CI (Link to Mobutu)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 22 April 2004 |
| Neutral Citation | [2004] UKIAT 72 |
| Court | Immigration Appeals Tribunal |
| Date | 22 April 2004 |
[2004] UKIAT 72
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
For the Appellant: Ms S Panagiotopoulou, instructed by Lawrence & Co
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
CI (Link to Mobutu) Congo — Democratic Republic of CG
This is an appeal against the determination of an Adjudicator, Mrs D J Baker, promulgated on 23 rd October 2003. The Appellant is a female citizen of the DRC, who entered the United Kingdom on 4 th December 2002. On 15 th March 2003, the Secretary of State refused to grant asylum and took a decision to give directions for her removal. He also rejected her claim that removal would breach her rights under ECHR.
The Adjudicator rejected both her claims. The Tribunal refused permission to appeal but permission to appeal was granted on Statutory Review. The Adjudicator concluded that very much of what the Appellant had to say was truthful. She accepted that the Appellant's parents were high ranking army officers under President Mobutu, one a Brigadier General and the other a Lieutenant Colonel. Her father was killed in 1998 by the Laurent Kabila regime and her mother was arrested by the rebels. The Appellant was working as a low level trainee journalist and continued working in that way to make a living. She was working with the Congolese National Radio and TV. She married a Rwandan Tutsi who refused to join the rebels. She was living in the rebel held area of Kisangani and was arrested and detained by them.
The Adjudicator accepted that, taking all the evidence around that together, the Appellant had been beaten, burned with cigarettes and raped. The Appellant points out that the account of torture was in fact more horrific than recorded by the Adjudicator, but we see no reason to suppose that the Adjudicator had not accepted the evidence in effect that the Appellant had been tortured by the rebels in Kisangani. The Adjudicator also accepted that she was suffering from PTSD.
Nonetheless the Adjudicator rejected certain other matters given in evidence by the Appellant. The Adjudicator rejected her account of her escape. She thought it implausible that a priest, to whom the rebels forced the detainees to confess, would arrange for her release. She thought it implausible that the nuns would fund her journey to the United Kingdom, as the Appellant had supposed. The Adjudicator thought that her account of the escape and journey to the United Kingdom was a fabrication and that the Appellant had in fact been released by the rebels after detention and that the rebels in power in Kisangani had no continuing interest in her. The Appellant said later that she did not know where her children were, although she said that they were in the house with their father when she had left for work but that they had gone when she returned home and found the soldiers waiting to arrest her. She relied upon a letter which the Adjudicator referred to as “ allegedly from her maternal Aunt” telling her not to return and stating that there was no news of her children; this is a letter of 15 th February 2003. The Appellant stated that shortly after receiving the letter she telephoned her aunt and was told not to keep calling and now does not know where her aunt is. The Adjudicator said “ I find that the later part of her account has been fabricated to embellish her claim of the risks she faces on return to DRC.”
The Adjudicator concluded that she was not at risk of persecution on the grounds of her husband's ethnic origin if she was not with him, and that, even if she were, there would be no real risk of treatment amounting to persecution. She would not be at any real risk of treatment contrary to Article 3 in a rebel controlled area; this is because the Adjudicator concluded that they had no continuing interest in her. The Adjudicator also concluded that there would be nothing unduly harsh in the Appellant relocating in Kinshasa where she was born and where she might still have an aunt living. There were facilities for mental health treatment in DRC and although she might suffer a deterioration in her mental health at the point of return, she would be returning to Kinshasa where there was treatment which was under government control and where she would have no reason to fear the rebels, and accordingly concluded that Article 8 was not engaged.
The Appellant submitted that the background evidence showed that there would be a risk on return for those who had a military profile as she said she did, as the child of soldiers who were well known under the Mobutu regime and were well known in Kinshasa. The Adjudicator had ignored the fact that there was evidence that the Appellant's brother had more recently been imprisoned in Kinshasa through his associations with his parents. The rebel forces would have a continuing interest in her because it had been shown that her mother had been detained by the rebels. It was said that there was objective background evidence which showed that there was no adequate health system in DRC for those suffering from PTSD and that the Adjudicator had not applied the test in Razgar [2003] EWCA Civ 840 when considering Article 8.
The Appellant also submitted that the Adjudicator had failed to consider the problem which was raised before her of the Appellant being returned to Kinshasa but being seen by those in power there as a sympathiser with the rebels, even though she was not, because she came from Kisangani.
Miss Panagiotopoulou for the Appellant submitted that the case should be remitted for further findings of fact to be made against which the assessment of risk on return could be made. Those findings of fact in particular related to the position of the brother, the sister and the aunt and the risk to those coming from Kisangani. It would not be appropriate, she submitted, for the Tribunal to reach a conclusion in relation to the position of the brother based on the documentary material. There might be more evidence which the Appellant could give about it, although she was not in a position to help us with what that might be. She had no interpreter there to enable her to enquire of the Appellant what that position was.
Mr Gulvin for the Secretary of State said that there were certain omissions in the Adjudicator's findings, including a failure to make a finding as to the position of the brother; indeed there was a failure to make a finding in relation to the position of the sister and aunt, although that was not in fact a subject matter of any ground of appeal. The problems she might face on return to Kinshasa as the daughter of high ranking Mobutu army officers or as someone perceived as coming from the rebel area of Kisangani had not been dealt with either.
We would only remit the case if relevant issues could not be resolved by us. Except for the allegations in relation to what happened to the brother and the asserted absence of findings in relation to him, the sister and aunt, the rest of the case is dependent upon an assessment of documentary evidence relating to background conditions. The Appellant has given her evidence about the risks she would face and for what reason and as we have said, there is no basis for supposing that she has any more to say about her brother.
The position in relation to the brother, sister and aunt is more straightforward than the Appellant submitted. In paragraph 25 of the Adjudicator's determination it is plain that she is not accepting the genuineness of the letter from the aunt dated 15 th February 2003, or the truthfulness of its content. The Adjudicator says:
“In the Appellant's bundle at pages B13 and B14 is a letter allegedly from her maternal Aunt telling her not to return and enclosing a video, photographs and other documents and stating that there was no news of her children. The letter is dated 15 th February 2003. The Appellant stated in evidence that shortly after receiving the letter she telephoned her aunt and was told not to keep calling and as a result she does not know where her aunt is now. I find that the latter part of her account has been fabricated to embellish her claim of the risks she faces on return to DRC.”
It is clear that the conclusion that the latter part of the account had been fabricated, was not confined to the claim to have rung the aunt, but extended to the whole content of the paragraph; that is clear from the word “ allegedly” used to describe the letter. Such a conclusion is also soundly based in the material itself. The letter in question sent from Kinshasa says in translation that “ your mother is wanted”, “ they said your mother will be killed without trial if she is arrested”, “ if you have any news from your mother let me know”.
The Adjudicator had found as a fact that the mother had been arrested by rebels in Kisangani (although the Appellant said initially that the mother had been arrested by Kabila soldiers and only that she had been arrested by rebels in the second statement). There is no suggestion that the Appellant told the aunt that that is what had happened in any phonecall to her or in any other way,...
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