Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01635/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision Promulgated
On 6 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

XUAN HUYEN TRAN
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr K Katani, of Katani & Co, solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Heatherington promulgated on 24 November 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 8 November 1983 and is a national of Vietnam.

4. On 8 February 2016 the Secretary of State refused the Appellant’s protection claim.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Heatherington (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 1st February 2017 Upper Tribunal Judge Perkins gave permission to appeal stating inter alia

I give permission to appeal because I consider it reasonably arguable that the First-tier tribunal did not ask itself if the limited sur place activities that were established created a risk on return. It is at least arguable that an appellant’s motives are irrelevant and that if he is at risk then he needs protection.

The hearing

6. (a) Mr Katani, for the appellant, moved the grounds of appeal. He told me that he was no longer moving the second and fifth grounds of appeal, but was insisting on the remaining grounds. He told me that what is left of the grounds of appeal falls under two headings. The first is an appearance of bias, the second is a lack of consideration of sur place activities.

(b) Mr Katani told me that Grounds 1, 4 and 6 relate to perceived bias. He took me to the second sentence of [8.2] of the decision and told me that there, before considering the evidence, the Judge makes a statement which creates the impression of bias. He told me that having set out his position at [8.2], the Judge cannot approach the evidence in this case with an open mind. He relied on Alubankudi (Appearance of bias) [2015] UKUT 00542 & Elayi (fair hearing – appearance) [2016] UKUT 00508(IAC) and said that the language used by the Judge at [8.2] create a real possibility of giving the impression to a fair-minded reader that the Judge was approaching the evidence with preconceived ideas.

(c) Mr Katani moved onto the remaining grounds of appeal and told me that the Judge had failed to consider the appellant’s sur place claim properly. He told me that the Judge used language of opportunism and bad faith, which is irrelevant. He reminded me of the case of Danian v SSHD (2002) IMM AR 96, and told me that the Judge had failed to consider what risks is created to the appellant by his activities in the UK. He emphasised that risk on return is the relevant consideration and the motive is entirely irrelevant. He reminded me of the case of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC).

(d) Mr Katani told me that the decision is tainted by material errors of law. He urged me to allow the appeal and to set the decision aside.

7. (a) Mr Mullen, for the respondent, told me that the decision does not contain errors, material or otherwise. He took me to [8.2] of the decision which, he said, contains “a statement of the obvious”. He told me that the Judge’s language is not redolent of bias, instead the Judge is openly declaring the matters that he has to consider. He reminded me that what is said by the Judge at [8.2] must be considered against the Judge’s subsequent finding that the appellant is a practising Roman Catholic. He told me that what is determinative of this case as the Judge’s finding that there is no risk to the appellant on return to Vietnam

(b) Mr Mullen told me that the decision demonstrates that the Judge considered all of the evidence and made findings favourable to the appellant, so that there is no bias, perceived otherwise.

(c) Mr Mullen told me that the Judge carefully considered the appellant’s sur place claim and gave clear, adequate and complete reasons for rejecting the appellant’s claim. He took me to [8.15] where the Judge accepts that the appellant attended demonstrations in Glasgow and that there are photographs of the appellant at those demonstrations. He took me to [8.16] of the decision, where the Judge sets out detailed reasons for rejecting the appellant’s claim. He told me that the decision contains a careful consideration of every aspect of the appellant’s claim.

(d) Mr Mullen urged me to dismiss the appeal and allow the decision of the First-tier tribunal to stand.

Analysis

8. In Alubankudi (Appearance of bias) [2015] UKUT 00542 it was held that (i) One of the important elements of apparent bias is that the hypothetical fair minded observer is properly informed and possessed of all material facts; (ii) The interface between the judiciary and society is of greater importance nowadays than it has ever been. Judges must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multi-cultural society. Statements such as that made by the FtT Judge in this case that “the United Kingdom is not a retirement home for the rest of the world” had the potential to cause offence and should be avoided.

9. At [8.2] of the decision the Judge says

I shall first address the claim that the appellant is a Roman Catholic Christian. This requires careful assessment and analysis of the evidence that is presented. There is a risk that economic migrants claim asylum and use Christianity in an opportunistic manner to bolster their desire to enter or remain in the United Kingdom.

10. It might be better if the last sentence of [8.2] had not been written, but it is not an indication of bias. The decision must be read as a whole. [8.3] commences with

There is this support for the appellant’s claim of faith

A careful reading of the remainder of the decision demonstrates that the Judge carefully weighs each adminicle of evidence before coming to the conclusion that the appellant is a practising Roman Catholic.

11. What the Judge has done is declare that not everybody tells the truth, and then he goes on to carefully weigh the evidence to find that it indicates that the appellant tells the truth about his faith. A holistic reading of the entire determination would reassure the impartial fair-minded reader that the Judge does not take a biased approach.

12. In Singh [2016] EWCA Civ 492 it was held that a Judge did not act amiss if, in relation to some feature of a party’s case which struck him as inherently improbable, he indicated the need for unusually compelling evidence to persuade him of the fact. Such statements could positively assist the advocate or litigant in knowing where particular efforts might need to be pointed. There was no need to bar robust expression by a Judge so long as it was not indicative of a closed mind. Such expressions might be positively necessary to displace a presumption or misapprehension which was potentially highly material to the case. There could be no objection to the FtT Judge stating, at an early stage, that he disagreed with the argument that documentary evidence was of lesser importance in these kinds of appeal. That was a perfectly proper view for the Judge to hold and it was entirely appropriate for him so to say, with a view to avoiding any misapprehensions on the part of counsel in thereafter conducting the appeal to the Claimant’s best advantage.

13. Consideration of the appellant’s sur place claim can be found at [8.15] and [8.16] of the decision. Those paragraphs are prefaced by the findings at [14] that the appellant has not attracted the adverse attention of the authorities in Vietnam. Details of the appellant’s sur place activities are not contained in the appellant’s witness statement dated 22nd of April 2016. In submissions Mr Khatami told me that the appellant’s Internet activity had formed part of his sur place claim. On taking me to the appellant’s witness statement he agreed that all of the evidence of the appellant’s Internet activity related to activities in 2013 and 2014, before the appellant left Vietnam. On noticing that, Mr Khatami restricted his submission to the appellant’s claim to have been photographed at a demonstration in Glasgow.

14. The appellant does not mention sur place activities in his asylum interview, his screening interview or the witness statement that was placed before the First-tier. The only record of evidence of sur place activities is contained in the Judge’s determination. The Judge states at [8.15] that the appellant has provided photographs of his participation in demonstrations in Glasgow.

15. Paragraph 339P of the Immigration Rules states:

A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activates which have been engaged in by a person since he left he country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return.

16. In Danian v SSHD (2002) IMM AR 96 the Court of Appeal said that there is no express limitation in the Convention in relation to persons acting in bad faith, despite Counsel’s attempt in Danian to have one implied. In the court’s opinion the answer to the ‘riddle’ lay in the judgement of Millet J in Mbanza (1996) Imm AR 136. Millet J said

The solution does not lie in propounding some broad principle of abuse of the system….but in bearing in mind the cardinal principle that it is for the applicant to satisfy the SSHD that he has a well founded fear of persecution for a Convention reason. Whether he can do so will largely turn on credibility and an applicant who has put forward a fraudulent and baseless claim for asylum is unlikely to have much credibility left.

However, as Bingham J also said in Danian - the actual fear has to be shown to be genuine and not one that was manufactured by conduct designed to give plausibility.

17. As sur place activities have been raised, the Judge has to consider whether or not those activities create a risk on return, regardless of their motive. At [8.15] the Judge accepts that the appellant is visible at demonstrations at Glasgow. In the same paragraph of the decision the Judge finds that the appellant’s participation “was at a low level”. The Judge goes on to consider the appellant’s motive, but his finding at [8.15], that participation is at a low level, and then at [8.16], that the appellant is not within any category of persons at real risk of persecution or serious harm on return to Vietnam, addresses every aspect of the appellant’s case - including the sur place claim.

18. A fair reading of the decision demonstrates that the Judge took account of every aspect of the appellant’s case, including his sur place claim. The Judge took a holistic view of all of the evidence before reaching a conclusion which encompasses the sur place claim at [8.16] and [8.17]. At [8.17] the Judge finds that the appellant can safely return to Vietnam.

19. Having taken correct guidance in law and made sustainable findings of fact, the Judge reached his conclusion. It is not a conclusion that the appellant likes but it is a conclusion which was reasonably open to the Judge on the facts as he found them to be.
20. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

21. There is nothing wrong with the Judge’s fact finding exercise. In reality the appellant’s appeal amounts to little more than a disagreement with the way the Judge has applied the law to the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge’s fact finding exercise. The correct test in law has been applied. The decision does not contain a material error of law.
22. The Judge’s decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
23. No material errors of law have been established. The Judge’s decision stands.

DECISION
24. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date
Deputy Upper Tribunal Judge Doyle