MD NAZIR AHMED SARKAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 159/2019

[2021] HKCA 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2019

(ON APPEAL FROM HCAL 519/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the judgment of Deputy High Court Judge Bruno Chan (“judge”) given on 22 March 2019 dismissing the application for judicial review (“judgment”). Leave for application for judicial review has earlier been granted by the judge on 20 April 2018.

2.  The appeal raises the interesting question of the extent to which a subsequent administrative appeal authority (in the form of the Non-refoulement Claims Petition Office (“NRCPO”)) should pay regard to the decision of a previous Board (the CAT Appeal Board) on the same issue.  The applicant was represented by Ms Lau who argued that there was a legitimate expectation on the part of the applicant that the Torture Claims Appeal Board’s (“the Board”) determination in his favour that he was at risk of severe pain and suffering should be taken into account and procedural fairness demanded that clear reasons ought to be given by the NRCPO in departing from the same with adequate notice to afford an opportunity to the applicant to make meaningful representation.  Counsel also contended that given the error of the adjudicator in the NRCPO assessment of risk, the court could not rely on its finding on internal relocation to uphold the decision.     

3.  The appeal is opposed by Mr Hew on behalf of the Director of Immigration (“the Director”).

4.  We reserved our judgment after the hearing on 14 October 2020.  In the subsequent deliberation, we came to the view that there were issues which we needed to canvassed further with counsel.  We therefore held another hearing on 10 June 2021.  After hearing further submissions, we reserved our judgment which we now give. 

Background

5.  The applicant claims to be a Sunni Muslim born and raised in Gaibandha, Bangladesh.  He is a national of Bangladesh. According to the applicant, he became involved in politics after dropping out from a university in Dhaka.  He joined the Bangladesh Workers Party (“BWP”) and later became its chairman in his local constitute.

6.  Due to his popularity in his party, he received invitations to join the Purbo Bangla Communist Party (Sarbahara Party) (“PBCP”), a rival political party.  After he refused to join, he was abducted by the PBCP in December 1997 and was kept for two weeks in a basement before he managed to escape.

7.  He and his wife were threatened and harmed by the PBCP on numerous occasions in the following years.  The judge gave a summary of these events in [5] to [17] of the judgment. 

8.  The applicant claimed that he decided to leave Bangladesh for good for his own safety.  He entered Hong Kong on 17 July 2006 as a visitor and was granted permission to stay until 4 August 2006.  He overstayed and was arrested on 2 June 2011.

9.  His wife remained in Bangladesh and went missing on 18 December 2007.  She was later found in a hospital and she subsequently informed the applicant that she had been kidnapped and raped.  The applicant’s case was that PBCP was responsible.

10.  The applicant’s wife told him that his mother and elder brother were killed by PBCP’s people on 22 September 2009 when they came to the applicant’s home to look for him.  Fearing for their safety, the applicant advised his wife to come to Hong Kong with their sons.  His wife and their sons arrived on 15 January 2013.  The applicant followed his wife and converted to be an Ahmadi Muslim.

11.  After the arrest on 2 June 2011, the applicant lodged a torture claim on 7 August 2012.  He completed a Torture Claim Form (“TCF”) on 23 July 2013 and attended screening interview before the Immigration Department.

12.  The Director dismissed his torture claim in a decision dated 24 January 2014.  The applicant appealed to the Board which handed down its decision to dismiss the appeal without a hearing on 10 June 2014 (“the Board’s Decision”).

13.  For present purposes, the most relevant finding of the Board was at paragraph 67:

“ 67. I conclude on the basis of the papers before me that the Appellant, if refouled, is at real and personal risk of severe pain or suffering at the hands of PBCP but that such pain or sufferingwould not amount to ‘torture’ within the meaning of the statutorydefinition shown above, because there is nothing to indicate thatit might be inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.”

14.  On 6 March 2014 the applicant made a non-refoulement claim.  He later completed a Supplementary Claim Form (“SCF”) on 6 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

15.  By a Notice of Decision dated 30 November 2015 the Director again rejected the applicant’s non-refoulement claim based on risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

16.  By a Notice of Further Decision dated 9 March 2017, the Director rejected the applicant’s claim based the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 risk”).

17.  The applicant appealed against the Director’s decisions dated 30 November 2015 and 9 March 2017 to the NRCPO.  The NRCPO held a hearing on 27 September 2016 in which the applicant was legally represented and he gave evidence.

18.  On 19 May 2017, the NRCPO handed down its decision to dismiss the appeal (“NRCPO Decision”).  The adjudicator dealt with the claim based on alleged risk of persecution arising out of the applicant’s conversion to Ahmadiyya Muslim.  After considering various country of origin information (“COI”), the NRCPO concluded that his fear of being attacked by other Muslims for being an Ahmadi Muslim was “mere speculation” and there was no evidence to suggest that the Bangladeshi government encouraged or tolerated the attacks towards Ahmadi Muslims.  The adjudicator therefore dismissed applicant’s claim based on his conversion to Ahmadiyya Muslim.  The applicant did not challenge this conclusion in the judicial review.

19.  The adjudicator also considered the applicant’s claims based on the threats from the PBCP.  Though the applicant’s claim under torture risk had been disposed of and was therefore not a matter before him, the adjudicator saw fit to express his view on the same without alluding to the reasoning of the Board and its finding at paragraph 67.  The adjudicator did not find against the credibility of the applicant but proceeded to reach a conclusion contrary to paragraph 67 of the Board in three short paragraphs:

“ 10. The only occasion in which the Appellant alleges assault was ‘Incident 4’, but he had not suffered any serious injury, because he was able to fly from Bangladesh to Hong Kong and did not see any doctor until he had arrived here. In Hong Kong he was only given an injection and painkillers, but did not need any major medical or surgical treatment. He has not suffered ‘severe pain and physical and mental suffering reaching the minimum level of severity on the duration of the treatment, its physical or mental effects”: Huri-Laws v Nigeria, African Commission of Human and Peoples’ Rights, CAT 225/1998 at §41.

11.  Furthermore, assaults do not constitute “Torture” unless inflicted by someone acting in the official capacity of the State: M.P.S. v Australia CAT 138/1999.  In assaulting the Appellant, the people of the PBCP were not, nor will they be, acting for or on behalf of the national Government.       

12.  There is no evidence of physical or mental pain or suffering which satisfies ‘Element 1’.  I realise that the lack of ‘Element 1’ in the past does not mean no torture in future, but the evidence does not establish substantial grounds showing a foreseeable and real risk.”

20.  By “Element 1”, the adjudicator referred to the element of severe pain or suffering whether physical or mental in establishing torture.  The reference to Incident 4 was meant to be a reference to what occurred on 14 July 2006 described at paragraph 3 of the NRCPO Decision which set out the facts of the applicant’s claims,

“3. The Appellant says he had grown up in Village Ghuridaha in District Gaibandha, had completed Class 12, but did not complete his Bachelor of Arts degree in Dhaka. He says he had joined the BWP as a convenor in 1988 (when he was aged 20) and had later become their President in his home district. In ‘Incident l’ which he says occurred on 16 December 1997, 7 or 8 men took him to the bank of the Fulchuri River where they told him to join the PBCP, then took him to a secret place called Pabna Dhala Chor where 38 to 40 persons told him about the secret of their operations and their internal rules. He was detained but never assaulted. After a fortnight, on 31 December 1997, he made an excuse, escaped, and went to his second house in Kalyanpure in Dhaka, not being his ancestral home in Gaibandha. He did not inform the police about this incident. In ‘Incident 2’ which he says occurred three months later on 25 March 1998, after some celebrations in Gaibandha, he was riding his motorcycle on the way from the BWP office to his ancestral home when he heard one gunshot, which he ‘believed’ to have been fired by a PBCP person (NB: A ‘belief’ is not admissible evidence of the fact it contains), but there was no evidence of identity. Feeling afraid, he went straight to Chittagong to stay with his brother-in-law Miah for about a month. He did not report the gunshot incident to the police. While in Chittagong he saw a few PBCP people who he says he had seen in ‘the secret PBCP place’, and so he moved to Dhaka. Nothing happened for half a year, but in ‘Incident 3’ which he says occurred on 19 October 1998 when he was with his wife in his ancestral home in Ghuridaha, 6 or 7 people came into the house and asked for his whereabouts. He hid himself on the roof and heard them uttering death threats. He did not report the incident to the police. He moved to a rented flat in Kazitola (in Sylhet) where he stayed 3 months. All was well until he saw 6 or 7 people smoking inside a restaurant when he was riding his motorcycle from Kazitola to Dariapara who he says he had seen while in ‘the secret PBCP place’. Over the following 6 months until mid-April 1999 he had, travelled several times between Sylhet and Dhaka on business, encountering nothing hostile during all this time. Nevertheless he departed Bangladesh on 26 April 1999 for Guangzhou on business. He started his garment business in May 1999 and had travelled to 13 or 14 countries for business purposes from 1999 to 2006. He says that in ‘Incident 4’ which occurred on 14 July 2006 he had gone back to Kalyanpur when 7 or 8 people (he did not say who these people were) came to his house and punched and kicked him, then blindfolded and tied him in a room in Dhebphur (Gaizhipur), but he managed to untie himself, escaped, and went back to Dhaka. He then left for Hong Kong on 17 July 2006. After arriving in Hong Kong he saw a doctor who gave him an injection and some painkillers.”

21.  In this connection, we note that in the NRCPO Decision the adjudicator did not mention further events which was alluded to by the Board[1] and also by the judge in the judgment below at [14] to [16]:

“ 14.   Whilst in Hong Kong he heard that his wife was missing on 18 December 2007 at a train station in Dhaka which was reported on a newspaper, but was later found in a hospital, and that he was later told that she had in fact been kidnapped and raped, for which he believed that the PBCP people were responsible.

15.  After the incident his wife moved their home to another rented house in Dhaka where the landlord was an Ahmadi Muslim who persuaded her to convert her religion to Ahmadiyya after hearing what she and their family had gone through, and eventually in 2011 his wife converted to be anAhmadi Muslim, but when her family found out about it, they were opposed to her conversion and kept her locked up in her own home, of which she felt being mentally tortured. 

16.  Meanwhile the applicant also learnt from his wife that his mother and his elder brother were killed by the PBCP people on 22 September 2009 when they came to their home looking for him during which his brother quarreled with them and was shot by those men who also shot his mother when she tried to protect his brother.  The shooting incident was also reported in the newspapers, and the applicant believed that the PBCP people were also involved.”

22.  These events, though occurred after he left Bangladesh, were plainly relevant to the assessment of risk of harm, as further discussed below.  In this connection, it is relevant to contrast the findings of the adjudicator with those made by the Board at paragraphs 30 to 33 of the Board Decision:

“ 30. The Appellant’s case is that if refouled, he will be at risk, in the first place from the PBCP and in the second, because he has converted to Ahmadiyya.

PBCP

31. I deal first with the question of the PBCP. Here the Appellant’s case is that if he is refouled to Bangladesh, he is at risk of serious harm and even death from them. He was kidnapped, though not seriously harmed, in 1997, but escaped. Presumably because he knew too much about the PBCP, in March 1998 someone tried in vain to shoot him. PBCP came looking for him at his home in October 1998 but he managed to hide from them. He moved to a different province, but when he felt unsafe there, he moved abroad. However, the PBCP had a long memory. When he was at home in 2006, they kidnapped him again, with some violence. However, he managed to escape and again fled the country. In his absence, PBCP attacked and raped his wife in 2007, and in 2009 they went looking for him again. This time, they killed his mother and brother, it appears from one of the newspaper reports that the Appellant has produced that the homicides came about rather because of an argument or obstruction then by premeditation, but family members were killed and there was also a threat that if the Appellant had been there, he would have been killed also. The inference the Appellant draws is that if he returns, there is a real risk that the PBCP will find him and do him serious harm, even amounting to murdering him.

“Real Risk of Torture”

32. Past incidents involving the Appellant directly did not involve serious physical harm. However there were two kidnappings and some violence. Serious mental suffering would necessarily be involved. There has been further and lethal violence against family members. On that occasion one of the assailants, according to the Appellant’s newspaper cutting, said that if the Appellant had been there, they would have ‘finished him today’. That amounts to a direct threat against the Appellant’s life. I think it must be taken as a real threat because the assailants came armed with firearms. It may be that the homicides were not premeditated, but if the same people were to come looking for the Appellant, armed with firearms, even if they did not set out to kill him at once, there would be a serious risk that that would happen.

33. I would accept that there is a real risk that if refouled, the Appellant is at risk of serious physical pain or suffering, indeed death which is the most serious of all, from PBCP members.  It is of course true that we are now in 2014, and the first kidnapping took place in 1997.  However the family killing in 2009 and the threat then uttered suggest that the PBCP have long memories and could still come after the Appellant if he were refouled.  It is reasonable to accept that the PBCP would do this for purposes of punishing him for getting away with their secret information, and/or to coerce him and even kill him to ensure his silence.”

23.  At paragraphs 21 and 22 of the NRCPO Decision, the adjudicator explained that the requirement of serious harm in the context of BOR 3 claim discussed in Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359.  Then at paragraph 23, the adjudicator simply referred to his earlier reasons (viz those set out in the context of his discussion on torture at paragraphs 10 and 12) for holding that the applicant would not face a future risk of serious harm.   

24.  In relation to persecution risk, the adjudicator held at paragraphs 27 to 29:

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

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

29. The Appellant has not suffered severe injury or serious harm which would place him within the criteria of Persecution.  In any event, for reasons stated I find no substantial ground to believe he will face a future risk of serious harm.  Furthermore the COI shows reasonable availability of State protection from such harm.  In addition, the 7 alleged assailants do not come within the meaning of ‘populace’ in refugee law.  Hence the situation falls far short of establishing ‘Persecution Risk’.”

Judicial review

25.  The applicant filed a Form 86 on 16 August 2017 which was subsequently amended on 30 April 2018.  Leave for application for judicial review was granted by the judge on 20 April 2018.  The grounds of application can be summarized as follows:

(1)  that the adjudicator acted ultra vires and/or was procedurally improper in making a finding on ‘torture’ in the NRCPO Decision when the Petition was only heard on BOR 2, BOR 3 and persecution risks (“Ground 1”);

(2)  that the adjudicator acted contrary to the applicant’s legitimate expectation which arose as a result of the previous Board’s finding with regard to ‘torture’ accepting that the applicant was ‘at real risk of serious pain or suffering, or indeed death’.  The adjudicator did so without giving reasons.  Further, in the absence of any demonstrable irrationality, relevant consideration or fresh material justifying such departure, the adjudicator acted in such a manner as to create an inconsistency which was procedurally improper (“Ground 2”); and

(3)  that the adjudicator acted ultra vires by applying the incorrect legal test for persecution in the assessment of risk pertaining to it (“Ground 3”).

26.  On 22 March 2019, the judge handed down his judgment dismissing the application for judicial review.  The judge devoted a large part of his discussion on Ground 2 on whether the principles of res judicata and issue estoppel are applicable in respect of decisions of the Board.  Having considered the judgments in C v Director of Immigration (2013) 16 HKCFAR 280 at [93] to [98] and AW v Director of Immigration [2016] 2 HKC 393 at [63] to [65] and several English authorities on the practice in the Immigration Appeal Tribunal including Devaseelan v SSHD [2002] UKIAL 00702; LD (Algeria) v SSHD [2004] EWCA Civ 804; Ocampo v SSHD [2006] EWCA Civ 1276 and AA (Somalia) v SSHD [2007] EWCA Civ 1040, the judge held that while the adjudicator should have regard to the  Board Decision, he has a duty to make an independent assessment unfettered by the principles of res judicata or issue estoppel. 

27.  At [62], the judge cited Ng Siu Tung v Director of Immigration [2002] 1 HKLRD 561 at [101] and agreed with the submission of Mr Hew which he set out at [61]:

“ Mr Hew submits that these cases demonstrate the fundamental flaws in the applicant’s arguments which are based on legitimate expectation/ consistency in that the “legitimacy” of any “expectation” created by the first decision must be assessed in accordance with how the relevant system treats issues relating to res judicata/re-litigation, as even if there were an “expectation” created by such prior judgment and/or the declaration of finality, it can only be “legitimate” if enforcing it would not be contrary to the relevant applicable legal principles in that system which govern issues of res judicata/re-litigation, as after all, that is all the applicant can reasonably expect, bearing in mind any relevant considerations of policy and principles.”

28.  He therefore dismissed Ground 2 at [64]:

“ For these reasons I agree with the Director that the applicant’s complaint fails whether analyzed as legitimate expectation or inconsistency, and that in any event I do not see how any expectation, let alone a legitimate one, could have arisen from the NRCPO Decision, as the only clear and unambiguous commitment made by the Government is that his CAT claim would be “finally determined”, and that there is nothing to suggest that all and any future tribunals dealing with his other claims would be bound by the facts of that determination …”

29.  In respect of Ground 1, the judge alluded to the Board’s reason for not holding an oral hearing and its determination of the appeal by taking the applicant’s case at its highest.  As there was no need for the Board to probe or make further inquiry in respect of the applicant’s credibility, there could not be any bar on the NRCPO in the subsequent proceedings to hold an oral hearing and address the issue before it on the basis of the evidence then came before it.

30.  In respect of Ground 3, the judge did not find the legal test applied by adjudicator on persecution to be wrong in law.    

31.  The judge further held that in any event there was no complaint about the adjudicator’s findings on internal relocation.  The judge found that the adjudicator had applied the correct principles in concluding that the applicant may safely relocate to other cities in Bangladesh. 

32.  The judge therefore dismissed the application for judicial review with costs to the Director.

The Appeal

33.  In the Re-Amended Notice of Appeal dated 9 October 2020 (leave was granted on 7 October 2020), the applicant advanced grounds of appeal to challenge the judge’s conclusions under Ground 1, Ground 2 and Ground 3.  It also challenged the judge’s holding that the adjudicator made no error as to internal relocation.

34.  At the hearing of the appeal on 14 October 2020, Ms Lau for the applicant conceded that the applicant could not rely on the legitimate expectation ground as pleaded in the Amended Form 86.  Instead, counsel rely on a watered down version of this ground as follows:

“ The adjudicator should, ought to have given consideration to [the prior findings in the Appeal Board CAT Decision]. They were relevant. They should have been considered and he should have given reasons for departing and given adequate notice to make worthwhile representations if he intended to depart [from it].”

35.  We find it convenient to address the submissions of counsel by reference to Ground 1, Ground 2 and Ground 3.  Last, but not least, we shall address the question of internal relocation.

Ground 1

36.  We can be brief on Ground 1 because in the ultimate analysis it would not affect the outcome.

37.  With respect, whilst the judge was correct in holding that the ruling of the Board could not preclude the NRCPO from conducting an oral hearing and then acted upon the evidence obtained at such hearing, this does not provide an answer to the challenge to the appropriateness of the adjudicator addressing the claim based on torture when it was no longer a live claim before the NRCPO (as it had been determined by the Board).

38.  We are of the clear view that the adjudicator was wrong insofar as he purported to address the torture claim again.  He had no power to do so as the Petition was only brought in respect of the other claims when the torture claim had already been decided.  It does not matter that the Board was able to reach its decision without any oral hearing.  Once the torture claim had been decided by the Board, the NRCPO had no business to re-examine the same. 

39.  Having said so, we should also state that it was the duty of NRCPO to determine the appeal regarding BOR 3 claim which involved the consideration of issue of risk of harm.  In that regard, the adjudicator had to assess to what extent he should attach weight to the assessment of the Board in light of the evidence, including the answers given at the oral hearing in the NRCPO proceedings.

40.  Since Ms Lau is no longer pursuing the legitimate expectation argument in the same way as she did below, we would simply record our agreement with the judge in terms of the inaptness of the application of the principles of res judicata or issue estoppel in the context of subsequent NRCPO proceedings.

41.  Thus, as a matter of law, it was perfectly open to the adjudicator to decide in the context of BOR 3 assessment to depart from the Board’s assessment of risk of harm.  In other words, the error of the adjudicator in the present case in re-examining the torture claim would not by itself taint his independent assessment of risk of harm in the BOR 3 context.

42.  Hence, the applicant could not succeed in the judicial review on Ground 1 alone.

Ground 2

43.  As mentioned, Ms Lau relied on a toned down version of the argument on legitimate expectation in the challenge to the adjudicator’s assessment of risk of harm.

44.  With due respect, the formulation of the argument with reference to legitimate expectation had unduly complicated the issue, diverting the focus of the judge on issues relating to legitimate expectation and issue estoppel.

45.  In our judgment, the central issue can simply be formulated as follows: adopting the approach of anxious scrutiny as espoused by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, whether there was any public law error in the adjudicator’s assessment of risk of harm in failing to take account of relevant matters in light of the assessment of the Board.

46.  Though we agree as a general proposition that the assessment by the Board should be taken into account (as held by Hooper LJ in AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040 at [29]), the weight to be attached and the way in which the adjudicator should address it in subsequent NRCPO proceedings must vary according to the circumstances of the case.

47.  In the present case, though the adjudicator had the benefit of an oral hearing (which the Board did not hold), his assessment on risk of harm was not based on any finding against the credibility of the applicant or his rejection of certain factual matters concerning the case which had previously been accepted by the Board.  In other words, working on the same set of primary facts, the adjudicator evaluated the risk of harm differently from that of the Board.

48.  The crucial question is whether the failure to take account of the Board’s Decision (and the matters adverted therein) constituted a failure to take relevant matter into account.  As highlighted at [21] and [22] above, there were events relevant to the assessment of risk of harm which had been taken into account by the Board but not the adjudicator. Thus, had the adjudicator paid proper regard to the Board’s Decision, he should have explained why those events were not relevant for the purpose of assessment of risk of harm under BOR 3 or, if they were relevant, how he arrived at his conclusion even taking those matters into account.

49.  In the NRCPO Decision, the adjudicator did not provide any explanation in this regard.  He simply made no reference to those events nor the reasoned assessment by the Board. We cannot accept Mr Hew’s submission that the adjudicator had implicitly considered these matters.

50.  Since the assessment of risk of harm is a holistic exercise having regard to all relevant circumstances up to the time of assessment, we cannot understand why those events were not relevant.  The harm and sufferings occasioned to the applicant’s family members must have an impact on the applicant since such harm and sufferings were inflicted on account of coercion upon the applicant.  The intensity and seriousness of harm had increased tremendously as compared with the incidents encountered by the applicant which were alluded to by the adjudicator.    

51.  In our judgment, this is a clear case of the adjudicator failed to take relevant matters into account when he assessed the risk of harm in the context of BOR 3 and persecution claims.  His assessment, founded upon his assessment of risk in the context of torture in paragraph 12 of the NRCPO Decision, is seriously flawed.  Thus, there is a clear and sufficient public law ground for the Court to intervene by way of judicial review.

52.  We appreciate that we have examined the matter slightly different from the way the judge considered the same.  As we said earlier, the focus of the judge might have been misplaced since the arguments of counsel on legitimate expectation and inconsistency had unfortunately diverted attention from the real issue.  With this Court’s recalibration of the focus, and in light of the very clear and serious flaw on the part of the adjudicator, with the relisting of the appeal to give counsel fair opportunity to address the points, we see no impediment to our determination of this appeal based on the correct perspective.  

Ground 3

53.  The applicant contended that the adjudicator’s legal definition of persecution risk (which we have set out at [24] above) had been held by the Court of First Instance to be incorrect: ON v Torture Claims Appeal Board [2018] HKCFI 2727; MP v Torture Claims Appeal Board [2018] HKCFI 151 and K v Torture Claims Appeal Board [2018] HKCFI 495).

54.  Apparently, these three cases were not cited to the judge.  Of the three cases, only ON v Torture Claims Appeal Board, supra, was a decision on substantive judicial review.  The other two cases were leave decisions where the court granted leave to apply for judicial review.

55.  Though the judge did not accept that there were errors on the part of the adjudicator, Mr Hew for the Director did not seek to defend the adjudicator’s definition. 

56.  In light of our view on the error of the adjudicator in the assessment of risk even on his own legal test on persecution, it is not necessary for us to decide on the correctness of the adjudicator’s legal test.

57.  Though we can see some force in Ms Lau’s submission that the adjudicator had wrongly equated the threshold for persecution with that for BOR 3, we hesitate to express a final view on the legal approach for the following reasons:

(a)  The judge considered that there was no error on the part of the adjudicator in the present context, viz in a non-state agent case, and cited the judgment of Lord Hope of Craighead in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at p.497G and 499G as well as the judgment of Lord Lloyd of Berwick at p.503C;

(b)  The judge also referred to Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; R v Secretary of State for the Home Department, ex p Sivakumaran [1988] 1 AC 958 to support his view at [98] of the judgment below;

(c)  In the court below, Ms Lau cited the judgment of Hartmann J in Luu The Truong v Chairman of the Refugee Status Review Board [2003] 2 HKLRD 351.  In that case, the learned judge discussed the meaning of persecution at p.368-371;

(d)  In the judgment of Campbell-Moffat J in ON v Torture Claims Appeal Board, supra, other authorities were referred to which have not been put before us;

(e)  Counsel did not cite these authorities in this appeal and we have not received any assistance in these regards;

(f)  In the context of the present case, with the rejection of the claim of persecution on religious ground (to which there is no challenge), we doubt if it is a case of persecution at all when the sufferings were inflicted by PBCP to procure the applicant to join their political party.

Internal relocation

58.  The adjudicator discussed internal relocation in [14], [17] – [18] of the NRCPO Decision:

“ 14. Independent of the discussions above, there is the issue of ‘Internal relocation’. If a claimant can avoid risk of Torture and/or CIDTP and/or BOR2 and/or Persecution by living in one or more places other than where he says he would be subjected to such treatment, he will not succeed in an application for non-refoulement: WF India CG [2002] UKIAT 04874, Balvir Kaur India CG [2002] UKIAT 03387, and AA (Uganda) [2008] EWCA Civ 579.

…

17. At the oral hearing I have put the above COI and implications to the Appellant, and his response was: (I) He does not know many of the figures, although he has been to Rajshahi, and he knows there is an airport, also the products from Chittagong, and there is an airport in Sylhet, (2) if he lives in any of the cities in Bangladesh, even in the big cities, the risk of his assailants locating him even after 10 years “is 100%” (NB: his Duty Lawyer says that once he practises his politics the PBCP people will know, and he will be attacked, hence he cannot relocate).

18. There is no evidence from the COI to show that the PBCP is omni-present in Bangladesh so that the Appellant will be targeted and/or located whatever he does.  I do not accept that the handful of alleged abductors of 19 years ago (back in 1997) are interested in locating him all over Bangladesh, especially when he was safe for at least 3 months when residing in Sylhet even back in 1998 (18 years ago), and that is even if the alleged potential assailants should have huge resources and manpower, as well as are willing, to expend same to search for a needle in a haystack.  I find no substantial risk or any substantial basis of fear.  There are places in Bangladesh, at least other than the Appellant’s home locality, where he can safely live without undue hardship, which is another reason for today’s petition to fail, independent of what was stated in paragraphs 7 to 13 above.”

59.  Ms Lau properly accepted that there had been no challenge in the Form 86 to the finding of the adjudicator on internal relocation.  Counsel however submitted that the assessment of internal relocation cannot be divorced from the assessment of risk of harm.  Hence, though she accepted that it is not invariably so, there are cases where errors in the assessment of risk of harm would taint the assessment on internal relocation by reason of the holistic nature of such assessment.  In the present context, she submitted that due to the errors of the adjudicator in the assessment of persecution risk, he failed to make a proper assessment in respect internal relocation. 

60.  Whilst Mr Hew did complain about this being a new point being taken on appeal, he was able to proceed to address the Court on the argument by reference to how the adjudicator dealt with internal relocation in the NRCPO Decision.  Apart from the paragraphs quoted above, counsel also referred to paragraph 29 where the adjudicator alluded to availability of state protection from such harm as postulated by the applicant and the conclusion at paragraph 30 that the applicant would be safe to live in Bangladesh other than in his own village.

61.  Mr Hew also emphasized that this is a non-state agent case and therefore what had been said by the adjudicator at paragraph 18 provided adequate assessment on internal relocation irrespective of the alleged error concerning persecution.

62.  Whilst we do not decide this appeal by reference to the error of the adjudicator in the legal definition for persecution, it is our judgment that his assessment of risk of harm, both in respect of BOR 3 risk and persecution risk, is seriously flawed by failing to take account of relevant matters.  Thus, it is necessary to consider if such flawed assessment had led to a defective assessment on internal relocation.

63.  The law on internal relocation had been discussed by this Court in TK v Jenkins [2013] 1 HKC 526.  As illustrated by that case, there are instances where the conclusion of a Board on internal relocation can be upheld notwithstanding that there were flaws in the risk assessment.  However, whether this is so must depend on the facts and the reasoning in the particular Board decision.

64.  At [100] of the judgment below, the judge cited from [32] and [33] of TK v Jenkins, supra, on the law relating to internal relocation:

“ 32. … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the internal relocation alternative), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33. There may be different reasons why the risk of torture is a localised one.  For instance, where the torturer is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned.  Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is nonexistent or insubstantial.  If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.”

65.  The first question that a primary decision-maker has to ask in connection with internal relocation is whether the risk of harm is a localized one.  The second question is whether there are places in the same country where it would not be unreasonable and unsafe for the claimant to relocate to.  To answer these questions properly, the primary decision-maker has to identify the source of risk of harm (the persecutor) and evaluate the extent and influence of the persecutor.

66.  In the present case, the adjudicator correctly identified the source of risk as coming from PBCP, a non-state agent.  However, he seemingly regarded the risk as being confined to the home locality (paragraph 18) or the village (paragraph 30) of the applicant which was Village Ghuridaha in District Gaibandha.  He regarded that it would be safe for the applicant to relocate to other places in Bangladesh for the reason that it would be like a search for a needle in a haystack and the applicant had been safe during his stay in Sylhet in 1988.

67.  In so holding, the adjudicator appeared to have overlook that the attack on the applicant in Incident 4 took place at Dhaka. Further, his wife was abducted and raped by PBCP members after she had gone into hiding in Dhaka. Though it had been clarified by Mr Hew (with reference to the witness statement of the wife placed before the adjudicator in the NRCPO proceedings) that the abduction of the wife took place near to the home village locality, it happened on her journey from Dhaka not during her stay at the village. This reinforced the argument of the applicant that he and his family members were targeted even after he had left Bangladesh.      

68.  The Board found that PBCP had a long memory. The adjudicator had chosen not to discuss the same.  Instead, he based his reasoning on the lack of evidence from the COI to show that PBCP is omnipresent.  His reference to the stay at Sylhet is a non sequitur given that Incident 4 and the attack on the wife happened afterwards. 

69.  Moreover, as submitted by Ms Lau, the assessment should take account of all incidents, including sightings of PBCP members at Chittagong and Sylhet and the attack at Dhaka. The geographical coverage was not confined to the locality of the home village.

70.  In TK v Jenkins, supra, Cheung CJHC (as the Chief Justice then was) alluded to the Director’s duty to clearly raise the issue of internal relocation identifying specifically or generally the place(s) that could provide a safe haven in the country of origin. Though the Director had done so in the present case by pinpointing the city of Barisal as the safe haven for the applicant, the adjudicator did not refer to it in his assessment on internal relocation. Instead, he chose to decide on the basis that anywhere outside the locality of the applicant’s home village would be safe. Yet he did not explain how such assessment could be consistent with the sightings of PBCP members at Chittagong and Sylhet and the attack at Dhaka.

71.  All in all, we cannot accept the reasoning of the adjudicator as passing the muster of rigorous examination on anxious scrutiny.

72.  Ms Lau relied on paragraph 18 of a UNHCR Position Paper on Relocating internally as a Reasonable Alternative to Seeking Asylum of February 1999.  It reads:

“ 18. In summary, the so-called ‘internal flight alternative’ is not an easy answer to refugee claims, and cannot be used as a ‘short-cut’ to by-pass refugee status determination or to decide cases in an accelerated procedure. The ‘possible relocation’ analysis may be relevant, in the individual case, to an assessment of the well-foundedness of the fear of persecution. However, the analysis must include assessment of the safety and reasonableness of internal relocation in all the circumstances of the specific case at issue.”

73.  We have no quarrel with such statement insofar as it highlights the need to carefully consider the circumstances of the case and the claimant in making a holistic assessment before coming to the conclusion that internal relocation is a viable option.  As held by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at [21]:

“ … The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant’s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 , paragraph 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.”

74.  Cheung CJHC also alluded to such holistic approach at [38] in TK v Jenkins, supra:

“ Sixthly, what is the ‘standard of proof’ regarding internal relocation? Here, the issue is as much a matter of evaluation and conscientious judgment as it is a matter of fact.  There is therefore no ‘standard of proof’ as such applied.  The question is simply whether, taking all relevant matters into account, the return of the claimant would be unreasonable or unduly harsh.  Everything capable of having a bearing on the question is to be taken into account.  The decision-maker may have to take into account the cumulative effect of a whole range of disparate considerations.  In respect of some of these considerations, the decision-maker may be satisfied that they probably did occur or are occurring, while in respect of others, he may only think that there is a serious possibility that what the claimant or his witnesses are saying is correct: Karanakaran, supra, at p 470d-f; Macdonald & Toal, op cit, at p 851.  An ‘individualised, holistic assessment’ is called for: AH (Sudan) v Secretary of State for the Home Department [2008] AC 678, paragraphs 20, 27–28.”

75.  In the present case, for the reasons already given, we are of the view that the assessment on internal relocation by the adjudicator is legally flawed as his reasons given in the NRCPO Decision had not taken account of relevant matters in reaching his conclusion. Whilst the lapse of time since the last attack is a relevant factor, it is not the only factor. We cannot say that the adjudicator would have reached the same finding if all relevant factors had been duly taken into account.

76.  Like his consideration of Ground 2, the judge’s upholding of the conclusion of the adjudicator was misdirected by the way in which the matter was argued before him.

77.  Having now re-adjusted the focus, this Court has come to the clear view that the NRCPO Decision cannot be upheld on the basis of the adjudicator’s finding on internal relocation.

Disposition

78.  We therefore allow this appeal and set aside the order of the judge below.  Since this is a judicial review instead of an appeal, it is not for this Court to re-assess the position of internal relocation on the materials before us.  The proper course is to quash the NRCPO Decision and grant a mandamus directing that the Petition be heard afresh before another adjudicator. 

79.  We make an order in those terms and order that the Director shall pay the costs of the applicant in the appeal and below, such costs are to be taxed if not agreed.  There will also be legal aid taxation in respect of the applicant’s own costs.