Ns v. Director of Immigration and Another

HCAL 26/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2016

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J U D G M E N T

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I.  INTRODUCTION

1.This is an application for leave to apply for judicial review pursuant to Form 86 filed on 28 January 2016 (“Form 86”) against the following decisions:

(a)   the decision of the Director of Immigration (“DOI”) made on 24 November 2014 refusing the application  by the applicant (“NS”) for non-refoulement protection (“DOI Decision”); and

(b)   the decision by a member of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) made on 18 January 2016 dismissing NS’ petition and confirming the DOI Decision.

II.  NS’ CLAIM

2.NS claimed he escaped to Hong Kong in fear that if he returned to Bangladesh he would be harmed or killed by a group of notorious gangsters in his home village who were supporters of Bangladesh Nationalist Party (“BNP”) since he failed to pay them extortion money upon their request.

3.NS is a native of Bangladesh, and was born in District M in Bangladesh on 1 February 1976. He is single. His parents and 3 sisters lived in Bangladesh whilst his 2 brothers lived in Saudi Arabia and France respectively. He was educated in Bangladesh up to Class 5 (primary level). From 1990-2004, NS was unemployed, but in 2004 he started a business in potatoes trading in Dhaka with his fellow villager SI (“Business”). In 2002, 2005 and 2006 he was accused of murder, but they were unrelated to his non-refoulement claim.

4.The Business was good at the beginning. But at midnight on 13 June 2006 when NS and SI were on their way from Dhaka to their village, they were intercepted / attacked by 5 named fellow villagers who were notorious gangsters (“Group”) and also supporters of the BNP being the ruling party of Bangladesh at the material time. The Group said the Business was doing well, and demanded payment of 500,000 Taka. NS and SI replied that the Business was not good and they did not have so much money, but the Group threatened to kill them if they failed to make payment. NS and SI did not report to the police because they thought it would be worse for them if the Group learned they had made such report. 10 days passed in which NS and SI did not approach the Group, but neither did the Group approach them to demand for payment.

5.On 27 June 2006 at about 1:00am, whilst NS and SI were on their way home as usual, the Group confronted them and asked why they did not make payment. They explained they had no money, and in the ensuing argument one of the Group RK threatened SI that he would be killed if he did not make payment. SI replied “if you want to kill us, do it”, and RK took out a pistol and shot SI in the stomach. SI died at the scene. The Group told NS that if he did not pay they would kill him too. NS was afraid and asked for 2-3 days to arrange payment.

6.NS then went on foot to make a report at the police station. The police officers made some notes, but NS’ statement was not officially registered. NS brought 2 police officers to the scene where he left SI’s body. Whilst on the way he told his brother to inform SI’s family. NS’ brother informed their father (“Father”) and SI’s family. When NS and the 2 police officers arrived at the scene, the Father and SI’s family members were there.

7.During the screening interviews on 2 September and 28 October 2014 (“Interviews”), NS said the Father asked him to leave the scene because SI’s family also came to the scene and the Father was afraid that NS’ name could get involved in the incident. But when NS gave evidence before the Adjudicator, he said that was a mistake. The Adjudicator invited NS to explain. NS said (a) when he was on the way to the police station he informed the Father of the incident, (b) when he and the police officers reached the scene SI’s family members were also there, and (c) “[it] was [SI’s] family members who told [the Father] that [NS] had gone to the police station after killing [SI] for money”. The Adjudicator invited NS to explain why he did not mention this in his Non-refoulement Claim Form dated 17 June 2014 (“NCF”), and NS said he intended to mention it but he missed it because of the confusion.

8.NS heeded the Father’s advice and returned home. He then decided he should make a report of the shooting to the Chairman of the Union Council of the area (“Chairman”).  Early the following day, NS went to the home of the Chairman and told him of the shooting incident. The Chairman said he would look into the matter, and advised NS to leave the village to avoid getting into trouble with the Group.

9.On the Chairman’s advice, NS left for Bogra the following day to stay with his cousin sister until August 2006. One day when NS was standing outside the shop of the husband of his cousin sister, he was confronted by 1 of the Group members NAD and 10-12 unknown men (collectively, “NAD Group”). In the NCF, NS suggested the NAD Group was probably from Bogra because he had never seen them before, and he thought they must have been BNP members otherwise NAD would not have been able to locate his whereabouts.

10.The NAD Group accused NS of making a report of SI’s death to the police, and of escaping to Bogra to avoid paying them. They threatened to kill him if he did not pay the money. NS assured the NAD Group he would pay the money within 1-2 days on his return to the village. The NAD Group accepted such assurance and left. NS did not report these threats to the police as he thought the NAD Group would bribe the police to work for them.

11.As NS had no intention to pay and felt he was unsafe in Bogra, he went to Chittagong to stay with his friend (“Friend”) for 15 days. The Friend advised NS to return to his home village to face the problem as he could not hide forever. When NS returned home, he sought the assistance of the Chairman who told NS he could not fight against the Group who were powerful / influential, and suggested NS to leave Bangladesh for somewhere far away to protect himself. The Father agreed with such advice, so NS asked the Friend to make arrangements through an agent who lived in Dhaka (“Agent”). The final destination of NS’ trip was Korea since there were many Bangladeshi living there, and NS thought he could stay with them.

12.NS was not approached by the Group during his stay in his home village, but he was always tense as he was afraid they would come to his home at any time without warning.

13.NS returned to Chittagong to meet the Friend, and then went to Dhaka to look for the Agent to arrange his air ticket and PRC visa. NS paid the Agent 92,000 Taka. NS returned to and stayed at Chittagong to wait for the Agent’s notification. On 10 November 2006, NS departed Bangladesh for Hong Kong via Singapore. He did not encounter any problem upon his departure.

14.On 11 November 2006, NS arrived in Hong Kong. On 20 November 2006, NS made a side trip to Mainland China for extending his stay in Hong Kong. On 23 November 2006, NS returned to Hong Kong and was permitted to remain as visitor until 7 December 2006. NS claimed that during his stay in Hong Kong, his agent disappeared and took away his passport, so he was unable to go to Korea as planned.

15.Since 8 December 2006, NS overstayed in Hong Kong. In January 2007, NS approached UNHCR’s office in Hong Kong and claimed to be “N” born on 10 August 1976. During the Interviews, NS explained he had previously provided incorrect personal information in making his refugee status application since he was scared at the time and was advised by his friend to do so.

16.On 14 June 2007, NS was arrested by the police for overstaying in Hong Kong. On 16 June 2007, he was referred to the DOI for processing. On 23 July 2007, NS was released on recognizance. On 28 September 2007, NS’ refugee status application was closed.

III.  PROCEDURAL HISTORY

17.NS by written representation dated 14 October 2008 made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment that he would be subjected to torture in Bangladesh if he were to be returned there. Upon commencement of the unified screening system (“USM”) on 3 March 2014, NS’ claim was taken to be a non-refoulement claim, and was assessed under the USM then in place.

18.On 17 June 2014, NS submitted his NCF. The Interviews were conducted on 2 September and 28 October 2014.  In completing such NCF and during such Interviews, NS was assisted / advised by the Duty Lawyer Service (“DLS”).

19.NS’ non-refoulement claim was considered on all applicable grounds under the USM including:

(a)   risk of torture under Part VIIC of the Immigration Ordinance Cap 115 (“Ordinance”) (“Torture Risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 of the Hong Kong Bill of Rights and section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BOR3 Risk”);

(c)   risk of persecution with reference the non-refoulement principle contained in article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

20.When NS’ application was dealt with by the DOI, he was legally represented. By a Notice of Decision dated 24 November 2014, the DOI rejected NS’ claim. On 4 December 2014, he appealed / petitioned against the DOI Decision. The appeal / petition was dealt with by the Adjudicator by way of oral hearing. NS gave oral evidence at the Hearing, and was questioned by the Adjudicator and the DOI’s representative. By the Adjudicator Decision dated 18 January 2016, the Adjudicator dismissed the appeal / petition, and confirmed the DOI Decision.

21.On 28 January 2016, NS filed Form 86 for leave to apply for judicial review. On 2 February 2016, the Director of Legal Aid (“DLA”) filed Memorandum of Notification of an Application for Legal Aid (“Memorandum”) giving notice that NS had made application for legal aid. On 18 March 2016, DLA refused NS legal aid. On 3 May 2016, DLA filed another Memorandum giving notice that NS had made another application for legal aid. On 1 September 2016, DLA again refused NS legal aid.

22.The hearing of NS’ application for leave to apply for judicial review came before me on 8 September 2016 (“Hearing”). NS was not legally represented. NS adopted all the information contained in the NCF, records of the Interviews, and other document he submitted.

IV.  BASIS FOR NS’ NON-REFOULEMENT CLAIM

23.NS claimed that in 2009 he was informed by his family that the Group and 2 other persons had killed some influential people. Some of them were sentenced to life imprisonment and others were sentenced to 6-7 years’ imprisonment. But they were all released within a year, which NS claimed must have been done with the help of the police.

24.NS said when he arrived in Hong Kong, the Father informed him by telephone that the situation would be worse for him if he were to return to Bangladesh then because the Group had gained even more power, and would even snatch money from people and harm them whenever they wanted without being subject to legal consequences.

25.Further, although the then ruling party in Bangladesh was the Awami League (“AL”), it did not make any difference to the Group’s practice. AL was re-elected as the BNP boycotted the election, but members of the BNP were taking advantage of this chaos to extort money from people and harm them to show their power. NS was unaware of any action taken by the police following his report of SI’s murder.

26.NS also claimed it was impossible for him to relocate to anywhere of Bangladesh. He tried moving to Bogra, but the Group located his whereabouts. Members of the BNP were scattered all over Bangladesh, so no matter where he would go, it would be difficult for him to avoid them.

V.  FINDINGS BY THE ADJUDICATOR

27.The Adjudicator considered that much of NS’ case was based on speculation and hearsay. He accepted that such evidence was not inadmissible, but the weight to be attached to such evidence was by its nature reduced.  He also said speculation or theory could not support NS’ case. In the Adjudicator’s view, NS lacked credibility.

28.NS in the NCF referred to the confrontation in Bogra when he was threatened by the NAD Group, but the NAD Group was satisfied with NS’ assurance that he would pay the money demanded within 1-2 days and left the scene. NS did not mention in the NCF he had been assaulted by the NAD Group, and this was echoed in the records of the Interviews. But at the hearing before the Adjudicator, when NS was asked about the date of that encounter at Bogra, he said he could not remember and went on to say he was “badly beaten, knifed on [his] hand and lower stomach”. He also claimed he was “knifed on [his] right wrist and slashed with a razor on [his] right lower stomach and on his [right] foot they struck with a chopper”, and when his attackers left he was bleeding profusely and passer-bys took him to a nearby pharmacy shop to stop the bleeding before he was taken to Dhaka Medical College Hospital by his cousin sister’s husband. NS further claimed he was hospitalised for 5 days, it took 1 month for him to fully recover from his injuries, and after discharge from hospital he “consulted a doctor from time to time – even in Hong Kong”, but he did not produce any medical report/document to support these assertions.

29.The Adjudicator noted NS did not previously mention such attack despite the nature of the attack and the seriousness of his injuries. NS claimed he hid this incident during the Interviews because “[he] had made up [his] mind to keep this incident a secret”. He claimed to be afraid that if it became known and the information got back to his country of origin, then it would more serious for him.

30.The Adjudicator noted, however, that NS claimed (a) he visited the Chairman after discharge from the hospital and showed the Chairman his scars and “told him everything in detail”, and (b) he disclosed details of the attack to his Bangladeshi friend in Hong Kong before showing him the hearing bundle (for the hearing before the Adjudicator). The Adjudicator invited NS to explain. NS agreed (i) he informed both the Chairman and his Bangladeshi friend in Hong Kong before he completed the NCF, (ii) he was informed before the Interviews that any information he provided in support of his claim would be kept confidential, (iii) he was advised by the DLS before each Interview, and (iv) the contents of each Interview was read over to him.  Nevertheless, NS claimed he was still afraid to disclose details of the attack.  At one point he said it did not cross his mind to seek advice from the DLS, but at another point he said he was afraid that if he told the duty lawyer he would have to mention the attack at the Interviews. NS further said he took the hearing bundle (for the hearing before the Adjudicator) to his friend in Hong Kong who read and understood English and “knew all the incidents [NS] had been through in Bangladesh since [NS] had told him on earlier occasions”, and this friend told NS to “speak out everything” including the details of the attack at the hearing. NS claimed that but for such advice, he would not have disclosed the attack incident even to the Adjudicator.

31.The Adjudicator noted NS mentioned the details of the attack on him in Bogra for the first time at the hearing, and yet NS had told the Chairman about it even before he left Bangladesh, and NS also gave the same details to his Bangladeshi friend in Hong Kong before he received the hearing bundle. The Adjudicator found NS’ explanation for his failure to mention the attack incident before the hearing (ie for fear that information about the incident would get back to Bangladesh and thereby make matters more serious for him) to be “implausible, unrealistic and unconvincing”, which “greatly damages [NS’] credibility in general”.

32.The Adjudicator also found NS to be prone to exaggeration. The Adjudicator noted NS mentioned in the NCF that previously he had been accused by the police of murder in 2002, 2005 and 2006, but he clarified at the hearing before the Adjudicator that his name was merely mentioned along with many others by families of the victims as suspects. The Adjudicator found NS’ assertion in the NCF to be an exaggeration of the true position, which further damaged his credibility. NS was not arrested or questioned by the police in relation to these matters. The Adjudicator concluded he was unable to place weight on NS’ assertions in this respect.

33.The Adjudicator also considered the document from the Chairman that NS submitted (“Chairman Testimony”), but noted it was dated a year after NS left Bangladesh (ie 8 October 2007) and its contents were hearsay. The Adjudicator also doubted the authenticity of such document as NS claimed he telephoned the Chairman who volunteered to provide the Chairman Testimony, and the Adjudicator could not place any weight on it in view of his negative findings in relation to NS’ credibility.

34.The Adjudicator accepted that only a very low standard of proof was required of NS, but he concluded that in all the circumstances he was unable to place any weight on the evidence of NS (that lacked credibility or reliability) as to the facts which NS claimed were within his knowledge. The Adjudicator was not persuaded NS was (a) confronted by any person or group or any extortion demand was made of him as he asserted or at all, and/or (b) confronted by any person or group in Bogra or he was threatened or attacked and injured in Bogra as he asserted or at all.

35.As regards NS’ assertion of future risk (ie that his life would be in danger and he would be harmed/killed by the NAD Group because he failed to pay the money they demanded), the Adjudicator again reminded himself of the low standard that was applicable, but concluded that even on such basis NS was unable to persuade him on the totality of the evidence he would face any risk of ill-treatment at the hands of the NAD Group or at all were he to be refouled to Bangladesh.

36.The Adjudicator found NS’ following account to be hearsay and speculative such that he could not place weight: (a) (as the Father informed him) the NAD Group became bigger and more powerful, and was joined by other gangsters, and (b) he would not be able to avoid the problem by relocating elsewhere in Bangladesh because BNP members were scattered all over the country and it would be difficult for him to avoid them.

37.As regards the Torture Risk, the Adjudicator found NS had not established that he experienced any ill-treatment in the past, so he was not subjected to ill-treatment which would have amounted to torture as defined in section 37U of the Ordinance. The Adjudicator also concluded that on the totality of the evidence NS had not established, even to the low standard required, there were substantial grounds for believing he would face risk of ill-treatment or be subjected to torture were he to be refouled to Bangladesh.

38.As regards BOR3 Risk, for the same reasons, the Adjudicator was not persuaded, even to the low standard applicable, that NS would be subjected to the ill-treatment contemplated in BOR3 or any ill-treatment at all were he to be refouled to Bangladesh.

39.As regards the Persecution Risk, on the totality of the evidence, the Adjudicator again found NS had not established, even to the low standard required, that there was a real chance he would suffer ill-treatment of any sort or any persecution were he to be refouled to Bangladesh. Similarly, the Adjudicator found NS had not established any feared ill-treatment would be inflicted for a convention reason. For these reasons, the Adjudicator concluded NS failed to establish his fear of persecution was well-founded.

40.For the aforesaid reasons, the Adjudicator dismissed NS’ claim for non-refoulement protection, and confirmed the DOI Decision.

VI.  RELIEFS SOUGHT

41.If leave to apply for judicial review were granted, NS would seek inter alia the following reliefs under judicial review:

(a)   an order of certeriori to bring up and quash the DOI and Adjudicator Decisions;

(b)   such further or other remedy, relief or order as may be just and expedient in the circumstances.

VII.  INTENDED GROUNDS OF REVIEW

42.In the Form 86, NS sought leave to apply for judicial review on the grounds of (a) procedural impropriety, (b) error/misdirection in law, and (c) illegality/irrationality.

43.On the ground of procedural impropriety, NS claimed the DOI and Adjudicator:

(a)   failed to “properly apply paragraph 2 of general comment no 2 of the UN Committee Against Torture concerning the requirements that states must effect reforms and avenues of redress which are “effective” in any event, viz discharge of the Central Government’s duty of due diligence;

(b)   failed to take into account the concept of extended state acquiescence as expounded by Lam J (as he then was) in TK v Michael C Jenkins Esq & anor (“TK(CFI)”);[1]

(c)   failed to conduct sufficient independent inquiries into the relevant country of origin information/conditions (“COI”) including without limitation: (i) failing to conduct a critical analysis of the relevant COI material, (ii) failing to provide any justification as to why the COI material in support of their conclusions should be preferred, and (iii) cherry-picking COI material in arriving at their respective decisions.

44.On the ground of error/misdirection in law, NS claimed the DOI’s and Adjudicator’s assessment of harm was limited to physical injuries, and they failed to consider the psychological harm which befell NS as a result of the facts stipulated in his claim.

45.On the ground of illegality/irrationality, NS claimed the DOI (a) failed to take into account relevant considerations, including but not limited to the fact that he made a report to the police concerning the fatal shooting of SI which was met by apparent inaction, and (b) took into account irrelevant considerations, including but not limited to the fact NS was able to leave Bangladesh without incident.

46.On 28 January 2016, NS filed his supporting affirmation (“NS Aff”) by exhibiting inter alia the DOI and Adjudicator Decisions thereto, and confirmed his intention to seek leave to apply for judicial review. He essentially repeated his factual allegations which both the DOI and Adjudicator had been made aware of and considered. At the Hearing, NS confirmed he relied on the matters and grounds set out in Form 86 and NS Aff.

VIII.  LEGAL PRINCIPLES

47.Judicial review is not a further/alternative appeal procedure.  In the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar,[2] and (c) whether the substantive decision satisfied the enhanced Wednesbury[3] test.[4]In a leave application, the applicant must show his/her intended grounds in support of the intended judicial review are reasonably arguable with a realistic prospect of success.[5]

IX.  DISCUSSION

(a)  COI

48.In Prabakar, Li CJ commented on what high standards of fairness require in relation to torture claims:

“...... (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary...... (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”[6]

49.What will satisfy the requirement of high standards of fairness would inevitably vary from case to case.[7] It was said in Prabakar that it would not be appropriate for the Secretary for Security to sit back and put the applicant to strict proof, but instead he should draw the applicant’s attention to issues which obviously required clarification/elaboration and/or instances where it was readily apparent that something had gone amiss.[8] After all, the exercise for determining the claim was a “joint endeavour”.[9] This approach recognised that an applicant might be disadvantaged in presenting to the DOI information / materials he might need to establish his claim or the DOI might need to process it,[10] and depending on the facts and issues raised in a case, high standards of fairness might require the DOI to conduct investigation and obtain relevant information and materials on general country conditions.[11]

50.But there would be limits to what high standards of fairness would require of the DOI. The Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. But like the applicant in TK v Jenkins & anor (“TK(CA)”),[12] NS here was represented and assisted by the DLS. In TK(CA), Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”.[13] High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the DOI to disprove it.[14] “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim.

Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [DOI] to process it.”[15] If the applicant and his legal representatives had not seen fit to obtain and supply such information to the DOI, high standards of fairness would not require the DOI to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.[16]

51.McWalters J (as he then was) in AM v Director of Immigration & anor[17] reiterated the separate roles played by the applicant and the DOI in the “joint endeavour”. The claim was that of the applicant who bore the ultimate responsibility for it throughout the processing of it. The burden of proof always remained on the applicant being the person claiming protection from refoulement.[18] On the other hand, the DOI had a reactive role, which was “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [DOI’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.[19]

52.Here, the complaint was that the DOI should have delved more deeply by conducting independent inquiries into and critical analysis of the COI material. In my view, the extent to which the DOI had to research into the COI material depended on how NS framed his claim. The relevant enquiry here was focused on the elements of state involvement / acquiescence and the consideration of internal relocation.

53.In the DOI Decision, the DOI was acutely aware of NS’ alleged fear of inadequate protection from the Bangladeshi police / government.[20] In paragraphs 4 and 15 of the DOI Decision, the DOI referred to “relevant [COI] relating to this claim” listed in the appendix thereto, and quoted extensively from materials stated in the COI.

54.On the matter of state protection, the DOI considered the available COI that appeared to corroborate NS’ assertions, that showed reforms had been and were on-going in Bangladesh with objective indications of positive results in recent years, and that revealed other avenues to seek justice in Bangladesh before (a) coming to the view there was nothing to show that the Bangladeshi police / government was, is or will be unwilling or unable to exercise its power to provide reasonable protection to NS as she would do to other citizens, and (b) declining to accept that reasonable state protection could not be readily available to NS upon his return to Bangladesh. On the matter of internal relocation, the DOI noted internal relocation was permissible under Bangladeshi law and considered the size and population of the country[21] before coming to the assessment that internal relocation alternative was available.

55.NS was legally represented when he made his non-refoulement claim under the USM, so he was in the best position to understand how he was to present his claim, and to know what materials would assist him in establishing his case. In this regard, I bear in mind the observations that had fallen from the Court of Appeal in Re MI:[22]

“42. Before leaving this appeal we wish to observe that the common complaint of CAT claimants during the judicial review process is that neither the [DOI] nor the Adjudicator properly understood the basis of the applicant’s claim or that they had failed to have regard, or sufficient regard, to country materials. Lawyers for the claimant then set out in some detail in the Form 86 the legal basis of the applicant’s claim, the legal principles applicable to it and the country materials to which the Director and Adjudicator should have had, but didn’t have, regard. We find this extraordinary given that the courts have repeatedly said that the processing of the applicant’s CAT claim should be one of joint endeavour.

43. The process of joint endeavour is exactly what it says, a process in which the applicant, his legal representative and the [DOI] work together. The [DOI] should not hesitate to involve the applicant and his legal representative in assisting him to better understand the nature and basis of the claim. There is much less room for misunderstanding and complaint when the [DOI] has shown he understands clearly the basis of the applicant’s claim and has had regard to the materials on which the applicant relies.

44. We see no reason why the [DOI] should not require from the applicant’s legal representative, if he has one, a statement of the legal basis of the applicant’s claim, how the requirements of the CAT are met and, where relevant, the country materials on which the applicant relies.  Where the applicant’s claim is based on the extended concept of State acquiescence, the lawyer could be required to explain how it is said there has been a failure of due diligence by the State and how such a failure would subject the applicant to the risk of torture. These comments are just as applicable to the petition stage of the proceedings should the applicant be legally represented at that stage.”

56.Here, NS submitted (a) Country Report on Human Rights Practices of Bangladesh 2013 (issued by the US Department of State), (b) Country of Origin Information Report of Bangladesh (issued on 31 August 2013 by UK Border Agency), and (c) the Chairman Testimony dated 8 October 2007. As evident from paragraphs 35-36 of the DOI Decision, the DOI took into account and gave consideration to the nature of these documents and the issues which they were intended to support.

57.The DOI noted documents (a)-(b) above only reflected the general human rights situation in Bangladesh which had no direct relevance to NS’ personal claim or specific case. It is settled that the existence of a pattern of violations of human rights in a country does not by itself constitute a sufficient ground for determining that a person will be at risk of torture or CIDTP upon his return to that country. There must be additional grounds indicating the individual concerned will be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture and/or CIDTP.[23] As Au J explained in ST v Betty Kwan & ors,

“The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.”[24]

As the DOI explained, a government striving to deal with problems could not be said to be acquiescing in impermissible acts, and the picture presented by the COI material cited was not one showing the Bangladeshi government’s indifference to or inaction in respect of the unsatisfactory social conditions. Further, the fact that the Bangladeshi government’s efforts were not wholly effective did not of itself mean she was de facto permitting such problems to take place so as to facilitate and enable those perpetrating the problems to do so with impunity. The DOI further noted that even if the contents of document (c) above were true, they would only appear consistent with NS’ account of the events, but would not support his assertions of the Torture, BOR3 and Persecution Risks that he claimed he would face if returned to Bangladesh.

58.It was plain from the above that NS had no difficulty in urging the DOI to consider particular COI material. If he wanted the DOI to consider any further materials, it was for him to request that be done. But there was no indication he made any additional request to the DOI for further enquiry. In my view, the DOI demonstrated due consideration had been given to the COI material. Moreover, the Form 86, NS Aff and/or NS’ oral submissions did not elicit and/or explain how (a) the DOI cherry-picked the available COI material, (b) what parts of the available COI material the DOI relied on was of little/no relevance or outdated and/or (c) what other COI material that the DOI could have considered and how they would have affected the DOI Decision. In my view, the DOI had demonstrated a sufficient degree of balance in his approach, and had given reasons for his views on the available COI material, which reasons could not be said to be inadequate. The criticisms discussed in AM on unqualified favourable conclusions despite inconsistent information[25] could not be properly raised here against the DOI.

59.Further, the DOI had considered NS’ case based on factual matters, and the COI aspect was considered together with and in light of the findings made in relation to such other matters in concluding that the level of harm from NS’ enemies upon his return to Bangladesh would be low. Such other matters included assessment of NS’ factual assertions set out paragraphs 14, 16, 20-22 and 25 in the DOI Decision.

60.As for the Adjudicator Decision, the Adjudicator found against NS on overall credibility and reliability of his complaint, so there was no case of NS being personally at risk of torture or CIDTP. Thus there was no duty on the Adjudicator to go further into the question of state acquiescence or internal relocation, and for that purpose to consider the COI material. Indeed, Lam J in TK(CFI) said paragraph 67 that:

“If the Adjudicator were of the view that E’s perception of threat from D was unreal and the Applicant would be safe to return to A irrespective of the position of the State, he would not need to consider the question of State acquiescence at para.32.”

61.In my view, it was not a situation that intervention by judicial review was called for.

(b)  Psychological harm

62.It was alleged that both the DOI and Adjudicator failed to consider the psychological harm that befell NS as result of the facts stipulated in his claim. In my view, this ground is not reasonably arguable. The DOI at paragraph 31 of the DOI Decision expressly referred to the “torture” definition under section 37U(1) of the Ordinance (which included mental suffering), and at paragraphs 23-24 of the DOI Decision expressly referred to the BOR3 Risk which concerned “ill treatment (physical and/or mental suffering)”. The Adjudicator also expressly referred to the “torture” definition and BOR3 Risk in paragraphs 6 and 9-10 of the Adjudicator Decision.

63.However, the DOI rejected NS’ factual case as being unreliable and assessed the risk of harm to NS if he returned to Bangladesh to be low (see paragraphs 14, 25, 28-29 and 32-33 of the DOI Decision). Likewise, the Adjudicator Decision (as summarised in Part V above) also concluded that NS’ factual account was unreliable, and the Adjudicator was not persuaded (a) NS was confronted by any person or group or that any extortion demand was made of him as he asserted or at all, (b) NS was confronted by any person or group in Bogra or that he was threatened or attacked and injured in Bogra as he asserted or at all and/or (c) NS would face any risk of ill-treatment at the hands of the NAD Group or at all were he to be refouled to Bangladesh.

64.By reason of the above, the DOI and/or Adjudicator could not be faulted for not finding for NS in relation to any psychiatric harm or mental suffering.

(c)  Due diligence and extended meaning of state acquiesence

65.NS complained that the DOI and Adjudicator failed to take into account the concept of extended state acquiescence and failed to properly apply “paragraph 2 of general comment no 2 of the UN Committee Against Torture concerning the requirements that states must effect reforms and avenues of redress which are “effective” in any event, viz discharge of the Central Government’s Duty of due diligence”. No particulars were given, but I assume this included a complaint that the Bangladeshi government was aware of the seriousness of corruption problem in the police force and the activities of BNP supporters but did not exercise due diligence to control the situation.

66.In AM,[26] McWalters J (as he then was) cited the opinion of the Committee against Torture[27] in relation to the scope of state acquiescence. His Lordship pointed out there could be active and passive state acquiescence. The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actor. The latter occurred when 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. In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor. 

67.For extended state acquiescence, here the DOI considered various COI material. As explained above, the DOI accepted there were reports that Bangladesh law enforcement agencies could be bribed and that officials were perceived to be corrupt, but also noted there were recent reports which revealed that the Bangladeshi government had taken significant steps to improve police professionalism / discipline and access to the courts. In short, the DOI considered COI both against and in favour of the existence of state protection before concluding that the Bangladeshi government had taken steps to improve police professional and reduce corruption, and that state protection would be available should NS wish to be assisted.[28] In my view, the concept of extended state acquiescence was live in the mind of the DOI, and with improving state protection as found by the DOI, I rejected these intended grounds of review vis-à-vis the DOI Decision.

68.As explained in paragraph 57 above, the principle of extended state acquiescence in no way lessens the importance of demonstrating that the claimant personally be at risk. For the purpose of making his determination, the Adjudicator found against NS on credibility, so there was no case of NS being personally at risk of torture and/or CIDTP. There was therefore no duty on the Adjudicator to go further to consider and assess whether state protection existed in Bangladesh under the extended meaning or whether any “reforms and avenues of redress” by the Bangladeshi government were effective. I find this intended ground of review untenable.

(d)  Irrelevant considerations

69.This complaint concerned the DOI Decision and not the Adjudicator Decision. NS claimed the DOI (a) failed to take into account relevant considerations, including but not limited to the fact that he made a report to the police concerning the fatal shooting of SI which was met by apparent inaction, and (b) took into account irrelevant considerations including but not limited to the fact NS was able to leave Bangladesh without incident.

70.I do not agree with such complaints. Each matter of course carried different weight and had its relevance to different issues to be considered. It was up to the DOI to decide what weight to be attached on each matter and at the end made his own decision. NS’ claim was largely based on bare assertions, one of the ways the DOI could test his credibility and/or reliability is to see if there were countervailing factual matters. Here, the DOI took into account the full factual background and analysed the salient matters. I do not agree the DOI had taken into account irrelevant matters or failed to take into relevant matters. More importantly, NS appealed / petitioned against the DOI Decision, and the Adjudicator found against him on credibility and rejected his account. In the circumstances, this intended ground of review had no merits.

X.  CONCLUSION

71.In my view, bearing in mind the high degree of scrutiny required, neither the DOI nor the Adjudicator made any reviewable error in coming to the essential findings in their respective decisions. I find they respectively had given sufficient reasons for coming to those findings, which reasons were rational and sound. NS failed to demonstrate that any of the intended grounds of review was reasonably arguable. I therefore dismiss NS’ application for leave to judicially review the DOI Decision and Adjudicator Decision in respect of his non-refoulement claim with no order as the costs.

The applicant appeared in person