“14. The Appellant’s account is relatively straight forward. He claims that “At that demonstration, the police arrested and physically attacked many people. Three people in my group was arrested, including me and my 2 friends. We were arrested and put on a vehicle and they tortured us and they asked us who the leader was and they took my fingerprints, and they told me that the local authorities put my name on its blacklist. And they let me know that they will arrest and detain me” (Q45 of the AIR).”” “At that demonstration, the police arrested and physically attacked many people. Three people in my group was arrested, including me and my 2 friends. We were arrested and put on a vehicle and they tortured us and they asked us who the leader was and they took my fingerprints, and they told me that the local authorities put my name on its blacklist. And they let me know that they will arrest and detain me” (Q45 of the AIR).””
“28. I am very troubled by the Appellant’s failure to mention at the earliest opportunity that he had been arrested and charged. Nevertheless, on the totality of the evidence, and applying the lower standard of proof, I am satisfied that the Appellant has given a credible account of his experiences in Vietnam. 29. Plainly an asylum seeker is expected to tell the truth (see for example, YL (rely on SEF) China2004 UKIAT 00145 ). However, having had regard to the Appellant’s circumstances at that time I am satisfied that his failure to mention his arrest at the screening interview does not significantly undermine his claim. The Appellant had been held against his will for about 4 years and had only recently been able to escape from the traffickers. He had also been arrested a few days earlier and held in a detention centre. Further he was unrepresented. The Appellant’s claim that he was scared is plausible and may explain why he did not say that he had been arrested in Vietnam. 30. In any event, the omission does not undermine the favourable impression I gained from the Appellant’s responses recorded in the AIR. He provided a generally coherent and sufficiently detailed account of his arrest. Although the Appellant’s account as to when and where the local authorities warned him is inconsistent, I note that the Appellant did not seek to bolster his account. The Appellant could easily have maintained that they also came round the next day and warned him, but instead he told me that they just watched him. It is also to the Appellant’s credit that he confirmed that he had no further problems with the authorities. 31. Further, in my judgement the Appellant’s account is plausible. As the presenting officer noted the Appellant’s claim ‘chimes’ with the information provided in the CPIN. 32. Overall, I find that the Appellant has satisfied me that he was arrested, whilst attending a demonstration in Ho Chi Minh. I also find that he was beaten and returned to his home area, where the authorities advised him that he was on blacklist and they were watching him.”
“35. Counsel did not seek to rely on HJ (Iran). In my view this was an appropriate concession. The Appellant escaped from the traffickers in 2018, but the Appellant has only attended one demonstration in the UK and he has not suggested that he would attend any further demonstrations. Given there is freedom of expression and association in the UK, this is telling. I am satisfied that there is not a reasonable degree of likelihood of the Appellant participating in any activities in Vietnam that may be perceived as political or opposed to the regime. 36. Instead, counsel submitted that the Appellant had been persecuted in the past and, as the Appellant is on a blacklist he will be detained on his arrival and ill-treated again. As I have accepted that the Appellant was placed on a blacklist, I accept that the authorities may question him on return. However, in my judgement, the Appellant has not demonstrated that he was persecuted in the past. I am not satisfied that the single beating was sufficiently serious (see for example, Ali Cem Kaya v SSHD[2003] EWCA Civ 1195 ). I have considered whether there is a risk of repetition. Given the background material, they might slap him or beat him again, but once they discover that the Appellant has been in the UK since 2014 and only attended one demonstration in 2018, there is not a real risk of them taking any further adverse interest in the Appellant. The background material demonstrates that the authorities target individuals, who are actively opposed to the regime. Although a further beating will be unpleasant, I am not satisfied that the conduct will be persistent or systematic.”
“38. To the element of fear – a state of mind and a subjective condition – is added the qualification “well-founded”
“(b) Persecution 51. There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution. 52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make‑up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. 53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well‑founded fear of persecution on “cumulative grounds”
“15. Did the Tribunal properly approach the question of beatings? Mr Nicol submits that on a proper application of the Convention definition it was not open to the Tribunal, in the light of its finding that the appellant may be beaten by the police when detained on arrival, to find that this did not amount to persecution. Mr Nicol relies on the analysis of Professor Hathaway, a well-known authority in this field, whose work has been cited with approval not only in Ravichandran, but also in Lavarevic v SSHD [1997] Imm AR 251 per Hutchison LJ at p272 and also by Lord Lloyd of Berwick in Adan v SSHD[1999] 1 AC 293 , 307. It is convenient to cite the passage quoted in Simon Brown LJ's judgment in Ravichandran and his comment on it at p 107: “In sum, persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of any right within the first category, a discriminatory or nonemergency abrogation of a right within the second category, or a failure to implement a right within he [sic] third category which is either discriminatory or not grounded in the absolute lack of resources. The “first category” there referred to those rights from which no derogation can ever be permitted, even in, terms of compelling national emergency, rights such as freedom from the arbitrary deprivation of life, and protection against torture or cruel, inhuman or degrading punishment or treatment. . [sic] Clearly it would include protection against ill-treatment of the sort suffered by some Sri Lankan detainees in the past.”
“In my judgment, the issue is whether a person or group of people have a “Well-founded fear [i.e. a real risk - see ex parte Sivakumaran] of being persecuted for [Convention] reasons” - and similarly the article 33(l) and rule 180B(c) issue whether such a person's “freedom would be , threatened” for a Convention reason - raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.” … 18. Professor Hathaway’s analysis is helpful in showing that what conduct may amount to persecution is a question of degree. At one end of the scale there may be arbitrary deprivation of life, torture and cruel, inhuman and degrading punishment or treatment. In such a case the conduct may be so extreme that one instance is sufficient. But less serious conduct may not amount to persecution unless it is persistent. Staughton LJ in Ravichandran at p 114 said: “Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so.” 19. It would I think be open to a Tribunal to find that a single beating, unless it was particularly vicious or injurious, does not amount to persecution. But if there is a real risk of repetition the position would be different.. [sic] I do not think therefore that the Tribunal's finding, that the appellant may be beaten on his return, entitles the appellant to claim that that of itself amounts to persecution and the Tribunal must have misdirected themselves.” “In sum, persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of any right within the first category, a discriminatory or nonemergency abrogation of a right within the second category, or a failure to implement a right within he [sic] third category which is either discriminatory or not grounded in the absolute lack of resources. The “first category” there referred to those rights from which no derogation can ever be permitted, even in, terms of compelling national emergency, rights such as freedom from the arbitrary deprivation of life, and protection against torture or cruel, inhuman or degrading punishment or treatment. . [sic] Clearly it would include protection against ill-treatment of the sort suffered by some Sri Lankan detainees in the past.” “In my judgment, the issue is whether a person or group of people have a “Well-founded fear [i.e. a real risk - see ex parte Sivakumaran] of being persecuted for [Convention] reasons” - and similarly the article 33(l) and rule 180B(c) issue whether such a person's “freedom would be , threatened” for a Convention reason - raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.” “Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so.”
“63. As the authorities, which I have cited in paragraphs 53 to 56 above, clearly demonstrate, the concept of persecution for the purposes of the Geneva Convention (and indeed the Directive) requires that the past or apprehended harm to the asylum seeker must attain a substantial level of seriousness. Similar considerations apply to the demonstration of serious harm for the purposes of a humanitarian protection claim or an Article 3 claim. Family or social disapproval in which the state has no part lies outside its protection. Discrimination against members of a particular social group in the country of origin is not enough, even though such discrimination might be contrary to the standards of human rights prevailing in the state in which asylum is sought. As Lord Hope said in HJ (Iran), in the passage quoted above, the purpose of the Geneva Convention is: “to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge.”” “to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge.””
“73. Nor, in my judgment, in so far as the tribunal's characterisation of the ill treatment MF had received as not being sufficiently serious or severe to constitute persecution was a matter of law (as to which see per Stanley Burnton LJ in MA (Ethiopia) v. SSHD quoted above at [61] – [62]), can the decision be challenged either. On the basis of the tribunal's findings of fact, the harassment and intimidation which it found that MF had experienced before his departure from Venezuela was not per se so severe or serious that, “on the application of the denotation of persecution to the particular facts” (ibid), such treatment necessarily had (as a matter of law) to be characterised as persecutory within the meaning of the Geneva Convention. It was therefore a matter for the tribunal to evaluate whether, based on its primary findings of fact, the "seriousness" threshold had been crossed both in relation to past conduct and in relation to the prognosis as to future risk if he were to return to Venezuela. 74. I thus reject Ms Vidal’s submissions that the UT misdirected itself as a matter of law as to the meaning of "persecution" or construed the term too narrowly. The fact that, as she submitted, in one particular case a single beating amounted to persecution (Demirkaya v. Secretary of State for the Home Department supra), or that, in another (Lucreteanu v SSHD supra), telephone threats (without actual violence) were held to do so, does not vitiate the conclusions of the tribunal in this case. Its evaluation as to whether the severity of threshold had been crossed was one which was necessarily dependent on the particular facts of the case in front of it.”
“63. Such a distinction is incompatible with the broad definition of “religion” given by art.10(1)(b) of the Directive, which encompasses all its constituent components, be they public or private, collective or individual. Acts which may constitute a “severe violation” within the meaning of art.9(1)(a) of the Directive include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly. 64. That interpretation is likely to ensure that art.9(1) of the Directive is applied in such a manner as to enable the competent authorities to assess all kinds of acts which interfere with the basic right of freedom of religion in order to determine whether, by their nature or repetition, they are sufficiently severe as to be regarded as amounting to persecution. 65. It follows that acts which, on account of their intrinsic severity as well as the severity of their consequences for the person concerned, may be regarded as constituting persecution must be identified, not on the basis of the particular aspect of religious freedom that is being interfered with but on the basis of the nature of the repression inflicted on the individual and its consequences, as observed by the A.G. at point AG52 of his Opinion. 66. It is therefore the severity of the measures and sanctions adopted or liable to be adopted against the person concerned which will determine whether a violation of the right guaranteed by art.10(1) of the Charter constitutes persecution within the meaning of art.9(1) of the Directive. 67. Accordingly, a violation of the right to freedom of religion may constitute persecution within the meaning of art.9(1)(a) of the Directive where an applicant for asylum, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in art.6 of the Directive.”
“86 Ill-treatment must attain a minimum level of severity if it is to fall within the scope of art.3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it, although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of art.3. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. 87 Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral or physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in art.3. It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others. 88 Furthermore, in view of the facts of the case, the Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in art.3.”
“159. Nevertheless, according to the Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162; Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; Naumenko v. Ukraine, no. 42023/98, § 108,10 February 2004 ; and Svinarenko and Slyadnev, cited above, § 114). 160. In order to determine whether the threshold of severity has been reached, the Court also takes other factors into consideration, in particular: (a) The purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (see Bouyid, cited above, § 86), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out its characterisation as “degrading” and therefore prohibited by Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; Price, cited above, § 24; and Svinarenko and Slyadnev, cited above, § 114). (b) The context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (see Bouyid, cited above, § 86). (c) Whether the victim is in a vulnerable situation, which is normally the case for persons deprived of their liberty (see, in respect of police custody, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII, and Bouyid, cited above, § 83 in fine), but there is an inevitable element of suffering and humiliation involved in custodial measures and this as such, in itself, will not entail a violation of Article 3. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Rahimi v. Greece, no. 8687/08, § 60,5 April 2011 ).” (a) The purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (see Bouyid, cited above, § 86), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out its characterisation as “degrading” and therefore prohibited by Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; Price, cited above, § 24; and Svinarenko and Slyadnev, cited above, § 114). (b) The context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (see Bouyid, cited above, § 86). (c) Whether the victim is in a vulnerable situation, which is normally the case for persons deprived of their liberty (see, in respect of police custody, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII, and Bouyid, cited above, § 83 in fine), but there is an inevitable element of suffering and humiliation involved in custodial measures and this as such, in itself, will not entail a violation of Article 3. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Rahimi v. Greece, no. 8687/08, § 60,5 April 2011 ).”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular: (i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probably that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department[2008] AC 678 per Baroness Hale of Richmond at para 30. (ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department[2011] 2 All ER 65 , para 45 per Sir John Dyson JSC. (iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber)[2013] 2 AC 48 , para 25 per Lord Hope of Craighead DPSC.”