Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 8
	OPINION OF LORD BANNATYNE in the Petition S.A.C and M.R.M Petitioners; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioners: Forrest; Drummond Miller LLP

Respondent Webster; Office of the Advocate General

24 January 2014

Introduction

[1] These petitions for judicial review came before me for first hearings on 4 December 2013. The petitioner in each case was represented by Mr Forrest, advocate and the Secretary of State for the Home Department ("the respondent") was represented by Mr Webster, advocate. The petitions came before me to be jointly heard in that broadly the same issues were raised in each petition.

[2] Each petitioner sought reduction of the decision of the respondent to certify as clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002 ("the Act") his claim for asylum based on his fear of persecution due to his political opinions. This certification has the practical result that the petitioner cannot appeal the respondent's decision through the statutory appeal framework while remaining in the United Kingdom. The position advanced on behalf of each petitioner was that the respondent had acted irrationality and accordingly reached a decision which was Wednesbury unreasonable.

[3] It was accepted on behalf of the petitioner in each case that his claim based on an alleged breach of article 8 of the ECHR had been correctly decided by the respondent. In addition it was conceded on behalf of SAC that his claim based on fear of moneylenders, who had lent him money while he was in Bangladesh, had been correctly held by the respondent not to be covered by the Geneva Convention.

Background

[4] The petitioner SAC is a 41 year old national of Bangladesh. His immigration history can be summarised as follows:

[5] On 21 November 2007 he applied for a UK family visit visa. This was refused on 26 November 2007 but was allowed at appeal on 6 May 2008. His visa was issued on 17 July 2008 and was valid until 17 January 2009. He arrived in the UK on 6 August 2008.

[6] His wife and child travelled to the UK with him and his second child was born in the UK on 1 December 2008. His family returned to Bangladesh on 12 or 13 January 2009.

[7] On 24 January 2012 SAC was encountered by immigration officials whilst working at a restaurant in Beaconsfield. He gave his name as Mr SA but a fingerprint match revealed his true identity. When this was put to him on 28 January 2012 he made a claim for asylum.

[8] SAC's claim for asylum, so far as material to these proceedings, was based on the following:

[9] He began distributing leaflets for and attending meetings of the Jamat-E-Islami ("JEI") party when he was at high school in 1985. In 2005 the Secretary of the said party in his local area went to Dhaka for 15 months and left him in charge of the local committee. On 1 July 2006 after the return of the local Secretary, a JEI meeting took place in public attended by 150 people. The meeting was called to formally return responsibility from him to the Secretary. Around 10-12 motorcycles arrived each carrying three Awami League ("AL") members shouting political slogans. A fight broke out. SAC was able to take the guest speaker of the meeting to safety and returned to join in the fight. Within a short time the AL members disappeared.

[10] After this fight, two AL members the petitioner knew from school, who had taken part in the said fight, often threatened him when they saw him in the market.

[11] He was supposed to return to Bangladesh on 12 January 2009. He did not return. A week before he was due to return, his mother had received a threatening telephone call on his telephone, saying that if he came back to Bangladesh he would be killed. Though he did not know for sure who had made that telephone call he believed it to be the two persons who had previously threatened him.

[12] Since he had been in the United Kingdom an election had been held and the AL had come to power. After this election he asserted that AL members had ransacked businesses belonging to supporters of the JEI and the Bangladesh National Party ("BNP") (another political party). His position was that if returned to Bangladesh he feared that he would be hurt or even killed by local AL members and in particular the two persons above referred to.

[13] With respect to MRM he is a 28 year old Bangladeshi national. His immigration history is that he arrived in the UK on 4 or 5 August 2008 and entered this country with his own Bangladesh passport and a working holidaymaker's visa. At the time of entering the United Kingdom he asserted that he had the intention of returning to Bangladesh before his visa expired. In 2009 when the AL came to power in Bangladesh he decided not to return there. He did not claim asylum at this time because he claimed he did not know how to apply for it or where to make the application. In 2012 he lodged an asylum application. He absconded from the UK Border Agency when he was released pending an asylum interview. He stated that on this occasion, he had stopped living at the address that he had given to the agency and had to move to another address. He was eventually encountered working illegally in Bromborough on 19 April 2012 and was detained at that time as an overstayer. He was again released and again failed to attend an interview in relation to his asylum interview. He was finally encountered working illegally on 28 June 2013 and was detained whilst his claim for asylum was in progress.

[14] The basis of his claim, so far as material to these proceedings, was as follows: whilst in Bangladesh he was a supporter of the Bangladesh National Party ("BNP"). He was a supporter for some time and in 2007 became a member, working as Secretary of his ward. He was responsible for recruiting young people to join the BNP. At the time this was happening there was a caretaker government in power in Bangladesh. He did not have any problems as a result of supporting the BNP, except for the occasional argument with AL supporters due to differences in political opinions. He had only had problems with particular AL supporters in his area and he named three people with whom he had had problems. These persons were supporters of the AL and not members. He did not have any problems with actual members of the AL.

[15] Since leaving Bangladesh he has not had any involvement with the BNP. His role as Secretary has been given to someone else. He believed that if returned to Bangladesh, where the AL was now in power, he would continue to fight with AL supporters due to his difference in political opinion. He feared that he would encounter trouble on return to Bangladesh from the AL as a result of his links to the BNP. He believed that the AL supporters would take revenge on him because of his previous arguments. He also believed that the AL supporters would probably make false allegations or obtain a warrant against him and he believed that they would do this as that is the way that they do things.

The legal framework

[16] Section 94 of the Act insofar as material provides this:

"(2) A person may not bring an appeal to which this section applies...if the Secretary of State certifies that the claim or claims...is or are clearly unfounded."

With respect to when a claim can be certified as clearly unfounded the law is well settled and is this: a claim is clearly unfounded only if the respondent is reasonably and conscientiously satisfied that the claim must clearly fail R (Yogathas and Thangarasa) v Secretary of State for the Home Department 2003 1AC 920 per Lord Bingham of Cornhill at paragraph 14 or if the claim cannot on any legitimate view of the relevant facts succeed: R (L and another) v Secretary of State for the Home Department 2003 1 WLR 1230 per Lord Phillips of Worth Matravers at paragraph 57.

Submissions for the petitioners

[17] Mr Forrest first looked at the petition in SAC's case. He submitted that the relevant fact in considering his claim was the petitioner's assertion that if returned to Bangladesh he would be persecuted as a result of his political opinions. He submitted that the approach of the respondent in the decision letter was this: she had considered the petitioner's account of persecution and she had taken the view that his political involvement was minimal and confined to local politics. She had then on that basis assumed that even if all that was said within the petitioner's account was correct there would nevertheless be a sufficiency of protection in Bangladesh (see: paragraphs 15 to 23 of the decision letter) and moreover the petitioner could relocate internally in Bangladesh (see: paragraphs 24 to 33 of the decision letter).

[18] Against that background Mr Forrest first submitted that the respondent had erred in taking no account of the wider effects of the petitioner's political involvement. In particular he contended that the respondent had taken no account of the information provided to her by the petitioner which first evidenced the election to power at national level of the AL and second indicated that it had malign intentions towards members and leaders of parties such as the JEI.

[19] He submitted that in view of the petitioner's previous involvement with the JEI, the threats he had received and the development of the situation resulting from the election of the AL it was not rational for the respondent to conclude that the petitioner's claim was bound to fail.

[20] Turning to the issue of sufficiency of protection it was Mr Forrest's position that the foregoing error had equally infected the respondent's consideration of this issue. He contended that if the problem which the petitioner faced was a national one arising from the actings of the governing party, namely the AL, then there could be no sufficiency of protection.

[21] Moreover it was his position that it was irrational on the information relied upon by the respondent in the course of the decision letter to hold that there would be a sufficiency of protection.

[22] With respect to paragraph 15 of the decision letter he highlighted this section of the background information upon which the respondent was relying in holding that there would be sufficiency of protection:

"Police generally were ineffective and reluctant to investigate persons affiliated with the ruling party. Impunity was widespread among the security forces."

[23] He submitted that on the basis of this information the respondent could not rationally hold that there was a sufficiency of protection. Mr Forrest went on to submit that the rest of the background information relied upon by the respondent in the decision letter could properly be described as no more than aspirational in nature. None of this information he submitted rationally justified a conclusion that there would be a sufficiency of protection if the petitioner were returned to Bangladesh.

[24] Lastly looking at the issue of internal relocation he submitted that the respondent's conclusion that the petitioner could internally relocate was once more fatally undermined by the respondent's failure to have regard to the AL now being in power. Thus she had failed to have regard when considering internal relocation to the fact that the petitioner would have difficulties no matter where he relocated in Bangladesh. His problem was a national one and not a local one as the respondent had held.

[25] Turning to the case of MRM it was again the position that he feared persecution on his return to Bangladesh for broadly the same reasons as SAC.

[26] Mr Forrest contended that the material upon which he had relied in advancing his argument on behalf of SAC was equally applicable to the case of MRM and rendered the respondent's decisions regarding fear of persecution, sufficiency of protection and internal relocation irrational. The respondent had once again failed to consider the petitioner's position in light of the fact that the AL was now the governing party. This failure had caused her wrongly to approach the petitioner's position as evidencing no more than a local problem. This was irrational in light of the said election. His problem was a national one.

[27] It was his position that having regard to the errors in law within the said two decision letters the respondent's decisions that the petitioners' applications should be rejected as clearly unfounded could not be sustained and should be reduced.

Reply on behalf of the respondent

[28] Mr Webster commenced his reply by asserting that the primary problem for the petitioner was this: no evidential basis was presented to the respondent upon which she could have concluded that there was either country wide persecution or country wide failure on the part of the authorities to act to deal with such persecution. No background evidence had been presented of widespread persecution by the state or by state actors. He submitted that if it were to be submitted that the respondent had acted irrationally the petitioner must offer an evidential basis against which the irrationality could be tested and the petitioner had simply not done this.

[29] With respect to the issue of sufficiency of protection the respondent in each decision letter had considered this issue carefully.

[30] He submitted regarding this issue: in contrast to the petitioners assertion of generalised state persecution where there was no supporting background evidence presented to the respondent, she was able regarding the issue of sufficiency of protection to point to background evidence setting forth the nature and degree of state protection available to the petitioners. He submitted on the basis of this background evidence that the respondent was clearly entitled to hold that a sufficient level of protection was provided by the state and that it was open to the petitioners to take advantage of this.

[31] Beyond that he submitted that each decision letter had fully considered the issue of internal relocation. It was his position that even if the petitioners had any basis for asserting that they had certain fears relating to the locality in Bangladesh from which they had originated, again there was no evidence that if they internally relocated: first that they would be likely to be identified as supporters of parties other than the governing party or second that on a country wide basis there was any threat of persecution to fear. He submitted that the respondent had given a fully reasoned decision for holding that internal relocation was an option open to both petitioners.

[32] For the foregoing reasons he moved that I refuse both petitions.

Discussion

[33] In relation to each petitioner it was first asserted that he feared that because the AL was now the party in power and it had malign intentions towards members and leaders of other parties he would be persecuted for his political beliefs no matter where he went in Bangladesh.

[34] It was argued, in summary on behalf of both petitioners, that the respondent had failed to take account of the election of the AL and the national problem which this created for persons such as the petitioners and had wrongly apprehended their difficulties as being a local issue. Mr Webster in reply, in summary, submitted there was no evidence to support the assertion of national persecution.

[35] With respect to this issue I prefer the submissions made by Mr Webster to those made on behalf of the petitioners.

[36] On examination of the information put before the respondent on behalf of the petitioners there was nothing to suggest that since coming to power there had been countrywide persecution by the AL of members or supporters of other political parties.

[37] Turning first to the case of MRM the basis of his claim is fully set out in the decision letter of the respondent. There is no information and no evidence contained therein which supports the contention advanced on his behalf that since the AL has come to power there has been widespread persecution of members of other political parties such as him.

[38] The only information put before the respondent on this issue was a bald assertion which is set out at page 3 letter L and M of the decision letter that because the AL were in power the petitioner would continue to fight with their supporters and would encounter trouble with them.

[39] In the course of his submissions to me on behalf of MRM Mr Forrest took me to no specific piece of evidence which was presented to the respondent which supported his contention that there was country wide persecution of supporters of other political parties since the election of the AL. He referred to no piece of evidence in relation to the case of MRM which he submitted that the respondent had failed to take account of which supported the contention of such countrywide persecution. I observe in particular that no objective background information appears to have been presented to the respondent in the case of MRM that supported this contention. Beyond that in the course of his submissions no evidence was advanced by Mr Forrest which he submitted should have been known to the respondent at the material time, despite not having been specifically presented to her on MRM's behalf.

[40] Against that background it seems to me that it was not stateable that the respondent had acted irrationally by holding that any difficulties this petitioner may encounter arising from his political views were confined to the area of Bangladesh from which he originated. On the contrary there was nothing before the respondent which would have entitled her to hold that as a result of the election of the AL there was countrywide persecution of supporters of other political parties. For her to have held this on the basis of no information would have been irrational.

[41] Moreover, I note in relation to MRM these findings of the respondent at paragraphs 14 and 15 of the decision letter:

"14 You have not demonstrated that if you did return to Bangladesh, that you would have any problems due to your previous involvement with BNP, especially as the position you have held is now held by another member of the BNP.

15. You have suggested that the people you fear may still seek to harm you on return, regardless of your lack of political position. When asked about this you confirm that you have no evidence to suggest that this is the case and therefore your belief is considered to be speculatory (sic) in nature."

[42] Accordingly the respondent held that not only was there no national threat of persecution but that there was no threat of persecution of this petitioner even at a local level.

[43] It appears to me that on the basis of the whole information before her the respondent was clearly entitled to reach the view that this petitioner's claim that he was fearful of persecution on his return, even at a local level, was entirely speculative. Looking to the information he presented in particular at paragraph 7H, I, J and L of the decision letter no cogent basis for any fear of persecution was presented.

[44] MRM's claim at its highest, as put before the respondent, amounted to no more than that at some time in the past (2007) he had held a position with the BNP and that as a result of supporting the BNP he occasionally had arguments and fights with AL supporters. There was no evidence of any threats made to him by AL members. In my opinion a claim for asylum on such a basis clearly entitled the respondent to hold that there was no real risk of persecution on the petitioner's return to Bangladesh even if he returned to the area in which he had previously resided.

[45] For the foregoing reasons I am clearly of the view that the respondent was entitled to certify MRM's claim as clearly unfounded. In my view on the basis of the information before her she was entitled to take the view that MRM's claim could not on any legitimate view of the relevant facts succeed. In my view in relation to MRM, having regard to the above factors, his case in terms of the Convention does not even get off the ground. In my view on the primary issue, namely, was there a well-founded fear of persecution the respondent's decision is unimpeachable. On the information before her neither a claim of fear of persecution relative to the area from which the petitioner came nor nationally in Bangladesh could on any legitimate view of the facts succeed.

[46] With respect to the position of SAC, the respondent's position is different from that which she took regarding MRM, in that it appears both from the terms of the decision letter and from the way that it is structured that she assumed that at a local level there was, assuming the petitioner to be credible, a possibility of a risk of persecution on the petitioner's return to Bangladesh and that she turned on the basis of that assumption to consider the issues of sufficiency of protection and internal relocation.

[47] The primary argument developed on behalf of SAC was the same as that which had been put forward on behalf of MRM, namely: that the respondent had erred in law by approaching this matter on the basis that the fear of persecution was confined to the petitioner's locality and not a fear of countrywide persecution following upon the election of the AL.

[48] As with MRM it was not disputed that the AL was the party in government. Rather the question was the same as in relation to MRM: what if anything had been put before the respondent in support of the contention that the AL had following its election persecuted on a countrywide basis its political opponents?

[49] As with MRM the decision letter relating to SAC sets forth details of his claim and reference is made to all of the documentation which was provided in support of that claim. The only information put before the respondent regarding any national problems following upon the election of the AL was a wholly unsupported assertion by the petitioner that AL supporters following the election had ransacked business premises belonging to supporters of the JEI and BNP. This assertion it appears to me does not support ongoing countrywide persecution.

[50] Again, as with the case of MRM, there was other than that assertion by SAC himself no information presented to the respondent tending to show that any such national problem existed following the election of the AL. In particular it is noteworthy that no objective background information supporting the petitioner's contention of countrywide persecution of supporters of other parties by the AL was presented on behalf of the petitioner. The information produced by the petitioner to the respondent rather supported his claim based on fear of persecution by moneylenders to whom he owed money and not a fear of persecution based on his political beliefs. Beyond that, as with his submissions on behalf of MRM Mr Forrest did not submit that there was any objective background information which should have been known to the respondent, although not specifically relied upon by the petitioner, which supported the petitioner's contention of countrywide persecution. The respondent on the basis of the information before her was entitled to conclude that any possible problem which existed so far as persecution of the petitioner SAC on his return to Bangladesh would only be a local problem confined to the area from which he had come in Bangladesh. It is my clear view that the respondent did not err in law in holding that any problem which existed was of such a nature. To have found to the contrary effect on the information before her would in my view have been entirely irrational.

[51] The next issue in relation to SAC which was considered by the respondent was sufficiency of protection. In Horvath v Secretary of State for the Home Department 2000 2 WLR 379 Lord Hope of Craighead observed at p387as follows in relation to sufficiency of protection:

"To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection."

Lord Hope further observes at p388:

"The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said at p44G, under reference to Professor Hathaway's observations in his book at page 105, it is axiomatic that we live in an imperfect world. Certain levels of ill treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the tribunal in this case applied the right standard when they were considering the evidence."

[52] Applying the above standard to the circumstances of the instant case I observe that the respondent over four pages of her decision letter between paragraphs 14 and 23 considers the issue of sufficiency of protection. In the course of her detailed discussion of this issue she refers to a number of pieces of background and objective information. She recognises that in terms of that information there is a measure of ineffectiveness and corruption on the part of the police force in Bangladesh and there is a problem of corruption within the judicial system. However, said information also points to steps being taken to reform the police. It seems to me, when looked at as a whole, the said information entitled the respondent to hold first at paragraph 18:

"As outlined above, although there are concerns regarding their effectiveness in all cases, there are avenues of complaint that you are entitled to pursue, if you sought help from the police and felt that they had failed to investigate your case."

And secondly at paragraph 20:

"It is accepted that there is some corruption within the Bangladeshi police and judicial system. However, it is not accepted that this indicates that Bangladeshi authorities are unable or unwilling to assist you. It is considered that Bangladesh has an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and that you would have access to the system."

For the above reasons I believe the respondent was entitled to hold that there would be a sufficiency of protection available to SAC.

[53] The respondent also, despite her views on the primary issue regarding MRM, considered in his case similar objective background information as regards sufficiency of protection as she considered in the case of SAC (see: paragraphs 14-28) and for the same reasons as above I believe she was entitled to hold on the basis of that information that looked at against the identified standard there is a sufficiency of protection provided by the state should MRM be returned to Bangladesh.

[54] It appears to me in light of the above that as regards the issue of sufficiency of protection both petitioners were bound to fail as on no legitimate view of the facts could they succeed on this issue.

[55] With respect to the final issue of internal relocation this matter was considered in Januzi v Secretary of State for the Home Department 2006 2 AC 426 and in that case Lord Hope of Craighead observed:

"The question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights." (see: paragraph 45) and

"If the possibility of internal relocation is raised, the relevant comparisons are between those in the place of relocation and those that prevail elsewhere in the country of his nationality." (see: paragraph 46).

[56] The decision letter in the case of SAC notes the following: (a) the population of Bangladesh is approximately 150 million (paragraph 25); (b) the area of Bangladesh is approximately 144,000 square miles (paragraph 25); (c) that broadly there is freedom of movement in the country (paragraph 26); (d) at paragraph 27 the respondent concludes that given the size of the country and the population thereof there are opportunities for the petitioner to relocate; and (e) at paragraphs 28 and 29 the respondent considers fully the test set out in Januzi and then concludes at paragraphs 30 and 31 that the petitioner could relocate.

[57] In my view the issue of relocation is fully considered by the respondent; the respondent takes account of all relevant factors and takes into account no irrelevant factors; she advises herself as to the correct legal test; she gives full reasons for her decision on the issue of whether the petitioner could relocate; and these reasons are cogent.

[58] It is noteworthy that in the information before the respondent there was no suggestion that the persons with whom the petitioner had had difficulties had either the resources or the inclination to track the petitioner down should he relocate in Bangladesh.

[59] Against that whole background it seems to me that the respondent was entitled to hold that SAC could internally relocate. On any legitimate view of the issue of internal relocation this petitioner could not succeed.

[60] Similarly in relation to MRM from paragraph 29 in the decision letter the respondent considers the issue of relocation. She considers broadly the same factors as in SAC and reaches the same conclusion for the same reasons. I can identify no error of law in relation to this. In my clear view the respondent was entitled to hold that this petitioner could relocate. On any legitimate view of the issue of internal relocation this petitioner could not succeed. There was again no suggestion that the persons this petitioner feared had the resources or inclination to find him should he relocate.

Conclusion

[61] For the foregoing reasons I am of the view that the respondent was entitled to reach the view that the prospects of success of each of the petitioners was such that their claims must fail. It appears to me that she was well entitled to hold that each petitioner's claim was clearly unfounded.

Disposal

[62] For the above reasons I shall in each case sustain the respondent's third plea-in-law and repel the petitioners' pleas-in-law and refuse both petitions. I was not addressed in relation to the issue of expenses and I have reserved my position regarding this issue.