QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
ON THE APPLICATION OF ZAKIR HUSAN
|- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Jenni Richards (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 9 and 10 November 2004
Crown Copyright ©
SECTION A: INTRODUCTION
"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.
(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that -
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.
(6) The Secretary of State may by order remove from the list in subsection (4) a State or part added under subsection (5)."
"(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution."
Contingently upon the satisfaction of other pre-requisites, the inclusion of a state in the list provided for by the sub-paragraph had the effect of removing from an applicant who was to be sent there any right of appeal to the Immigration Appeal Tribunal against any subsequent decision by an adjudicator.
"56. Although rational judgment or evaluation was called for from the Secretary of State, what had to be evaluated was the existence of a state of affairs. Whether that state of affairs pertained was a question of fact. If he concluded that Pakistan was a country in which there was in general no serious risk of persecution, the Secretary of State then had to consider a further question which was essentially one of policy: should he designate Pakistan?
57. Thus, on analysis, the challenge made by the applicants to the inclusion of Pakistan in the order was to its legality rather than to its rationality. However, the language defining the state of affairs that had to exist before a country could be designated was imprecise. Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State's conclusion needed to have regard to that considerable margin of appreciation. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace."
In a prior passage of its judgment the Court of Appeal had concluded that the court had jurisdiction to determine the validity of subordinate legislation even if it had been subject to the affirmative resolution procedure in Parliament.
"But on the facts before me I am not persuaded that the evidence established, clearly or otherwise, to a reasonable Secretary of State that there was a risk of persecution which was a "general feature" in India, and I am certainly satisfied that a decision to the contrary was well within his considerable margin of appreciation. Further, whereas of course even 0.76% of the population of India is a substantial number of people, nevertheless on the evidence the human rights abuses affected only a small percentage of that small percentage, such that it would be difficult to conclude that, in the context of India in general, a significant number of the populace was affected."
SECTION B: THE CLAIMANT'S HISTORY
(a) prior to 2002 he associated with Chhatra Dal, the student wing of the Bangladesh Nationalist Party (BNP), being the dominant partner in the coalition which has ruled Bangladesh since 2001;
(b) in 2002 he changed allegiance by joining the student wing of the Awami League, being the party which held power in Bangladesh prior to 2001 and which is now the chief, and highly vigorous, opposition party;
(c) thereafter members of Chhatra Dal targeted him for his perceived betrayal of their group;
(d) in about November 2002 two or three members of Chhatra Dal severely beat him up; he did not report it to the police because in his view the police would have taken no effective action and indeed his assailants would have learnt of the report and intensified their attacks upon him;
(e) shortly afterwards members of Chhatra Dal dragged him out of his house and would have beaten him had his neighbours not intervened;
(f) in about February 2003 armed members of Chhatra Dal opened fire on his home and narrowly missed shooting his mother; this incident he did report to the police, who declined to take a written statement from him and apparently did nothing to investigate it;
(g) on a later occasion members of Chhatra Dal slashed his leg with a piece of glass;
(h) in about July 2003 members of Chhatra Dal slashed him with a razor as he was walking through a bazaar and cut his wrist, for which he received medical attention including the insertion of sutures; and
(i) in fear of his life as a result of likely further assaults, he left Bangladesh in September 2003 and arrived in the U.K. in October 2003; and, in November 2003, when apprehended while working illegally in a restaurant in Swansea, he claimed asylum.
SECTION C: THE LEGISLATIVE HISTORY
"I'm not going to rule out all examination of these claims. To do so would breach the Refugee Convention and European Convention on Human Rights. But applicants will have to rebut the presumption that their country of origin is safe, and any appeal will have to be from abroad, rather than in the U.K. I will also seek a power to add countries to this list, with the safeguard that I will consult an independent advisory group which I am now establishing about the assessment of risk in the country."
SECTION D: EFFECT OF INCLUSION IN THE LIST
"56. Section 115(1) empowers – but does not require – the Home Secretary to certify any claim "which is clearly unfounded". The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
57. How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states "unless satisfied that the claim is not clearly unfounded". It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will
(i) consider the factual substance and detail of the claim,
(ii) consider how it stands with the known background data,
(iii) consider whether in the round it is capable of belief,
(iv) if not, consider whether some part of it is capable of belief,
(v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
58. Assuming that decision-makers – who are ordinarily at the level of executive officers – are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of enquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded…."
In other words the terminological reverse provided in section 94(3) has been construed by the Court of Appeal as so jesuitical as not to have measurable legal effect.
"59. There are two linked explanations for the difference of language. One is that, as the applicants' counsel submits, there is a simple legal distinction between the case of specified countries deemed to be free in general from persecution of minorities by the state or with its acquiescence, to which return is mandatory once a claim is found to be unsustainable; and other countries, to which the Home Secretary may not think it right to require return as a precondition of appeal even though their case has been found on first consideration to be without substance. In the latter class, section 115(1) does not require him to certify; in the former class, section 115(6) compels him to do so. This distinction does not, in itself, afford a complete explanation for the profusion of negatives. But their use corresponds with and emphasises the reason for the dual statutory scheme: that in the specified states, as section 115(8) shows, the background facts can be expected to weigh against a valid asylum claim."
The successor to section 115(8) is section 94(5). I believe that the Court of Appeal intended the final sentence of paragraph 59 to be taken as the second of the two explanations to which it had referred at the outset.
SECTION E: THE DEFENDANT'S REPORTS ON BANGLADESH
"The Government's human rights record remained poor and it continued to commit numerous serious human rights abuses. Police brutality, torture, extrajudicial killings, violation of human rights of women and children, arbitrary arrests and detention, and violence and discrimination against the ethnic and religious minorities persisted in 2002. Deaths in custody more than doubled from 2001. Attacks on journalists and efforts to intimidate them by government officials and political party activists increased and both political parties, Awami League and the BNP, employed political violence, causing deaths and numerous injuries. One Bangladeshi human rights activist has commented that the continued trend of torture, rape and death in custody of law enforcers is alarming and that a culture of impunity and political and administrative corruption put at risk the human rights of the citizens. The Government rarely punished persons responsible for torture or unlawful deaths. Prison conditions were extremely poor."
"The Government's human rights record remained poor, and it continued to commit numerous serious abuses. Security forces committed a number of extrajudicial killings. The police; [a] paramilitary organization…; [an] auxiliary organization…; and the army used unwarranted lethal force. The police often employed excessive, sometimes lethal, force in dealing with opposition demonstrators, and the police routinely employed physical and psychological torture during arrests and interrogations. Prison conditions were extremely poor and were a contributing factor in some deaths in custody. Police corruption remained a problem. Nearly all abuses went unpunished, and the climate of impunity remained a serious obstacle to ending abuse and killings. In February  Parliament adopted legislation shielding security forces from any legal consequences of their action, which included numerous abuses during the countrywide anti-crime drive from October 16, 2002, to January 9 . In the few instances where charges were levied, punishment of those found guilty was predominantly administrative. Violence, often resulting in deaths, was a pervasive element in the country's politics. Supporters of different political parties, and often supporters of different factions within one party, frequently clashed with each other and with police during rallies and demonstrations. Press reports of vigilante killings by mobs were common."
In paragraph 4 there was a further quotation from the report of the State Department to the effect that a wide variety of domestic and international human rights groups generally operated independently and without government restriction in Bangladesh and that, while they were often sharply critical of the government, they also practised self-censorship, particularly in relation to politically sensitive cases. In paragraph 3 there was a quotation of statistics provided by a human rights group: namely that in Bangladesh during 2003, 436 people had been killed and 6,281 had been injured in political violence and incidents of human rights violations; that 90 people had died in jails; that 81 others had been killed at the hands of law-enforcing agencies; that 477 children had been killed, 339 injured, 494 raped and 308 abducted; that 1,336 children and women had been raped; and that 337 people had fallen victim to acid-throwing. In paragraph 5 was a reference to the fact that, although the government had promised to establish an independent National Human Rights Commission, it had not yet done so; and a quotation from a report by Amnesty International to the effect that the failure of successive governments effectively to address human rights violations pointed to the desperate need for its establishment.
(a) that the country was plagued with corruption (para 3.2);
(b) that the entire election campaign in 2001 had been characterised by violence in which at least 140 people had been killed (para 4.38);
(c) that the 1972 Constitution was based on fundamental principles of nationalism, socialism, democracy and secularism and that it aimed to establish a society free from exploitation in which the rule of law, fundamental human rights and freedoms, justice and equality were to be secured by all citizens (para 5.1);
(d) that under the constitution all citizens were equal and had a right to its protection, that it outlawed arbitrary arrest, detention and discrimination based on race, age, sex, birth, caste or religion and that it afforded freedom of assembly, association, and religious worship to every citizen (para 5.2);
(e) that Bangladesh was a parliamentary democracy and that there was an active political opposition although violence was a pervasive feature of politics (para 5.7);
(f) that, while the lower courts remained part of the executive and were subject to its influence, the higher judiciary displayed a significant degree of independence and often ruled against the government (para 5.13);
(g) that there was such a backlog of cases awaiting trial that most prison inmates had never been convicted and were awaiting trial (para 5.33);
(h) that the above backlog, together with the corruption encountered in the judicial process, effectively prevented many from obtaining a fair trial and that bribes were paid to court officials more often than not (para. 5.18);
(i) that, although it required an arrested person to be produced before a magistrate within 24 hours, section 54 of the Code of Criminal Procedure effectively allowed the police to arrest anyone at any time for almost any reason and was one of the most easily abused provisions in the Bangladesh legal system (para 5.25);
(j) that under the Special Powers Act the government had sweeping powers to detain any person for up to 30 days without charge to prevent him from performing a 'prejudicial act' and that, according to a UN report, this was the most favoured legal instrument of the government for the detention of political opponents as well as of criminals (para 5.27);
(k) that the police were often reluctant to pursue investigations against persons affiliated with the ruling party, that the government frequently used the police for political purposes, that in 2002 there was widespread police corruption and lack of discipline, that security forces committed numerous serious human rights abuses and were rarely disciplined, even for the most egregious actions, and that security forces committed a number of extrajudicial killings (para 6.4);
(l) that, according to a State Department report and notwithstanding its prohibition in the constitution, police routinely used torture, beatings and other forms of abuse while interrogating suspects and that, according to Amnesty International, little effort had been made to suppress the widespread use of torture under successive governments (para 6.6);
(m) that, at the instigation of politicians, police reportedly tortured political opponents, that the government rarely prosecuted those responsible for torture and that a climate of impunity allowed such police abuses to continue (para 6.7);
(n) that, according to human rights observers, the police were frequently used for political purposes and that in 2002, according to Amnesty International, several hundred activists of the Awami League had been arrested without warrant, detained and tortured ahead of a general strike which the league was organising (para. 6.10);
(o) that, in an index of countries ranked according to their respect for press freedom, Bangladesh had been ranked 118th out of 139 (para 6.20);
(p) that, although it established Islam as the state religion (and indeed 88% of the population were Muslim), the constitution guaranteed freedom of religious worship (para 6.30);
(q) that, however, Hindus, who represented 10% of the population, had since 2001 been increasingly targeted for attacks and perceived that discrimimation from the Muslim majority had increased (paras. 6.42 and 6.45);
(r) that Ahmadis, of whom there were fewer than 100,000 in Bangladesh, were regarded as heretics by mainstream Muslims for their belief that Mohammad was not the messiah and that they had in the past been targets of sectarian attacks and harassment, including two attacks on their mosques from one of which they remained excluded (paras 6.47 and 6.48);
(s) that, notwithstanding the constitutional prohibition of any form of discrimination on the basis of sex and at least five enactments designed to protect their rights, women remained mostly in a subordinate position in society and that their basic freedoms had not been effectively protected (paras 6.74 and 6.75);
(t) that, while violence against women was difficult to quantify, recent reports indicated that domestic violence was widespread and that, according to a UN report in 2000, 47% of adult women in Bangladesh reported physical abuse by their male partners (para 6.76);
(u) that in 2002 1,350 women and girls had allegedly been raped, that many rapes went unreported and that, while some rapists received sentences of life imprisonment, others, sentenced by village arbitration councils, received only a fine (para 6.79);
(v) that in 2002 there were 483 victims of acid attacks, of whom more than half were women, and that, while the government seemed determined to address the problem with new laws and special courts, including new laws to criminalize the sale of acid, few perpetrators of acid attacks were prosecuted (para 6.81);
(w) that, although the government had made significant progress in improving the health, nutrition and education of children, more than half of all children remained chronically malnourished and child labour, child prostitution and trafficking persisted (para 6.85);
(x) that the compulsion upon many children to work at a young age frequently resulted in their suffering abuse, common at all levels of society throughout the country, mainly at the hands of employers who made them work in conditions which resembled servitude (para 6.86); and
(y) that violence was endemic between the student political wings of the major national parties (para 6.103).
(a) There was an updated survey of the use in Bangladesh of the Special Powers Act. It referred to an Amnesty International Report dated May 2003 and entitled "Urgent Need for Legal and Other Reforms to Protect Human Rights", which alleged that each year thousands of people were arbitrarily detained, particularly under the Act, and denied access to judicial remedies (para 5.26).
(b) The paragraphs on torture were updated to replace reference to the State Department's Report of 2002 with that of 2003. But the references to the more recent report indicated no improvement in enforcing the constitution's prohibition against torture and cited the Bangladesh Rehabilitation Center for Trauma as saying that in 2003 there had been 1,296 victims of torture, including 115 deaths due to torture, by security forces. The CIPU report went on to include a further quotation from the Amnesty International Report, referred to at (a) above, to the effect that methods of torture included beating with rifle butts, iron rods, bamboo sticks or bottles filled with hot water so that they did not leave marks on the body, hanging by the hands, rape, 'water treatment' in which hose pipes were fixed into each nostril and taps were turned on full for two minutes at a time, the use of pliers to crush fingers and electric shocks (paras 6.6 and 6.7).
(c) A State Department report on Religious Freedom was quoted as saying that, while the generally amicable relationship among religions in society contributed to the religious freedom guaranteed by the constitution, the number of Hindu, Christian and Buddhist minorities who experienced discrimination by the Muslim majority had increased in 2003 (para 6.26).
(d) In January 2004 Agence France Presse had reported that the government had banned publications of the Ahmadis after pressure from Islamic hardliners (para 6.39).
(e) The section on women was updated to quote from the Department of State Report for 2003 to the effect that the government did not act effectively to protect their basic rights. Dowry-related killings of women were said to have increased to 261 in 2003 (from 190 in 2002) and that incidents of vigilantism against women, sometimes driven by fatwas directed by religious leaders, occurred, particularly in rural areas, and included the whipping of women accused of moral offences. The number of acid attacks, which were mostly on women and by way of revenge on the part of rejected suitors, had apparently reduced to 337 in 2003 but few perpetrators were yet prosecuted. Victims were left horribly disfigured and often blind. (paras 6.69 and 6.74).
(f) While in 2003 significant progress had been made in improving the health and education of children, slightly more than one half of all children remained chronically malnourished; in 2003, according to human rights groups, 575 children had been abducted, nearly 1300 had suffered unnatural deaths, 3,100 had fallen victim to serious abuses such as rape, torture and acid attacks and 10,000 were working as prostitutes; and, according to a report in 2002 by a Bangladesh government news agency, 400,000 children were homeless (which I take to mean on the streets) (paras 6.75, 6.76 and 6.80).
(a) The Awami League had organised a campaign of public demonstrations to take place in April 2004 and in that month, in an attempt to contain them, the police had arrested more than 15,000 people, mainly supporters of the league and of a non-governmental organisation, but that the government had called on the police to stop the mass arrests and not to harass the innocent (para 4.42).
(b) In August 2004 a grenade attack had been launched upon an Awami League rally, as a result of which nineteen people had been killed and 200 injured, including party leaders, and there had been a rising trend of bomb attacks in Bangladesh over the past five years in which more than 140 people had died but in relation to which the police had made arrests in only one case (para. 4.48).
(c) In the section on torture there was inclusion of a reference to the report by Amnesty International for 2003 to the effect that torture remained widespread, that the government failed to implement safeguards against it and that victims included suspected criminals, children and people detained on politically motivated grounds (para 6.6).
(d) The introductory section on Freedom of Religion was expanded, in particular to quote from articles in the (London) Guardian dated 21 July 2003 and in Time Magazine (Asia) dated 12 April 2004. The piece in the Guardian, different from the piece referred to in §22 above though published on the same day, was to the effect that the oppression of religious minorities was becoming systematic; that, although there had been a long tradition of tolerance towards them, Bangladesh was being pushed towards fundamentalism; that, in the words of a lawyer, 'we are returning to the dark ages'; that leading Islamic scholars were appalled by the rise of fundamentalism; that, in the words of one of them, 'what we are seeing is the Talibanisation of Bangladesh' and 'if we allow them to continue, [minorities] will be eliminated [and] Bangladesh will become a fascist country.' The piece in Time Magazine, as quoted, referred to the extent of corruption and criminal violence in Bangladesh and observed that the violence was made more toxic by the spread of intolerant Islamic fundamentalism and that, according to Hindus, they were increasingly being intimidated by gangs of Islamic fundamentalists who attacked them in their homes, extorted ransoms from them and warned them to move to India (paras 6.29, 6.30).
(e) The section on the Ahmadis was expanded to include reference to a report by Amnesty International dated April 2004 to the effect that they had been living in fear of attack, looting and killing since around October 2003, that, in addition to the prohibition of their publications, Islamic groups were now pressing for confiscation of their mosques, that the government had acted to prevent crowds from entering their mosques but that it had taken no action against the perpretrators of the hate campaign (para 6.41)
(f) The section on the tribal people of the Chittagong Hill Tracts was greatly enlarged. The tribal people have been involved in a long running and violent dispute over land ownership with Bengali settlers but the dispute was supposed to have been resolved by an accord signed in 1997. The enlarged section quoted a report by Amnesty International dated March 2004 as concluding that, more than six years after the signing of the accord, tribal people continued to live in fear of attacks from Bengali settlers, often carried out with the apparent connivance of army personnel. It went on to quote a report in the Bangladesh Daily Star dated 4 September 2003 to the effect that more than 1,500 tribal people had been displaced by recent ethnic violence. Then it quoted the State Department report for 2003 as saying that extortion from tribal people and kidnapping them for ransom had been rampant in 2003 (paras 6.72, 6.74 and 6.75).
(g) The section on women was expanded to refer to a report dated 3 January 2003 submitted by the state of Bangladesh itself to the U.N. CEDAW (Convention on the Elimination of Discrimination Against Women) Committee. In the report Bangladesh had stated that, according to the constitution, women enjoyed the same status and rights as men in terms of education, health, political process, employment, development processes and social welfare; that in practice they did not enjoy fundamental rights and freedom to the same extent; and that the state was taking a variety of initiatives designed to reduce discrimination and gender-based oppression (para 6.81).
SECTION F: OTHER OBJECTIVE MATERIAL
"Today, more than five years later, the situation remains grim, as the violence against women continues unabated and remains a serious human rights concern. Women still frequently face violent attacks, many die as a result of domestic violence and acid attacks on women continue, sparking widespread national and international outrage. NGOs and women's rights defenders complain of a lack of adequate protection and effective legal remedies for the victims of violence. The failure of the Bangladeshi authorities to take prompt legal action against those accused of perpetrating violence fosters a climate of impunity."
"Bangladesh continued in 2003 to be plagued by lawlessness, rampant corruption and violent political polarization, all of which threaten its prospects for consolidating democratic institutions and achieving economic development and reform…
Official intolerance toward criticism and scrutiny persisted, with journalists, human rights advocates and leaders and perceived supporters of the political opposition being detained or otherwise harassed throughout the year…
Faced with mounting domestic and international frustration with the continued deterioration in law and order, in October 2002, the government deployed nearly 40,000 army personnel in 'Operation Clean Heart' as part of an anticrime drive during which thousands were arrested. A further attempt to crack down on crime and lawlessness was made in June 2003, when authorities announced that they intended to deploy paramilitary forces and that police had been given orders to 'shoot on sight'. Although the policy was initially popular among Bangladeshis weary of rising crime rates and a general climate of impunity for criminals, police and army excesses, including extortion and torture, led to repeated statements of concern from both domestic and international groups during the year."
"Bangladesh has been ranked worst on Transparency International's Corruption Perceptions Index for the past three years. A bill to set up an Independent Anti Corruption Commission was passed in February 2004 after concerted donor lobbying. There has been almost no progress made on other key reform issues, including the separation of the Judiciary and Executive in lower level courts, and the formation of an independent Human Rights Commission."
Under the heading 'HUMAN RIGHTS' the Foreign Office stated:
"Bangladesh has a mixed human rights record. Bangladesh signed the UN Covenant on Civil and Political Rights in September 2000 [and] the other five core human rights instruments…
In a report released at the Bangladesh Development Forum on 15 May 2003, Amnesty International (AI) highlighted that successive governments in Bangladesh have failed to curb serious human rights violations arising from the use of legislation and widespread practices in the law-enforcement and justice system which violate international human rights standards. These violations include torture; deaths in custody; arbitrary detention of government opponents and others; excessive use of force leading at times to extrajudicial executions; the death penalty; sporadic attacks against members of minority groups; and acts of violence against women. In this report they highlight their concerns about two specific laws that facilitate endemic human rights violations in Bangladesh: the Special Powers Act…which allows arbitrary detention for long periods of time without charge; and Section 54 of the Code of Criminal Procedure…which facilitates torture in police or army custody.
The police are frequently accused of a wide range of human rights violations, of failing to prevent human rights abuses, of breaking a number of laws and of taking bribes. Deaths in police custody are high. There are several hundred thousand people awaiting trial. There are regular allegations that torture is used as a means of questioning. In 2000 AI highlighted the police as major perpretrators of torture, including of children."
"Amnesty International is deeply concerned for the safety of the Ahmadiyya Community in Bangladesh following threats by Islamist groups to attack Ahmadi places of worship during today's Friday prayers.
"The Government of Bangladesh must take decisive action against anti-Ahmadi agitators who have continued to attack members of the Ahmadiyya community. These groups have been allowed to attack Ahmadis with impunity", Amnesty International said.
Last Friday the groups attacked an Ahmadi place of worship …. as a result of which at least eleven Ahmadis received serious injuries. Islamist groups have now threatened to carry out the attacks more frequently and without prior notice. They have named Ahmadi places of worship as the targets of their attacks every Friday during noon prayer time."
SECTION G: DISCUSSION AND CONCLUSION
" [Counsel for the Secretary of State] submitted that there was no justification in the present case for subjecting the Secretary of State's decision to particularly rigorous scrutiny … With this submission we agree. Human rights were not put in issue by the accelerated procedure that was adopted in relation to applicants from countries on the White List. Nor, as we shall explain, do we consider the 'discretionary area of judgment' to be a particularly narrow one."
As noted in §9 above, sub-paragraph 5(2) provided for a list of states in which there was in general no serious risk of persecution; and there was no reference in the sub-paragraph to the risk of infringement of human rights. It is otherwise in relation to additions to the list made under section 94(5) of the Act. But Miss Richards submits, with only faint opposition from Mr Mustakim, that it does not follow that I am required to analyse with rigorous scrutiny the defendant's decision to list Bangladesh thereunder. I agree with her. Such is an exercise required of a court in analysing a decision-maker's determination in relation to an individual case which is alleged to engage rights under either of the Conventions; and it is not apt to a decision in relation to which, as the Court of Appeal made clear in paragraph 57 of its judgment in Javed (set out in §11 above), a considerable margin of appreciation must be afforded.
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the [Refugee] Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery."
(a) The mistreatment of the citizens of Bangladesh is not localised, as was found in Balwinder Singh to be the case in India.
(b) In deciding to add Bangladesh to the list the defendant had to guard against any equation of the number of actual victims of persecution and of human rights abuses, as reported, with the number at risk thereof. There is a nexus between the numbers, hard to compute, but there is certainly not an equation.
(c) Section 94(5) required the defendant to reach a conclusion about circumstances "in general" in Bangladesh and, although some of the relevant material relates to persecution of small minorities, in the end he had to survey the picture cumulatively, globally and indeed generally.
(d) Persecution within the meaning of the Refugee Convention will, by its nature, often be directed towards minorities. At all events women (49.5%) and Hindus (10%) each amount on any view to significant numbers of the populace, as probably do active members of the Awami League.
(e) Indeed it seems that any member of the population, whether or not a member of a particular group, is at risk of having his human rights abused. For, if arrested by the police, he is at risk of protracted unlawful detention, brutality, extortion, physical and psychological torture and even death, on the part of officers who operate in a climate of impunity and trade freedom for bribes.
(f) Equally the human rights of a substantial number of the state's children, and thus obviously of a vast constituency, are at risk of infringement, particularly under Articles 3 and 4 of the Human Rights Convention.
(g) Just as the defendant was required to look at circumstances in Bangladesh in general, so the authors of much of the objective material have attempted to address it generally as well as in particular. Their conclusion is that a serious risk of persecution and of human rights abuses exists on a general scale. As collected in the CIPU reports, they say, for example that:(i) serious human rights abuses are "numerous";(ii) violence in politics is "pervasive";(iii) corruption "plagued" the country;(iv) the use of torture is "widespread";(v) the use of the police for political purposes is "frequent";(vi) domestic violence is "widespread";(vii) the abuse of children is "common at all levels of society throughout the country";(viii) violence between student wings of political parties is "endemic"; and(ix) oppression of religious minorities is becoming "systematic".
It is all too clear that persecution and human rights abuses are not the isolated problems, at the margins of life in Bangladesh, which, through Miss Richards, the defendant would have me accept. According to the Foreign Office, Bangladesh is ranked worst for corruption in an international index; according to the IRB of Canada it is ranked either second worst or fourth worst in indices of violence against women; and according to CIPU it is ranked 118th out of 139 in an index of press freedom.
"Those statistics showed that, in general terms, asylum and human rights claims from Bangladesh were not succeeding. That therefore suggested that in general terms there was no serious risk of persecution and that, therefore, Bangladesh was capable of being designated."
Mr Walsh and thus Miss Richards seek to fortify this point by reference to the content of six determinations of the Immigration Appeal Tribunal in or around 2002 in which second appeals by citizens of Bangladesh were dismissed.
SECTION H: CERTIFICATION OF THE CLAIMANT'S CLAIM