Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11084/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions and Reasons Promulgated
on 2nd August 2016
On 16th August 2016

Before

upper tribunal JUDGE MACLEMAN

Between

hei van nguyen
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate; Gray & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Vietnam, born on 1st June 1999. He has not asked for anonymity. For reasons explained in a letter dated 24th July 2015, the respondent refused his asylum claim, but granted leave until 1st December 2016.
2. The appellant appealed to the First-tier Tribunal against refusal of asylum. He claimed to be at risk:
i) from traffickers who put him to work in a cannabis factory in the UK;
ii) from loan sharks, from whom his father obtained money to finance their travel; and
iii) as a Catholic.
3. In his determination promulgated on 24th May 2016 Judge McGrade, in summary:
i) found the appellant not to be a credible witness;
ii) rejected the claim that he had been trafficked;
iii) rejected the claim of risk from loan sharks;
iv) found that even if there were any risk, the appellant could relocate within Vietnam;
v) noted that the appellant had not faced any adverse treatment on account of his Catholicism in Vietnam, and that nothing had been said to suggest that upon return he would engage in activities which might lead to him being targeted by the Vietnamese authorities;
vi) accepted objective evidence of real difficulties for Catholics in Vietnam, but found no information that the appellant intended to assume a prominent and more active role in the church; and
vii) dismissed the appeal.
The appellant's grounds of appeal and oral submissions.
4. Ground 1 is that the judge erred by taking into account statements allegedly made by the appellant to the British Transport Police, when the respondent failed to produce the interview record. MH (respondent's bundle: documents not provided) [2010] UKUT 1682 is cited.
5. Ground 2 is headed "failure to adequately consider evidence material to the outcome of the appeal when assessing credibility", and is broken down into several components, in summary:
i) an apparent discrepancy over how the appellant lost contact with his father is not, on reference to the evidence, a discrepancy at all;
ii) in noting an apparent conflict about the number of people with whom the appellant travelled, the judge failed to take account of the explanation in the appellant's statement;
iii) alternatively, no clear discrepancy is identified, and the evidence was consistent;
iv) in finding an apparent discrepancy or failure to explain why the appellant left social work accommodation, the judge overlooked that the appellant said he was told a social worker would come the following day, and when no social worker came, he left;
v) the judge says he has had the advantage of hearing the appellant's oral evidence, but failed to set out what it was and why it did not amount to a satisfactory explanation for discrepancies;
vi) the judge held it against the appellant that he was unsure whether he ever had a passport, but fell into procedural unfairness by failing to give him the opportunity to clarify. The appellant would have said that it was only on later explanation that he knew what a passport was;
vii) the judge failed to observe the basic nature of a screening interview, when only brief details are sought. Had the appellant been given the opportunity to explain, he would have said that further details were elicited only in further conversations with his guardian.
6. Ground 3 is that the judge erred in relation to the joint Presidential Guidance Note No 2 of 2010 on children and other vulnerable witnesses, failing to make allowances for the age and vulnerability of the appellant when considering discrepancies or other shortcomings in his evidence.
7. Ground 4 is that the judge failed to exercise anxious scrutiny in respect of the risk as a Catholic. The country information is that not only high level members are at risk and that Catholicism is seen as a threat to national security. The appellant would be at risk on religious grounds wherever he might relocate.
8. Mr Winter said that nothing of significance emerged from the number and gender of those accompanying the appellant when he travelled by lorry. The interview with the Transport Police had not been produced, although there was a legal obligation to do so. The appellant's accounts of how he and his father became separated could be read sensibly together and were not at variance. The explanation by the appellant in his statement might not have added a great deal, but it was nevertheless an error for the judge not to mention it. The decision contained no summary of what the appellant said in oral evidence. There were several points which had unfairly not been put to the appellant and to which he now offered a reply. Together with ground 3, based on the guidance, the effect was that there had been no proper assessment of credibility. That issue was material, because the judge had not dealt with sufficiency of protection, and had not properly resolved the case on the alternative of internal relocation. The case might in principle be answered (apart from Catholicism) by internal relocation, but the judge erred on that point also. There is presently no country guidance on the risk to Catholics in Vietnam. The skeleton argument on which the appellant relied in the First-tier Tribunal specified the evidence of difficulties for Catholics. In that evidence, no distinction was to be found based on level of activity in the church. It was therefore beside the point that the appellant had no significant profile within the church, the risk being to all level of participants.
The respondent's written response and oral submissions.
9. It was for the judge to consider the evidence before him and decide what weight to place upon it, including the statements allegedly made to British Transport Police, even without direct production of the interview records. If the appellant sought to challenge that account it would have been open to him to seek an adjournment and address the issue. It was open to the judge to rely on the appellant's evidence and to note inconsistencies, not for him to "descend into the arena and engage in cross-examination". The grounds amounted only to a continuing series of disagreements. The judge was fully aware of the appellant's minority (paragraph 24) and there was no evidence that he took an inappropriate approach. Serious inconsistencies emerged in the appellant's account, and the findings of the judge were available to him.
10. Further in response to ground 1, Mrs O'Brien said that MH was a case going particularly to the absence of bank documentation. While it might sometimes be unfair to rely indirectly on documents which were not produced, the present case was very different. The evidence emerging from the interview with British Transport Police was stated in the decision letter and was available for the appellant's response. He had not sought to contest what was said about that interview in the First-tier Tribunal, and had made no point there about non-production of the original interview record. It was too late to raise the issue only after his appeal was dismissed. There had been discrepancies, and the weight to be given to them was up to the judge.
11. On ground 2, there had been discrepancies. The weight to attach to them was a matter for the judge, short of irrationality, which was not and could not be averred. As to leaving social work accommodation, the judge's finding was to the effect that the appellant had not provided any sensible explanation. His narration of his departure did not amount to an explanation in any respect which might have helped his case. The judge was entitled to examine the appellant's evidence, and did not have to put every point of his analysis to the appellant for further comment.
12. On ground 3, there was nothing to suggest that the appellant had not taken full account of the appellant's age and vulnerability. A recital of the guidance note would have added nothing to the decision. The complaint was a matter of form rather than substance.
13. Ground 4 was based on a point not included in the grounds of appeal to the First-tier Tribunal, but to which great weight was now sought to be attached, based on the finding that the appellant is a Catholic. The judge's decision reflected the case as it had been put to him. It had not been argued on the basis of risk by being a Catholic alone. In any event the respondent's Operational Guidance Note, the first item produced by the appellant, was to the effect that there might be risk to those actively protesting about occupation of former Catholic properties, or against the regime. It did not suggest there was any risk, for example, to those who attended mass. The Catholic Church, while it has its difficulties with the regime, is officially registered. There was no error in the judge's conclusion that the appellant was not at risk simply as a Catholic.
14. Internal relocation was an answer to the claim. The issues the appellant raised about internal relocation were no more than general difficulties which might be faced by any young adult in Vietnam. Even if he had been found credible, his case would have failed.
The appellant's reply.
15. There was no reference to the guidance in the decision, and not even a sentence on the vulnerability of the appellant. The judge might have acknowledged that the appellant is a child, but he should have gone a step further. The religious aspect of the claim had been raised as a response to First-tier Tribunal directions, in advance of the hearing. It had been developed by the background evidence produced and the skeleton argument. It might amount to the proposition that all Catholics in Vietnam were at risk but the "flood gates" argument was irrelevant. The evidence had not been assessed to any real extent by the First-tier Tribunal. The appellant had been accepted as a Catholic, so the issue did not depend on credibility.
Conclusions.
16. In significant respects, the grounds attempt to improve the appellant's case with the benefit of hindsight.
17. The appellant made no argument in the First-tier Tribunal based on the absence of the original interview record with British Transport Police. The discrepancy was plainly before him on the materials produced by the respondent, so he had a reasonable opportunity to deal with it. There has been no substantial unfairness. Ground 1 takes a technical point too late, and discloses no error.
18. The appellant did not base any submission in the First-tier Tribunal on the Presidential Guidance Note. He does not cite any particular passage which ought to have been applied. His youth and possible vulnerability were central and obvious features of the case. I see no reason to think that an experienced judge might have failed to have these matters in mind when assessing the evidence, without recital of any mantra. That disposes of ground 3.
19. Ground 2 searches valiantly for error on the facts, and to elevate that into error of law. It may well be argued that there is not much difference between the appellant's two accounts of how he lost contact with his father, but it was for the judge to assess the evidence as a whole, taking account of such discrepancies and shortcomings as he found in it. All his points are rational. An experienced judge is well aware of the distinction between screening and substantial interviews. That distinction does not explain away why the appellant said at first that he did not know why his father wanted to leave Vietnam, but later gave another account.
20. Reading the determination fairly and as a whole, I seen no error in the overall adverse credibility conclusion.
21. On internal relocation, the grounds are only re-assertion and disagreement. Away from his home area in Vietnam, the appellant on return as a young adult would be at no greater disadvantage than any other such Vietnamese citizen making his own way in the world. The judge's decision on this point is brief, but it is not shown that any other decision might reasonably have been reached.
22. The remaining ground is whether the judge erred, as a matter of law, by finding that the appellant would not be at risk simply by being a Catholic.
23. The references made in the course of the hearing in the Upper Tribunal show a difficult relationship between the Church and the national authorities, with a perception of a threat to national security. There are reports of detentions for participation in peaceful vigils and in demonstrations at properties formerly owned by the Church, and of assault and intimidation by thugs instigated by the government against Catholics engaging in private study and worship at unregistered locations. The strongest example cited is in the respondent's OGN at paragraph 2.5.5, derived from a radio station's report in September 2013 of police having "fired multiple gunshots and lobbed grenades in front of a church and violently dispersed hundreds of Catholics demanding the release of two parishioners in a north central "province". Other reports relate to seizures of land and property from the church by local authorities. There are reports of general restriction on religious practice, but at the same time there is a system of registration with the government. Catholic practice plainly goes on within those restraints. I was referred to no evidence which might reasonably have been held to rise to the level of a general risk of persecution of all Catholics in Vietnam.
24. The judge noted that the background evidence did show real difficulties for Catholics in Vietnam. His brief summary at paragraph 21 of the background evidence is accurate. The evidence does not include explicit statements that risk does not extend to ordinary practitioners of no significant profile, not engaging in protests or in unregistered practices, but that is its obvious tenor. The judge's conclusion that there would be no risk to this appellant as a result of his Catholicism discloses no factual or legal error. Further scrutiny of the background evidence shows that he needed to say no more than he did.
25. The decision of the First-tier Tribunal shall stand.

15 August 2016
Upper Tribunal Judge Macleman