XZ (China) v Secretary of State for the Home Department

This is a renewed application for permission to appeal by XZ from a decision of the AIT, which on a first stage reconsideration upheld its earlier decision to dismiss the applicant’s appeal against the Secretary of State’s refusal to grant him asylum or accede to his related claims for humanitarian relief and under the Human Rights Act.

The applicant, a Chinese citizen, arrived in the United Kingdom in May 2006 when he claimed to be aged 16. He subsequently claimed asylum. The basis for his claim was that he was a Christian and a member of the Real Jesus Church and as such faced persecution if returned to China. His grandfather was a pastor of this church and used to preach in secret in members’ houses. The grandfather had been arrested by the secret police on 10^th February 2006. The appellant was at school at the time but because it was feared that he would also be arrested, his aunt had hidden him until arrangements had been made for him to leave China.

The immigration judge did not accept that the applicant’s grandfather had been arrested or that the applicant had been hidden in the way he claimed. Based on the objective evidence, he found that the applicant was not of interest to the authorities, who would not be aware of his existence except as a school boy. It was the applicant’s decision, the judge found, to leave China; and he could return there safely to practice his Christian faith.

The grounds upon which reconsideration was ordered amount to no more than a challenge to the immigration judge’s credibility findings, packaged, as they so often are, as errors of law. Senior Immigration Judge Latter rejected this challenge and dealt satisfactorily, in my judgment, with each of the points which were raised.

The application for permission to appeal to this court contained a number of new points -- or at least points which had not been clearly raised before. The first three of the grounds relate to the fact that the applicant was a minor at the time he was first interviewed in connection with his claim for asylum. It is now said that no appropriate adult was present at the interview, the interview was not taped and those conducting the interview did not follow the immigration and UNHCR rules which lay down how such interviews should be conducted. None of these points had been taken specifically before the immigration judge or on the reconsideration and, as Longmore LJ said in refusing permission to appeal on  the papers, new points cannot be made for the first time in the Court of Appeal.

However Miss Patel argues that these are procedures which should have been familiar to the immigration judge. They were Robinson obvious and it was not therefore necessary to spell the matter out in the way that one might have expected. I have considered the way the immigration judge dealt with this in paragraph 16 of his findings of fact, where he starts by saying he is asked to follow certain guidelines -- If these are so familiar to immigration judges that must be a reference to the material to which Miss Patel refers -- and then he goes on to say that despite his young age the applicant is both articulate and sophisticated, and then adds:

“During the hearing he answered all questions confidently and he gave full explanations relating to the issues which concern me about his case. Therefore even though I must make allowances for his age I am satisfied that he fully understands the story which he is putting forward and I do not find that any mistakes or misunderstandings have arisen prior to the date of the respondent’s decision because he was too young to appreciate what he was being asked.”

It is to guard against interviewees making statements which they do not really understand that the rules to which Miss Patel refers are directed. It is clear, in my judgment, that the immigration judge had those matters very much in mind. He was entitled to make this assessment of the applicant and in doing so it is clear that he took his age fully into account. I would therefore reject the first three grounds of appeal if they are open to the applicant.

The applicant’s fifth and sixth grounds repeat the attack on the immigration judge’s credibility findings. It is said that what he described as inconsistencies were in fact implausibilities. I have to say I think that is splitting hairs and in any event it does not raise any point of law. Nor can it be elevated into one by referring to what Neuberger LJ said in the case of HK v SSHD [2006] EWCA Civ 1037. It is said that just because an account seems implausible does not mean that it is untrue. Of course. But that is not this case where the immigration judge’s decision was, I think, thoroughly reasoned, and was then tested and accepted on reconsideration by a Senior Immigration Judge.

Finally it is said that the immigration judge failed to consider and apply the objective evidence to the applicant’s case. This was a point raised on the reconsideration and was dealt with by the Senior Immigration Judge. It seems to me, having looked at the material relied on by Miss Patel, that it was open to the immigration judge to reach the decision he did on the objective evidence, even though, as she correctly observes, that evidence did indicate that the Chinese authority’s attitude to house churches was not always consistent.

For those reasons, although I have extended time I think permission to appeal must be refused and so the renewed application is rejected.