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Mtangi Emily Mosses v Torture Claims Appeal Board and Anor
Kylie Chang (Associate)
Applicant refugee raised a non-refoulment claim on the basis that she will face persecution from both her family and her government due to her homosexuality upon repatriation.
She fled to Hong Kong after her homosexual relationship was discovered by her girlfriend’s father, who threatened to report her to the police; homosexuality is a criminal offence in Tanzania and the Applicant would be subject to harsh imprisonment.
The Director of Immigration reviewed and rejected the Applicant’s claim on the basis that there is insufficient credibility in support that her ill-treatment would continue, given that she had already ended her relationship and she left the country without any difficulty. The Director found that it would be possible for the Applicant to start a new life in a different region of Tanzania without being located by her former girlfriend’s father as Tanzania is a big country.
Appeal Board Decision
The Applicant then lodged an appeal to the Torture Claims Appeal Board against the Director’s decision and was again dismissed. The Board decided on the basis that she had lived discreetly in Tanzania and had successfully avoided any persecution for a long time. Since the Applicant was not in part of any public LGBT groups in Tanzania, she would still be able to hide her homosexuality after repatriation and built a new life free from any prosecution or persecution from her previous girlfriend’s father. The Board found that the Applicant would not face any real or substantial risk of persecution after repatriation and confirmed the Director’s decision.
The Applicant again filed an appeal for judicial review to the Court of Appeal on the decisions above. The Court refused to overturn the decisions above in the absence of any procedural unfairness or irrationality or any abuse of powers. The Court applied the HJ and HT v Secretary of State for the Home Department and held that her choice to hide her homosexuality was her chosen way of life due to social pressure and has nothing to do with her fear for any sort of persecution.