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Wu, Re Application for Judicial Review [2004] ScotCS 277 (30 December 2004)

OUTER HOUSE, COURT OF SESSION

P778/03

OPINION OF LADY SMITH

in the petition of

WEN JING WU

For

Judicial Review of decisions of an Adjudicator and of the Immigration Appeal Tribunal in relation to appeals under Sections 65 and 69 of the Immigration and Asylum Act 1999

________________

Petitioner: Govier; Allan McDougall

Respondent: Thomson; H F MacDiarmid

30 December 2004

Introduction:
[1] The petitioner, whose date of birth was 10 January 1965, entered the United Kingdom from China on 13 March 2001. She is of Chinese nationality. She claimed asylum in Scotland on 1 May 2001. Her case, accordingly, fell to be determined according to the provisions of the relevant legislation then in force, namely the Immigration and Asylum Act 1999. Her application was refused in a letter from the Home Office dated 9 May 2001 and she appealed to an adjudicator.

[2] The appeal was heard by an adjudicator sitting in Glasgow on 10 April 2002 and her determination, refusing the appeal, was promulgated on 25 April 2002. The petitioner sought leave to appeal from the Immigration Appeal Tribunal sitting in England, which, by determination dated 30 May 2002 notified on 21 June 2002, refused leave. The present petition for judicial review was lodged on 29 May 2003 but was, by interlocutor of 16 September 2003, sisted expressly to await the outcome of the petition of Mfumu, a petition for judicial review which was disposed of at the same time as the petition of Struck 2004 SLT 468. They followed the decision in the case of Tehrani Petitioner 2004 SLT 461 which confirmed the jurisdiction of this court in cases where the Immigration Appeal Tribunal refusing leave to appeal against the determination of a Scottish adjudicator sat in England. The sist was, accordingly, recalled on 1 July 2004.

[3] Notwithstanding the title to and averments contained in the petition, the petitioner sought only an order reducing the determination of the Immigration Appeal Tribunal, no doubt in recognition of it being inappropriate, at this stage, to seek reduction of the adjudicator's determination. The ground upon which reduction was sought was that the Immigration Appeal Tribunal had acted unreasonably in refusing leave to appeal because the adjudicator had made certain errors when assessing the petitioner's credibility.

[4] Before turning to the arguments advanced on either side, it is appropriate to record certain facts regarding the regime in China, which were not challenged. The petitioner's claim for asylum stems from a consideration of the attitude of the authorities in China to the Falun Gong movement, which is a particular type of philosophy and lifestyle regime. The movement was banned in China in 1999, the view of the authorities being that it is "anti-human, anti-society and anti-science". Following the ban, a distinction was drawn by the authorities as between the ordinary followers of the movement and its leaders or high level activists. Their interest was and is in the latter and there have been reports of organisers being imprisoned and facing prosecution. The petitioner is not a member of Falun Gong nor a supporter of the movement.

[5] The Chinese government's attitude to Falun Gong lay at the heart of the petitioner's case. The account given by the petitioner, as emerges from her responses to being questioned following her application for asylum (No. 6/5 of process) and from her statement that was before the adjudicator (No.6/4 of process) was that a close friend had stayed in her house in Zheng Zhu city from 3 August 2000 until 23 August 2000. At question 25 of no.6/5 of process, she was asked: "Why let friend stay if knew police were after Falun Gong members?" to which she replied: "During, I was divorcing my husband, She helped me, so we had a very close relationship." That friend was, she said, a member of Falun Gong. She gave an account of the police having arrived at her house at midnight on 23 August 2000, to arrest her friend, who ran away, having jumped from a window. She said that she was then arrested and detained for 69 days during which she was beaten and questioned as to whether or not she was a member or promoter of Falun Gong, that when questioned a couple of days after the start of her detention, she remained silent but when questioned again a week later, she said that she was not a Falun Gong member. She was eventually released after, she said, a bribe had been paid by her brother.

[6] The petitioner said that when she was released, she went to her brother's house and, in her statement, said that when she felt strong enough, she went to the doctor to get some medicine, took it and felt better after around ten days. In No.6/5 of process it is recorded that in answer to being asked what medical attention she got in China, she said: "At that time, I went to see injury department." She and her family decided, she said, that it was not safe for her to remain in Zhen Zhou city and that she left for Luo Yang city but did not feel safe there either because the police were liable to exchange information with the Zhen Zhou city police. The family then decided that China was not safe for her and she obtained a passport through "connections" using "someone else's name" (No. 6/5 of process, answer 40). At her earlier screening interview (see: No. 7/1 of process), she is recorded as having given an affirmative answer to the question: "Did the applicant use own passport to travel to the UK?".

[7] The adjudicator found that she was not satisfied that the petitioner's account was credible, accordingly reached the view that she had not discharged the burden of showing that she had a well founded fear of persecution, and dismissed the application.

[8] The Immigration Appeal Tribunal had before it grounds of appeal which largely reflected the submissions that were made in the course of the hearing before me. In refusing leave to appeal, they determined:

"In the view of the Tribunal, the Adjudicator's adverse credibility findings are sound. The Adjudicator was entitled to find that the Applicant's friend was not a high level activist and as a consequence to doubt the credibility of the claimed circumstances in which the Applicant has claimed to have come into the custody of the authorities. Though there is some merit to the point made at paragraph 6 of the grounds of appeal, the Tribunal does not consider that the other contentions in the grounds of appeal concerning the credibility findings are reasonably arguable. Taken as whole the Adjudicator's adverse credibility findings are sound, and as a consequence the Tribunal considers that her findings concerning risk on return are also conclusions she was entitled to reach on the evidence before her."

Paragraph 6 of the grounds of appeal contained a submission that the adjudicator was wrong to have found that there was a discrepancy in the petitioner's evidence regarding her obtaining medical assistance.

Submissions for the petitioner:
[9] The petitioner's approach was to look at certain distinct and separate elements of the adjudicator's assessment of the evidence and seek to demonstrate that she had, in each separate respect, reached a conclusion that no reasonable adjudicator would have reached.

[10] The first element relied on by the petitioner was that, at paragraph 17, the adjudicator states: "In interview, the appellant said that her friend was staying with her to help the appellant whilst she was going through a divorce." It was not, it was submitted, evident from the answer given by the petitioner that she meant that the friend had been staying with her to help because she was going through a divorce at that time. The adjudicator had misunderstood the petitioner's answer and it suggested that she may have had some doubt as to whether the friend was staying because of Falun Gong or because of her divorce.

[11] The second submission related to paragraph 16 of the adjudicator's determination. The adjudicator did not, it was said, make a finding as to what exactly the friend's involvement in Falun Gong amounted to. No serious attempt was, however, made to attack the finding contained in the last sentence of paragraph 16: "It would be impossible to construe from the appellant's activities that her friend was a high level activist in Falun Gong and I do not find that she was."

[12] The third element relied on arose from paragraph 18 where the adjudicator records the petitioner's assertion that she frequently heard the screams of another torture victim whilst she was detained and found it implausible that against that knowledge of what could happen, she did not immediately dissociate herself from Falun Gong. It was suggested that the adjudicator had erred because the screams could not have been heard prior to the petitioner's first interview.

[13] The fourth element relied on, also arising from paragraph 18, was that the adjudicator had, it was submitted, erred in making an ethnocentric and subjective assumption that a person from a different cultural and social background would have reacted the same as would she in the event of being subjected to incarceration and interrogation by explaining that she was not associated with Falun Gong at the earliest opportunity rather than remaining silent. She had, it was said, failed to account for the possibility of the petitioner simply being inclined to act stoically. Reference was made to the determination of the Immigration Appeal Tribunal in the case of Ernesto Mendes unrepd Appeal No. 12183 HX-70739-94 , notified on 6 June 1995 and the warning stated therein regarding the need to avoid recharacterising a risk based on the perceptions of reasonability or plausibility from the vantage point of the country of adjudication.

[14] The fifth element relied on arose from paragraph 20 where the adjudicator states that she notes a discrepancy between the petitioner's account of seeking treatment for her injuries as between what she told the interviewer in no.6/5 of process and what was set out in her statement. There was, it was submitted, no discrepancy.

[15] Finally, it was submitted that the adjudicator had erred in her approach to the petitioner's evidence regarding the passport upon which she had entered the country, as set out at paragraph 20. There was no discrepancy, it was said, between the account given at the screening interview and that given at the later statement of evidence interview (see: Nos 7/1 and 6/5 of process) and the adjudicator had, accordingly, erred.

[16] Under reference to Singh Petitioner 1998 SLT 1370, counsel for the petitioner submitted that if it was accepted that any or all of the criticisms advanced were justified, then that showed that the Immigration Appeal Tribunal had acted unreasonably in refusing leave to appeal. Reference was also made to the approach taken by the Court of Appeal in the case of Haile v Immigration Appeal Tribunal 2002 Imm AR 170 as support for a submission that if the adjudicator had erred in one respect, that could be sufficient to justify the granting of leave to appeal.

Submissions for the respondent
[17] Counsel for the respondent began by observing that there was no suggestion that the adjudicator had failed to apply the correct law or adopted an incorrect approach in her methodology or failed in any other procedural requirement such as might have founded a challenge under reference to the principles set out in Karanakaran [2000] Imm Ar 271. The only complaint was that, in some respects, it was said that her interpretation of the evidence was incorrect. However, it was accepted that she was correct in her assessment of the background evidence regarding the attitude, in China, to the Falun Gong and, in particular, that the concern of the authorities was with those in positions of leadership in the movement rather than with others. That alone indicated that, given that the petitioner was not even a member of Falun Gong nor a sympathiser, she was not at risk of persecution. It was also significant to note that, given that the petitioner accepted the correctness of the record of background information, she must have known of the attitude of the regime and of its propensity to behave in an unpleasant manner to Falun Gong leaders.

[18] Further, there was a clear structure to the adjudicator's determination from which it could be seen that, after recording the relevant background information about China, she turned firstly to the major plank in the case of whether or not the friend referred to was a high level activist in Falun Gong or not. Her finding that she was not was clear and important to the case. As regarded the comments in paragraph 17, firstly, the sentence in which the petitioner's divorce was mentioned was not central to the conclusion. In any event, it was an interpretation that the adjudicator could properly have made. The real marker of implausibility was the finding that the friend was not a high level activist.

[19] Regarding the criticisms centred on paragraph 18, counsel submitted that all that was said and concluded by the adjudicator could be justified by reference to the material before her. Far from acting in an ethnocentric manner, the adjudicator was in a position whereby, if she took account of what a Chinese woman would have known, as opposed to a westerner, that would have included knowledge of the treatment liable to be meted out by the authorities to those arrested for involvement in the Falun Gong movement. Her conclusion, that she disbelieved the petitioner's account of her detention, was one which was open to her.

[20] Regarding the reliance on the comments about the petitioner seeking medical treatment and the provenance of her passport, counsel for the respondent sought to defend the adjudicator's approach as one which was open to her on the evidence.

[21] Separately, counsel for the respondent addressed the question of the proper approach in the circumstances of this case, in the event that it was found that the adjudicator had fallen into error in any of the respects founded on by the petitioner. It was not, he submitted, simply a matter of concluding, as was the petitioner's approach that the Immigration Appeal Tribunal would, in that event, have been bound to grant leave to appeal. Leave could only have been granted if the error or errors were such as to show that the appeal as a whole would have had a real prospect of success. It was necessary to show that the error(s) made a material difference to the outcome. In support of that submission, counsel referred to the terms of the relevant rules, the Immigration and Asylum Appeals Procedure Rules 2000 [SI No. 2333 of 2000] rule 18(4) and (7). If the error in question was de minimis, then the court could not be satisfied that it made a material difference to the outcome: Hanif v Secretary of State for Scotland 1999 SC 337. The case of Singh was not authority for the proposition that any error by the adjudicator meant that leave to appeal should be granted by the Immigration Appeal Tribunal. The circumstances in Haile were special and did not suggest that there was any such general rule. If the matters relied by the petitioner were to be regarded as errors on the part of the adjudicator, they were in respect of minor matters. The major planks of her decision as to the petitioner's credibility remained untouched.

Decision
[22] To grant the order for reduction that is sought, I would have to be satisfied that any reasonable Immigration Appeal Tribunal Chairman properly considering the application before him would have assessed the adjudicator as having fallen into error and would have regarded that error as affording an arguable ground of appeal (see: e.g. Singh Petitioner). An arguable appeal is, given the terms of rule 18(7) of the Immigration and Asylum Appeals Procedure Rules, one which has a real prospect of success. I do not consider that test to be satisfied in this case.

[23] There are two parts to the requisite exercise. The first is to ask whether the adjudicator made any finding or determination that could not have been made by a reasonable adjudicator giving proper consideration to the material before her. The second is, if she did, to ask what was the consequence of her so doing. It will only have the prospect of resulting in a successful appeal if it can be shown to have had a material effect.

[24] It is important to recognise that the attack on the adjudicator's determination related only to her findings on credibility. Certainly, assessment of credibility in an immigration application is an issue which requires to be handled carefully and sensitively, bearing in mind cultural differences and the particular circumstances of the country from which the applicant emanates and lack of credibility on a minor matter should not usually be regarded as tainting credibility on a major matter (see: Asif v Secretary of State for the Home Department 2002 SC 182). However, that is not to say that the account given by an applicant should not be tested (Asif supra) or that the methods of doing so cannot properly include reaching a view that an account is simply implausible , provided due consideration is given to all the relevant material.

[25] Dealing firstly with the individual criticisms of the adjudicator's findings, it seems to me that in each case, it was open to her to make the findings and comments that she did. As regards the reference to the petitioner's friend staying with her to help her whilst she was going through a divorce, it seems evident from a comment in answer 16 in her interview (No. 6/5) that she was not divorced until after August 2000 and one interpretation of answer 25 that was open to her was to the effect set out in the challenged sentence at the beginning of paragraph 17. In any event, I cannot see that a finding to the effect that was argued for, namely that although the friend's support at the unspecified time of the divorce was the reason for her being such a close friend, she was staying with the petitioner because she was hiding herself on account of her Falun Gong activities, would have made any difference. Apart from anything else, the adjudicator records in the second sentence of paragraph 17 that the friend was hiding in the petitioner's house thus indicating that she has indeed approached matters on the basis that the friend was in hiding at the petitioner's home, whatever the position as regards the giving of help at a time of divorce. If the adjudicator's first sentence was a misunderstanding, it was not such as to have the potential, when corrected, for displacing the very important finding that the friend was not a high level Falun Gong activist.

[26] As regards the criticisms of paragraph 18, unlike the criticisms advanced under reference to paragraphs 17, 20 and 23, it was not suggested that the adjudicator had erroneously misinterpreted the evidence that was given. Rather, the submission seemed to be that she should, on the evidence given, have believed the petitioner. It seems to me, however, that the adjudicator's findings and conclusions were ones which were plainly open to her on the available evidence, including that regarding what the petitioner would already have known about the practices of the authorities when Falun Gong members were detained. The submission to the effect that she could not have heard the screams referred to prior to the questioning sessions at which she remained wholly silent and initially silent, was not well founded. The evidence that she heard those screams frequently, that the first session was a couple of days into the period of detention and the second one a week or so later was sufficient to support the adjudicator's approach. Further, the adjudicator's reaction that the petitioner's evidence that she did not explain that she was not associated with Falun Gong because the authorities do not listen lacked plausibility, was one which she was, in all the circumstances, entitled to entertain, in my view. I do not regard the allegation that the adjudicator was being subjective and ethnocentric as well founded. There is no inkling of the adjudicator making any unwarranted assumptions regarding the way that the petitioner could reasonably have been expected to behave in the circumstances, if her account of events was truthful.

[27] The criticisms regarding the adjudicator's approach to the petitioner's evidence as to when and how she sought medical treatment ( paragraph 20) and the provenance of her passport ( paragraph 23) can be dealt with shortly. I note that Immigration Appeal Tribunal commented that there might be some merit in the former, without elaboration. Whilst I can see that it is arguable that, on the evidence, the petitioner could be interpreted as referring to the same thing when she speaks, on the one hand of going to see a doctor after she had been with her brother for while and on the other hand of going to the injury department it seems to me that it was open to the adjudicator to take the view that these amounted to two different accounts. Similarly, whilst it could be argued , as it was before me, that the petitioner's indication that she entered the country on her own passport was not inconsistent with the subsequent account that the passport was one that had been obtained using someone else's name, again, it was, it seems to me, open to the adjudicator to take a contrary view. More importantly though, these were peripheral matters and I do not see that, if they were errors, they had a material bearing on the outcome.

[28] The petitioner's counsel did not begin to address the important question of what would have been the position if the findings regarding the friend and the petitioner's divorce, the medical treatment, and the passport had not been made. That would have left intact the very important finding regarding the friend not being a high level activist in Falun Gong and the discrepancies regarding what she did after her release from detention (paragraph 21) and the lack of explanation as to why her family decided that it was not safe for her to stay in Zhen Zhou city (paragraph 22), all of which were not challenged, together with the finding of implausibility regarding her detention. In particular, the petitioner did not submit that these findings (or even these findings together with a favourable one as regards the petitioner's account of her detention) would have been such that no reasonable adjudicator could have refused the petitioner's application on the basis of them. In short, there was no attempt by the petitioner to show that any or all of the challenged findings were material to the decision that was reached. I do not consider that they are. The overwhelming problem for the petitioner was that once the finding was made to the effect that her friend was not a high level activist for the banned movement, she did not fall into that category of persons liable to attract the unpleasant attentions of the authorities which had two consequences. One was that it made the petitioner's entire account of the raid on her flat and subsequent detention implausible. The other was that it made it appear as unlikely that the petitioner would be subjected to a risk of persecution on return, being herself not only in the position of not being a high level Falun Gong activist but not even a member or sympathiser. In these circumstances, the conclusion that she did not have a well founded fear of persecution properly followed.

[29] I shall accordingly sustain the respondent's first, third and fourth pleas in law, repel the petitioner's plea in law and dismiss the petition.