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Lin v. Secretary Of State For The Home Department [2004] ScotCS 259 (17 November 004)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Reed

Lord Clarke

P978/02

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

RECLAIMING MOTION ON PETITION AND ANSWERS

QIN SHUE LIN (correctly known as CHEN RI LIN)

Petitioner and Reclaimer;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

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

_______

Act: Devlin; Drummond Miller (Petitioner and Reclaimer)

Alt: Drummond; H. Macdiarmid (Respondent)

17 November 2004

[1] The petitioner has reclaimed against the interlocutor of the Lord Ordinary dated 30 April 2003 in which he dismissed the petition.

[2] The petitioner is a national of the People's Republic of China. He entered the United Kingdom illegally on 24 June 1999 and claimed asylum five days later. On 6 February 2001 his application for asylum was refused by the respondent.

[3] His claim for asylum was based on his membership of the True Jesus Church in China. He had been a member of the Church since 1993 when he was baptised. He did not hold any position in the Church, but was responsible for the maintenance and decoration of a church building. His wife and her parents were also members of the same church. The church had been refused registration in China.

[4] According to the evidence given by him at the hearing before the adjudicator, the petitioner lived in Jiujiang City in Jiangxi province. He had been arrested on two occasions. On the first occasion, 1 December 1998, he was arrested at a spiritual meeting along with four other persons, because the government wanted to limit the expansion of his church. He was beaten up, and was detained by militia at a police station for about three months. He was released on payment of a fine and making a promise not to continue with his religious activities. On the second occasion, 27 March 1999, he was arrested because, contrary to his promise, he was engaged in religious activities. He was arrested at his house where 30 Christians were present. He was detained at the local police station for about a month, but escaped by climbing over a wall. The family arranged for him to travel to Guang Zhou, where he stayed at a construction site until he left China on 18 June 1999.

[5] The petitioner stated that he had never been charged or taken to court prior to his escape. There were no outstanding charges against him in China. However, a week before his escape from detention he was told by the Chief of Police that he would be sent to a detention centre which was usually for persons who had committed serious crimes. More than a month after his escape he found out about a circular of the type which was put up on walls everywhere when a person was wanted by the police. After his second arrest, and while his house was being searched, his wife was summoned for questioning, after which she was sent home and told that she should not engage in Christian activities at home. She was now in Fu Quing City. She sometimes went to church or lectures, but did not practise her religion very often. The petitioner said that he did not go to Fu Quing City as events had already taken place and it would be too late for him to do anything. He had already escaped from detention, and if he moved to another place, such as Fu Quing City to be with his wife, he would still be a wanted person.

[6] The adjudicator accepted that the appellant was a Christian of the True Jesus Church in China. She also accepted that the circular produced by the petitioner, which purported to bear the seal of a public security bureau of Jiujiang City, and to relate to the escape of Qin Shue Lin on 11 May 1999, was, on the balance of probabilities, a genuine wanted circular for the petitioner. It is also evident that the adjudicator accepted the evidence of the petitioner concerning his two arrests. It appears that the adjudicator was satisfied that the petitioner had established that he had a well-founded fear of persecution for a Convention reason if he were to be returned to Jiangski province. The discussion before the Lord Ordinary and in this court proceeded on that basis. The issue in these proceedings related to the adjudicator's conclusion that the petitioner had the alternative of internal flight within China.

[7] Before the adjudicator the presenting officer referred to that alternative. He pointed out that the petitioner's wife was in Fujian province. The situation in that province was more relaxed: both registered and non-registered churches were operating there. Given that the petitioner's wife was there, it would not be unduly harsh for the matter of internal flight to be considered. The representative of the petitioner submitted that as a Christian he was liable to the same restrictions wherever he was in China. Accordingly internal flight would not be an option. He submitted that in the circumstances the petitioner could not turn to the government for protection. His wife was in danger and in hiding.

[8] In her determination the adjudicator noted that it was stated in paragraph 5.54 of the Human Rights Watch Report 2001 for China and Tibet that in Fujian province the situation differed from the main areas of anti-Christian activity. Registered and non- registered churches operated side by side. Unregistered churches were not very "underground".

[9] In regard to internal flight the adjudicator said:

"54. I thereafter consider the question of internal flight and find that given that the appellant's wife has already gone to Fu Quing City 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 will allow him to practise 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 number 7, that relates to his escape from Jiujiang City of 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".

[10] For the petitioner Mr Devlin accepted that it was for the asylum seeker to establish that he had the status of a refugee. He submitted that when an asylum seeker had proved a well-founded fear of persecution for a Convention reason at the hands of the state, and there was evidence before the decision-maker that the state was unitary and had control throughout its territory, he had done enough to show that there was no internal flight alternative. This was consistent with the relatively low standard of proof which was required. It followed as a corollary that in regard to internal flight an adjudicator should not speculate against the asylum seeker. In the present case there was nothing to show that an arrest warrant issued in one province would not be enforced in another. No inference could be drawn from the evidence in regard to the petitioner's wife. For the respondent Miss Drummond submitted that the adjudicator was entitled to reach the conclusions which she did, even if another adjudicator might have taken a different view. The adjudicator was dealing with what was essentially a question of fact, and had relied on the passage in the report, the fact that the wife was living in Fujian province, and the fact that the warrant related to Jiangxi province.

[11] We observe that the international protection which is provided by the 1951 Convention relating to the status of refugees is not necessary if an applicant for asylum can obtain protection by moving elsewhere in his or her own country. As is stated in paragraph 343 of the Immigration Rules (HC 395)

"If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused".

The position would be different if the applicant would not be safe elsewhere in his or her own country, or if it was not reasonable to expect him or her to go to another part of it. If the state itself is the source of persecution of the applicant, this plainly is likely to affect the extent to which there may be any area of the country in which the applicant is likely to be safe from persecution. In Minister for Immigration & Multicultural Affairs v Jang [2000] FCA 1075 in the Federal Court of Australia Wilcox J observed at paragraph 27:

"However, where the feared persecution arises out of action taken by government officials to enforce the law of the country of nationality, or to implement a policy adopted by the government of that country, it will be much more difficult for an Australian decision maker to reach satisfaction that there is no real risk of the refugee applicant being persecuted if returned to that country. In such a case, if there is a safe haven, this must be because the responsible officials have failed to discharge their duty to enforce the relevant law or policy".

In R v Immigration Appeal Tribunal ex parte Chen Liu Guang [2000] Imm AR 59 Keene J. stated that it was less likely that there would be an option for internal flight where it was a case of persecution by state authorities, as opposed to persecution by non-state authorities. It is also pertinent to refer to the statement in Symes and Jorro on Asylum Law and Practice at paragraph 5.13:

"'Internal relocation', being a matter which arises via the notion that domestic protection should be sought prior to the engagement of the international community's responsibilities, will often be an inappropriate consideration where the persecution feared flows from the state. Why should the author of persecution be expected to offer succour against it? ... Thus, at the very least, there is a strong presumption against its availability where the harm feared is state-sponsored. Given this caveat to the principle's invocation, careful enquiry should be made as to the reach of the forces of persecution. If the laws of a country are the instrument of persecution, it will be rare indeed for a determination to be made that they have only localised effect. However, state responsibility for harm does not absolutely rule out the possibility that a safe haven may be found. The question remains one of fact, although if it is to be suggested that an area controlled by a non- state entity offers a solution to the problems of persecution, care should be taken to establish that the situation will be durable"

[12] In the present case the petitioner feared persecution at the instance of officials of the state, apparently in pursuit of official policy. Whether this should be regarded as creating a presumption against the availability of a safe haven elsewhere within its territory may be open to debate. However, there is no doubt that prima facie this made it unlikely that internal flight was a safe alternative for him. In paragraph 54 the adjudicator concentrated on the relative freedom of Christians to pursue their religion in Fujian province, and on that basis expressed the view in paragraph 55 that the petitioner had not shown a reasonable degree of likelihood of persecution if he were to be returned to another part of the country such as that province. However, the petitioner was the target of persecution by the state. The adjudicator does not appear to have addressed the significance of that factor. She appears to have assumed the arrest warrant had only local significance, presumably because of the attitude of the authorities to the practice of the Christian religion elsewhere. However, it does not follow that a warrant issued in one province would not be pursued in another. The de facto tolerance of religious practice in certain provinces does not per se justify any such assumption regarding the attitude of the central authorities to enforcing the warrant. It may be that the adjudicator's approach was influenced by the fact that the submissions before her concentrated on the general treatment of Christians in different provinces, and more generally in China as a whole. However, the question of the attitude of the authorities to the pursuing of a warrant was, in our opinion, "a readily discernible and obvious point" of the type which the adjudicator had the responsibility to ascertain (cf R v Secretary of State for the Home Department ex parte Robinson [1998] Q.B. 929). We consider that the conclusion reached by the adjudicator was vitiated by her failure to address the significance of persecution by officials of the state and the implications of the warrant.

[13] For these reasons we will allow the reclaiming motion for the petitioner, recall the interlocutor of the Lord Ordinary, and reduce the determination of the Immigration Appeal Tribunal and remit to the Tribunal to consider de novo the appeal from the adjudicator.