B v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2231/2018

[2020] HKCFI 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2231 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.   Leave to apply for judicial review granted; and

2.   The Applicant’s costs be in the cause of the application to be taxed on Legal Aid Regulations.

Observations for the Applicant

1.The Applicant is a 40-year-old national of Bangladesh who arrived in Hong Kong on 30 October 2009 but when he was refused entry, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”) and/or persecution by police for political reasons and/or persecution due to his religion and ethnicity as a Hindu. He was subsequently released on recognizance pending the determination of his claim.

Background of Claim

2.The Applicant was born and raised as a Hindu in Village Sree, Potipur, Mohimagonj, Gobindaganj, Bangladesh in a family of supporters of the political party Bangladesh Nationalist Party (“BNP”). Whilst at school the Applicant joined BNP’s student wing Chhatra Dal and regularly attended the party’s meeting and activities.

3.In 2001 after BNP won the general election and became the ruling party, the Applicant was promoted to be a member of its youth wing Jubo Dal and continued to be active in the party’s local political activities.

4.In January 2008 the Applicant became the general secretary of Jubo Dal of the Gaibandha District. Later in the same year rival party AL were challenging for the general election and there were frequent clashes between supporters of the two major rivals, and on one occasion on 5 June when the Applicant and the local branch of his party staged a mass rally from the Gaibandha District against AL, he was attacked by AL supporters with hockey sticks and other weapons that he suffered severe bruising and swelling and was taken to the hospital where he was kept for 5 days.

5.In August 2008 the Applicant and his party went to the local press with evidence of AL’s drug trafficking activities, but later found that their evidence was not reported by the local press, and the Applicant suspected that they might have been suppressed by the police under AL’s influence.

6.Several weeks later on 30 September 2008 while he was on his way home in Gobindaganj, the Applicant was attacked by a group of AL supporters with punches and kicks that he was subsequently taken to the hospital for treatments where he was hospitalized for three days.

7.Eventually AL won the election and became the ruling party, and their government started to go after the leaders and members of the opposite parties especially BNP when many of their members were arrested, detained and tortured.

8.On 15 April 2009 BNP supporters including the Applicant in his local district started a mass protest against the AL government, during which they were attacked by AL supporters with fire bombs. The police then arrived to disperse the rally and arrested many of the BNP supporters including the Applicant as one of their leaders.

9.For 2 days the Applicant was detained in the Gobindaganj police station during which he was tied to a chair and was repeatedly beaten with batons on his sole or thigh, and was given insufficient food and water in a horrible and unhygienic condition. Eventually he was released and was taken to a hospital where he was hospitalized for a week.

10.At around the same time there were anti-Hindu rallies organized by AL’s Muslim supporters in the Applicant’s local district against Hindu families including the Applicant and his family, causing great panic amongst the Hindus.

11.On 7 July 2009 the Applicant was arrested by the police for throwing fire bombs during the 15 April 2009 protest, and was detained for interrogation during which he was beaten with batons for several hours before being released on bail on 9 July 2009.

12.Several weeks later on the evening of 3 August 2009, a group of AL supporters came to the Applicant’s home and attacked him with wooden sticks and other weapons but he managed to escape and fled from his home. Later he returned to find his home ransacked with things broken or stolen.

13.On 12 August 2009 the Applicant saw some policemen arriving at the gate of his home, and fearing that they were there to arrest him again, the Applicant fled from the backdoor to hide in a friend’s place, and boarded a train to Santahar and then to Jessore where he took shelter at his sister’s home, but when he later heard that the police were looking for him everywhere, he decided that it was no longer safe to remain in Bangladesh, and so on 14 October 2009 he departed for Macau, and from there he travelled to Hong Kong on 30 October 2009, and when he was refused entry, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service (“DLS”), during which he also indicated that since his departure, he understood from his family that there were still outstanding arrest warrants against him, and that the AL-led government had been making many false cases against BNP members and supporters.

Director’s Decisions

14.By a Notice of Decision dated 3 August 2016 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

15.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm to the Applicant upon his return to as low due to the low intensity and frequency of past ill-treatment from the AL supporters or the police, that there is no evidence that the AL people would still have any adverse interest in him after all these years, that he was pursued by the police for their legitimate investigation, that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for his perceived enemies to locate him.

16.By a Notice of Further Decision dated 7 March 2018 the Director again rejected the Applicant’s claim upon considering further submissions from his lawyer relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

17.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which was filed on 16 August 2016, and for which he attended an oral hearing on 9 May 2018 before the Board with legal representation during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

Appeal Board’s Decision

18.In its decision the Board found that the Applicant’s appeal failed under all the applicable risks, starting with Torture Risk when the Adjudicator found that the Applicant had fled Bangladesh to avoid arrest by the police and hence he is a fugitive from justice and therefore did not qualify to be a refugee for protection, and that there is no evidence of physical or mental pain or suffering inflicted by the AL people on him which had reached the minimum level of severity on the duration of the treatment, its physical or mental effects ([7] – [13] of the Decision).   

19.As for BOR 3 Risk, the Adjudicator found that the Applicant’s claim failed for the following reasons:

“24. The Appellant has not suffered severe injury or serious harm which would place him within the criteria of CIDTP. In any event, for reasons stated I find no substantial ground to believe he will face any future risk of serious harm. Furthermore, the COI shows reasonable availability of State protection from such harm. The situation falls far short of establishing CIDTP, hence the appeal fails under ‘BOR3 Risk’.

25.  Furthermore he is safe to live in Bangladesh, at least other than in his home village, which is another independent reason for a claim under ‘BOR3 Risk’ to fail.”  

20.Regarding the Applicant’s claim under BOR 2 Risk, the Adjudicator found no such risk existed by stating:

“26. The issues in ‘BOR2 Risk’ are spelt out in the statute. For all the reasons stated above, I find no substantial risk to the Appellant’s life, and the claim under ‘BOR2Risk’ fails.”

21.Finally, as regard the Applicant’s claim under Persecution Risk, the Adjudicator stated as follows:

“30. In order to avoid misunderstanding it should be emphasized that the test under Persecution is not the same as under BOR3 Risk although some of the wordings may sound similar. Today’s Appellant has not suffered, nor is there any future risk of suffering severe ill-treatment or serious harm which would place him within the criteria of Persecution. In any event, for reasons stated I find no substantial ground to believe he will face any future risk of serious harm. Furthermore, the COI shows reasonable availability of State protection from such harm. In addition, the unspecified AL people, at most 50 to 60, do not come within the meaning of ‘populace’ in refugee law. Hence the situation falls far short of establishing ‘Persecution Risk’.

31. Further and in any event, he is safe to live in Bangladesh at least other than in his original village, which is another independent reason for a claim under ‘Persecution Risk’ to fail.” 

22.The Adjudicator then arrived at the following conclusion in dismissing the Applicant’s appeal in the decision:

“32. One should take a step back and view the whole situation in perspective.

33. Whether it be under the principles of Torture or CIDTP or Persecution, the ill-treatment or harm must be serious to found a substantial risk in future. The Appellant has suffered nothing which required major medical treatment to suggest serious harm, and this is whether when assaulted by the AL people or under alleged police brutality. He has not passed the threshold to succeed under Torture or CIDTP or Persecution hence there is no substantial future risk of serious harm.

34. Separately, he is a fugitive from the due process of the law. Not only is ‘lawful sanction’ excluded from the definition of Torture under CAT, but refugee law says a fugitive from justice is not a refugee for the purpose of sanctuary, in addition to which neither China nor Hong Kong is a signatory to the Refugee Convention.

35. None of the publications produced by the Appellant refers to him personally. General COI per se does not advance a claim.

36. The COI does not show that the Appellant will be subjected to serious ill-treatment or serious harm under the principles of Torture or CIDTP or BOR2 Risk or Persecution either from the AL or if arrested in future.

37.     For numerous and independent reasons the Appellant fails to establish a case of non-refoulement whether under the principles of Torture or BOR3 or BOR2 or Persecution. The appeal is dismissed, and the decisions of the Immigration Officer, dated 3 August 2016 and 7 March 2018, are hereby confirmed.”

Judicial Review  

23.On 12 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds, as amended on 2 October 2019, for his intended challenge:

(1)     Error of law in applying the wrong tests for BOR 3 Risk;

(2)     Error of law in omitting to consider BOR 2 Risk;

(3)     Error of law in applying the wrong threshold of Persecution Risk and procedural impropriety in failure to make inquiry as to political persecution;

(4)     Procedural impropriety in making insufficient analysis and inquiry into COI and/or that the conclusion reached on the materials were Wednesbury unreasonable;

(5)     Error of law in wrongly finding that internal relocation would be available to the Applicant;

(6)     Procedural impropriety in failure to present the Applicant’s evidence in fair and proper manner.  

24.The Applicant has since been granted legal aid for his application, with Mr Earl Deng assigned as counsel to appear for him, and with his skeleton submissions dated 16 September 2019 in support of these grounds, of which I now propose to consider, starting with his first ground.

Ground (1): Misapplication of Law for BOR 3 Risk

25.Mr Earl Deng submits that in rejecting the Applicant’s claim on the grounds of BOR 3, the Adjudicator wrongly summarized the legal principles espoused under Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743 for the test for CIDTP under BOR 3 Risk, when the Adjudicator held in the decision [22]:

(a)     that the requirements are “(1) severe ill-treatment if refouled, viz “serious harm”; (2) substantial grounds for believing that the claimant will suffer from such harm; and (3) absence of State protection;

(b)     that “the threshold for “serious harm” is very high, and must involve actual bodily injury or intense physical or mental suffering”. 

26.Mr Deng submits that, firstly, the correct test is not whether there has been or will be serious harm, but whether “a minimum level of severity” has been attained, which requires the Adjudicator to make a relative and context sensitive assessment, depending on “all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue”, as held in R(Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. 

27.On the facts and circumstances of the Applicant’s case, Mr Deng submits that it is obvious that the treatment by the police against him would exceed the minimum level of severity for either inhuman or degrading treatment as protected under BOR 3, and hence the Adjudicator clearly erred in his factual finding as to the severity of the ill-treatment inflicted by the police on the Applicant.

28.Secondly, Mr Deng submits that the test is not “substantial grounds for believing that the claimant will suffer from such harm” which suggests a higher threshold, as the correct test is whether there is substantial or genuine belief that there will be a risk of such harm, and on the facts of the Applicant’s case, Mr Deng submits that the Applicant does face a “genuine and substantial risk” of being subject to torture, cruel, inhuman or degrading treatment or punishment reaching a “minimum level of severity” that:

(a)     Prior to his escape from Bangladesh, he was attacked twice by non-state actors, ie AL members who threatened him over the phone and had his home attacked;

(b)     He was arrested twice by the police during which he was tortured and interrogated;

(c)     Pursuant to false reports, state actors further acquiesced by charging him of being a terrorist and/or rioting and throwing fire bombs; and

(d)     There continues to be an outstanding arrest warrant against him, which means that upon his return to Bangladesh, he is likely to be arrested, detained and interrogated immediately.  

29.Mr Deng therefore submits that in any event the Adjudicator was wrong to say that no state actor was involved, as it is quite clear that there is a reasonable prospect of success in this ground, and that the Adjudicator also erred in applying the wrong test for BOR 3, and thereby finding that “the situation falls far short of establishing CIDTP” in the Decision.

30.Mr Deng further submits that by applying the wrong test for BOR 3 as above, the Adjudicator failed to analyze each incident and/or the cumulative effect of all the incidents combined, according to the distinct definition and threshold requirement of each category of “torture” / ”cruel” / ”inhuman and degrading” treatment, as a matter of law, it is entirely wrong for the Adjudicator to lump together all of the different levels of treatment into one consideration without analyzing as to whether any single incident or cumulative experiences had crossed the minimum threshold of severity in any one of the three non‑derogable obligations.

31.In Ubamaka, it was clearly stated by the Court of Final Appeal that for an applicant to bring himself within the terms of BOR 3, he must meet two main requirements as follows:

“172. For him to do so successfully, he must meet two main requirements: he must establish (i) that the ill-treatment which he would face if expelled attains what has been called ‘a minimum level of severity’ and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment. It is clear that a very high threshold must be surmounted to establish each of those requirements.

173. In R (Limbuela) v Secretary of State for the Home Department, Lord Hope of Craighead, citing decisions of the Strasbourg Court, described what was required to meet the ‘minimum level of severity’, pointing out that it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment …

174.     As to the degree of risk that the deportee must establish, it has variously been put as a requirement that he must show ‘substantial grounds … for believing’ or ‘strong grounds for believing’ that if deported (or extradited) he faces a ‘real risk’ of being subject to torture or CIDTP.” 

32.In R (Limbuela) cited above, Lord Hope of Craighead went on to explain what types of “treatment” that fall within the scope of BOR 3 [53] – [55]:

“As regards the types of ‘treatment’ which fall within the scope of art.3 of the Convention, the court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feeling of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterized as degrading and also fell within the prohibition of art.3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by art.3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage art.3 … So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied.”    

33.As to the degree of risk that the claimant must establish, Court of Final Appeal in Ubamaka held that he must show “substantial grounds for believing that if deported or extradited he faces a “real risk” of being subjected to torture or CIDTP, and where such evidence is adduced, it is for the government to expel any doubts about it, and that the court shall assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the court is able to make a full and up-to-date assessment of the current situation [176].   

34.Further, the threshold tests and circumstances to consider are set out in Gäfgen v Germany (App. No. 22978/05, 1 June 2010, when the Grand Chamber noted the difference between various prohibited acts was one of purpose:

“88. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v the United Kingdom, 18 January 1978, §162, Series A no. 25, and Jalloh v Germany [GC], no. 54810/00, §67, ECHR 2006-IX). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v Turkey, 18 December 1996, §64, Reports 1996-VI; Egmez v Cyprus, no. 30873/96, §78, ECHR 2000-XII; and Krastanov v Bulgaria, no. 50222/99, §53, 30 September 2004) as well as its context, such as an atmosphere of heightened tension and emotions (compare, for instance, Selmouni, cited above, §104, and Egmez, loc. cit.).

89.    The Court has considered treatment to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita, cited above, §120, and Ramirez Sanchez, cited above, §118). Treatment has been held to be ‘degrading’ when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience (see, inter alia, Keenan v the United Kingdom, no. 27229/95, §110, ECHR 2001-III, and Jalloh, cited above, §68).” 

35.In the present case, and on the facts of the Applicant’s claim including the treatments by the police against him as recorded in the Board’s Decision, I agree that it is entirely possible that had the Adjudicator applied the correct test of minimum severity of CIDTP under BOR 3, the ill-treatments on the Applicant would amount to torture, given that it was an “infliction of intense physical or mental suffering” or was at least debasing of his dignity and therefore inhuman and degrading, and that the Adjudicator thus erred in finding that the ill-treatment suffered by the Applicant did not reach the minimum level of severity for any one of the three categories of CIDTP, and hence this Ground is reasonably arguable that the Board misapplied the law for BOR 3 Risk.  

Ground (2): Error of Law in omitting to consider BOR 2 Risk

36.It is the Applicant’s submissions that this Ground flows naturally from the Adjudicator’s misapplication of law of the threshold of CIDTP under BOR 3, that he also erred in law when he failed to consider BOR 2 entirely.

37.Mr Deng argues for the Applicant that while BOR 2 and BOR 3 are two separate articles and with the issues involved often overlap, but the fact that the test for BOR 2 being similar to that of BOR 3 does not mean that the Adjudicator can simply omit to consider BOR 2, as the Applicant’s right to life is the most fundamental of his rights under BOR 2 of which the Applicant plainly made no assessment at all, and thus had no basis for his finding of “no substantial risk to the Applicant’s life, and the claim under BOR 2 Risk fails” [26].    

38.In KAB v Sweden (App. No. 886/11, 5 September 2013) (ECtHR), it was noted at §67 that:

“The Court finds that the issues under Articles 2 and 3 of the Convention [for the Protection of Human Rights and Fundamental Freedoms] are indissociable and it will therefore examine them together.”

39.The test for BOR 2 whilst similar to that of BOR 3 was set out by the United Nations Human Rights Committee at §6.8 of ARJ v Australia (Communication No. 692/1996, CCPR/C/60/D/692/1996, 11 August 1997) as follows:

“What is at issue in this case is whether by deporting Mr. J. to Iran, Australia exposes him to a real risk (that is, a necessary and foreseeable consequence) of a violation of his rights under the Covenant. States parties to the Covenant must ensure that they carry out all their other legal commitments, whether under domestic law or under agreements with other states, in a manner consistent with the Covenant. Relevant for the consideration of this issue is the State party’s obligation, under article 2, paragraph 1, of the Covenant, to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The right to life is the most fundamental of these rights.”

40.In the Decision regarding BOR 2 Risk, the Adjudicator just relied on his reasons given in his assessment of BOR 3 Risk notwithstanding the Applicant’s clear case of having outstanding arrest warrants against him and the Adjudicator’s own COI findings of extra-judicial killings in Bangladesh. As such and in the premises it is in my view reasonably arguable that the Adjudicator erred in law in omitting to make any or sufficient assessment of the Applicant’s BOR 2 Risk.

Ground (3): Misapplication of Law on Persecution Risk

41.Under this Ground, the Applicant argues that the Adjudicator misapplied the test on Persecution Risk after finding that he “has not suffered, nor is there any future risk of suffering, severe ill-treatment or serious harm” when he stated the following test for Persecution Risk in the Decision:

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

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

42.Mr Deng for the Applicant submits that it is clear from the above that the Adjudicator has confused the test for assessing CIDTP under BOR 3 with Persecution Risk, and has erred as a matter of law, as the threshold test for the former is “a minimum level of severity”, while the threshold of Persecution Risk is just a “reasonable possibility”, and while “well-founded fear” also involves both a subjective fear or persecution, and the fear being well-founded in an objective sense, but which the Adjudicator neither considered the “reasonable possibility” test, nor the subjective and objective elements of a “well-founded fear”, and instead the Adjudicator arbitrarily chose to apply the Australian test of  “a real chance” in Chan v MIEA, the error of which was further compounded without any analysis as seen in §29 of the Decision.   

43.Mr Deng submits that on the facts of the Applicant’s case, his fear of persecution is well‑founded in light of his following personal circumstances, whether on grounds of ethnicity or political opinion:

(a)     That he was a youth leader in BNP being the Jubo Dal General Secretary for Gaibandha District, and that today he still remains a member of BNP and is still subject to an outstanding arrest warrant;

(b)     That his past arrests took place immediately after he, as a local leader of BNP, initiated and participated in protests against the ruling party, which tend to suggest that these arrests and subsequent torture and detention were all politically motivated; and

(c)     That since 2014, BNP has become marginalized as it boycotted the election and has no representation in the government. On the other hand, AL has become the ruling party and has taken various measures to tighten its grip on BNP members, including arresting and prosecuting them to punish them for their political opinions.   

44.Mr Deng submits that the Applicant’s fear of persecution is consistent with the latest COI reports and which indicates a reasonable possibility of persecution of the Applicant should he return to Bangladesh, but which is clearly inconsistent with the Adjudicator’s finding in the Decision that “The COI shows reasonable availability of State protection from such harm” [24], or “The COI does not show that the Appellant will be subjected to serious ill‑treatment or serious harm under the principles of Torture or CIDTP or BOR2 Risk or Persecution either from the AL or if arrested in future” [36]. 

45.Mr Deng further submits that, following from his misapplication of the law on persecution risk, the Adjudicator failed to consider or inquire into whether the Applicant falls within one of the protected grounds against persecution, ie his political opinion, when he was described to have “fled Bangladesh in order to avoid arrest and the due process of the law, ie he is a fugitive” [7], which Mr Deng argues as not only a mistake of law but also of fact, as throughout the Decision there was no discussion or analysis on whether the Applicant is subject to Persecution Risk on any of the grounds, including membership of any particular social group or political opinion, hence for the Adjudicator to arrive at the conclusion that the Applicant is a fugitive without any analysis as to his risks of persecution or CIDTP is wrong as a matter of law as well as a mistake of fact on his part.

46.As already noted above, while the threshold test for assessing CIDTP under BOR 3 is “a minimum level of severity”, for Persecution Risk the threshold is a “reasonable possibility” as set out by the US Supreme Court in INS v Cardoza Fonseca 480 US 421 (1987) at p440:

“There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening. See supra, at 431. As we pointed out in Stevic, a moderate interpretation of the ‘well-founded fear’ standard would indicate ‘that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.’”

47.The “reasonable possibility” approach was cited with approval by the House of Lords in R v Secretary for the Home Department, ex parte Sivakumaran [1988] AC 958, when Lord Keith of Kinkel stated at p. 994F:

“In my opinion the requirement that an applicant’s fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In Reg. v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 987, this House had to construe section 4(1)(c) of the Fugitive Offenders Act 1967, which requires that a person shall not be returned under the Act if it appears

“that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinion.”

Lord Diplock said, at p. 994:

“My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. ‘A reasonable chance,’ ‘substantial grounds for thinking,’ ‘a serious possibility’ – I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c).”

I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded.”

48.In the present case, the Applicant fled his home country due to fear involving politically motivated persecution from the police. In SB v Secretary of State for the Home Department [2009] UKAIT 00053, it was held that being a person who has left his own country facing court proceedings (other than ordinary civil proceedings) is a risk factor, although much will depend on the particular facts relating to the nature of the offence(s) involved and other circumstances, the more the offences for which a person faces trial are likely to be viewed as political, the greater the level of risk likely to arise as a result.  

49.To assess such risk and to take it into account in determining whether a political offender can also be considered a refugee, the UNHCR Handbook provides the following guidance:

“85. Whether a political offender can also be considered a refugee will depend upon various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.

86.  In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - within the law - for an act committed by him.” 

50.It thus seems to me arguable that the Adjudicator did not provide any analysis or reasons for coming to the conclusion that the Applicant was not arrested, detained and charged for political purposes when he stated that “whether (the Applicant) is guilty or otherwise is not a matter for the TCAB, but fleeing his home country in order to avoid the law did not entitle a claimant to non-refoulement as legal sanction is not “Torture” per exclusion with “Element 4”.” [7].

51.In the premises it is in my view reasonably arguable that the Adjudicator misapplied the law on Persecution Risk, and hence also failed to consider or inquire into whether the Applicant was persecuted for his political opinion.   

Ground (4): Procedural Impropriety with Insufficient Analysis and Inquiry into COI and/or Conclusion reached Wednesbury Unreasonable

52.Under this ground the Applicant complains that the Adjudicator cherry picked favorable COI comments while failing to give proper weight and context to COI that is directly applicable to the Applicant’s case.

53.Mr Deng submits that the cherry picking is demonstrable from reports relied upon by the Adjudicator, such as the Bangladesh 2017 Human Rights Report which gives an overview of the criminal legal framework of Bangladesh, but the Adjudicator failed to deal with the adverse comments cited by him, and chose to cherry-pick quotes which were in support of his proposition that the Bangladesh system is improving by excluding the negative comments by using ellipsis.

54.Mr Deng submits that despite having himself summarized in the Decision that the Bangladeshi system is still fraught with issues of violence and a lack of due process, the Adjudicator never dealt with those adverse comments such as the following:

(a)     that “There were numerous reports that the government or its agents committed arbitrary or unlawful killings”;

(b)     that “The government neither released statistics on total killings by security personnel nor took comprehensive measures to investigate cases, despite previous statements by high-ranking officials that the government would show “zero tolerance” and fully investigate all alleged extrajudicial killings by security forces that occurred in 2016”;

(c)     that “Under the Constitution detainees must be brought before a judicial officer to face charges within 24 hours, but this did not regularly occur”;

(d)     that “Authorities sometimes held detainees for longer periods with impunity. There is a functioning bail system, but police routinely did so with impunity”; and

(e)     that “Detainees are legally entitled to counsel even if they cannot afford to pay for it, but the country lacked sufficient funds to provide for this entitlement”.

55.Mr Deng further submits that the Adjudicator, in summarizing the above adverse comments from the Bangladesh 2017 Human Rights Report, however omitted in the Decision the following important information about investigations of alleged extrajudicial killings by security forces that occurred in 2016 which supports the Applicant’s belief that he would still be subjected to ill-treatment and exposed to risk of torture, CIDTP and Persecution Risk even if he were to relocate internally within Bangladesh:

“ … In 2016 human right groups expressed skepticism over the independence of the professional standards units conducting these assessments. In the few known instances in which the government brought charges, those found guilty generally received only administrative punishment.

Security forces continued to commit abuses with impunity. Plaintiffs were reluctant to accuse police in criminal cases due to lengthy trial procedures and fear of retribution. Reluctance to bring charges against police also perpetuated a climate of impunity. Officers loyal to the ruling party occupied many of the key positions in the law enforcement agents.” 

56.In his consideration of the COI relevant to the Applicant’s claim under Torture Risk, the Adjudicator identified the purpose in §10 of the Decision as follows:

“The Appellant says he fears police brutality if he is again arrested, but the COI below does not support this alleged fear …”

57.The question for this court to determine is therefore whether it has been established that in reaching his decision against the Applicant on the basis of the relevant COI the Adjudicator had directed himself properly in law and had in consequence taken reasonable steps to acquaint himself with the relevant information to enable him to arrive at the decision correctly: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065B. More so in cases like this which concern significant rights are concerned and where high standards of fairness required.

58.In Re MI CACV 69 of 2014, 26 September 2014, in giving reasons for judgment of the Court of Appeal, McWalters JA held as follows:

“39. In order to properly consider a claim … it will be necessary for the decision-makers to access materials on the country in question so that they can properly assess the applicant’s claim. These materials must be recent and must be adequate for the task …

40.    The decision-maker should indicate the materials to which he has had regard in reaching his Decision and the information or particular passages on which he relies for his Decision. If the materials contain passages or information suggestive of a contrary view then the decision-maker should demonstrate that he is aware of them and has taken them into account.”   

59.Re MI was cited with approval in Re JKF CACV 103 of 2014, 25 November 2014 when Lam VP stated in §6:

“ … it is also reasonably arguable that … selective use of country of origin information had tainted the assessment by the Adjudicator, see Re MI …”

60.A failure to take into account contrary views and to demonstrate that he has done so, the findings or conclusions of the decision-maker may be said to be Wednesbury unreasonable, as McWalters J (as the then was) stated in AM v Director of Immigration [2014] 1 HKC 416:

“105. None of these unfavourable comments have been referred to by the Assessor or caused him to qualify his findings in respect of State acquiescence. Because he has not referred to any of these unfavourable comments it is difficult to understand how he was able to make such extraordinary positive and unqualified comments such as:

‘ … there is no indication the Pakistan authorities would fail to discharge their duties or tolerate any unlawful and abusive behavior. There is nothing to suggest that they would not provide you with the necessary protection if their assistance is resorted to.’ (Emphasis added)

106. I do not see how such positive and unqualified comments can be justified in view of the number and strength of the adverse comments from the reports that I have quoted. I do not suggest that those adverse comments are necessarily determinative of the matter but the point is they are there and cannot simply be ignored as appears to have been done by the Assessor. In my view the unqualified findings, and I emphasise the word ‘qualified’, by the Assessor are not supported by the material to which he had access and are therefore Wednesbury unreasonable.

107.  Furthermore, any set of reasons which purports to make findings relevant to a conclusion on a core part of a claimant’s claim, and here that was the issue of State acquiescence, would have to address comments of the kind found in these reports so that a claimant could understand why, notwithstanding the existence of such comments, his claim ultimately failed. Thus, the issue is not just one of Wednesbury unreasonableness but also one of adequacy of reasons provided by the decision-maker.”       

61.In the present case, given the core part of the Applicant’s claim of fear of further ill-treatment from the police, and bearing in mind the various instances of arrests, detention and torture inflicted on the Applicant by the police, it is in my view reasonably arguable that the insufficient analysis and inquiry into COI by the Adjudicator and/or his conclusion reached are Wednesbury unreasonable.

Ground (5): Misapplication of Law as to Internal Relocation

62.Under this Ground the Applicant argues that as the Adjudicator erroneously rejected his claim for Persecution Risk, he therefore also erred in finding that the Applicant would have adequate state protection, and failed to consider any viable internal relocation alternatives.

63.Mr Deng submits that it is plain that there was no findings by the Adjudicator that the ill-treatment suffered by the Applicant were not politically motivated and carried out in collusion with and/or with the acquiescence and/or permission of state authorities, and as the Applicant’s evidence was that state actors including the police had knowingly turned a blind eye to the ill-treatment suffered by him and had also acquiesced and enable such treatment, and as there is nothing in the evidence to indicate that police would not continue to seek out the Applicant, as they had since the Applicant’s departure from Bangladesh, the Adjudicator therefore clearly erred in his finding that there was no substantial chance of the Applicant being located by the unidentified AL people in his home village if he lives in one of the big cities as he is a needle in a haystack [19].

64.Mr Deng submits that such finding of the Adjudicator is clearly erroneous, as it is highly unlikely that the Applicant could relocate internally in safety for the following reasons:

(a)     The Applicant was and is still a member of the BNP, as he has not withdrawn from the political party and still considers himself to be a member;

(b)     Political violence is common in Bangladesh where there is an increasing tendency for members and supporters of the opposition party BNP to be subjected to arrests, prosecution, torture and the like on the basis of their political affiliation;

(c)     While the Applicant attempted to relocate internally within Bangladesh before his departure, fleeing to Jessore, Rangour and Bogra respectively, his unchallenged evidence was that he had to move constantly to avoid detection, as the police sought to track him down through contacting his family members and friends; and

(d)     In particular, the “needle in a haystack” argument fails to take into account the fact that the AL party, being the ruling party with the support of several million members, has the state apparatus at its disposal. The trend that AL is attempting to tighten its grip on its power by arresting thousands of opposition members does not bode well for the Applicant, and it is reasonable to expect that he would continue to be persecuted should he return to Bangladesh.  

65.Mr Deng further submits that it is wrong as a matter of law and principle to require a political activist to live away from his home area in order to avoid persecution at the hands of his political opponents.

66.There is no question that the Adjudicator as the decision-maker in taking account of all relevant circumstances pertaining to the Applicant and his country of origin, namely Bangladesh, must decide whether it is reasonable to expect him to relocate or whether it would be unduly harsh to expect him to do so.

67.As it was pointed out by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 450 §21, and applied in TK v Jenkins [2013] 1 HKC 526 (CA) at 545 §54 that there is a spectrum of cases regarding the source of the persecution giving rise to a claimant’s fear that the more closely the persecution or torture is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution or torture in one place will be similarly vulnerable in another place with the state.

68.Given the Applicant’s claimed fear of persecution and/or torture by the AL people and their influenced police and security agencies, I agree that it is reasonably arguable that the Adjudicator misapplied the law on internal relocation in his determination of the Applicant’s claim.    

Ground (6) Procedural Impropriety in failing to present the Applicant’s evidence fairly

69.The Applicant’s argument is that the Decision is tainted by procedural impropriety as the Board failed to present his evidence in a fair and proper manner thereby undermining his credibility, in particularly his evidence given in his screening interview including the following:

(a)     At §3.1 of the Decision, the Adjudicator misquoted him as having said that he has been given “oxygen to heal his wounds” in an attempt to make him the subject of ridicule, when in fact the Applicant stated that his treatment was “oxygen and medication to heal his wounds”;

(b)     At §3.3 of the Decision, the Adjudicator placed emphasis on the phrase “sole or thigh” at §52 of the Applicant’s NCF to cast doubt on the credibility of his evidence while omitting his clear evidence at the screening interview that “the police had beaten me with the baton under the sole of my feet and both the thighs although there was no bleeding but I sustained enormous pains in my body”; and  

(c)     At §3.3 of the Decision, the Adjudicator suggested that the Applicant was untruthful by challenging him as to why the mere prescription of medicine and painkillers necessitated 7 days in hospital, which was again a misrepresentation of his explanation that the length of his stay was due to “internal bleeding … and was given insufficient food and water and was living in a horrible and unhygienic condition”.

70.Mr Deng submits that as a result of such cherry-picking of the Applicant’s evidence, the Adjudicator has tainted the Decision with procedural impropriety and failed to present the Applicant’s evidence for consideration in a fair and proper manner.

71.As already noted above, the Adjudicator in the Decision did not find the Applicant to have suffered any serious harm whether at the hands of the AL people or the police, despite the clear and unchallenged evidence from the Applicant and as recorded in the Director’s decisions mentioned above which required hospitalization on several occasions, it is in my judgment reasonable arguable that, in addition to having misapplied the test for BOR 3 Risk under Ground (1) above, the Adjudicator did also fail to fairly and properly present the Applicant’s evidence in a fair and proper manner for the consideration and determination of his claim.

Conclusion        

72.In the premises and for all the reasons given, I am of the view that all the Applicant’s proposed grounds have met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676, and accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision based on those proposed grounds, and direct that he shall file an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

73.I also make an order that the Applicant’s costs be in the cause of his application, and to be taxed on Legal Aid Regulations.       

Dated the 17^th day of March 2020. 

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1