Re Lk

HCAL43/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.43 OF 2015

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J U D G M E N T

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Introduction

1.The applicant was born on 1 January 1987 in Village Khastaluk, District Rangpur, Bangladesh.  He lived with his parents and two younger sisters.  He received education for 8 years. He used to be a farmer from 2000 to 2006.  He had no problem being an ethnic Muslim.  His family supported the Jatiya Party (JP).  He was a member of JP.  He only joined the rallies.  He helped to distribute pamphlets and solicit votes for JP candidates during election periods. 

2.The Bangladesh Nationalist Party (BNP) was the ruling party since 2001.  Its members harassed and forced others to join the party.  The applicant’s family was a target as they refused to leave JP to join BNP. 

3.The applicant feared that he would be killed or harmed by BNP members if he returned to Bangladesh. 

4.The applicant sneaked into Hong Kong on 31 March 2008.  He was arrested on 5 December 2008.  He lodged a torture claim on 7 December 2008.  He was released on recognizance since 12 December 2008. 

The Court case

5.One day in 2006, his father and uncle were summoned to the Rangpur Court.  They ignored the summons.  Several days later, several police officers went to his home to enquire about their absence.  His father and uncle eventually turned up in court but were remanded in custody for about 10 days before bail was granted.  According to their lawyer, some BNP members lodged a false allegation with the Forest Department against them for damaging government plants and trees.  The case was still ongoing since 2006.  The applicant learned from the Forest Department that there was “higher authority” instigating this complaint.  He thought it was some members of BNP. 

The attack

6.A few days after his father was released on bail, while the applicant was driving home on his motorbike, some BNP members used a rope to trap him.  He was pulled off the bike.  They attacked him with sticks for 15 minutes.  They dragged him by his legs causing injuries to his face, chin and arms.  They told him to leave JP or Bangladesh, or else, they would kill him. 

7.He was taken to a nearby clinic in a rickshaw by his friends.  The village doctor sutured the wound on his chin and dressed other wounds on his arms.  He recovered in one and a half months. 

8.He thought that it was futile to report to the police.  The BNP attackers and the police were friends.  The BNP members were influential in the village.  He did not inform any JP leaders as BNP was the ruling party.  He took refuge at central Rangpur at an uncle’s house for 6 weeks. He then went to Dhaka and stayed with a friend for 2 months. He also stayed in Rajshahi for a couple of days. 

9.Eventually his cousin arranged a passport for him through an agent.  He went to India and Nepal but was informed by the locals that he could not seek asylum there.  He then returned to Dhaka and stayed there for 5 months until March 2008. During that time, his father advised that it was dangerous for him to return to the village.  The BNP members were looking for him.  Subsequently, he paid an agent to arrange him to go to Hong Kong. 

10.His agent told him to seek protection in Hong Kong.  He did not lodge the claim as soon as he arrived because his friends told him that he would be sent back. 

11.He was never arrested, imprisoned or detained in Bangladesh. 

12.Despite BNP lost in the elections in 2008 and 2014, he thought that the BNP members were still powerful and influential in the local village.  The Bangladesh police was corrupted.  They failed to provide security to the people. 

13.According to his mother, the situation there was dangerous and undesirable for him to return.  However, his family was safe in the home village. 

14.He could not relocate in Bangladesh which was not big.  The BNP members could check his whereabouts easily.  He could no longer stay in Dhaka as he lost contact with his friend.  He could not stay in central Rangpur or Rajshaji as these places were close to his home village.  He had insufficient capital to start a business elsewhere. 

The decisions of the Director

15.On 20 August 2014, the Director of Immigration (‘Director’) found the following facts and rejected his claim as follows:

a  The nature of the injuries was not serious physical or mental harm.  They did not satisfy the threshold of “a minimum level of severity”.  Nor could the injuries amount to “severe pain or suffering”.  The applicant could travel 30 miles on the next day of the attack to stay with his uncle at central Rangpur.  This corroborated that the injuries were not serious. 

b  There was no evidence that the attack or threat were instigated by the Bangladesh government or public authorities.  There was no evidence that they linked with BNP. 

c  He could stay away safely for 8 months at various places, such as central Rangpur, Rajshahi and Dhaka, without being discovered by the BNP members. 

d  He was merely a member of JP.  There was no evidence that they targeted him because of any adverse interest.  He was only attacked once before leaving Bangladesh.  His family was not harmed despite the harassment since 2002 as he claimed. 

e  There was no evidence as to who made the false complaint to the Forest Department against his father and uncle.  It was only his speculation that the “higher authority” was BNP members. 

f  Various ‘Country of Origin Information Reports’ indicated that the Bangladesh government had been taking proactive steps to improve police professionalism and to fight corruption.  There was a fair and proper judicial process.  It was not accepted that the Bangladesh government was unwilling or unable to provide sufficient protection to its citizen. 

g  Bangladesh was a large country with a huge population of 150 million.  It would be difficult for those BNP members to locate him.  The Constitution also allows free movement within the country. 

h  The applicant only lodged his torture claim 9 months after he sneaked into Hong Kong.  This was inconsistent with a genuine fear of life threat or torture risk. 

16.The Director opined that the injuries were not serious physical or mental suffering.  They did not satisfy the threshold of “minimum level of severity”.  Given the background summarised above, the Director did not accept that the applicant would face a genuine and substantial risk of ill-treatment under BOR 3. 

17.The applicant had no problem being an ethnic Muslim.  His dispute with the local BNP members was a private dispute as he refused to join the BNP.  He was only an ordinary member of JP, the risk of persecution was slim. 

18.The injuries he sustained did not amount to severe pain and suffering under s 37U(1) of the Immigration Ordinance.  He was never arrested or detained in Bangladesh.  He could leave and return to Bangladesh through normal channels without any problem.  There was no evidence to link the attack with any public authority or the government.  There was nothing to suggest that the attack was inflicted or instigated with the consent or acquiescence of the Bangladesh government or public authorities.  The claim under Part VIIC of the Immigration Ordinance failed. 

19.The Director pointed out that Bangladesh was not a small country.  It had a large population.  Further the applicant could stay in various places safely before he left for Hong Kong.  His family had never been in trouble with the BNP since he left.  The Director concluded that it was not unreasonable for the applicant to relocate to other places in Bangladesh. 

The decision of the Adjudicator

20.The Adjudicator had considered the facts as summarised in paragraphs 5—14 above.  There was an oral hearing held on 22 December 2014.  The Adjudicator found that the evidence of the applicant unreliable, illogical and contradictory.  The following is some examples:

a  The applicant did not know the outcome of the court case against his father and uncle.  He however stated that it was a false case. 

b  During the interview on 3 July 2014, he told the Immigration Officer that BNP members started to harass his family in 2002.[1]  In the torture claim form, he said the governance term of BNP was ending in 2006.  They started staging activities since 2005 to weaken other political parties.  His family being JP supporters was harassed.[2] 

c  In the oral hearing before the Adjudicator, the applicant said the police mistreated him if they could not locate his father and uncle.  This was inconsistent with the answer in the torture claim form—‘when he told the police he had no idea of the whereabouts of his father and uncle, the police left.’[3]

d  In the torture claim form, he stated that he was the only one attacked[4] by his enemies.  In the same form he said his family was also accused, detained and charged in Bangladesh[5].  They were harassed. 

e  The father and family of the applicant advised him not to return as the BNP people were looking for him.  He did not elaborate the source of their information during the oral hearing before the Adjudicator. 

f  During the interview on 3 July 2014, he told the Immigration Officer that he could not recall the date of the attack as it was evening.[6]  He also explained that he did not seek assistance from JP leaders as the BNP was in power.[7]  

g  During the interview on 28 July 2014, when the Immigration Officer told him that BNP was no longer in power, the applicant said “you can’t say the election was a proper election.  Nowhere in the world people had ever seen such election.”[8]

h  There was no reason why he could not enquire in Hong Kong about seeking protection especially that his agent had reminded him to come to seek protection. 

i  He explained that some friends told him that if he contacted the authorities to seek protection in Hong Kong, he would be sent back.  Therefore, he did not seek protection at the first available opportunity. 

21.Given the above, the Adjudicator found that the applicant was not credible and rejected his story. 

22.The Adjudicator rejected the claim under Part VIIC of the Immigration Ordinance on the following grounds:

a  The applicant was able to travel 30 miles to central Rangpur on the next day of the attack.  The injuries were not severe. 

b  The attackers were only farmers though they were president and secretary of BNP in Pirganj area.  They were not public officials. 

c  There was no evidence that the attack was instigated by or with the consent of public officials. 

d  The applicant was never arrested or detained.  He could leave Bangladesh with no problem.  This indicated no torture risk. 

e  The applicant did not report to the police.  There was no evidence that the police would not help him. 

f  Although there was information from Country of Origin Information that the police in Bangladesh was corrupt and ineffective in investigation, there were other reports demonstrating that the Bangladesh government had taken steps to improve police professionalism and tackled corruption.  Legal aid services were set up to facilitate access to justice.  The Adjudicator concluded that the Bangladesh authorities had shown determination to reform and enhanced the responsibilities of the police. 

23.The Adjudicator also rejected the claim under BOR 3 as the injuries did not satisfy the threshold of “minimum level of severity”.  The risk of torture was low given the analysis above in relation to Part VIIC. 

24.The Adjudicator rejected the claim under article 33 of the Refugee Convention as the fear for ill-treatment did not fall within the Convention definition of persecution. 

25.The Adjudicator also pointed out that the applicant had stayed safely in central Rangpur and Dhaka.  Internal relocation was always an option given that BNP was no longer in power and Bangladesh was a huge country with a large population.  The applicant was a normal adult and had 6 years of farming experience. 

Grounds of review

26.Mr Andrew Leung, counsel for the applicant, raised four grounds of review as follows:

Ground 1(A): Error/misdirection on the meaning of state acquiescence

27.Mr Leung pointed out that both the Director of Immigration and the Adjudicator failed to consider the extended form of state acquiescence.  He pointed out that the Bangladesh government was aware of the serious corruption problem in the police force and did not exercise due diligence to control the situation.  There was no adequate protection of the applicant from the abuse by the members of BNP. 

28.Mr Leung argued that failure to report to the police, though relevant, was not conclusive.  He cited the comment of Lam VP in JKF[9].

29.In JKF, Lam VP, pointed out that the assessment of the extended concept of State acquiescence should have been undertaken by the Director and the Adjudicator.  When they did not conduct the necessary assessment or did not make all the necessary inquiry, the court should not readily place itself in their positions to undertake such exercise on its own.  His Lordship stressed that the lack of report to the police was relevant in the overall assessment of State acquiescence but not conclusive.  His Lordship referred to the facts of TK v Michael Jenkins to illustrate this point.[10]

30.In TK, Lam VP thought that the Adjudicator had not directed his mind to State acquiescence,

“ Even though the Adjudicator did make a finding at para.32 that D’s regard of himself as above the law was not enjoyed with the consent or acquiescence of the State, apparently he did not address his mind to the extended meaning of acquiescence arising from a breach of the duty of due diligence. As indicated by the last sentence of para.32, the Adjudicator only considered the matter on the basis of the traditional meaning of acquiescence, viz. the State or its official being in some way behind the threat of D…

…Given the evidence as to the general condition of Pakistan and the doubt cast on the due diligence of the police authority at A by the specific findings at para.30 as regards the futility of reporting the fraud and killing and the lack of adverse consequences for D in respect of his behaviour, and having regard to the inquisitorial nature of the proceedings, the Adjudicator should at least direct the Director to seek information from his counterpart in Pakistan as to the security in A in respect of the activities of D. I understand the inquiry may not be fruitful. But it should be undertaken in order to fulfil the high standards of fairness prescribed by Prabakar in the processing of a CAT claim.”[11]

31.Paragraph 30 of the Adjudicator’s decision mentioned above was quoted in paragraph 18 of the judgment of TK as follows:

“Essentially, this was a private dispute over land. It was a dispute which resulted in tragic consequences for C (who was killed) and a financial loss for the Petitioner. D would seem to be a person of influence, with a brother in the [ruling party], and his behaviour, even being a party to murder, may well not attract any adverse consequences for himself. There is little or no point in the Petitioner reporting the fraud or even the killing to the authorities. In all probability they will do nothing. But does all or any of this, mean that there is any risk to the petitioner of the sort contemplated in the Convention?”[12]

32.It appears that the Adjudicator in TK accepted that the other party (D) might be a person of influence in the area at which the petitioner resided.  This might be the reason that the petitioner in TK did not seek assistance from the authorities.[13]  Despite this finding, the Adjudicator had not directed his mind to State acquiescence.  That was why Lam VP held that the Adjudicator should have directed further enquiry despite there was no report to the police in TK. 

33.As discussed below, this is not the finding of the Director or the Adjudicator in the present case.  There is no evidence, apart from the subjective view of the applicant, that the BNP attackers had such degree of influence.  Both the Director and the Adjudicator did not accept it was futile to report to the police. 

34.The scope of State acquiescence was set out concisely in AM v Director of Immigration & Another[14].  McWalters J (as McWalters JA then was) cited the opinion of the Committee against Torture[15] in support.  The gist is as follows:

a  Firstly, the state must know or had reasonable grounds to believe that acts of torture or ill-treatment were being committed by a non-state official or private actor. 

b  Secondly, His Lordship pointed out that there could be active and passive State acquiescence (extended State acquiescence).  

i  The former occurred when the state deliberately failed to exercise State authority against those committing acts of torture and withhold protection from the victims. 

ii  The latter occurred when the State failed to discharge normal State functions of providing security to its citizens.  The State had the capacity but failed in making proper use of that capacity to prevent the torture and punish those responsible.  The State’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor.

c  The claimant must be personally at risk if he was returned to his country of origin. 

35.In the present case, so far as active state acquiescence is concerned, the evidence shows that the applicant never reported the harassment, threat or attack to the local police.  There is no evidence that the police in Bangladesh knew or had reasonable grounds to believe that the applicant was attacked and turned a blind eye to it.  In my view, there is no active acquiescence. 

36.As to the extended State acquiescence, the Director considered various Country of Origin Information reports.  In paragraph 63—64 of his decision, the Director accepted that there were reports that the Bangladesh police had poor internal disciplinary mechanism and the courts were not proactive in bringing officers into account.  Victims were reluctant to report abuse for fear of reprisal.  Many thought that the police was ineffective and reluctant to investigate.  Police was perceived to be corrupted. 

37.However, there were recent reports which revealed that the Bangladesh government had taken steps to improve police professionalism, discipline and access to the courts.  Actions were taken against criminal acts of members of political parties.  Legal aid system was set up.  Significant steps were taken against corruption. 

38.The Director concluded that the Bangladesh government had taken proactive measures to improve police professionalism and against corruption.  The Director held that the Bangladesh government was, is or will be willing and able to provide reasonable and sufficient State protection. 

39.The Adjudicator adopted similar approach in paragraphs 28—30 of his decision.  He considered reports against and in favour of existence of State protection.  He concluded that the Bangladesh government had taken steps to improve police professionalism and determination to reform.  State protection would be available should the applicant wish to be assisted. 

40.In my view, the concept of extended State acquiescence was live in the minds of the Director and the Adjudicator.  Given that the applicant had never reported to the police, coupled with improving State protection as found by the Director and the Adjudicator, I reject this ground. 

Ground 1(B): Error/misdirection of “severe physical or mental suffering”

41.Mr Leung argued that the Director failed to consider the death threat made by the BNP attackers.  Further, the applicant’s mother also informed him that BNP members also threatened to kill him if he returned to Bangladesh.  This amounted to mental suffering. 

42.It is important to note that subject to the high standards of fairness, the burden is always on the applicant to prove that there was mental suffering.[16]  In this application, apart from mentioning the death threat during the assault, the applicant gave no further evidence that he had mental suffering.  On the contrary, he left and returned to Bangladesh freely after visiting India and Nepal.  He was safe and well while staying in Rangpur and Dhaka. 

43.The Director correctly set out in his Decision that ‘torture’ under BOR 3 and s 37U(1) of the Immigration Ordinance include physical and/or mental suffering in paragraphs 71 and 76. 

44.The Director had considered the circumstances of the assault in detail.  In paragraph 23, the Director set out the circumstances leading to the death threat.  Having considered the evidence, the Director rejected the claim that there was existing threat to harm him by those BNP attackers[17]. The Director concluded in paragraph 66 of the Decision:

“ Notwithstanding that you claimed to have fear of death threats in Bangladesh, you did not seek protection or lodge torture claim during your stay in China after you left Bangladesh in March 2008. You claimed to have entered Hong Kong on 31 March 2008 and were subsequently arrested by the police on 5 December 2008. You only lodged torture claim during your detention at Castle Peak Bay Immigration Centre on 7 December 2008. The fact remains that you did not seek any protection in the first instance since you successfully left Bangladesh to avoid your claimed threats in March 2008. Your belated action to seek protection in Hong Kong at the earliest opportunity, albeit you claimed that you learnt from your friends that you would be sent back to Bangladesh if you contacted the authorities, is inconsistent with that of a person who genuinely fears being killed or tortured in his country of origin. ” (emphasis added)

45.In the context of BOR 3, the Director concluded in paragraph 72 that:

“…There is nothing to suggest that you had suffered from any serious physical or mental harm in the attack incident.  Thus, it is not accepted that the ill-treatment (physical and/or mental suffering) which had inflicted on you from BNP attackers and their associates attained the threshold of “a minimum level of severity” to constitute BOR 3 risk.  ” (emphasis added)

46.Again in the context of Part VIIC torture risk, the Director had this to say in paragraph 77:

“…Having regard to the kind of injuries you sustained and relevant considerations as mentioned in paragraph 62 above, it is not accepted that any severe pain or suffering within the definition of “torture” under the section 37U(1) of the Ordinance had ever been inflicted upon you in the past.” (emphasis added) 

47.In my judgment, the Director had considered the death threat and the related mental suffering. 

48.Similarly, the Adjudicator correctly set out the definition of ‘torture’, which include mental suffering, in paragraphs 6 and 11 of his decision. 

49.He set out the facts of the attack leading up to the death threat in paragraph 16(e).  He also noted the comment of the applicant’s mother in paragraph 16(i).  He pointed out the illogical answers of the applicant during the oral hearing in paragraph 18.  He then concluded that the applicant was unreliable and rejected his story in these words:

“For those illogical and absurd explanations, the story of the Petitioner cannot be relied upon. I am of the view that he had made up his story.”[18]

50.The Adjudicator did not specifically mention mental suffering in his assessment of the facts in the context of BOR 3 and Part VIIC.  However, this must be assessed in light of the fact that the applicant had not given specific detail of any mental suffering.  Given the finding on credibility and rejection of the applicant’s story, I do not think that affects the validity of his decision. 

51.I am sure the Adjudicator was aware of the issue of mental suffering when assessing the non-refoulement claim.  I reject this ground. 

Ground 1(c): Error/misdirection of “present or future risk of torture”. 

52.Mr Leung criticised both the Director and the Adjudicator that they seemed to require the applicant to prove that he had been physically tortured in the past in order to prove that there was a future risk of torture. 

53.In TK v Jenkins, CJHC pointed out that the ultimate question in torture claim was whether there were substantial grounds for believing that the torture claimant would be in danger of being subjected to torture if he were returned to his home country.[19]  

54.His Lordship pointed out that in proving the risk of torture, not only should there be proof of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ in that country, but that the claimant must be personally at risk.  The burden was on the claimant and the risk must be ‘more than a mere possibility’ but did not need to be ‘highly likely’.  Further, in order to satisfy there were substantial grounds for believing that the claimant would be subjected to torture, the Director and the Adjudicator must make findings of primary facts which showed that the story of the claimant in his home country was true.  The burden was on the claimant to convince the Director and the Adjudicator on the balance of probabilities.[20] 

55.In the present case, it is therefore important for the Director and the Adjudicator to consider the truth of the story claimed by the applicant.  They would then decide whether there are substantial grounds for believing that the applicant would be in danger of torture if returned to his home country. 

56.The Director analysed the evidence before him including the detail circumstances before and after the attack, the injuries on the claimant, the Country of Origin Information (‘COI’) and viability of internal relocation, he concluded:

“ It is not accepted that you (applicant) will be subjected to a real risk of harm from the BNP attackers and their associates and that state protection will not be provided to you from the authorities upon your return to Bangladesh.”[21]

57.Based on the above analysis, the Director rejected that there would be genuine and substantial grounds for believing that the claimant would be subjected to torture in the context of BOR 3 and Part VIIC of the Immigration Ordinance.[22]

58.The Adjudicator set out the facts of the claimant’s case.  He pointed out the evidence of the applicant during the oral hearing was illogical.  He then rejected the story of the applicant. 

59.In relation to Part VIIC, the Adjudicator pointed out that the BNP attackers were not public officials and their acts were not for the purposes defined under s 37U(1).  The applicant was never arrested or detained.  He was not targeted by the Bangladesh government.  He concluded that there was no torture risk upon returning to Bangladesh.[23]

60.In relation to BOR 3, the Adjudicator concluded that the injuries of the claimant did not attain a minimum degree of severity.  He reiterated that there was no torture risk on the same reasons as in the assessment of Part VIIC.[24]

61.In my judgment, both the Director and the Adjudicator followed the approach in TK.  There is nothing in this ground. 

Ground 2(A): Illegality/Procedural impropriety: failure to make sufficient inquiry/failure to provide adequate reasons for ruling against the applicant on credibility. 

62.Mr Leung pointed out that the high standards of fairness required a joint endeavour of the claimant and the decision maker. The Adjudicator should have drawn the claimant’s attention to inconsistencies or points which were used to draw adverse inference on the latter’s credibility.  Mr Leung relied on the comments of CJHC in ST v Betty Kwan.[25]

63.Since the Adjudicator had already held an oral hearing on 22 December 2014, Mr Leung in effect argued that the Adjudicator should have given the applicant further chances to explain before using those inconsistencies or facts to draw adverse inference on credibility.

64.The main issue in ST v Betty Kwan was whether there should be an oral hearing before the Adjudicator decided the appeal. 

65.CJHC stressed that an Adjudicator should point out to an applicant matters which call for clarification.  There might not be a duty of inquiry provided that an applicant was aware of his/her burden to prove the issues. 

66.CJHC accepted that there was no absolute right of an oral hearing.  His Lordship however opined that, as life and limb were usually at stake in torture claim cases, coupled with the inherent limitation of written submissions, high standards of fairness would require the holding of an oral hearing.  This would be so even though there was no dispute as to the primary facts.  Other relevant considerations included the nature of the decision-making process in question; the procedural history of the matter; whether an oral hearing had already been held; the issues involved and the advantage of holding an oral hearing etc.[26]  

67.The petitioner in ST was an ethnic Tamil from northern Sri Lanka.  His whole family had links with the Liberation Tigers of Tamil Eelam (‘LTTE’).  It was at war with the Sri Lankan government. His father worked for the LTTE.  His brothers joined the LTTE.  One of his brothers died fighting for the LTTE.  Being an ethnic Tamil, he was often ill-treated by the Sri Lankan Army and Police.  On the other hand, he feared conscription by the LTTE.  He thus left Sri Lanka for Hong Kong in January 2003. He feared ill-treatment by the Sri Lankan authorities as he was an ethnic Tamil and had participated in anti‑government activities. 

68.The CJHC ruled that the Adjudicator should have held an oral hearing.  The main reasons were:

(i)  The Adjudicator relied heavily on two important decisions from the UK Asylum and Immigration Tribunal (“AIT”), LP[27] and TK[28], in dismissing the appeal of the applicant.  These decisions were “country guidance” cases which set out a principled approach in assessing the relevant personal risk to the torture claimant if returned to Sri Lanka;

(ii)  The Adjudicator should have drawn the applicant’s attention to these decisions.  This was especially so when the applicant had not adopted the AIT approach in his petition. [29]  

69.In my view, high standards of fairness oblige the Director and the Adjudicator to call for an oral hearing or further written submission if there are issues troubling him in deciding the claim.  It does not require the Adjudicator or the Director to inquire into each and every inconsistency before he can draw any inference on credibility.  It depends on the circumstances of a case.  In this regard, I echo the remark of the CJHC in ST after his Lordship explained the considerations for holding an oral hearing:

“ It does not mean that the adjudicator is obliged to send the torture claimant an advance copy of his decision in draft for his comment, before he can make a final decision on the petition, as the Judge seems to have thought. This is, in my view, not an all-or-nothing situation.”[30]

70.While the general principles are applicable, there are obvious distinguishing features between ST and the present case. 

71.In ST, there was never any oral hearing before the Adjudicator, whereas in the present case there had already been oral hearings before the Adjudicator[31] as well as the Director[32].  The Adjudicator however found the applicant unreliable after the oral hearing.  He based on the inconsistent answers during the oral hearing before him; the written answers in the ‘Non-refoulement Claim Form’ and the answers during the interviews before the Director. 

72.Another aspect is the ‘country guidance’ cases in ST.  These cases were pivotal in the Adjudicator’s decision but were not known to the applicant. 

73.In the present case, the information/answers given by the applicant were in response to the questionnaires in the Non-refoulement Claim Form or the questions put to him during the oral hearings.  He was fully aware of the content and context.  He was assisted by counsel and must be aware that they would be used by the Director and the Adjudicator.  In the guideline of the ‘Non-refoulement Claim Form’, the applicant was informed that his answers would be the basis of investigation and any false statement or failure to answer might attract adverse inference on his credibility and prejudice his claim.[33]

74.Before turning to the individual inconsistency or adverse comments by the Adjudicator, I like to stress the following. 

75.I accept that the Adjudicator has to assess the claim independently.  That however does not preclude him from using the answers of the applicant during the oral hearings before the Director. 

76.Unlike the interviews before the Director where there are records of interview, there is none for the oral hearing before the Adjudicator.  I do not know the exact questions and answers.  I can only rely on the comment by the Adjudicator in assessing the nature of the inconsistencies.  I do not have the benefit of observing the demeanour of the applicant.  Even if I disagree with the Adjudicator, I would not lightly substitute his opinion with my own unless it is obviously perverse. 

77.I now consider the inconsistencies or adverse comments raised by the Adjudicator as follows:

(i)  Paragraph 18(a)

a  Mr Leung pointed out that just because the applicant did not know the result of the court case, how could the Adjudicator say the applicant was “wholly unreliable and illogical and contradictory”. 

b  The Adjudicator only commented that since the applicant did not know the result of the court case, he could not say the BNP members lodged a false case against his father and uncle. 

c  The applicant set out the detail background of the court case in paragraphs 6—9 of the answer to question 35 of the “Non-refoulement Claim Form” dated 26 May 2014 (‘A35-NRF’).  In paragraph 9, he said the officer of the Forest Department told him in confidence that they received instructions from the “higher authority” of the government to lay the complaint against his father and uncle. It then became apparent that BNP was mastering the forged case as they were dominating the government. 

d  During the interview on 3 July 2014, the applicant was asked about this court case again in questions 20—24.  He said it was still pending.  He guessed BNP was the “higher authority” albeit that the Forestry Department officer did not say so. 

e  I am sure all this information was available to the Adjudicator.  He only doubted why the applicant was so sure that it was a false case when court proceedings were not completed.  There was nothing wrong about the comment given the applicant’s evidence. 

f  The Adjudicator did not say the applicant was “wholly unreliable and illogical and contradictory” because of his stance about the court case.  That phrase was used to describe the overall credibility of the applicant. 

(ii)  Paragraph 18(b)

a  Mr Leung argued that there was no contradiction between answer 11 of the record of interview dated 3 July 2014 (‘1^st interview’) and paragraph 4 of ‘A35-NRF’. 

b  In paragraph 2—5 of ‘A35-NRF’, the applicant said, in gist, that his family was stout supporters of JP.  He used to paste posters, distribute leaflets and solicit votes for the candidates.  The BNP government term would finish in 2006, its members started to stage election activities since 2005 all over the nation.  His family was a target of harassment.  His family was requested to join BNP. 

c  In answer 11 of the 1^st interview, the applicant said his family started to receive harassment from BNP people since 2002. 

d  The basis of the applicant’s claim was that the harassment by BNP members started in 2005 when their term of government approached the end around 2006.  It cannot be 2002.  In fact, there was no evidence about any harassment before the false court case against the applicant’s father and uncle in 2006.  The Adjudicator was right to point out this inconsistency. 

(iii)  Paragraph 18(c)

a  Mr Leung criticised the Adjudicator for failure to inquire how the applicant was mistreated when he said so in the oral hearing.  He should be allowed to explain why he did not mention the mistreatment in paragraph 7 of ‘A35-NRF’ initially. 

b  Mr Leung pointed out that the applicant explained, in his 3^rd affirmation dated 26 June 2015, that he did not mention the mistreatment in his claim form because he did not think it was relevant. 

c  In paragraph 7 of ‘A35-NRF’, the applicant said when the police came to his home to locate his father and uncle about the court case, he told the police that he had no idea and they left. 

d  During the oral hearing before the Adjudicator, when the applicant was asked whether he had been unfairly treated by the police, he said the police mistreated him when they could not find his father and uncle. 

e  The applicant did give contradictory answers as set out above.  The Adjudicator was correct. 

f  Mr Leung urged this court to consider the explanation in paragraph 6(b) of the 3^rd affirmation in which the applicant said the police was aggressive and menacing.  He did not mention it in the NRF because he thought it was not relevant. 

g  The 3^rd affirmation was compiled in anticipation of the present leave application.  It was about 6 months after the oral hearing on 26 June 2015.  There was no explanation as to why the applicant thought it was relevant to mention the mistreatment during the oral hearing.  In fact, the Adjudicator only put a general question not specifically about the court case. 

h  In my view, the content of the 3^rd affirmation is of minimal assistance. 

i  In any event, the applicant was assisted by an officer of the Duty Lawyer Scheme when completing the NRF.  He should have sufficient chances to consult the officer before deciding on the relevance of the mistreatment. 

j  Taking all this into account, I do not think the Adjudicator could be criticised for not making further inquiry. 

(iv)  Paragraph 18(d)

a  Mr Leung criticised the Adjudicator for wrongly finding that answers 45 and 64 of the NRF were inconsistent. 

b  In answer 45 of the NRF, the applicant was asked whether any family members, close friends or colleagues ever been accused, charged, interrogated, arrested, detained or imprisoned in Bangladesh.  The applicant ticked the ‘yes’ box and referred to ‘A35-NRF’ for the details. 

c  In ‘A35-NRF’, he only mentioned that his father and uncle were not granted bail for not answering the summons of the court. 

d  In answer 64 of the NRF, the applicant was asked why his family members did not travel with him.  He explained that he was the only one attacked by the enemies as he was the only son in the family. 

e  I agree with Mr Leung that there seems to be no inconsistency.  The two answers were in response to two different questions.  However, this error is not sufficient to affect the overall assessment of credibility. 

(v)  Paragraph 18(e)

a  At one stage, the applicant had to hide in Dhaka and Rajshahi as his father and family members advised him not to return to his home village.  The Adjudicator found that this advice was hearsay in nature and illogical.  Mr Leung did not understand why this was illogical. 

b  The Adjudicator also commented that the applicant had not elaborated the source of the information.  Mr Leung argued that the Adjudicator should make further inquiry. 

c  In paragraph 16 of ‘A35-NRF’, the applicant first said while in hiding, he maintained contact with his family members who advised him not to return to his home village.  His father learnt about that the BNP people enquiring his whereabouts in the market or bazaar.  His father advised him to flee the country. 

d  In answer 73 of the 1^st interview, the applicant repeated that he heard the BNP people were looking for him while he was staying at Dhaka for 5 months.  However, they could not find him. 

e  During that time, the applicant had travelled to Nepal and India intending to seek asylum.  It was unsuccessful as the people in those countries told him he could not seek asylum there.  He returned to stay in Dhaka.  He encountered no problem.  He wandered around in Dhaka and nothing happened.[34]  

f  The information about BNP people looking for the applicant was hearsay in nature.  The Adjudicator was entitled to put little weight on hearsay. 

g  The applicant did not disclose any detail in the NRF and in the 1^st interview about the enquiries by the BNP people.  He had left and returned to Bangladesh freely during this period.  He encountered no problem in Dhaka and Rajshahi.  The Adjudicator must have read this background information before coming to his conclusion that the fear of the applicant to return to his home village was illogical. 

(vi)  Paragraph 18(f)

a  In answer 25 of the 1^st interview, the applicant was asked about the date of the attack.  He said he could not recall the date because it was evening.  The Adjudicator found this answer incoherent. 

b  Mr Leung pointed out that had the Adjudicator inquired further, the applicant might have clarified the answer as he did in paragraph 6(c) of his 3^rd affirmation—he could not recall the date but it was evening. 

c  The record of the 1^st interview was read over to the applicant by the interpreter.  A copy of the record was given to his legal representative for checking.  The applicant confirmed there was no addition, deletion or amendment.  His legal representative also indicated no further comment.[35]  The applicant had sufficient chances to make amendment. 

d  While answer 25 as recorded appears incoherent, I do not think it should weigh very much against the applicant. 

(vii)  Paragraph 18(g)

a  In answer 62 of the 1^st interview, the applicant said he did not seek assistance from the leaders of the JP as the BNP was in power and he was scared.  Mr Leung argued that the Adjudicator was wrong to find this answer incoherent. 

b  Mr Leung urged this court to consider the explanation in paragraph 6(d) of the 3^rd affirmation.  The applicant said if he reported the matter to the JP, more attention would be attracted to him. Besides, the police were corrupt and would side with the BNP. 

c  This must be assessed in light of the Adjudicator’s finding about the situation in Bangladesh.  The Adjudicator had considered various COI.  He found that the Bangladesh government had taken proactive steps to improve the professionalism of the police, to fight corruption and to establish a fair judicial system.  Bangladesh authorities had shown determination to reform and enhance the responsibilities and duties of police.  The Adjudicator concluded in paragraph 30 of his decision that the applicant could be protected by the police and the court if he wished to do so. 

d  Given the above, the applicant’s perception that the police would side with the BNP would appear invalid to the Adjudicator.  The reason for not seeking assistance from the JP—as the BNP was in power—appears unconvincing too.  I could not say the comment of the Adjudicator was wrong. 

(viii)  Paragraph 18(h)

a  In question 18 of the interview before the Director on 28 July 2014 (2^nd interview), it was pointed out to the applicant that the BNP had lost the elections in 2008 and 2014.  BNP was no longer the ruling party.  There seemed no reason that he was still afraid to return to Bangladesh.  In reply, the applicant said the election in 2014 was not proper elections. 

b  Mr Leung pointed out that according to paragraph 6(e) of the 3^rd affirmation, the applicant explained that the BNP lost the election because they boycotted the election.  There was violence and disturbance orchestrated by the BNP.  The ruling party, Awami league, prohibited opposition parties from promoting their opinions at public gatherings.  This was confirmed in the COI by the UK Home Office[36].

c  Mr Leung argued that the applicant explained that the BNP was still influential despite losing the election.  The applicant said so in answer 19 of the 2^nd interview. 

d  In my view, answers 18 and 19 of the 2^nd interview should be read together. 

e  The COI mentioned above revealed that, after the 2014 election, the Awami League (AL) was the ruling party.  The BNP was still the actual opposition to the government but they boycotted the 2014 election.  As a result, the JP became the current opposition in the parliament[37]. 

f  However, the US Department of State reported in 2013 that “While political affiliation was sometimes a factor in the arrest and prosecution of members of the opposition parties, the government did not prosecute individuals solely for political reasons.[38]  

g  There were also reports that the political activities of the BNP was suppressed and limited to indoor discussions and press conferences.[39] 

h  I accept there are obvious controversies surrounding the 2014 election in Bangladesh.  The fact is the BNP activities has been curbed by the ruling AL.  This contradicts what the applicant said—the BNP was still influential.  I do not accept the applicant’s explanation in the 3^rd affirmation. 

i  The Adjudicator had not considered the COI quoted above.  However, he had considered various COI issued in 2012 and 2013.  He must have read answer 18 of the record of interview on 28 July 2014 before the Director.  He must be aware of the fact that the BNP had lost the election in 2008 and 2014.  The ruling party was AL and its allies since 2008.

j  In my view, the Adjudicator had sufficient information to doubt the applicant’s answers that the BNP was still influential. 

(ix)  Paragraph 18(i)

a  The Adjudicator recalled that when the applicant went to India and Nepal, he had asked the people there about seeking asylum in those countries, he then commented that “there is no reason why he could not ask people in Hong Kong about seeking protection in particular his travel agent told him to go to Hong Kong to seek protection.”  He referred to question and answer 12 of the 2^nd interview. 

b  In question 12, the applicant was asked why didn’t he file torture claim when he stayed in China for 2 days before coming to Hong Kong. 

c  The applicant replied that the agent, who accompanied him to China, suggested that he should not apply in China.  He should apply in Hong Kong.  While in Bangladesh, he already knew that he could seek protection in Hong Kong. 

d  Mr Leung pointed out that he had difficulty in understanding the Adjudicator’s comment in italics above. 

e  I agree that the meaning of the Adjudicator’s comment is not clear at all.  However, I venture to suggest that if the underlined phrase—‘in Hong Kong’—is substituted with the phrase ‘in China’, it would make more sense.  It would also be in context with question 12.  Further, while in Bangladesh he already knew that he could apply for protection in Hong Kong, there seemed to be no need for him to ask the people in Hong Kong again. 

f  In any event, this is a minor point. 

(x)  Paragraph 18(i)

a  The applicant did not apply for protection in the first available opportunity.  He explained that he was scared.  His friends told him that he would be sent back if he contacted the authorities.  The Adjudicator thought this was ridiculous and absurd. 

b  Mr Leung argued that the fear was justified as the success rate of torture claim in Hong Kong was extremely low. He urged this court to accept the explanation in paragraph 6(h) of the 3^rd affirmation.

c  In my view, the success rate is beside the point.  There was no evidence that the applicant knew about it or his friends told him about it. 

d  The applicant had genuine fear of ill treatment as he stated in the NRF.  He left Bangladesh for no other purpose but to seek protection in Hong Kong.  He was led by an agent to come here for that purpose.  He had gone to India and Nepal to explore the possibility of seeking asylum but unsuccessful.  He did not apply in China but waited until he came to Hong Kong.  It is inexplicable that he did not apply in the first available opportunity after entering Hong Kong but chose to believe in his friends’ opinion. 

e  I agree with the comment of the Adjudicator. 

78.Having considered the inconsistencies or adverse comments above, I do not think each of them standing alone or cumulatively would raise the concern of the Adjudicator to hold further oral hearing in addition to the one already held.  In my view, the Adjudicator is entitled to consider the cumulative effect of various inconsistencies and adverse comments in deciding credibility. 

Paragraph 40 of the Adjudicator’s decision

79.In paragraph 40, the Adjudicator rejected ground 5 of the notice of appeal.  The Adjudicator pointed out that ‘serious or otherwise of his injury had been dealt with above.  He (the applicant) had been attacked only once according to his own admission.  To say that he was beaten several times again he lied.’ 

80.Mr Leung argued that the Adjudicator’s comment was unfair as the applicant actually meant that he was beaten several times during the single occasion of attack.  The applicant explained the same in paragraph 6(h) of his 3^rd affirmation. 

81.The applicant wrote under paragraph 5 of the grounds of appeal:

“ The threat from Sattan, Montu, was not lightly. After got powers they became furious, and their target upgrading. They used their powers with police department, started to tortured on my family members (my father and paternal uncle). I were serious injured, they beaten me several time, and I were in luck that still I am alive. Those peoples still powerful in my area. Thanks.”[40]

82.The meaning of the underlined sentence above is not clear.  Whether he was beaten several times in one occasion or he was beaten in several occasions. 

83.In his evidence in support of the claim, the applicant recalled that the attack lasted for 15 minutes and he was seriously injured.  Both the Director and the Adjudicator recited that information in their decisions.[41]  

84.Even assuming that the Adjudicator mistook the meaning of the applicant’s notice of appeal, this was not the basis which he rejected the claim under BORO 3 and Part VIIC.  The Adjudicator acknowledged that the applicant was attacked once in 2006[42].  He rejected the applicant’s claim because the injuries did not satisfy the criterion—minimum level of severity—required under BORO 3.  The injuries did not satisfy the definition of torture under Part VIIC of the Immigration Ordinance. 

85.Neither did the Adjudicator mention this mistaken interpretation in assessing the credibility of the applicant under paragraph 18 of his decision. 

86.Given the above, I do not think this mistake would affect the validity of the Adjudicator’s decision. 

The Karanakaran case[43]

87.Mr Leung argued that in rejecting the credibility of the applicant, the Adjudicator offended the principles laid down in Karanakaran. 

88.Karanakaran is a case on internal relocation.  The appellant (K) was ethnic Tamil from the north of Sri Lanka.  His family was regularly raided by government forces.  K was also harassed by the Liberation Tigers of Tamil Eelam (LTTE) who forced him to join their cause.  He fled the country for fear of persecution.  He applied for asylum in England. 

89.The special adjudicator found that K would be at risk of persecution by the LTTE if he returned to his home town.  However, the special Adjudicator held that it would not be unduly harsh or unreasonable to expect him to relocate to Colombo where he was of no specific interest to the authorities. 

90.On appeal to the Immigration Appeal Tribunal, the appellant adduced 4 expert opinions on the treatment of young Tamils in Colombo to substantiate his ground that relocation to Colombo was unduly harsh. 

91.The Immigration Appeal Tribunal dismissed his appeal.  The Tribunal held that the expert opinions were pure speculations. It was not necessary to decide whether the appropriate standard of proof, for dealing with the issue of internal protection, was the balance of probabilities or a reasonable degree of likelihood.  The appellant appealed to the Court of Appeal. 

92.The appeal raised a question of law as to the correct standard of proof to be applied when deciding the reasonableness of internal relocation. 

93.The Court of Appeal allowed the appeal holding that the proper approach required the decision-making body not to exclude any matters from its consideration when assessing the future unless it felt that they could be safely discarded because it had no real doubt that they did not in fact occur or that they were not currently occurring.  It was wrong for the Tribunal to dismiss the expert opinions as ‘pure speculation’.  It was wrong to exclude matters merely because they were not in themselves enough to satisfy the requisite test.  The Tribunal should not consider the relevant matters in isolation but should consider their cumulative effect. 

94.Karanakaran wasalso cited and considered by the Court of Appeal in TK.  In discussing the principles on internal relocation[44], the CJHC commented:

“  Sixthly, what is the “standard of proof” regarding internal relocation?  Here, the issue is as much a matter of evaluation and conscientious judgment as it is a matter of fact.  There is therefore no “standard of proof” as such applied.  The question is simply whether, taking all relevant matters into account, the return of the claimant would be unreasonable or unduly harsh.  Everything capable of having a bearing on the question is to be taken into account.  The decision-maker may have to take into account the cumulative effect of a whole range of disparate considerations.  In respect of some of these considerations, the decision-maker may be satisfied that they probably did occur or are occurring, while in respect of others, he may only think that there is a serious possibility that what the claimant or his witnesses are saying is correct: Karanakaran, supra,at p 470d‑f; Macdonald & Toal, op cit, at p 851.  An “individualised, holistic assessment” is called for: AH (Sudan) v Secretary of State for the Home Department [2008] AC 678, paras 20, 27‑28.” (emphasis added)[45] 

95.In Karanakaran, the Court of Appeal in England discussed the proper approach in assessing internal relocation.  As shown in the quotation above, the Court of Appeal in TK agreed with that approach. 

96.It is important to note that in assessing the primary facts of a claim, the approach is quite different.  In TK, the CJHC held that in relation to the primary facts comprising the applicant’s story, the burden lay with the applicant to convince the Director and the Adjudicator, subject to the high standards of fairness, that what he said was true.  The standard of proof in relation to the primary facts was the balance of probabilities.[46]

97.In my view, the approach in Karanakaran is not applicable in assessing the credibility of the applicant on the primary facts.  It is for the applicant to prove on the balance of probabilities the facts he claimed.  The Adjudicator is entitled to reject the applicant’s version of fact for failure to satisfy the balance of probabilities.  This of course must be subject to the high standards of fairness. 

98.Having read the decision of the Adjudicator as a whole, I am of the view that he had considered the totality of the background facts asserted by the applicant.  In assessing credibility, the Adjudicator did not rely on isolated incidents but the cumulative effect of various inconsistencies.  I disagree with the criticism of Mr Leung.

99.Given the above analysis, this ground fails. 

Ground 2(B): Illegality/Procedural impropriety: failure to provide adequate reasons in rejecting the applicant’s case under BOR 3 and Risk of persecution. 

100.Mr Leung submitted that there was prima facie evidence to support persecution risk.  The Adjudicator did not give adequate reasons for rejecting the claim under this category. 

101.In my view, persecution under Article 1(A)(2) of the Refugee Convention 1951 is normally related to actions by the state authorities.  In the Adjudicator’s reasons for rejecting the claim—the applicant’s fear of ill treatment was purely a dispute between him and a localized group of people in political context—he implicitly held thatthere was no persecution by the Bangladesh government. 

102.In this respect, the reasons given by the Director were more comprehensive.  In paragraph 75 of his Decision, the Director commented:

“…Though you provided that you were a member of Jatiya Party, you did not hold any official position in the Jatiya Party. You merely attended gathering and rallies of the party to promote its activities and persuaded villagers to become members of the party. You used to paste posters and distributed leaflets so as to solicit votes for the party during election period. Your dispute with a localized group of BNP people, including Sattar and Montu, and their associates, arising from your refusal to leave Jatiya Party and to join BNP, is in fact a private dispute in political context.”

103.The Adjudicator must have read the Director’s Decision.  He was obviously in agreement with the Director. 

104.For claims based on persecution risk, it is essential for the applicant to show that he had a fear of persecution for holding such political opinions not tolerated by the Bangladesh government.  In addition, such opinions must have come to the notice of the government.  There was no such evidence before the Director and the Adjudicator. 

105.This further explains why the Adjudicator held that the applicant’s fear was ‘purely a dispute between him and a localized group of people in political context’. 

106.Having said so, I have not lost sight of the alternative situation that persecution could come from a section of the population.  This occurs when a group commit persecutory acts with no respect to the law of the state.  In addition, the state knowingly failed to provide effective protection to a claimant.  This situation may amount to persecution. 

107.This was not the situation in the applicant’s case.  Apart from the fact that the applicant had not reported the attack to the police, the Adjudicator also found that the police and the court in Bangladesh could provide sufficient protection[47]. Further, the Adjudicator held that internal relocation was viable.  It would not be unduly harsh for the applicant to move to Dhaka or other cities in Bangladesh. 

108.In relation to BOR 3 risk, the Adjudicator commented in these words: ‘there is nothing to suggest that he would sustain any ill-treatment more severe than what he had experienced if expelled.’ 

109.In my view, the Adjudicator meant that the applicant would not suffer ill-treatment more than he alleged in the present case if returned to Bangladesh.  Since the ill-treatment in the present case could not satisfy the criterion of minimum degree of severity, the future ill-treatment, if any, could not satisfy either. 

110.The Adjudicator went on to adopt his reasons in relation to risk of torture and also police protection set out in the analysis of Part VIIC[48]. In addition, the Adjudicator also ruled that internal relocation was always an option.[49]

111.In my view, a fair reading of the Decision of the Adjudicator reveals that sufficient reasons were given. 

Ground 2(C): Illegality/Procedural impropriety: failure to make sufficient inquiry/failure to provide adequate reasons in relation to the country condition of Bangladesh. 

112.Mr Leung criticised the Director for cherry-picking from the reports so that he could arrive at the conclusion that he preferred. 

113.Mr Leung pointed out that the Director failed to consider the following in the COI issued by the UK Home Office 30 September 2012:

a  Paragraphs 7.01—7.02 which mainly commented on the general human rights situation. 

b  Paragraphs 8.12—8.33 which mainly commented on the conduct of security forces and extra judicial killing. 

c  Paragraphs 11.02—11.17 which mainly commented on the judiciary. 

d  Paragraphs 15.07—15.15 which mainly commented on political violence and the conduct of student political groups. 

114.In assessing the country condition, it is important to bear in mind the basis of the applicant’s claim.  The applicant alleged that he was harassed by local BNP members for refusing to join their party.  There was no evidence that he was targeted by the Bangladesh government or its security forces.  Nor was there evidence that there was persecution instigated by the government in general against members of JP. 

115.The applicant did not report the harassment to the police as he thought that it was useless.  They would side with the BNP in his home town.  The key issue for the Director was whether police protection was sufficient given the applicant’s circumstances. 

116.In assessing the adequacy of police protection, the general situation in Bangladesh is certainly relevant as background, however, the Director was entitled to concentrate on comments which are more directly relevant to the police in Bangladesh. 

117.In paragraph 63(a)—(e), the Director did point out the inadequacies of the police in Bangladesh which corroborated the applicant’s claim.  The sources were from the COI by the UK Home Office 2012 and 2013, Country Reports on Human Rights by the US Department of State 2013. 

118.In paragraph 64 of his decision, the Director also considered other parts of those Reports which covered police reform scheme[50], legal aid service[51] and the fight against corruption[52]. Although the Director only specified the key paragraphs, it is reasonable to infer from the range of topics mentioned that he must have read the sections under the respective headings.  The Director found that there were proactive measures taken by the Bangladesh government to improve police professionalism and fight against corruption. 

119.In my view, the following paragraphs supported that conclusion.  In paragraph 8.11 of the COI by UK Home Office 2013, it quoted the Police Reform Program (PRP) Annual Report 2012:

“Priorities for 2013-2014 will include supporting the review process on the draft Police Act; supporting the implementation of the Bangladesh Police Strategic Plan 2012-2014, Institutionalizing the PRP training programmes and incorporating those programmes into the Bangladesh Police training curricula. In recognition of the possible instability associated with the 2013 election, the PRP will focus on greater awareness of human rights issues and accountability within the Bangladesh Police, and continue strengthening police responses to disadvantaged and vulnerable groups through the Model Thana initiative and newly established Victim Support Centres. Finally, the PRP will continue its efforts to promote proactive, intelligence-led policing to implement crime prevention programmes and to increase the use of forensic evidence in investigations.”

120.In paragraph 18.09 of the COI by UK Home Office 2013, it quoted the US State Department Country Report on Human Rights 2012:

“The government took steps to address widespread police corruption. The Inspector general of police continued to implement a new strategy partially funded by international donors, for training police, addressing corruption, and creating a more responsive police force. No assessment of its impact on corruption within the police force was available.”

121.I accept that the situation in Bangladesh was far from satisfactory in various aspects. It was the result of complex historical, social and political issues.  However, none of the reports indicated that there was a breakdown of law and order.  On the contrary, there was a trend of improvement both in police professionalism and the fight against corruption.  Unsatisfactory the situation may be, the Bangladesh government did take steps to improve.  So far as police protection is concerned, the Director had taken a balanced research on the topic. He is entitled to conclude that there was reasonable and sufficient protection. 

122.Mr Leung also criticised the Director for making insufficient inquiry.

123.In relation to the duty to inquire, the CJHC pointed out in TK that the applicant had to conduct his own inquiry or seek assistance from the Director if there was any difficulty:

“In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the Adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”[53]

124.As to the sort of inquiry specific to a case, CJHC commented:

“It is also instructive to imagine what sort of inquiry that the Director can reasonably and realistically be expected to make with the government or regional government of Pakistan…In the absence of specifics, any inquiry by the Director with the Pakistan authority would be most general in nature, and one cannot reasonably expect the Director to obtain any answers other than very general ones.”[54]

125.The applicant was represented all along by counsel and assisted by the Duty Lawyer Scheme.  There was no suggestion of any specific area of inquiry, nor was there any request for assistance.  I do not think the criticism of Mr Leung is justified. 

126.Mr Leung also criticised the Adjudicator for failure to conduct independent inquiry and merely adopted the Director’s findings in the respective COI.  This was not the correct approach of rehearing the claim. 

127.In my view, in a rehearing of the claim, the Adjudicator considers the papers submitted by the Director.  He may hold an oral hearing if circumstances warrant.  He may conduct additional inquiry depending on circumstances.  He then arrives at an independent judgment based on all the evidence. 

128.I entirely agree with the comment of McWalters J[55] in AM v Director of Immigration[56].  His Lordships said:

“ A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses…The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. The process starts with the Adjudicator being provided with all the papers that were before the Assessor (Director) at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called. If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim. This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.” (emphasis added)

129.There is no positive duty to conduct independent inquiry as Mr Leung suggested.  It depends on individual case and the issues involved.  This must be the case as a rehearing by the Adjudicator can be just on papers.  The Adjudicator is entitled to consider the information contained in the papers from the Director.  He then comes to his own conclusion. 

130.The applicant did not indicate any specific area of inquiry.  He made no request for assistance.  Given the issues in the present claim, it is sufficient for the Adjudicator to consider the various COI referred to by the Director. 

131.Mr Leung also criticised the Adjudicator for not indicating the sources of information in paragraphs 29(e) and (f) of his decision.  It is an unfortunate omission by the Adjudicator.  However, a careful reading of the Adjudicator’s decision leaves me in no doubt that he must be endorsing paragraphs 64(d)—64(f) of the Director’s decision.  The Adjudicator was entitled to do this in a rehearing. 

132.Given the above, I do not find this ground reasonably arguable. 

Ground 2(D): Illegality/Procedural impropriety: failure to make sufficient inquiry/failure to provide adequate reasons in relation to internal relocation. 

133.Mr Leung complained that the Director and the Adjudicator failed to look at the issue of relocation in greater depth.  They just concentrated on the fact that the applicant was safe while staying in Rangpur and Dhaka. 

134.How much inquiry should be made, depends on individual cases.  The approach should be:

(i)  Subject to the high standards of fairness, the burden is on the applicant to prove the primary facts and convince the Director and the Adjudicator that what he said was true on the balance of probabilities. 

(ii)  The Director and the Adjudicator may have a duty to obtain information about the country conditions depending on the issues in dispute. 

(iii)  The applicant is expected to conduct his own investigation and obtain information essential to prove his case especially when he was represented. 

(iv)  There may not be a duty to keep probing where the applicant are aware of his burden and has sufficient chances to make representation and produce documents.[57]  

135.Mr Leung pointed out that The Country Information and Guidance Report by the UK Home Office (CIG) supported his argument.  He cited paragraphs 2.3.1 and 2.4.2. 

136.Under the section entitled ‘The political situation since 2014 parliamentary elections’, paragraph 2.3.1 mentioned that JP had 34 seats and led the current opposition in the parliament.  This situation was only because the BNP boycotted the January 2014 election after its demand, for a neutral government to oversee the election, was not met. 

137.However, in the following paragraphs 2.3.2—2.3.6, there were reports from various sources as follows:

a  There were no notable activities since the establishment of the BNP-Jamaat alliance;

b  BNP members were charged for taking part in demonstration against the government and Awami League;

c  BNP activities were mainly limited to indoor discussion and press conferences;

d  The leader of BNP, Mr Khaleda Zia, was blocked from leaving office and held for his own security. 

e  Two senior BNP members and 400 party supporters were arrested. 

138.My reading of this section of the CIG indicated that BNP activities were curbed by the government.  This contradicted what the applicant said the BNP was still influential after the 2014 election. 

139.Under the section entitled ‘Treatment of government critics and political violence’, paragraph 2.4.2 mentioned that there was deplorable violence leading up to the January 2014 election.  The ensuing paragraphs also cited reports from various sources revealing the violence before and during the January 2014 election. 

140.Similarly, the Human Right Watch Reports 2014 corroborated the violence organised by the BNP leading up to the January election.  However, as pointed out above, the BNP activities were gradually curbed after the 2014 election. 

141.I note that the CIG posed an interesting question in paragraph 1.3.13—Is a political opponent able to internally relocate within Bangladesh to escape the risk (of ill treatment)?  

142.The answer is succinctly put in paragraph 1.4: ‘Internal relocation to another area of Bangladesh may be an option but will depend on the nature and origin of the threat as well as the personal circumstances of the person.  In cases based on fear of ill-treatment by members of opposing political parties or in fear of opposing factions within their own party the threat may be localised and the person may be able to relocate to an area where that localised threat does not exist as long as it is not unduly harsh to expect him to do so.’ 

143.These findings support the conclusion of the Director and the Adjudicator.  Internal relocation was viable given the background of this claim and the personal circumstances of the applicant. 

144.In my view, the Director and the Adjudicator could not be criticised for considering that the applicant was safe in Rangpur and Dhaka.  He was not targeted by the government.  He was able to depart and return to Bangladesh freely.  The BNP attackers were local bullies with no intention to pursue the applicant. 

145.As to answer 73 of the 1^st interview that the applicant heard BNP members were looking for him, I have dealt with that in paragraph 77(v) above.  I do not repeat. 

146.In my view, this ground also fails. 

Ground 3: Illegality: failing to take into account relevant considerations/ taking into account irrelevant considerations

147.In paragraph 78 of his decision, the Director concluded that the applicant had not satisfied the definition of torture.  In support of this conclusion, the Director relied on the fact that the applicant could leave Bangladesh freely. Mr Leung criticised that this fact was irrelevant to the extended form of acquiescence. 

148.In emphasizing that the applicant could freely leave Bangladesh, the Director pointed out that the applicant was not targeted by the government.  This fact, according to the Director, supported the conclusion that the actions of the attacker ‘was not inflicted by or at the instigation of or with the consent or acquiescence of the Bangladesh government… within the definition of torture under section 37U(1) of the Ordinance.’ 

149.In relation to extended form of acquiescence, the Director set out his conclusion in paragraph 64(g) of his decision in these words after considering various COI:

“…All these point to the direction that, you would be given the same protection by the Court and the Bangladesh police should you wish to seek assistance from the government authority upon your return. Although you stated that the Bangladesh police themselves were not secure and they were injured when suppressing a general strike called by BNP, it does not necessarily mean that the Bangladesh police is/will not capable of combating the impropriety acts committed by the protesters/demonstrators. As such, it is not accepted that the Bangladesh government was, is or will be unwilling and unable to provide reasonable and sufficient state protection against your perceived risk of harm from Sattar and Montu.”

150.I disagree with the criticism of Mr Leung. 

Ground 4: Irrationality: no sufficient basis in support of the conclusion that the applicant would face no risk of torture, CIDTP or persecution if returned to Bangladesh

151.This ground repeated all previous grounds.  I have analysed each of them already.  I do not think the conclusion of the Director and the Adjudicator was irrational. 

Conclusion

152.Having considered the above, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review. 

Mr Andrew CY Leung, instructed by John M Pickavant & Co, assigned by Director of Legal Aid, for the applicant