Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006712

First-tier Tribunal Nos: PA/51506/2021
IA/04847/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

TD
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Fazli, Counsel instructed by Aspen Crown Solicitors
For the Respondent: Ms Nwachuku, Senior Home Office Presenting Officer

Heard at Field House on 28 October 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Vietnam who came to the UK as a student in 2016. He claims to face a risk of persecution in Vietnam on account of his support for the political party Viet Tan, which is designated as a terrorist organisation by the Vietnamese authorities. He is appealing against a decision of Judge of the First-tier Tribunal Peer (“the judge”) who, in a decision dated 4 July 2022, dismissed his protection and human rights appeal against a decision of the respondent dated 17 March 2021.
2. I am grateful for the helpful submissions made at the hearing by Mr Fazli and Ms Nwachuku. I have not set these out, but have taken them into account in my assessment of the appeal.
The Appellant’s Claim
3. When applying for asylum in the UK, the appellant identified several reasons why he believes he faces a risk of persecution in Vietnam. These are:
(a) He was detained and beaten in 2016 for attending a demonstration following the “Formosa incident” (a toxic chemical spill by a non-Vietnamese company).
(b) His parents are members of the Viet Tan Party and are currently detained, having been arrested in 2019 because they took part in demonstrations regarding disputed land; and because leaflets he had sent them in 2019 from the UK about the Viet Tan were discovered in their home (in his bedroom in a drawer of his belongings). He claims to have sent his parents these leaflets because on a visit to Vietnam in 2017 they shared with him (for the first time) that they were members of the Viet Tan.
(c) His grandmother and sister are currently in hiding and he has not spoken to them since his parents were arrested in 2019.
(d) Since arriving in the UK he has become a supporter of the Viet Tan, attending conferences and demonstrations, handing out leaflets, and posting material online.
The Respondent’s Decision
4. The respondent accepted that the appellant was arrested, detained and mistreated following attendance at the Formosa demonstrations in 2016. However, the respondent did not accept that this would result in him facing a risk on return. The respondent stated in paragraphs 27 and 28 of her decision:
“27. The [Formosa] disaster has led to large numbers of protests against the Taiwanese company and against the government for their handling of the spill. The authorities have sometimes sought to disrupt the protests through violence and arrests, although there is no evidence to suggest that all those arrested remain in detention.
28. Whilst people have been arrested and detained for their involvement in Formosa protests the treatment incurred is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm”.
5. The respondent accepted that the appellant has been a low level supporter of the Viet Tan since coming to the UK and, as a supporter, has attended demonstrations in the UK and posted on the internet about the Viet Tan.
6. There are several aspects of the appellant’s account that the respondent questioned and did not accept. These are:
(a) The appellant’s account of (and explanation for) sending leaflets about the Viet Tan to his parents was described as vague. In paragraph 40 of the respondent’s decision the following is stated:
“40. After being probed multiple times as to why you would take this risk, you state that they had recently told you that they were members of the Viet Tan party and you didn’t think the leaflets would increase their risk in Vietnam. This is not considered a reasonable explanation as you initially state that you had put your parents at risk and then go on to contradict this by stating it did not increase the risk they already had as members. It is also not clear why you would take this risk”.
(b) The respondent did not accept that the appellant has been truthful about his parents being detained. His account on this issue is described in the refusal decision as vague and inconsistent. In paragraphs 47 and 48 of the refusal decision the following is stated:
“47. You initially state that they were arrested because leaflets at your house linked them to the party. However, in contradiction to this, you went on to state that you did not know what evidence the Vietnamese authorities had to show your parents were in the Viet Tan party. It is reasonable to expect you to provide a consistent account with regards to the grounds of your parents arrest as this is considered to be a significant aspect of your claim.
48. In addition, it is considered that you have provided a vague account of whether your parents detention, including whether they had been charged with anything, if they are still detained or the prison terms for Viet Tan members”.
(c) The respondent did not accept that the appellant had given a reasonable explanation as to why he had lost contact with his family. At paragraph 50 of the refusal decision the following is stated:
“50. Despite your claim that you are concerned about your parents it is not clear as to why you have not made any attempt to contact anyone to find out what has happened to your parents. You claim that whoever you contact would be at risk. However, when you were asked for example why could you not have contacted your sister by Facebook, you claim that she has deleted her account. In addition to this, you also claim that you could not contact any other friends or family in order to establish what has happened to your parents. It is reasonable to expect you to provide a reasonable explanation as to why you have not made one attempt to find out what happened to them as this is a significant aspect of your claim. In addition to this, as you have not attempted to contact anyone, you are unable to demonstrate that contacting them would put them at risk”.
7. The respondent did not accept that the appellant would face a risk because of protesting and being detained following the Formosa incident, stating at paragraph 54:
The appellant does not face a risk on account of his involvement in the Formosa protests as objective evidence establishes that the protests and treatment incurred is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm and he was able to leave Vietnam and apply for a visa to come to the UK shortly after his release.
8. The respondent also did not accept that the appellant’s “low-level” support for the Viet Tan gave rise to a risk, stating in paragraph 58:
Whilst it is accepted that the appellant is a low level supporter of the Viet Tan, it is not accepted that his parents are imprisoned for being members of the Viet Tan and there is no evidence to suggest that the authorities are aware that he is a supporter. Moreover, the objective evidence about Vietnam shows that adverse treatment to those who oppose the authorities in Vietnam depends on the person’s role and profile and that where a person is perceived to be a low level protestor/opposition supporter whilst they may be subject to intimidation by the police and may be arrested and subsequently released, this is not sufficiently serious by its nature and repetition as to amount to persecution and serious harm.
First-tier Tribunal Decision
9. The judge accepted that the appellant was detained, along with numerous other people, following the Formosa demonstrations in 2016, but found that his account in respect of ill-treatment was lacking in detail and not mentioned in his statement. In paragraph 46 the judge stated, in respect of the arrest following the Formosa protests:
“46. Taking account of the background evidence, the case law on what constitutes persecution and the lack of detail in the appellant’s account, I find that the appellant has not demonstrated that he was subject to treatment which is sufficiently serious by its nature and repetition to constitute persecution in respect of his detention further to his participation in the Formosa protest”.
10. The judge also noted that the appellant was released without charge in 2016 and was able to leave Vietnam on a student visa.
11. The judge did not accept the appellant’s claim that his parents have been arrested and detained. She characterised the appellant’s account regarding his parents as lacking detail and inconsistent. The judge also found the appellant’s claim to have sent Viet Tan leaflets to his parents implausible, stating in paragraph 50:
“50. I find it implausible that in the context of Vietnam and what he says was being watched and his parents’ reluctance to share any details of their Viet Tan involvement as it was so sensitive that he would send leaflets which would be regarded as incendiary and terrorist by the authorities to his home thereby placing his parents at risk”.
12. The judge also found it implausible that the appellant’s parents would place leaflets, apparently sent to them for their interest, in the appellant’s bedroom in a draw with his belongings.
13. The judge did not accept that the appellant was being truthful about having had no contact with his parents since the beginning of 2018. The judge stated in paragraph 53 that there was no real explanation as to why the appellant has been unable to make any contact with his family.
14. The judge found that the evidence submitted by the appellant in respect of sur place activities was very limited. She noted the absence of documentary evidence of involvement with the Viet Tan such as letters in support or details of any activities.
15. With respect to the appellant’s Facebook account, the judge noted that the appellant had produced solely screenshots of very few posts none of which postdated 2019. She stated that there was no evidence as to the settings on the Facebook profile or as to the number of people who have viewed the account. The judge stated in paragraph 59 that:
“59. The evidence on the extent to which Vietnam conducts monitoring and surveillance of activists and/or others abroad including online is limited. The USSD 2020 report refers to development of cyberespionage capability being developed in recent years. The background evidence available to me does not support any finding in line with the appellant’s submission that Vietnam is monitoring Facebook activity outside Vietnam. I take account of the background evidence that the authorities do monitor online activity inside Vietnam but that the focus is on those with a following and who have the capability to mobilise dissent together with the background evidence that persons who have no significant online profile or following or in person history of significant activism and are low level are less likely to be targeted”.
16. The judge found that it is not reasonably likely that the authorities would have an interest in the appellant.
17. The judge concluded in paragraph 64:
“64. Taking account of the evidence that the appellant did not engage in any activity whilst in Vietnam in the past linked to the Viet Tan and the limited nature of his sur place activity in the UK, I am not persuaded that he has demonstrated even to the lower standard that he has a genuine or firmly held political belief in line with Viet Tan ideology. At best, he is a very low level supporter and I acknowledge that the respondent accepts he is a low level supporter. In addition, I further find that I am not persuaded that he would engage in any activity which would attract adverse attention if he were to return to Vietnam. On the basis of those findings, the need for any additional structured assessment against the approach derived from HJ (Iran) does not strictly arise”.
Grounds of Appeal
18. Ground 1 submits that the judge made several errors in the assessment of the appellant’s credibility. The following submissions are made:
(a) The judge failed to direct herself to the respondent’s concessions and that the only factual issue that the respondent did not accept was that the appellant’s parents are not currently detained in Vietnam.
(b) The judge failed to explain why she departed from the respondent’s acceptance in the refusal letter that the appellant had provided a reasonably detailed and externally consistent account of his arrest and detention including being mistreated whilst detained.
(c) The judge has not explained why she departed from the respondent’s acceptance that the appellant had sent leaflets in respect of Viet Tan to his parents’ home.
(d) The judge overlooked the respondent’s acceptance that his parents were previously detained for attending a protest, which was relevant to assessing the credibility of their detention as members of the Viet Tan Party.
(e) The judge’s finding as to the credibility of the appellant not maintaining contact with his family overlooked background evidence about the Viet Tan being designated a terrorist organisation.
19. Ground 2 submits that the judge failed to have adequate regard to background evidence about the Vietnamese state taking an interest in activities outside of Vietnam, and the surveillance that they carry out. It is stated that the First-tier Tribunal decision wrongly implied there is no evidence of surveillance by the Vietnamese state of overseas diaspora. It is also submitted in ground 2 that it is reasonably likely that the appellant would have come to the interest of the Vietnamese authorities given that he has published material online that is critical of the ruling party in Vietnam, published material about Viet Tan protests, has been photographed attending protests against the Vietnamese state, has a history of attending a protest (and being detained) in Vietnam, and his parents have a background of protest and detention.
20. It is also stated that the judge ignored that the appellant has publicly supported a designated terrorist organisation and as a result is likely to be questioned on return to Vietnam given his background and profile.
Ground 1
21. The central argument advanced in ground 1 is that the judge ignored concessions made by the respondent in the refusal decision. I am not persuaded that there is merit to this argument. I will address each of the points raised in ground 1 in turn.
22. First, it is submitted that the judge failed to recognise that the only factual issue not accepted by the respondent concerned the current detention of the appellant’s parents. In paragraph 40 of the respondent’s decision issue is taken with the appellant’s claim to have sent Viet Tan leaflets to his parents and in paragraph 50 issue is taken with the appellant’s claims regarding contact with his parents. It is therefore not the case that the only factual issue in contention was the detention of the appellant’s parents. I am therefore not persuaded that there is merit to this submission.
23. Second, the grounds submit that the judge failed to set out why she departed from the respondent’s acceptance that the appellant provided a reasonably detailed and consistent account of his arrest, detention and mistreatment following the Formosa demonstrations. The difficulty with this submission is that it fails to recognise that the judge’s findings regarding the appellant’s claims regarding the Formosa incident are consistent with the position taken by the respondent; i.e. it is accepted that the appellant was arrested and detained as claimed, but not that the treatment he experienced was sufficiently serious by its nature and repetition to constitute persecution. Indeed, the wording used by the judge in paragraph 46 is almost identical to that used by the respondent in paragraph 28 of the refusal decision. I am unable to see how it can be said that the judge departed from a concession by the respondent when the judge’s findings are materially the same as the position taken by the respondent. Accordingly, I am not persuaded by this submission.
24. Third, the appellant submits that the judge departed, without explanation, from the respondent’s acceptance that the appellant sent leaflets regarding the Viet Tan to his parents’ home. There is no merit to this submission because it is plain from paragraph 40 (as well as paragraph 47) of the respondent’s decision that this was not in fact accepted.
25. Fourth, the appellant submits that the judge overlooked the significance of the appellant’s parents being previously detained. The difficulty with this argument is that it was consistent with the objective evidence before the First-tier Tribunal for the judge to find that being arrested and detained following the Formosa protests is unrelated to involvement with, or any risk arising from involvement with, the Viet Tan.
26. Fifth, it is argued that the judge’s findings in respect of family contact are not sustainable because of a failure to take into account that the Viet Tan are illegal and considered terrorists by the Vietnamese authorities. This is not a meritorious point because there is nothing in the decision to indicate that objective evidence about the Viet Tan being an illegal terror organisation in Vietnam was overlooked. The judge considered the practical impediments to contact being maintained, and was entitled to find that the appellant had failed to explain why all contact (and efforts at contact) had ceased.
Ground 2
27. The central argument advanced in ground 2 is that the judge overlooked background evidence about surveillance by the Vietnamese state of Vietnamese citizens outside of Vietnam. However, no such evidence is identified in the grounds and Mr Fazli was unable to identify any at the hearing. He drew my attention to evidence of surveillance within Vietnam, but not outside the country. Accordingly, it was not inconsistent with the objective evidence that was before the First-tier Tribunal for the judge to find that, although there was evidence of surveillance within Vietnam, there was an absence of evidence about surveillance activities outside of the state. Moreover, and in any event, the judge found that the focus of monitoring within Vietnam is on those with a significant following and who have the capability to mobilise dissent – a category into which the appellant does not fall. The judge was therefore entitled to find that the evidence before her did not establish that there is a real risk of the appellant being monitored.
28. The submission in ground 2 that there is a reasonable likelihood that the appellant would have come to the interest of the Vietnamese authorities is no more than a disagreement with the judge who, based on a consideration of all of the material evidence, reached a different conclusion to that advocated in the grounds as to whether the appellant would face a risk. The conclusion reached by the judge was well within the range of reasonable responses and therefore open to the judge.
29. It is also not the case, as argued in ground 2, that the judge ignored that the appellant supports a designated terror organisation. The judge recognised the status of the Viet Tan in Vietnam but found that the appellant’s limited involvement was insufficient to establish that he has a genuine or firmly held political belief. The judge was entitled to find that the appellant’s lack of a genuine firmly held belief meant that he would not engage (or wish to engage) in activities in Vietnam that would give rise to a risk of persecution.
Notice of Decision
30. The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 November 2024