A v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1171

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[2002] EWCA Civ 1171Case No C/02/0290Venue Royal Courts of Justice, Strand, London WC2, Thursday, 18th July 2002
Between
ASECRETARY OF STATE FOR THE HOME DEPARTMENT
Before
Lord Justice SedleySir Murray Stuart SmithMISS R. BARUAH (instructed by Messrs Gerston & Nixon, London, W1) appeared on behalf of the Applicant.MR. M. FORDHAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.Date 18 July 2002

LORD JUSTICE SEDLEY:

The

[1]present applicant, represented by Miss Baruah, is a Chinese national and an adherent and practitioner of the cult of Falun Gong. She claims that if she is returned to China she faces a real risk of persecution because of her beliefs and practices. While, as will appear, I do not think this is a proper case for the grant of permission to appeal, out of respect for the fears that she entertains she has been anonymised for the purposes of these proceedings. That seems to me to be a direction that ought to remain in place.[2]The Secretary of State, the immigration adjudicator and the Immigration Appeal Tribunal have all rejected the applicant's claim. All of them, moreover, have done so on the footing that, without deciding whether Falun Gong is a religion or whether it is a real or imputed political opinion, or possibly whether its adherents constitute a particular social group, the evidence in the view of all three of the decision-makers demonstrated that she could continue to practise Falun Gong in private, as she had done before leaving China, in relative safety.[3]Miss Baruah seeks permission to appeal on the ground that the Immigration Appeal Tribunal's decision impermissibly limits the applicant's safe practice of Falun Gong to practise not only in private but in isolation. When I considered this application on the papers I refused permission, taking the view that whether the risk fell to be assessed as a risk of persecution under the 1951 Refugee Convention, or as a risk of violation of the applicant's rights under Articles 3 or 8 or 9 of the European Convention on Human Rights, there was a tenable series of fact findings to the effect that no such appreciable risk existed given the continuance in the future, as in the past, of the private rather than the public practice by the applicant of Falun Gong.[4]When Miss Baruah renewed the application before Ward LJ and me in open court, it seemed to us, having heard her, that there might be a viable argument that the Immigration Appeal Tribunal had too narrowly restricted the situation in which the applicant could expect to be relatively safe from the authorities in China, either because they expected her to practise not merely in private but in isolation, or because to expect any artificial constriction of a freely chosen activity may, on authority, be an impermissible course for a decision-maker in this country. We adjourned the application for restoration before this court on notice to the Secretary of State, because it seemed to us that if there were a viable appeal, it was an appeal that needed to address the underlying question whether Falun Gong is a religion at all or, if not, whether it is a real or imputed political view, or whether its adherents constituted a particular social group, since if it is none of these things espousal of it cannot fall within the Refugee Convention. That would not determine all issues, since human rights issues might remain.[5]However, appearing at the court's invitation for the Secretary of State today, Mr. Fordham, in a helpful written submission, has somewhat discouragingly made common cause with Miss Baruah in seeking to deflect us from going into the underlying questions. Both sides, it seems, would prefer for the time being to consider the risk of persecution without engaging upon the riskier course of seeking a finding that might turn out to be unwelcome as to what the true nature and status of Falun Gong is.[6]As a fallback, however, Mr. Fordham has shown us the remarkably detailed Home Office CIPU report on Falun Gong and has annexed to his skeleton argument an interesting analysis of the possible status of the cult, including support from the Canadian courts for the view that it comes closest to it being a particular social group. Mr. Fordham suggests that, if the cult is to rank within the Refugee Convention, it may be as an imputed political opinion that it comes closest to doing so. In any event, having led the horses to water we are not going to be able to make them drink. This application must be approached by us on the footing that, if the other Convention criteria are met, then Falun Gong is capable of ranking within the Refugee Convention and/or within the European Convention on Human Rights.[7]What is left therefore is the short question whether the Immigration Appeal Tribunal have arguably gone wrong in either of the ways which I have indicated or, as is also said in her written submissions by Miss Baruah, whether the Immigration Appeal Tribunal have assumed that an absence of past persecution can itself determine the ambit of any risk of future persecution.[8]The adjudicator, Mr. Curzon Lewis, in a fully reasoned decision issued on 13th July 2001, said, among other things, the following:
"73. ... I find as a fact that this appellant is a Falun Gong practitioner. 74. However, the scale of her allegiance was quite modest. One must put her allegiance in context with the chronology. If she joined on 25 June 2000, and was arrested on 13 August 2000, and if she had been practising three or four times a month, it follows that between her joining and her arrest she is unlikely to have taken part in any practice group on more than seven occasions before going into hiding. 75. There is no evidence to suggest that any of the practice sessions which the appellant attended ever came to the notice of the police. These were private sessions in dilapidated buildings in remote places. 79. The appellant's evidence of her escape from the police station is wholly lacking in credibility. I do not believe any part of this detention and escape evidence, and find that it has been introduced by the appellant in an attempt to engage the Refugee Convention. 83. This appellant was never charged with any offence, and was never brought before a court. I have disbelieved her evidence of detention and escape. I do not believe that she has ever been identified to the Chinese authorities as a Falun Gong practitioner, and therefore I hold that she can safely be returned to China without risk of persecution by reason of her Falun Gong adherence. 89. I find as a fact that there is no reason to suppose that the appellant would not be able to continue practising Falun Gong either alone or in company with her friends at secret locations. She was doing that on a small scale in her home town, and was never caught, despite the clampdown by the authorities around that time."
[9]It does not seem to me that there or anywhere else the adjudicator is making the mistake of treating the past as conclusive of what is to be expected in the future. He does, however, look to what has happened to the applicant up to the point of leaving China as importantly relevant to the assessment of what may happen if she is returned. This is an entirely appropriate and usually necessary exercise.[10]The Immigration Appeal Tribunal, in a determination notified on 5th December 2001, said, among other things, this. They quoted, among the positive findings of fact made by the adjudicator, those which I have now cited, and they went on to say at paragraph 6:
"It was the adjudicator's finding that the appellant had never been charged with any offence and never brought before a court. He had disbelieved the appellant's evidence of detention and escape. He did not believe that the appellant had ever been identified to the Chinese authorities as a Falun Gong practitioner. 7. The adjudicator concluded that: 'The degree of risk surrounding the return of this appellant to China has to be assessed by reference to her very low profile and very recent adherence to the (Falun Gong).' 8. It was the appellant's account, which the adjudicator accepted, that she was practising Falun Gong only a few months before leaving China on 'a small scale in her home town and was never caught despite the clampdown by the authorities around that time.'"
[11]I cite those, repetitious though they are of what the adjudicator had found, because of the critique that is mounted by Miss Baruah of the Immigration Appeal Tribunal's own conclusion. That conclusion is expressed initially at paragraph 10, where the Immigration Appeal Tribunal said this:
"We have concluded that the appellant failed to establish 'more than a mere possibility' that she would be at real risk from the Chinese authorities upon return were she to continue to practise Falun Gong. Further the adjudicator rightly concluded that the appellant could continue to practise her exercises in private."
[12]Then this at paragraph 15:
"It follows that the appellant is not compelled to perform her exercises in public and there is nothing to prevent her practising in private and alone."
[13]The Immigration Appeal Tribunal concluded at paragraph 25:
"Whilst we are satisfied from the objective evidence that in China there are regular abuses of a wide range of fundamental human rights in a manner which would undoubtedly engage the Refugee and Human Rights Conventions in certain cases, we find that in the particular circumstances of the appellant's case and the adjudicator's findings, which we uphold, that she has failed to demonstrate to the requisite standard of proof that she would be at real risk if now returned."
[14]Miss Baruah's main attack is on paragraph 15, which I have quoted, on the ground that it indicates an erroneous view that it was sufficient to negative real risk if it could be said that the applicant could safely practise Falun Gong both in private and alone. As to this, Mr. Fordham has helpfully shown us in his written submission the surrounding material, which makes it clear that this is, at worst, an infelicitous piece of phrasing in a decision which explicitly upholds and adopts the adjudicator's own findings. Those findings are clearly that the applicant could safely practise Falun Gong either alone or in company, provided always that it was done, as it always was done, away from the eyes of the authorities. The source of the phraseology of the Immigration Appeal Tribunal may well lie in paragraph 90 of the adjudicator's findings which, towards the end of that paragraph, reads:
"Although I accept that she is a Falun Gong practitioner, I do not accept that her rights to practise Falun Gong were inhibited in China, inasmuch as she was able to do so privately and with a group in a dilapidated house, without ever being caught."
[15]The use of the word "and" in that context carries no such ambiguity as perhaps the Immigration Appeal Tribunal's use of it in paragraph 15 of its decision carries, and makes clear that there is a finding of the kind I have indicated on the adjudicator's part. If one wanted any further clarification, it is to be found in paragraphs 21 to 23 of the adjudicator's findings which recite simply the applicant's own evidence about her activities."21. At interview the appellant stated that she practised Falun Gong, three or four times a month, in different places, such as a quiet room, and remote places. She practised with friends she did not know.22. In her evidence in chief she said that she practised with others, and when she had referred to a quiet room and remote places, what she meant was they met in empty and dilapidated houses, to which they knew nobody would come [to disturb them]. There were many such properties [in Huang He Shan]. Their meetings were arranged by telephone. Her own parents never found out because she used her own mobile phone.23. There were between 40 and 50 practitioners in her group. They were taught the objectives and exercises of Falun Gong. She did also practise at home alone."[16]None of this was disbelieved by the adjudicator. It is clear that it was the foundation of what he later concluded.[17]As to the larger question, whether it is open to the United Kingdom decision-maker to say that an asylum seeker can be safe from religious persecution so long as he or she constrains his or her practices, this does not arise at all in the present case. The applicant has never sought and has manifested no intention in the future of seeking to practise Falun Gong, whether alone or with others, in public. It is her custom of practising it in private, albeit in company, as well as sometimes alone, which the fact finders have concluded carries no appreciable risk of persecution or treatment incompatible with the European Convention on Human Rights. Nor does the evidence seem to me to begin to establish that Falun Gong would, but for persecution, present a more public face. If anything, it suggests rather the contrary in the case of the applicant and her group.[18]There is no issue of law in the complaint that the applicant's expert witness was accorded less weight than was accorded to the in-country report. Both can be seen in the reasons to have been conscientiously considered. Once that is so, their relative weight is, par excellence, a question of fact not for us.[19]I did say, when I dealt with the paper application, that, given the in-country information about the treatment of dissidents and Falun Gong adherents by the Chinese authorities, the consistent findings of the Secretary of State, the adjudicator and the Immigration Appeal Tribunal might be thought to be on the sanguine side. But it is they, not we, who are the expert fact finders in this field. No challenge of law is offered to the Immigration Appeal Tribunal's decision.[20]For the reasons that I have given there is no issue which, it seems to me, is capable of engaging this court's attention. I would refuse permission to appeal.

SIR MURRAY STUART SMITH: I agree.

Order

Application refused; public funding assessment of the applicant's costs.

Cited in 1 later judgment