Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05531/2019

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 10 December 2019
On: 13th December 2019

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

K N
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Janjua, instructed by Morden Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Vietnam born on 1 June 1996. He has been given permission to appeal against the decision of First-tier Tribunal Judge Watson dismissing his appeal against the respondent's decision to refuse his asylum and human rights claim.
2. The appellant was arrested by immigration officials on 12 September 2014 after he was found to have entered the UK clandestinely. He claimed to be a child, but was age assessed and considered to be over 18 years of age. He was released from detention but then absconded and failed to comply with reporting restrictions. He was encountered on 12 October 2017 on suspicion of working illegally under a false UK passport and he was arrested, detained and served with removal papers. He then claimed asylum on 2 November 2017 and was released from detention.
3. The appellant's claim was made on the basis that he was at risk on return to Vietnam due to his practise of the Pure Hoa Hao Buddhist (PHHB) faith, a non-registered religion. He claimed that the authorities came to his house on 18 May 2010 when he was praying with others and they assaulted him, injuring his leg. They did not arrest him on that occasion, but they arrested him when they returned on 20 August 2011 and again on 3 June 2013. He claimed that when arrested on 20 August 2011 he was detained for 15 days. On that occasion there were prayers at his house for the first anniversary of his nan's death and he and his uncle were arrested. The appellant claimed that his uncle created and distributed leaflets against the government and he (the appellant) distributed the leaflets a few times with a friend. This friend was caught by the police and arrested and gave his details and his uncle's details to the police. The police surrounded his house but his uncle warned him and he escaped. However his uncle was arrested and had been in prison since June 2014. The appellant claimed also that he owed money to a person who paid for his journey to the UK and that that person would kill him if he returned to Vietnam as he had not paid off the debt. The appellant claimed that he left Vietnam on 15 June 2014 and went to China where he was forced to work. He was in China for three months until the beginning of September 2014. He came to the UK to claim asylum. He had attended two demonstrations in the UK and was also at risk on that basis.
4. The appellant's asylum claim was refused on 24 May 2019. The respondent noted that he had given multiple conflicting accounts of his religion and had not mentioned PHHB when he was arrested, but had claimed at that time to have no religion. The respondent did not accept that the appellant was a Pure Hoa Hao Buddhist and did not accept that he had been the target of the Vietnamese authorities on the basis of his religious activities. The respondent noted that the appellant had given an inconsistent account of when he first came to the attention of the Vietnamese authorities and did not accept that he had ever come to the adverse attention of the authorities in Vietnam. As for the appellant's sur place activities in the UK, the respondent noted that the evidence consisted of nine photographs of himself holding signs and accepted that he had attended demonstrations outside the Vietnamese embassy, but did not consider him to be at risk on return on that basis. It was not accepted that he borrowed money for his journey and was at risk for non-payment of the debt. The respondent considered that the appellant's removal to Vietnam would not breach his human rights.
5. The appellant appealed against that decision and his appeal was heard on 14 August 2019 in the First-tier Tribunal by Judge Watson. The judge made an adverse credibility finding against the appellant owing to his delay in claiming asylum, pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. She did not accept that he was a genuine Pure Hoa Hao Buddhist and did not accept his account of his arrest and his uncle's arrest. She did not accept his account of owing money to a person who paid for his journey to the UK. The judge found that even if the appellant had been a Pure Hoa Hao Buddhist, his evidence was that he practised his faith in private in the UK and did not proselytise, and accordingly he could do the same in Vietnam. She did not consider that the appellant would be at any risk on return as a result of his attendance at demonstrations in the UK as he would not be of any adverse interest to the Vietnamese authorities. The judge concluded that the appellant's removal would not breach his human rights and she dismissed the appeal on all grounds.
6. The appellant sought permission to appeal on the grounds that the judge had erred by taking the section 8 point of the appellant's delay in claiming asylum as her starting point rather than as a factor to be assessed in the round; that the judge had failed to consider the explanation provided by the appellant's solicitor about his religion following the screening interview; that the judge failed to understand that the Pure Hoa Hao religion was a proscribed religion and would put him at risk without preaching; and that the judge failed properly to consider the appellant's sur place activities in the UK.
7. Permission to appeal was initially refused in the First-tier Tribunal, but was subsequently granted in the Upper Tribunal following a renewed application.
Appeal hearing and submissions
8. At the hearing before me, Mr Janjua submitted that the judge had erred by giving undue weight to the section 8 point. He submitted that the judge had erred by finding that the appellant had changed his account of his religion when he had clearly given a consistent account, having referred at his screening interview to being at risk for belonging to an unofficial religion. The judge also failed to have regard to the letter from Thompson & Co solicitors, at Annex H of the respondent's bundle, which clarified the appellant's evidence at the screening interview and provided the correct details of his religion. The judge therefore erred in her adverse credibility findings. As for the judge's findings on the appellant's sur place activities, only very brief reasons were given in relation to the impact of those activities on the question of risk on return. The judge accepted that the appellant had demonstrated outside the Vietnamese Embassy and had erred by failing to consider the fact that he had taken his faith to the public and the risk that this posed in line with HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 and WA (Pakistan) [2019] EWCA Civ 302. Mr Janjua requested that the judge's decision be set aside and the case remitted to the First-tier Tribunal for a de novo hearing.
9. Mr Whitwell submitted that the grounds were largely a criticism of form over substance. With regard to the section 8 point, Mr Whitwelll accepted that the judge was wrong to say that section 8 was the starting point, but it was clear that in practice she had considered it in the round together with the rest of the evidence and did not treat the appellant's delay in claiming asylum as determinative of his case. The judge identified various inconsistencies in the appellant's account, including the varying accounts his religion, which she was entitled to consider as undermining his credibility. The judge's findings at [17] in relation to the appellant's sur place activities had to be read in conjunction with [21]. There was no evidence before the judge to show that the appellant would come to the attention of the Vietnamese authorities merely by his attendance at a demonstration. The background information in the CPIN did not support the appellant's claim. The judge had not materially erred in her decision.
10. Mr Janjua reiterated the points previously made and submitted that even if the appellant had not been involved in activities in Vietnam, his attendance at demonstrations in the UK showed that he would want to take his faith into the public in Vietnam and that he would therefore be at risk in accordance with the guidance in HJ (Iran).
Discussion and conclusions
11. Whilst permission was granted in relation to the challenge in the grounds to the judge's approach to section 8 and to the weight she accorded to the appellant's delay in claiming asylum, it seems to me, having heard further submissions on the point, that this ground is simply not made out. I am in agreement with Mr Whitwell that the judge's reference to section 8 as a starting point was not indicative of an unlawful approach when considering the rest of her self-direction at [14] of her decision. It is clear that the judge considered the appellant's delay in claiming asylum in the round, together with other credibility issues. She was perfectly entitled to accord weight to the circumstances in which the appellant claimed asylum and to consider that that impacted upon his credibility, as the Court of Appeal held in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 at [21]: "Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder." However she plainly did not consider it to be determinative of the credibility assessment and she provided various additional, cogent reasons for rejecting the appellant' account, based upon inconsistencies and discrepancies in his evidence.
12. The grounds challenge the judge's adverse findings on the appellant's religion and assert that he was consistent with his claim to belong to the Pure Hoa Hao Buddhist faith. It is asserted that the judge was wrong to consider the appellant inconsistent by referring to his religion, in his screening interview, as the Hoa Hao faith, when he had stated in the same interview that his religion was not an official one and had in fact corrected the recorded answer in a letter of 11 December 2017. However, whilst the judge did not specifically refer to that letter, she was entitled to have regard to the appellant's actual evidence at the interview, which was that his religion was Hoa Hao (question 1.12). The letter of 11 December 2017, at Annex E of the respondent's bundle, does not assert that the appellant stated his religion to be Pure Hoa Hoa Buddhism at that interview, as the appellant suggested in his statement, but it merely seeks to amend the answer which he is recorded as having given at 1.12. The appellant did not claim to have had difficulty understanding the interpreter at that interview. The judge's findings were in any event not only based upon the appellant's evidence at his screening interview, but also the initial interview at Annex H where he claimed to have no religion. Mr Janjua initially sought to address that matter by claiming that the appellant had not had an interpreter, but he properly withdrew that submission when he noted the interpreter's reference number.
13. It seems to me, therefore, that the judge was perfectly entitled to conclude that the appellant had not been consistent in his evidence of his religion and to draw the adverse conclusions that she did from the variations in his account in that regard. It is also relevant to note that that was not the only reason that the judge rejected the appellant's claim to be Pure Hoa Hao Buddhist and that further reasons were given at [15] which have not been addressed or challenged in the grounds. Likewise, the judge provided detailed and cogent reasons at [16] for rejecting the appellant's claim in regard to his experiences in Vietnam and no specific challenges were made in that regard. Accordingly I find there to be no errors of law in the judge's assessment of credibility and her rejection of the appellant's account.
14. The grounds also challenge the judge's decision in relation to the appellant's sur place activities in the UK, asserting that she did not make proper findings in that regard and field to apply the guidance in BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36. However the judge's findings at [20] and [21] addressed the relevant risk factors in that regard, took account of relevant country information, and were supported by cogent reasons for concluding that the appellant did not have a profile which would bring him to the adverse attention of the Vietnamese authorities. Mr Janjua submitted that the judge failed to follow the guidance in HJ (Iran) and WA (Pakistan), in that she failed to consider that the appellant was a person who had demonstrated his faith publicly and would wish to continue practising his faith publicly in Vietnam. However that was a matter considered by the judge. At [21] she found that the appellant was not genuinely motivated in demonstrating his faith and that he was simply seeking to bolster his asylum claim. In light of such findings, and given that the judge did not accept that the appellant was genuinely a member of the Pure Hoa Hao Buddhist religion, it is plain that she did not accept that he was a person who would genuinely wish to practice the Pure Hoa Hao Buddhist faith actively in Vietnam, such that any risk as envisaged in HJ (Iran) would arise. Contrary to the assertion in the grounds, therefore, the judge addressed all relevant matters in assessing risk on return.
15. For all of these reasons it seems to me that the judge was perfectly entitled to reach the conclusions that she did. On the evidence available to her she was fully entitled to conclude that the appellant had not given a consistent account of his religion and his reasons for leaving Vietnam and had not provided a credible and genuine account of the risks he would face on return to Vietnam. The judge was fully entitled to dismiss the appeal on the basis that she did and she did not make any errors of law in doing so.
DECISION
16. 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.
Anonymity
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed
Upper Tribunal Judge Kebede Dated: 10 December 2019