Santukabare v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE PILL: This is an appeal by Jean Santukabare against a decision of the Immigration Appeal Tribunal promulgated on 28th February 2005. The Tribunal dismissed an appeal from a decision of an adjudicator promulgated on 25th November 2003. On 1st April 2005 the Tribunal refused permission to appeal to this court on the basis that the application to it for permission was out of time and there was no power to extend time.

2. Permission was given in this court on a consideration of the papers by the single judge, but without prejudice to the Secretary of State for the Home Department ("Secretary of State") making any point he wished to on the time limit for the application to the Tribunal. No such point has been taken by Mr Tam, on behalf of the Secretary of State, who was prepared that the appeal should proceed on the basis of permission granted in this court. I raised the jurisdictional question, there having been no grant or express refusal by the Tribunal. That point has been considered in this court in Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, where the same point arose. Mance LJ stated at paragraph 34:

"However that may be, in my view, the Tribunal's refusal to entertain the application for permission to appeal made to it in August 2002 counts as a refusal of permission to appeal within the meaning of Schedule 4, paragraph 23(2). The Court of Appeal therefore has jurisdiction to consider an application for permission to appeal."

Accordingly we have jurisdiction to hear the appeal.

3. The appellant is a citizen of the Democratic Republic of Congo ("DRC"). He is 28 years old. He arrived in the United Kingdom on 21st November 2000, and claimed asylum on the following day. By letter dated 16th January 2001 asylum was refused and a decision made to give directions for removal.

4. The appellant's case before the adjudicator was that he had been mistreated in the DRC by rebel forces supported by Uganda. Amongst his allegations were that he had been burned with cigarettes and beaten with an iron bar to his leg. He had scars on the leg. He was told he would be killed and was forced to disclose information. It was the fact that he had problems with his first solicitor on arrival in the United Kingdom that accounted for his failure when he had been interviewed to make the allegations made in evidence. He did not consider it safe to go to a government-controlled area in DRC because he had received information that his uncle, a Rwandan, had been killed because he was from Rwanda. The uncle had been told that he was a traitor. That was in August 1998. The appellant also said that his father had been killed in a road accident in 1995.

5. The appellant is a Hutu and considered to be a Rwandan. In Kinshasa, he argues, he would be treated as a traitor because he came from an area controlled by the rebels. There have been serious disturbances in central Africa. The government of the DRC felt itself threatened by activities which may have been based on other countries, including Rwanda, and which may have involved Rwandans.

6. Having accepted a submission made on behalf of the appellant that credibility was the main issue, the adjudicator concluded that the appellant was a witness of truth. He said he was assisted by medical evidence that the appellant displayed the symptoms of post-traumatic stress disorder and also had scars. The point was faintly taken by Mr Collins on behalf of the appellant -- though rightly not persisted in, in my judgment -- that having stated what he had about the main issue, the adjudicator was at fault in going on to say (at paragraph 11):

"The question I have to therefore consider is whether the Appellant has established that if returned to the DRC now, there is a reasonable degree of likelihood that he would face a real risk of persecution."

7. The point impressed the Vice-President of the Tribunal who granted leave. I see no merit in it. The adjudicator, when stating that the issue in this case was one of credibility, was agreeing with the submission made on behalf of the appellant recorded in the previous paragraph to that effect and the adjudicator plainly, from his consideration of it, regarded the question of risk on return as a major issue which he had to confront.

8. It was accepted that the appellant would be returned, not to the rebel-controlled area in the eastern parts of the DRC, but to Kinshasa, the capital of that state. His case was that he would be accused of working for the rebels because he had lived in Bunia, an area in the east of the country. The adjudicator stated:

"11. ... I take into account the fact that he was working as a clerk in the Department of Information and Propaganda in Kinshasa between 1997 and 1998 but was transferred with his work to Bunia on 1st July 1998. I do not accept that the Appellant would be regarded as having worked for the rebels since he was living in Bunia and would be regarded as a traitor. I find that a fanciful explanation, particularly bearing in mind the Appellant's account of his severe ill-treatment at the hands of the rebels and the fact that he was detained in a camp in Bunia and then moved to Kampala in Uganda and severely ill-treated by the rebel forces and all the Ugandan soldiers."

9. The adjudicator referred to the appellant's latest witness statement, in which he stated that he feared for his life in Kinshasa because of his ethnic origin. His uncle and, he suspected, his father had already died because they were suspected of having been part of the rebellion against the government of the DRC.

10. The adjudicator stated, still at paragraph 11:

"Although the Appellant had left Kinshasa by then [that is August 1998] to go to Bunia, I am not satisfied that after five years, the authorities would have any interest in the Appellant or would suspect him of being complicit in the rebellion, even if his uncle had been killed by the Kabila regime. In fact, the government had sent the Appellant to Bunia and his role was to inform the population about the new programme and policies of the government. Bearing in mind the Appellant's claim that he was captured and beaten by the rebel forces and those supporting the rebels, it is hardly plausible that the authorities in Kinshasa would suspect him of being part of the rebel group, whatever the fate of the uncle."

11. The adjudicator went on in paragraph 12 to consider the in-country information which was before him. He referred to the CIPU report, which was dated April 2003. He referred to the Human Rights Watch World report, the US State Department report and the Amnesty International report, and also to a then very recent report by Mr Erik Kennes, dated October 2003. The adjudicator stated:

"... I attach weight to the fact that the Appellant lived in Kinshasa from around 1982 when he was only about five years of age, attended school there, went to a university in Kinshasa and then obtained work as a clerk at the Department of Information and Propaganda. He remained in Kinshasa up until 1998 without experiencing any difficulties. I am therefore satisfied in all the circumstances of the case, that the Appellant could be safely returned to Kinshasa. A new transitional government was set up on 30th June 2003 and there appears to be progress in the holding of democratic multiparty elections in 2005."

12. The adjudicator referred to advice contained in a UNHCR letter and stated:

"I cannot see that this would be a reason for the authorities ill-treating the Appellant himself. Whilst I appreciate what UNHCR advise, in the Appellant's own particular circumstances, I do not find that there is any real risk of what is mentioned in the UNHCR letter actually occurring to this particular Applicant."

13. The adjudicator dismissed the asylum appeal. He also dismissed the human rights appeal, as to which no submissions have been made at this hearing.

14. Before considering the decision of the Tribunal, I refer to the submissions forcefully made on behalf of the appellant by Mr Collins. He submits that the focus of the court should be on the adjudicator's decision. He submits that the adjudicator adopted an erroneous approach. In particular, he failed to have regard to the in-country evidence before him in Mr Kennes' report. At page 30 of the report (page 151 of the bundle):

"It is important to mention that the violence occurred against Tutsi-looking persons , as reported in the 1999 report by the Special Rapporteur Roberto Garreton. For a Congolese, it is easy to identify 'Rwandese-looking persons', but it is not always easy to distinguish among Hutu and Tutsi. All Rwandans were considered suspect. Even more so, any person thought to be associated with the rebels is considered 'Tutsi', which means that 'Tutsi' has become a classificatory term denoting Hutu, Tutsi as well as Congolese. As anyone knows, the popular imagination is always mobilised by generalisations and ethnic polarisation, where the oppositions are determined by the sides one is on in a conflict, and not by biological origin.

Presently, there are no reports of systematic persecution of ethnic Tutsi or Hutu in the government-controlled areas. Yet, this does not mean the situation is safe: very few Rwandans remained in this area, and several preferred to stay in the prison camp for fear of attacks by the population. No ethnic Tutsi (or Hutu) considers the situation to be safe enough for considering a return to their home country. Suspicion remains high against any person considered to be a potential ally for the rebel movements ; a fortiori suspension against ethnic Rwandans is definitely much higher than against other DRC citizens. Consequently, the risk factor is undoubtedly higher. The lack of reporting about persecution of persons from Rwandan origin is simply due to the disappearance or invisibility of persons from Rwandan origin, and on the consensus among the population about the necessity to keep all Rwandans out."

15. The following page he stated:

"Any person from the East, whether Rwandan [or] Congolese, is considered to be suspect."

16. A little later:

"Even if somebody might be considered as 'Congolese' (and/or Hutu), an accusation of being 'Tutsi' or 'Rwandan' (in the classificatory sense) is enough for being arrested. As anyone knows in Congo, your safety may depend on your neighbours and the possibility they have of accusing you with the aim of stealing your possessions. Many cases of this phenomenon are known."

17. Later in the report there is a section dealing specifically with the appellant's case. Mr Kennes sets out at page 41 of the report the risk factors involved, and his conclusion is:

"Still, the danger comes from inside the capital. The government is composed of many different groups and factions and they all have their reasons to take revenge against another group. The groups controlling Bunia when Mr Santukabare was there (July 1, 1998 to November 16 2000; i.e. the group of Mbusa who was allied with Uganda at that time) could possibly try to take revenge against him. Most importantly, the Hutu are presently experiencing a high security risk because of the actions of the RCD/Goma and the Tutsi against them."

18. Mr Collins submits that by reason of that material before him the adjudicator as a matter of law could not find that it was safe in asylum terms and the Convention for the appellant to be returned to DRC. He frankly acknowledges that the grounds of appeal to the Tribunal from the adjudicator's decision, which were not settled by him, do not expressly allege an error of law. They allege that the adjudicator's decision was against the weight of the evidence. He submits that the Tribunal and this court are, however, entitled to examine whether there was an error of law in the adjudicator's decision because one should read an allegation of perversity into the way the case was put in the grounds of appeal.

19. Mr Tam does not take a contrary view. The Secretary of State does not wish to take an overtechnical view of grounds of appeal, and Mr Tam has no objection to an argument on perversity being treated as a point of law in this case.

20. Mr Tam submits that there was no perversity in the finding of the adjudicator. The adjudicator was entitled to have regard to the CIPU report, in which there is no reference to a risk of danger to Hutus such as the appellant, as distinct from Tutsi. He refers to the guarded way in which Mr Kennes has expressed his conclusion in relation to the particular case of the appellant, and the adjudicator concluded in the paragraph I have cited that there are specific dangers which are unlikely to affect the appellant in his particular position.

21. Before expressing conclusions, I go on to consider the Tribunal decision, but in this context. It is common ground, indeed Mr Collins emphasised the point, that the Tribunal at the relevant time had jurisdiction only to correct errors of law. By reference to the decision in CA of July 2004, the Tribunal's task is first to consider whether there was an error of law, and if not the appeal should stop there. If an error of law is detected, then a broader consideration is permitted. Mr Collins made the point so as to exclude the possibility of a finding in this court that the error of law, which he claims is present in the adjudicator's decision, was corrected by the Tribunal's own deliberations. He submits that they have not in terms stated that there was an error of law and they ought not, in context, to have considered in-country material subsequent to the decision of the adjudicator.

22. The Tribunal recorded that the criticisms made by counsel then appearing on behalf of the appellant were:

"... that the Adjudicator's findings are against the weight of the evidence bearing in mind certain positive credibility findings made by the Adjudicator."

23. The Tribunal go on to consider the material before the adjudicator, and conclude at paragraph 9:

"9. We think that the Adjudicator properly assessed the totality of the claim and did seek to address not just the risk on return, by reference to all that had passed before 1998 when the appellant went off to work in the eastern of the DRC, but also assessed in general terms that risk on a return at the date the Adjudicator was looking at the matter.

10. We note the Adjudicator does not specifically address the issue of the appellant having a name that may possibly be associated with Rwandan origins. However, in view of the report of Dr Kennes on the issue as to how he assesses the risk on return it seems quite probable that the Adjudicator would have taken a similar view: the name of itself does not give rise to a material risk."

The question of the name had arisen before the Tribunal. It is not a subject on which Mr Collins places reliance for present purposes.

24. Mr Collins' specific point on the adjudicator's finding, in addition to his reliance on the Kennes' report which he submits could not be ignored, is in relation to the adjudicator's finding in the earlier part of paragraph 11, that the adjudicator had taken into account the fact that the appellant was working as a clerk for the DRC in Kinshasa between 1997 and 1998. Mr Collins submits that such reliance is misplaced because the troubles had not arisen until after the appellant left Kinshasa. He submits that it was not material that he had worked as a government clerk in 1997 and 1998.

25. In my judgment, looking at the matter first in a general way, it cannot be concluded that the adjudicator's conclusion upon the risk issue was perverse. No doubt he had regard to Dr Kennes' report. He was entitled to consider it in the context of the evidence as a whole, which included the CIPU report. A point on which Mr Tam fairly relies is that there is no reference to Hutu persecution in that report, and that throughout the background information the emphasis is upon the risk which Tutsi face.

26. As to the specific point, I find no substance in it once one looks at the further statement of the adjudicator at paragraph 12 (which I have also cited). There the adjudicator states that he attaches weight to the fact that the appellant has lived in Kinshasa from around 1982, when he was only about five years of age; he had attended school there and he had been to university in Kinshasa, and then obtained work as a clerk. It was a factor which, and Mr Collins concedes this, the adjudicator was entitled to take into consideration that the appellant had been brought up and educated and had obtained a job in Kinshasa. In the context of the in-country material, it is far less likely that he would be regarded with the degree of suspicion which someone without those credentials would have been regarded. In my judgment the adjudicator was entitled to reach the conclusion he did. He sufficiently set out his reasons, and in my judgment no error of law was involved in his decision.

27. The Tribunal in my judgment have not departed from what, having regard to the decision in CA , is their function. I have cited paragraphs 9 and 10. They do not state in terms that there was no error of law in the adjudicator's finding, but they do at paragraph 14, having referred to additional information, refer to the case of CA . Having expressed their conclusions at paragraph 9 and 10, it is right to say that the Tribunal do go on to consider in-country information which postdated the adjudicator's decision. They refer to subsequent cases of the Tribunal, where general guidance was given. The Tribunal state at paragraph 12:

"... in our opinion [these cases] give a good indicator of the continuing possibility of risk. We find on the findings of fact, made by the Adjudicator, and the overall basis of claim that the appellant does not fall within the acknowledged categories of those who face the real risk on return or thereafter of proscribed ill-treatment."

28. Then at paragraph 14:

"The additional information does not materially change that picture even if it had been necessary to look at it which, in the light of CA [2004] , would not have been the case."

29. What the Tribunal were doing was to consider whether, notwithstanding the fact they had not found any error of law, matters had subsequently arisen which for some reason might require a reconsideration of the adjudicator's decision, or possibly a recommendation to the Secretary of State. The later paragraphs of their determination should be read in that context.

30. It follows that, for the reasons I have given, I would dismiss this appeal.

31. LORD JUSTICE KEENE: I agree. The appellant acknowledges that the adjudicator asked himself the correct question, and that consequently his argument amounts to saying that the answer to that question provided by the adjudicator was a perverse one, i.e. not one which any reasonable adjudicator could properly have given. I simply cannot accept that. Not all the evidence, principally the background evidence, pointed in the same direction, but the factual conclusion arrived at by the adjudicator as to the absence of real risk was one consistent with the CIPU report and was one open to him on all the evidence. The very high hurdle of perversity has not been cleared in this case.

32. Consequently, there was no error of law by the adjudicator and the IAT was right so to conclude. That is enough to warrant the dismissal of this appeal.

33. LORD JUSTICE LLOYD: I agree with both judgments.

ORDER: Appeal dismissed; no order for costs save detailed assessment of the appellant's public funding certificate.

(Order not part of approved judgment)