LL (Falun Gong Convention Reason Risk) China CG  UKAIT 00122
Date of hearing: 29 July 2005
Date Determination notified: 9 August 2005
|Secretary of State for the Home Department||RESPONDENT|
This determination is reported for its consideration of the availability of "imputed political opinion" as a 1951 Convention reason as described in paragraphs 26-33, and of the risk to Falun Gong practitioners at various levels as described in paragraphs 34-38.
"(f) In June of 2002 at a Falun Gong gathering in her home city she was again arrested. During detention she has given an account in her evidence of being detained for nearly one month. The statement says she was detained for one week. The Appellant has said in her evidence having had bail explained to her within the meaning of the UK that she was not released on bail. She was told that if she was arrested she would be detained and treated much more severely. She has no obligation to go back to the police station and is not wanted."
25. The question the IAT asked itself was whether membership of the Falun Gong could be equated with membership of a particular social group within the meaning of Article 1A of the Refugee Convention. The IAT considered that it could not, because members of the Falun Gong possessed no immutable characteristics. Membership is a matter of choice, and a person can become a member and then cease to be a member at any time. The fact that members of the Falun Gong were persecuted could not itself qualify them for this purpose as members of "a particular social group", because it has been repeatedly stated that the particular social group must exist independently of the persecution. The adjudicator's finding that L would not be persecuted on the grounds of religion had not been challenged on appeal, and L could not therefore show that as a member of Falun Gong she shared characteristics with other members "which it is beyond her power to change or is so fundamental to her identity or conscience that she ought not to be required to change it"
33 Mr Fordham, who appeared for the Secretary of State, accepted that on appropriate facts a member of the Falun Gong might properly be held to have a well-founded fear of persecution in China on the grounds of imputed political opinion. In our judgment this would be the better approach to such a case, at any rate on the evidence relating to the Falun Gong which is before us. We are not prepared to accept that authoritarian pressure to cease the practice of Falun Gong in public would involve the renunciation of core human rights entitlements. As the IAT observed, the Falun Gong has no membership lists. Anyone can become a member or cease to be a member at any time and practise Falun Gong exercises by him/herself in the privacy of his/her home without significant risk of being ill-treated. We were unwilling to entertain argument on this appeal about the possibility of Falun Gong qualifying as a religion. A court would have to understand a great deal more about it than is contained in the papers at present before us before it could be ready to go down that route.
34 A problem has arisen on the facts of this case, however, which requires us to remit it to the IAT. We were told that it was L's case before the adjudicator that if she were to be returned to China she would continue with her Falun Gong activities which we described in paragraph 5 above, and that the IAT failed to appreciate this. As we have said (see para 1), the Secretary of State was not represented before the adjudicator, and both L and her solicitor have filed witness statements since the hearing before the IAT attesting to this fact.
35 Since the IAT decided the "internal flight option" part of the appeal on a different factual basis (see para 14 above) we must remit this case to a differently constituted panel to reconsider the matter. At the new hearing the IAT will be at liberty to revisit the Secretary of State's original grounds of appeal, if it considers it fair to do so, and the appellant will be at liberty to advance arguments based on "imputed political opinion" if she believes that the evidence before the adjudicator would sustain such arguments. We have already expressed our view that a great deal more material would have to be placed before a court before it could seriously entertain the idea that Falun Gung might be a religion within the meaning of the Refugee Convention, and L has expressly disavowed any such suggestion in her own case.
36 We therefore direct that the appeal be allowed and the case be remitted to the IAT for the purposes set out in paragraphs 34-35 above.
If, under the old appeals provisions, the appeal or application was not restricted to the ground that the Adjudicator made an error of law, then it shall not be so restricted following commencement."
(a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an Adjudicator's determination before 4th April 2005, but the appeal has not been determined by that date; and
(b) by virtue of a transitional provisions order the grant of permission to appeal is treated as an order for the Tribunal to reconsider the Adjudicator's determination,
the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal.
1. The Court bundle.
2. The Appellant's bundle.
3. The Appellant's Reply
4. The previous papers
5. The Appellant's written statements of 9 August and 13 November 2002.
6. The full judgement in L China v The Secretary of State for the Home Department  EWCA Civ 1441.
7. The grounds under the HRA that were before the Adjudicator.
8. The judgment in Chiver.
"In every case the Appellant assumes the burden of showing that the judgment appealed from is wrong. The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and indeed may express itself in such terms. The true distinction is between the case where the court of appeal might prefer different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category."
"On appropriate facts a member of the Falun Gong might properly be held to have a well-founded fear of persecution in China on the grounds of imputed political opinion".
"The Chinese government has stated in recent months that there are around 2 million Falun Gong practitioners in China. According to FH sources, previous government estimates put the figure at between 70 and 100 million. The Falun Gong was founded in 1992 by Li Hongzhi, who now resides in the United States. It is described by its adherents as a spiritual practice of body, spirit and mind, based on various schools of Buddhism and traditional forms of self cultivation which centre around a practice of meditation and Qi Gong exercises. These exercises sessions are often held by groups in public places. Before it was banned, the Falun Gong had training stations, practice sites and contact persons across China, with practitioners coming from all sectors of Chinese society and almost all provinces. Among the thousands detained over the past few months, the majority were ordinary workers or farmers, but they also included teachers and academics, university students, publishers, accountants, police officers, engineers and people from a variety of other professions. Those detained also include officials, notably a Railways Ministry official, a former official at the Ministry of Public Security (police), a recently retired major from the People's Armed Police, and a 74 year-old retired in force Lieutenant-General.
The government's final crackdown on the Falun Gong appears to have been triggered by a large-scale demonstration in Beijing on 25 April 1999, when an estimated 10,000 practitioners from various places in China stood quietly from dawn until late into the night outside the compound of the Communist Party leadership in Beijing. According to Falun Gong sources, the demonstration was organised in reaction to incidents in which practitioners had been harassed or detained by police over the previous months. The demonstrators' purpose was to demand official status for Falun Gong and to request dialogue with the government. The authorities however are reported to have been mainly concerned by the capacity of the group to mobilise large numbers of followers, unnoticed, for a public demonstration. Subsequently, after some conflicting signals, they branded the Falun Gong a "threat to social and political stability".
The government banned Falun Gong on 22 July 1999 and launched a massive propaganda campaign to denounce its practice and the motivation of its leaders, in particular Li Hongzhi. Since then, the government's accusations against the group have been repeatedly publicised by the state media and government officials. At a news conference on 4 November 1999 for example the Director of the Bureau of Religious Affairs of the State Council said that Falun Gong had brainwashed and bilked followers, causing more than 1400 deaths and threatened both social and political stability. Further emphasising that Falun Gong was a political threat he added "any threat to the people and to society is a threat to the Communist Party and the government".
"More recently the group has taken to interrupting television broadcasts and beaming their own message into the homes of Chinese viewers. In the present year, Falun Gong supporters have interrupted cable broadcasts in at least six cities, often simply showing banners reading "Falun Dafa is good".
"The Chinese authorities have frequently asserted that Falun Gong is an "evil cult" displaying the same abusive and life-threatening organisational characteristics as the Aum Shrinrikyo cult in Japan, which released sarin poison gas in the Tokyo subway in 1995, the Branch Davidians cult, dozens of whose members were killed when the US law enforcement authorities stormed its headquarters in Waco, Texas, in 1993, and the the Temple Cult many of whose Members committed collective suicide in Switzerland in 1994. On this and other implicitly political grounds, the Government has further branded the Falun Gong Movement as posing a serious "threat to state security".
6.122 As reported by the Falun Gong web site accessed on 23 January 2005 "there are at least 6,000 Falun Gong practitioners who have been illegally sentenced to prison. Over 100,000 practitioners have been sent to labour camps . Large groups of the Falun Gong practitioners have been forcibly sent to local brainwashing classes, where they have been subjected both to physical and mental torture."
6.124 On 29 December 2004, Reporters Without Borders condemned the arrest of 11 Falun Gong practitioners for using the Internet to publish photographs of the torture some of them had undergone in prison. They calculated that at least 30 people are currently detained for posting or viewing documents on the Internet that support Falun Gong or criticise the systematic torture its followers undergo in Chinese prisons.
6.126 According to Amnesty International in their January 2004 reports, controls tighten as Internet activism grows. Of the 54 people detained and sentenced for Internet activism, 29 were Falun Gong practitioners/sympathisers.
6.127 as reported by the Canadian IRB in a report dated 25 October 2001, the Chinese authorities had confiscated 1.55 million copies of Falun Gong material by the end of July 1999. The IRB also reported the arrest of a number of people for illegally printing, selling and publishing Falun Gong material. Sentences ranged from six to ten years imprisonment.
"We are not prepared to accept that authoritarian pressure to cease the practice of Falun Gong in public would involve the renunciation of core human rights entitlements."
1. The claim is in line with the objective evidence of the crack-down on Falun Gong practitioners in China.
2. The Appellant has been entirely consistent save except in one or two minor discrepancies.
3. There was no challenge to the Appellant's knowledge of Falun Gong or her claim to be a practitioner.
4. She was nervous when giving evidence and had to correct herself on two occasions but that was to her credit.
5. The only discrepancy between the papers and the oral evidence was the length of the second detention, as to whether it was one week as per the written statement or one month as in her oral evidence. The Adjudicator gave her the benefit of the doubt on this. The discrepancy could be a simple typographical or translation error when the statement was read back.
"The objective material before me does point to an increased crackdown on the Falun Gong movement by the Chinese authorities and as to the option of internal flight I accept the Appellant's account, given it is the state that is persecuting her and that the machinery of the state is available there to trace her wherever she were to move in China. In looking at the decision in Zheng, I note that in looking at the case here on its own facts and merits, that the Appellant here too is more than a mere practitioner. She has supported the movement in some if not significant measure on a day to day basis. I have to in looking at paragraph 18 of that decision look at the two questions posed when applying the appropriate burden and standard of proof. : (1) would this Appellant as an arranger and leader of practice sessions be the subject of the ill-treatment, and (2) if the answer to that was yes, would the ill-treatment amount to persecution? In looking at the Appellant's case, as I stressed on a case-by-case basis on its own merits, my answer to both of those questions on the basis of the evidence before me and the objective material cited must be yes."
"The Appellant's attempts to practise her religion have met with such extreme opposition as to endanger her safety and force her to seek international protection. She is a committed practitioner of Falun Gong and would wish to continue to practise her religion if returned to China ..
There is no material error. The Adjudicator's determination shall stand.
Signed Dated 4 August 2005
S L Batiste, Senior Immigration Judge
Approved for electronic transmission
APPENDIX OF OBJECTIVE EVIDENCE CONSIDERED
1. CIPU report of April 2005
2. US State Department Country Report of human rights practices 2004
3. US State Department China Report International Religious Freedom Report 2004.
4. Amnesty International "Crackdown of Falun Gong and other so-called heretical organisations 2000.
5. Amnesty International Report on China 2004
6. CNN China Falun Gong a global threat August 2002
7. CNN Falun Gong: a brief but turbulent history July 2002
8. Human Rights Watch and Geneva Initiative on Psychiatry August 2002.
9. BBC Falun Gong: living in fear April 2000
10. Christian Century Falun Gong supporters denounce China August 2000.
11. BBC The complex web of Falun Gong July 1999
12. BBC Text of notice banning Falun Gong July 1999
13. Amnesty International UA 97/05 22 April 2005-08-01
14. BBC Falun Gong hacker died in jail December 2003