FRANCOIS MIBANGA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Mr Justice Wilson,MR JUSTICE WILSON,LORD JUSTICE BUXTON |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] EWCA Civ 367 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/2067 |
| Date | 17 March 2005 |
[2005] EWCA Civ 367
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Buxton
Mr Justice Wilson
C4/2004/2067
MISS N BRAGANZA (instructed by Messrs Douglas & Partners, Bristol BS2 8YA) appeared on behalf of the Appellant
MR ROBIN TAM (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
I will ask Mr Justice Wilson to give the first judgment.
The appellant, a citizen of the Democratic Republic of Congo (DRC), appeals from a decision of the Immigration Appeal Tribunal dated 10 August 2004. He had appealed to the tribunal, which, by virtue of section 101(1) of the Nationality, Immigration and Asylum Act 2002 could be only on a point of law, against the determination of an adjudicator, dated 1 September 2003, by which his appeal against the refusal of the Secretary of State for the Home Department to grant him asylum or leave to remain in the United Kingdom on human rights grounds had been dismissed. The Secretary of State appears as the respondent to the appeal.
The essential nature of the appellant's complaint to the tribunal was that the adjudicator had erred in law in the way in which she had conducted the requisite fact-finding exercise. That point found no favour with the tribunal but now the appellant brings it to this court.
Most of the background facts are in issue. It is however agreed that the appellant, who is now aged 38, came to the United Kingdom from the DRC on about 4 June 2002 and at once claimed asylum. It is also agreed that, by that time, his wife and their three children had already come to the United Kingdom; and that the family is now living together in Bristol. The wife and two of the children, including one who was recited at some stage as having been born on 18 January 2001 but whom the appellant alleges was born on 28 June 2001, had arrived in the United Kingdom in November 2001; and in about February 2002 they had been granted exceptional leave to remain for four years, i.e. until about February 2006. The third child, a girl now aged seven, had come unaccompanied to the United Kingdom in April 2002 and thus was not able to be included in the grant of exceptional leave. In his asylum and human rights claims the appellant therefore presented her as his dependant.
It was the case of the appellant, both in the presentation of his claim to the Secretary of State and in evidence to the adjudicator, that:
(a) he had been born and brought up in the area of Kisangani in the north- east of the DRC;
(b) upon his marriage, his father-in-law, who was a leader of one of the Mai-Mai militias, persuaded him to join it even though, by ethnicity, he was not a natural member of it;
(c) between 1999 and 2002, and indeed since then, the Mai-Mai had been in fierce conflict with the Rwanda-backed rebel forces known as RCD-Goma;
(d) in about 1999 his father-in-law had been killed by RCD-Goma;
(e) at that time he had himself been detained by RCD-Goma and, subject to two interruptions to which I will refer at (g) and (h), had been kept by them in subhuman prison conditions until May 2002;
(f) during the period of his captivity he had been cruelly tortured in an effort on the part of RCD-Goma to extract intelligence from him relevant to their conflict with the Mai-Mai; he had even suffered the passage of an electrical current through his penis and testicles;
(g) he had developed malaria with the result that between August and October 2000 his captors had allowed him to stay in hospital; both while in hospital, and indeed until 2001 while in prison, his wife had been permitted to visit him; and it was while in hospital that the child born in June 2001 had been conceived;
(h) in November 2001 he had managed to escape from the prison: in the course of carrying a bucket of the prisoners' faeces to a dump he had been able to escape through a crumbling wall but after about two days he had been recaptured; he ascribed to witchcraft his good fortune in being able to escape, although he accepted that in Western eyes such would be likely to be an unacceptable explanation for it;
(i) in May 2002 he had finally escaped, or been released, from prison; he had been enabled to do so because his guards had been distracted by riots outside the prison and because, in particular, one guard, being a member of his own tribe and surprised that he had subscribed to the Mai-Mai, had taken pity on him and helped him to flee; and
(j) thereupon an uncle had enabled him to escape upon forged papers from the DRC.
In his letter of refusal dated 15 January 2003 the Secretary of State expressed comprehensive disbelief of the history given to him by the appellant. He expressed disbelief that the appellant had been detained by rebel forces; disbelief that he had suffered beatings and the passage of an electrical current through his testicles; disbelief at his father-in-law's death; and indeed disbelief that the appellant had ever been a member of a Mai-Mai militia. He also pointed out that, even though RCD-Goma rebels were in control of much of the north and east of the DRC, the government of Joseph Kabele was firmly in control of the west and that in any event there was no reason for the appellant to fear persecution or human rights abuses if returned to Kinshasa, which is in the extreme west of the country.
Apparently galvanised by the rejection of his credibility, the appellant secured two expert reports for use before the adjudicator.
The first report was by Professor Pottier. He is a research fellow attached to the School of Oriental and African Studies at the University of London and has special responsibility for Central Africa; prior to joining the school in 1980 he lived and worked in Zambia and the DRC; and he has written extensively on the politics of the DRC. In his report he explained in detail the conflict since 1996 between the established government of the DRC, led first by Laurent Kabila and, since his murder, by Joseph Kabila, and the Rwanda-backed RCD-Goma rebels. He also sought to address the ambiguous political sympathies of the various autochthonous Mai-Mai groups and in particular to explain why, even though they have for long been generally at loggerheads with the RCD-Goma rebels, it does not follow that they have a close relationship with the Kabila government. He also referred to an agreement reached in Pretoria in December 2002 under which a transitional coalition government, headed by Laurent Kabila, was set up in the DRC. Within the government is a substantial constituency of members of RCD-Goma, which has thus expanded its power from its base near the eastern border with Rwanda across the DRC to the west and even to Kinshasa. He explained that, following the Pretoria agreement, some Mai-Mai groups had reconciled themselves to the end of hostilities, while others continued to fight the former rebel factions, in particular RCD-Goma, in order to drive Rwandan influences out of the DRC. He explained that hostility on the part of Mai-Mai groups towards RCD-Goma goes particularly deep because of the brutality with which the latter has treated the former, particularly in 1999 when entire villages suspected of collaboration with the Mai-Mai had been eliminated by RCD-Goma.
The professor then addressed the evidence of conditions in the detention camps in which RCD-Goma rebels held members of the Mai-Mai. He said that it was well known that camp conditions were very harsh; but that, in order to ensure that detainees received some food, family members were allowed to visit them. He said that overcrowded cells, beatings with belts and torture by the application of electric shock to genitals were common. He said that the appellant's account of the conditions under which he was held, and of the torture which was inflicted upon him, conformed with what observers and human rights organisations had reported. He said that conditions in the camps had been described as subhuman; and that the appellant's description of the torture imposed upon him came over as genuine. He was also asked, if possible, to comment on the appellant's allegation that he had managed to escape, in particular on the second occasion. The professor reported that each of the reasons offered by the appellant for his ability to escape on that occasion was very plausible: first because his alleged escape was indeed at a time when riots were occurring which would have diverted the attention of his captors; and second because the allegation that his fellow tribesman was unable to understand his affiliation with a Mai-Mai group reflected the fact that the appellant comes from an area in central DRC in which there is no particular sympathy for the Mai-Mai.
Finally the professor considered the argument that in any event it was safe for the appellant to return to an area of the DRC under government control. In this regard he repeated that the relationship between RCD-Goma and the Mai-Mai remained unresolved; and he ended his report in these words:
"Now that RCD-Goma have secured a strong position within the DRC's transitional government, we have every reason to believe that the RCD-Goma will intensify its efforts to quash the Mai-Mai movement. In all likelihood, this means that the anti-Mai-Mai campaign will move beyond eastern Congo to other parts of the country where Mai-Mai and their sympathisers may be residing. This more than likely...
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