The decision

Heard at Field House

MT (No general restriction on departure) Vietnam [2004] UKIAT 00105
On 8 April 2004


Date Determination notified:

17 May 2004


Mr N H Goldstein – Vice President
Mr G H Getlevog






For the Appellant: Mr P Last – Counsel
For the Respondent: Ms A Holmes – Home Office Presenting Officer


1. The Appellant, a citizen of Vietnam, has been granted permission to appeal to the Tribunal against the Determination of an Adjudicator (Ms E B Herlihy) who dismissed his appeal on asylum and human rights grounds.

2. Permission to appeal was granted on the basis of whether there was country information that could lead to the conclusion that political motives would be attributed to those who had fled or attempted to flee Vietnam.

3. We have decided to dismiss this appeal.

4. The Appellant's account was that in 1978 he joined the Army and was sent to Kampuchea during the war.

5. Whilst fighting he claims to have become distressed at what he witnessed and as a result deserted and went into hiding in Hanoi for a period of approximately two years.

6. It is the Appellant's claim that in September 1980 he attempted to leave Vietnam but was caught and imprisoned for absconding without trial for three years. However he claims that in September 1983 he was released to a labour camp that was monitored by the police. He was unable to obtain a work permit and was supported by family members who were only allowed to see him occasionally.

7. The Appellant claims that in July 1984 he again attempted to escape, was arrested, that he was sentenced to six years' imprisonment. It was the Appellant's claim that he was imprisoned on the second occasion for attempting to leave Vietnam.

8. It was the Appellant's account that he was eventually released from prison in 1990 but was subject to a condition that he reported daily to the police station and he was not allowed to move to another area. He claimed that following his release he was treated like a criminal by the police and was not allowed a work permit and could not obtain any benefits. The police frequently questioned him because he had absconded from the Army. However the Appellant further claimed that he was harassed by the local Communist Party who did not allow him to work and restricted his movements and opportunity to find work.

9. The Appellant's parents now live in Canada. Significantly his wife and children remain in Vietnam.

10. The Appellant claimed that if he returned to Vietnam, he would receive a life sentence because the Communists governing the country considered he had betrayed them in attempting to leave the country. He maintained that the fact that he was kept under surveillance had forced him to leave Vietnam as he felt he could not live easily in the country.

11. It was the Appellant's account that he escaped from Vietnam in November 1998 and flew to Russia where he was placed in the back of a lorry and brought to the United Kingdom arriving here on 8 January 1999. Significantly the Appellant did not apply for asylum on arrival. Indeed he did not apply for asylum until eleven months later on 1 December 1999.

12. Mr Last relied on the Grounds of Appeal. They in turn made reference to an extract from "Case Law on the Refugee Convention" and more particularly to paragraph 4.29 that where illegal exit from a country was punished harshly, that reflected the reality that the exit was perceived by the State to be a political act. Mr Last maintained that he had drawn such extract to the Adjudicator's attention within his closing submissions.

13. Mr Last referred to the US State Department Report of 2002 which explained that during 2001, there were credible reports that non-uniformed security forces had crossed the border to try and capture and return those who had fled.

14. We were referred us to a New Zealand decision of the Refugee Status Appeals Authority in Re ZWD. This decision, he explained, set out a two-point test. For the sake of completeness we set out below the extract from the decision to which Mr Last referred:

"First, the country of origin must punish unauthorised exit or stay abroad in a harsh or oppressive manner. The Appellant may very well expect to suffer a penalty for breach of, say, a passport law but if that law is fairly administered and he faces the prospect of but reasonable penalties, the harm feared is not of sufficient gravity to warrant protection as a refugee". (The typed emphasis is ours.)

15. Mr Last submitted that insofar as this Appellant was concerned, the penalty that he had received for attempting to leave the country namely six years' imprisonment was not "a reasonable penalty".

16. Mr Last referred us to the US State Department Report released on 31 March 2003 which indeed was the extract quoted in ground 4 to which we have above referred.

17. We drew to Mr Last's attention however, that the extract from the State Department Report upon which he relied, had to be read in context including the preceding paragraph. It was clear to us that the Report was specifically referring to the situation in Vietnam as it related to the Montagnards a Christian group from the Central Highlands. The Report referred to the fact that in early 2001 over 1,000 Montagnards had fled to Cambodia following a crackdown by security forces. The crackdown had followed demonstrations complaining of appropriation of traditional lands, influx of ethnic Vietnamese into the central Highlands and religious discrimination. A tripartite agreement on the Montagnards' repatriation among the Governments of Vietnam and Cambodia and the UNHCR was abandoned by the UNHCR after Vietnam restricted access and attempted to intimidate and pressure Montagnards in the UNHCR camps to return.

18. It was in that context that the Report continued with the passage to which Mr Last had referred us as follows: -

"During the year, there were credible reports that non-uniformed security forces crossed the border to try to capture and return those who had fled." (The typed emphasis is ours.)

19. It was noteworthy that Mr Last acknowledged that the reference to "those who had fled" related specifically to the Montagnardes. He accepted that this Appellant was not a Montagnarde.

20. Mr Last produced further objective material which was not before the Adjudicator, namely a Human Rights Watch Press Release of December 2003 and to the following passage:

"Montagnarde Christians from the Central Highlands comprise a significant portion of people imprisoned in Vietnam for their religious or political views. Human Rights Watch has records of 124 Montagnardes who are currently serving prison terms of up to thirteen years for non-violent political activism, organising Christian gatherings, or for attempting to seek asylum in Cambodia. All of the arrests have taken place since February 2001, when thousands of Montagnardes peacefully marched on provincial capitals in the Highlands, launching a movement for return of ancestral lands and religious freedom."

21. Mr Last significantly accepted that the above passage, referred specifically to a situation as it related to the Montagnardes in the Central Highlands. He submitted that it was evidence that Vietnamese citizens were being sentenced to lengthy prison terms, in this case "thirteen years" for attempting to leave the country and seek asylum.

22. It was however apparent to us that the passage upon which Mr Last further relied, specifically related to the Montagnardes and that the 13 year prison sentence imposed encompassed other matters including charges of non-violent political activism and organising Christian gatherings. There was no evidence that leaving the country and attempting to seek asylum elsewhere was the central reason for the length of sentence imposed.

23. We agree with Ms Holmes that the evidence upon which Mr Last relied specifically related to the Montagnardes and it was not helpful to make comparisons with their situation and that of, for example, this particular Appellant.

24. We were persuaded by Ms Holmes' submission that there was "absolutely no evidence that that would be the case".

25. With respect to Mr Last, his submissions as regards the Adjudicator's findings, demonstrate a misunderstanding of important elements of both the Appellant's account and the Adjudicator's conclusions. Contrary to Mr Last's initial belief, the Adjudicator did not find that in September 1980 the Appellant had been imprisoned without trial for attempting to leave Vietnam. Indeed this was not the Appellant's account. He was clear that he was imprisoned for absconding from the Army and further at paragraph 37 of her Determination the Adjudicator similarly accepted that the Appellant was initially imprisoned "for absconding from the Army in 1980" for three years.

26. Mr Last further relied upon the evidence which he understood the Adjudicator to have accepted, that following the Appellant's release in 1983, he had been sent to a camp and his movements monitored by the authorities. In fact it was the Appellant's account as recorded by the Adjudicator at paragraph 20 of her Determination that it was not the Appellant specifically who was monitored, but that the labour camp to which he was released was monitored by the police.

27. It is apparent from paragraph 38 of the Adjudicator's Determination, that she believed the Appellant's account of his attempt to leave Vietnam in 1984 and she further believed that the Appellant had spent a further period of time in prison after 1984 (the Determination by way of a typographical error refers to 1994) but the Adjudicator did not believe this was for attempting to leave Vietnam.

28. Mr Last submitted that the Adjudicator had failed to give reasons for such a conclusion. We do not agree. Mr Last initially maintained that the Adjudicator only gave one reason for disbelieving this aspect of the Appellant's account, namely that she did not accept that the Appellant would have been imprisoned for a period of six years for attempting to leave the country because such sentence would have been unusually harsh.

29. With respect to Mr Last, such a conclusion formed only a part of the Adjudicator's reasoning. As the Adjudicator made clear, there was "no objective evidence that it is a criminal offence to attempt to leave Vietnam".

30. We find that the Adjudicator's findings were well reasoned and wholly sustainable in concluding that the Appellant was not imprisoned for attempting to leave the country. The Adjudicator rightly, did not seek to speculate as to the true reason for the Appellant's further detention.

31. In taking issue with the Adjudicator's failure to refer to the extract from "case law on the Refugee Convention" Mr Last has failed to appreciate that it was for the Adjudicator to decide what weight to attach to the evidence both factual and objective.

32. Indeed the Adjudicator made reference to the CIPU Country Report of April 2003 and noted that at paragraph 6.A.54 it was reported that it was possible for Vietnamese citizens to secure a passport within Vietnam and that a report of the Canadian IRB could not find any reports of passports being withheld to people who had fallen out of favour with the Government. Further at paragraphs 6.A.59 to 6.A.62 it was found that returnees had not suffered ill treatment.

33. The UNHCR had repeatedly stated that returned asylum seekers had not been prosecuted for exiting Vietnam and although there had been prosecutions, those were based on existing criminal charges that were outstanding in Vietnam before the refugees left the country.

34. The Adjudicator was entitled to conclude in such circumstances that the Appellant's profile was not such that he would be of interest to the authorities should he be returned to Vietnam. As she rightly noted this Appellant had not been involved in any unauthorised political or religious activities. The Adjudicator properly concluded in the circumstances that the Appellant had failed to bring himself within a Refugee Convention reason.

35. Further, and in support of her adverse credibility findings, the Adjudicator was entitled to take account of the Appellant's failure to seek asylum immediately upon arrival in the United Kingdom and that such application was not made until eleven months later.

36. The Adjudicator properly noted that the Appellant's parents and siblings appeared to have been able to leave Vietnam and settle in Canada which suggested that the Appellant was an economic migrant rather than a genuine refugee.

37. Mr Last referred us to a document produced by the Respondent, which is in effect a source document"6n", referred to in the CIPU Report. He noted that the subject matter related to Vietnamese Exit and Re-entry laws and whether one could get a passport notwithstanding that such a person had "fallen out of favour" with the Government.

38. Mr Last pointed out that as regards Vietnam's Passport Policy there were two categories of citizens "Ord inary" and "Politically-Problematic People (dissidents or dissent persons)".

39. As regards the latter category, Mr Last referred us to the extract which appeared at 2(b) as follows: -

"It is completely difficult for a dissident or dissent Vietnamese who are now living abroad to apply for a visa to go back to Vietnam. I know of some cases in which some Vietnamese political activists are allowed to go back to Vietnam. When inside Vietnam, they are closely watched everywhere they go and harassed many times by the police."

40. Mr Last was being somewhat selective with regard to this extract. It has to be read in its proper context with the preceding paragraph 2(a) that states as follows:

"The present Communist Government in Vietnam is eager to allow dissidents to go overseas and resettle there. It is less politically problematic for them if the dissidents live abroad. Therefore it depends more on the Canadian Government to accept these people live in Canada than on the Vietnamese Government to allow them to leave Vietnam. However these people have the same problems with graft and corruption as ordinary citizens in the passport issuing process. "

41. It was Mr Last's submission that here was evidence that there were some people subject to punishment and that given the lower standard of proof it was "not a quantum leap that someone who is defined, even according to CIPU sources, as a problem person, might be subject to the same."

42. We drew to Mr Last's attention that the category of "Politically-Problematic People" related to "dissidents or dissent persons" and to an earlier passage in the source document at 1(a) that states as follows:

"In recent years, the Communist Government of Vietnam has allowed Vietnamese citizens to go overseas for travel or personal purposes. It is quite easy to get a passport for ordinary citizens, or as popularly-termed Vietnamese, for 'no-problem' citizens (e.g. being not on the political security list)." (The typed emphasis is ours.)

43. It was noteworthy that Mr Last accepted that the Appellant was not a person on a "political security list" but he continued to maintain that the Appellant was "monitored following release".

44. We drew to Mr Last's attention that his understanding of the evidence in this regard was with all due respect to him, misconceived. We reminded him that the Appellant was released from his first detention in 1984 namely twenty years ago. The significant passage of time was not a factor that could be ignored. Further, we were not persuaded (whether it was the Appellant or the camp to which he had been sent following his release in September 1983 that was monitored) that by any stretch of the imagination could it now be said, almost twenty-one years later, that the Vietnamese authorities would now regard the Appellant as a "problem person".

45. We agree with Ms Holmes submission, that the Appellant could hardly be described as a political activist and that "on the scale of dissidents could but only be described as 'very small beer'". It was many years ago that the Appellant was a source of distress to the Vietnamese authorities.

46. Mr Last in response placed further reliance on the Human Rights Watch Report and continued to maintain that dissidents were put in prison. In this regard he referred us to a further passage from the Report namely its subheading which is in the form of a quotation from Brad Adams the Executive Director of the Asia Division of Human Rights Watch as follows: -

"Vietnam's already dismal human rights record has sunk to new depths this year. The Vietnamese Government has spent the year arresting and imprisoning dozens of Buddhists, political dissidents, cyber-dissidents and ethnic minority Christians."

47. Significantly, when we asked Mr Last if he could confirm that the Appellant fell into any of the above referred categories, he was unable to do so save to point out he would fit into such category "if he was someone who wanted to leave the country and was not allowed to".

48. We asked Mr Last if he could draw our attention to any evidence that people generally who wanted to leave the country were refused permission. Mr Last’s response that "the only evidence in that regard is about the Montagnardes ", was noteworthy.

49. For the above reasons we find that the objective material to which our attention has been drawn demonstrates that the grounds are misconceived.

50. We remind ourselves that the Adjudicator for wholly sustainable reasons properly concluded that the core elements of the Appellant's account were simply not credible. As she rightly noted at paragraph 49 of her Determination, the Appellant's profile was not such that he would be of interest to the authorities upon his return to Vietnam. He had not been involved in any unauthorised political or religious activities. He would be of no interest to the Vietnamese authorities upon return.

51. There is no proper basis upon which the Tribunal should reverse or set aside those findings. In the view of the Tribunal, they were findings and conclusions properly open to the Adjudicator on the evidence.

52. It follows that the appeal is dismissed.