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Atoo Zubeda v Department of Immigration & Anor  HKCFI 98: How Foreigner Gays or Lesbians might Seek Asylum in Hong Kong
Atoo Zubeda v Department of Immigration & Anor  HKCFI 98
Summarised by Zhong Linyue, Roselyn (Associate)
The Applicant is a national of Uganda who overstayed in Hong Kong and raised a non-refoulement claim for protection to the Immigration Department on the ground that she was in fear of the risk of being harmed or killed as a lesbian upon return to Uganda, where homosexuality was against the law and punishable by death or life imprisonment. Her fear also stemmed from an assault and gang rape that she suffered yet did not report to the police in Uganda in June 2008. After being rejected by the Director of Immigration for low assessed risk of harm, the Applicant appealed against such decision to the Torture Claims Appeal Board (“the Board”) which dismissed the appeal. The Applicant subsequently appealed to the Court of First Instance.
Whether the fear the Applicant claimed, i.e., to the risk she would face if she was returned to Uganda, was well-founded?
Holdings and rationale
The CFI agreed with the Board on the finding that it is unlikely for the gang who had previously assaulted and raped the Applicant to pose any risk to her after her departure from Uganda for three and half years because they could hardly know of her return nor locate her.
However, the CFI disagreed with the Board on its finding that the Applicant’s fear of risk of harm due to her sexual orientation was not well-founded:
1) Homosexuality is not only a criminal offence but also punishable by heavy imprisonments in Uganda. In addition, the homophobic sentiments had been rising in the society.
2) When determining any future risk the Applicant might encounter should she return to Uganda, the Board should take into account not only the risk of prosecution by the Ugandan government or authorities, but also risk of persecution from everyone with whom the Applicant may come into contact privately or in public.
3) The test set out in paragraph 35 of HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department  UKSC 31 could be of guidance for facts-finding determination of whether the fear is well-founded:
First, whether the applicant is a member of the particular social group of homosexuals.
Second, what his/her situation will be on return, in other words, how the Applicant will conduct herself upon return if she does not conceal her sexual orientation, and how others will act in response.
Third, if the Applicant will indeed conceal her sexual orientation on return, the reason for such concealment.
Last, whether there is a causative condition in terms of the Applicant’s having a well-founded fear of persecution upon return.
This case sets out the structured test for determining whether asylum seekers in Hong Kong have well-founded fear of persecution due to their sexual orientation if they are to be sent back to their home country. As this approach will guide future facts-finding on the issue, the prospect for homosexuals to seek legal protection in this regard in Hong Kong becomes clearer and possibly more optimistic due to the relatively broad criteria in assessing whether there is genuinely a risk of persecution.