Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10109/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 27 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between
HUY DUC NGUYEN
(Anonymity direction not made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Skinner, of Counsel, instructed by ATM Law Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
DECISION ON ERROR OF LAW
Anonymity
1. This appeal is not subject to an anonymity order. I was not invited to make an order and I see no reason to do so.
Introduction
2. The Appellant is a national of Vietnam. He appeals against a decision of Judge of the First-tier Tribunal Seelhoff dismissing his appeal against the Respondent’s decision of 7 September 2016 refusing his application for international protection on asylum, humanitarian protection and human rights grounds.
3. Permission to appeal was granted on renewal to the Upper Tribunal by Upper Tribunal Judge Deans on 4 January 2017 in the following terms:
“It is arguable the judge misconstrued the evidence in relation to whether the appellant had attended a wedding. The judge then relied on this at para 32 when making an adverse credibility finding. While the judge was entitled to rely on country information indicating that in general Hao Hoa Buddhists were not at risk, an assessment had to be made of the appellant’s individual circumstances, particularly his claims of past persecution. Accordingly the grounds as a whole are arguable.”

Background
4. The background to the Appellant’s claim is briefly as follows. The Appellant claims that he was born into the Hao Hoa Buddhist tradition and followed the unregistered “Pure” sect of the faith. He claims that he was arrested and beaten by the police in 2002 and 2008, respectively, at a religious ceremony, and was stabbed by plain clothes police officers and hospitalised in 2004. The event that caused the Appellant to subsequently flee Vietnam occurred on 9 April 2009 after he was discovered by the police distributing leaflets for a political party which complained about discrimination against members of his faith.
The Decision of the First-tier Tribunal
5. The Judge set out the Appellant’s case in summary between [3] and [6], the contra case between [7] and [11], the evidence and submissions between [19] and [28], the standard and burden of proof at [15], and his conclusions between [29] and [42]. The consideration of the parties’ positions and the evidence is comprehensive.
6. The Judge concluded the Appellant’s account was not credible. The Judge did not accept the Appellant’s faith was as claimed and noted the Appellant’s vague response when asked about the important figures relevant to his faith [29]. The Judge noted, with reference to background evidence, the Appellant’s lack of knowledge about his faith and his inability to identify the differences between Hao Hoa Buddhism and mainstream Buddhism [30]-[31]. The Judge was concerned by the Appellant’s claim that he was unaware of Hao Hoa wedding practices and ceremonies because he had never been married, and found that this was inconsistent with his claim that he attended a wedding gathering that was infiltrated by 30 plain clothes police officers [32]. Further, the Judge did not accept that the Appellant had no opportunity to look for other practitioners of the faith in the UK, and took in account as damaging the Appellant’s credibility the “massive” delay in claiming asylum [33]-[34]. Further still, in the alternative, the Judge found the evidence did not support the conclusion that the Appellant would be persecuted on return to Vietnam.
Decision on Error of Law
7. Having given careful consideration to Judge Seelhoff’s decision as a whole, the grounds of appeal and the submissions made before me, I am persuaded that the Judge erred in law such as to render the decision unsustainable.
8. It is apparent from the Respondent’s refusal letter that credibility was always in issue in this case. Most of the matters on which the Judge based his adverse credibility findings were grounded in the Appellant’s evidence and his assessment of the background evidence. So far, so good.
9. However, at [32] the Judge stated thus:
“I am also concerned by the Appellant’s claim not to know about the Hao Hoa wedding practices and ceremonies simply because he personally has never been married. I note that one of the key (emphasis added) events in the Appellant’s claimed history is his attendance at a wedding gathering so large that it could be infiltrated by 30 plain clothes police officers. The Appellant’s account of that incident does not reconcile with his claimed lack of knowledge of weddings, nor with the descriptions of modest weddings being held by Hao Hoa Buddhists.”
10. There is no dispute between the parties that the Judge’s reasoning at [32] is untenable. It is plain the Judge erred in mistakenly concluding that the event the Appellant was describing occurred at a wedding. This was contrary to the Appellant’s responses at interview. It transpired at the hearing that the root of the factual mistake appeared to stem from the Respondent’s refusal letter, in which, the decision-maker incorrectly refers to the Appellant’s attendance at a wedding, an error which the Judge repeated. That is unfortunate. It is apparent that the Judge considered that this event was core to the claim, and was undoubtedly influenced by what he viewed as an inconsistency in the account. While I acknowledge that this was a view compounded by other matters of credibility, nonetheless, in my judgement, the assessment of the Appellant’s credibility has not been adequately undertaken with anxious scrutiny. Given the fundamental nature of the protection sought by the Appellant, the need for anxious scrutiny in cases of this type is of considerable importance. That concept must entail the Appellant’s claim being assessed on the correct factual premise.
11. While the Judge attempted to do this in the alternative, I agree with observations made by Upper Tribunal Judge Deans that an accurate assessment has to made of the Appellant’s individual circumstances and his claims of past persecution. This is paramount in a case where the background evidence indicates that members of unregistered religious groups are “ill- treated”, but the “levels of ill-treatment suffered will vary depending on the individual facts of the case, in particular: the region, ethnicity and whether the person is perceived to be politically active against the government.” The Judge’s assessment in light of this evidence at [38]-[40] is in my view inadequate.
12. Ultimately, I am of the view that while it may well be the case that the Judge’s decision to dismiss the appeal is correct, it is the manner and process by which he reached that conclusion that is flawed.
13. The representatives were in agreement should I find that the Judge erred that the appropriate course of action was remittal to the First-tier Tribunal. I agree that is the right course given that the credibility of the claim will have to be looked at afresh, with none of the findings preserved.
Decision
14. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision of the First-tier Tribunal. For the reasons elaborated above the Appellant’s appeal is allowed. As the appeal needs to be reheard remittal to a differently constituted First-tier Tribunal is the appropriate course.

Signed : Date : 22 March 2017
Deputy Upper Tribunal Judge Bagral