Scottish Court of Session Decisions

[1] The petitioner is a national of China. He arrived in the United Kingdom on 20 December 1997 and claimed asylum on arrival. By letter dated 20 October 1998 his application for asylum was refused by the respondent. On 6 December 1998 the respondent served on the petitioner a notice of refusal of leave to enter. The petitioner appealed to a Special Adjudicator against the respondent's refusal to grant him leave to enter on the ground that his removal in consequence thereof would be contrary to the United Kingdom's obligations under the 1951 Convention relating to the Status of Refugees, and the 1967 Protocol thereto.

[2] The petitioner's appeal was heard before the Special Adjudicator at Glasgow on 25 August 1999. By Determination promulgated on 30 September 1999 the Special Adjudicator rejected the petitioner's appeal.

[3] The petitioner thereafter applied to the Immigration Appeal Tribunal for leave to appeal against the Special Adjudicator's determination. By Determination made on 12 October 1999 and issued on 13 October 1999 the Chairman of the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal.

[4] In this petition the petitioner seeks inter alia reduction of the decision of the Special Adjudicator and of the decision of the Immigration Appeal Tribunal.

[5] Before me it was agreed that the question before the Special Adjudicator was whether the petitioner was a refugee in the meaning of Article 1(1A) of the United Nations Convention relating to the Status of Refugees as amended; in particular whether the petitioner owing to a "well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..."; and that that question fell to be decided by consideration of whether there was demonstrated by the petitioner - the onus being upon him - "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" (Sivakumaran 1988 Imm.A.R.147). In the hearing before me the grounds of challenge of the Special Adjudicator's decision were restricted to the fact that the Special Adjudicator did not find that the petitioner had a well founded fear of being persecuted for reasons of political opinion.

[6] The Special Adjudicator recorded that before him no oral evidence was given. He had however before him the record of an asylum interview with the petitioner together with a type written statement on behalf of the petitioner extending to some 13 paragraphs. The respondent also lodged before him a Home Office assessment on China dated March 1998. The appellant lodged an extract from a US State Department Report on China for 1998, and also produced a faxed copy of a document said to be an arrest warrant with a translation into English which was not certified.

[7] Despite certain submissions made on behalf of the respondent, the Special Adjudicator recorded that he had no significant reason for not accepting the petitioner's account as credible for the purposes of the appeal. He further indicated - apparently based essentially on what was said in the type written statement by the petitioner:- "The account on which the appellant's claim for asylum is founded may be summarised as follows. The appellant was a rice farmer in Fujian Province. He farmed a 51/2 acre plot, which was separate from his family home. The appellant was informed by the Chinese authorities that his land, along with the land of other farmers in the area was going to be utilised for industrial development by overseas investors. The appellant was informed by the local authority in October 1997 that he would be paid 1000 RMB per acre as compensation. When the appellant and other farmers went to the local government office to collect their compensation, they were informed that only 300 RMB per acre would be paid. The farmers were also informed that there was no proof that they had ever been offered 1000 RMB. The appellant was so incensed by this treatment that he led an assault by the farmers on the head of the local government office, who was left bleeding and losing consciousness. As a result of this assault, in which the appellant was identified by his victim as the primary assailant, the police came to look for the appellant, who went into hiding before fleeing abroad". It is perhaps worth noting at this stage that in his type written statement the petitioner described how, together with others, he complained about the sums offered, to be told by an official that there was no proof in writing of the earlier offer. "We became very anger (sic) and I struck out at the nearest person who happened to be the head of the office. The other angry farmers followed my lead......". Accepting the petitioner as credible the Special Adjudicator accepted also that the appellant had a genuine fear of returning to China on the basis of the factual circumstances summarised above. Thereafter addressing the question whether these facts established a well founded fear of persecution - in particular for reasons of political opinion - he came to the view that the petitioner had failed to establish this.

[8] In reaching that view the Special Adjudicator accepted that, whereas legal provision in China appeared to make compensation for the requisitioning of cultivated land of three to six times the average annual output of the requisitioned land for the three years preceding such requistioning, there was no evidence of the value of the average annual output of the appellant's land and that no calculation could be made as to the appropriate level of compensation under Chinese law. He also said inter alia "As far as the present appellant is concerned when he assaulted the official he was seeking to express his dissatisfaction with the amount of compensation he was to be paid for the requisitioning of his land. I have no evidence before me to indicate that he was seeking to express a political opinion. Indeed, there is no evidence before me of any political opinion which the appellant might hold. Mr Caskie appeared to be inviting me to find that any assault on an official in China would be regarded as an expression of political opinion but the evidence before me would not support such a finding".

[9] The Special Adjudicator further indicated:

[10] It was accepted before me that the petitioner would only seek to challenge the decision of the Immigration Appeal Tribunal if the challenge to the decision of the Special Adjudicator succeeded. For the respondent it was in turn accepted that if the challenge to the decision of the Special Adjudicator succeeded, the respondent would not seek to support the decision of the Immigration Appeal Tribunal (although it was argued that, in these circumstances, all that would be needed would be reduction of that Tribunal's refusal to grant leave to appeal). It is unnecessary in these circumstances to describe in detail the grounds of appeal which were advanced to the Immigration Appeal Tribunal or the decision of the Chairman.

[11] The first submission on behalf of the petitioner was that on the basis of the evidence before, or in any event on the basis of the facts found by, the Special Adjudicator his decision was unreasonable (in the Wednesbury sense) in so far as he did not find that the petitioner had a well founded fear of persecution for reasons of political opinion. The Special Adjudicator had accepted that the petitioner's assault on a State official arose from, or in consequence of, his protests against a policy applied by the officials (albeit local) of the State. In particular the evidence disclosed, and the facts found demonstrated, that the protest was against his being deprived of his property arbitrarily and without fair compensation. A policy could be pursued even on one occasion. For the purposes of the Convention expression of political opinion was not restricted to expression of a clearly enunciated philosophy. It was not necessary that an asylum seeker be shown to be a member or supporter of any party or group. "Political opinion" fell to be interpreted in a broad way, and could more readily be inferred where an asylum seeker was seeking to protect a fundamental human right, such as the right not to be arbitrarily deprived of property. Reference was made to a decision of United States District Court for the Eastern District of Virginia pronounced on 14 January 1994 in the case of Guo Chun Di - where flight in the face of forced sterilisation in accordance with government policy was (albeit not under the Convention) held to constitute expression of political opinion. Reference was also made to Article 17(2) of the Universal Declaration of Human Rights 1948 ("No one shall be arbitrarily deprived of his property"), the Declaration being referred to in the preamble to the 1951 Convention. Reference was further made to certain passages in The Law of Refugee Status by James C Hathaway as supporting the desirability of a broad interpretation of political opinion. In particular reference was made to approval by the author on page 153 of a dictum from an Immigration Appeal Board decision Raul Redolfo Lira Pastene to the effect "Nowhere in the Convention does it say that to be considered a refugee an applicant must have been prominent in the political life of his country of origin. The crucial test is that certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition". In this case even if the petitioner's protest could not objectively be seen as an expression of political opinion, the Special Adjudicator should have concluded that political opinion would have been imputed to him by the Chinese authorities. Imputed political opinion - which could be on a broad basis - was just as much a relevant consideration. Reference was made to Asante v Secretary of State for the Home Department 1991 Imm.A.R.78 and Garces v Secretary of State for the Home Department (a decision of the Immigration Appeal Tribunal notified on 5 July 1999). Particular weight should have been given by the Special Adjudicator to two pieces of evidence. In the written statement in particular the petitioner, after referring to the fact that he was informed that the police were trying to find him to arrest him, he having been identified as one of the assailants, said "I realised that I must flee my country. Nobody is able to oppose the Local Government and survive without terrible repercussions. It is well documented that the law in China is in favour of the Local Government and not in favour of farmers. There are no lawyers for us to hire to oppose the wrong done to us by the Local Government". Further the translation of part of the arrest warrant was to the effect: "The cause of the arrest: Be against the Government, takes the lands and Resist the arrest". It could be

[12] Secondly, the submission on behalf of the petitioner was that the Special Adjudicator was wrong to conclude that there was no evidence before him to support a finding that an assault on an official would be regarded as an expression of political opinion. In particular the passage already quoted from the petitioner's printed statement was evidence on which he could have so concluded. At least on this basis there was room for reconsideration before the Immigration Appeal Tribunal.

[13] On behalf of the respondent it was argued that it could not be said that the Special Adjudicator's decision was unreasonable in so far as he did not find that the petitioner was expressing, nor that he would be thought to be by the Chinese authorities to have been expressing, a political opinion. There was no evidence (and the facts found did not suggest) that the authorities were pursuing any general policy nor that what the petitioner was offered could not be said to have represented fair value for his land. It appeared from the evidence that the petitioner himself was not in general against the appropriation of land in return for compensation. All that could be taken was that he did not agree with the price which was offered to him in circumstances where a higher price had been offered beforehand, which previous officer a particular official was not prepared to accept had been made. None of the authorities referred to would suggest that the petitioner's complaint could reasonably be regarded as an expression of political opinion.

[14] So far as any imputed political opinion was concerned, all that could be taken from the passage referred to in the petitioner's printed statement (which was ambiguous) was that he feared that the attack on the official would be taken seriously. It was unsurprising that no particular weight appeared to have been given to the document said to be an arrest warrant. As the Special Adjudicator himself recorded, there was no evidence as to its origins and the translation was not certified. On the face of it in so far as it referred to resisting arrest and made no mention at all of assault, it appeared to be contradictory of the petitioner's own statement - a factor which might account for the apparent fact that it was not founded upon to any degree by the representative of the petitioner nor was it referred to specifically in the grounds of appeal to the Immigration Appeal Tribunal. There was no need for a Special Adjudicator to refer to every piece of evidence. The proper test as confirmed in Singh v Secretary of State for the Home Department 2000 S.C.219 was that "The decision must in short leave the informed reader in the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it" (Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T.345 per Lord President Emslie at page 348). It was there stressed that the determination was to consist of a "concise" statement of the decision on the substantial issues raised together with any findings of fact material to the decision and the reasons for the decision. The Court agreed with the view of Lord Penrose in Mohammed Asif, Petitioner that "Nothing could be more destructive of the efficient disposal of immigration appeals than that the notion that the Adjudicator and Tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes and an explanation factor by factor of the relevance, credibility and reliability or otherwise of it". More generally if a petitioner in judicial review was seeking to challenge findings of fact made by a tribunal the Court could only interfere - as appeared to be accepted in this case - on Wednesbury grounds (Singh v Secretary of State for the Home Department 2000 S.C.288 at page 293).

[15] In any event even if it could be said, contrary to the above, that the petitioner making these complaints was or would be thought to have been expressing political opinion, that did not mean that the persecution which he feared would be persecution for reasons of that political opinion. The fact that the assault might have been in some way politically motivated, would not be enough. Reference was made to paragraph 84 of the United Nations Handbook. Where as here the petitioner's concerns were in relation to potential mistreatment applicable in respect of any criminal proceedings, this could not amount to persecution for a Convention reason. Reference was made to Shokar 1998 Imm.A.R.447 to which the Special Adjudicator himself had referred. It would be different, as paragraph 85 of the United Nations Handbook recognised, if there was evidence that a politically motivated offender would be exposed to excessive or arbitrary punishment or special procedures but there was no evidence or finding to that effect in this case.

[16] I record for completeness that although both counsel referred to three cases in which an Immigration Appeal Tribunal had made decisions in relation to what might broadly be described as similar subject matter, and in particular to the decisions of Xia Hui Wang, Guo Mei Hua and Hao Cai Cheng (all referred to by the Special Adjudicator), they were, as I understood it, ultimately agreed that each of these cases fell to be regarded as a decision based on its own particular facts and circumstances.

[17] I have come to the view that the respondent's submissions in this matter are to be preferred.

[18] In the first place, it cannot in my view be said that no reasonable Special Adjudicator could have done other than find that in making his protest the petitioner was expressing, or would be imputed by the Chinese authorities to be expressing, political opinion (still less - though I did not understand the petitioner's argument to go quite so far - that the assault itself was, or would be regarded as, an expression of political opinion). On the basis of the evidence as to what gave rise to the petitioner's concerns (essentially the typewritten statement of the petitioner himself) it cannot (at any rate with any confidence) be said that what was done by the officials of the local authority represented any general policy or indeed any policy followed even on the particular occasion. Counsel for the petitioner appeared to me to accept that it was difficult to suggest that the evidence showed clearly that the sum ultimately offered to the petitioner was not a fair price, it being equally possible that the first official had offered an unreasonably generous price to encourage the farmers to leave the land. On the face of it all that can reasonably be taken from the evidence is that the petitioner was expressing dissatisfaction with the offer of a particular price in circumstances where a higher price had earlier been suggested. If that is right I did not understand counsel for the petitioner to argue strongly that it was clear that his complaint was an expression of political opinion. While no doubt it would be right not to interpret "political opinion" in this context in too restrictive a way, it cannot it seems to me be said that no reasonable Adjudicator could have done other than find that the petitioner was expressing a political opinion or that he erred in law. I did not find Sandralingram v Secretary of State for the Home Department, which dealt with other matters, to be of assistance. As to the question of imputed opinion, counsel essentially founded upon the statement taken from the petitioner's written statement and the document said to be an arrest warrant. As to the first, counsel, it seemed to me, was prepared to accept that it was at best equivocal. It is difficult, as the respondent argued, to take more from it than that the petitioner was expressing a concern that the assault on a local official would be taken seriously. In these circumstances little assistance can I consider be taken from paras.203 and 204 of the United Nations Handbook which are essentially concerned with lack of supporting evidence for an apparently clear, credible account by an applicant. Further in my view it cannot be said that the terms of the document said to be an arrest warrant are such that any reasonable Adjudicator would have found in favour of the petitioner. As counsel for the respondent emphasised there was no evidence as to its origin and there was no authenticated transcript. The document - on the face of it making no mention of the assault and referring to a resistance of arrest - did not obviously square with the account of the petitioner, at least in his type written statement which was accepted by the Adjudicator, and there is nothing to suggest from the determination (and counsel did not suggest either) that it was to any extent strongly founded upon by the petitioner's representative before the Special Adjudicator. Equally it was not referred to specifically in the grounds of appeal before the Immigration Appeal Tribunal. Having regard to these considerations, this is not a case in my view in which the Special Adjudicator could reasonably be criticised for making no specific findings in relation to the document. The general approach to the duties of an Adjudicator in this respect (as referred to in the case of Singh) was not seriously disputed.

[19] In any event, even if that is wrong, prosecution of the petitioner by the criminal authorities for the assault (even if, or thought to be, politically motivated) could not of itself amount to persecution for reasons of political opinion As is said at paragraph 84 of the United Nations handbook "Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically motivated acts. If the prosecution pertains to a punishable act committed out of political motives and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee". The mistreatment of which there was, on the evidence, a reasonable likelihood, according to the Adjudicator, was a general mistreatment such as would apply to anyone charged with a criminal offence in the People's Republic of China. It might have been different if there was evidence that the petitioner would be specially disadvantaged or more harshly treated if his assault was seen to arise from an expression of political opinion, but there was not, on the face of it, evidence (or at any rate clear evidence) upon which the Adjudicator could so find, nor was any argument advanced before me that he should have. It certainly could not in my view be argued that no reasonable Adjudicator could have done anything other than make such a finding. In connection with this matter it seems to me the Special Adjudicator's reasoning, including his reference to the case of Shokar, cannot reasonably be questioned.

[20] As to the second of the arguments advanced on behalf of the petitioner, it seems to me that counsel for the respondent was well founded in submitting that on a proper reading the Special Adjudicator did not say that there was no evidence before him to support a finding that an assault on an official would be regarded as an expression of political opinion but rather that such evidence as there was would not support such a finding.

[21] In the whole matter I have come to the view that the petition in so far as it seeks declarator that the Special Adjudicator erred in law and for reduction of his determination is not well founded. The petition as a whole, for these reasons, falls to be dismissed.