SP and Others (Tibetan Nepalese departure illegal risk) People's Republic of China CG  UKAIT 00021
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 18th August 2006
Date Determination notified: 09th February 2007
MR D C WALKER
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
Removal to People's Republic of China of Tibetans who left China illegally on the Tibet/Nepal route would give rise to a real risk of persecution, serious harm and treatment contrary to Article 3 of the ECHR.
"We consider the Adjudicator made a material error of law. The parties agreed that the Adjudicator made a material error of law. In paragraph 50 of his determination, the Adjudicator considered the risk on return but confined his consideration to whether the criminal punishments were unjust or disproportionate. We are satisfied that Mr Braid's submissions on the risk on return faced by Tibetans were much more far-ranging as appeared from his skeleton argument prepared for the Adjudicator. The Adjudicator did not deal with these issues."
"We consider the Adjudicator (sic) made a material error of law. The appellant failed to give a credible account of what happened to him in the Tibet. Nevertheless the Immigration Judge recognised the appellant as a refugee and one who is at risk of a violation of his human rights as a returnee. In paragraph 6.7 of his determination, the Adjudicator found the appellant was at risk by reason of his having visited, and then departed from, Nepal but fails to give reasons why the Chinese authorities know of this or will discover it. He will be returned to China as there are no direct flights to [Tibet region]. He will be provided with valid travel documents. The Adjudicator distinguished PW (Tibetan Failed asylum seeker risk) China  UKIAT 00051. In doing so, it is conceded that he made an error of law in that he construed PW as merely considering the position of a Tibetan returning to China itself and thereby treated it as inapplicable.
The appellant relies upon the failure of the Secretary of State to give an undertaking not to return the appellant to Tibet as fatal to the Home Office claim. See skeleton argument. In doing so, the appellant places significant if not fundamental reliance upon the removal directions, expressed to China (Peoples Republic of China) (Tibet). Yet it is common ground that the Secretary of State has no ability to return him to [Tibet region] and that, as a simple matter of fact, he will not be returned there. Once he is returned to China, the Secretary of State has no power to direct that he returns to [Tibet region]; it is a matter for the appellant and/or the Chinese authorities to determine where he settles. The grounds state:
'In the absence of any undertaking that removal would not be to [Tibet region] the Immigration Judge was correct to conclude as he did.'
The inference from this submission is that if the undertaking had been given, the Immigration Judge would have been wrong. We do not consider that there is a difference in substance between an undertaking not to return the appellant to [Tibet region] and the undisputed fact that the appellant cannot be returned to Tibet. As far as we are aware, the Secretary of State was not asked to give an undertaking not to return him to [Tibet region]. In particular, we do not know that the issue was canvassed and the Secretary of State made the conscious decision to refuse the undertaking'".
Ms TL's claim
"We consider the Adjudicator made a material error of law. The Presenting Officer agreed the Immigration Judge made a material error of law in failing to consider the expert evidence."
Documents before Tribunal
"30 If a party has not filed a rule 32 (2) notice, the Tribunal is entitled to assume that there is no further evidence or material it wishes to put before the Tribunal for the purposes of the reconsideration. And if he has not filed a reply, the Tribunal is entitled to assume that the party other than the one on whose application the reconsideration was ordered does not wish to rely on any arguments or material other than those upon which the original decision was based."
(i) the position of the appellants, as Tibetan, on return after a lengthy absence to mainland China (as they could not be returned to Tibet region); and
(ii) The relevance to that risk of the authorities' view as to whether they had left Tibet region by travelling through Nepal.
Mr. Mullins' submissions
Mr. Payne's submissions
Mr Jeffrey Bowe
"Detention generally lasted for several months, although in most cases no formal charges were brought. In January and again in September, there were reports that the Nepalese Government co-operated with Chinese authorities to repatriate Tibetans who crossed the border. NGOs reported that some individuals were detained and mistreated upon their return to China".
The Report then stated:
"Tibetans were repatriated to China from Nepal in May 2003 and were forced to perform heavy physical labour. Their family members also were pressurised for a bribe to secure their release. Prisoners were subjected routinely to 'political investigation' sessions and were punished if deemed to be insufficiently loyal to the State."
"Refugees who are caught coming back from India or Nepal are reportedly treated much more harshly and receive longer sentence than those who are caught trying to leave Tibet."
"Overall the level of repression in the Tibetan areas remained high and the government's record of respect for religious freedom remained poor during the year ..the government maintained tight controls on religious practices and places of worship in the Tibetan areas. Although the authorities permitted many traditional practices and public manifestations of belief, they promptly and forcibly suppressed activities they viewed as vehicles for political dissent or advocacy of Tibetans independence, such as religious activities venerating the Dalai Lama".
"On the basis of available documentation on individual Communist Chinese sources SP would be arrested and charged with political activity against the State and would therefore be a victim of an unfair judicial system and imprisoned under conditions in which systematic torture and abuse was commonly documented for political prisoners."
Ms Kate Saunders
Other documentary evidence
The Tibetan Centre for Human Rights Report 2000
Amnesty International of July 2002
Tibetan Justice Centre, December 2002 Report
The US State Department report for 2002
"There were numerous reports of arbitrary detention of persons, particularly monks, returning to China (Tibet region) travelling from Nepal. Detention generally lasted for several months although in most cases no charges were brought formally".
The Report indicated that forced labour had been used in some prisons with 're-education through labour' facilities and at work sites where prisoners were used as workers. A reference in the report stated that:
"The number of Tibetans who entered Nepal seeking refugee status to escape conditions in the Tibet decreased from approximately 3,000 in 2000 to 1,268 during the year according to the UNHCR. It is difficult for Tibetans to travel to India for religious purposes. Nevertheless, many Tibetans, including monks and nuns visited India via third countries and returned to Tibet after temporary stays. In May TIN reported that the Chinese Government appeared to be making greater efforts to encourage exiles to return to Tibet. While some exiled Tibetans have returned, the approval process remains cumbersome."
Human Rights Watch News Asia: "Tibetans Lost in Chinese Legal System"
"Human Rights Watch said that China's failure to acknowledge long prison sentences against Tibetans demonstrates yet again the government's determination to prevent the international community from learning the full extent of its ongoing crackdown against Tibetan activists."
"Tibetans continue to fall into the black hole of the Chinese legal system secret trials and secret sentences make a mockery of Chinese pretence that its legal system acts according to the rule of law."
Phayul.com - Feb. 2004
"Human rights organisations and the United Nations High Commission for Refugees often only learn of arrests by Chinese border patrols, or of deportations of Tibetans refugees by Nepalese officials, when refugees make a successful re-attempt at escape. Refugees who are caught coming back from India or Nepal are reportedly treated much more severely and receive longer sentences than those who are caught trying to leave Tibet, according to former inmates."
"Report that most individuals caught at the borders serve between three five months prison sentence, receive beatings and torture regularly (most commonly being hit with an electric baton) and must perform hard labour, usually road building in and around Shigatse. Tibetans detained for trying to flee Tibet without papers are rarely provided with any judicial hearing or proceeding."
Phayul.com - Oct. 2005
Country Information and Policy Unit Report 2004
"This is the first such deportation in recent years. The move had been criticised by Amnesty International. A report from the Australian Tibetan Council stated that these detainees had been released after others had paid a fine but it alleged that they had been badly beaten and tortured with electric batons and sewing needles".
Operational Guidance Note issued on 22 June 2006
"The Government's human rights record in the Tibetan areas of China remained poor during 2005, and the level of repression of religious freedom remained high. The Government continued to view the Dalai Lama with suspicion and tended to associate Tibetan Buddhist religious activity with separatist sympathies. Authorities continued to commit serious human rights abuses, including torture, arbitrary arrest and detention, house arrest and other non-judicial surveillance of dissidents, detention without public trial, repression of religious freedom and arbitrary restrictions on free movement."
At paragraph 3.7.10 the Note concluded:-
"It is clear that the Chinese authorities may take serious action against Tibetans expressing political or religious views and that this treatment will amount to persecution. Where an individual is able to demonstrate that they are at serious risk of facing such persecution on account of their activities a grant of asylum will be appropriate. However a grant of asylum will not be appropriate solely on the basis of being an ethnic Tibetan."
At paragraph 3.7.8 the Note reads:-
"Internal Relocation. As this category of claimants' fear is of ill-treatment/persecution by the State authorities, relocation to a different area of the country to escape this threat is not feasible."
When considering relocation within China the Note reads at 3.12.12:
"Internal Relocation. Hukous (residence permits) are issued for all Chinese citizens and are inscribed to identify the carrier as a rural or urban resident. Each urban administrative entity (towns, cities, etc) issues its own Hukou, which entitles only registered inhabitants of that entity full access to social services, like education. However not all citizens were officially registered and there remained a 'floating population' of between 100 and 150 million economic migrants who lacked official residence status in cities."
At paragraph 6.295 the note referred to the USSD report of 2005 which stated as follows:
"The Government's human rights record in the Tibetan areas of China remained poor, and the level of repression and religious freedom remained high. The Government continued to view the Dalai Lama with suspicion and tended to associate Tibetan Buddhist religious activity with separatist sympathies. Authorities continued to commit serious human rights abuses, including torture, arbitrary arrest and detention, house arrest and other non-judicial surveillance of dissidents, detention without public trial, repression of religious freedom, and arbitrary restrictions on free movement. Positive developments in the Tibetan areas included a fourth round of dialogue between the Government and envoys of the Dalai Lama."
At paragraph 6.297 the USSD report was cited as saying:
"Human rights situation in the Tibet did not improve in 2004. There was no let-up on many unpopular measures of control that went to describe the anxious nature of the political atmosphere. The resumption of the 'Strike Hard' campaign, the renewed emphasis on the Patriotic Re-education campaign and the establishment of a Re-education Through Labour camp in Ngari County in the Tibet Autonomous Region to check the refugee flow, are clear indications of continued suppression of the Tibetan people."
Finally, the note referred to the USSD Religious Freedom report 2005 as stating:
"In 2003 Tibetans forcibly returned to China from Nepal reportedly suffered severe torture, and their family members pressurised by officials for bribes to secure their release. Nevertheless, many Tibetans, including monks and nuns, visited India via third countries and returned to China after temporary stays. Some returnees reported the authorities pressured them not to discuss sensitive political issues."
The US State Department report for 2004
The United States Congressional - Executive Commission on China Annual Report 2005
"The CECC Political Prisoner Database (PPD) lists approximately 120 current cases of Tibetans political imprisonment in June 2005 less than one fifth of the number in late 1995. The number of Tibetans political prisoners continues to decline as Tibetans imprisoned for protests during late 1980s to mid-1990s complete their sentences and are released".
UN Commission for Human Rights Mission to China - Report by UN Special Rapporteur on Torture, Manfred Nowak.
"Areas of improvement in the Chinese legal system"
"significant and serious concerns as to the actual implementation of the rule of law, the use of the death penalty for wide-ranging and vaguely defined offences, and the continued targeting and mistreatment of Tibetans".
He stated that he and his predecessors had received "serious allegations" of a:
"Consistent and systematic pattern of torture related to ethnic minorities particularly Tibetans and Uighurs".
Risk on return to Tibetan failed asylum seekers
The Tibet/Nepal route out of China
"significant and serious concerns as to the actual implementation of the rule of law, the use of the death penalty for wide-ranging and vaguely defined offences, and the continued targeting and mistreatment of Tibetans" (emphasis added)
And to a:
"Consistent and systematic pattern of torture related to ethnic minorities particularly Tibetans and Uighurs" (emphasis added).
Return via Beijing/Shanghai
Legal exit from China
Internal travel for returnees within China
" it seems to me that in a Country Guidance case, it may well be helpful for all concerned to know the dangers inherent in a method of return that is likely to be used, if known. Those dangers can then inform the SSHD when (or if) removal directions are made".
(a) in the unlikely event of Tibetans without valid passports returned to China not being apprehended at the airport and making their way back to Tibet region, they would be likely to be picked up there. We note the system of "Danwei" to which Ms Saunders referred in her report: we consider that their unlawful departure from China on the Tibet/Nepal route and their return via Beijing or shanghai (and thence to Tibet region) would be noted and that they would be picked up, detained and ill-treated.
(b) Were such persons to attempt relocation, this would involve them joining the 'floating population' of China. We would re-emphasise here that the respondent's own OGN states that relocation is not an option as persons fearing persecution by the State. We see no reason, on the basis of the evidence before us in these reconsiderations, to take a different view.
Existing and Previous Reported Cases
Summary of Conclusions
(a) There are no figures for Tibetans who are returned from the West to the only two points of removal to the People's Republic of China Beijing and Shanghai -and we do not consider it safe to infer that the figures we have for those returned to China in recent years include any Tibetans.
(b) The Chinese authorities are concerned with any activity by Tibetans which they consider to be "splittist"- that is, any activity which indicates that a Tibetan might wish Tibet region to break away from China. Any support for the Dalai Lama is seen as "splittist" and as furthering the cause of Tibetans nationalism, which the Chinese authorities continue to want to crush. Those Tibetans who leave China unlawfully on the Tibet/Nepal route are seen as being supporters of the Dalai Lama.
(c) Tibetans who having left China unlawfully on the Tibet/Nepal route now face removal by the United Kingdom, are reasonably likely to be considered as "splittists".
(d) Accordingly, Tibetans who have made their way to the West having left China unlawfully on the Tibet/Nepal route face a real risk on return of detention and ill-treatment which amounts to persecution.
(e) Tibetans who left China legally, and who did not leave because they had a well founded fear of persecution, would not be likely to face persecution on return at the airports in Beijing or Shanghai or subsequently upon re-entry to Tibet region.
(f) The Chinese regime in the Tibet region is repressive and the individual facts of each case must be considered carefully as it is a society where there is a considerable amount of surveillance. A Tibetan who is able to show he faces a real risk on return arising out of past adverse experiences in the Tibet region, should be able to succeed in his or asylum claim, irrespective of what the position is as regards failed asylum seekers generally.
(g) Unless the Secretary of State can show that their exit from China was lawful, and not on the Tibet/Nepal route, Tibetan returned to Beijing or Shanghai are reasonably likely to face persecution on return and therefore the issue of an internal relocation alternative does not arise.
(h) However, even if the issue of internal relocation did arise, given the terms of the Respondent's OGN and CIPU reports and the evidence pointing to likely state persecution of Tibetans who have left Tibet illegally via Nepal, there would not be any viable internal relocation alternative.
(a) Whether or not an appellant had a well founded fear of persecution before leaving China,
(b) Whether or not he or she left China legally or without authority; and
(c) The route by which they should be considered to have left China (that is, from the mainland or on the Tibet/Nepal route).
The Appeals of WD, SP and TL
Senior Immigration Judge McGeachy
Annex Documents considered and referred to in the determination.
1) June 2000 Report from Tibetan Justice Centre Tibet's stateless Nationals.
2) December 2000 Tibetan Centre for Human Rights and Democracy Annual Report.
3 ) October 2001 Tibetan Centre for Human Rights and Democracy Newsletter.
4) December 2001 Tibetan Centre for Human Rights and Democracy Annual Report.
5 ) March 2002 US State Department Report on Tibet for 2001.
6 ) March 2002 Tibetan Centre for Human Rights and Democracy Newsletter.
7) July 2002 Amnesty International report: China "'Strike Hard'" anti crime report.
8) 2002 Various Tibetan Centre for Human Rights and Democracy articles.
9) December 2002 Tibetan Centre for Human Rights and Democracy Annual Report.
10 ) March 2003 US State Department Report on Tibet 2002.
11 ) May 2003 Human Rights Watch Report.
12 ) June 2003 Amnesty International Nepal: forcible returns of Tibetans.
13 ) July 2003 Human Rights Watch: Tibetans lost in Chinese legal system.
14) December 2003 Tibetan Centre for Human Rights and Democracy Annual Report.
15 ) March 2004 US State Department Report on Tibet 2003.
16 ) May 2004 Expert Report from Ms Kate Saunders.
17 ) April 2004 Country Information and Policy Unit Report China.
18) December 2004 Tibetan Centre for Human Rights and Democracy Annual Report.
19 ) March 2005 US State Department Report on Tibet 2004.
20) September/ US Congressional Executive Commission on China
October 2005 Reports on registration (Hukuo) system.
21 ) November 2005 Expert reports from Mr Jeffrey Bowe on each appellant.
22) December 2005 Tibetan Centre for Human Rights and Democracy Annual Report.
23 ) December 2005 Campaign or Tibet: UN Special Rapporteur on Torture.
24 ) January 2006 Campaign for Tibet report.
25 ) January 2006 Email from Mr Jeffrey Bowe.
26 ) February 2006 US State Department Report on Tibet.
27) April 2006 Reports from Ms Kate Saunders for each appellant.
28 ) June 2006 Home Office Operation Guidance Note.
29) 16 August 2006 Letter to Treasury Solicitor Department from Home Office Researcher.
30) August 2006 Article from "Times Online" headed "Beijing pledges a fight to the death".
31) Playul.com - various articles.