Read the full judgment text of CACV 159/2019 on BabelCite. This Court of Appeal judgment was delivered on 24 June 2021 before Lam VP, Barma JA, Au JA.
Administrative law – judicial review – non-refoulement claims – Torture Claims Appeal Board – Non-refoulement Claims Petition Office (NRCPO) – whether subsequent administrative appeal authority should pay regard to prior Board's decision on same issue – res judicata and issue estoppel – legitimate expectation – procedural fairness – Bangladeshi national claiming risk from PBCP after refusing to join rival political party – applicant kidnapped in 1997, wife kidnapped and raped in 2007, mother and brother killed by PBCP in 2009 – CAT Appeal Board found real and personal risk of severe pain or suffering but not torture as PBCP was not a state agent – NRCPO adjudicator re-examined torture claim and made findings contrary to Board's assessment without taking into account events considered by the Board – Ground 1: whether adjudicator acted ultra vires in re-examining torture claim – held the adjudicator was wrong to re-examine the torture claim as NRCPO had no business to do so once decided by the Board, but the error did not by itself taint the BOR 3 assessment – Ground 2: whether failure to take account of Board's prior assessment constituted public law error – applying anxious scrutiny under Sakthevel Prabakar, the adjudicator's failure to take into account relevant matters (kidnapping of wife in 2007, killing of mother and brother in 2009, threat to applicant's life) constituted a clear public law error as risk of harm assessment is a holistic exercise – Ground 3: whether the adjudicator applied incorrect legal test for persecution by equating threshold with BOR 3 – not decided as the assessment of risk was already flawed on other grounds and Director did not defend the definition – internal relocation: whether the adjudicator's assessment was legally flawed – the adjudicator treated risk as confined to home locality and relied on the 1998 Sylhet stay but overlooked that Incident 4 took place in Dhaka, the wife was abducted and raped, and PBCP was sighted at Chittagong and Sylhet – under TK v Jenkins the assessment must be holistic taking into account all relevant factors – the lapse of time is not the only factor – adjudicator's assessment of internal relocation failed anxious scrutiny – appeal allowed – NRCPO Decision quashed – mandamus granted for the Petition to be heard afresh before another adjudicator – costs to the applicant.
Legal issues: Whether NRCPO adjudicator acted ultra vires by re-examining the torture claim already determined by the Board · Whether the adjudicator failed to take relevant matters into account in assessing risk of harm by disregarding the Board's prior findings · Whether the adjudicator applied the correct legal test for persecution risk · Whether the adjudicator's assessment of internal relocation was legally flawed
Outcome: Appeal allowed; NRCPO Decision quashed; order of the judge below set aside; mandamus granted directing the Petition to be heard afresh before another adjudicator
Cited by 4 cases · Cites 4 cases