LIU SHI HUANG v. SECRETARY OF STATE FOR THE HOME DEPARTMENT
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord President Lord Penrose Sir David Edward | [2005CSIH59] XA61/04 OPINION OF THE COURT delivered by LORD PENROSE in APPEAL under section 103(2)(b) of the Nationality, Immigration & Asylum Act 2003 by LIU SHI HUANG Appellant; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Muqit; Allan McDougall (Appellant)
Alt: Lindsay; H. Macdiarmid (Respondent)
14 July 2005
[1]The appellant is a national of China. He was refused asylum by the Secretary of State for the Home Department, and in consequence refused leave to enter the United Kingdom and directions were issued for his removal to China. He appealed to an adjudicator, on the grounds (a) that he had a well-founded fear of persecution in China and was entitled to the protection of the 1951 Geneva Convention relating to the Status of Refugees; and (b) that his removal from the United Kingdom would breach the United Kingdom's obligations under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 3 of that Convention.
[2]The appeal was heard in Glasgow on 21 February 2003. The adjudicator's determination was promulgated on 6 March 2003. The Secretary of State had certified the appellant's asylum claim as manifestly false, and accordingly within the scope of paragraph 9 (4) (b) of schedule 4 to the Immigration and Asylum Act 1999. The adjudicator agreed with the Secretary of State's certificate. Further appeal was accordingly restricted to the appellant's grounds of appeal under the 1950 Convention.
[3]The appellant appealed to the Immigration Appeal Tribunal on human rights grounds. On 8 April 2003, leave to appeal was granted. The appeal was heard on 25 February 2004. The tribunal's decision was made on 11 March and notified on 16 March 2004. The appeal was dismissed. Against that decision, the appellant sought leave to appeal to the court.
[4]The appellant had advanced an argument before the adjudicator based on his own evidence of activities in which he had engaged in China before leaving that country. The critical factors were set out by the tribunal in its determination. The appellant had said that in 1996 he had formed a political party called the 'Liberal Democratic'. On 12 October 1996, he had written a letter to the National People's Congress requesting certain political freedoms. As a result the police had come to his house looking for him. He left the country, with the help of a Snakehead, on 20 October 1996.
[5]The adjudicator did not accept the account of the appellant's activities in China as credible and reliable. In his grounds of appeal to the Tribunal, there was material that focused on an attempt to challenge the adjudicator's findings on credibility. But this was not argued before the tribunal. The appellant's solicitor expressly confirmed at the hearing before the tribunal that the appellant did not seek to challenge the adjudicator's decision regarding the credibility of the appellant's account of what had happened in China.
[6]The remaining strand of argument before the tribunal related to the appellant's activities after his arrival in the United Kingdom. The adjudicator had set out some of the relevant material. The appellant had arrived in the United Kingdom in January 1997. He had joined the Alliance for Democratic China on 4 June 1997. He had also joined the China Democratic Party (CDP). On 4 June 1997 he had demonstrated outside the Chinese embassy in London. He had participated in demonstrations regarding human rights abuses in China. He raised funds for the victims of Tiannaman Square. The tribunal repeated these factors, and added that the appellant had sent leaflets to the Chinese community in London.
[7]Leave to appeal to the tribunal was granted on the basis that the adjudicator had arguably failed properly to deal with the evidence relating to the appellant's activities in the United Kingdom, having regard to guidance provided by the Court of Appeal in Danian [2000] Imm AR 96. The tribunal observed that the adjudicator had dismissed the significance of the appellant's United Kingdom activities as a self-serving attempt to bring himself to the attention of the authorities, so as to create a claim regarding risk of harm, and noted:
"The Court of Appeal decision in Danian indicates that the mere fact that an applicant may have behaved in this manner does not of itself mean that he is not entitled to succeed on an asylum or Article 3 claim - instead the crucial question remains the same, namely, whether, having regard to the facts of the applicant's particular case, there is a real risk for this applicant of persecution or Article 3 infringing treatment on return to his country of origin. If the applicant's activities in the United Kingdom, although self-serving (and perhaps done deliberately to seek to draw adverse attention to himself) would give rise to such a real risk, then the applicant is entitled to succeed notwithstanding that this may be a deliberate manipulation of the system done in bad faith."
[8]The tribunal proceeded to assess the question of risk afresh. Much turned on an analysis of and comparison with the facts found in the case of Yi Feng Zhang 01/TH/03505. That case had concerned an applicant who had joined the United Kingdom branch of the CDP and who had drawn attention to himself by being photographed in various newspaper publications as being engaged in demonstrations. Yi Feng Zhang's appeal had failed, but the analysis of the evidence available led the tribunal to distinguish the risk to low level members of the CDP from the risk posed to leading members of the party.
[9]For the appellant in this case, it was argued before the tribunal that the decision showed that the question whether there was a real risk on return to China for an applicant who was a member of the CDP depended on his position in the party as it was likely to be perceived by the Chinese authorities. A senior member would be at real risk on return whereas a rank and file member would not be. It was contended that the appellant was a leading member of the party in the United Kingdom, indeed he was the 'main member' in this country. Alternatively, it was argued that on the background evidence available, country conditions had deteriorated, increasing the risk to all members of the CDP.
[10]Having reviewed the evidence presented about the appellant's position in the CDP, the tribunal concluded that the appellant was 'merely a rank and file member of no prominence and that, as such, he would face no risk on return". The tribunal proceeded to consider the alternative submission, and concluded that the evidence supported the view that people who were known to be members of the CDP may have been the subject of close supervision, but that was 'hardly evidence that they were at real risk of Article 3 infringing treatment'
[11]Of the grounds of appeal tendered to the court, which were not drafted by her, Ms Muquit felt able to support two only in argument. These were (a) that the tribunal had erred in law by failing to grant permission to appeal against the adjudicator's findings on credibility, which in turn reflected an erroneous approach by the adjudicator to the assessment of the appellant's credibility; and (b) that the tribunal erred in law in finding perversely that the appellant did not face the risk of persecution on return to China, having regard to the objective evidence and the documentary evidence produced by the appellant.
[12]Appeals based on alleged failures by adjudicators in their approach to the assessment of the evidence of appellants are common, and Ms Muquit's submissions followed a familiar pattern. However, there is no basis in fact for the argument in this case. The written grounds of appeal ignore two material factors. In the first place, leave to appeal to the tribunal on human rights grounds was not restricted. The tribunal, in granting leave, showed less than enthusiasm for the relevant ground of appeal. But the order pronounced left it open to the appellant to argue the point. It was expressly abandoned by the appellant's solicitor, in response to a question by the tribunal. Despite Ms Muquit's best endeavours, this argument necessarily failed, having regard to the explanation provided by the tribunal of the course of events at the hearing on the merits of the human rights appeal. As Mr Lindsay submitted, the tribunal cannot be said to have erred in law in acceding to the abandonment of a ground of appeal.
[13]Mr Lindsay advanced an alternative argument to the effect that, if the ground had not been abandoned the court did not have jurisdiction to entertain argument on the point because there had not been a final determination by the tribunal. It is unnecessary to comment on this submission.
[14]The second argument based on the written grounds of appeal was expressed in terms of the risk to the appellant of persecution on return to China. It was developed on that basis. Reference was made to Yasin Sepet and Erdem Bulbul v Secretary of State for the Home Department [2003] Imm AR 428, and Horvath v Secretary of State for the Home Department [2001] 1 AC 489 in which the term 'persecution' was discussed in the speeches of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Clyde.
[15]Ms Muquit again faced insuperable problems in developing this argument. Had the appellant's asylum claim survived the scrutiny of the adjudicator, there might have been an argument of substance to consider. But, for breach of Article 3, the appellant had to establish that he had a real fear of being subjected to torture or inhuman or degrading treatment or punishment if he were returned to China. The background material on which the appeal was based could, in appropriate circumstances, support an asylum claim. But there was no evidence before the tribunal to support the argument based on infringement of Article 3 of the 1950 Convention in the case of the appellant. The tribunal noted the objective evidence of ill-treatment of activists and leaders of the CDP, and set out the available evidence relating to low level members of the United Kingdom branch of the party. At its highest, the evidence pointed to a risk of close surveillance by the authorities, as already noted, and the tribunal dismissed it as falling short of what would be required for Article 3 purposes. There was no error of law in the tribunal's approach to this issue.
[16]In the circumstances, the appeal must be refused..