Scottish Court of Session Decisions

Lin, Re Judicial Review [2003] ScotCS 127 (30 April 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MACKAY OF DRUMADOON in the Petition of QUIN SHUE LIN (AP) (correctly known as CHEN RI LIN) Petitioner; for Judicial Review of (i) a determination of an Adjudicator; and (ii) a determination of the Immigration Appeal Tribunal to refuse him leave to appeal Respondent ________________

Petitioner: Holmes; Drummond Miller, W.S.

Respondent: Lindsay; H. Macdiarmid, Solicitor to the Advocate General

 

30 April 2003

Introduction

1. The petitioner is a national of China. He used to live in Jiujiang city in Jiangxi province. He left China on 18 June 2000 and entered Hong Kong. From there he travelled to Holland. On 24 June to petitioner left Holland and entered the United Kingdom. On the day, he applied for asylum in the United Kingdom.
2. By letter dated 6 February 2001, the Immigration and Nationality Directorate intimated to the petitioner that the Secretary of State for the Home Department, who was the respondent in the present proceedings, had decided to refuse the petitioner's application for asylum in the United Kingdom. On 15 February 2001 the respondent issued directions for the removal of the petitioner to China. The petitioner appealed. His appeal was heard before an Adjudicator in Glasgow, on 8 August 2001. By determination promulgated on 20 September, the Adjudicator refused the petitioner's appeal against the directions issued by the respondent. The petitioner sought leave to appeal against the determination of the Adjudicator. By determination notified on 1 November 2002, the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal.
3. The present proceedings for Judicial Review were raised on 13 August 1992. In these proceedings the pursuer seeks reduction of the determination of the Adjudicator, dated 20 September 2001, and of the determination of the Immigration Appeal Tribunal, dated 1 November 2001. The petition came before me for a first hearing at which both the petitioner and the respondent were represented by counsel.
4. Article 3 of the petitioner summarises the factual background to the petitioner's claim for asylum. As I have indicated, the petitioner is a national of China. In 1993 the petitioner was baptised a member of the True Church of Jesus. The True Church of Jesus is a Protestant church with places of worship in several parts of China. The petitioner's wife and her parents have also been baptised members of the True Church of Jesus. The petitioner avers that he was an active member of the Church. It is clear from the terms of the Adjudicator's Determination that this was at a time when the petitioner lived in Jiujiang city in Jiangxi province. The petitioner avers that as an active member of the True Church of Jesus, he undertook responsibility for the maintenance and decoration of his local place of worship. Article 5 of the petition then goes on to deal with two specific occasions when the petitioner was arrested by police officers. The first was on 1 December 1998, whilst the petitioner was attending a prayer meeting. He avers that he and five other members of the church were arrested and that he was subject to two interrogation and detention for a period of approximately three months. He was released upon payment of a fine and avers that he was required to execute a letter in which he undertook that he would no longer engage in religious activities. The petitioner avers that he continued to do so. He avers that on 27 March 1999 he held a prayer meeting at his own house. During the course of that meeting the petitioner was again arrested by police officers. He avers that he was placed in detention and escaped from the detention around one month later. An arrest warrant and a circular depicting the petitioner and indicating that he was wanted by the Chinese police in connection with his escape from detention, was subsequently by the Chinese authorities. The petitioner avers that he went into hiding in Guangshou. His wife moved to Fu Quin city in Fujian province, where she continues to be a member of the True Church of Jesus.
5. In paragraph 28 of her Determination, the Adjudicator states:-

"The appellant has the burden of proving that he is a well founded fear of persecution for reason of his religion (and) that he is unable to avail himself of the protection of his country. He has to show that there is a reasonable degree of likelihood if persecution by reason of his religion."

6. In the following paragraphs of her Determination, she then proceeds to access the documentary evidence before her, the evidence in the petitioner's statement when he was interviewed in connection with his application for asylum on 4 September 2000 and the evidence he gave at the appeal hearing before the Adjudicator herself. The Adjudicator indicates that she accepts that the petitioner is a Christian of a True Jesus Church in China (paragraph 29). She also accepts that a document produced by the appellant, purporting to bear the seal of a Public Security Bureau of Jiujiang city, relating to an escape by Quin Sheu Lin on 1 May 1999 is, on the balance of probabilities, a genuine wanted circular for the petitioner (paragraph 31). It is also clear from paragraphs 32 and 33 of the Determination that the Adjudicator accepted the evidence which the appellant gave at the hearing about the events of 1 December 1998 and 27 March 1999. That is also implicit from the terms of paragraphs 54 and 55 in which the Adjudicator considered the question of the internal flight option. Paragraph 54 and 55 of the Determination are in the following terms:-

"54. I therefore consider the question of internal flight and find that given that the appellant's wife has already gone to Fu Quin city in Fujian province where the true Jesus Church operates openly, there would be no difficulty in the appellant being repatriated to that area to be with his family. This would allow him to practice his religion without persecution.

55. Accordingly I consider that the internal flight option is the one which should be utilised in this case. The appellant has not shown a reasonable degree of likelihood of persecution if he were to be returned to another part of the country such as Fujian province. It would be safe for him to be returned there. In relation to the arrest warrant at production No. 7, that relates to his escape from Jiujiang city in Jiangxi province. I do not consider that the appellant will be in danger from the authorities if he were to be returned to Fujian province, where his religion is tolerated and practised openly."

7. Counsel for the petitioner submitted that both the Determination and the refusal of the application for leave to appeal should be reduced. It was argued that the Adjudicator has acted unreasonably, when dealing with the internal flight option. As that argument was developed, it also included submissions to the effect that the Adjudicator had acted unlawfully when addressing the internal flight option. On the other hand, counsel for the petitioner made clear that none of the other grounds for challenging the Determination of the Adjudicator, which are focused in the petition, were being proceeded with.
8. In developing his submissions, the counsel for the petitioner argued that it was clear from paragraphs 29, 30 and 31 of the Determination that the Adjudicator had been satisfied that the petitioner had (a) been an active member of the True Church of Jesus Christ; (b) been detained on two occasions as a consequence of his religious activities; (c) escaped from detention on the second occasion; and (d) been activity sought by the Chinese police as a consequence as evidenced by the issue of the arrest warrant and circular. In answer 10, the respondent refers to the terms of paragraphs 29, 30 and 31 without making any admission of the specific averments to which I have referred.
9. In Article 10, the petitioner avers that on the basis of paragraphs 54 and 55 of the determination, the conclusion can be drawn that the Adjudicator was satisfied that the petitioner had a well founded fear of persecution in his home area of Jiangxi province. Once again, the averments on behalf of the petitioner are not remitted by the respondent, whom he refers to the full terms of paragraphs 54 and 55 of the Adjudicator's Determination. On the other hand, the hearing before me proceeded upon the basis that the petitioner had established that he held a well founded fear of persecution, where he to return to Jiangxi province.
10. Counsel for the petitioner argued that the petitioner had demonstrated that he had suffered persecution at the hands of the State. That raised the question as to whether the internal flight option is not available in cases where the State is the agent at persecution. Counsel referred to paragraph 12.46 of MacDonald's Immigration Law and Practice (Fifth Addition). In that paragraph, the learned authors state:-

"Because the principle concern of refugee law is the position of internal protection to persons unable to receive protection in their own country, a purely localised risk may be insufficient to make someone a refugee. International protection is not needed if the person can obtain protection by moving elsewhere in his or her own country. ... These considerations are reflected in the Immigration Rules, which provide that an asylum claim may be refused if there is a part of the country to which it would be reasonable to expect the applicant to go, where he or she does not have a well founded fear of persecution. The option of internal flight only arises if the asylum seeker has a well founded fear of persecution in his or her home area, or if he or she cannot return there without a real risk of persecution on the way. The Tribunal has held that internal flight is not possible where the State is the agent of fear of persecution."

11. The last sentence of that quotation refers to a footnote which in turn refers to a decision of the Immigration Appeal Tribunal and the Michigan Guidelines on the Internal Protection Alternative 1999, which were issued following the Michigan Colloquium of April 1999. The counsel for the petitioner did not refer me to the Immigration Appeal Tribunal case. He did, however, produce a copy of the Michigan Guidelines, which he accepted did not vouch the proposition set out in MacDonald. Counsel indicated that he was unaware of any judicial authority that recognised the existence of such a principle, nor was he aware of any text book authority to such an effect but, however, he went on to submit that even if the absolute principle did not apply, then there was a presumption that the internal flight option was not available in cases in which the state is the agent of persecution. That submission found some support from the terms of the Michigan Guidelines in that guideline 16 states:-

"There should therefore be a strong presumption against finding an 'internal protection alternative' where the agent or author of the orginal risk of persecution is, or is sponsored by, the National Government."

On the other hand, the counsel for the petitioner had to conceed that he was unaware of any other judicial or text book authority to support the existence of such a presumption. He only went so far as to indicate that in his experience, some Adjudicators accepted that such a presumption existed, whilst other Adjudicators did not. He acknowledged that it may be of some significance that there was no judicial authority acknowledging the existence of such a presumption. He argued that the Adjudicator had not addressed the question of the existence of such a presumption but conceeded that she had not been invited to do so. In the alternative he argued that even if such a presumption did not exist, the Adjudicator should not have accepted that the internal flight option was available in the circumstances of the present case. He argued that no Adjudicator acting reasonably, would have done so.

12. As far as the specifics of paragraph 54 were concerned, counsel argued that they were vitiated by the terms of paragraph 48 of the Determination. That paragraph made reference to certain paragraphs in the Home Office Country Accessment for China dated April 2001, which had been before the Adjudicator. It was argued that having accepted the evidence narrated in paragraph 12, the only rational conclusion for the Adjudicator to have reached was that the petitioner is in a higher category of risk than other categories of worshipper. It was argued that the terms of paragraph 54 do not go so far as to find that it would be safe for the petitioner to practice as a pastor. No reasonable Adjucator would have reached that view in respect of the petitioner's practice of his religion.
13. Counsel for the petitioner also argued that the Adjudicator had erred when considering the question of the warrant in paragraph 55 of her Determination. It had been irrational for her to assume that an arrest warrant granted in one city would not be inforced in another city. In paragraph 31 of her Determination, she had not dealt with the issue of inforcibility. It was submitted that the Adjudicator had failed to state explicitly that the warrant would not be inforced. It was submitted that on the contrary, it was likely to be inforced. That was sufficient. No reasonable Adjudicator would have come to the conclusion expressed in the last sentence of paragraph 55. He had no basis for holding that the warrant would not be inforced elsewhere that in Jiujiang city.
14. In responding the submissions on behalf of the petitioner, he stressed that in relation to the internal flight option, there was no onus upon the respondent. Reference was made to R v Secretary of State for the Home Department, ex parte Salim [2000] Imm AR 6 and to the judgment of Latham J at pages 7-8. He argued that there was no presumption that internal flight option was not available in cases where the State is the agent of persecution. That was illustrated by Salim and also by the case of Singh v Secretary of State for the Home Department, Inner House, unreported 1 August 2001. Reference was made to paragraphs 10 and 11 of the Opinion of the Court, delivered by Lord Nimmo Smith. It was argued that the petitioner's criticisms of paragraphs 54 and 55 of the Determination were ill founded.
15. In my opinion, the submissions on behalf of the respondent are to be preferred. It is clear from the determination of the Adjudicator that the Adjudicator accepted that the petitioner held a well founded fear of persecution in the event that he were to return to Jiangxi province. In these circumstances the issue of the internal flight option having been raised, it was the duty of the Adjudicator to consider it. In my opinion it is perfectly clear that the onus lay on the petitioner to show that the internal flight option was not open to him, that follows from the case of Salim. I am not satisfied that any presumption exists that the internal flight option is not available in a case where the State is the agent of persecution. In the absence of any judicial authority to that effect it seems to me that an Adjudicator must proceed on the basis illustrated by the case of Singh. In the present case, the Adjudicator took the view that the petitioner had not discharged the onus on him as far as the question of the internal flight option is concerned. In my opinion it was open to her to do so. I do not consider that the factual conclusions she reached were unreasonable. Nor do they disclose any error of law. In these circumstances I sustain the second plea-in-law for the respondent and dismiss the petition.