Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02926/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 29th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

O A
(aNONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms O Taiwo, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant applies with permission to appeal against the decision of First-tier Tribunal Judge Miller who dismissed his appeal on the basis that he would be at no risk on return to Ethiopia. The appellant was born on 11th February 1998 and was just 18 at the date of the hearing before First-tier Tribunal Judge Miller. The appellant had claimed that his father was a member of the Oromo Liberation Front although in his asylum interview he stated "I speculate he supports the Oromo Liberation Front".
2. Permission to appeal was granted by UT Judge Plimmer. She extended time and stated that it was arguable that although the judge had directed herself to the applicable lower standard of proof, nonetheless failed to apply it properly and failed to consider the country guidance case law and OGN, the most up-to-date one found on the Home Office website was November 2013 on Ethiopia.
2. ?It is arguable that although it directed itself to the applicable lower standard of proof, the First-tier Tribunal (FTT) failed to properly apply it and also failed to consider the country guidance case-law and OGN (the most up to date one I can find on the HO website is Nov 2013) on Ethiopia. This states:
'3.15.14 Conclusion: The Tribunal in MB (Ethiopia) [2007] (CG) UKAIT 000300 found that OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers, will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement. So too will those who have a significant history, known to the authorities, of OLF membership or sympathy.
3.15.15 Consequently if it is accepted that a claimant has been involved in or is suspected of membership or sympathising with the OLF or ONLF and has previously come to the adverse attention of the authorities, then they are likely to be at risk of persecution and a grant of asylum will be appropriate".
3. In a previous application to the First-tier Tribunal for permission to appeal it was submitted that the judge's findings were at odds with the objective material to which the judge was specifically referred. It was submitted that the judge made no reference to the objective material contained therein, and failed to give any consideration to the appellant's knowledge of Oromo and Ethiopian politics so it was submitted that there was a substantial resonance between the appellant's account and the objective material.
4. That application was rejected by First-tier Tribunal Judge Landes on the basis that the judge had made a finding at 28(vii) and (viii) of the determination that the authorities had no interest in the appellant or his father as the appellant was released so quickly and that it is not clear whether the appellant's father escaped or was simply released. On the basis that they were released it was concluded that the authorities had no serious interest in them. Indeed the background material indicated that thousands of people were reported to have been arrested in the wake of the 2014 protests and many of those who were arrested were released after varying periods and the background material indicated that the authorities did indeed discriminate between those who were of continuing interest to them and those who were not.
5. In his application for permission to appeal to the Upper Tribunal, the appellant merely stated that the judge 'did not look properly into my case for example my father's active support of the Oromo Liberation Front OLF' and did not fully appreciate the appellant's own active support of his father in his OLF activities, for example not revealing to the Ethiopian authorities when they arrested him that his father had hidden some of the university students who were protesting or that he was running secret errands. He submitted that the judge was not fair to him in the way he looked at his participation in the OLF activities. By the time of the hearing the appellant's representative Ms Taiwo submitted that there had been an error of fact in relation to how the appellant knew about his father's activities and that in fact he had been told by his mother.
6. I confine myself to the grant of permission and in particular the application of the lower standard of proof and the consideration of the country guidance case law and OGN.
7. Ms Taiwo submitted at the hearing before me that the judge had made errors. It was submitted that the appellant had stated his mother had told him of his father's involvement. It is clear from his statement that the appellant was told by his mother that his father was an Oromo supporter but even if that were a matter subject to the permission of the grant I do not find that is material. The judge made a clear finding at paragraph 28(i) that the appellant's claim was based on the political profile of his father in Ethiopia and that he himself was not involved in any way with the OLF and only went on one demonstration. At the outset it should be noted that the judge specifically took account of the appellants young age when making findings.
8. The judge specifically considered the individual evidence regarding the father's involvement in the OLF and made a series of adverse findings regarding the evidence [28] (i) -(vi). The judge also made a series of clear findings as to why he rejected the case that the appellant's father was a famous Oromo nationalist and stated cogently that he found it very unlikely that if the father had been well-known as being an opponent of the government on behalf of the Oromo people, this would not have been known to the chairman of the OLF Committee in the UK. He found it further significant that although the appellant stated his father spoke at two meetings organised by the government, one being no less than one and a half years before his arrest, no action was taken against him by the authorities.
9. At 28(vi) the judge found that 'if the appellant's father really had been involved in political activities, leading to his arrest, and his concluding that the situation was so serious that both he and the appellant should leave Ethiopia I would have expected the evidence to be much clearer'. The judge made a specific finding that the appellant was with his father for a month after he left Ethiopia but was still extremely vague, 'not knowing what his father actually did'.
10. The judge addressed the evidence of the OLF letter and also took into account the fact that the letter referred to the appellant being an "active young OLF activist", but no-one from the OLF attended the hearing on his behalf. The judge found the appellant's evidence to be extremely vague not knowing what his father did and simply assuming that he had escaped from detention. As such, the judge gave clear reasoning as to why he rejected the appellant's account in relation to his father and gave cogent reasons at paragraph 28(viii) for finding that the father would not have been allowed to escape if the authorities had any serious interest in him.
11. MB (OLF and MTA, risk) Ethiopia CG [2007] UKAIT 00030 confirms that at paragraph 2 of the head note
"OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement. So too will those who have a significant history known to the authorities of OLF membership and sympathy. Whether any such persons are to be excluded from recognition as refugees or from the grant of humanitarian protection by reason of armed activities may need to be addressed in particular cases".
12. That is echoed in the OGN November 2013 on Ethiopia issued by the Home Office. The judge, at the very least, needed to assess if the appellant would be considered to be a sympathiser even by association with the father. The fact is that the judge found that the appellant's father was released quickly and that is in line with the country objective material. As the judge stated, if the authorities had any serious interest in him they would not have released him. The background evidence did indicate that the authorities discriminated between those who are of continuing interest to them and those who are not and this was background material from Amnesty International dated 28th October 2014 and which postdates the OGN 2013. In other words it was open to the judge to find that neither the appellant nor his father was perceived as being sympathisers or supporters of the OLF. The judge clearly did not consider, even against the background material, that the father was of interest to the authorities and thus the appellant.
13. There was a criticism that the judge had given no consideration to the appellant's knowledge of politics but I find this is not material as in fact it was the appellant's case that he had not been involved with the OLF in Ethiopia apart from attending one demonstration and he did not know what his father had actually done for them.
14. I am not persuaded that the judge has applied the wrong standard of proof.
15. The judge at paragraph 3 clearly sets out the standard of proof as regards the likelihood of persecution as a "reasonable chance" or "serious possibility". The use of phrases such as "in all probability" and "highly probable" come after a detailed analysis of the evidence on the basis of and in light of the direction to himself to approach the evidence on the basis of a reasonable likelihood. At [28x] the judge was considering whether the appellant had been in touch with his family and despite that this is not central to the assessment or risk to the appellant, 'all probability' does not denote the wrong standard of proof. The judge considered the activities of the appellant sur place and again made a critical analysis of the letter from the OLF at [28(xiv)]. At [29] the judge was clear that the authorities would not have interest in him either as a supporter or OLF sympathiser.
16. It is clear that up-to-date Country of Origin Information needs to be considered but the judge found that the appellant himself confirmed he was not in any way involved with the OLF and gave reasoning at paragraph 28(i) to (viii) as to why he rejected his father's claimed involvement. Although Ms Taiwo states that it was the mother who informed the appellant, the application for appeal to the Upper Tribunal clearly states "the judge did not fully appreciate my own active support of my father in OLF activities". If that is the case, this contradicts and contrasts with the appellant's case even more sharply with that presented by Ms Taiwo.
17. I find no error of law in the decision and the decision shall stand.

Direction Regarding Anonymity - 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 their 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 27th September 2016

Upper Tribunal Judge Rimington