QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy Judge of the High Court
| THE QUEEN
On the Application of
JIA FU ZHANG
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Gerald Facenna (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 11 November 2008
Crown Copyright ©
Miss Belinda Bucknall Q.C. :
Immigration Rule 353
"When a human rights or fresh claim as been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
The submissions will only be significantly different if the content had not already been considered and taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection".
a) Whether the new material is significantly different from that already submitted. If it is not the Defendant has to go no further.
b) If the material is significantly different the Defendant has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim.
That second judgment will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material and in assessing the reliability of the new material the court can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable and also have in mind where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator.
"states that a case cannot be relied upon as authoritative in any subsequent appeal unless the determination is directly linked to the Claimant through, for example, his family and permission is granted to rely upon it, or the Defendant is in a position to certify that the matter or proposition for which the determination is cited has not been the subject of a more recent reported Tribunal determination, neither of which was done in this case."
a) the PD only applied to determinations as from 19th May 2003 when the practice of dividing IAT determinations into "reported" and "unreported" categories was introduced for the purpose of preserving anonymity in those cases where there was no requirement for publication and the Jin Huan Lin case (in which the decision was notified on 11th April 2001) predated the PD by more than two years and thus was outside its scope, and
b) the PD in any event only applies to restrict citations in proceedings before any adjudicator or the Tribunal and does not bind the Defendant.
a) the Defendant was wrong to take into account the case of Jin Huan Lin because that case does not lay down any general principle that the actions of a person responding to China's one-child policy would not constitute political opinion for the purposes of the Refugee Convention; whether it does or not is a question of fact.
b) the Claimant's actions readily fit within the definition of political opinion under the Refugee Convention; see Farshad Kiani De Kiani v. SSHD  UKIAT 01328.
c) Jin Huan Lin's case was decided before the introduction of the ECHR into UK law by the Human Rights Act 1998 and the Defendant was wrong to take it into account in denying the Claimant an appealable decision under the ECHR. Since the Convention claims were not pursued, this ground has no content and is not considered further.
"In addition, case law has shown that fear of officials in relation to the one child policy was based neither on actual, nor perceived, political opinions … Jin Huan Lin (01/TH/00099)"
That, however, has to be read in the context of the summary in paragraph 6 of the Claimant's account of what he claimed happened in China and the view expressed earlier on in paragraph 9 that even if the Claimant's account were accepted at face value there was no evidence that he would be persecuted for a Convention reason. The case itself bears similarity to the facts asserted by the Claimant in this case in that neither asylum seeker had ever sought to resist or oppose the family planning policy and had only come into conflict with the family planning authorities because of a refusal to pay a fine which was considered to be unfair.
"Any member of the public may have views about the government of a particular country and if those views are expressed and if those views are contrary to the state and if the state is a form of dictatorship which ill treats and persecutes those whom it regards as being opposed to it, then there is a classic case of persecution for political opinion" (emphasis added).
That passage, however, has no application to the facts claimed by the Claimant and does not demonstrate that the Defendant was in error.
"In addition, case law has shown that fear of officials in relation to the one child policy was [not] … nor was it part of a particular social group."
The failure to refer to this case, or to the qualification of the general principle in Shah and Islam, and the sole reliance upon the earlier case of Jin Huan Lin Lin which referred only to the general principle satisfies me that the Defendant erred in his approach to consideration of the Claimant's claim for asylum based upon his membership of a particular social group.