies [46]-[59]. Having considered all the evidence, the Board found that the applicant’s evidence was wholly unreliable with glaring inherent contradictions [60]. In particular, the Board found that she was inconsistent as to the woman she was engaged in her first homosexual relationship, whether it was Joyce or her husband’s cousin [63]-[64]. It also noted that the applicant was vague and inconsistent about the cousin’s details and she also contradicted herself as to how long she stayed with her husband [65]-[67]. It also found that the applicant was vague about her immigration record [68]. In these premises, the Board refused to accept that the applicant was a credible witness and thus rejected her assertion as being a lesbian [71].

11.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In support of her application, the applicant set out the grounds attached to her Form 86 as below. It should be noted that the applicant had, in some of the grounds below, adopted a wrong gender when she described herself in the grounds, which shows that she might be borrowing other people’s reasons as hers. She had also referred to the Director, which I shall take it as reference to the Board.

a.  The adjudicator had failed to make sufficient enquiry before making his decisions. Such decisions are therefore unreasonable.

b.  The adjudicator had failed to give the applicant sufficient chance to arrange evidence for her appeal.

c.  The adjudicator had failed to give weight to state acquiescence.

d.  The applicant was tortured at the behest of and in full collusion of the police and the state and its public officials.

e.  The Board had failed to give weight of the COI in her favour, which means that the Board had pre-conceived conclusion.

f.  Corruption and incompetence of the administration of her country are serious.

g.  The Board had failed to attain the high standards of fairness in her case.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.As to the grounds in paragraph 13, they do not form any valid ground against the Board’s Decision, which the Board reached after considering the applicant’s evidence. The Board rejected the applicant’s evidence in relation to the facts of her claim. Those grounds are either her bare assertions without any evidence in support, or contradictory to the Board’s finding of the facts. In paragraph 60 of the Board’s Decision, the Board said:

“I found the evidence of the Appellant to be wholly unreliable with glaring contradictions between what she said in her NCF, Interview and Notice, which she adopted at the Hearing and the evidence she gave at the Hearing.”

18.In my view, the Board was entitled to form its views on the applicant’s evidence.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.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 7^th day of September 2023

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