Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01015/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 8 November 2016
On: 10 November 2013

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

van quang pham
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Harris, instructed by The Sethi Partnership Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a national of Vietnam born on 9 September 1990, entered the United Kingdom on 11 March 2014 with a Tier 4 General Student visa valid until 19 November 2014. He was granted further leave to remain on the same basis until 24 September 2015. On 17 September 2015 he made an appointment with the Asylum Intake Unit and claimed asylum on 24 September 2015. He was interviewed about his claim, which was then refused on 22 January 2016.
2. He appealed against that decision and his appeal was heard in the First-tier Tribunal on 12 July 2016 and dismissed. Following an unsuccessful application for permission to appeal to the Upper Tribunal, permission was granted in the Upper Tribunal on 5 October 2016.
The Appellant's Case
3. The appellant claims to have joined the Viet Youth for Democracy on 1 May 2009 and to have undertaken activities in Vietnam including distributing leaflets. He claims to have been arrested once on 2 June 2013 when attending a demonstration in Hanoi and to have been released after a day due to lack of evidence. He was questioned again a week later but not formally arrested. He came to the UK in March 2014 and began working for the Viet Youth for Democracy (VYD) UK branch, regularly attending demonstrations. In August 2015 his friend Hoan Ngoc Dang was arrested in Vietnam and, according to his (the appellant's) family, gave his name under interrogation, leading to an arrest warrant being issued against him (the appellant). His father was arrested and detained for a day in his absence. The appellant claims to have become more open with his activities in the UK since he came to know of the arrest warrant, and has been photographed at a demonstration outside the Vietnamese Embassy.
4. The respondent, in refusing the appellant's claim, did not accept that he was wanted by the Vietnamese authorities as a result of his membership of the Viet Youth for Democracy (VYD). The respondent noted that the appellant had submitted a letter of support from Harry Nguyen, the founder of the VYD in the UK, but that there was no proof of identity submitted with the letter. The respondent noted inconsistencies between the account given in the letter and the appellant's own account and accorded it little weight. The respondent considered that the appellant's failure to claim asylum on arrival in the UK undermined his credibility. It was not accepted that he would be at risk on return to Vietnam.
5. The appellant's appeal against that decision was heard by First-tier Tribunal Judge Bradshaw. The judge heard from the appellant and from his witness Harry Nguyen. She found the appellant's credibility to be damaged in several respects and she rejected his claim to be of adverse interest to the Vietnamese authorities.
6. Permission was sought on behalf of the appellant to appeal to the Upper Tribunal and was initially refused, but was subsequently granted on a renewed application on the grounds that the judge had arguably erred in her evaluation of the evidence. Upper Tribunal Judge Allen, in granting permission, considered it arguable that the judge had not given proper consideration to the expert evidence or the "decision to prosecute" document produced by the appellant.
Appeal Hearing
7. Both parties made submissions before me.
8. Ms Harris submitted that the judge had misunderstood the appellant's claim, as had the respondent, by considering that it was not a "sur place" case and by applying section 8 on the basis of the appellant's delay in claiming asylum. The appellant's claim had never been that he was at risk as a result of his activities in Vietnam prior to coming to the UK, as the extent of his activities was not known to the authorities at that time, but the risk arose as a result of him coming to the adverse attention of the Vietnamese authorities whilst he was in the UK, when his friend was arrested and gave his name. He made his claim for asylum shortly after that and there was therefore no delay and section 8 ought not to have been applied. Ms Harris submitted that the judge's error in considering Mr Nguyen to be the only representative of the VYD in the UK, showed a lack of anxious scrutiny of the evidence. There was no proper consideration of the expert evidence.
9. Mr Clarke submitted that the judge gave careful consideration to the expert evidence and was entitled to reject it for the reasons given. She gave proper reasons for rejecting the appellant's account of the arrest of his friend in Vietnam and identified a significant discrepancy in the documentary evidence. Mr Clarke addressed the grounds seeking permission and submitted that the judge had made well-reasoned findings on the evidence. With regard to the last ground referring to Article 8, Mr Clarke submitted that Article 8 was not pursued before the First-tier Tribunal.
Consideration and findings
10. Taking Mr Clarke's last point first, it is clear from the skeleton argument that Article 8 was not a ground pursued before the First-tier Tribunal Judge. Ms Harris quite properly did not pursue that ground as she accepted that she had not been present at the hearing before the First-tier Tribunal and had no information to suggest that Article 8 was argued. There is therefore no merit in the last of the appellant's grounds.
11. With regard to the other grounds seeking permission, I consider most to be largely nonsensical and I see little relevance to the issues before the First-tier Tribunal and the findings made by the Tribunal in the grounds referring to Chapter 1, section 14 of the Home Office IDIs and to paragraph 334 of the immigration rules. Ms Harris, again quite properly, did not specifically address those grounds but focussed on the more relevant matters and the matters upon which permission had been granted.
12. I do not, however, find any merit in Ms Harris' submissions in relation to internal relocation and section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The former reflected the grounds at [4] where it was asserted that the judge erred in considering internal relocation when the fear of persecution was from the Vietnamese authorities and would thus exist throughout the country. However it is plain that the judge's reference, at [10], to paragraph 339O of the immigration rules was by way of general background to the law and that it was not a matter upon which she made any findings, or indeed needed to make any findings given that she rejected in its entirety the appellant's claim to be of adverse interest to the Vietnamese authorities and to be at risk in his home area.
13. As to section 8, the judge's reference at [12] was, again, simply by way of background to the law, and it is plain that she did not take section 8 into account, or apply its provisions, when assessing the credibility of the appellant's account. It is also plain that she was perfectly aware that the appellant was not claiming to have been at risk at the time he came to the UK owing to past activities, but that the timing of his claim was related to the subsequent arrest of his friend and his name being given to the Vietnamese authorities. The fact that she made findings on the appellant's claim as to his past involvement and activities with the VYD in Vietnam and his involvement since coming to the UK, did not demonstrate a misunderstanding of the basis of his claim, as Ms Harris submitted, but was simply part of her overall assessment of credibility and risk on return.
14. As regards the judge's adverse findings on the merits of the appellant's claim, it seems to me those were cogently reasoned and were fully and properly made. The judge was perfectly entitled, at [31], to make the adverse findings that she did about the appellant's involvement with the VYD on the basis of his vague and limited knowledge. At [35] to [38] the judge identified various inconsistencies between the evidence of the appellant and his witness Mr Nguyen, some particularly significant, such as how many times they had met and the level of involvement of the appellant and his family in political activities. The grounds, at [7], refer to the judge failing to appreciate the explanations given by the appellant and Mr Nguyen before reaching her conclusion at [38] and [39], but, as Mr Clarke properly submitted, the grounds provide no information about what explanations these were, and again are somewhat nonsensical. For the reasons clearly and cogently given, the judge was perfectly entitled to conclude that Mr Nguyen had little awareness of the appellant's involvement in activities and to place the limited weight that she did upon his evidence. The fact that she may have erred at [20] in stating that Mr Nguyen was the UK's only representative (which in fact was taken from the record of the appellant's evidence at interview at question 97), is immaterial.
15. The grant of permission refers to the judge's consideration of the expert evidence and the "decision to prosecute" document and it was Ms Harris' submission that the judge wrongly rejected the expert evidence as being only assertions, at [53]. However it is clear that the judge gave detailed and careful consideration to the expert report and provided various cogent reasons for attaching the limited weight that she did to it. At [48] she found that the expert was considering risk on the basis of incidents relating to people of a different level of prominence to the appellant, at [49] that he had wrongly described the nature of the document relied upon by the appellant as an arrest warrant, and at [51] that he had been inconsistent in his opinion of whether the appellant would have come to the attention of the authorities. Ms Harris submitted that the reference by the expert to the document as an arrest warrant was not a reason to attach little weight to his report, as the document was technically an arrest warrant, albeit described as a "decision to prosecute" and that he had given proper reasons at [5.3.9] for considering it to be an authentic document. However, as Mr Clarke submitted, there were proper reasons why the document should not be regarded as reliable, as identified by the judge at [43] and [44]. The judge noted that the appellant's evidence was that the document was said to have resulted from the arrest of his friend on 18 August 2015 and to have been handed to his mother on 20 August 2015, yet it was dated after those events, on 25 August 2015. The judge was perfectly entitled to reject the document as unreliable on that basis and that, in turn, reflected on the weight to be given to the expert report and the credibility of the appellant's account of the arrest of his friend and the subsequent interest in him.
16. For all of these reasons I find no merit in the grounds and consider that the judge's decision was based upon a full and careful assessment of all the evidence and cogently reasoned findings on the evidence. The judge was perfectly entitled to place the limited weight that she did on the documentary evidence, the expert report, and the appellant's evidence and that of his witness and to conclude that the appellant's claim was not a credible one. She was entitled to conclude that he was never of any particular interest to the Vietnamese authorities and to reject his claim to have come to their attention as a result of his friend being arrested and giving his name. The conclusions reached by the judge were entirely open to her on the evidence before her. The appellant's grounds of appeal do not disclose any errors of law in her decision.

DECISION
17. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed Date

Upper Tribunal Judge Kebede