AZ v. THE DEPARTMENT OF IMMIGRATION AND ANOTHER

HCAL 203/2018

[2021] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 203 OF 2018  

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DECISION ON COSTS

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1.  Pursuant to leave granted by this Court on 7 January 2020 to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal/petition regarding her non-refoulement claim, the applicant subsequently obtained legal representation on Legal Aid and accordingly issued the originating summons on 7 April 2020, and effected service on both the Director of Immigration (“Director”) and the Board named as 1^st and 2^nd Respondent respectively.

2.  As has been the usual practice in this type of applications, the Board indicated to the Court that it would adopt a neutral stance and therefore would not participate in the proceedings, while the Director who was initially named as the interested party in my decision but was as noted above made the 1^st Respondent in the originating summons took an active role in the proceedings represented by the Department of Justice (“DOJ”), and eventually after a series of negotiations reached an agreement with the applicant to dispose of the matter on the following terms which were endorsed by this Court on 28 October 2020 in gist as follows:

(a)  That the Board’s decision dated 8 January 2018 in dismissing the applicant’s appeal/petition be brought up and quashed;

(b)  That the appeal/petition be remitted to the Board for fresh determination bearing due reference to the observation of the Court as contained in paragraph 25 of the decision dated 7 January 2020;

(c)  That the substantive hearing fixed on 29 October 2020 be vacated; and

(d)  That the question of costs in the proceedings be determined on paper upon the filing of written submissions by the applicant and the Director.   

3.  The matter now before me is the question of costs of the proceedings, as it is the applicant’s case that the Director should bear her costs of the proceedings, while the Director insists that the applicant should pay his costs following the disposal of the judicial review application as from 28 October 2020 onwards, but before considering their arguments, it would be relevant to first set out the chronology of the relevant events leading to the matter now before me based on that in the applicant’s submissions:

6.4.2020 –	Applicant obtained leave from Marlene Ng J to issue originating summons out of time during the Generally Adjourned Period (“GAP”) due to the Covid-19 pandemic
7.4.2020 –	Applicant issued the originating summons and effected service on both the Director and the Board
8.4.2020 –	Applicant wrote to DOJ for the Director proposing terms of settlement and to instruct counsel if no response to offer by 15.4.2020
14.4.2020 –	DOJ replied to point out that the originating summons was issued out of time and would not consider proposed settlement pending leave
15.4.2020 –	The Board wrote to indicate its neutral stance in the proceedings
16.4.2020 –	Applicant informed DOJ that leave had already been granted on 6.4.2020 and suggested that the Director should file affirmation in reply within 56 days
5.5.2020 –	Applicant wrote to DOJ that she would proceed with her case in the absence of any attempt by the Director to settle the matter
7.5.2020 –	DOJ replied that instructions were being sought from the Director on the applicant’s proposed terms of settlement and would response as soon as practicable
13.5.2020 –	Applicant was assigned counsel by the Director of Legal Aid
2.7.2020 –	the Court requested parties to provide dates for the substantive hearing
5.8.2020 –	the Court fixed the hearing on 29.10.2020
7.9.2020 –	Applicant sought DOJ’s consent to an anonymity order
11.9.2020 –	DOJ replied that they were still taking instructions from the Director and would reply within 7 days
14.9.2020 –	DOJ proposed to settle the matter under the relevant Practice Directions
22.9.2020 –	Applicant made comments on the draft settlement proposal and sought costs of the proceedings against the Director given his delay in responding to the settlement proposal and that counsel had been instructed for the forthcoming hearing
25.9.2020 –	DOJ replied concerning the terms of the proposed settlement including that there be no order as to costs
29.9.2020 –	Applicant replied with further comments on the proposed settlement insisting in costs against the Director due to his failure to respond until recently
6.10.2020 –	Applicant and Director reached agreement on proposed terms of settlement pending the Board’s endorsement
9.10.2020 –	The Board disagreed to the terms of the proposed settlement
10.10.2020 –	Applicant informed DOJ of intention to proceed with the preparation for the substantive hearing in the absence of settlement
14.10.2020 –	Applicant served hearing bundle on the Director and the Board
14.10.2020 –	The Board wrote to the applicant maintaining its disagreement to the terms of proposed settlement
15.10.2020 –	Applicant replied that the Board had no right to oppose the proposed settlement after indication of its neutral stance in the proceedings
16.10.2020 –	Applicant lodged hearing bundle with the court
16.10.2020 –	The Board indicated its agreement to the proposed settlement with slight revision
19.10.2020 –	DOJ signed the consent summons with proposed settlement
20.10.2020 –	Applicant filed the consent summons with proposed settlement into court
28.10.2020 –	The terms in the consent summons were approved and endorsed by the Court, and an order was made in terms accordingly.

4.  It is the applicant’s submissions that the Director should bear her costs because his conduct during the judicial review application as shown above was unnecessary and/or improper which caused her to incur unnecessary costs, that the Director’s actions were not cost effective or as expeditiously as reasonably practicable, nor were they of reasonable proportion and procedural economy as normally required in the conduct of judicial review applications.

5.  The applicant argues that as early as in April 2020 when she explicitly indicated her intention of settlement, the Director should have expressed his willingness to do so and requested her not to proceed with the matter for the time being but which he did not, nor did he explain why he could not do so, until long after the hearing date had been fixed and that her preparation work had been carried out including instructing counsel and lodging the hearing bundle which were wholly unnecessary and could have been easily avoided had the Director acted or conducted properly.

6.  The applicant further submits that while the Board may have a different view as to the proposed terms of settlement, but given its earlier indication to take a neutral stance in the proceedings, and as its view is not binding on the Director and who does not take instruction from the Board, any disagreement on the part of the Board could not be a valid basis for the Director not to sign the settlement after having earlier fully agreed with the applicant to settle.

7.  The applicant also submits that the fact that she is legally aided in the proceedings is irrelevant to her right and duty to seek costs against the Director.     

8.  The Director’s position is that the proper costs order of these proceedings should be no order as to costs as he did not take any steps to resist the application for judicial review, and instead he did negotiate and facilitate settlement with the applicant out of good intention in a reasonable and sensible manner which eventually led to the consent summons being signed and approved by the Court on 28 October 2020 before the scheduled hearing, and as there is no good reason for the applicant to instead seek costs of the proceedings against him, she should therefore bear all the costs incurred after the settlement over this issue.

9.  The Director further submits that the time taken for reaching a settlement with the applicant in the circumstances does not add any material costs to the case, and which in any event was not caused by the Director, and that as both parties are publicly funded with the applicant’s costs fully recoverable on legal aid taxation, it would be unreasonable to hold the Director liable to her costs which was not caused by him.    

10.  It is relevant to first note that in my decision granting leave to the applicant to apply for judicial review of the Board’s decision, I directed that the Director be served with the documents as interested party, but somehow the applicant named the Director as the 1^st Respondent in her originating summons issued on 7 April 2020, and given how the application had progressed in the proceedings as outlined above, there was simply never any opportunity for an explanation to be sought and/or considered over this decision of the applicant, and given the fact that it was the Board’s decision which the applicant was challenging in her application, and that the Director, whose decision in the circumstances was not being challenged and in any event not susceptible to judicial review (see AM v Director of Immigration [ 2014] 1 HKC 416), was mainly there to assist in the proceedings and/or to facilitate settlement, of which it was said in KMM v Torture Claims Appeal Board [2015] HKCFI 833 that the Director would only be liable to pay costs if he had acted as the respondent in resisting the application.

11.  Similarly, in RA v Betty Kwan, Adjudicator & Director ofImmigration [2015] 1 HKLRD 676, where the applicant was not granted leave to challenge the Director’s decision, and that the Director was joined as an interested party so that the court might be assisted in the just determination of the proceedings, the court found no reason to order costs of the proceedings against the Director as he had agreed to the consensual disposal of the matters which was deemed as sensible and had resulted in the saving of costs and the resources of the court [13].      

12.  In the present case, as noted in the chronology above, the Director was served with the papers through DOJ on 7 April 2020 within the GAP during which, as stated by DOJ, special work arrangements had been in place due to the coronavirus situation in both the Immigration Department and DOJ, in which an immigration officer of the former department, presumably the one involved in the Director’s earlier decision, would be responsible to give instructions to the latter department which would obviously then need to get all the papers and be familiarized with the facts of the case before being in the position to advise the Director as to the applicant’s proposed terms of settlement, as pointed out in DOJ’s submissions, or for that matter whether or not to resist her application.

13.  As such and in the circumstances I do not find it reasonable that the Director or DOJ should indicate within 7 days, as required by the applicant, to respond or to agree with her proposed terms of settlement as noted in the chronology above, nor do I find any delay generally on their part in dealing with something as serious and important as the applicant’s non-refoulement claim.

14.  Following the end of GAP on 3 May 2020, DOJ filed a Notice to Act for the Director on 8 May 2020, while the applicant was subsequently assigned counsel by the Director of Legal Aid. Thereafter negotiations between the parties then followed which eventually led to their agreement to the proposed settlement on 6 October 2020, but the consent summons with the proposed terms of settlement was not signed by the Director until 19 October 2020 shortly before the scheduled hearing due to certain issues raised by the Board, of which I do not see any reason why the Director would not be required to take into consideration, or why it would not be proper or appropriate for him to do so, even though it may have contributed to a slight delay, but for which certainly the Director should not be held liable, nor do I find the 5 months or so for parties to negotiate and eventually to reach settlement excessive or unreasonable in the circumstances,

15.  Furthermore, that the consent summons was signed only shortly before the hearing may have been contributed by the fact that it was the Court in July 2020, only some two months after DOJ had filed Notice to Act for the Director, which required the parties to proceed to set the matter down for hearing, and perhaps on hind sight the parties should have sought indulgence from the Court for further time to continue with their settlement negotiations, but otherwise on any other view and in the absence of any evidence of any resistance or refusal on the part of the Director to negotiate or facilitate for settlement, or of any action by him to resist the applicant’s application, I do not find any fault or blame on his part, or for that matter on the part of any party, that the settlement was reached at such late stage before the scheduled hearing.

16.  In the premises, and for the reasons given, I am not satisfied that the Director should bear the costs of the applicant’s judicial review application, or that she should in turn be liable for the costs of this unsuccessful request for costs, and that the appropriate order should be no order as to costs of the applicant’s application for judicial review including on the question of costs, and that her own costs to be taxed on Legal Aid Regulations, of which I so order accordingly.    

17.  Lastly, I am grateful to counsel for both parties for their valuable assistances in the proceedings and in this application.

HCAL 203/2018

[2020] HKCFI 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 203 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Uganda who arrived in Hong Kong on 17 February 2014 with permission to remain as a visitor up to 19 March 2014 when she did not depart and instead overstayed, and on 24 April 2014 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Uganda she would be harmed or killed for being a lesbian as homosexuality is against the law in Uganda and punishable by death or life imprisonment.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Gulu, Uganda where there were existing laws criminalizing homosexual behaviors punishable with substantial imprisonments.  In around the year of 2000 while still in school, the Applicant discovered that she was a lesbian and started dating one of her female classmates at school.  After leaving school she worked as a hair dresser in Gulu and continued with her lesbian relationship with her girlfriend.

3.  One night in June 2008 on her way home drunk after a party, the Applicant was attacked and gang-raped by three unknown men on the street and was subsequently taken to a hospital for treatments.  After her discharge from the hospital she did not report the matter to the police as she was unable to identify those men who attacked her.

4.  A few weeks later she discovered she was pregnant as a result of the rape, and undertook an abortion in the hospital. Feeling ashamed of what happened and due to the rising homophobic sentiments in Uganda, she left for Sudan in August 2008 where she worked as a hairdresser to make her living and subsequently started a new relationship with another woman there.

5.  It was there in Sudan when she was later told by her neighbor in Gulu, Uganda that some unknown males had come to her home looking for her, and when they could not find her they attacked her mother who later died from her injuries in the hospital.

6.  In early 2014 she returned to Uganda, but in fear of the new legislation to impose death penalty for homosexual behaviors, she soon departed again in February 2014 for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection with the Immigration Department, for which she completed a Non-refoulement Claim Form on 20 April 2017 with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 25 May 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm to the Applicant upon her return to Uganda as low as she has no further encounter with those unknown men who raped her and that she has never been arrested by the Ugandan police over her sexual orientation,that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that the death penalty has subsequently been substituted by life in prison for the crime of homosexuality in Uganda,and that the government has taken practical steps to monitor and improve the conduct of their law enforcing agencies and the effectiveness of fair trial in court proceedings, and that reasonable internal relocation alternatives are available in Uganda with a large population of 38 million people spread across a vast territory of more than 197,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Uganda away from her home district in large cities such as Kampala where it would be difficult if not impossible for those unknown men to locate her.

9.  On 6 June 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 16 August 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 8 January 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found that the Applicant has only made bare assertions with no objective proof in support, that the threatened ill-treatment from unknown males or the Ugandan Government failed to reach the minimum level of severity required, that there is no evidence that the Ugandan authorities would not be able to offer protection to the Applicant should she return to Uganda, and that whilst Uganda does outlaw homosexuality,the government’s application and enforcement of the law is rather lax with the police instructed not to seek to enforce the law with any vigour, all of which it found to have undermined the fear the Applicant claims as to the risk she faces should she return to Uganda that it concluded that her non-refoulement claim for protection failed on all applicable grounds. 

11.  On 9 February 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger in her home country, and that the Director and the Board did not understand her problem properly.

12.  While the Applicant has not provided any particulars for her such claim or any elaboration as to how the Board failed to properly understand her problem, given that high standards of fairness are required in the Board’s determination of an applicant’s claim, and having regard to the gravity of what is at stake in such claim, the courts will on judicial review subject the Board’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met: Secretary for Security vSakthevelPrabakar (2004) 7 HKCFAR 187, which is what I now propose to do.

13.  In the Applicant’s case, the Board had available before it a hearing bundle of all the materials and information including the COI referred to by the Director and which the Applicant had adopted in her evidence at her oral hearing before it, and upon which the Board made the following findings of the Applicant’s claim in its decision:

“ 89. The Appellant’s claim is that if she were to return to Uganda she may be harmed or killed by ‘unknown males’ or killed by the Ugandan Government because of her sexual orientation.

90. The Appellant’s fear stems from an assault and gang rape she suffered previously in June 2008 and also the law in Uganda which to forbid homosexuality.

91. Taking all these matters into account it is considered that the threatened ill-treatment from ‘unknown males’ or the Ugandan Government fails to reach the minimum level of severity required.

92. Firstly, it is observed that the Appellant did not report the rape to the authorities after it had occurred. The Ugandan authorities did not fail to provide protection to the Appellant. They simply did not know of the incident. There is nothing then to show that the Ugandan authorities would not be able to offer protection to the Appellant should she return.

93. The Appellant has been out of the Uganda since February 2014 approximately three and half years. It is unlikely these persons would know of her return, and even if they did be able to locate her. Further it is extremely doubtful that they would still seek to harm or even kill her …

94. Equally whilst the law of Uganda does outlaw homosexuality the government’s application and enforcement of the law is rather lax. Further the police have been instructed not to seek to enforce the law with any vigour.

…

96. The Ugandan Government could have taken action against the Appellant for her homosexuality before the incident of rape in 2008 assuming they had any knowledge of it which is doubtful. Further she was able to travel freely to Sudan and return to Uganda on a few occasions between 2008 and 2014 without incident. The Ugandan Government did nothing to arrest or charge the Appellant during those years. Nor did they prevent the Appellant from gaining a passport or freely leaving the country.

97. All these matters undermine the fear the Appellant claims as to the risk she faces should she return to Uganda.”

14.  On the basis of its findings that state/police protection and reasonable internal relocation were available in Uganda, the Board was in my view correct to find it highly unlikely that the “unknown males” who had previously assaulted and raped the Applicant would still pose any risk to her after all these years even if they were to have the means or ability to locate her all over Uganda, and hence the Board was entitled to conclude that the Applicant failed to show a well-founded fear of risk of harm from these unknown males should she return to Uganda, and accordingly I do not find any reasonably arguable basis to challenge such findings of the Board regarding her claimed fear of risk of harm from those unknown males.

15.  However, the same may not be said about the Board’s determination of the Applicant’s claimed fear of risk of harm arising from her sexual orientation given the criminalization of homosexuality and the homophobic sentiments in Uganda.

16.  Firstly, it is not in dispute that not only is homosexuality a criminal offence in Uganda, it is also punishable by heavy imprisonments, and at one time by death under a new legislation in 2014 when the Applicant decided to depart for Hong Kong, and which was only later substituted with life imprisonment due to international pressures, as it was revealed in the available COI and that the Director stated in his decision as follows:

“ 19. (i) The Country Policy and Information Note, Uganda: Sexual orientation and gender identity published by United Kingdom: Home Office on 4 January 2017 (‘2017 UKSOGI report’) (item 1 of Appendix) saying paragraph 5.3.1 that, ‘Same-sex consensual sex is illegal under sections 145 and 146 of the Penal Code, which, amongst other things criminalises ‘carnal knowledge of any person against the order of nature’ and is punishable with up to life imprisonment. The Penal Code does not specifically refer to women but the Sexual Offences Bill (2015) expands criminalisation of same-sex consensual sex to include women, which had its first reading in April 2016, although as of December 2016 there was no information to indicate that this Bill had been enacted.”

17.  Based on such information and upon its findings as noted above, the Board proceeded to conclude that the Applicant would not face any risk of harm or ill-treatment which falls within BOR 3 from the Ugandan government because of her homosexuality for the reasons given in [140]:

“ The Appellant would not face any ill-treatment from the Ugandan Government because of her homosexuality. No steps were taken previously by the government towards her when she lived in Uganda. She was able to leave and return to the country on a number of occasions. She was issued a passport and departed to Hong Kong without incident. The penal code in Uganda provides sexual encounters between the same-sex can result in up to life imprisonment. No person has been sentenced in that country for contravention of the relevant section of the penal code which is a reflection of the likelihood of the Ugandan Government seeking to take action against the Appellant because of her homosexuality.”

18.  In my view the fact that no steps had previously been taken by the Ugandan government towards the Applicant when she lived there and that she was able to leave and return to the country without incident is neither here nor there in the Board’s determination of any future risk that she may face should she return to Uganda, as it is clear from the Director’s decision in paragraph 19 that the COI which were also available before the Board did corroborate the Applicant’s claimed fear of being prosecuted as well as persecuted for her homosexuality, as the situations faced by the gay community then in Uganda in fact appear to be worsening as indicated in the same paragraph as follows:

“ (iii) According to paragraph 6.1.8 of the 2017 UKSOGI report, it states that ‘The Sexual Minorities Uganda (SMUG) report also observed that “Physical and sexual violence by state actors, community members,neighbors, and acquaintances is a part of the lived reality for LGBT persons in Uganda. Cases of assault occur most frequently for sexual and gender minorities whose identities are outwardly “visible.” This visibility is highest for those who do not conform to the strict social and gender “norms” of Uganda in their outward appearance. Likewise,assault is almost always rooted in “gender policing” […] by fellow citizens—in which some feel the need to violently impose or enforce gender norms based on an individual’s perceived sex. In many cases the perpetrators feel they have the “moral authority” to assault sexual or gender minorities and are not retributed by the police.’

(iv)   Moreover according to the section 6 of the 2016 USSD Report, it also states that “On August 4, police raided an LGBTI pride week event at a Kampala nightclub and ordered the approximately 300 attendees to huddle in a corner and sit on the floor.  There were multiple reports police beat other attendees who hid in the club’s bathrooms or attempted to exit the club.  There were also reports police sexually assaulted transgender individuals.  According to witnesses, police ordered the event organizers to come forward, arrested 16 individuals without charge, and kept them for several hours in a holding cell, where police incited other detainees in the cell to beat them.” 

19.  Hence it is obvious to me that it is not just the fear of prosecution by police or authorities that was material in the determination of the Applicant’s claimed fear because of her homosexuality, but also the fear of persecution risk which is of equal relevancy in the Board’s determination, but of which it found no evidence that the Applicant has a well-founded fear for the following reasons:

“ 147. The Appellant’s claim is based upon the risk of ill-treatment from ‘unknown males’ and the Government of Uganda. This does not constitute a well-founded fear of being persecuted for a Convention reason.

148. The Appellant is not a member of a particular social group or political organization nor is the treatment of which she complains as a result of her race, religion or nationality.

149. There is no evidence that the Uganda authorities allowed the ‘unknown males’ to ill-treat the Appellant …

150. The COI materials show that the Ugandan Government has in place a number of avenues for people who receive threats to report the matter and go further if nothing is done. Equally there are a number of NGOs in the country who would render her assistance for any discrimination she may face on the basis of her sexual orientation.

151.  The Board finds that there is no evidence that the Appellant has a well- founded fear of persecution for one of the reasons set out in Article 1A(2) of the RC.”

20.  It is clearly incorrect for the Board to find that the Applicant is not a member of any particular social group susceptible to persecution in Uganda, as she is clearly a member of the LGBT, a social group which has been so subjected according to the COI before the Board, and even putting aside the argument that the available COI did show at least a contrasting if not wholly different situation in Uganda from that observed by the Board,it seems to me reasonably arguable that it was not sufficient for the Board to just focus on the possible risk of persecution from the Ugandan government or authorities but also risk of persecution from the Applicant’s fellow citizens, ie everyone with whom she may come into contact in private as well as in public which she may be exposed to and fear if returned to Uganda, thus brings me to the test or approach that should have been adopted by the Board in its determination of whether the Applicant has a well-founded fear of persecution in her home country based on membership of that particular social group.

21.  In HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, which were appeals before the United Kingdom Supreme Court when the question was raised as to the test to be applied when considering whether a gay person who is claiming asylum under the Convention relating to the Status of Refugees 1951 has a well-founded fear of persecution in the country of his or her nationality based on membership of that particular social group, and it would be useful for me to first cite the reasons for the need for such guidance on this issue given by Lord Hope in the introduction of the judgment as follows:

“ 2. The need for reliable guidance on this issue is growing day by day. Persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its law. Objections to these developments have been greeted locally with derision and disbelief.

3. The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide.  It is one of the most demanding social issues of our time.  Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years.  In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries.  It is crucially important that they are provided with the protection that they are entitled to under the Convention—no more, if I may be permitted to coin a well known phase, but certainly no less.” 

22.  His Lordship then proceeded to set out the proper approach to be adopted by the fact-finding tribunals in paragraph 35 of the judgment:

“ This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set it out in my own words. It is necessary to proceed in stages.

(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. This question is how each applicant,looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reform the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do so if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted?  If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established.  The applicant will be entitled to asylum.”

23.  His Lordship went on to emphasize that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well-founded from those who are not, that the causative condition is central to the inquiry, which makes it necessary to concentrate on what is actually likely to happen to the applicant if he is returned to his own country, and that an approach which disregards this is wrong and should not be adopted ([36]).

24.  It seems to me that there is also a need for proper guidance in our jurisdiction given the growing number of the same applications for asylum by gay men and lesbian women in similar situation of the Applicant, and in my view the same guidance set out above should be adopted by both the Director and the Board in their facts-finding determination of whether in such an application that the gay man or lesbian woman has a well-founded fear of persecution as a member of this social group in their home country.

25.  In the present case of the Applicant, I am of the view that it is reasonably arguable that the Board failed to apply the proper test in its determination of whether the Applicant has a well-found fear of persecution due to her sexual orientation should she return to Uganda.  

26.  Accordingly, and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the ground stated above, for which she shall file an originating summons within 14 days of his receipt of this decision, and to serve a copy and all relevant documents on the Board as the respondent and the Director as the interested party.  

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