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FL and others (Rule 30: extension of time?) China  UKAIT 00180
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 9 August 2005
Date Determination notified: 5 December 2005
Mr C M G Ockelton (Deputy President)
Mr D K Allen (Senior Immigration Judge)
Mr A A Wilson (Designated Immigration Judge)
For the first Appellant: Mrs U R Sood, instructed by French & Co Solicitors
For the second Appellant: Mrs U R Sood, instructed by French & Co Solicitors
For the third Appellant: Mr D Bazini, instructed by Lawrence & Co Solicitors
For the Respondent: Mr Hollings-Tennant, Home Office Presenting Officer
DETERMINATION AND REASONS
|Secretary of State for the Home Department
(1) There is no general power to extend time retrospectively for a reply under rule 30 of the 2005 Rules. The time may be extended by directions, which would be forward-looking. (2) In a system with no appeals on fact alone, it may not be surprising if two apparently identical cases are decided differently. (3) Demisa is incorrectly reported in March 1997 Legal Action 27 and the decision there alleged has no bearing on circumstances such as the present.
- We have before us three appeals for reconsideration in accordance with the commencement provisions of the 2004 Act. The appeals of Liang and Chen were allowed by the Adjudicator, Mr P J M Hollingworth. The application for review was made by and the order for reconsideration is in favour of the Secretary of State. The appeal of Tang was dismissed by the Adjudicator, Miss M N Lingard, and the application for review is made by and the order for reconsideration is in favour of the Appellant. In each case, the Adjudicator's determination was delivered after the commencement of the relevant appeals provisions of the 2002 Act. Thus the appeal to the Immigration Appeal Tribunal lay on a point of law only and our primary task in this reconsideration is to decide whether the Adjudicators' determinations contained any material error of law.
- All the Appellants are citizens of China. All of them claim to have come to the United Kingdom in the late 1980s or early 1990s. Liang apparently arrived as a visitor in 1989 and has subsequently had periods of extension of stay. Tang claimed to have arrived illegally in about 1990, but the Adjudicator disbelieved the detailed evidence about his history. Chen came to the United Kingdom as a student in 1989 and appears to have overstayed following the expiry of his leave. All three Appellants have committed serious criminal offences in this country. They were together involved in the kidnap of a fellow Chinese national in the United Kingdom. The victim was ill-treated during his ordeal. The gang was involved with co-conspirators in China who contacted the victim's family and demanded money against threats that he would be killed. In an apparently unprecedented move, the Chinese and British police co-operated to bring those responsible to justice. There were successful arrests in the United Kingdom on 4 July 1996, which, in the circumstances, also received some publicity in China. On 5 June 1997, all three Appellants were convicted of conspiracy to kidnap, conspiracy to commit false imprisonment and conspiracy to blackmail. They were each sentenced to fifteen years imprisonment. Others were charged and convicted with them. It appears that all the defendants were recommended for deportation and some of the Appellants' co-defendants have been deported. The Appellants themselves have now served their terms of imprisonment. Liang and Tang appeal against refusals by the Respondent to revoke deportation orders made against them on 13 April 2004 and 14 January 2004 respectively; Chen appeals against the decision to make a deportation order against him on 9 December 2003.
- The appeals before the Adjudicators were on asylum and human rights grounds. Both Adjudicators rejected the claims insofar as they were based on the Refugee Convention. With the greatest respect to Mrs Sood, who raised refugee arguments briefly without support in her grounds of appeal in respect of Tang and in circumstances which we shall shortly describe in respect of Liang, it is impossible to describe that aspect of the Adjudicators' determinations as other than quite obviously correct. Article 33 of the Refugee Convention prohibits a refugee's return to a place where his life or freedom would be threatened for a Convention reason, but continues as follows:
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
- Article 32 of the same Convention, which prohibits the expulsion of refugees lawfully in the territory of a Contracting State also allows such a person to be expelled "on grounds of national security or public order". Section 72 of the 2002 Act, which was so far as relevant in force when the decisions in these cases were taken, provides that a sentence of two years imprisonment would be enough to cause those provisions of the Refugee Convention to have effect. Even without the 2002 Act, however, it is abundantly clear that the offences of which these Appellants were convicted have disentitled them from claiming the benefits of the Refugee Convention against their proposed expulsion.
- We proceed to reconsider these appeals on human rights grounds.
- At the beginning of the hearing before us, Mrs Sood indicated that she sought, on behalf of the first and third Appellants, to advance grounds on which the Adjudicator should in any event have allowed the appeals. Those grounds are in writing and dated 18 July 2005. They were apparently served on the Tribunal on or soon after that date.
- Rule 30 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) is in the following terms:
"30(1) When the other party to the appeal is served with an order for reconsideration, he must, if he contends that the Tribunal should uphold the initial determination for reasons different from or additional to those given in the determination, file with the Tribunal and serve on the applicant a reply setting out his case.
(2) The other party to the appeal must file and serve any reply not later than 5 days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal.
(3) In this rule, 'other party to the appeal' means the party other than the party on whose application the order for reconsideration was made."
- There is no doubt that, for the purposes of the appeals of Liang and Chen, the date to which reference is made in Rule 30(2) is 20 June 2005, the date set for an oral case management review of this reconsideration. The last date for service of a reply under Rule 30 was thus 13 June 2005, interpreting the five days in Rule 30(2) in accordance with the provisions of Rule 57(1). No explanation has been offered for the failure to serve the reply within the time limited by the Rules, nor for the failure to serve it immediately after the case management review, nor for the subsequent delay of four weeks. Mrs Sood asked us to exercise our discretion to admit the reply late, because, she said, it raised serious issues and its lateness did not prejudice the Respondent. Mr Hollings-Tennant conceded that he was not prejudiced by the late submission of the reply but said that we had no discretion in the matter.
- There is no doubt that Rule 30 applies to these proceedings. Transitional cases, such as this appeal, are covered by Rule 62, which provides in paragraph (1) that "subject to the following paragraphs of this rule" the 2005 Rules apply to appeals which were pending before an Adjudicator or the Tribunal immediately before the commencement of the appeals provisions of the 2004 Act. Paragraphs (2), (3) and (4) are not material to this reconsideration. Paragraph (5) is merely a matter of vocabulary. Paragraph (6) is in the following terms:
"Where, pursuant to a transitional provisions order, the Tribunal reconsiders an appeal which was originally determined by an adjudicator, Section 2 of Part 3 shall apply to the reconsideration, subject to paragraph (7)."
- Rule 30 is within Section 2 of the Rules. It clearly contains no power to extend time, such as is found in Rule 10(5); on the other hand, it contains no such prohibition on extension as is found within Rule 35(2).
- In Rule 45, "Directions", we find the following, to which Mrs Sood made no reference at the hearing before us:
"(4) Directions of the Tribunal may, in particular –
(c) vary any time limit in these rules or in directions previously given by the Tribunal for anything to be done by a party;"
- That power is to be exercised subject to "any specific provision of these rules" (Rule 45(2)).
- It follows that there is or was power to give directions in relation to the service of the reply. If an application had been made, perhaps accompanied by an explanation of the matters to be dealt with in the reply and an explanation for why it had not been or would not be possible to comply with the time limited by Rule 30, a direction might have been made. But a direction is essentially a provision that looks forward. In the present case, no directions were sought; no explanations were given; all that has happened is that, well after the case management review hearing, the reply was simply sent, out of time, to the Tribunal and the Respondent. Although Rule 45(4)(c) makes it clear that the time limited in Rule 30 is not to be regarded as incapable of variation, we do not think that a power to give directions necessarily connotes a power to condone in retrospect a simple failure to comply with the requirements of the Rules.
- We do not find anywhere else in the Rules any provision such as would entitle us to take into account the contents of this very late notice.
- For the foregoing reasons, we agree with Mr Hollings-Tennant's submission that we have no discretion to extend time.
- At the hearing, we went on to consider what the position would be if we had such a discretion. We noted Mrs Sood's submissions and Mr Hollings-Tennant's frank concession that he was not prejudiced. On the other hand, as we have observed, there has been no explanation or excuse for the lateness. In particular, we should point out that this is not a case where either of the hearings was so close to the commencement of the appeals provisions of the 2004 Act and the 2005 Rules that a person could be said to be taken by surprise and to have intended to rely on the previous Rules relating to a Respondent's notice. The lack of any excuse or explanation we regard as of importance. It cannot be right that a party is entitled to say that his grounds are so good that he does not need to comply with any time limits. However good the grounds are, there can be no proper opportunity to exercise a discretion to extend time unless there is at least some basis for finding a good reason for failure to comply with the Rules or any previous direction. That of itself would be likely to cause us in the present case to decline to exercise our discretion in favour of admitting this reply.
- In any event, however, the matters mentioned in the reply are matters which have no real prospect of success in this reconsideration.
- The first is that the recommendation for deportation by the criminal court was procedurally defective. There are two reasons why that argument cannot succeed on this reconsideration. The first is that the recommendation for deportation formed part of the sentence of the criminal court. It could have been the subject of an appeal against sentence. There was no such successful appeal. The recommendation stands as the order of the court and we have no power to ignore it. Even if there were some fault in it, however, the Secretary of State has power to make the decisions he has made in respect of these Appellants whether or not there has been a recommendation for deportation by the criminal court. The basis of the decisions to make (and to refuse to revoke) deportation orders is that the deportation in question would be conducive to the public good. There was clearly ample ground for the Secretary of State to take the view that the deportation of each of these Appellants would be conducive to the public good. If there were a procedural defect in the order of the Crown Court and if we could take that into consideration, it could have no material effect on these appeals.
- Secondly, it is asserted in the reply that the first and third Appellants' appeals should have been allowed on asylum as well as human rights grounds. For the reasons we have given earlier in this determination, that argument has no perceptible prospect of success.
- Thirdly, it is suggested that the Adjudicator did not give sufficient weight to the grounds under Article 8. This ground is advanced only in respect of Liang. He is said to have no family left in China and to be "a fully rehabilitated, model prisoner". But the Adjudicator did not accept that he was telling the truth about his life in prison or in England, including his claimed conversion to Christianity: and there is no challenge to the Adjudicator's assessment of credibility in that respect. In the circumstances, we think that there is no realistic prospect that in this reconsideration the first Appellant would be able to show an independent breach of Article 8. In general, the position is that the Adjudicator made clear findings in relation to Article 3. If those stand, it is not necessary to go into Article 8 as well. If, on the other hand, it is shown that the Appellants ought not to have succeeded on Article 3, there would be no sound evidential basis for allowing Liang's appeal under Article 8 and, looking at all the circumstances, including the Adjudicator's assessment of his credibility, it is inconceivable that he would be able to establish such special circumstances as ought to entitle him to remain despite the deportation order that has been made against him.
- Looking now at the issues raised substantively in these reconsiderations, it will be convenient to begin with the second Appellant, Tang, whose appeal was, as we have indicated, heard first. Before the Adjudicator, it was argued on behalf of the Appellant that the evidence pointed to a real risk of his re-prosecution on his return to China for the offences of which he was convicted here. It was said that the general country evidence pointed to such a risk; the second Appellant also claimed that his own brother, a co-conspirator with him, had been executed in China. Further, the second Appellant said that his own identity as part of the gang was known in China, and produced a newspaper report which he said referred to him. He also claimed that he had been in the United Kingdom some six years before the crimes were committed.
- The Adjudicator rejected the second Appellant's claim to have been in this country so long: she pointed out that he had adduced no supporting evidence of anything at all that he had done in the six years before he was arrested. She said she did not believe the evidence relating to his brother and did not accept the evidence relating to the newspaper report. She declined to find, on the basis of the country evidence, that there was a real risk of re-prosecution.
- Each of these points is the subject of a complaint in the grounds of appeal to the Tribunal. So far as the Appellant's presence in the country is concerned, the grounds assert that Tang can verify his presence here for the period claimed. That may be so; it has not happened yet; and the fact that it might happen does not invalidate the Adjudicator's conclusion on the evidence before her.
- So far as the Appellant's own appearance in a Chinese newspaper is concerned, the position is that the Appellant pointed to the name Deng Anyi in a newspaper report and said that it was his name. The Adjudicator verified the name with the interpreter in court. Deng Anyi does not appear to be a name by which the second Appellant has been known: certainly there was not before the Adjudicator any evidence to suggest that he has been. The second Appellant's claim that his brother had been executed depended almost entirely on the Appellant's own assertions, and was not supported by any media evidence. Bearing in mind her findings on other matters relating to the Appellant's account of his own history, the Adjudicator declined to believe his unsupported assertion about his brother.
- On all these issues, it appears to us that the grounds of appeal do not begin to show that the Adjudicator erred in law. Indeed, on these issues it appears to us that her conclusions were virtually inevitable.
- On the evidence relating to re-prosecution and the risk to the second Appellant if he were returned to China, the evidence was more complex and more voluminous. The Adjudicator clearly looked at it with some care. Whilst taking seriously the evidence of breaches of human rights including executions in China, she noted that the risk of re-prosecution appeared to be more theoretical than real. In her determination, she pointed out that in the materials before her there was "not one cited case on detention or prosecution on a returning Chinese citizen on account of any criminal or other offence that citizen may have committed abroad".
- It appears to us that the evidence before the Adjudicator on this issue might well have been sufficient to enable her to reach a conclusion different from that which she did reach: but we are entirely unpersuaded by the grounds of appeal or by anything Mrs Sood said to us that the conclusion that she did reach was a conclusion which materially erred in law. Indeed, in the course of her submissions, Mrs Sood very frankly and properly said that her position was that the Adjudicator could have reached a different conclusion. We especially asked her whether she had said "could" or "should" and she emphasised "could". That, as we say, may well be so; but it does not amount to an allegation of error of law. For this and the other reasons given above, our conclusion is that in the second Appellant's case the Adjudicator made no material error of law and we order that the Adjudicator's determination shall stand.
- We pass now to the first and third Appellants, Liang and Chen. Although they were convicted together of the same offences and although the arguments which have been deployed by the Secretary of State in attacking the Adjudicator's determination are essentially identical, their cases were not exactly the same as presented to the Adjudicator. Liang asserted a number of points personal to him which he said counted against his deportation. But the Adjudicator rejected his evidence on all those points and, following the ruling which we have set out earlier in this determination, they were not pursued before us. For that reason, the cases of Liang and Chen are substantially the same so far as concerns this reconsideration.
- Like Miss Lingard, Mr Hollingworth was invited to consider the risk that the Appellants would be treated in breach of Article 3 either by re-prosecution or other ill-treatment on their return to China as a result of their activities in this country. Unlike Miss Lingard, Mr Hollingworth came to the conclusion that the case of the Appellants before him was well-founded. The Secretary of State's appeal to the Immigration Appeal Tribunal is on the ground that those conclusions are speculative, contradictory and unsupported by the evidence. We will set out the material parts of the grounds.
"2. In paragraph 46, he asserts that,
'I do not find the Chinese Authorities would regard the return of the Appellants having served rather less than the minimum ten years prescribed by Chinese law as a satisfactory example of punishment carried out to uphold Chinese law …'
It is submitted that without any evidence that double jeopardy or re-prosecution has ever occurred in this type of case, (WC  UKIAT 00253, paragraph 19), the conclusions are pure speculation as to the attitude of the Chinese Authorities. The mere fact that there have been general human rights abuses in China does not support the bare assertion that there is a serious possibility, or real risk that such ill-treatment will occur in this particular case.
3. In paragraph 45, the Adjudicator notes background material that:
'… if a crime is punished elsewhere the sentence given elsewhere will be repeated or enhanced by a sentence to be served or carried out in China if [emphasis added] the Chinese authorities regard the matter as one affecting its maintenance of effective control or its reputation to take the view that insufficient punishment has been handed down in the first sentencing exercise.'
In citing such material, the Adjudicator appears to accept that the Chinese authorities would only invoke the concept of re-prosecution in cases where it is considered that the state in which they served their sentence initially imposed too lenient a sentence. However, the Adjudicator goes on to assert, in paragraph 48, that:
'The motivation for such extrajudicial action would spring from the fact that the sentence of fifteen years imposed in the United Kingdom places the offence in a bracket substantially above the ten year period referred to as the minimum in the Chinese code.'
It is submitted that in accepted that double punishment is only carried out in cases where too lenient a sentence has been imposed and then going on to assert that the sentence in the United Kingdom was substantially above the minimum provided by Article 239 of the Chinese Penal Code, (paragraph 40 refers), the Adjudicator's findings that there is a real risk of double punishment in this case are contradictory based on the evidence he has accepted and the findings are therefore fundamentally flawed.
4. The Adjudicator alludes to the fact that the Appellant has served rather less than the minimum ten years prescribed by Chinese law and as such concludes that the authorities would seek to re-prosecute. However, it is submitted that the Adjudicator failed to refer to any objective evidence to suggest that the concept of parole for good behaviour would not be recognised as legitimate by the Chinese authorities for the purposes of the provision. It is submitted that the very fact that a fifteen year sentence was handed down indicates that such a sentence would be regarded as sufficient under the Chinese Penal Code as per the Appellant's own evidence placed before the Adjudicator, (paragraph 39). It is submitted that a proper analysis of the objective evidence before him would have led to the conclusion that there is not a real risk to the required standard that re-prosecution would occur in this particular case.
5. The Adjudicator accepts the high profile nature of this case and the fact that it involved co-operation between the British and Chinese authorities would result in a real risk of ill-treatment if the Appellant were to return. In paragraph 47, he uses such co-operation to justify the conclusions that the ideological provision is satisfied so as to invoke re-prosecution. However, if the Adjudicator is trying to assert that the Chinese authorities are concerned as to their reputation abroad and that this case attained an international profile then it does not follow that the Chinese authorities would be willing to risk their reputation further by subjecting the Appellant to ill-treatment contrary to Article 3. It is submitted that the high profile nature of the case suggests the authorities are more likely to adhere to international standards in dealing with the Appellant so as to maintain the reputation to which the Adjudicator alludes, yet he fails to consider this at all. As such his speculative findings appear somewhat contradictory.
6. It is submitted that the Adjudicator has erred in law by failing to place any weight on the fact that one of the kidnappers voluntarily returned to China, as indicative of the lack of real risk. In paragraph 40, the Adjudicator cites submissions made by the Presenting Officer that one of the gang members had served his sentence and subsequently written to the Home Office requesting to be returned. This evidence was not disputed. It was noted that no evidence had been submitted to suggest he had come to any harm at all. Given that the Appellant was closely connected through his crime with the returnee, if he genuinely perceived there to be a risk, why did he not try to obtain information as to the circumstances of his return. The Adjudicator fails to consider these submissions and as such has erred in law. This constitutes a material error because the lack of any evidence of re-prosecution cases, (WC  UKIAT 00253, paragraph 19), and the fact that a person in precisely the same circumstances as the Appellant has returned, without even lodging an appeal, ought to have been properly considered.
7. In the alternative, even if there were a real risk of re-prosecution, (which is not accepted for the reasons cited above), then the Adjudicator has erred in law by failing to take into account the findings in TC  UKIAT 00138, which was before him and referred to during oral submissions, (paragraph 40, page 32). In that case the Tribunal found that whilst prison conditions were harsh this was insufficient to amount to a breach of Article 3, given the very high threshold required. Given the nature and the gravity of the crime committed it is submitted that even if re-prosecution was invoked and the Appellant served, for example, 3 more years, this would not be sufficient to reach the very high threshold to constitute treatment contrary to Article 3. This is submitted bearing in mind that the Adjudicator declined to make any findings as to physical and moral integrity under Article 8, (paragraph 53).
8. In citing objective material to support his conclusions, the Adjudicator notes the use of torture to coerce confessions. It is submitted that this is not relevant as the Appellant has been sentenced and admitted guilt. He notes that police targeted dissidents and politically motivated disappearances occurred. This is irrelevant given that the Appellant does not claim to have had any political profile or involvement. He notes lengthy pre-trial detention, but once again there would be little need for a trial as the facts of the case have already been before a competent court and the Appellatn was found guilty. He fails to quote any objective material to suggest that a criminal simply serving his sentence would be subjected to treatment contrary to Article 3. TC would appear to suggest otherwise. It is submitted that the fact that ill-treatment does occur in some cases does not support the conclusions that in this case there is a real risk that the Appellant would suffer such treatment.
9. The Adjudicator appears to place undue weight upon the possibility that the two accomplices in China were executed despite the difficulties regarding translations of various newspaper articles, (paragraph 36), and the lack of any corroborative material from an authoritative source, to reach the conclusion that there is a real risk that the Appellant may be executed on return. It is submitted that no efforts appear to have been made by the Appellant or his solicitors to enquire as to the fate of these men through organisations such as Amnesty International despite the length of time elapsed. It is submitted that since the burden is on the Appellant it is surprising that such enquiries have not at the very least been attempted given the high profile nature of this case.
10. Additionally, there was no evidence before the Adjudicator as to the relevant provisions of the Chinese Penal Code at the time of their alleged execution, nor were there any dates provided on material relating to Chinese law before the Adjudicator so as to ascertain whether such relevant provisions were in force at the time, some 8 years ago. If the rule of law is invoked on the basis of the provisions provided by the Appellant, this does not provide for the death penalty, but this is not to say that such provisions were in force in 1997. It is submitted that with such points in mind the Adjudicator's assertion that the Appellant is likely to face execution on account of what happened to his accomplices is speculative and as such unreliable. The circumstances are clearly different, the Appellant have been sentenced and imprisoned in the United Kingdom."
- In a somewhat diffuse determination, it is not always entirely clear on what basis the Adjudicator reached the conclusions he did reach. Reading the determination as a whole, however, we have no doubt that he had very careful regard to all the evidence which was before him. Further, in reaching his conclusion, it is evident that he carefully discriminated between evidence that he thought was credible and applied to the issues before him and evidence which he thought was either not sufficiently credible or irrelevant.
- When he reached his conclusion that these Appellants would be at risk of ill-treatment on return to China despite (or because or perhaps because of) the sentences they had served here, he did so on a number of alternative bases and it follows from that, that unless every one of those basis is vitiated by error of law, any error that there is would not be material. The bases were these. First, he concluded that the Chinese might take the view that these serious offences merited further punishment than the Appellants had already suffered in this country. Secondly, the fact that these offences had attracted some measure of international interest might itself justify further punishment in China either by way of supplement to the original conviction and sentence, or for the additional reason of having brought China into disrepute abroad. Thirdly, the Adjudicator concluded on the evidence before him that any punishment for the preceding two reasons or for any other reason might well be applied extra-judicially and that there was a real risk that the Appellants would suffer punishment contrary to or outside any detectible expression of the rule of law in China.
- The issue of re-prosecution or, as it is sometimes termed "double jeopardy", was argued in some detail before the Adjudicator and before us. It is asserted on behalf of these Appellants, as it has been asserted on behalf of other appellants, that re-prosecution is contrary to customary international law and to a number of international Conventions. Whether re-prosecution would, if it took place, be a breach of Article 3 or of any other Convention principle binding on this Tribunal is, of course, a different matter. The Adjudicator was referred to the decision of the Tribunal to which reference is made in the Secretary of State's grounds, WC. That was a decision of the Immigration Appeal Tribunal published on 15 September 2004. In it, the Tribunal considered and evaluated the risk of re-prosecution faced by the particular appellant before it, who had been convicted of kidnapping, false imprisonment and blackmail, offences committed in the United Kingdom in an attempt to raise money to repay loans to Chinese Snakeheads. The Tribunal examined in some detail the particular instances of re-prosecution or possible re-prosecution that had been the subject of reference in the evidence from three separate experts, as well as the experts' general conclusions that re-prosecution was a real possibility. The Tribunal concluded that the evidence was too insubstantial to say that the Adjudicator had erred in finding, on the evidence before him, that the risk did not exist. That conclusion is expressed in the following terms:
"50. In our judgment, a close examination of all the cases cited does not bear out that the Chinese authorities do enforce re-prosecutions and double punishment in the context of offences only committed abroad."
- The last three words of that sentence may be of some importance. The Tribunal recognised (at paragraph 53) the possibility of extra-judicial punishment by official detention, but concluded that there was no evidence that it would be applied to the appellant before it. At paragraphs 32 to 39, the Tribunal examined the question of whether, if re-prosecution took place, there would be a breach of Article 3. The conclusion was that there would be.
- In the case of the first and third Appellants before us, the Adjudicator was clearly aware of WC. His most substantial treatment of the case is at paragraphs 43 to 45 (pages 34 to 36) of his determination: he returns to it in the context of extra-judicial activity at paragraph 51 (page 40).
- The Adjudicator's analysis of the evidence leading to the decision in WC persuaded him that the case of the Appellants before him was rather different, for two reasons. The first was that, because of the link with criminal gangs in China itself who were involved in the conspiracy with the Appellants, the Appellants' offences could not be regarded as having been "wholly committed abroad". Secondly, the Adjudicator concluded that in the case of these Appellants there was a real risk of their conduct as being seen as bringing China into disrepute.
- In our view, it cannot be said that the Adjudicator's line of reasoning was not open to him. He reminded himself of the particular details of the cases to which reference had been made in WC and the reasons why the Tribunal had not found them persuasive in that case. His differentiation of those cases and WC from the case before him appears to us to be entirely accurate.
- Having decided that he ought not to treat the conclusions in WC on the re-prosecution of that appellant as operative in the present case, the Adjudicator drew his view from the general evidence that re-prosecution is permitted by Chinese criminal law and that it is thought to happen in some cases. Whether his final conclusion drew more from the existence from the risk as part of the Chinese penal system or drew more from the apparent lack of any reported incidences was solely a matter for him. Despite Mr Hollings-Tennant's earnest submissions, we are entirely unpersuaded that he was not entitled to reach the view that he did reach on the evidence before him. It may well be that other Adjudicators would have reached a different conclusion: but Mr Hollings-Tennant's conclusions that the first and third Appellants were at risk of re-prosecution either because of the Chinese element of their offence or because they had brought China into disrepute (or both) displays no error of law and must stand.
- So far as concerns the question whether any re-prosecution would amount to a breach of Article 3, the Secretary of State's grounds are without substance. Although, as the Secretary of State's grounds of appeal to the Tribunal point out, the Tribunal in TC held that, in general, expulsion to a risk of imprisonment in China does not amount to a breach of Article 3, in WC (on which for other purposes the Secretary of State relied) the Tribunal took to the view that in a re-prosecution case, especially if there were an element of prosecution for bringing China into disrepute, the risk was of a breach of Article 3.
- As we have indicated, the Adjudicator also and alternatively based his conclusions on the possibility of extra-judicial action against the Appellants. He referred to elements in the objective evidence before him indicating that political pressure might cause the Appellants to be subject to punitive treatment outside the Penal Code. That part of the Adjudicator's determination is not the subject of any specific grounds of appeal and no appeal against it is implicit in any of the grounds. In any event, like the Adjudicator's other conclusions, it is one which could properly be reached on the evidence before him.
- The remaining parts of the Secretary of State's grounds relate to more detailed matters of fact. It is argued that the Adjudicator placed too much weight on the Appellants' allegations that two of their co-conspirators had been executed in China, although the evidence was somewhat vague; and placed too little weight on the fact that one of his co-conspirators had returned voluntarily to China and was not reported to have been executed. It is also argued that the Adjudicator had no clear evidence of the provisions of the Chinese Penal Code at various different dates.
- In the context of the case as a whole, we regard these points as without significance. Again, it is true to say that they might have led a different Adjudicator to come to a different conclusion: but we cannot say that they show that this Adjudicator erred in law.
- For the foregoing reasons, we order that in the case of the first and third Appellants the Adjudicator's determination shall stand.
- We turn now to some general issues arising from the combination of these three appeals and that of WC. The hearing in WC was on 24 February 2004. Further evidence was adduced after the hearing, with the permission of the Tribunal and the determination was not notified until 15 September 2004. Thus the hearing was before, and the determination after, the second Appellant's appeal was heard by the Adjudicator. She could not have taken any account of the Tribunal's decision in WC because it was not available at the time she made her determination. WC was, however, available to the Adjudicator when he decided the appeals of the first and third Appellants. As it happens, the Adjudicator's conclusion on the second Appellant was that he was not at risk, which might be thought to be in line with WC; but the Adjudicator's conclusion on the first and third Appellants was that they were at risk, in reaching which conclusion he differentiated WC.
- The wider position is, however, that the criminal history of all three Appellants in this country is identical and their cases are largely identical. Their appeals were founded on very similar evidence and arguments. The evidence persuaded one Adjudicator, who heard two appeals: it did not persuade the other Adjudicator who heard one appeal. Between the two hearings there had been a decision of the Immigration Appeal Tribunal, following a hearing at which there had been a particular effort to consider a wide variety of evidence and submissions from experienced counsel, but that decision had no perceptible effect on the outcome of the appeals which followed it.
- WC is not marked as Country Guidance. Even if it had been, its conclusions are expressed in the way we have indicated and the Adjudicator was entitled to decide that they did not apply to this case. No general concern can properly be thought to arise from the fact that the appeals of the first and third Appellants, decided after WC, differ in the result from that which might have been expected from inattentive reading of WC.
- It might nevertheless be thought a matter of some concern that apparently identical cases can result in different decisions. We might in other circumstances share that concern: but following the commencement of the appeals provisions of the 2002 Act, the task of the Immigration Appeal Tribunal was, and our task is, limited to the identification and correction of errors of law. That two judges reach different conclusions on the same material does not mean that either of them errs in law. Provided that both of them have done their tasks according to law, there is no basis for setting either of their judgments aside in a jurisdiction confined as ours is. Inconsistency of final result is an inevitable consequence of a large jurisdiction with no power to review findings of fact, and is likely to be an even greater feature of a jurisdiction such as this Tribunal within which there is, strictly speaking, no right of appeal.
- Nor does the mere fact that there is a reported decision on apparently similar evidence, reaching an apparently different conclusion, show that the Adjudicator or Immigration Judge erred in law. Cases designed as "Country Guidance" must be followed in their conclusions, in order to promote consistency of decision-making as far as that can be lawfully done. Other reported cases cited to the Tribunal must have account taken properly of them. But, again, as long as the Immigration Judge has performed his task properly, it will not be subject to appeal on the basis of the result alone.
- Nor, we should emphasise, does the fact that different judges have reached different conclusions on the same evidence mean that (given the low standard of proof) any subsequent appellant ought to succeed on the ground that one or more other Immigration Judge has assessed the evidence in question as establishing a risk. On past experience, we anticipate that R v IAT ex parte Demisa CO/1107/96 (17 July 1996) as reported at Legal Action 27 (March 1997) might be cited as establishing that or a similar proposition. Anyone tempted to that argument might like to look at the transcript of Laws J's words, which will show that he did not accept the submission made to him in that form. For some reason, Legal Action chose to report counsel's submissions rather than the judge's words. The fact that opinions on the assessment of the evidence may differ cannot of itself mean that by adducing that evidence the appellant has discharged the burden of proof.
- For the reasons given earlier in this determination, we order that the decision of Miss Lingard dismissing the appeal of Tang and the decision of Mr Hollingworth allowing the appeals of Liang and Chen shall stand.
C M G OCKELTON
Date: 1 December 05
The ruling and decisions in this determination were given at the hearing on 9 August 2005. Because of mechanical failure, it has been necessary to rewrite them. This determination is to precisely the same effect as the oral decisions.
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