Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11684/2016

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision Promulgated
On 20 March 2017
On 23 March 2017

Before

Upper Tribunal Judge Southern

Between

TRUYEN VAN NGUYEN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Angeli, counsel instructed by Duncan Lewis
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Vietnam, arrived in the United Kingdom concealed in the back of a lorry. Initially he said this was in October 2011, but his evidence at appeal was that he arrived later, on 28 February 2015. He had left Vietnam in 2009 and had then lived in Poland and in France before travelling to the United Kingdom. He first came to notice on 15 August 2016 when found at a nail bar which was the subject of a visit by police and Home Office Enforcement Officers. Although he was served the same day with notice of liability to be removed as an illegal entrant, it was not until 1 September 2016 that he claimed asylum. The basis of his claim was that he had a well-founded fear of persecution in Vietnam on account of his region. He, and his family, are Catholics.

2. The appellant’s appeal came before First-tier Tribunal Judge Mill on 15 November 2016. By a determination promulgated on 21 November 2016 the judge dismissed the appeal. It was accepted that the appellant, and his extended family, were all of the Catholic faith and had practiced that religion in Vietnam. The appellant’s father, who is the Chairman of the Council Committee of the Catholic Church attended by the appellant in Vietnam, remains in Vietnam, as do two of the appellant’s siblings.

3. Although that much of his account was accepted, in other respects the judge found that the appellant was not a credible witness. The appellant had lied to immigration officials about the time he had been in the United Kingdom. His credibility was damaged by his failure to claim asylum during the 3-4 years he was living in France. The judge was satisfied that he had not made his claim in that safe country because he had no genuine basis upon which to do so.

4. The judge made clear that the main obstacle faced by the appellant in establishing his claim to face a well-founded fear of persecution on return to Vietnam on account of his religion was the fact that his father and other relatives remained in Vietnam, as practicing Catholics, without experiencing any such difficulties. The judge said:

“… His father holds a significant position in the Catholic faith in Vietnam. He has done so for many years. He is known to the authorities there….”

The appellant said that his father had been arrested on one occasion in 1996, as a consequence of his religious faith and practices. The appellant’s evidence in this respect was that his father had been detained for a period of time and then released. The judge observed that the appellant had not referred to his father having been tortured although the appellant produced a letter from his father that does refer to interrogation and torture but this, the judge considered, was a brief statement that lacked “specification in detail”. If the appellant’s father had been ill-treated, he would know the detail of that and would have been able to provide some description of it. As this was “a central plank and foundation of the appellant’s asylum claim” this is not what the judge expected had the claim been true.

5. The judge drew his findings together at paragraph 27 of his decision:

“The appellant’s father and those other family members of the appellant, whoever they may be (this is unclear on the basis of the appellant’s evidence), appear to live openly in Vietnam, practicing the Catholic faith. I can accept that they face on occasion harassment as a consequence of their religious persuasion, but I cannot accept on the basis of the appellant’s evidence, even taken at its highest, that there is an ongoing real risk of acts of persecution by the State authorities there. The appellant and his family have practiced the Catholic faith their whole lives. The appellant does not claim any personal difficulties which he faced from the authorities or non-state agents throughout the period of time which he has spent in Vietnam practicing the Catholic faith prior to his departure there in February 2009. This is notwithstanding his claimed affiliation and direct support and assistance of the Youth Group which he claimed his brother created.”

A little later he continued by saying:

“The appellant’s father is residing openly. This is a matter that is confirmed by the appellant’s witness who attended, the Rev. Fr. Duc Yen vu. The Priest confirmed that he had travelled to Vietnam and met the appellant’s father. … He did refer to “tensions” between the Catholic Church and the State. He did not however suggest that the appellant’s father was at a real risk of persecution upon return. Indeed, his evidence falls short of this.”

6. Before examining the grounds upon which the appellant sought and was granted permission to appeal, the reference made by the judge to the appellant’s brother should be explained. The appellant’s case was that this brother, Thong Van Nguyen, had been instrumental in the creating of a Catholic Youth Group in Vietnam and the appellant had assisted him, for example by taking photographs and putting up some banners for the one demonstration he said he attended in December 2008. This led the judge to find at para 20 of his decision that the appellant ”did not claim to have been significantly or materially instrumental in promoting the Catholic faith prior to his departure from Vietnam in 2009”. The appellant said that this brother United States of America where he has been recognised as a refugee and granted asylum.

7. The judge did not, however, accept that evidence to be true. The appellant had given three different names for this group, referring it to variously as “the Vinhs Catholic Student Committee, the Youth Catholica Vinh Diocese and the Vinh Catholic Community in Hanoi. The judge did not accept that this could be explained away by difficulties in translation of what the appellant had said in providing written and oral accounts of this. The judge also found that the appellant’s credibility was damaged by his inconsistent account of the family members remaining in the United Kingdom having said both that he had two brother living in Vietnam and that only a brother and a sister remained there.

8. Finally, the judge recorded that the country evidence demonstrated that Catholicism continues to grow rapidly in Vietnam. Although there was some evidence that “activists and leaders” had been detained or persecuted, given what the appellant himself had done in Vietnam he would face no such risk.

9. The grounds upon which permission to appeal was sought and granted were that the judge was wrong to hold against the appellant the different names given by the appellant for the group created by his brother; that the contradiction in the appellant’s evidence concerning the siblings remained in Vietnam was ”a minor mistake” not justifying an adverse credibility finding; that the judge failed to have regard to the country evidence that indicated that Catholics in Vietnam faced persecution and that the judge was wrong to refuse to accept that the appellant’s brother had been recognised as a refugee and as this was “on the same factual matrix as his brother” he also should have succeeded in his claim for international protection.

10. In granting permission to appeal, Upper Tribunal Judge Canavan said it was arguable also that the judge had fallen into error by considering the country evidence relied upon by the appellant only after having decided that he was not at risk on return.

11. Ms Angeli, who appeared before the First-tier Tribunal also, adopted those grounds in her oral submissions.

12. Addressing the first of those grounds, Ms Angeli pointed out that there was some consistency in the evidence relating to the group created by the appellant’s brother. She submitted that any difference could and should be attributed to the process of translation or interpretation. In a witness statement the appellant’s brother who had been granted asylum in the USA had used a name for the group that was the same as one of those used by the appellant. In response, Mr Wilding submitted that there was no evidential basis upon which the inconsistency could be attributed to translator error. It was, he said, open to the judge to find that the fact that the appellant was unable consistently to identify this group by the same name was something that informed the credibility finding to be made by the judge.

13. I have no doubt that Mr Wilding is correct about this. The fact of this group and his association with it was a matter at the very heart of the appellant’s claim to be at risk on return to Vietnam. The judge had to make what he could of the appellant’s evidence and it is plain from a reading of the determination as a whole that the judge was, as Mr Wilding put it, wholly unimpressed with the appellant’s evidence and did not find him to be a credible witness as to the factual account of his experiences and activities in Vietnam.

14. The judge was plainly entitled to have regard also to inconsistency in the appellant’s evidence concerning the siblings that remained in Vietnam. Ms Angeli accepted that in interview the appellant had said that he had two brothers remaining in Vietnam; in a subsequent witness statement that he had a brother and a sister in Vietnam and when giving oral evidence at appeal, he said first that he had two brothers and later that he had a brother and a sister remaining. The point made by Ms Angeli is that the appellant had made a mistake but had corrected himself. Also, the interpreter who assisted him in given oral evidence had, she said, “accepted some of the blame” so that the judge was wrong to hold this inconsistency in evidence against the appellant. Once again, although whether the appellant had two brothers or a brother and sister remaining in Vietnam was not remotely an issue determinative of the appeal, this was part of the appellant’s evidence which the judge had to consider in the context of his evidence as a whole. The judge was plainly entitled to consider that this was a further indication that the appellant was not a reliable witness about t6he situation of his family in Vietnam.

15. Next, Ms Angeli submitted that the judge had failed adequately to have regard to the country evidence concerning risks faced by Catholics in Vietnam. She made two references to evidence in the appellant’s bundle that was before the judge in the light of which, she submitted, it was not reasonably open to the judge to find that the appellant would not be at risk on return. But that clearly not established by that evidence. In the Country Information and Guidance report of December 2014, at paragraph 2.5.1 is reproduced an extract from a 2013 report on religious freedom:

“Catholicism continues to grow rapidly in Vietnam, and the church has expanded both clerical training and charitable activities in recent years. Hanoi and the Vatican continue to discuss resuming diplomatic relations. Nevertheless, the relationship between the Vietnamese government, some members of the Church’s hierarchy, Catholic laity, and members of the Redemptionist Order continue to be tense…”

The report goes on to speak of some Catholics having been detained when participating in vigils and demonstrations and of other difficulties. This however, does not come even close to establishing a general risk for Catholics in Vietnam and has to be contrasted with the fact that, whatever the appellant himself may or may not have been doing, he had not himself previous experienced any difficulties and his father continues to discharge a more prominent role in the life of the local Catholic church and yet there is nothing to suggest that he has attracted any recent adverse attention.

The second reference made by Ms Angeli to the documentary evidence before the judge is to page 25 of the appellant’s bundle. This, however, is wholly illegible and, as there is not a legible copy of this page on the Tribunal’s file, or referred to the by the judge, I am confident that he was not asked to place reliance upon this and it cannot be an error of law not to have regard to evidence that was not specifically relied upon. In any event, it is plain that the judge did consider the report that was relied upon because he reproduces from it an exact phrase that is there contained. Further, as Mr Wilding noted in his submissions, at paragraph 2.1.1 of the same report, it can be seen that there are now more than 6 million people in Vietnam practicing Catholicism, representing about 7% of the population. The judge correctly recognised, at paragraph 31 of his decision, that it is well documented that some activists and leaders had suffered detention and persecution but there was no reason at all to suppose that the appellant would be thus categorised. It is unambiguously clear that the judge did not turn to consider the country evidence only after having decided that the appellant was not credible in his account.

16. The final ground upon which the decision of the judge is challenged complains that he was wrong to reject the appellant’s account of his brother having been recognised as a refugee in the USA. Ms Angeli drew attention to evidence before the judge confirming that this brother had indeed been granted asylum. This ground can be disposed of briefly. Even if it was an error for the judge not to accept that the appellant’s brother had been granted asylum, that error was not material to the outcome of the appeal. There are two reasons for this. First, although there is, at page 33 of the appellant’s bundle, a copy of a letter dated 30 August 2016 from US Department of Homeland Security confirming that asylum has been granted to Thong Van Nguyen, and accepting that this is the same person as the appellant’s brother of the same name, there is nothing to confirm the basis upon which asylum was granted. Second, and in any event, assuming that the appellant’s brother sought asylum on the basis of having created the youth group described by the appellant, as creator and promotor of the group this brother was in a wholly different position that was the appellant as, by any view, this would make him a “leader or activist”.

17. For these reasons I am satisfied that the judge made no material error of law. When his decision is read as a whole, as it must be, it is entirely clear that he has had regard to all that was relied upon and has given clear, cogent and legally sufficient reasons for finding that the appellant would not face a well-founded fear of persecution or of infringement of any rights protected by the ECHR upon rerun to Vietnam. In short, the conclusion of the judge is unassailable.

Summary of decision:

18. The Judge of the First-tier Tribunal made no material error of law error of law and the decision of the judge to dismiss the appeal shall stand

19. The appeal to the Upper Tribunal is dismissed.

Signed

Upper Tribunal Judge Southern

Date: 22 March 2017