Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 78

P1118/14

OPINION OF LORD WOOLMAN

In the petition of

JING DUAN ZHOU

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  McIlvride QC;  Office of the Advocate representing the Secretary of State for the Home Department

13 May 2015

[1]        The petitioner is a Chinese national aged 30.  He arrived in the United Kingdom in April 2013.  He had no documents to confirm his identity and claimed asylum.  The respondent allowed him temporary admission to the UK, but subject to immediate detention.

[2]        She ordered his release on 4 May 2013, subject to two conditions (a) that he report to the authorities on 8 May and (b) that he attend an asylum interview on 28 May 2013.

[3]        There is a factual dispute about whether the petitioner knew of these conditions.  He maintains that the respondent notified his then solicitors, who failed to pass the information on to him.  The respondent states that he was told about the conditions himself on his release.

[4]        In any event, he did not comply with the conditions.  In consequence, the respondent deemed his application for asylum to have been impliedly withdrawn in terms of Immigration Rule 333C.  The petitioner accepts that she was entitled to do so.

[5]        On 29 May 2014 the respondent again detained the petitioner when he was found working in a restaurant kitchen.  On 1 August he told an immigration officer at Dungavel IRC that he had borrowed substantial sums of money from loan sharks in China and that he feared for his life if he returned.  On 4 August his solicitors made similar representations to the respondent.

[6]        By letter dated 6 August the respondent determined that the petitioner’s submissions did not amount to a fresh application and that there was no basis upon which to grant leave for him to remain in the United Kingdom on human rights grounds.  The letter comprises 46 paragraphs and examines the submissions from a number of different perspectives.

[7]        The respondent made the following key points in the letter.

(a)        The fear of persecution for unpaid debt is not a basis for engaging the UK’s obligations under the 1951 United Nations Convention relating to the status of refugees.

(b)        By absconding before his asylum interview the petitioner did not display the actions of a genuine asylum seeker.

(c)        The objective information drawn from various public sources indicated that there is a functioning police force in China.

(d)        The petitioner had provided no evidence to vouch his assertion that he would face violence on his return to China.

(e)        In ZC & Ors China CG [2009) UKAIT 00028, the tribunal held that there is no real risk of harm on return to China for failed asylum seekers who owed money to loan sharks.

(f)         The petitioner could relocate internally within China.

(g)        There were no special circumstances relating to his family or private life.

[8]        On 25 September the respondent issued directions for the removal of the petitioner from the UK to China on 4 November.  She cancelled them, however, following the presentation of this petition.

[9]        On 17 October the petitioner’s new solicitor made a fresh claim for asylum, founding on three documents, together with English translations.  They are each headed "Registration Form for Incident Report and Response" and bear to be have been issued by Yutian Police station in China.

[10]      They relate to three alleged incidents at the petitioner’s mother's home during the course of 2014.  She states that on each occasion men came to her house and told her that they were looking for her son, who owed money.  Although she says that they “made trouble”, there is no indication that any violence or intimidation was used.

[11]      The forms narrate that police officers attended within five minutes of each incident being reported.  On two occasions, they advised the men to pursue the matter using normal civil channels.

[12]      On 2 November 2014 the respondent rejected the submissions (“the decision letter”).  She decided that that the new material did not give rise to a fresh claim.

Submissions
[13]      Mr Forrest submits that the respondent erred in law in two respects.  First, she did not consider whether the petitioner had realistic prospects of success before a judge of the FTT.  Second, she did not apply anxious scrutiny in carrying out her task.  Mr McIlvride argues that she applied the correct test and met the standard expected of her.

Realistic prospects of success
[14]      The test of whether a particular applicant has realistic prospects of success is a modest one: WM (DRC) v SSHD [2007] Imm AR 337.  Nevertheless I am satisfied that the respondent was entitled to hold that it was not met here.

[15]      The onus is on the petitioner to show that the FTT could rely upon the three police report forms: Tanveer Ahmed v Home Secretary (2002) Imm AR 318.  Accordingly, one would expect an explanation as to the provenance of these documents.  When, how and from where did they come?  No answers have been provided.  The petitioner has therefore failed to discharge that onus.

[16]      Even if they are valid, however, they do not support his position.  They disclose that when his creditors appeared at his mother's home, the police attended promptly and informed them that they should pursue their claim using normal legal channels.  Lord Hope has stated that “persecution is a strong word”:  HJ (Iran) v Home Secretary [2011] 1 AC 596 at paragraph 12.  There is no suggestion that it is apt to describe the circumstances here.

[17]      The facts can be contrasted with those in ZC & Ors China CG.  In that case, the loan sharks allegedly forced their way into a house, smashed the furniture and perpetrated acts of violence against two of the occupants.  Subsequently, the house was burned down.  Nonetheless, the tribunal determined that the applicant should return to China.

[18]      The respondent was therefore entitled to conclude that the petitioner has no realistic prospects of success before the FTT.

Anxious scrutiny
[19]      The phrase “anxious scrutiny” means that every factor that might tell in favour of the applicant has been properly taken into account:  see R(YH) v SSHD [2010] 4 All ER 448 and R (AK Sri Lanka) v Home Secretary [2010] 1 WLR 855.  I am satisfied that the respondent followed that approach in this case. In her decision letter, she carefully considered the further submissions and material lodged on behalf of the petitioner and gave cogent reasons for her decision.

Conclusion
[20]      For these reasons, I conclude that the Secretary of State was entitled to hold that the further submissions did not give rise to a fresh claim.  Accordingly, I shall sustain the respondent’s first plea‑in‑law and dismiss the petition.