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Islam, Re Judicial Review [2003] ScotCS 41 (21 February 2003)

OUTER HOUSE, COURT OF SESSION
P1163/01	OPINION OF LORD DRUMMOND YOUNG in Petition of DIDARUL ISLAM Petitioner; for Judicial Review of (i) a determination of a Special Adjudicator; and (ii) refusal of the Immigration Appeal Tribunal to grant him leave to appeal   ________________

 

 

Petitioner: Devlin; Skene Edwards, W.S.

Respondent: Carmichael; H.F. Macdiarmid, Solicitor to Advocate General

 

21 February 2003

1. The petitioner is a national of Bangladesh. He was born on 7 March 1976. He entered the United Kingdom on 7 June 2000. On the same date he made an application for asylum in the United Kingdom. That application was refused by the Immigration and Nationality Directorate of the Home Office on 16 June 2000. The petitioner appealed against that decision to a special adjudicator. The hearing before the special adjudicator took place on 11 December 2000, 7 February 2001 and 8 May 2001. On 2 July 2001 the special adjudicator refused the petitioner's application. Thereafter the petitioner made an application for leave to appeal to the Immigration Appeal Tribunal. In a determination dated 24 June 2001 the Immigration Appeal Tribunal refused his application.
2. The petitioner has presented a petition for judicial review of the decisions of the special adjudicator and the Immigration Appeal Tribunal, in which he seeks declarator that the determinations of the special adjudicator and of the Immigration Appeal Tribunal are unreasonable and unlawful. He further seeks reduction of both of those determinations.
3. The factual background to the petition may be summarised as follows. The petitioner claimed that he was being persecuted on the grounds of his race, ethnic origin or nationality and political opinions. He had been actively engaged in Bangladeshi politics from the age of 13, when he joined the Bangladesh National Party (referred to as the "BNP"). He had been vice-chairman of the BNP branch at Khagachari, a town in the Chittagong Hill Tract region of Bangladesh. He had been engaged in a number of activities on behalf of the BNP, including organising meetings and distributing literature. He claimed that, as a result of his activities on behalf of the BNP, he had suffered various difficulties with members of the other main party in Bangladesh, the Awami League, and also with the Bangladeshi authorities. He had been subjected to attacks, threats and harassment by members of the Awami League. In addition, he claimed that false criminal charges, including one of attempting to murder and Awami League MP, had been made against him by members of the League. He was actively sought by the Bangladeshi authorities in connection with those charges. The petitioner alleged that it was as a consequence of the attacks, threats and false charges that he fled Bangladesh. In due course he had arrived in the United Kingdom and applied for asylum. The petitioner further claimed that he belonged to the Adabachi, one of the tribal peoples inhabiting the Chittagong Hill Tract region. He supported the Adabachi in their demands for independence from Bangladesh. That also, it was said, led to persecution by the Bangladeshi authorities.
4. In his determination, the special adjudicator began by summarising the history of the case. He then summarised the claims made by the petitioner in his first interview and in subsequent correspondence. Thereafter he dealt with the hearing that took place before him. He summarised the petitioner's oral evidence at some length, and also summarised the submissions of counsel for the petitioner and the Home Office representative. Thereafter he set out the issue as follows:

"[26] The claim to asylum arises from the Convention Relating to the Status of Refugees, 1951, as read with the 1967 Protocol. For the appellant to succeed, he must show that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.

5. For the appellant's fear to be well-founded means that he must demonstrate a reasonable degree of likelihood of being persecuted for a Convention reason if returned to his own country".

Thereafter the special adjudicator summarised the situation in Bangladesh, principally on the basis of the Country Information and Policy Unit country assessment dated April 2000. It is of some significance to the special adjudicator's decision that this document disclosed that in December 1997 the then Awami League government had concluded a peace accord with the tribal movement in the Chittagong Hill Tracts, but that that accord had been opposed by the BNP. The BNP, it was recorded, remained hostile to non-Bengalis in the Chittagong Hill Tracts.

6. The special adjudicator's decision is in the following terms:

"[42] I saw and heard the appellant give evidence, and have allowed for the fact that he gave evidence through an interpreter, whom he confirmed that he understood both to me, and in re-examination to his own counsel. The appellant was interviewed and gave extensive information to the RLC without any contemporaneously stated difficulties, and accordingly I have considered the information previously given by him as well.

[43]... I accept the FIRs as authentic, and... the translations as accurate. The appellant had the opportunity to get any further FIRs or documents. He failed to do so. He was vague even as to how many other charges there were. In the circumstances, I do not accept that there were FIRs relating to other incidents.

7. It is not plausible, given the context, that the appellant could have arisen as rapidly within the student movement as he says, or risen to the rank he says at all, without participating in or organising violence. That is not speculation; it is a justified inference from the known facts. The appellant has admitted participation in demonstrations and rallies, and being involved in fights with the AL. The FIRs themselves were for incidents on 12 October 1995 and 18 February 1996. The incidents involved public disorder, armed affray, serious assault, robbery and attempted murder, all of which are compatible with the background information as taking place in the context of political rivalry. Although the appellant claims that these are false cases, he has not been specifically targeted. He has been named along with others. These incidents took place at a time when his own party was in power, so the police were clearly independent enough to accept the FIRs and to progress them, as they are obliged in law to do. He was not being persecuted by the authorities (his own party) at the time of the FIRs. On return, the appellant can expect these serious charges to be fairly dealt with by the higher judiciary. Indeed, his claim was that he had given up attending court because of financial difficulties (C3). That was despite still being given government contracts.
8. As a member of the chauvinistic and nationalistic BNP, it is implausible that the appellant would favour or champion the tribes of the CHT.
9. The appellant has expressed particular fear of being targeted by a rival MP because of his potential role in the run up to an election now passed. That reason is accordingly spent.
10. I do not consider that the appellant is credible or reliable in asserting that he has been beaten. He has been hit on two or three occasions (A28), or beaten on seven or eight occasions (oral), or up to 144 times (C2, two or three beatings per month for four years). In re-examination, he was led to claim that 'beating' could mean an argument. Having arguments does not mean that he was thereby persecuted. In any event, the purported explanation is extraordinary and would mean that different interpreters, hearing the words of a man who on his own account was educated in 'proper Bengali' have made the same gross error. One of the appellant's subjects at college was Bengali. I consider that the appellant is trying to explain his own material inconsistencies by blaming the interpretation.
11. The appellant fears prosecution. The investigation of complaints made to the police in this case, first undertaken by a government the appellant himself supported, does not constitute persecution. Even if it did, it would not be for his political views or other 1951 Convention reason, but because of his alleged criminal behaviour.
12. In all the circumstances, I do not accept even to the lower standard mentioned above that the appellant has a well-founded fear of persecution for a Convention reason".
13. Counsel for the petitioner attacked the special adjudicator's decision on four separate grounds. First, he contended that the special adjudicator had drawn conclusions adverse to the petitioner that ought not reasonably to have been drawn. Secondly, he contended that the special adjudicator had failed to have regard to all relevant considerations. Thirdly, he contended that the special adjudicator had failed to give adequate and comprehensible reasons for his decision. Fourthly, he contended that the special adjudicator had taken the wrong approach to the assessment of future risk in the event that the petitioner returned to Bangladesh. Finally, counsel contended that the Immigration Appeal Tribunal had refused leave to appeal in circumstances where the points made for the petitioner had an obvious prospect of success. I will deal with each of those arguments in turn.

Conclusions drawn by special adjudicator

14. Counsel attacked four passages in the special adjudicator's determination in which he drew inferences adverse to the petitioner's credibility. Those inferences were said to be unreasonable on the basis of the known facts. The first such inference was in the following terms (at paragraph [44] of the determination):

"It is not plausible, given the context, that the appellant could have risen as rapidly within the student movement as he says, or risen to the rank he says at all, without participating in or organising violence. That is not speculation: it is a justified inference from the known facts".

Counsel contended that this conclusion was based on passages in the 1999 Country Report on Bangladesh issued by the United States Department of State, a copy of which was before the special adjudicator. On the third page of that document, it was stated that the violence, often resulting in killings, was a pervasive element in Bangladeshi politics; supporters of different political parties often clashed with one another and with police during rallies and demonstrations. Armed violence and intimidation were used in inter-party conflicts. Counsel submitted that no attempt was made to consider specific incidents referred to in support of the conclusion.

15. In my opinion this criticism is not well founded. The special adjudicator's reasons for reaching the conclusion quoted above are set out in the passage that immediately follows it. This reads as follows:

"The appellant has admitted participation in demonstrations and rallies, and being involved in fights with the AL. The FIRs themselves were for incidents on 12 October 1995 and 18 February 1996. The incidents involved public disorder, armed affray, serious assault, robbery and attempted murder, all of which are compatible with the background information as taking place in the context of political rivalry".

The special adjudicator then went on to comment on those incidents; I deal with his comments in the next paragraph. Thus the conclusion drawn by the special adjudicator was based partly on admissions by the appellant, partly on two specific incidents referred to in evidence, and partly on the general background disclosed in the reports that were available on the political situation in Bangladesh. I should point out that there was ample evidence in those reports that political violence was endemic in Bangladesh. Moreover, the special adjudicator specifically held, at paragraph [34] of his determination, that in Bangladesh student activists belonging to organisations affiliated to political parties use violence and intimidation where they deem it necessary. Violence is endemic between the student organisations, and on occasion has involved armed clashes. The petitioner admitted being a member of the Jatiyatabadi Chhatra Dal, which is the student organisations affiliated to the BNP. Thus there was ample factual material about the political situation in Bangladesh on which the special adjudicator could base his conclusion. In the circumstances I am of opinion that the conclusion drawn by the special adjudicator was reasonable, and was clearly based on the evidence before him.

16. The next part of the special adjudicator's determination that was challenged immediately followed the passage quoted in paragraph [6] above. This was in the following terms:

"Although the appellant claims these are false cases, he has not been specifically targeted. He has been named along with others. These incidents took place when his own party was in power, so the police were clearly independent enough to accept the FIRs and to progress them, as they are obliged in law to do".

Counsel submitted that there was evidence before the special adjudicator that the authorities routinely arrested persons on false charges at the instigation of politically influential individuals and that opposition forces have sufficient influence to instigate such arrests. In the circumstances it was submitted that no conclusion adverse to the petitioner's credibility could be drawn from the fact that he had not been specifically targeted but had been named along with others, nor from the fact that the petitioner's party was in power at the time.

17. In my opinion the foregoing criticisms have no foundation. The fact that the petitioner's own party was in power at the time of the incidents referred to is clearly material, in that it makes a politically motivated prosecution significantly less likely. Moreover, in the materials referred to by counsel (the 1999 State Department report) I was unable to find any reference to prosecutions instigated by opposition politicians. By contrast there is reference to the government's instigating "numerous criminal cases against opposition leaders and activists"; at least in some instances these involved false charges. In my view the special adjudicator was clearly entitled in the circumstances to draw the inference that the police were acting independently.
18. Counsel challenged a further inference drawn by the adjudicator, in the following passage (at paragraph [46] of the determination):

"The appellant has expressed particular fear of being targeted by a rival MP because of his potential role in the run up to an election now past. That reason is accordingly spent".

It was submitted that that paragraph suggested that the only reason that the petitioner had reason to fear that MP related to his potential role in the election. There was evidence, however, that the MP in question, who represented the Awami League, had been the subject of a serious attack. The petitioner further gave evidence that false charges of attempting to murder the MP arising out of the attack had been laid against him. In these circumstances, it was submitted, the conclusion of the special adjudicator that the petitioner's fear of being targeted is spent was unreasonable.

19. Once again, I am of opinion that this criticism is not well founded. It is clear from the special adjudicator's findings in fact that the petitioner's fear of being targeted by the MP in question had two grounds. The first was that the MP believed that the petitioner had been involved in a serious attack on him in 1996. The second was that the petitioner would be responsible for mounting the BNP opposition to the Awami League in the Khagrachari Hill District at the election scheduled to take place early in 2001. The latter point is mentioned in paragraphs [8] and [9] of the special adjudicator's decision. These references are based on question 77 of the petitioner's first interview and paragraph 13 of a letter of 13 June 2000 written on the petitioner's behalf by the Refugee Legal Centre; both of these are contained in No 7/3 of process. The passage quoted in paragraph [9] above dealt only with the second of those reasons, and is plainly correct. The first reason is dealt with elsewhere in the special adjudicator's determination. The attack on the MP had resulted in criminal charges, and these are dealt with in paragraph [44] of the special adjudicator's decision. His conclusion on the charges was expressed as follows:

"On return, the appellant can expect the serious charges to be fairly dealt with by the higher judiciary. Indeed, his claim was that he had given up attending court because of financial difficulties. That was despite still being given government contracts".

20. The fourth inference drawn by the adjudicator that counsel for the petitioner sought to challenge was as follows (at paragraph [47] of the determination):

"I do not consider that the appellant is credible of reliable in asserting that he has been beaten. He has been hit on two or three occasions (A28), or beaten on seven or eight occasions (oral) or up to 144 times (C.2, two to three beatings a month for four years). In re-examination, he was led to claim that 'beating' could mean an argument. Having arguments does not mean that he was thereby persecuted. In any event, the purported explanation is extraordinary and would mean that different interpreters, giving the words of a man who on his own account was educated in 'proper Bengali' have made the same gross error. One of the appellant's subjects at college was Bengali. I consider that the appellant is trying to explain his own material inconsistencies by blaming the interpretation".

Counsel stated that the hearing of the case before the special adjudicator had involved considerable linguistic difficulties. One of the interchanges to which reference was made in the foregoing passage took a great deal of time, and the petitioner continued to give entirely inappropriate answers to questions. It had been necessary to clarify what the petitioner meant by the word "beatings". Because of the difficulties in his understanding of the word, counsel submitted that no conclusion adverse to his credibility could be drawn from the references to different numbers of beatings. Reference was made to Chinder Singh v Home Secretary, 9 September 1997, unreported, in which it was pointed out that an adjudicator should be so to draw adverse inferences if differences of account could reasonably be explained by difficulties of language, taking full account of the fact that the nuances of another language may be lost in translation. That was particularly true of words such as "beat", which can cover a number of concepts. The present case, counsel submitted, was unusual in the degree and number of difficulties of interpretation that had arisen.

21. In my opinion this criticism is not well founded. The special adjudicator dealt expressly with the linguistic difficulties that had arisen during the hearing of the case. At paragraph [13] of his determination the special adjudicator made the following comments:

"Much was made, before this case started and during it, of the alleged difficulties of understanding standard Bengali which the appellant suffered as a speaker of the 'Chittagong dialect' of Bengali. There was never any particular reason advanced why [a] member of the BNP studying at a mainstream Bengali institution should have any such difficulties in understanding. There was never any objective evidence offered of such linguistic differences and no specific such interpreter could be found by the IAA. The interpreter eventually used was suggested by the appellant's representatives and the appellant specifically confirmed to me and indeed to Counsel that he understood that interpreter".

This point is taken up further in paragraph [22], dealing with the petitioner's evidence in re-examination. The special adjudicator there narrates the following:

"He could not understand every word of the interpreter at the asylum interview. At college he spoke proper Bengali in the classroom and a Chittagong dialect outside. He understood everything the interpreter said at the hearing. At college he had studied, amongst other things, Bengali".

It is also clear from the special adjudicator's determination that counsel for the petitioner had emphasised such linguistic difficulties as there were in the case; that appears in paragraph [24], and in the passage quoted above. The special adjudicator further commented, at paragraph [42],

"I saw and heard the appellant give evidence, and have allowed for the fact that he gave evidence through an interpreter, whom he confirms that he understood both to me, and in re-examination to his own counsel. The appellant was interviewed and gave extensive information to the RLC without any contemporaneously stated difficulties, and accordingly I have considered the information previously given by him as well".

It is clear from the above passages that the special adjudicator approached the question of interpretation with care. He had the advantage of hearing the petitioner give evidence, and formed the view that the petitioner was quite well able to understand the questions put to him. Moreover, as the special adjudicator narrated at paragraph [22] of his determination, the petitioner confirmed in re-examination that he had understood everything that the interpreter had said at the hearing. In addition, as the special adjudicator points out in the passage quoted in paragraph [11] above, the petitioner had been educated in "proper Bengali" and had studied Bengali at college. On this point, I would observe that, while the petitioner may well have spoken a Chittagong dialect outside college, the existence of individual dialects is a feature of most of the world's languages, and it is obvious that speakers of particular dialects are perfectly capable of communicating with outsiders who speak something close to the orthodox form of the language. Furthermore, it is clear from the special adjudicator's account of the petitioner's evidence that questions were asked about what the petitioner understood by the word "beating" (paragraphs [18] and [22] of the special adjudicator's decision). Ultimately, the special adjudicator found that the petitioner was able to understand the questions put to him, and it was against that background that he made the adverse finding on credibility quoted in paragraph [11] above. In these circumstances I do not think that his conclusion can be considered unreasonable. In relation to Counsel's reference to the specific point during his evidence where the petitioner gave inappropriate answers to a number of questions, I would merely observe that there could be a number of reasons for that. The special adjudicator heard the evidence in question, and reached a conclusion adverse to the petitioner's credibility, for which he gave satisfactory reasons.

Failure of special adjudicator to have regard to all relevant considerations

22. The second argument for the petitioner was that the special adjudicator had failed to have regard to all relevant considerations. In particular, he had failed to have regard to three matters: (a) the length of any detention pending trial to which the petitioner might be subject if he were returned to Bangladesh, and the likely conditions of any such detention; (b) the treatment to which the petitioner was likely to be subjected in detention; and (c) the possibility that the petitioner would be persecuted by members of the Awami League if he were returned to Bangladesh. Particular reliance was placed on the second and third of those matters. On the second of these matters, counsel referred to the 1999 State Department Country Report on Bangladesh; on page 4 it was stated that the police routinely employ physical and psychological torture and other abuse during arrests and interrogations, and that the government rarely convicted or punished those responsible for such torture. It was submitted that such treatment could amount to persecution for a Convention reason. On the third matter, counsel submitted that the special adjudicator either did not accept that there was a threat to the petitioner from the Awami League, or ignored such threat. In all the circumstances, he should have considered the possibility of future violence.
23. In my opinion these criticisms of the special adjudicator are not well founded. The factual material on which they were based was general in nature, but the existence of routine police brutality does not of itself amount to persecution: Ex p Shokar, [1998] IAR 447; Xi Lin Chen v Home Secretary, 2001 SLT 703. Nor does it follow that such violence will necessarily be directed against the petitioner. In the present case, the specific criminal charges against the petitioner related to incidents that were said to have occurred more than four years before the petitioner entered the United Kingdom. Despite this, the petitioner stated in his evidence in chief that he had been on bail throughout in respect of one case against him (special adjudicator, paragraph [19]), and there is no indication that he was remanded in custody on the attempted murder case. In cross-examination, the petitioner stated that he had attended court regularly in relation to the two cases against him, and that he knew that he was safe at court as the police were there and no one could attack him; the police were not entitled to arrest him because he was on bail (special adjudicator, paragraph [21]). On the basis of that evidence relating to the specific charges against the petitioner, I am of opinion that the special adjudicator was not obliged to consider matters (a) and (b) referred to in paragraph [13] above. On matter (c), the special adjudicator makes repeated reference to violence between members of the BNP and the Awami League, and to the petitioner's involvement in such violence. It is obvious, however, that taking part in political violence does not involve persecution. The special adjudicator specifically found, at paragraph [47] of his determination, that the petitioner was neither credible nor reliable in asserting that he had been beaten. That form of persecution was accordingly expressly ruled out by the special adjudicator. So far as prosecution is concerned, the special adjudicator concluded (at paragraph [48] that the investigation of complaints made to the police, and first undertaken by a government that the petitioner himself supported, did not constitute persecution. That conclusion is supported by the special adjudicator's findings at paragraph [44], where he states that the petitioner can expect the serious charges against him to be fairly dealt with by the higher judiciary.

Special adjudicator's reasons

24. The next criticism of the special adjudicator's decision was that he had failed to give adequate reasons for his decision. Counsel for the petitioner referred to the decisions of the First Division in Daljit Singh v Home Secretary, 2000 SC 219, and Wordie Property Company Limited v Secretary of State, 1984 SLT 345, and submitted that the special adjudicator did not indicate with clarity whether he accepted the petitioner's claim to have been harassed and intimidated by the Awami League. Likewise, he did not indicate with clarity whether he accepted the petitioner's claim that he had been implicated in the attempted murder of an Awami League MP. Counsel further submitted that the informed reader of the determination would be left in real and substantial doubt, first, as to the special adjudicator's reasons for his conclusion that it was implausible that the petitioner as a member of the BNP would favour or champion the tribes of the Chittagong Hill Tract region and, secondly, as to why the petitioner did not have a well founded fear of persecution by members of the Awami League if he returned to Bangladesh. Finally, counsel submitted that there was practically no consideration by the special adjudicator of the possibility of future persecution of the petitioner.
25. The duty to give reasons has been the subject of a considerable amount of judicial comment. Its scope was stated, in Wordie Property Company Limited v Secretary of State, supra, in the following terms (at 1984 SLT 348):

"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

That statement was recently approved, in the context of immigration law, in Daljit Singh v Home Secretary, supra. In the latter case the Court also approved two further statements of principle by Lord Macfadyen in Jaswinder Singh v Home Secretary, 1998 SLT 1370, at 1374:

"Adjudicators should indicate with some clarity in their decisions (1) which evidence the accept, (2) what evidence they reject, (3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it, and (4) what, if any, evidence they regard as irrelevant.

If there is a question of disbelieving anything an applicant has said that ought to be spelt out. It is obviously desirable to indicate specifically why any witness is being disbelieved".

In Daljit Singh the First Division added the following observations (at 2000 SC 222-223):

"The basic duty will be satisfied if the reasons given by the decision maker come within the ambit of what was said in Wordie Property Co Ltd. The extent and adequacy of the reasons which are set out is bound to vary according to circumstances. Much will depend on the nature of the tribunal and any rules under which it is required to work, the scope of the issues which may be raised, the amount of potential material involved and whether the decision is an administrative or judicial one.

... We agree with the view of Lord Penrose in Mohammed Asif, Petitioner, '... nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it'".

That passage was preceded by a reference to the Asylum Appeals (Procedure) Rules 1996, which provided that every determination was to consist of a "concise" statement of the decision, the material findings of fact and the reasons for the decision. Those rules have been replaced by the Immigration and Asylum Appeals (Procedure) Rules 2000, which contain no similar instruction. Nevertheless, it is clear from the passage quoted that the First Division endorsed a flexible approach to the reasoning that is expected of adjudicators; a rigid and formulaic approach is rejected.

26. On the basis of these authorities, I consider that the special adjudicator's reasons are adequate. So far as the petitioner's claim to have been harassed and intimidated by the Awami League is concerned, the special adjudicator finds at paragraph [47] of his determination that the appellant was neither credible nor reliable in asserting that he had been beaten. That rules out any serious violence or intimidation directed against the petitioner personally. The special adjudicator did accept that the petitioner had been involved in fights with members of the Awami League, but he held that the petitioner had been a willing participant in such violence. Such involvement would clearly not be an appropriate basis for a finding of persecution. In relation to the petitioner's claim that he had been implicated in the attempted murder of an Awami League MP, it is clear from the determination that the special adjudicator held that charges had been made against the petitioner, but that they were made for non-political reasons and would be dealt with properly by the courts. At paragraph [43] of his determination the special adjudicator held that the FIRs, which included one relating to the charge of attempted murder of an Awami League MP, were authentic. At paragraph [44] he continued:

"The FIRs themselves were for incidents on 12 October 1995 and 18 February 1996. The incidents involved public disorder, armed affray, serious assault, robbery and attempted murder, all of which are compatible with the background information as taking place in the context of political rivalry. Although the appellant claims that these are false cases, he has not been specifically targeted. He has been named along with others. These incidents took place at a time when his own party was in power, so the police were clearly independent enough to accept the FIRs and to progress them, as they are obliged in law to do. He was not being persecuted by the authorities (his own party) at the time of the FIRs. On return, the appellant can expect these serious charges to be fairly dealt with by the higher judiciary".

In my opinion that reasoning is quite clear.

27. The next criticism made by counsel for the petitioner related to the special adjudicator's reasons for concluding that it was implausible that a member of the BNP would favour of tribes of the Chittagong Hill Tract region. At paragraph [45] of his determination, the special adjudicator comments:

"As a member of the chauvinistic and nationalistic BNP, it is implausible that the appellant would favour or champion the tribes of the CHT".

The reasons for this conclusion are very obvious. The relevant findings in fact are found at paragraphs [38]-[40] of the special adjudicator's determination. In this passage he sets out the particular problems associated with the Chittagong Hill Tracts. This area was originally populated by tribal groups whose ethnic origin was Burmese. Until 1985 the government of Bangladesh had regularly allotted land in the area to Bengali settlers, and this led to the displacement of many tribal groups. In response to the government's action, a tribal resistance movement known as the Shanti Bahini had waged a low-level conflict in the Chittagong Hill Tracts from the early 1970s. On 2 December 1997, however, a peace accord with the tribal resistance had been concluded by the Awami League government, and the Shanti Bahini had disbanded. The BNP, however, was opposed to the peace accord, and remained hostile to non-Bengalis in the Chittagong Hill Tracts. Those findings are taken from page 19 of the 1999 Country Report on Bangladesh prepared by the United States Department of State and paragraphs 3.24 and 3.26 of the Home Office Bangladesh Assessment dated April 2000. They were not challenged by the petitioner. It follows that the petitioner was claiming to be both a champion of the rights of indigenous peoples and an active member of a political party which was opposed to the granting of such rights. The rights of the indigenous peoples in an area such as the Chittagong Hill Tracts must obviously have been a major topic of political debate in the area; thus the petitioner could scarcely claim that he disagreed with his party on a minor matter of policy. In the circumstances I have no hesitation in holding that the special adjudicator was fully entitled to reach the conclusion that it was implausible that the appellant would both be a member of the BNP and favour or champion the tribes of the Chittagong Hill Tracts.

28. The last criticism of the special adjudicator's reasons related to his alleged failure to consider the possibility of future persecution of the petitioner in the event that he returned to Bangladesh. On this point, too, I am of opinion that the special adjudicator's reasons are adequate. In his first interview and his evidence before the special adjudicator, the petitioner raised four distinct matters that might be a source of persecution. The first was the criminal charges that had been brought by the relevant Bangladeshi authorities. On this matter, the special adjudicator concluded (at paragraph [44] of his determination) that on his return the petitioner could expect those charges to be fairly dealt with by the higher judiciary. The second involved targeting by an MP belonging to the Awami League because of the role that the petitioner was likely to play in the run up to a particular election. On this point, the special adjudicator concluded (at paragraph [46]) that the election was now past, and the reason was accordingly spent. The third involved beatings by members of the Awami League. On this matter, the special adjudicator concluded (at paragraph [47] of his determination) that the petitioner was neither credible nor reliable in asserting that he had been beaten. He might have been involved in arguments with members of the Awami League, but having an argument does not involve persecution. The fourth was an allegation that the petitioner would be subject to persecution because of his involvement with the tribal peoples in the Chittagong Hill Tracts. On this matter, the special adjudicator concluded (at paragraph [45) of his determination) that it was implausible that the petitioner would favour or champion the tribes of the Chittagong Hill Tracts, since he was a member of the chauvinistic and nationalistic BNP. On all of these matters, I consider that the special adjudicator gave adequate reasons for his conclusions.

Approach to assessment of future risk

29. The fourth criticism of the special adjudicator's determination related to his assessment of the risk of persecution in future in the event that the petitioner returned to Bangladesh. Counsel relied particularly on the English case of Karanakaran v Home Secretary, [2000] 3 All ER 449. That case involved a Tamil from the north of Sri Lanka, who had fled to Colombo and then travelled to the United Kingdom, where he applied for asylum. The applicant had appealed to the Immigration Appeal Tribunal on the question whether it would be unduly harsh to return him to Colombo. In doing so, he relied on the written evidence of four experts on Sri Lanka, each of whom had expressed the view that it would be unduly harsh to return the applicant to Colombo. The Immigration Appeal Tribunal considered individually each of the points made by the experts or by the applicant himself, and discounted each point, either because it was not sufficient to establish the contention that it would be unduly harsh to return him to Colombo or because it was far too speculative. The Court of Appeal held that this approach was wrong, and consequently allowed the applicant's appeal. In doing so, they made extensive comments on the techniques that are required in asylum cases when a decision-maker has to make judgments about future outcomes.
30. This issue was the subject of judicial comment in a number of Australian cases decided between 1989 and 1999, and the Australian approach was generally adopted by the members of the Court of Appeal. Brooke LJ founded in particular on passages from the majority opinion of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, (1996) 185 CLR 259. In the latter case, the majority stated (at 185 CLR 282):

"Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates [the equivalent of the special adjudicator] to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation. Where facts are in dispute in civil litigation conducted under common-law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence that parties to the litigation have thought it in their respective interests to produce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term 'balance of probabilities' played a major part in those submissions.... As with the term 'evidence' as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance".

Brooke LJ concluded (at [2000] 3 All ER 469g-470a):

"In the present public law context, where this country's compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.

This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find 'proved' facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if the applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen

For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur".

Counsel for the petitioner also referred to a passage in the opinion of Kirby J. in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (at 185 CLR 293), in the following terms:

"First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the 'real chance' of persecution required by Chan. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose a reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan, cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: 'What if I am wrong'?... Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems 'likely' or 'entitled to greater weight', the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a 'real chance' of persecution".

Sedley LJ, who quotes the foregoing passage at [2000] 3 All ER 478, points out that in Australian case law on the convention the word "speculation" is used to describe a legitimate exercise falling short of fact-finding.

31. Counsel for the petitioner relied in particular on the latter passage. He submitted that the special adjudicator had made factual findings on particular elements of the petitioner's claim. Those foreclosed consideration of the question whether there was a real chance of persecution if the petitioner were compelled to return to Bangladesh. In relying on this passage, however, he seemed to me to ignore certain other important statements of principle found both in the Australian case law and in Karanakaran. The foregoing passage from the opinion of Kirby J. in Wu Shan Liang led on to the following conclusion:

"Ultimately, the question is whether the delegate [i.e. the decision-maker] allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China".

The main point made by Kirby J. is accordingly this: in considering an application for asylum the decision-maker must apply his mind to the fundamental question of whether there is a reasonable degree of likelihood of persecution in the event that the applicant is returned to his own country, and in so doing he must take into consideration all of the evidence that may reasonably have a bearing on that question. Such an approach is in my opinion consistent with basic principles of administrative law. The same point has been made in Australia by Sackville J. in Minister for Immigration and Multicultural Affairs v Rajalingam, [1999] FCA 719, at paragraphs 60-67, in a passage summarising the principles that had been applied in the previous Australian cases; the relevant passage is quoted by Brooke LJ in Karanakaran at [2000] 3 All ER 468-469. In Karanakaran, Sedley LJ expressed the relevant principles as follows (at [2000] 3 All ER 479):

"The question whether an applicant for asylum is within the protection of the convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process... Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and -- sometimes -- specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions".

32. In the present state of the authorities, the law on this matter may in my opinion be stated as follows. First, the decision maker, whether an adjudicator or the Immigration Appeal Tribunal, must apply his mind to the fundamental question laid down in R v Home Secretary, ex parte Sivakumaran, [1988] AC 958, at 994, namely whether the applicant has established a reasonable degree of likelihood that he will be persecuted for a convention reason if returned to his own country. Secondly, in answering that question, the decision maker must take into consideration the whole of the evidence that may reasonably have a bearing on it. Thirdly, such evidence may include evidence of matters that the decision maker thinks are unlikely to have happened. That is because the exercise that is being performed is an assessment of the likelihood of future events; moreover, the question is not whether those future events are probable, but whether there is a reasonable degree of likelihood that they will occur, which is a substantially lesser test. Events that may have occurred are relevant to that exercise. Fourthly, the individual pieces of evidence that are relevant to the basic question must be given such weight as the decision-maker thinks they deserve. In the case of allegations that the decision-maker thinks probably did not occur, that weight may be relatively small. Nevertheless, an accumulation of events, improbable if considered individually, may if taken collectively suggest a reasonable likelihood of persecution. For this reason such events cannot be left out of account. Fifthly, in some cases the decision-maker may consider an allegation so unlikely that he thinks it proper to disregard it. In order to do that, however, the decision-maker must have no significant doubt that the allegation is unfounded. If that test is not met, he must take the allegation into consideration, although he may think that it is not entitled to much weight in the final assessment. Sixthly, in considering whether the decision-maker has approached the case in the proper manner, the court should not demand adherence to a precise method or formula, but should rather look at the substance of the decision to discover whether the underlying approach is in accordance with the proper legal principles. The precise wording used by the decision-maker does not matter; it is the substance of his decision that counts.
33. In my opinion the approach of the special adjudicator to the question of future persecution is adequate to satisfy the foregoing tests. The likelihood of persecution in the event of the petitioner's been returned to Bangladesh was the central issue before the special adjudicator; this is clear from paragraph [26] of his determination, where he refers specifically to the criterion laid down in the convention, that the applicant for asylum must show that, owing to a well founded fear of being persecuted for a number of reasons, including political opinion, he is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country. At paragraph [27] the special adjudicator refers to the test laid down by the House of Lords in R v Home Secretary, ex parte Sivakumaran, supra, namely that, for an applicant's fear to be well-founded he must demonstrate a reasonable degree of likelihood of being persecuted for a convention reason if returned to his own country. Thus the special adjudicator has considered the correct question.
34. He expresses his conclusions on the evidence at paragraphs [43]-[50]. In so doing, he was addressing the issue of the likelihood of future persecution, which he had identified as the issue before him. Counsel for the petitioner, if I understood him correctly, submitted that at this stage the special adjudicator had discarded the possibility of further FIRs, the possibility that the petitioner would be subject to politically motivated prosecution, and the possibility that the petitioner would be prosecuted for his involvement with the tribal peoples, and thus had been left with no material on which to address the question of the reasonable likelihood of future persecution. In my opinion that is a misunderstanding of the special adjudicator's approach. The likelihood of future persecution was the only significant issue before him. What he did at paragraphs [43]-[50] was to consider the various areas of evidence that might yield the inference that there was a reasonable likelihood of such persecution. He rejected the petitioner's contentions on each of those areas of evidence, in emphatic terms. It is not correct in my opinion to speak of him as "discarding" each of those contentions. He was rather addressing the central issue before him, the likelihood of future persecution, by reference to each of the relevant areas of evidence. I do not consider that there is anything wrong with that approach. The most that can be said is that the special adjudicator could, after he had considered each of the petitioner's contentions and rejected them, have come back to consider the contentions as a whole. In the present case, however, I am of opinion that that is not necessary. The special adjudicator had rejected each contention in decisive terms, to such a degree that he was fully entitled in my opinion to take the view that consideration of the contentions as a whole was a valueless exercise.
35. The special adjudicator began by considering the FIRs produced by the petitioner. On this matter, his decision was as follows (at paragraph [43] of his determination):

"I accept the FIRs as authentic... The appellant had the opportunity to get any further FIRs or documents. He failed to do so. He was as they even as to how many other charges there were. In the circumstances I do not accept that there were FIRs relating to other incidents".

It is clear from this passage that the petitioner was given an opportunity to obtain further documentation relating to alleged charges against him, but failed to do so. It is clear that he had managed to obtain documentation in relation to certain of the charges, including the charge relating to the attempted murder of an Awami League MP. Where there is a failure to produce documentation in circumstances where it might reasonably be expected, I am of opinion that an adjudicator will normally be entitled to discount the possibility of further charges, on the basis that he has no significant doubt that such charges did not exist. The matter would be different if an explanation were given for the fact that further documentation was not forthcoming, but there was no such indication in the present case. In these circumstances I consider that the special adjudicator was entitled to disregard the possibility that further charges might exist.

36. The special adjudicator went on to consider the documented charges, which related to a number of incidents including an alleged attack on an Awami League MP. The special adjudicator's conclusion on these charges is found in paragraph [44] of his determination, in the terms quoted at paragraph [17] above. His conclusion is quite clear, namely that the petitioner can expect the charges to be fairly dealt with by the higher judiciary. That rules out the possibility of persecution through those charges. Once again, I am of opinion that the special adjudicator's decision on this matter is sufficiently definite for him to be entitled to disregard the possibility that judicial proceedings might be unfair.
37. The petitioner claimed that he was liable to be persecuted because he had championed the tribes of the Chittagong Hill Tracts. The special adjudicator rejected the suggestion that paragraph [45] of his determination, in very definite terms; he states that it was "implausible" that the petitioner, as a member of the chauvinistic and nationalistic BNP, would favour or champion the tribes. Once again the conclusion is expressed in very definite terms. I regard the word "implausible" as a fairly strong indication that this part of the petitioner's claim was simply not credible. In the circumstances I consider that the special adjudicator was entitled to disregard this element. In any event, in view of the special adjudicator's findings about the political attitudes of the BNP, there is a very obvious conflict between the petitioner's claim that the might be persecuted because he favoured the tribes and the claim that the petitioner might be persecuted because he was a member of the BNP. That conflict would make it difficult to give any significant weight to both of those claims at the stage of considering whether there is a reasonable likelihood of persecution in future.

Immigration Appeal Tribunal

38. I have rejected all of the criticisms made of the special adjudicator's decision. It follows that the appeal to the Immigration Appeal Tribunal would not have succeeded either, and thus it is unnecessary to consider the Tribunal's decision further.
39. In the whole circumstances, I will refuse the remedies sought in the petition.