England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		15th May 2006

1. JAMES GOUDIE QC: This is an application for judicial review by Monjurul Azim Palash ("Mr Palash") and Rakshana Palash (or Akhter). They are husband and wife. They have two children, aged now about 12 and 3. They are Bangladeshi nationals. Permission to apply for judicial review was granted on the papers by David Lloyd Jones QC (as he then was) on 26th September 2005. The permission is to challenge the decision of the Secretary of State for the Home Department, ("the Secretary of State") of 23rd June and 30th June 2005 that further submissions on behalf of Mr Palash did not amount to a new or fresh claim under paragraph 353 of the Immigration Rules as amended, and the Secretary of State's refusal to treat those further submissions as a basis for a fresh claim for asylum significantly different from the old claim, as opposed to further representations on the old claim.
2. Mr Palash was a journalist in Bangladesh. He was the editor of a magazine "Link Bangla". He came to the United Kingdom with his wife and, at that time, one child on 8th March 2002. He came on a visitor's visa. While he was in the United Kingdom the May/June 2002 issue of Link Bangla was published on or about 10th May 2002. Mr Palash claimed asylum and humanitarian protection in the United Kingdom on the basis of what he learned was the reaction in Bangladesh to that publication, described as an uproar, and advice from his legal advisor. Mr Palash so applied on 26th June 2002.
3. On 15th August 2002 the Secretary of State refused his application and refused to vary his leave. Mr Palash and his family appealed and were represented by counsel. The material submitted on the appeal included material from Reporteurs sans Frontieres ("RSF"). On 8th January 2003 the Adjudicator, D K Gill, dismissed the appeal. Permission to appeal further to the Immigration Appeal Tribunal was refused on 12th February 2003.
4. The further submissions to which I have referred are two further letters from RSF dated 14th February 2003 and 27th June 2005. It is necessary first, however, to consider what material was previously considered and what impact it had and why. The Adjudicator considered Mr Palash's claim against a background which she set out in paragraph 8 of her determination: the general human rights situation in Bangladesh and the general situation in relation to journalists lists there. In paragraph 10 of her determination she turned to Mr Palash's account of matters. What she said included the following:

"(10.1) The First Appellant said at the hearing (paragraph 5.4 above) that the reason why there is a specific interest in him, as opposed to any other members of his editorial team is because, firstly, he is a writer; secondly, he is an editor; thirdly, he is a publisher; and finally, he is a member of a political party. He also said at the hearing (paragraph 5.8 above) that he is still unsafe in Bangladesh because of his 'long-time political involvement and especially his editorial policy'. He said that he was not only a simple writer or reporter. He said that he had a great political involvement and outlook and that, through his magazine, he 'exercised his political comments'. He said that throughout his long career as a journalist, he criticised the government whenever it was necessary to do so. Bearing his evidence in mind and bearing in mind also the objective evidence, on is immediately struck by the First Appellant's lack of any problems with the authorities and/or political activists prior to May 2002. If it is true that he had had a 'great political outlook' and had 'exercised his political comments' through his magazine, then I considered that he would have experienced problems with the Bangladeshi authorities and/or political activists prior to May 2002. Even when the raid allegedly took place on his magazine's premises, no one was harmed. I found it completely lacking in credibility, bearing in mind the objective evidence, that nay armed activists or fundamentalists who attacked his home in May 2002 would not have harmed anyone or damaged any property. I also found it completely lacking in credibility that they would revisit his home in October 2002, some six months later, and damage property on that occasion.

(10.2) In relation to the First Appellant's political activity, the letter at pages C9 and C10 of the Appellants' bundle from the General Secretary of the Central Executive Committee of the JSD indicates that the positions the First Appellant had mentioned at the hearing (paragraph 5.9 above) were held as long ago as 1991. However, if it is true that he continued to be politically active and that he wrote critical articles about the government (whichever government was in power) whenever it was necessary to do so throughout his career as a journalist over ten years, I considered it completely lacking in credibility, bearing in mind the objective evidence, that he did not experience any problems prior to the alleged raid in May 2002. His explanation that the situation had worsened after the October 2001 elections does not satisfactorily explain the complete lack of any problems, bearing in mind that Bangladesh has had a poor human rights record for some time, and certainly well before the October 2001 elections. Violence has been a pervasive feature of Bangladeshi politics for some time . . .

(10.4) I have carefully considered the e-mail from the legal adviser to the First Appellant's magazine (pages D1 and D2 of the appeal bundle). I noted some of the language used in the e-mail, for example:

'They never like your magazine because of your progressive editorial policy. Since you were involved with progressive political movement and played a vital role against them, you were always their target.'

(10.5) I found that this language suggests strongly that it had been contrived for the purpose of the asylum claim. When asked at the hearing to explain why his legal advisor would use such language, the First Appellant said that it was because the legal advisor knew about the First Appellant's affairs. However, this does not explain why he would write about things which both he and the First Appellant were fully aware of, if the e-mail was only intended, at the time of writing, for the perusal of the First Appellant. Furthermore, no advice is contained in this e-mail as to the steps which the magazine could take by way of legal redress, nor is any mention made of what steps the legal advisor had taken following the raid (who, after all, was retained for his legal advisory services to the magazine). In all of the circumstances, I find that this e-mail has been written in order to support the First Appellant's asylum claim. I am therefore only prepared to place very little (if any) weight on it, as I consider it to be self-serving."

5. Then at paragraphs 10.6 and 10.7 the Adjudicator deals with a new items in the Weekly Sylheter Dak issue of 12th and 18th July 2002 and continues at paragraph 10.8:

"With regard to the letter of support from RSF at pages C18 and C10 of the Appellants' bundle and the news article published on the website of RSF (which is contained in the 4-page facsimile message referred to in paragraph 5.1 above), the mere fact that RSF have published a news article does not, of itself mean that it must be assumed that they have independently verified information given to them by the First Appellant. There are many international organisations who monitor the human rights situations in various countries. Some approach the matter from a partisan view. All receive information from a variety of sources, some credible and others not. I reject the submission that, simply because the RSF have published this news article on their website, it must be accepted that they have independently verified information which they were given by the First Appellant. Mr Rahman submitted that the Respondent's failure to check the authenticity of any information by visiting the website address of RSF meant that I should give greater weight to the letter from RSF at pages C18 to C19. I reject this submission, not least because Mr Barcoe informed me that he had simply missed the fact that a website address had been provided in the letter at pages C18 to C19. In any event, it is for the Appellants to discharge the burden upon them. Furthermore, I noted that the news article published on the RSF's website states that the police questioned members of the First Appellant's family. The First Appellant has not made any mention of the police questioning members of his family. According to his evidence, the only visits his family members received were visits by armed cadres or fundamentalists. If, therefore, the RSF did verify the information which the First Appellant gave to them, the fact that they have referred in their news article to the police questioning his family members calls into question the adequacy or integrity of their verification process. If the reference to the police questioning his family members was due to a misunderstanding between the RSF and the First Appellant as to what he was telling them, any proper verification process would have unearthed the misunderstanding before the article was published on the website. Although the First Appellant said that he first reported to the RSF about what had happened to his magazine sometime in May 2002 and before his asylum claim was made, the date the RSF article was posted to their website is 8th July 2002 -- that is, after the First Appellant's asylum claim was lodged. The fact that there was a mistake in the news article does not support any contention that the period between May 2002 and the publication of this article on the website was spent in verifying information given by the First Appellant. In all of the circumstances, I am not prepared to place any reliance on the news article dated 8th July 2002 and the letter of support from the RSF, as independent corroboration of the basis of the First Appellant's asylum claim.

(10.9) It is evident that the First Appellant is a man who clearly has journalistic connections in, at least, London and in Paris, besides Bangladesh. In all of the circumstances, I have come to the conclusion that he is someone who would not hesitate to use his contacts to obtain documents to support his asylum claim in any way he can. In all of the circumstances, I am not prepared to place much reliance on the letters at pages C1 to C8 of the Appellant's bundle, all of which I considered were self-serving. Whilst I acknowledge that this is something which can be said of virtually all documents submitted by asylum claimants, I found the documents submitted in this particular case (that is, pages C1 to C8 of the Appellants' bundle) particularly self-serving and not persuasive, even to the low standard, as to the truthfulness of their contents.

(10.10) The article in the May/June 2002 issue of the Link Bangla which the First Appellant wrote and which he said was one of the articles which caused the raid is at pages G1 and G2 of the appeal bundle. I have carefully read and considered this article. I was struck by the fact that it was written solely in general terms. There are many references to the appalling state of affairs in Bangladesh as a whole and in Dhaka in particular. However, there is absolutely no mention at all of any specific names or parties. Such articles, in general terms, are not uncommon in Bangladesh. In fact, the three articles at pages G3 to G7 (which were also published in the May/June 2002 issue of the Link Bangla) were bolder in content. There was at least the mention of the BNP-Jamat in the articles at pages G3 and G4. The article at pages G5 to G7 appears to be a well-researched article about Ekushey TV's loss of licence. If the writers of these 3 articles were resident in Bangladesh at the time of the publication of the May/June 2002 issue, then, bearing in mind the First Appellant's evidence that none of the writers who write critical articles for his magazine have been arrested or detained, I find that there is no real risk that the First Appellant would have come to adverse interest to the Bangladeshi authorities and/or any fundamentalists on account of his own article at pages G1 and G2 and/or on account of being the owner and editor of a magazine which published the article at Annex G of the Respondent's appeal bundle. This does not mean to say that I found the content of the three articles to be such that they would have drawn adverse attention. In fact, I found the contents of the three articles at pages G3 to G7 were not such as would have drawn the adverse attention of the Bangladeshi authorities and/or any political activists. In saying this, I must make it clear that I am aware that this must be judged not by our standards in the United Kingdom but by the situation prevailing in Bangladesh as it appears from the objective evidence."

6. The Adjudicator's findings of fact are at paragraph 11 and 12 of her determination. They are as follows:

"(11) Findings of Fact: On the totality of the evidence before me and bearing in mind the burden and standard of proof, I make the following findings of fact:

(11.1) I am prepared to accept that the First Appellant has been a journalist in Bangladesh for ten years.

(11.2) I am prepared to accept that the First Appellant was the owner of a magazine called 'Link Bangla'. I am further prepared to accept that the 'Link Bangla' published articles of a political content. I am prepared to accept that the May/June 2002 issue submitted in evidence is genuine and the First Appellant was the writer of the article at page 3 of this issue. However, I am not prepared to accept that the magazine has, to date, published any articles which drew the adverse attention of the Bangladeshi authorities and/or any political activists and/or any fundamentalists. Specifically, I do not accept that the alleged raid in May 2002 ever took place and/or that his house in Comilla was visited by any fundamentalists or activists. Whilst I accept that the First Appellant's magazine was officially closed down in November 2002, my view of his credibility is that I am not prepared to accept that this was for the reasons claimed.

(12) For all of the above reasons, I find that none of the Appellants have a subjective and well-founded fear of persecution by the Bangladeshi authorities and/or any persons who can be regarded as 'agents of persecution' for any Refugee Convention reason in his or her home areas of Dhaka and/or Comilla. It is therefore not relevant to consider the internal flight option."

7. The Adjudicator then dealt with the Human Rights claims. At paragraph 14.1 she said:

"In relation to Article 3, Bangladesh is not a signatory to the ECHR. The issue is whether, bearing in mind the First Appellant's past experiences (as found by me), there is a real risk that he would now face treatment sufficiently serious as to reach the threshold for inhuman or degrading treatment or punishment. For the reasons I have already given in paragraphs 10.1 to 10.12 above, I find that there is no real risk that any of the Appellants would fact Article 3 ill-treatment in Bangladesh from the Bangladeshi authorities and/or any fundamentalists and/or any political activists."

Finally, at paragraph 19 she said:

"Credibility: In general terms, I did not find the First Appellant at all credible."

8. Paragraph 353 of the Immigration Rules as amended states:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

9. I take the relevant law from the judgments of the Court of Appeal in the leading case of R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768, and Secretary of State for the Home Department v Boybeyi [1997] Imm AR 491, and the decision of Collins J in R (on the application of Abraham Rahimi) v Secretary of State for the Home Department [2005] EWHC 2838 (Admin), especially at paragraphs 12, 13, 15, 16, 18 and 19. The realistic prospect of success test is a low one -- in Nourse LJ's words "not a very high test". It really amounts to little more than that there is a reasonable chance that the claim might succeed and that the new evidence might produce a different outcome.
10. The letter from RSF of 14th February 2003 to which I have referred states in part:

"As I said in my previous letter, Mr Palash came under threat in connection with articles in his newspaper (copies previously made available) on the subject of violence against ethnic minorities in Bangladesh following elections in October 2001 which put fundamentalists in government.

I was personally able to verify Mr Palash's story with our own correspondent in Bangladesh, Saleem Samad, and also with the respected Bangladesh Centre for Development, Journalism and Communication (BCDJC). Our contact at this centre, Mainul Khan, has himself since had to flee Bangladesh for the United States, where he is currently living, in connection with another episode that involved the arrest of journalists from Channel 4 Television and of our own correspondent Mr Samad."

The letter of 14th February 2003 asserts that Mr Palash's claim was verified with Mr Saleem Samad and with BCDJC, but it provides no explanation for the difference in Mr Palash's story as reported and his story as advanced in support of his asylum claim, although the letter was not put forward until June 2005, almost two and a half years later.

11. The further letter from RSF on 27th June 2005 states, in part, after referring to Mr Palash facing serious threats to his security in his own country:

"Following an investigation in cooperation with our contacts in Bangladesh, our organisation can confirm that Mr Palash is under threat because of his work as an editor of an independent magazine.

After the publication of articles about violence against ethnic or religious minorities, Mr Palash was threatened by some members of the ruling parties, especially Islamist, which are still in power.

We managed to check the facts related to Mr Palash, especially through our partner organisation, Bangladesh Centre for Development, Journalism and Communication.

We would also like to remind you that Bangladesh is the country in the world that had the highest incidence in the world of violent attacks on the press."

The letter then continues, referring to RSF's last annual report, published in May 2005, which again includes reference to Mr Samad.

12. This letter is very general in nature as to the position in Bangladesh for editors of independent magazines, and as to the general position adds little, if anything, to the Adjudicator's resume in paragraph 8 of her determination where she referred to the general human rights situation in Bangladesh being appalling, that the government's human rights record remained poor in many significant areas with serious abuses continuing, and which makes specific reference to the position of journalists. The only specific point in the RSF letter of 27th June 2005 is the repetition of the assertion that the facts in relation to Mr Palash were checked with BCDJC and unidentified contacts in Bangladesh, again without any particularity in relation to the various matters dealt with in paragraph 10.8 of the Adjudicator's application. That is the paragraph dealing with the earlier material from RSF.
13. The Secretary of State's decision letter of 23rd June 2005 includes the following:

"Consideration has also been given to the documents submitted with your letter [I interpose, the letter of the same date]. They are, however, largely general in nature and do not address the telling findings of fact made by the Adjudicator when she found . . . "

Then there is then a quotation from paragraph 11.2 of the Adjudicator's determination. The letter then continued:

"It is considered that the documents now submitted have been put forward at this late stage in an effort to bolster your client's weak claim. They are considered to be (as the adjudicator found of documents presented at appeal) 'self serving' and not sufficient to warrant regularising your client's stay in this country."

14. The claimant has, in early November 2005, submitted yet further material since the grant of permission which the Secretary of State has considered, and in respect of which he has again concluded that the new material does not create a realistic prospect of success for the claimant's asylum claim. The further material has not, however, been relied upon before me and I say no more about it.
15. What is the cumulative effect of the 14th February 2003 and 27th June 2005 letters from RSF in conjunction with the earlier material from them by letter and on their website referred to in paragraph 10.8 of the Adjudicator's determination? In my judgment, the post-Adjudicator material, considered with what had previously been considered, including material from RSF, does not create a realistic prospect of success and does not constitute a fresh claim for asylum, giving rise upon rejection to a fresh right of appeal. Nothing in the new material, in my judgment, undermines the Adjudicator's rejection of Mr Palash's account as incredible and her rejection of his claimed fear of persecution or ill-treatment. The new material, for the limited extent to which it is specific, deals with matters which have been examined and considered carefully and in detail by the Adjudicator, but it does not do so remotely persuasively and does not begin to grapple with the fundamental difficulties with regard to Mr Palash's credibility. The new material does not, in my judgment serve in any way to undermine the Adjudicator's rejection of Mr Palash's account or raise the prospect of a different outcome.
16. I therefore dismiss the application for judicial review.
17. MISS OLLEY: My Lord, I am grateful.
18. JAMES GOUDIE QC: Anything further arising?
19. MR CHATWIN: My Lord, no.
20. JAMES GOUDIE QC: Thank you both very much.