Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01261/2016

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 23rd January 2017
On: 25th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

ZE
(anonymity direction made)
Respondent

For the Appellant: Mr Bates, Senior Home Office Presenting Officer
For the Respondent: Mr Sharif, Fountain Solicitors

DETERMINATION AND REASONS
1. The Respondent is a national of Ethiopia born in 1997. On the 20th October 2016 the First-tier Tribunal allowed his appeal on protection grounds. The Secretary of State now has permission to appeal against that decision.
Anonymity Order
2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"
The Appeal
3. The Respondent had advanced an account of having been involved in opposition politics in Ethiopia, and to have attracted the adverse attention of the authorities as a result. This claim was comprehensively rejected by the First-tier Tribunal, which found his account to be vague, inconsistent and weakened by his failure to claim asylum in at least two safe countries before he reached the United Kingdom. The Tribunal rejected the claim that the Respondent had joined an opposition organisation.
4. The Tribunal did however accept that the Respondent had been on a boat carrying an estimated 800 migrants across the Mediterranean from Libya. This boat had sunk, with the loss of virtually all those on board, including the Respondent's brother. The BBC had interviewed the survivors, including the Respondent, and this had been broadcast. It was further accepted that the Respondent had, to a limited extent, been involved in political activities against the Ethiopian government since he arrived in the United Kingdom. He had attended a demonstration outside the Foreign Office in London, and at that event had been interviewed by 'ESAT', described as a media group organised by opposition groups. It was said that a film of this interview had been uploaded to YouTube. The Tribunal does not appear to have taken issue with the latter claim, but since the interview itself was neither translated nor transcribed, the contents of the interview was not evidence that the Tribunal was able to take into account. Having regard to the sur place claim the Tribunal said the following:
"127. I have found that the appellant does not have a political profile in Ethiopia. I do not know how, if the Ethiopian government had access to the ESAT recording, it would be able to identify the appellant. I refer again to my findings at paragraph 119 about the failure to disclose the claimed evidence until the hearing, and the failure to produce the claimed letter. I note the appellant's claim to have left Ethiopia illegally, not challenged by the respondent, but I have not been referred to any material concerning illegal exit, and consequences on return.
128. However, giving the appellant the benefit of the doubt, even though I consider that he has no political profile in Ethiopia, and that he has acted in bad faith in relation to his sur place activities, I am prepared to find that there is a risk that he will face persecution on return by voicing his opposition to the regime. I cannot be sure that it has not come to the attention of the Ethiopian authorities, and that he would not be recognised on return"
5. Any ambiguity about the nature of the finding at 128 is dispelled by the conclusion reached at 129: "I am satisfied on the evidence, for the reasons set out above, that there is a reasonable degree of likelihood that the appellant will be at risk of persecution on return because of his sur place activities". I therefore read the "by voicing his opposition" at 128 to be a reference to the voicing already done, in London, rather than voicing to come, in Addis. That reading is consistent with the overall findings of the Tribunal, to the effect that the Respondent has no genuine political convictions that have led him into opposition against the present regime in Ethiopia.
6. Mr Bates submitted before me that the findings at 128 are flawed. There was no evidential foundation upon which the Tribunal could base a finding of real risk. Absent any evidence, the Tribunal had applied too low a standard of proof.
7. Mr Rashid submitted that taken in the round, the findings of the Tribunal were sustainable. He pointed to the evidence recorded at paragraph 126, that the Ethiopian government had passed a 'dangerous cybercrime law' which criminalised an array of online activity. This demonstrated that the Government were interested in the activities of opposition activists and that the real risk was made out.
My Findings
8. What was the sur place activity that gave rise to the real risk of harm in this case?
9. Paragraphs 127 and 128 suggest that the focus for the Judge's concern was not the single attendance at a demonstration, but rather it was the film broadcast by ESAT. I say this because of the concluding phrase: "I cannot be sure that it has not come to the attention of the Ethiopian authorities?". This would appear to be a reference to that recording, since it is preceded, at 127, by: "I do not know if the Ethiopian government has access to the ESAT recording?". Mr Bates submits that the Tribunal had no business assessing risk on the basis of the interview since the evidence itself had been expressly excluded on the grounds that it was only available in Amharic and no translation had been provided. In fact, the view taken by the Tribunal does not appear to have been as clean cut as that. Paragraph 87 records a concession by the Appellant's representative that the Tribunal would not be able to take the contents of the interview into account, but the video clip also depicted the Appellant on the aforementioned demonstration at the foreign office, an image that needed no translation.
10. Having regard to that material, was the Tribunal entitled to conclude, on the lower standard of proof, that there was a real risk that the Ethiopian authorities would know about it, and persecute the Appellant as a result a) of his attendance at that one demonstration and/or b) his appearance on a video on YouTube apparently endorsing the protest?
11. The parties before me were unable to point to any relevant findings in any of the three relatively elderly country guidance cases (dating from 2011, 2007 and 2004) before the First-tier Tribunal. The November 2013 Operational Guidance Note did however offer some assistance. Paragraphs 3.18.13 - 3.18.15 record that the only internet service provider in Ethiopia is state run, and that this facilitates the government blocking of certain websites deemed to carry opposition content. The government has passed legislation enabling it to restrict internet access, including the blocking of broadcasts by international news outlets such as Al Jazeera and the Economist. Although not expressly mentioned in the determination, this is consistent with the information reported at paragraph 126, and published by the 'Electronic Frontier Foundation'. The OGN contains further evidence about surveillance. The US State Department, amongst others, is cited as confirming that there is harassment and intimidation of government critics, which includes "monitoring and interference" in the activities of opposition groups [at 3.16.7]. The OGN also contains reference to tapping of telephones [3.16.9]. Mr Rashid suggested, with I think some justification, that as a matter of logic, if the Ethiopian authorities are blocking certain websites, and specific content on others, it stands to reason that they have viewed the content themselves. This in itself would suggest some monitoring of opposition activities on the internet. This conclusion is supported by the following information at page 213 of the Respondent's bundle before the First-tier Tribunal:
"In 2013 Citizen Lab, a Canadian research centre at the University of Toronto, identified 25 countries, including Ethiopia, that hosted servers linked to FinFisher surveillance software. According to the report, 'FinFisher gained notoriety because it has been used in targeted attacks against human rights campaigners and opposition activists in countries with questionable human rights records'. A 'FinSpy' campaign in the country allegedly used pictures of Ginbot 7, an Ethiopian opposition group, as bait to infect users. In addition to its domestic activities, the government used 'FinSpy' to monitor the online activities of Ethiopians living abroad".
(my emphasis)
12. Having had regard to that evidence, all before the First-tier Tribunal, I conclude that it was entitled to conclude that there was a real risk that the video of the Respondent attending an opposition protest in London would come to the attention of the Ethiopian authorities.
13. As to whether that might be sufficient to present a real risk of harm, Mr Bates is correct to point to the absence of evidence as to the arrest and ill-treatment of opposition activists returning from abroad. It has however never been put in issue that the Ethiopian authorities have a dismal record on human rights and that the regime is growing ever more repressive. The November 2013 OGN cited the UN Committee Against Torture conclusion that torture against political opponents frequently occurs [for instance at 2.2.8] and is described by Amnesty International as "widespread". The repressive actions taken by the state are such that there are now "almost no domestic human rights organisations functioning" [at 2.2.14]. I am satisfied that against that clear picture of human rights violations against opposition activists, the Tribunal was entitled to conclude, to the lower standard, that the risk was made out.
14. It follows that I dismiss the Secretary of State's appeal. I should add that the decision of Judge Gladstone, based on the narrow premise that it was, finds further support in the latest country background information. In the Country Information and Guidance Note December 2016 'Ethiopia: Opposition to the Government' at 10.2.8 it is reported that on the 9th October 2016, only two days after this appeal was heard, the government of Ethiopia declared a state of emergency. Section 1 lists the prohibited activity. Article 1 (Communication Instigating Protest and Unrest) states that it is prohibited to share information on the internet, radio TV or social media that "will create misunderstanding between people or unrest". I am satisfied that the promotion of opposition activities in London would very likely be caught within this wide net.
Decisions
15. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside.
16. There is an order for anonymity.

Upper Tribunal Judge Bruce
23rd January 2017