On v. Torture Claims Appeal Board/Non-refoulement Claims

HCAL 663/2017

[2018] HKCFI 2727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 663 OF 2017

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J U D G M E N T

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Introduction

1.This is an application for judicial review of the Decision of the adjudicator of the Torture Claims Appeal Board (“the TCAB”), dated 21 July 2017. By way of a Summons dated 7 September 2018, the Applicant sought leave to amend his F86 seeking leave to apply for judicial review and to file further evidence in support.  On 20 September 2018, the Applicant filed a further Summons seeking leave to file and serve his 4^th Affidavit (“the Summonses”). By way of an Order, dated 10 October 2018, this Court granted leave in terms of those Summonses, as well as leave to apply for judicial review with the hearing to be treated as a rolled up hearing and for the substantive application to be heard at the same time.

Procedural Background

2.The Applicant is a Nigerian national. He entered Hong Kong under the auspices of a Malian passport on 17 December 2010, but was arrested on arrival for Trafficking in Dangerous Drugs and was convicted of that offence on 22 August 2011, receiving a sentence of 8 years and 9 months’ imprisonment. He was released from prison on 15 October 2016, detained at Castle Peak Bay Immigration Centre (“CIC”) and thereafter made the subject of a Deportation Order on 27 October 2016. During the deportation procedure, carried out on 25 November 2016, the Applicant assaulted two immigration officers and was subsequently prosecuted and convicted of assault, receiving a sentence of 6 weeks’ imprisonment on 18 January 2017. Whilst on remand for that matter, on 22 December 2016, the Applicant made a written representation of his intention to make a non-refoulement claim (“NRF claim”) under the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”). As a result, upon his release from prison on 19 January 2017, he was transferred to CIC once more and remained there during the ensuing consideration of his claim by both the Director of Immigration (“the Director”) and the TCAB.

3.The Applicant’s NRF claim was submitted on 22 February 2017. He attended a screening interview with the Department of Immigration on 8 March 2017 and his claim was refused on 3 April 2017. He appealed that decision to the TCAB on 20 April 2017 and was heard by Mr. William Lam (“the Adjudicator’) on 12 July 2017, at which time he was still detained at CIC. On 21 July 2017, the appeal was dismissed. The Applicant applied for, and was initially refused, legal aid to judicially review the decisions of both the Director of Immigration (“the Director”) and the Adjudicator. In the interim, he submitted his F86 on 22 September 2017, without the benefit of legal advice [Bdl 1 Tab/8]. On 9 November 2017, he submitted what could be described as “holding grounds of review”, which included in outline, matters later crystallised in proper form.  Subsequent to that, the Applicant appealed the decision of the Director of Legal Aid and was granted legal aid on 23 April 2018, at which point his current solicitors and counsel were appointed. Promptly thereafter, applications were made for an anonymity order and the summonses, to which I have referred above.     

4.The Applicant originally sought to review the Decisions of both the Director and the Adjudicator.  As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with^[1].

Summary of Original Claim

5.The Applicant had 6 bases to his original claim[2]:

(i)   He was in fear that he would be harmed or killed by Boko Haram  for being a Christian;

(ii)   he was in fear of everyone in Nigeria for being a homosexual;

(iii)   he was in fear of a man called Abubakar, as he was indebted to him and could not repay the debt;

(iv)   he was in fear of a man called Eze, for failing to deliver the dangerous drugs and for failing to obtain the money for those drugs and transfer it to Eze; 

(v)   he was in fear of being unfairly imprisoned for the death of three men who had been held in captivity with him in Nigeria and of whose death he was falsely accused; and

(vi)   he was in fear of further criminal punishment for committing a drug trafficking offence outside of Nigeria and for bringing his country into disrepute.

Background Facts

6.In short, the Applicant is Igbo and a Christian. He was married with a son, who was born on 6 February 2011. Between 1999-2009, he had his own trading business in Sabon Gari, which is just north of central Nigeria in the Kaduna state area. In 2007, the Applicant obtained a loan of 10 million Nigerian naira[3] from Abubakar, which was repayable over 4 years. In 2009 however, the Applicant’s shop was burnt down by Boko Haram. As a result, Abubakar demanded repayment in full and threatened to kill the applicant if he was unable to do so, alternatively he offered to waive the debt if the applicant converted to Islam. The Applicant was unwilling to convert and therefore fled to the neighbouring state of Kano where he intended to work in order to repay Abubakar. Just one month later, the Applicant was kidnapped by Boko Haram. He believed this was upon the order of Abubakar, although there was no evidence to support this assumption. His captors had also kidnapped several other men and attempted to convert them all to Islam whilst in captivity. Those who did not do so were tortured and assaulted with bare hands, barbed wire, rope, pliers or knives. The Applicant was seriously injured during this torture. His wounds were not tended to and he still carries the scars. On his fifth day of captivity, the Applicant witnessed the execution of one of the prisoners. At that point, some of the captives capitulated but the Applicant did not and was attacked with an axe and lost consciousness. He awoke to find he was with 3 dead bodies. He believed he had been left for dead by his captors and although weak, he escaped and sought out a nearby village where he was provided with first aid. From there he found his way to Kaduna and to a friend who was able to take him for private medical treatment. The Applicant maintains that at that point he heard on the radio that he was wanted for the deaths of the three men. The warrant for his arrest dated 15 January 2010 is at Bdl 1 Tab/15 p163, although it was not available before either the Director or the Adjudicator. The Applicant moved to Lagos to avoid arrest and eventually went to work for Eze as a domestic helper. It was Eze who helped the Applicant leave Nigeria illegally in September 2010. He went first to Mali and obtained a Malian passport. From there, Eze arranged for the Applicant to fly to Thailand. It was only when he was in Bangkok, that Eze persuaded him to traffic in dangerous drugs. After he had been arrested and convicted in Hong Kong, the Applicant’s wife divorced him and made it public that the Applicant was a homosexual. This issue therefore became central to his NRF claim only after his arrival in Hong Kong.

Grounds of Judicial Review

7.In his amended Notice of Application for Leave to Apply for Judicial Review, the Applicant maintained the same bases of claim as those outlined at §5 above, although the thrust of his complaint centred upon the issue of his homosexuality and the proper test for persecution risk. He relies upon the following grounds:

Ground 1

Wednesbury Unreasonableness – The Board failed to properly assess country conditions in Nigeria.

8.The Applicant complains that in respect of the issue of his homosexuality and of his fear of Boko Haram under §5(i) and (ii) above, the Adjudicator failed to research and thereafter to properly assess the relevant Country of Origin Information (“COI”).

9.There is only one reference to COI in respect of homosexuality in the Decision of the Adjudicator and that is at §5.1. It is a reference to an article in the Nigerian Monitor newspaper[4]. This Court was provided with the article, which has no date, but refers to the Same Sex Marriage (Prohibition) Act (“SSMPA”) “which came into law last year”. The Act was passed on 7 January 2013 and therefore this article is presumed to be dated 2014. It mentions that it is prohibited for homosexuals to meet in groups of two or more, marriage or civil unions between people of the same sex is banned, and  gay clubs and events are subject to criminal sanction. The article includes a reference to Kehindi Bademosi who was married for 6 years to a woman who knew he was a homosexual; the Reverend Jide Macaulay who operated a secret gay church in Lagos and which has since relocated to the UK because of threats; Chika Nwafor-Schwartz who lives in Germany with his lover; John Amaechi who lives in America and John Adewoye who is in self-Imposed exile because of his gay status. Of the 8 men referred to, only two, Dr Otibho Obianwu and John Adenyi appear to actually live in Nigeria, although that is far from clear.  

10.The Adjudicator also referred to the SSMPA specifically, but only in so far as he dismissed it as being irrelevant to his consideration because the appellant had not submitted to him that he wished to engage in same sex marriage.

11.In answer, the Respondent made a submission, which gave the Court some cause for concern. It formed the bedrock of the Respondent’s submissions to 4 out of the 5 grounds in respect of its observations on the Board’s Decision at §36-41 of Bdl 1/Tab 12.  In respect of the issue of homosexuality, the Respondent submitted:

“…. as the Board’s decision was reached after an oral hearing, the Board had the advantage of observing the Applicant during the oral hearing. In light of this advantage, it is respectfully submitted that it was open for the board to make the finding that the applicant was not homosexual”.

This submission was unfortunate. It cannot be the case that an Applicant’s sexuality may be determined by the mere fact of his presence at a hearing any more than an Applicant’s religious or political views may necessarily be assessed by mere presence. Something more is required. An Applicant’s sexuality must be established, or rejected, based upon the evidence before the Adjudicator and if there is none, then it is incumbent upon the Adjudicator to make some enquiry of the Appellant if he is minded to reject his claim under this head, out of hand. The remainder of the Respondent’s argument, as to the other grounds of review advanced by the Applicant, hinged upon this unfortunate error. The Respondent submitted that as the Board could make a finding that the Applicant was not a homosexual on the basis of having seen him at the hearing, then it followed that there could be no basis for his fear of risk of harm for being a homosexual in Nigeria and as a consequence, the Board need not consider COI pertaining to such a risk.

12.In respect of COI in relation to Boko Haram, whilst the Respondent accepted that the Adjudicator had made reference to and relied upon an unverified article from Wikipedia, he correctly pointed out that he had also relied upon 3 other verified sources. The Respondent submitted that those sources were sufficient to justify the finding that Boko Haram was “basically defeated”. This court respectfully disagrees. Boko Haram is alive and well and thriving in Nigeria to the present day.

13.The Applicant was in detention at the time of the hearing and had been imprisoned or in detention from the date of his entry into Hong Kong some 6 1/2 years earlier.  His access to the internet and to other support, both as a foreign convicted prisoner and a detainee, was therefore clearly and obviously limited.  Ms Souza, on behalf of the Applicant submits that there was easily accessible COI[5] available to the Adjudicator. The first and most obvious being ss 214 -7 of the Criminal Code Act, Chapter 77,  Laws of Nigeria 1990. This legislation criminalises homosexuality and carries sentences of between 3 and 14 years for its breach. Perhaps of more significance, and also easily searchable, is the May 2014 report of the International Lesbian Gay Bisexual Trans and Intersex Association which indicates that many northern Nigerian states have adopted Islamic Sharia law where the penalty for same sex acts is death. The US State Department “Country Reports on Human Rights Practices for 2016” also includes a reference to death by stoning under Sharia law (which had not been imposed during the year 2016) but that the punishment for such an offence in the year 2015, had been lashing. Lastly, the Applicant submitted a European Asylum Support Office report[6], which makes particular reference to homosexuals being subject to abuse at the hands of the police.

14.Given the availability of the above, the Applicant relies upon Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §§ 52-55 and upon the judgment of Zervos J (as he then was) in X v Torture Claims Appeal Board HCAL 143/2013 in which he said at § 31:

“(1) A person determining a torture claim has to display high standards of fairness.

(2) This obligation is case specific and will depend on the issues and circumstances of the individual case.

(3) There is a positive duty on a person determining a torture claim to make all necessary relevant and realistic inquiry and investigate and obtain any relevant information or materials in order to properly determine any relevant fact or issue raised in the case.

(4) This necessitates a collaborative effort on those involved in the processing of a torture claim but the burden remains on the claimant to make good his or her claim.”

15.It is self-evident that Nigeria has persecutory laws in place which criminalise homosexual acts and it was, in the circumstances of this case, incumbent of the Adjudicator to make himself aware of that by reference to easily accessible COI[7], when it would have been clear that the Applicant was in a difficult position to do so even if that circumstance had been brought about entirely as a result of his own criminal behaviour.  The Adjudicator’s finding that there was no real risk of harm to homosexuals in Nigeria was without any evidential basis.   

16.In respect of COI in relation to Boko Haram, the Adjudicator had far more material available to him. Nevertheless, the Applicant complains that he acted unreasonably in coming to the conclusion on that material that Boko Haram had “basically been defeated” and relied upon further sources to suggest otherwise[8]. The Applicant argued that this was an instance of “cherry-picking’[9]. Whilst the Adjudicator did carry out more research into this issue, I agree with the Applicant that his findings are not made out of the available material and that his finding that Boko Haram had “basically been defeated” did not obviate the need to consider the risk of Boko Haram to the Applicant, as a Christian, if refouled to his home area. If Boko Haram had not actually been defeated, then there was a risk it was still in existence in the Applicant’s home area. However, as (for this issue alone) the Adjudicator had found that it would be open to the applicant to re-locate to a Christian held more southerly community, I do not find that the Adjudicator’s decision was unreasonable in this regard in all the circumstances.

Ground 2

Procedural Unfairness and/or Wednesbury Unreasonableness – The board wrongly disbelieved the applicant on his homosexuality without adequate enquiry.

17.The totality of the Adjudicator’s consideration of the factual claim under the head of homosexuality was dealt with at §5.2 in which he states:

“In any event, the Appellant’s claim that he is a homosexual has serious problems: (1) he was married to a woman and furthermore has a son, (2) he has not told anyone about his sexual orientation whether in Nigeria or in Hong Kong, (3) other than a bare assertion he has no evidence, and the law says it is not up to a claimant “to simply sit back and require the Director to disprove it (“the case”)”: TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011…,(4) he makes a bare assertion that his wife has told him that she had told people in Nigeria, but there is nothing to support the assertion. I do not place weight on the bare assertion that he is a homosexual. Independently, I note the Country of Origin Information (“COI”) does not suggest that homosexuals face any real risk of serious harm for the purpose of non-refoulement whether under the laws of Torture or BOR3 or BOR2 or Persecution.”

18.The Applicant submits that the Board’s finding at §5.2 above are irrational and procedurally unfair. He adopts his submissions on Ground 1 in support. He submits that the suggestion that homosexuals in Nigeria do not face any real risk of harm is without an evidential basis[10].The correctness, or otherwise, of the last sentence of §5.2 has already been dealt with above.

19.The Applicant further maintains that he raised the issue of his homosexuality from the outset[11] and that he queried the omission to investigate his sexual orientation by the Director immediately upon receipt of his decision. As a consequence of being disbelieved upon this issue, the applicant clarified his position at pp9-11 of his Notice of Appeal[12] as to his marriage, the fact that there was no consummation of the marriage and that he was “on the run” at the time the child was conceived. The file placed before the TCAB would have contained all of this. All of the above and more could have been canvassed by the TCAB, if the Adjudicator had chosen to ask any questions about it. However, he did not do so. During the 3 hour interview, which took place on 12 July 2017, the Adjudicator asked only 1 question about the issue of homosexuality which was a question in respect of the Nigerian Monitor article. The applicant was therefore given no opportunity to be heard on this material factual dispute[13]. How is it said by the Respondent, that this was sufficient to assess whether the Applicant was, in fact, a homosexual?

20.The applicant maintains that it was also wrong of the Adjudicator to dismiss the SSMPA by finding that “the Appellant does not say he will engage himself in same sex marriage, hence this issue is irrelevant”. Nor was the fact that he chose to enter into a heterosexual marriage determinative[14]in any event.

21.He also submits that the Adjudicator should have taken cognisance of the UNHCR’s “Guidelines on International Protection No.9: Claims to Refugee Status based upon Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of refugees” (“UNHCR Guidelines on International Protection No.9”) at §§30-31:

“30. …Many will not have lived openly as LGBTI in their country of origin and some may not have had any intimate relationships. Many suppress their sexual orientation and/or gender identity to avoid severe consequences of discovery, including the risk of incurring harsh criminal penalties….

31. That an applicant may be able to avoid persecution by concealing or by being “discreet” about his or her sexual orientation or gender identity, or has done so previously, is not a valid reason to deny refugee status. As affirmed by numerous decisions in multiple jurisdictions, a person cannot be denied refugee status based upon a requirement that they change or conceal their identity, opinions or characteristics in order to avoid persecution.”

22.Had the Adjudicator availed himself of the available COI on this topic and discussed his concerns with the Applicant, he could not have been faulted for disbelieving him if he had good reason to do so. In the circumstances of this case, the Adjudicator’s sole reason for rejection was the lack of corroborating evidence because he saw this as a “bare assertion”. Given that view, it was incumbent upon him to at least canvass this issue with the Applicant.

Ground 2A

Procedural Unfairness – The board wrongly refused to afford the applicant adequate time to obtain material evidence to corroborate his claim.

23.The Applicant maintains that he made it clear within his NCF dated 22 February 2017, that there were documents he wished to rely upon in support of several issues and which he found it difficult to obtain. During the hearing before the Adjudicator, the only reference to this is at Bdl 2 Tab 34 p321F and that is to ask if there is anything to add to the bundle, to which the Applicant replies “there has been no development”. Thereafter, at §5.2 of the Decision, the Applicant is criticised for his bare assertion as to his homosexuality and disbelieved as a result. The Applicant submits that in a situation such as his, and on a topic which was crucial to the decision of the Adjudicator, it was incumbent upon the Adjudicator to do more than criticise the Applicant for “sitting back[15]” as that was not the case and enquiry by him as to this issue may have revealed the true state of play.

24.As to Ground 2A, the Respondent maintained that the intervening period between April 2017 and July 2017 a period of three months, was sufficient time for the Applicant to obtain any other material upon which he wished to rely over and above that already before the Board which, in any event had been extensive. The Respondent submitted that the Director had allowed sufficient time for further materials to be submitted and those materials were before the Board. The Respondent may have been a little optimistic in its attitude to the ease of correspondence originating from a detainee within CIC and the short period of time between the Director’s decision and the appeal hearing, but as this application does not turn upon this point, this court will say nothing more than to suggest that the time to be allowed for the production of further documents will depend upon the type of documents being sought by the applicant and his particular circumstances at the time. If documentary verification would significantly affect the view to be taken by the TCAB, it may be necessary to adjourn the matter for a further period in order to allow the appellant to obtain it.  If further time is to be disallowed, the applicant should be heard and reasons should be given. It will very much depend upon the particular circumstances of the case. As it happens, documentation was submitted to this court which may have been helpful to the Applicant before the TCAB but was only obtained after the Applicant’s release from detention. In its discretion, this Court allowed the Applicant to adduce new evidence in the interest of justice as it is directly relevant to an issue to be considered.

Ground 3

Error of Law – The Board failed to apply the correct legal test in assessing persecution risk arising from sexual orientation

25.The Applicant submits that the Board applied the wrong test in respect of persecution risk and that it wrongly rejected the applicant’s claim for non-refoulement protection because he had fled Nigeria to avoid arrest and the due process of the law.

26.At §32-34, the Adjudicator outlines his analysis of the test to be applied:

32. Art 33 of the RC says there would be a persecution risk to a person if: (a) owing to well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, the claimant is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country: Article 1A(2) of the RC, and (b) his life or freedom would be threatened on account of one or more of the “Convention Categories” i.e. his race, religion, nationality or membership of a particular social group or political opinion, should he be expelled or returned to the frontiers of a risk state.

33. There is no statutory definition of “persecution”, but there must be a “minimum level of severity”, serious violation of human rights, or serious or intolerable harm. As to perpetrators, the RC uses the term “agents of persecution” which are normally state authorities. The United Nations uses the term “populace” which means a sizeable portion of the population: UNHCR Handbook (1979) Chapter II at §65, HLR v France [1998] 26 EHRR 29, Rv SSHD ex parte Bagdanavicius [2005] UKHL 38.

34. Put another way, the requirements for non-refoulement under Persecution are virtually the same under BOR3, namely there must be: (1) severe ill-treatment if refouled , viz “serious harm”, (2) a “well-founded fear” of such harm, namely there must be a real chance of such harm occurring and not merely remote or speculative: CHAN v MIEA 169 CLR 379 at 430, MIEA v Wu Shan Liang 185 CLR 259, and (3) the absence of state protection, but (4) the harm must be under one or more of the “Convention Categories” 

27.As a result of that test, the Adjudicator found at §35 that the applicant had not suffered any severe injury or serious harm which would place him within the criteria of Persecution and the situation fell far short of establishing “Persecution Risk”. 

28.As to the first argument, the test for persecution risk under Art 1A(2) of the Convention, is defined as:

“…owing to a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to fear, is unwilling, to avail himself of the protection of that country…”

29.The UNHCR Guidelines on International Protection No.9 §§ 44-47  make it clear that gay persons are members of a “particular social group[16]”which is defined as:

44. …a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights..

47. Sexual orientation and/or gender identity are considered innate and immutable characteristics or as characteristics so fundamental to human dignity that the person cannot be compelled to forsake them….

30.The Applicant submits that the Adjudicator failed to consider this aspect at all. He submits that the Adjudicator’s analysis of persecution risk at §§ 32-34 was erroneous and that his application to the facts was flawed. In particular, he was in error when he found that the test for assessing risk under Art. 3 HKBOR and for persecution are “virtually the same” and that the Applicant was required to establish he has suffered past “severe injury” or “serious harm” to amount to torture, CIDTP and/or persecution. I agree.

31.The Convention does not define “persecution”. The phrases “severe injury” and “serious harm” are not restricted to physical injury or harm. According to Art 9(1)(a) of the EC Council Directive 2004/83/EC, acts of persecution must:

a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights….or

b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in a).

It covers “many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment”[17]

32.There is no requirement of past ill-treatment or severe injury or serious harm, in order to establish risk of future harm : AM v Director of Immigration at §§ 118-9 per McWalters J. These may be indicators of future harm but they are not a pre-requisite in order to establish a well-founded fear of future harm.

33.The test for the TCAB is that set out in HJ (Iran) supra at §82 and can be summarised as follows:

i) Is the Adjudicator satisfied the appellant is gay, or that he would be treated as gay by potential persecutors in his country?

(ii) Will gay people, who live openly as homosexuals in Nigeria, be persecuted?

(iii) What would the Appellant do if returned to Nigeria?

(iv) If he would live openly as a gay man, and thereby be exposed to a real risk of persecution, then he would have a well-founded fear of persecution even if he could live “discreetly”.

(v) if the Adjudicator finds that the Appellant would live “discreetly” and thereby avoid persecution, the Adjudicator must go on to consider why he would do so?

(vi) If the Adjudicator found that he would do so because that is how he chooses to live because of social pressures such as not wishing to distress parents and friends, then his application should be rejected.  But, If the Adjudicator concludes that he would do so because of a fear of persecution then his application should be accepted if that fear is well-founded.

34.This Court would also venture to suggest that fear of State punishment and the likelihood of that punishment being visited upon the Appellant would also be a relevant criteria to be considered under (vi) above.

35.By way of elucidation, in HJ (Iran) supra, Lord Hope of Craighead DPSC said at §35F:

“ ..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. The 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 into 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.”

36.As to the second argument, that non-refoulement protection is not available to those who flee the jurisdiction to avoid due process, with respect to Counsel for the Applicant, the Adjudicator, at §§19-21, was referring to the applicant fleeing Nigeria in order to avoid prosecution for the deaths of 3 men and not to avoid the imposition of the legislation seeking to criminalise homosexuality.  It is accepted that §56 of the UNHCR Handbook[18] is qualified to exclude legal sanctions which are in themselves persecutory.  The true complaint of the Applicant is that the Adjudicator failed to consider the likelihood of criminal sanction against the applicant as a result of his homosexuality, if refouled[19]and it appears that he did not do so despite giving an undertaking that he would[20].

Ground 4

Error of Law – The board wrongly found that the Applicant would have adequate state protection and/or viable internal relocation alternatives.

37.The Adjudicator found that:

“30. Further and in any event, [the applicant] is safe to live in Nigeria, at least other than in his home locality (in the north), which is a reason in addition to, and independent of, the reason in the paragraph above for a claim under “BOR3 Risk” to fail.”

38.The Applicant submits that the general principle at §54 of TK v Michael C. Jenkins supra applies and that is:

“…The more closely the persecution or torture is linked to the state, and the greater the control of the state over those acting or purporting to act on his behalf, the more likely (other thingsbeing equal) that a victim ofpersecution or torture in one place will; be similarly vulnerable in another place with the state…”

39.As the Adjudicator had rejected the applicant’s claim in respect of his homosexuality unfairly and unreasonably at the outset, the Applicant submits that the Adjudicator did not consider this issue at all. If he had done so, it would have been clear that the persecutory nature of the legislation precluded his return if it was accepted that he is a homosexual. I agree.

Judicial Review

40.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is a rolled up application for leave, and if granted, for the judicial review of the Decision of the Adjudicator alone. The applicant must show that there was either unlawfulness, unreasonableness or unfairness by that body when dealing with his application. This has been discussed above.

Conclusion

41.Leave to apply for judicial review is granted. The hearing to be treated as the hearing of the substantive application.

42.For the reasons given above, the Applicant is successful on all Grounds. I grant certiorari to quash the Adjudicator’s Decision and remit the Applicant’s claim back to the TCAB to be considered afresh by another adjudicator.

43.The anonymity and sealing order be continued until further order.

44.I make an order nisi that the costs of the application be awarded to the Applicant to be taxed in accordance with the Legal Aid regulations. This order nisi will become absolute in 21 days unless any of the parties applies to vary it by summons.

45.I wish to thank Counsel for their assistance.

Ms Denise Souza, instructed by Daly & Associates, assigned by Director of legal Aid for the applicant

Mr Sunny Li SGC (Ag) of the Department of Justice for the Interested Party

The attendance of the Respondent was excused.