Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08120/2018

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 5 March 2019
On 19 March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

mr T h t
(ANONYMITY ORDER MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Muzira (solicitor)
For the Respondent: Mr S Kandola (Home Office Presenting Officer)

Resumed hearing - DECISION AND REASONS

1. An error of law was found in respect of the decision of F-tTJ O'Hanlon which was set aside following my decision and reasons dated 15.1.2019 and in which I made a direction for a resumed hearing to consider evidence as to the risk arising from the perception of the authorities rather than linked to actual political activities. And having regard to the F-tT's finding that it was "possible" that the appellant had been arrested. It found that the appellant had attended political demonstrations, been detained and had been released from detention.

Background
2. The appellant is a citizen of Vietnam. The F-tT found his evidence credible and consistent that he attended a political demonstration against the arrest of Tran Thi Xuan on 21st October 2017, that was objectively confirmed to have taken place. He was detained for one month and then released after payment of a bribe. Other than attendance at the one demonstration the F-tT found no evidence of any political activity. The F-tT found that the evidence as to future reporting was not reasonably likely to be true [46]. In finding an error of law I was satisfied that the F-tT was unclear as to whether or not it found that the appellant had been arrested and there had been no proper consideration of imputed political opinion.

Resumed hearing

3. The appellant attended the hearing with a view to give evidence. However there was no interpreter available despite one having been booked to attend. Both representatives were content to proceed on the basis of submissions only.

4. Mr Kandola indicated that his submissions were premised on a finding that the appellant had been arrested. I was satisfied given the position adopted by Mr Kandola and agreed by Ms Muzira, that to proceed on that basis would create no unfairness to the appellant.

Submissions
5. Mr Kandola contended that the appellant had a low political profile and the fact that he was released after detention showed that he was of no interest to the authorities. There had been one single incident and no evidence of any continuing interest in the appellant. He was not engaged in any political activity in the UK. It was possible that he may be arrested by the authorities but this would not amount to persecution.

6. Ms Munzira produced and relied on the upto date CPIN and a skeleton argument. She submitted that the findings made by the F-tT [44] as to the appellant's motives and attendance at the demonstration formed part of the overall consideration and that it followed that the F-tT ought to have made a clear finding that the appellant was arrested. He had been handing out posters and shouting in support which had brought him to the attention of the authorities who had treated him as an anti government protestor and beaten him. The appellant had been required to report and had fled from Vietnam and failed to comply with the reporting conditions. This arguably was enough for the authorities to perceive him as a threat. The background evidence showed that arrest was commonplace. The recent CPIN dated September 2018 stated that the risks were to politically active organisers. It was acknowledged that the appellant was a low level activist but nevertheless could be perceived as being critical of the government in light of his history of arrest and failure to report.

Re making
7. I go on to remake the decision based on the unchallenged facts as found by the F-tT and a finding that the appellant was arrested at the demonstration. He is a low level activist. He fled Vietnam. The F-tT did not believe his evidence that he was required to report. I have considered the recent CPIN dated September 2018, US State department reports 2017 and the Amnesty International reports 2017 /2018 relied on by the appellant and in that context I assess whether the appellant faces a real risk of harm arising from any perception by the authorities. The background material highlighted in the skeleton argument makes particular reference to the restrictions on freedom of expression, association and peaceful assembly and violations of human rights included arbitrary detention and arrest. The more recent CPIN at 2.4.6 acknowledged that those who openly criticise the Government and who protest are likely to attract adverse attention but their treatment will depend on the level of involvement, activities and profile. It is stated that a low level protester would be subject to intimidation, may be arrested and released but this was not sufficient to amount to persecution. I accept that the appellant is a low level protester and has no profile as a political activist, but he has had adverse interest in him by reason of his arrest and detention following attendance at a protest. In such circumstances I am just satisfied, in the light of the Vietnamese government's active suppression of political opposition that he has met the lower standard to show that on return he faces a real risk of persecution as the authorities may perceive him as a threat given his past arrest and detention of one month which will place him in a position where enquiries will be made and accordingly he would be treated as someone outside the category of persons who would be subject to intimidation only.

Decision
8. I remake the decision of the F-tT by allowing the appeal on asylum/protection grounds.

Signed Date 14.3.2019

GA Black
Deputy Judge of the Upper Tribunal

ANONYMITY ORDER

NO FEE AWARD

Signed Date 14.3.2019

GA Black
Deputy Judge of the Upper Tribunal