Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01559/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17th January 2017
On 27th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

A.N.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Mottershaw of Counsel instructed by Halliday Reeves Law Firm
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Lloyd of the First-tier Tribunal (the FtT) promulgated on 1st July 2016.
2. The Appellant is a male Ethiopian citizen born 10th May 1990 who claimed asylum based upon his political opinion, and his involvement and support for the Oromo Liberation Front (OLF).
3. The application was refused on 22nd September 2015. The Respondent accepted that the Appellant is an Ethiopian of Oromo ethnicity. It was not accepted that the Appellant had been arrested in Ethiopia following attendance at a demonstration, nor was it accepted that he had been detained following his arrest.
4. The Appellant's appeal was heard by the FtT on 24th June 2016. The FtT did not find the Appellant had given a credible account in relation to his claimed activities in Ethiopia. The FtT did not accept that the Appellant was or was perceived to be an OLF supporter or sympathiser in Ethiopia.
5. The FtT accepted that the Appellant had been involved with the OLF in the UK in that he had attended meetings and some demonstrations. The FtT found that the Appellant's activities in supporting the OLF in the UK would not have come to the attention of the Ethiopian authorities, and therefore would not put him at risk if returned. The appeal was dismissed.
6. The Appellant applied for permission to appeal. In summary, it was firstly contended that the FtT had made unsafe credibility findings in relation to the Appellant's activities in Ethiopia and had failed to make a finding as to whether the Appellant's father had been detained as claimed.
7. Secondly, it was contended that the FtT had inadequately assessed the Appellant's activities in supporting the OLF in the UK. The Appellant had given evidence that at least one of the demonstrations that he had attended had been broadcast on TV, and that photographs of him at meetings and demonstrations could be accessed via Facebook. It was contended that there was background information at pages 35-36 of the Appellant's bundle which was relevant and which had not been considered by the FtT.
8. It was contended that the FtT had failed to have proper regard to a letter dated 12th May 2016 contained within the Appellant's bundle and written by the chairman of the OLF Committee in the UK.
9. Permission to appeal was initially refused by Judge Baker of the FtT. Following a renewed application, Upper Tribunal Judge Lindsley refused permission to appeal on the first ground, concluding that the FtT had given sufficient reasons for concluding that the Appellant was not a credible witness in relation to his claimed activities in Ethiopia, but granted permission on the second ground.
10. Judge Lindsley found it was arguable that the FtT had not given anxious scrutiny to the risks that might arise from the Appellant's activities in supporting the OLF in the UK, in the light of the evidence from the OLF chairman in the UK, the country guidance decision of MB (Ethiopia) CG [2007] UKAIT 30, and the background evidence regarding the Ethiopian government's monitoring and restrictions on social media.
11. Following the grant of permission, the Respondent submitted a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, contending in summary that the FtT had adequately addressed the Appellant's activities in the UK at paragraphs 41-50, and took into account the relevant country guidance case law, and did not err in finding that the Appellant's activities in the UK would not be in the public domain, and would not have come to the attention of the authorities in Ethiopia.
12. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.
The Oral Submissions
13. Ms Mottershaw relied upon the grounds contained within the application for permission to appeal, and submitted that the FtT had erred by failing to give anxious scrutiny to the Appellant's sur place activities in the UK.
14. It was submitted that there was evidence before the FtT that the Appellant supported the OLF in the UK, and had attended demonstrations. Ms Mottershaw submitted that the FtT had not taken into account the principles contained within BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC). Ms Mottershaw pointed out that the letter from the chairman of the OLF in the UK referred to the Appellant becoming a member of the OLF in the Manchester area, and attending members' meetings, as well as organising and attending public meetings.
15. I was asked to accept that the FtT had erred by failing to place weight upon the Appellant's evidence that photographs of him attending demonstrations and meetings could be found on Facebook, and there had been TV coverage of a demonstration that he had attended.
16. Ms Mottershaw pointed out that there was reference to some Facebook links in the letter from the chairman of the OLF in the UK.
17. It was further submitted that the FtT had erred by not taking into account that the Ethiopian government restricts access to social media, and there was background evidence to confirm this at pages 18, 22 and 35 of the Appellant's bundle, and reference at page 79 to bloggers being arrested. This therefore indicated that the Ethiopian government were aware of social media and Facebook.
18. Mr Diwnycz relied upon the rule 24 response. I was asked to note the absence of evidence that the Appellant's photographs appeared on Facebook. If that was the case, the Appellant should have produced that evidence to the FtT and did not do so. There was also an absence of any evidence to show that a demonstration the Appellant had attended had been broadcast on TV. The only evidence was the Appellant's assertion. Mr Diwnycz submitted that the FtT was not obliged to search for evidence, and it was the responsibility of the Appellant to place evidence before the FtT.
19. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
20. I do not find that the FtT materially erred in law in considering the Appellant's activities in support of the OLF in the UK for the following reasons.
21. The FtT accepted that the Appellant had provided photographs of himself attending meetings and demonstrations, but found that there was insufficient evidence to prove these photographs appeared on Facebook. It is accepted on behalf of the Appellant that no Facebook entries were provided. In appeals such as this there is a low standard of proof, but the burden of proof rests on the Appellant. The Appellant did not produce evidence that he appeared on Facebook supporting the OLF, and the FtT did not err in considering his evidence.
22. Equally, the Appellant did not produce evidence that a demonstration he had attended had been broadcast on TV. The FtT did not err at paragraph 42 in noting that no evidence had been submitted to prove that there was TV coverage, nor the extent of any coverage.
23. Background material referred to in the Appellant's bundle does indicate that the Ethiopian government restricts access to social media. There was no satisfactory evidence before the FtT to show to what extent the Ethiopian government monitored the activities of Ethiopian nationals in the UK. The guidance in BA (Iran) CG, indicates that relevant factors to be taken into account relate to the nature of sur place activity, the identification risk, factors triggering inquiry/action on return, consequences of identification, and identification risk on return. Evidence in relation to those factors must be provided by the Appellant, if it is contended he would be at risk from sur place activity. That evidence was lacking in this case.
24. The FtT did not ignore the background evidence, but concluded, without error, that the background evidence did not assist the Appellant's claim.
25. The FtT specifically considered the country guidance decision MB (Ethiopia) CG and summarised this at paragraph 48.
26. The FtT took into account the letter from the chairman of the OLF in the UK, and accepted at paragraph 44 that the Appellant "has been involved in sur place activities in the UK with OLF".
27. The point that the FtT made in relation to those activities, was that the Appellant would not be at risk, as it had not been proved that the activities would come to the attention of the Ethiopian authorities. Weight to be attached to evidence is a matter for the FtT. It is not the case that the FtT ignored material evidence, or placed weight upon immaterial evidence.
28. The FtT was entitled, having considered all the evidence placed before it, to conclude that the Appellant's activities in support of the OLF in the UK would not have come to the attention of the authorities in Ethiopia. The Appellant failed to discharge the burden of proof, and the FtT did not err in law in reaching that conclusion. The FtT made findings open to it on the evidence, and gave sustainable and good reasons for those findings.
29. The grounds contained within the application for permission to appeal, display a disagreement with the conclusion reached by the FtT, but do not disclose an error of law.
Notice of Decision

The making of the decision of the FtT did not involve the making of an error on a point of law such that the decision must be set aside. I do not set aside the decision. The appeal is dismissed.

Anonymity

Because the appeal relates to a claim for international protection, I make an anonymity direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. 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 both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 22nd January 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. The appeal is dismissed. There is no fee award.

Signed Date 22nd January 2017

Deputy Upper Tribunal Judge M A Hall