Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02250/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9th September 2016
On 14th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

MR Nay Win Myint
(ANONYMITY not retained)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Johnrose
For the Respondent: Mr Harrison

DECISION AND REASONS

Introduction
1. The Appellant born on 30th September 1989 is a citizen of Burma. The Appellant had made application for asylum and this was refused by the Respondent on 25th January 2015. The Appellant had appealed that decision and his appeal was heard by First-tier Tribunal Judge Tobin sitting at Manchester on 15th October 2015. The judge had refused the Appellant's appeal on all grounds.
2. Application for permission to appeal was made on behalf of the Appellant. That application was refused by First-tier Tribunal Judge Adio on 25th November 2015. Application was renewed to the Upper Tribunal and on 8th December 2015 Deputy Upper Tribunal Judge Norton-Taylor gave permission. Although it was said that there was some merit in all the grounds in particular the judge noted that the Tribunal may have imposed a higher threshold as regards the profile required to be shown by the Appellant and was justified in the country guidance case of TS and that a particular paragraph which had some significance within the decision was unclear.
3. Directions were issued for the Upper Tribunal to firstly consider whether an error of law had been made in this case and the matter comes before me in accordance with those directions.
Submissions on behalf of the Appellant
4. Miss Johnrose submitted in terms of the Grounds of Appeal already issued. She said the judge had erred in isolating events in Burma and not looking at matters in the round when considering risk on return. She further submitted and this was central to the submissions that the judge appeared to indicate the Appellant needed to have a high profile to be at risk on return which she said was not the position on a reading of the country guidance case of TS. In particular she noted that the judge may only have looked at headnote 7 of TS and potentially ignored other headnotes that may have been of relevance in this case. She referred to the lack of clarity in paragraph 26 of the decision.
Submissions on behalf of the Respondent
5. Mr Harrison submitted the importance of considering TS the country guidance case in terms of the decisions reached by the judge.
6. At the conclusion of the hearing I reserved my decision to consider the submissions raised. I now provide that decision with my reasons.
Decision and Reasons
7. For ease of reference, the Appellant's activities broadly fell into three categories. Firstly there were the demonstrations the Appellant claimed to have attended whilst living in Burma. Secondly there were demonstrations the Appellant claimed to have participated in whilst in the UK and thirdly there were "journalistic" activities he had undertaken whilst in the UK.
8. It was necessary for the judge to have made findings on fact and credibility in respect of those areas of claimed activities and then to have applied the totality of the Appellant's credible activities to the question of risk on return having regard to the country guidance case of TS.
9. The judge had made findings in respect of the Appellant's political activities in Burma principally at paragraphs 23 to 24. He appeared to accept the Appellant's account that he had attended four demonstrations in Burma between June 2007 and March 2013. He did not make any adverse findings regarding the Appellant's account of those demonstrations. By reference back to the judge's summary of the Appellant's case at paragraph 5 that indicates the judge accepted:
(i) The Appellant had been stopped by security at the first demonstration in 2006 and his name and ID number taken.
(ii) In 2007 he had taken part in the Saffron demonstration, was arrested and detained for five days. He signed a form and a bribe was paid for his release.
(iii) Although he demonstrated in 2008 and 2013 he did not come to the attention of the authorities.
10. The judge had further noted at paragraph 23 that specifically in respect of demonstrations the Appellant accepted that he played no formal role in the opposition movement, was not a member of a political party and did not do anything to organise or promote opposition demonstrations.
11. The judge concluded at paragraph 24 that even by the Appellant's own account his political engagement against the regime was fairly minimal. He had also considered the Appellant's evidence of his "blogging" whilst in Burma. He concluded at paragraph 24 that those were unsubstantiated assertions, the Appellant had acknowledged that none of the blogs were traceable to him and that he had been able to leave Burma on a passport issued by the Burmese authorities in 2012. The judge had concluded therefore when looking at the Appellant's activities whilst in Burma that "it is just not credible to say that the Appellant's political activities in Burma were at such a level before he left that his return would bring him to the attention of the authorities". That was a finding based upon the evidence and findings of credibility made and were findings open to the judge.
12. The judge dealt with the Appellant's history of demonstrating whilst in the UK briefly at paragraph 25. He accepted the Appellant's account of attendance at those demonstrations and does not seek to challenge the number of demonstrations attended or circumstances as described by the Appellant. He concluded at paragraph 25 by finding the Appellant never led or organised a demonstration and that mere participation does not indicate a sufficiently high profile as to be of interest to the Burmese authorities. That is taken from one of the headnotes in the case of TS.
13. Finally in terms of the Appellant's claimed "journalistic" activities in the UK the judge dealt with that matter at paragraph 26. On first reading that paragraph is not the clearest of paragraphs. However a sensible reading of it makes clear the position adopted by the judge. He was dealing with the evidence emanating from a particular website. The Appellant's own evidence regarding this matter is at paragraph 23 of the Appellant's witness statement. It is clear the judge had considered the Appellant's evidence when viewed against the website. He found that the website was quite prolific, particularly in terms of political cartoons. He found no evidence the Appellant was a political cartoonist. He found that the Appellant's name was discernable on a small number of entries but they appear to be uncharacteristic of other entries or the content generally. The judge appeared to conclude that the curator of the website was more likely to be a leading or prominent anti-regime agitator who, by inference, used the medium of political cartoons as a central theme. He found no claim from the Appellant that the Appellant worked in that medium and also found the Appellant's limited political activity and level of involvement generally incompatible with the person one would expect to be the curator of such a site. For those reasons he by clear inference rejected the Appellant's claim to be the curator of that site. In summary he made an adverse credibility finding in respect of the Appellant's claimed journalistic activities as described at paragraph 23 of his own witness statement.
14. Finally the judge had also not found credible the Appellant's account of the authorities making enquiries at his family home (paragraph 27).
15. The judge gave an adequacy of reasons for reaching the findings that he did. In summary the following were found to be the case:
(i) The Appellant had attended four demonstrations in Burma between 2007 and 2013 and on one demonstration in 2008 he had been detained for five days and then released.
(ii) He had attended a number of demonstrations in the UK but neither led nor organised any of them.
(iii) He had put an occasional entry on a prolific website where his name was discernable but the entries were not characteristic of the mainstream of entries on that website. It is against that summary of findings the judge needed to consider whether the Appellant fell within the categories of risk outlined in TS.
16. TS suggests that any risk of detention brings with it a real risk of serious ill-treatment. Risk of detention exists where the authorities regard the individual to be a threat to the stability of the regime or Burmese Union. It depends upon a person's past and future political behaviour. TS suggests that a profile gained through being at demonstrations or political meetings will not for that reason alone be of sufficient concern to warrant detention, however a person who has a profile of voicing opposition can expect to be monitored.
17. The crucial part of TS in terms of the headlines in respect of this case is headnote 7 because that assesses whether monitoring would lead to detention and looks at the factors that could lead to that step being taken. The judge had specifically quoted from this aspect of TS.
18. Criticism was made of the judge's reference to profile and seemingly his belief that a high profile was needed. However TS clearly is referring to the level of profile of an individual when looking at risk. Ironically as TS notes at headnote 9 a highly prominent international profile reduces the risk of persecution significantly. Other headnotes in TS suggest the need to firstly distinguish if a person is of sufficient interest to warrant monitoring and then are they at risk of detention. The answer to those questions is case or fact sensitive and does require an assessment of what an individual has done and what of that is known to the authorities i.e. what profile does an individual have.
19. The judge at paragraph 28 made an assessment that the Appellant was not at particular risk of post-return monitoring. In terms, and by inference he rejects the notion the Appellant is at risk of detention. He does acknowledge at paragraph 30 that any detention can lead to a breach of Article 3 of the ECHR.
20. In conclusion the judge had adequately considered each aspect of the Appellant's case and made findings on fact and credibility. He had looked at matters in the round and he was clearly aware of the country guidance case of TS. He had specifically referenced the key headnote of TS at headnote 7 that was applicable in this case and had reached the conclusion upon risk on return that was open to him in a manner that does not disclose he erred in law.
Notice of Decision
21. There was no material error of law made by the judge and I uphold the decision of the First-tier Tribunal.
22. Anonymity not retained.

Signed Date 14th October 2016

Deputy Upper Tribunal Judge Lever

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 14th October 2016

Deputy Upper Tribunal Judge Lever