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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY ZUO HUI XIE AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSIH_52 (21 August 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_52.html
Cite as: [2020] CSIH 52, 2020 GWD 29-381, [2020] ScotCS CSIH_52
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 52
P278/19
Lord Malcolm
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD PENTLAND
in the Appeal
by
ZUO HUI XIE
Appellant
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Appellant: Winter; Drummond Miller LLP (for Katani & Co, Solicitors, Glasgow)
Respondent: A McKinlay; Office of the Advocate General
21 August 2020
[1] This is an appeal under section 27D(2) of the Court of Session Act 1988. In his petition
for judicial review the appellant seeks reduction of a decision dated 24 December 2018 by
which the Secretary of State for the Home Department (SSHD) refused to treat certain further
submissions made by him as a fresh claim for the purposes of rule 353 of the immigration
rules. Permission for the petition to proceed was refused by Lord Tyre and this was
confirmed on an application for review of the refusal by Lord Drummond Young. They both
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2
considered that the petition had no real prospect of success. In the present appeal the
appellant challenges that view. The task for the Inner House is to consider the question of
new, whilst extending respect to the view of the Lords Ordinary (PA v Secretary of State for the
Home Department [2020] CSIH 34).
[2] The appellant is a Chinese citizen whose asylum application was originally refused
in 2003. He claimed to be at risk of persecution in the event of return to China because of his
practice of the Falun Gong religion. Falun Gong is a Chinese movement founded in 1992.
Its adherents perform ritualistic exercises in order to gain physical and spiritual renewal.
In 1999 the Chinese government proscribed the movement, which it regards as an “evil
cult”.
[3] In July 2003 an immigration judge refused the appellant’s appeal against the SSHD’s
decision to deny him asylum (“the 2003 decision”). The immigration judge held that the
appellant’s evidence was unconvincing; his account of having had difficulties with the
police in China was disbelieved. The appellant’s appeal rights were exhausted in July 2003.
He submitted fresh representations in 2011; these were refused in 2014.
[4] In April 2018 the appellant was discovered to be working illegally in a restaurant in
Livingston. In October 2018, he made further submissions to the SSHD. Through his
solicitors, he submitted a witness statement, 17 letters of support, copies of some case law,
and a country guidance and policy note on the Falun Gong in China published by the SSHD
in November 2016.
[5] The SSHD refused to treat the appellant’s further submissions as a fresh claim under
and in terms of immigration rule 353. The decision letter took as its starting point the
2003 decision. It concluded that the new information, taken together with the previously
considered material, did not create a realistic prospect of success before an immigration
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judge. Consideration was given to the country policy and information note (“the country
guidance”) submitted by the appellant. The decision maker noted in particular the
that decision the tribunal found that the large majority of those who practised Falun Gong in
China in privacy and with discretion did not experience material difficulties with the
authorities. The risk of ill-treatment escalated significantly when a practitioner of Falun
Gong took part in activities which were reasonably likely to bring him or her to the attention
of the authorities. Such activities would include the public practising of Falun Gong
exercises, the recruitment of new members, and the dissemination of information about the
organisation. The decision letter went on to record that the appellant stated that he
practised Falun Gong on his own and that no evidence had been provided to show that he
did so in public. It was not accepted that the appellant would be subject to persecution by
the Chinese authorities. The conclusion reached was that the appellant had not established a
well-founded fear of persecution and that he did not qualify for asylum on the basis of his
political opinion. He had not succeeded in establishing that he qualified for humanitarian
protection or that his return to China would breach his rights under articles 2 or 3 of the
European Convention on Human Rights.
[6] The conclusion of the decision maker was expressed as follows:
“Careful consideration has been given to whether your submissions amount to a
fresh claim. Although your submissions have been subjected to anxious scrutiny, it
is not accepted that they would have a realistic prospect of success before an
immigration judge in light of the reasons set out above, in particular:
●
It is not accepted the evidence you have now submitted would
overturn the previous findings
●
Current case law and country guidance has been considered”
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[7] In his oral submissions to this court Mr Winter concentrated on what he maintained
was an error by the SSHD in refusing the appellant’s application for consideration of the
fresh submissions. He pointed out that the country guidance acknowledged that in cases
where a Falun Gong practitioner would only practice in private on return and would not be
subject to denunciation, the reasons for such “discretion” would need to be considered. The
country guidance correctly observed that the Supreme Court had held in RT (Zimbabwe) v
SSHD [2013] 1 AC 152 that a person may be at risk of persecution on the grounds of imputed
political opinion and that it is nothing to the point that he or she does not in fact hold that
opinion (Lord Dyson para 53). The perspective of the persecutor was determinative.
Mr Winter submitted that the approach taken in the decision letter was inconsistent with
this principle. It wrongly viewed Falun Gong through the prism of religion, whereas the
Chinese authorities imputed the holding of a political opinion to those who practised it.
There was a real prospect of showing that the country guidance demonstrated that those
who are suspected of, or who are, practising Falun Gong are treated harshly and that such
ill-treatment was not limited to members. The errors were material since had they not been
made the appellant would have had a real prospect of showing that the practice of Falun
Gong in China involved renunciation of a core human right. In terms of RT (Zimbabwe) and
China without the risk of being persecuted resulted in his being denied a core human right.
[8] We are not persuaded by Mr Winter’s submissions. We consider that Mr McKinlay,
who appeared on behalf of the SSHD, was correct to submit that there are two separate
stages in the analysis. The first is to ask whether there was any evidence before the SSHD to
show that the appellant would in fact be likely to be at risk of persecution if returned to
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China. The second (and separate) question is whether the decision in RT (Zimbabwe) has any
application in the circumstances of the present case.
[9] On the first issue we are satisfied that there was no evidence to show that the
appellant was at any material risk of persecution. There was no suggestion that he practised
Falun Gong in public. The country guidance was that those who practised individually, like
the appellant, were not subject to persecution by the authorities in China. The decision letter
cited paragraph 2.3.13 of the country guidance which stated:
“In that regard decision makers must note that the Tribunal in LL specifically found
that Falun Gong meditation and exercises can be carried out alone or with a few
friends in private, and that there does not appear to be any duty or pressure on a
Falun Gong practitioner to proselytise, even though some plainly do. The Tribunal
endorsed the earlier view expressed by the Court of Appeal in L (China) that ‘We are
not prepared to accept that authoritarian pressure to cease the practice of Falun Gong
in public would involve the renunciation of core human rights entitlements’
(para 36)”
[10] The reference in this passage to L (China) is a reference to the decision of the Court of
which it was accepted on behalf of the Secretary of State that on appropriate facts a member
of Falun Gong might be held to have a well-founded fear of persecution in China on the
grounds of imputed political opinion. The issue is a fact sensitive one.
[11] The country guidance concluded its analysis of risk by stating that since pressure
from the authorities to cease the practice of Falun Gong in public would be unlikely to
constitute a breach of human rights, a practitioner concealing his or her activities would not
on that account fall within the scope of the Refugee Convention (para 2.3.14).
[12] In our opinion, the facts of the present case, as they were presented to the SSHD in
the fresh submissions claim, came nowhere close to supporting the contention that the
appellant would face a material risk of persecution on return to China. We are satisfied that
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the facts of the case were properly assessed by the SSHD. The combined effect of the
appellant’s own evidence taken along with the country guidance was that (a) he would not
practice Falun Gong in public, but would do so only in private; and (b) persons practising
Falun Gong in private, such as the appellant, were not likely to be subject to persecution by
the Chinese authorities. The appellant put forward no evidence that he would be treated
differently to any other person who practised Falun Gong only in private. He submitted no
evidence that there was any reason, peculiar to his individual circumstances, to show that
his private Falun Gong activities would expose him to any significant risk of persecution. It
follows that the SSHD was entitled and in our view correct to hold that there was no
evidence to show that the appellant would be at risk on return to China. We can find no
error of law in the approach taken to this question in the decision letter. Accordingly, it
follows that the appellant had no reasonable prospect of success on a rehearing of his case in
the light of the additional submissions.
[13] The second issue concerns the applicability of the principle recognised by the
Supreme Court in RT (Zimbabwe). In our view this is irrelevant in the circumstances of the
present case.
[14] In addressing this aspect it is important to note that Mr Winter did not suggest that
the practice of Falun Gong was objectively a political activity. He relied only on the
perception of it as such by the Chinese authorities.
[15] We do not consider that pressure from the authorities to cease practising Falun Gong
in private could constitute interference with a core human right. As a matter of common
sense we do not see how having to refrain from participating publicly in a non-political
activity like Falun Gong (whatever view the authorities may take of the activity) could be
said to provide a basis for claiming interference with the freedom to hold a political belief.
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[16] In our opinion, the circumstances are not at all analogous to having to conceal one’s
sexuality (cf HJ (Iran)) or to having to pretend that one held political beliefs when in fact one
had none in order to appease an oppressive regime (cf RT (Zimbabwe)). Whilst there is
undisputed evidence that the Chinese authorities perceive Falun Gong as a political
movement, it appears to us that there was no material before the SSHD to justify the view
that it truly amounts to a political activity. We agree with what was said by the Asylum and
Immigration Tribunal in LL at paragraph 36:
“Our second conclusion is that the essential benefit of Falun Gong to an individual
comes from the practice of meditation and Qi Gong exercises, which can be carried
out alone or with a few friends in private. It appears to have some spiritual
dimension. There does not appear however to be any duty or pressure on a Falun
Gong practitioner to proselytise, even though some plainly do. We therefore endorse
the view expressed by the Court of Appeal in paragraph 33 of their judgment in this
case that ‘We are not prepared to accept that authoritarian pressure to cease the
practice of Falun Gong in public would involve the renunciation of core human
rights entitlements’”.
[17] In our opinion, that conclusion applies to an even stronger extent in the present case
given that the appellant’s evidence was that he practised Falun Gong only in private. The
fact that a person, such as the appellant, may choose to conceal certain behaviour or beliefs,
which do not on an objective analysis amount to expressions of political opinion, cannot
amount to an infringement of any core human right. We therefore reject the principal
argument advanced by Mr Winter.
[18] Mr Winter also submitted that the decision letter was deficient because it made no
reference to paragraph 2.3.9 of the country guidance. This explained that the Chinese
authorities were reported to have instructed neighbourhood committees to denounce Falun
Gong members. The difficulty for the appellant is that there was nothing advanced on his
behalf which tended to suggest that he was at any risk of being denounced to the Chinese
authorities because of his private practising of Falun Gong. In these circumstances,
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paragraph 2.3.9 of the country guidance was not relevant in the context of the appellant’s
case. The SSHD did not err in omitting to refer to that part of the country guidance.
[19] At the end of his oral submissions (but not in his written note of argument)
Mr McKinlay invited us to express a view on the averments set out in paragraph 11 of the
petition. These were to the effect that the SSHD had applied an incorrect test by referring in
the decision letter to whether the further submissions “would” create a realistic prospect of
success before an immigration judge. This was averred to set the standard at too high a level
and to fail to reflect properly the test contained in immigration rule 353. Mr McKinlay
explained that such averments were frequently advanced on behalf of petitioners and that it
would be useful for there to be authoritative guidance on the point. It is important to note,
however, that at the stage of the oral hearing before Lord Drummond Young Mr Winter did
not insist on this branch of the case. Entirely properly, he took the same stance before us,
both orally and in his written argument. In these circumstances, we do not think that it
would be right for us to attempt to express any view on the point since it has not been
insisted in or argued on both sides before us.
[20] For the reasons we have given we shall refuse the appeal and adhere to the
interlocutor of Lord Drummond Young of 2 September 2019 refusing permission for the
petition to proceed. We shall reserve all questions of expenses.