ATOO ZUBEDA v. THE DEPARTMENT OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

ATOO ZUBEDA v. THE DEPARTMENT OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

Leave was granted because it was reasonably arguable that the Board misapplied the law by failing to treat the Applicant as a member of a particular social group (LGBT) susceptible to persecution and by not applying the HJ (Iran) & HT (Cameroon) approach in assessing whether she has a well-founded fear of persecution due to sexual orientation; the errors were sufficiently arguable to merit judicial review.

Citation
[2020] HKCFI 98
Parties
Applicant: Atoo Zubeda; 1st Respondent: The Department of Immigration; 2nd Respondent: Torture Claims Appeal Board
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 January 2020
Case Number
HCAL203/2018
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave to Apply for Judicial Review Granted
Outcome
Leave to apply for judicial review granted
Legal Topics
Non Refoulement, Torture Risk (immigration Ordinance Part Viic), Persecution, Sexual Orientation Asylum, Procedural Fairness and Anxious Scrutiny, Internal Relocation
Source Language
EN
Constitutional and Administrative Law Immigration Law Human Rights Law Refugee and Asylum Law Non Refoulement Torture Risk (immigration Ordinance Part Viic) Persecution Sexual Orientation Asylum +2 more

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Parties

Atoo Zubeda

Applicant

The Department of Immigration

1st Respondent

Torture Claims Appeal Board

2nd Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave to Apply for Judicial Review Granted

Legal Issues

  1. 1 Whether the Board applied the correct legal test in assessing persecution risk to a lesbian claimant
  2. 2 Whether the Applicant has a well-founded fear of persecution as a member of a particular social group (LGBT)
  3. 3 Whether state protection and internal relocation findings were adequately supported

Ratio Decidendi

Leave was granted because it was reasonably arguable that the Board misapplied the law by failing to treat the Applicant as a member of a particular social group (LGBT) susceptible to persecution and by not applying the HJ (Iran) & HT (Cameroon) approach in assessing whether she has a well-founded fear of persecution due to sexual orientation; the errors were sufficiently arguable to merit judicial review.

Court Disposition

Leave to apply for judicial review granted

Orders

  • Leave to apply for judicial review granted
  • Applicant to file an originating summons within 14 days of receipt of this decision