England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Monday, 4 November 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal to this court from a determination of the Immigration Appeal Tribunal. The appellant, Mr Li, is a citizen of the People's Republic of China who has been refused admission to this country as a refugee. He has been represented throughout by Miss Naik of counsel, who represents him before us today.
2. The thrust of Mr Li's case has altered as it has passed through the various appellate levels. We have read all the adjudications in this case and all of the extremely lengthy submissions that have been made on behalf of Mr Li. It is quite clear to me that when Mr Li appeared in front of the adjudicator the main thrust of his case was twofold. First, he said that he had been forced to leave China on political, Convention, grounds; that is to say, his failure to abide by, and his unwillingness to abide by, the one-child policy of the Chinese government. Secondly, and quite differently, he said that he had been assisted in leaving China by persons known as Snakeheads who were of a violent disposition, he had been threatened and attacked by them or by their associates when in the United Kingdom, and he feared that if he were to be returned to China the Snakeheads there would similarly attack him. In the submissions made on his behalf it was also said that he and his wife would be at risk of a breach of their rights under Article 8 of the European Convention on Human Rights were they to return to China; but, in so far as one can discern the thrust of Mr Li's case, that was, at that stage, it seems to me, a somewhat secondary submission.
3. The adjudicator was deeply dissatisfied with the credibility of Mr Li's account. Mr Li did not give evidence in front of her because of ill-health but nonetheless, looking at the documents and at the history, she found many of the matters that were put before her difficult to accept. She said this at paragraph 49:

"I have serious doubts as to the appellant's claim that he left China because of fears of the consequences to him of having failed to abide by the one-child policy in China."

But she then said at paragraph 51 (if I may respectfully say so, with conspicuous fairness):

" . . .  given the low standard of proof and the necessity to give the appellant the benefit of the doubt where possible, I accept the core of his story, that he and his wife had a second child, and that as result the Birth Control Authorities were anxious to see them."

She, however, dismissed his application on all grounds, including (as we will come to) the Article 8 grounds.

4. A very lengthy application was made to the Immigration Appeal Tribunal for permission to appeal. The only point that attracted the Vice-President who gave permission was that there might be some doubt about the factual position with regard to Mr Li's experience with the Snakeheads in the United Kingdom, and it was on that ground alone that permission was given.
5. There were some, what I fear I can only describe as confused, exchanges before the tribunal, but on the point on which they had given permission they came to the conclusion that, even if the new evidence with regard to encounters with the Snakeheads were to be accepted, there was, first of all, no reason to think that that would be transmitted back to China; and, secondly and more importantly, that the issue of effectiveness of protection by the Chinese government did not therefore arise. They therefore dismissed the appeal. Miss Naik, both in her grounds and in her argument, had sought to reopen all the matters upon which permission to appeal had not been granted. The tribunal simply said about that:

" . . .  we have considered Miss Naik's submissions on other matters but we see no reason to disagree with the Adjudicator's assessment of the evidence or with her conclusions."

6. Lengthy grounds of complaint about that were then produced, and the tribunal refused permission to appeal to this court, saying that no ground of law material to the determination had been produced.
7. Permission was therefore sought from this court. I rejected that on paper, finding that the IAT were entitled to take the view they did of the Snakehead matter and did not need to provide further reasoning to supplement that of the adjudicator on the other issues.
8. The appellant's notice was filed in this court on 23 September. Comment is passed by those representing the applicant that the decision on paper was taken as early as 9 October. On 15 October, nearly three weeks after the appellant's notice had been filed, there was filed in this court a supplementary bundle setting out a significant number of papers that had been before the adjudicator and the IAT, and it was complained that the Lord Justice considering the matter on paper had not given attention to them. I say no more than that I find that baffling. If those advising the appellant think (in my view, in this case, however wrongly) that certain documents ought to be before the court, then they have to file them at the time they put in the appellant's notice; and, given the way in which this court now deals with its affairs, appellants should not be surprised if they receive an answer to their complaints within two or three weeks of making them.
9. The matter is now renewed to us today. The two leading points before the adjudicator, that is to say the political views of Mr Li and his fears of the Snakeheads, have completely disappeared. Complaint is now made, and effectively only made, of the adjudicator's handling of the Article 8 point. I do not say that that was not before her, but, as I have already said, it is difficult to see how it fits in with the process of appeal. Nonetheless, despite the fact that other matters were stressed before her, the adjudicator did address the Article 8 point. In paragraphs 54-56 of her determination she referred to various matters and documents that had been before her and said, fairly briefly, that she was not satisfied, looking at the evidence as a whole, that the appellant and his wife were at real risk of a breach of Article 8 rights in view of what the adjudicator describes as the up-to-date objective evidence.
10. Miss Naik has sought today to take us through various documents that were before the adjudicator to demonstrate that that conclusion was not open to her. We have looked -- though I am bound to say as a concession -- at those documents that Miss Naik thinks make that point best, and I for my part cannot start to accept that the state of the evidence before the adjudicator was such that it simply was not possible for her to reach the conclusion that she did. This is not a case where the adjudicator was unaware of the particular requirements of Article 8 and in some way elided that inquiry with her inquiry into the Refugee Convention. If that had happened it might raise different questions. This is a case where the adjudicator looked at the evidence and simply was not satisfied that it raised a significant Article 8 problem.
11. Professor Casson, when he refused permission to appeal to this court, was in my respectful judgment entirely right in saying that absolutely no point of law is raised in this case. The case has had an unfortunate history in the way in which the thrust of it has altered. The appellant has been advised by the same advisers throughout and, although I would not decide the case on this basis, the suggestion that there is some striking point of law now apparent that has not in the past been stressed by those advisers, does not assist in convincing one that that point of law is there at all.
12. I see no reason for this court to consider this matter further. I would not grant permission.
13. LORD JUSTICE CARNWATH: I agree.
ORDER: Application refused