WN (Surendran; credibility; new evidence)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 04 August 2004 |
| Neutral Citation | [2004] UKIAT 213 |
| Court | Immigration Appeals Tribunal |
| Date | 04 August 2004 |
[2004] UKIAT 213
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr D J Parkes (Acting Vice President)
Mr D C Walker
For the Appellant: Ms R Chapman, instructed by Wilson & Co
For the Respondent: Mr C Buckley, Home Office Presenting Officer
WN (Surendran; credibility; new evidence) Democratic Republic of Congo
This is an appeal against the determination of an Adjudicator, Mr R A Prickett, promulgated on 22 nd July 2003. In his determination he dismissed the appeal on asylum and human rights grounds against the decision of the SSHD of 17th February 2003.
The Appellant is a 35 year old man, a national of the Democratic Republic of Congo, who arrived in the United Kingdom on 17 th October 2002 and claimed asylum about two weeks later. The basis of his claim was that he was of mixed ethnicity with a Congolese mother and a Rwandese father. He claimed that he was unable to obtain a job in Kinshasa for a number of years. In August 1998, the war in the Democratic Republic of Congo began. The Congolese began targeting those with Rwandan parents or roots. He said that a crowd of 30 or 40 people had come to his house one day, two had entered and had begun to question the Appellant's sister while the people outside were threatening to burn all Rwandese Tutsi. He said he fled through the back door and went some 40–50 metres to the neighbour's house where the Congolese neighbours, who had been good friends, took pity on him and let him stay for the night. The neighbours told him that his sister had been burnt alive and they gave him money to buy a boat ticket for the long journey to Bumba, where he immediately went. He met somebody who let him stay and grow food, but he also said that he was in hiding there. While he was there, a boy who knew him in Kinshasa saw him and told the Bumba community that the Appellant was Rwandan and that he had fled because the army had killed his sister. The boy had approached him asking him what he was doing in Bumba as a Rwandan, so the Appellant next day left Bumba in fear of his life and went to Kisangani. This was on 11 th May 2002, so he had been in Bumba for nearly four years.
On the morning that he arrived in Kisangani he bumped into four young people from Kinshasa who knew him very well. They returned with the Congolese police, said that he was Rwandan and then the police beat and tortured him. He was put in a deserted house and a few days later, the Appellant was able to escape, because the guards deserted the prison and left the doors open as they fled during fighting between Rwandan and Ugandan soldiers.
The Appellant then found a priest who was also fleeing the Democratic Republic of Congo and together they went to Tanzania from where the two flew to London in October 2002. They had stayed some five months in Tanzania. The priest then left the Appellant with the Congolese community in London.
At his screening interview he was interviewed through a French interpreter; the form said that he would prefer to be interviewed in French. At the asylum interview the Appellant said that he would prefer to be interviewed in Lingala, but understood the French interpreter. He was asked some questions at interview at which he explained that he had had no problems in Kinshasa before the day his house was attacked. He did not know the name of the priest who assisted him but the priest had organised everything and prepared the documents enabling the Appellant to flee; the priest had received no money for organising the flight. The priest had prepared all the documents and showed them to the authorities on arrival.
The Secretary of State's refusal letter said that he did not find the Appellant's account plausible or accept that he had moved to either Bumba or Kisangani or fled from the country in the way described. He noted that he had spent five months in Tanzania without claiming asylum and considered that even if the claim was true and that he was of mixed ethnicity, he had not explained how he could be identified as a Tutsi or of Tutsi ancestry.
Before the Adjudicator's hearing, the Appellant submitted several bundles of new documents. These included his parents' marriage certificate and his own birth certificate which had been sent to him by his uncle. He explained in his witness statement that after he had gone into hiding in Bumba in August 1998, he had maintained contact with his wife and she was to come and stay with him for a month every three months; that was the explanation as to how the three children were born while he was in Bumba. The Appellant said to the Adjudicator that he had met his wife by chance in Bumba in 1999 when she had come to Bumba as part of her trading work. He had previously lost contact with her. They were not living together at the time of the attack in 1998 because they could not afford to do so.
But he also produced an article in a newspaper “ La Reference” of 18 th December 2002, a DRC newspaper which mentioned the incident of 26 th August 1998, gave the Appellant's name as a collaborator for the Rwandan secret services and the Appellant said that the account had been given to the newspaper by the priest who had helped him escape. The copy of the newspaper had been sent by his uncle. There was further background material.
The Adjudicator records that he told the Appellant's representative that he considered credibility to be the main issue in the appeal. The Secretary of State was not represented. Accordingly, the Adjudicator records that he reminded himself of the Surendran guidelines and says (paragraph 23) that he told the Appellant's representative that as credibility had been raised as an issue, he was required to deal with that.
The Adjudicator concluded that the Appellant was not credible, rejected his account and said that he was not satisfied to the required standard of proof that the Appellant was part Tutsi or in one of the categories of persons identified by the UNHCR as being at risk of persecution on return. Accordingly, he dismissed the appeal. He set out at some length why he reached that view.
The Adjudicator referred to the argument that he should disregard the contents of the asylum interview because that had been conducted in French, whereas the Appellant would have preferred to have been interviewed in Lingala but none was available. The Adjudicator correctly dismissed that contention. The Appellant had agreed to be interviewed in French, said that he understood the questions and the interpreter, said that he was happy with the conduct of the interview, and answered all the questions. There is no record that he asked for questions to be repeated or appeared not to understand them. He had also been interviewed in French at the screening interview, at which he had said that he wanted to be interviewed in French. A complaint was made about that conclusion in the grounds of appeal to the Tribunal. It does not appear to have been pursued in the later application for Statutory Review. There is nothing in it.
The Adjudicator said that he found all the events described by the Appellant to be implausible. As to the attack on 26 th August 1998, he thought it implausible that the Appellant would be able to escape from the back door and enter the house next door some 40–50 metres away. He expressed his conclusion in the form of a question, “ Why did the crowd not ensure, and it was a large crowd, that no one could leave the house through the back door? Why did the crowd not see him as he covered this distance? Why did the Appellant not leave Kinshasa immediately or go to hide in an area well away from where the crowd was?” He thought it highly unlikely that someone would seek refuge from a murderous crowd in the neighbour's house, spending the night there. He queried why the Appellant did not consider leaving the Democratic Republic of Congo at that stage.
The Adjudicator then refers to the Appellant's journey to Bumba and points out that he says nothing in the SEF about where his pregnant wife was at that stage. He queried why he had left her in Kinshasa and made no attempt to see whether she was safe before he left. He did not accept that she would be safe as a Congolese, because she was married to the Appellant and the child, when born, would on the Appellant's story be part Tutsi. He found it implausible that the Appellant, having gone to Bumba, would have no problems there for four years until he was seen by a boy who knew him from Kinshasa and told the Bumba community that he was Rwandan. The Appellant had said that he was in hiding in Bumba for four years, but that was not consistent with his having a small garden from which to feed himself from the food he grew there.
The Adjudicator pointed out that it was only in his witness statement that he referred to seeing his wife in Bumba, saying that she used to come and stay for a month about every three months. He said that the Appellant had told him that the first time this had happened was in 1999, but that was inconsistent with the dates of birth of the children. He found it implausible that he should have met his wife by chance on a street in Bumba when she was visiting as a trader; it was a large town. He also did not understand how the Appellant was able to meet his wife in the street if he was in hiding. He expressed himself by asking questions, “ Why was this meeting by chance? Why if the Appellant knew that his wife came to Bumba to trade did he not contact her in Kinshasa and tell her where he was hiding?” He also found it implausible that the Appellant had lived for four years in Bumba without problems but then was recognised by a boy whom he had known in Kinshasa, and then decided to leave Bumba in fear of his life the...
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