Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03386/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 28th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

PFL
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Ell, Counsel, instructed by Adonai Beulah Solicitors
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Sharkett made following a hearing at Manchester on 10th August 2016.
2. The appellant is a citizen of China born on 26th July 1969. He arrived in the UK on 13th February 2000 and claimed asylum three days later. He was refused on non- compliance grounds because he had absconded. He submitted further information on 9th July 2015 and was refused again on 20th November 2015.
3. The appellant's claim was based upon having organised a rally in April 1999 in Beijing on behalf of the Falon Gong movement. He had been detained previously in August 1989 as a result of the events in Tiananmen Square and feared being detained again following a visit to his home by the police in August 1999.
4. In his Statement of Additional Grounds the appellant said that he had a brother and sister living in the UK, both British citizens, and they were very close to each other.
5. The judge rejected the appellant's account of the events leading to his leaving China in its entirety. She also rejected the appellant's claim that he had siblings in the UK. So far as the practice of Falon Gong is concerned, she wrote as follows:
"In respect of his practice as a Falon Gong I accept that he has perhaps had some interest in this practice. However the fact that the appellant says in his witness statement that there is no Falon Gong movement in the UK is a clear indication of his lack of commitment to the practice when the objective evidence shows a wealth of activity in the movement in the UK. If the appellant practises Falon Gong at all, it is practised at such a discrete and private level that even his brother-in-law, with whom he purports to live, is unaware of anything more than him doing some exercises and chanting prayers behind closed doors.
I find that if the appellant does practice Falon Gong he is one who practices his faith in private, and that he is discreet about his practice with others. Therefore in accordance with the current country guidance, he will not be at risk on return to China and he will not need to modify his behaviour to such an extent that it engages the principles outlined in HJ (Iran) in order to avoid risk."
The Grounds of Application
6. The grounds make no complaint with the judge's credibility findings. However, it was submitted that the judge had materially erred when assessing the appellant's Falon Gong activities and she should have considered what the appellant would do on return to China. If he would practice Falon Gong discreetly the question arises why he would do so. In his witness statement the appellant said that he was ill-treated in China. It could therefore be concluded that the appellant would practice his faith discreetly because he fears persecution from the authorities if he were to do so publicly, which brings his case within the principles of HJ (Iran).
7. Permission to appeal was granted by Judge Hodgkinson on 14th September 2016 for the reasons stated in the grounds.
8. On 30th September 2016 the respondent served a reply defending the determination.
Submissions
9. At the hearing Mr Ell confirmed that the determination was being challenged on the sole issue of whether the appellant would practice Falon Going discreetly on a return to China, and if so what the reasons for that discretion would be. He argued that the judge had not adequately addressed her mind to that question and submitted that the determination was incomplete.
10. Mr Harrison submitted that the judge had not made a finding that the appellant actual practised Falon Gong, but in any event this was a person who had been untruthful with the Tribunal from start to finish. The judge's conclusions should stand.
Findings and Conclusions
11. This is a very well reasoned, thorough determination. The judge properly set out all of the evidence and reached clear and sustainable conclusions.
12. It is simply wrong to say that she accepted that the appellant was a practitioner of Falon Gong. She merely said that he had some interest. However she quite rightly highlighted the fact that, at present the appellant is practising at such a discrete level that his brother-in-law is unaware of his doing so. Moreover his contention that there was no Falon Gong movement in the UK clearly indicated a lack of commitment to the movement when there is a wealth of activity here.
13. The judge was perfectly entitled to conclude that the appellant, having practiced Falun Gong in the UK, where there was no risk, would behaviour no differently in China. She did all that was required of her.
14. The reference in the grounds to his having been ill-treated there is misconceived since the judge's unchallenged credibility findings are that he received no such ill-treatment.
15. The judge did not err in law.
Decision
16. The judge's decision stands. The appellant's appeal is dismissed.

Signed Date 19 December 2016

Deputy Upper Tribunal Judge Taylor