Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10086/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 25th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

qmd
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Evans of Counsel instructed by Davjunnel Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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.
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.

1. The Appellant, a national of Vietnam, appealed to the First-tier Tribunal against the decision of the Secretary of State dated 9th September 2016 to refuse his application for asylum in the UK. First-tier Tribunal Judge Seelhoff dismissed the Appellant's appeal. The Appellant appeals with permission to this Tribunal.
2. The Appellant's date of birth is 6th October 1999 was accepted by the Secretary of State for the purposes of the Appellant's asylum claim. The Appellant is therefore a minor.
3. The background to this appeal is that the Appellant claims that he has been a Catholic since birth and that in July 2012 the authorities prevented people from attending his local Catholic Church. He claims that they raided the priest's house and destroyed religious statues inside the house. He claims that several days later the priest printed leaflets highlighting the issue and asked the Appellant to distribute them and that while he was distributing the leaflets he was arrested, detained for one week, beaten and interrogated by the authorities. He says that after his release he continued to live in the same house and to practise his religion and attend church and the authorities continued to come to his house once a month but he never spoke with them as he was scared and he would go outside to play to avoid speaking to them. He says that his mother died on 25th June 2014 and that thereafter he was orphaned with no one to look after him. He left Vietnam in June or July of 2015 and travelled via China, Russia and France before travelling to the UK arriving on 15th December 2015 when he claimed asylum.
4. In the reasons for refusal letter the Secretary of State accepted that the Appellant was a national of Vietnam and that his date of birth was as claimed. The Secretary of State accepted that the Appellant is a Catholic. However the Appellant's claim that he was arrested and detained for a week was rejected because the priest who he claimed printed the leaflets was not arrested and because no information was found about the Appellant's claimed arrest. In addition, the Secretary of State took into account the fact that the Appellant returned to his home for a further three years before leaving Vietnam, was not arrested again and had no further problems with the authorities demonstrating that the authorities had no interest in the Appellant following his release in 2012 until he left Vietnam three years later. The Respondent did not accept that the Appellant was at risk in Vietnam on account of his religion.
5. The First-tier Tribunal Judge did accept the Appellant's account [25]. The judge accepted that the Appellant was arrested in 2012 for doing something illegal, that he was mistreated in detention and that he was then released. Although the judge appears to have accepted that the authorities continued to come to the Appellant's house monthly he concluded that on the Appellant's account he avoided the authorities. The judge concluded that the authorities showed no real interest in him after his release in 2012 [27]. He concluded that, even if the authorities continued to visit the family home, the Appellant continued to live in the house for about a year after his mother's death and that, if they had had genuine interest in detaining him, there would have been more than infrequent visits and the authorities would have come at a time when the Appellant would have been likely to be at home such as when he was sleeping at night or when he had friends stay. The judge concluded that the Appellant has not described any real attempt by the authorities to locate him, just a level of monitoring which could have been over something as simple as concern about a child living on their own or some other official duties [28].
6. The judge considered the background evidence at paragraph 29 where he notes that it is clear that Catholics as a whole are not persecuted in Vietnam. He noted that the background shows that most of the arrests of Catholics are described as occurring when unauthorised demonstrations take place or when people were distributing anti-government materials. He noted that the Appellant has never attended any sort of anti-government demonstration and has not engaged in anything by way of expression of his faith that attracted the government's attention in the three years prior to him leaving Vietnam. The judge concluded; "There is simply no sensible reason why the government in Vietnam would have any adverse interest in the Appellant". The judge went on to consider the appeal under Article 8 and concluded that there was no disproportionate interference in the Appellant's limited private life in the UK.
7. There are three Grounds of Appeal. The Appellant contends in the first Ground of Appeal that the judge erred in his approach to the asylum claim in failing to take into account material matters. It is contended that, despite accepting his account of his arrest, the judge concluded that the Appellant had never attended any anti-government demonstration and had not engaged in anything by way of expression of his faith that attracted the government's attention in the three years prior to him leaving Vietnam. However it is contended that in reaching this conclusion the judge failed to consider the Appellant's oral evidence that he would be of interest to the authorities on return as an adult whereas he had been a child before his departure from Vietnam. It is contended that the judge also failed to consider the Appellant's accepted profile as a Catholic with his background of having been detained and tortured and having been visited on a monthly basis by the authorities who were checking on his religious activities. It is contended that it was incumbent on the First-tier Tribunal to consider the Appellant's claim that his adulthood and background as a known Catholic would impact on his treatment by the authorities in the context of the background evidence that the Vietnamese Government would monitor the activities of certain religious groups because of their political activism (Home Office Country Information and Guidance on Vietnam: Religious minority groups of December 2014).
8. Ms Evans submitted that the judge failed to take into account the Appellant's witness statement where he said that he believed that he would be at greater risk if he returned now as an adult. Ms Evans submitted that the judge had failed to take into account the fact that the Appellant was arrested for distributing anti-government material. She submitted that the judge's conclusion that the Appellant had not taken part in anti-government activity was irrational and illogical based on the finding that he had been arrested and mistreated in 2012. On the other hand Mr Kotas submitted that the judge was entitled to conclude that the Appellant would not be at risk upon return. The Appellant was caught up in the incident in 2012 but there was no real interest in him thereafter.
9. It is contended in the second ground that the First-tier Tribunal Judge's conclusion that the authorities showed no real interest in the Appellant after 2012 was irrational. The Appellant's account of being monitored by the authorities for three years whilst still a child was material and it is submitted that it could not be said to indicate that the authorities had no continuing interest in him after 2012. In her submissions Ms Evans submitted that the Appellant had been monitored since his release in July 2012 and the judge's finding at paragraph 28 of the decision was an implausible finding not based on the evidence, in particular given that the Appellant was monitored whilst his mother was alive as well. She submitted that the First-tier Tribunal should have accepted this part of the Appellant's evidence.
10. The third ground contends that, in concluding that the Appellant would not be at risk on return because the background evidence shows that Catholics as a whole are not persecuted in Vietnam, the judge failed to consider the detailed objective evidence before it which showed that in light of Decree 92 and the connection between political activism and Catholicism, an individual with the Appellant's profile would be likely to be at risk from the authorities.
11. In her submissions Ms Evans accepted that the objective evidence shows that Catholics as a whole are not persecuted but refers to the specific evidence relevant to the Appellant at page 31 of the Appellant's bundle which states that the authorities control religious groups and that those operating outside this authority are subject to monitoring and close surveillance, intimidation, harassment and sometimes violent enforcement (Home Office Country Information and Guidance Vietnam: Religious minority groups December 2014, page 35). She pointed out that this same document also states that the Government continues to monitor the activities of certain religious groups because of their political activism. She referred to 2.2.3 of the same document which states that the Vietnamese Government continues to imprison individuals for religious activity or religious freedom advocacy and seeks to stop the growth of ethnic minority Protestantism and Catholicism via discrimination, violence and forced reunification of their faith. She referred to paragraph 2.2.5 which states that in January 2013 the Prime Minister put Decree 92 into effect which extends controls on religious groups and states that in 2013 targets included independent Protestant and Catholic house churches in the central highlands or elsewhere. She referred also to paragraph 2.5 of the Home Office report which deals with Catholics in Vietnam. That report states that "Catholicism continues to grow rapidly in Vietnam but the relationship between the Vietnamese Government, some members of the church's hierarchy, Catholic laity, and members of the Redemptorist Order continue to be tense". It states that "over the past several years Catholics have been detained for participating in peaceful prayer vigils and demonstrations at properties formerly owned by the Catholic Church" and that "government officials have employed contract thugs to assault and intimidate Catholics from engaging in both private study and worship at unregistered locations". She relied on paragraph 2.5.2 of the report which describes the arrest and detention of young Catholic activists in Nghe An province for distributing pro-democracy leaflets. Ms Evans submitted that because the Appellant was arrested and was subjected to monthly monitoring he was of interest to the authorities, there was clear evidence of harassment and violent crackdown amounting to persecution. Ms Evans accepted that the monthly monitoring on the part of the authorities did not amount to persecution but she submitted that in this case if the Appellant returned as an adult the authorities would take more interest in him. She accepted that the Appellant had not said in his witness statement what his intentions would be upon his return but she submitted that he continued to practise his religion in the UK and would continue to practise upon his return. She submitted that the Appellant was able to avoid the authorities because he was a child but that he could not do so as an adult.
Error of Law
12. The judge accepted the core of the Appellant's case. However the key finding of the judge in this case relates to the period after the Appellant's release in 2012. The judge appears to have accepted that the Appellant was subjected to a level of monitoring on a monthly basis from the authorities. However he clearly found that, if the authorities were truly interested in finding the Appellant, they would have told his mother to bring him to them or would have penalised her for not doing so [27] and that after his mother's death there would have been more than infrequent visits and they would have come at a time when they were likely to have found the Appellant in the house [28]. I am satisfied that these findings were open to the judge on the basis of the evidence before him.
13. Having found that the Appellant was not subjected to any further harassment or persecution in the three years after July 2012 I am satisfied that it was open to the judge to find that the Appellant would be of no interest to the authorities upon return. This is particularly so in circumstances where there is little evidence as to what the Appellant was actually doing during that period in terms of the practice of his religion. Significantly there is no evidence as to what the Appellant intends to do upon his return to Vietnam. Whilst the Appellant claims that there would be a difference in his treatment because he was a child before he left Vietnam but is now an adult there is no background evidence to indicate any difference in treatment between children and adults in relation to this matter. In fact the fact that the Appellant was arrested and detained in 2012 when he was 12 would indicate the contrary.
14. Ms Evans properly accepted on the evidence that Catholics in general are not subjected to persecution in Vietnam. The Appellant was not subjected to any interest by the authorities after 2012. There is no evidence to indicate that he would do anything different to what he had been doing prior to his departure in 2015 upon his return. In these circumstances it was open to the judge to conclude that the Appellant is not at any risk upon return to Vietnam. I therefore conclude that the findings made by the judge were open to him on the evidence before him.
Notice of Decision
15. There is no material error of law in the decision of the First-tier Tribunal. The decision of the First-tier Tribunal shall stand.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is payable and therefore there will be no fee award.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes