United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005789
	First-tier Tribunal No : PA/60481/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3 ^rd of April 2025

 

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

DEPUTY UPPER TRIBUNAL JUDGE DAVIES

 

Between

XP

(anonymity direction made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr R Wilcox of counsel, instructed by S N and Co. legal services

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 26 March 2025

 

DECISION AND REASONS

1.       The Appellant is a Vietnamese national. His claim for asylum was based on having been involved in political activity (protesting against the Formosa company) in Vietnam in April 2014. He entered the UK in September 2015 and claimed asylum in the UK on 4 May 2022. He further claimed that, since coming to the UK, he had joined the Viet Tan party and had attended meetings and demonstrations. It is these claimed sur place activities which form the basis of his current grounds of appeal.

2.       The Secretary of State refused the Appellant's claims for asylum and humanitarian protection and refused his claim on human rights grounds. He appealed to the First tier Tribunal. His appeal was heard by cloud video platform on 26 September 2024 by First tier Judge Norris ("the Judge").

3.       The appeal was dismissed by decision dated 13 October 2024.

4.       Permission to appeal was refused by the First tire Tribunal Judge Shepherd on 6 December 2024.

5.       Permission to appeal was granted, by reference to renewed grounds of appeal dated 17 December 2024, on 20 January 2025 by Upper Tribunal Judge Reeds, on all grounds.

6.       The grounds of appeal do not seek to impugn the Judge's findings in relation to his activities in Vietnam. The focus of the grounds is upon the Judge's approach to the Appellant's sur place activities and the Judge's consideration of whether the Appellant is at risk on return as a person who has claimed asylum in the UK in reliance upon political activity.

7.       Grounds 1 to 4 relate to the Judge's consideration of the sur place activities.

8.       Ground 1 alleges inadequate, inaccurate and unsafe findings as to the Appellant's sur place activities. The Judge at [20] records having been provided with unlabelled, poor-quality photographs. We observe that the Upper Tribunal was provided with better quality, colour photographs and so our focus has been on the documents which were before the Judge. The banners and cards that the Judge was able to discern, and therefore the causes the Appellant was demonstrating about, are recorded at [20] (a) to (c). It is apparent that whereas some of the protests related to China, not all did, and that is in our view consistent with the impugned paragraph 44 which records that, "in most of [the photos] he appears to be protecting against Chinese interference in Vietnam". Taking paragraphs 20 and 44 together, there is in our view no error of law in the Judge's approach to the analysis of the causes about which the Appellant was protesting in the UK.

9.       Mr Wilcox submitted that the Judge should have identified that a logo apparent on a banner in some photos is also the logo which appears on a letter from the Viet Tan organisation that was in the Appellant's bundle before the Judge. He accepted that this logo and its significance were not drawn to the attention of the Judge. We find that there is no error of law in relation to this. It is not reasonable or realistic to expect the Judge to identify logos from banners and match these to other documents within the papers.

10.   We also do not consider there to be an error of law in relation to the Judge's alleged failure to conduct internet research so as to identify the location of the demonstration featured in the photo and to conclude on the basis of such research that the protest took place outside the Vietnamese Embassy or another official building, in circumstances where evidence was not adduced as to the location of the protest.

11.   Ground 2 alleges that the Judge was wrong to require direct evidence that sur place activities are subject to surveillance by the Vietnamese state. The Judge, at [47] said that " There is not reliable evidence that [the Appellant] has attended protests that would have drawn adverse attention from the Vietnamese authorities".

12.   On the Appellant's behalf it is accepted that there is no direct evidence of surveillance of demonstrations held in the UK. There is evidence contained in the August 2023 CPIN, at chapter 12 in particular, that the Vietnamese authorities conduct electronic surveillance of dissident online activity. However, this is not relevant to risk to this Appellant, as no evidence was placed before the Judge that the Appellant's sur place activities were posted online: see [45].

13.   The authority relied upon in support of the Appellant's proposition on which this ground is predicated is WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894, at paragraph 84, in which Laing LJ considers the case of YB (Eritrea) [2008] EWCA Civ 360. Laing LJ's analysis of paragraph 18 of YB is that it was not being suggested in YB that a tribunal must infer successful covert activity by a foreign state in the circumstances described, but rather that a tribunal could not be criticised if it was prepared to infer successful covert activity on the basis of limited direct evidence.

14.   Neither case, in our view, is authority for the proposition that the Appellant seeks to make good, namely, that a failure to infer successful covert surveillance in the absence of direct evidence amounts to a material error of law. There is no material error of law in the Judge's approach to the question of whether the Appellant's activity in the UK would draw adverse attention from the Vietnamese authorities [47].

15.   Ground 3 alleges that the Judge has failed, in concluding that the Appellant is not at risk in Vietnam, to take into account CPIN Guidance (August 2023) in relation to the illegality of even low-level protest in Vietnam and the targeting of low-level dissidents, protestors and bloggers. This ground, in our view, falls to be determined in line with Ground 2 (above). The Judge did not make any material error of law in her analysis of the country materials and their application to the Appellant's circumstances. The Judge's finding, reflected at [49] is that the Appellant does not hold genuine opposition to the Vietnamese authorities. That is a finding properly open to the Judge.

16.   Ground 4 is also linked to Ground 2. It is that the Appellant's sur place activity would in all probability have come to the attention of the authorities, even if considered low-level, and would lead to a reasonable likelihood of persecution.

17.   The characterisation in this ground of the Appellant as a " visible, consistent protestor outside the Vietnamese Embassy in London" is not a characterisation which is supported by the Judge's findings (discussed above) either in relation to frequency, visibility (noting that there was no evidence before the Judge as to the Appellant having publicised his activities) or location. Having rejected the Appellant's account of his sur place activity in the terms set out in the final sentence of [47], and having found that the authorities would not be aware of the Appellant's sur place activity, the Judge was not required to consider as a separate matter whether the activity that was accepted as having taken place would be considered criminal: the Judge implicitly considered this in concluding that there would not be adverse attention from the Vietnamese authorities. We find no material error of law in relation to this ground.

18.   By Ground 5, the Appellant alleges that the Judge failed to consider risk to the Appellant on return by virtue of being a failed asylum seeker. The submission made on his behalf is that he has associated with an organisation (Viet Tan) considered to be a terrorist organisation by the Vietnamese state, and that disclosing on return the fact that he had claimed asylum on that basis in the UK would expose him to risk of mistreatment even as a "low-level" returnee.

19.   The First tier Tribunal determination records the issues in dispute at [7]. Risk solely on the basis of having claimed asylum in the UK on grounds of political belief is not recorded within those issues in dispute. Mr Wilcox was not able to take us to any material before the Judge showing that this aspect of risk had been raised. This ground is an attempt to raise for the first time an issue which was not identified below, in the context of an appeal which is issue based, and to which procedural rigour must be applied.

20.   The parameters of the appeal are those identified by the parties as being in dispute, subject to there being an issue which is Robinson obvious such that the Judge would be required to consider it irrespective of the parties having identified it.

21.   Mr Wilcox, having accepted that risk on return by virtue of being a failed asylum seeker had not been raised before the Judge, sought to argue that this was a Robinson obvious point. We disagree. Mr Wilcox was not able to take us to any evidence in the country information materials showing that failed asylum seekers are at risk on return, and in the absence of such evidence, we find there to be no material error of law in the Judge's approach, which was not to treat the issue as one requiring resolution in the absence of it being identified by the parties as such.

Notice of Decision

22.   The anonymity direction made by First tier Tribunal Judge Norris on 13 October 2024 is maintained.

23.   The decision of the First-tier Tribunal dated 26 September 2024 contains no material error of law.

24.   The Appellant's appeal is dismissed.

 

Siân Davies

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber