A.h. (ap) V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2011] CSOH 7 |
| Court | Court of Session |
| Docket Number | P662/10 |
| Published date | 19 January 2011 |
| Date | 19 January 2011 |
| Year | 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 7 | |
| P662/10 | OPINION OF LORD MALCOLM in Petition of AH (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________ |
Pursuer: Caskie; Advocate; Drummond Miller LLP
Defender: Olson, Advocate; Office of the Solicitor to the Advocate General
19 January 2011
[1] In this application for judicial review the petitioner asks the court to quash decisions made on 6 May and 15 June, both of 2010, by the Secretary of State for the Home Department ("the Secretary of State") respectively that representations on behalf of the petitioner did not constitute a fresh claim for asylum and that the petitioner should be removed to Bangladesh. It is necessary to set out the background circumstances in some detail.
[2] The appellant is a citizen of Bangladesh. He entered the UK in December 2003 using a false passport. He did not claim international protection on arrival. He was arrested on 15 January 2006 and then sought asylum. The Secretary of State refused that application by decision letter dated 23 January 2006. The claim was based upon the petitioner's fear that if returned to Bangladesh he would face mistreatment because of his political opinions and that his removal from the UK would be contrary to articles 2 and 3 of the European Convention on Human Rights (ECHR). He claimed that he had fled Bangladesh because, as a supporter of the Awami League, he was being persecuted by the Bangladesh National Party ("BNP"). He also feared the police and army in Bangladesh.
The decision letter of 23 January 2006
[3] The decision letter set out the specific incidents and background circumstances which had created the petitioner's concerns. The Awami League had been the ruling party in Bangladesh from June 1996 until July 2001. Subsequently there was a coalition government led by the BNP. It included three smaller parties, but not the Awami League. The Secretary of State did not accept that involvement with the Awami League in itself gave rise to a well-founded fear of persecution on the grounds of political opinion. Moreover it was considered that the described threats and acts of violence were caused by local members of the BNP acting on their own initiative, independent of their party's policies and directives. There was no reason to believe that this kind of behaviour was condoned by the then government. Furthermore the petitioner had not produced any evidence to suggest that the actions of specific individuals were carried out under the direct instruction of the BNP nor that they would be repeated should he be returned to Bangladesh. It was open to the petitioner to seek the necessary avenues of protection within Bangladesh before seeking international protection.
[4] It was noted that the petitioner was wanted by the court in Bangladesh, however the country has an independent judiciary, and he would have the right to be represented by counsel. In short, he could expect to receive a fair trial under a properly constituted judiciary. In any event the size and population of Bangladesh would afford the petitioner the opportunity to relocate to another area of that country where local political rivals would be unable to find him. It was not accepted that his removal to Bangladesh would be in breach of either article 2 or article 3 of the ECHR.
The appeal against the decision of 23 January 2006
[5] The petitioner appealed against that decision to an immigration judge who issued a decision upholding the appeal on 15 June 2006. The immigration judge summarised the appellant's claims as follows. He is a citizen of Bangladesh. He and his family supported a political party called the Awami League. He became actively engaged in AL activities when he was 18 years old. The BNP came to power in October 2001. Thereafter he suffered various forms of severe harassment because of his AL activities. He was severely assaulted by BNP supporters in October 2001. His injuries included a fracture of the left tibia. He was denied medical treatment at the local hospital. Shortly thereafter BNP supporters threatened to kill him. The police failed to note the appellant's complaint. He was tortured by the Rapid Action Battalion (RAB), a combined security agency consisting of the army, police and various auxiliary forces. BNP supporters made a number of false complaints against him to the police, resulting in five related charges for which he was granted bail. All the foregoing was caused by his political opinions. He did not expect to receive a fair trial. He went into hiding for about two years. His father paid an agent to assist him to leave Bangladesh. He entered the UK in December 2003 with a false passport. When in the UK he discovered that he had been charged with another offence which was allegedly committed at a time when he was in the UK. There are outstanding warrants for his arrest. The RAB had visited his home to try to detain him. The immigration judge referred to the Secretary of State's decision as set out in the refusal letter and commented that, put briefly, the respondent disputed all of the appellant's claims, and held that he had provided no credible evidence in support of them.
[6] At the appeal hearing both parties were represented. The appellant gave evidence with the assistance of an interpreter, and the immigration judge considered the relevant documents. He said that in essence the appellant's claim is that he was severely harassed by reason of his political opinion after the BNP Government came to power in October 2001 because he was an Awami League activist and seen as an opponent of that Government, its agents and supporters, and that he would be similarly harassed if he returned to Bangladesh.
[7] The immigration judge made findings based upon the evidence before him, which included the October 2005 Bangladesh HOSRG Report lodged by the respondent. He noted that in Bangladesh torture had been and remained widespread under successive governments. Victims included people detained on politically motivated grounds. The Redress Trust had stated that torture continues unabated with near impunity for the perpetrators, namely the law enforcement agencies, the police, the army and paramilitaries. The police use torture as a means to extract money from detained suspects and their families. The judge held that there were politically motivated detentions, with many political activists arrested and convicted for unfounded criminal charges. Dismissal of wrongful charges or acquittal took years. The Rapid Action Battalion and security forces committed numerous human rights abuses, including extrajudicial killings, and were rarely disciplined. When innocent people were killed, law enforcement agencies attempted to brand them as criminals by producing false criminal records against them. Detailed criticisms were made of the judiciary and of prison conditions in Bangladesh.
[8] The judge noted that there were various credible documents in process from the Awami League which confirmed that the petitioner was an activist who had become a target of the present government for political activities. On 18 October 2001 about 15 BNP supporters attacked him in the street with sticks and batons. They punched and kicked him. They broke his left leg. They beat him unconscious. He was rescued from more severe harm by local people. He was denied medical treatment at the local hospital due to government intervention. However, as a result of the receipt of private medical treatment there was related credible evidence in process that the appellant's left tibia had been fractured.
[9] The immigration judge made several detailed findings upholding the petitioner's claims. For example at paragraph 46
"The Government's 'Operation Clean Heart' anti-crime drive occurred from 16 October 2002 until 9 January 2003. About two weeks after that operation commenced, the army detained the appellant in Dhuar Camp for about 24 hours. There his captors interrogated him regarding AL matters and tortured him by electrics shocks ... Then he was transferred to the local police station for some 24 hours where the police severely beat him in order to obtain a bribe."
The immigration judge observed that there are credible documents in process relating to criminal complaints against the appellant in Bangladesh. He upheld the claim that the appellant was being harassed by the RAB and the police because of his political activities. It was noted that he claimed that when he was in the UK he discovered that he had been charged with another offence to the effect that he (and others) had disrupted a seminar on 15 August 2005, however by that date he had been in the UK for some 18 months. A further charge had been made against the appellant in August 2005 but the precise details were unknown. The judge found that the government continued to harass AL members and arrange for them to be unlawfully detained. It was likely that the petitioner would be detained as soon as he was discovered on his return to Bangladesh. The judge accepted the evidence that after he left Bangladesh the RAB had visited the petitioner's family home to try and detain him. The police report of 2 November 2002 was to the effect that the petitioner was involved in terrorism and political terrorism and should be interned.
"There is a real risk that (whichever detains him) the RAB and the police will torture him if it is they who detain him. Such torture would be sufficient to constitute persecution for his political belief. He certainly cannot expect sufficiency of protection from the police. There is no real prospect of internal flight."
While the judge rejected the claims under articles 2 and 3 of the ECHR, he held that the appellant did have a well-founded fear of persecution in the home country by reason of political opinion if forcibly returned there; that the Refugee Convention was engaged; and that the...
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