[2002] UKIAT 3662
- Case title: RN (Risk - Connections with Mobutu)
- Appellant name: RN
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Democratic Republic of Congo
- Judges: Mr J R A Fox, Mr R Hamilton, Ms S S Ramsumair JP
- Case Notes: Removed from the Country Guideline list on 02.11.04
- Keywords Risk - Connections with Mobutu
The decision
AJB
Heard at Field House
APPEAL NO HX25265-2001
On 11 June 2002
RN (Risk – Connections with Mobutu) Democratic Republic of Congo CG [2002]UKIAT 03662
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
.13.08.2002..
Before:
Mr J R A Fox (Chairman)
Mr R Hamilton
Ms S S Ramsumair JP
Between
ROKA SILVAIN NIMI
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representations:
For the appellant: Ms D O’Rawe of Counsel
For the respondent: Mr P Graham of the Home Office.
DETERMINATION AND REASONS
1. The appellant is a citizen of the Democratic Republic of Congo. He was born on 10 April 1969.
2. He arrived in the United Kingdom on 1 September 1997 and claimed asylum immediately.
3. He was interviewed, made a statement which was recorded. He then supplied a witness statement, a copy of a letter from the UNHCR.
4. The respondent then considered the application and refused the same and the reasons for refusal are set out in a letter dated 28 November 2000. The appellant appealed and his appeal was heard by an Adjudicator Miss S Jhirad in a determination promulgated on 3 September 2001 who dismissed the appeal.
5. The appellant applied for leave to appeal to the Tribunal and the grounds of appeal were as follows:
“1. The appellant is a refused asylum seeker from the Democratic Republic of Congo (“DRC”).
2. The Learned Adjudicator, Miss S Jhirad, heard and dismissed the appellant’s appeal.
3. At paragraph 12 of her determination the Adjudicator stated that she did not find the appellant’s credibility “to be intact”. However it may be noted that the credibility of the appellant’s evidence was not totally rejected. At paragraph 13 the Adjudicator states that she accords the appellant the benefit of the doubt that he was a supporter of the MPR, “albeit at a low level”.
4. At paragraph 17 of the determination the Adjudicator recommended that the appellant be granted exceptional leave to remain giving the following reason:
“DRC country background information in the public domain suggest that the conditions in all sectors is dire, the government is repressive, the economic slide grows even steeper, the victims inevitably being innocent civilians.”
Ground 1
5. The Adjudicator has failed to make a clear finding accepting or rejecting the appellant’s claim his father, Mr Nimi Senior, was a former government minister, prominent member of the MPR and collaborator with former President Mobutu. It may be noted that the Adjudicator made no finding concerning the political status of the appellant’s father.
6. It is submitted that a central issue in this claim is the risk of persecution for reason of membership of a particular social group, the appellant’s family. The matter was raised in the skeleton argument before the Adjudicator (see copy attached to these grounds).
Ground 2
7. The Adjudicator in paragraph 14 when considering the UNHCR document adduced by the appellant failed to consider the explanation provided by the appellant of political problems preventing his remaining for the determination of his application (see paragraphs 16 to 19 of the appellant’s statement).
Ground 3
8. The Adjudicator has failed to consider whether the evidence that led her to make a recommendation (see above) indicates that there are substantial grounds for believing that there is a real risk of the appellant facing be inhuman or degrading treatment in violation of Article 3 upon return to DRC.
9. It is submitted that the rejection of an asylum appeal does not necessarily mean that there are no ground to consider for a human rights appeal.
10. Accordingly it is submitted that the Adjudicator has failed in her duty to give this appeal the most anxious scrutiny. The determination is not in accordance with the weight of the evidence before her.
11. In all the circumstances it is submitted that there are arguable grounds of appeal and that leave should be granted.”
6. The crux of this appeal was whether the three documents which were adduced by the appellant in support of his appeal are genuine. Those documents are as follows:
A document from the United Nations High Commissioner for Refugees from his field office in Brazzaville, dated 22 May 1997 certifies that they are examining his claim for refugee status.
The second document, a Safe Conduct issued by the Republic of the Congo to the appellant, issued on 3 June 1997 Brazzaville.
The third document, a document issued by the Red Cross, the Republic for the Congo dated 31 May 1997 describes the appellant as the son of Maitre Nimi Mayidika Ngimbi described as Chef de Cabinet et Conseiller Prive du Chef de L’Etat de Nationalite Congolaise (ex Zairoise) that was issued at Brazzaville on 31 May 1997.
All those documents have a photograph of the appellant attached to them.
7. The matter was listed before the Tribunal on 4 December 2001, it was adjourned for one month for the Home Office and the appellant to supply further evidence the Home Office was given an opportunity to check the documents with the appropriate authorities, the appellant’s solicitors supplied evidence that the appellant had three brothers who were claiming asylum in the United Kingdom and a sister.
8. The matter was listed again on 15 January 2002, the Tribunal was advised that the Home Office had written to the Foreign Office and it was agreed that the matter would be listed for mention in six weeks for both parties to make further inquiries.
9. The matter was again listed before the Tribunal on 25 February 2002, it was stated that the Foreign Office was still making further inquires.
10. At the hearing, Mr Graham advised the Tribunal that the Foreign Officer was still endeavouring to make enquiries and the Tribunal advised the parties that the respondent had had ample time in which to check the authenticity of the documents. The Tribunal would treat those three documents as being genuine.
11. The basis of the appellant’s claim is that he had resided in a family house in Kinshasa with his wife, two children, parents, three brothers and a sister. The basis of his claim is that he fears persecution if he is returned to the DRC by the pro-Kabila authorities.
12. In evidence before the Adjudicator he told her that his father, three brothers and to a certain extent his sister had been active and prominent members of the MPR. He claimed that he was a member of the MPR between 1990 and 1997. His role had been to lead followers in singing and chanting songs and slogans in praise of Mobutu prior to rallies and party meetings and actively campaigning during elections by distributing leaflets, billposting and encouraging the electorate to vote for Mobutu. In cross-examination he had stated that he had been placed in charge of propaganda and political entertainment for his area.
13. Before the Adjudicator he gave an account of incidents experienced by the family between February and May 1997.
14. He told her that his father who was said to be a Cabinet Director in the Mobutu Government received a number of death threats and his car was stoned by Kabila supporters. As a result his parents had fled the DRC and the appellant had told her that he was unaware of their current whereabouts. He also gave an account that his brother Laurent was a General Treasurer of the MPR and in March 1997 escaped what he believed to be an attempt by the Kabila supporters to assassinate him. Two days after this he was invited into accompanying two men on a site visit and they handcuffed him, detained him and tortured him. He escaped from that detention with the help of soldiers loyal to Mobutu. He brother Jean-Paul was an electrician in Mobutu’s palace and like his father and Laurent, was alleged to be acquainted with Mobutu on a personal level. The appellant told the Adjudicator that Jean-Paul was beaten unconscious by anti-Mobutists. He also said that his brother Papi-Tuko was the Secretary of the MPR and was beaten up and was mugged by Kabila soldiers.
15. He stated that in April 1997 the Kabila soldiers mounted a raid on the family house and held them there for five hours. During that time the soldiers allegedly amputated the tip of the appellant’s right toe. His sister Jeanne, who was a party singer and dancer and readily identifiable as a Mobutu supporter from film footage of her activities at MPR events was allegedly gang raped by soldiers.
16. They sought refuge in the Tshatchi camp where they stayed for two days before returning home having been assured by Mobutu’s officials that it was safe to do so. However, continuous harassment by Kabila supporters drove them back to Tshatchi camp on 1 May 1997. In May 1997 the appellant and siblings left the camp and went to the Congo (Brazzaville) where they sought asylum. The Field Office of the UNHCR issued a letter on 22 May 1997 with a validity of three months pending examination of their case. On 31 May 1997 the Red Cross provided them with a document that secured them a travel permit issued on 3 June 1997 by the Congolese Government enabling them to leave Brazzaville for the UK.
17. The appellant then gave an account of the circumstances in which he travelled to the United Kingdom.
18. The Adjudicator did not believe this account. It is quite clear and with regard to the Tribunal ruling in relation to the documents that the appellant produced, the appellant and his family had close personal connections with Mobutu, the events as described by the appellant are true.
19. It is clear from the objective evidence if the appellant was returned to the Congo and because of his families close associations namely that his father was Chef de Cabinet to President Mobutu he would have a well founded fear of persecution for a Convention reason. There is a reasonable degree of likelihood that he would be persecuted if he was so returned.
20. In those circumstances and having regard to the Tribunal’s finding in relation to the authenticity of the documents and the particular circumstances of this particular case, the appeal is allowed.
J R A Fox
Vice President
Heard at Field House
APPEAL NO HX25265-2001
On 11 June 2002
RN (Risk – Connections with Mobutu) Democratic Republic of Congo CG [2002]UKIAT 03662
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
.13.08.2002..
Before:
Mr J R A Fox (Chairman)
Mr R Hamilton
Ms S S Ramsumair JP
Between
ROKA SILVAIN NIMI
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representations:
For the appellant: Ms D O’Rawe of Counsel
For the respondent: Mr P Graham of the Home Office.
DETERMINATION AND REASONS
1. The appellant is a citizen of the Democratic Republic of Congo. He was born on 10 April 1969.
2. He arrived in the United Kingdom on 1 September 1997 and claimed asylum immediately.
3. He was interviewed, made a statement which was recorded. He then supplied a witness statement, a copy of a letter from the UNHCR.
4. The respondent then considered the application and refused the same and the reasons for refusal are set out in a letter dated 28 November 2000. The appellant appealed and his appeal was heard by an Adjudicator Miss S Jhirad in a determination promulgated on 3 September 2001 who dismissed the appeal.
5. The appellant applied for leave to appeal to the Tribunal and the grounds of appeal were as follows:
“1. The appellant is a refused asylum seeker from the Democratic Republic of Congo (“DRC”).
2. The Learned Adjudicator, Miss S Jhirad, heard and dismissed the appellant’s appeal.
3. At paragraph 12 of her determination the Adjudicator stated that she did not find the appellant’s credibility “to be intact”. However it may be noted that the credibility of the appellant’s evidence was not totally rejected. At paragraph 13 the Adjudicator states that she accords the appellant the benefit of the doubt that he was a supporter of the MPR, “albeit at a low level”.
4. At paragraph 17 of the determination the Adjudicator recommended that the appellant be granted exceptional leave to remain giving the following reason:
“DRC country background information in the public domain suggest that the conditions in all sectors is dire, the government is repressive, the economic slide grows even steeper, the victims inevitably being innocent civilians.”
Ground 1
5. The Adjudicator has failed to make a clear finding accepting or rejecting the appellant’s claim his father, Mr Nimi Senior, was a former government minister, prominent member of the MPR and collaborator with former President Mobutu. It may be noted that the Adjudicator made no finding concerning the political status of the appellant’s father.
6. It is submitted that a central issue in this claim is the risk of persecution for reason of membership of a particular social group, the appellant’s family. The matter was raised in the skeleton argument before the Adjudicator (see copy attached to these grounds).
Ground 2
7. The Adjudicator in paragraph 14 when considering the UNHCR document adduced by the appellant failed to consider the explanation provided by the appellant of political problems preventing his remaining for the determination of his application (see paragraphs 16 to 19 of the appellant’s statement).
Ground 3
8. The Adjudicator has failed to consider whether the evidence that led her to make a recommendation (see above) indicates that there are substantial grounds for believing that there is a real risk of the appellant facing be inhuman or degrading treatment in violation of Article 3 upon return to DRC.
9. It is submitted that the rejection of an asylum appeal does not necessarily mean that there are no ground to consider for a human rights appeal.
10. Accordingly it is submitted that the Adjudicator has failed in her duty to give this appeal the most anxious scrutiny. The determination is not in accordance with the weight of the evidence before her.
11. In all the circumstances it is submitted that there are arguable grounds of appeal and that leave should be granted.”
6. The crux of this appeal was whether the three documents which were adduced by the appellant in support of his appeal are genuine. Those documents are as follows:
A document from the United Nations High Commissioner for Refugees from his field office in Brazzaville, dated 22 May 1997 certifies that they are examining his claim for refugee status.
The second document, a Safe Conduct issued by the Republic of the Congo to the appellant, issued on 3 June 1997 Brazzaville.
The third document, a document issued by the Red Cross, the Republic for the Congo dated 31 May 1997 describes the appellant as the son of Maitre Nimi Mayidika Ngimbi described as Chef de Cabinet et Conseiller Prive du Chef de L’Etat de Nationalite Congolaise (ex Zairoise) that was issued at Brazzaville on 31 May 1997.
All those documents have a photograph of the appellant attached to them.
7. The matter was listed before the Tribunal on 4 December 2001, it was adjourned for one month for the Home Office and the appellant to supply further evidence the Home Office was given an opportunity to check the documents with the appropriate authorities, the appellant’s solicitors supplied evidence that the appellant had three brothers who were claiming asylum in the United Kingdom and a sister.
8. The matter was listed again on 15 January 2002, the Tribunal was advised that the Home Office had written to the Foreign Office and it was agreed that the matter would be listed for mention in six weeks for both parties to make further inquiries.
9. The matter was again listed before the Tribunal on 25 February 2002, it was stated that the Foreign Office was still making further inquires.
10. At the hearing, Mr Graham advised the Tribunal that the Foreign Officer was still endeavouring to make enquiries and the Tribunal advised the parties that the respondent had had ample time in which to check the authenticity of the documents. The Tribunal would treat those three documents as being genuine.
11. The basis of the appellant’s claim is that he had resided in a family house in Kinshasa with his wife, two children, parents, three brothers and a sister. The basis of his claim is that he fears persecution if he is returned to the DRC by the pro-Kabila authorities.
12. In evidence before the Adjudicator he told her that his father, three brothers and to a certain extent his sister had been active and prominent members of the MPR. He claimed that he was a member of the MPR between 1990 and 1997. His role had been to lead followers in singing and chanting songs and slogans in praise of Mobutu prior to rallies and party meetings and actively campaigning during elections by distributing leaflets, billposting and encouraging the electorate to vote for Mobutu. In cross-examination he had stated that he had been placed in charge of propaganda and political entertainment for his area.
13. Before the Adjudicator he gave an account of incidents experienced by the family between February and May 1997.
14. He told her that his father who was said to be a Cabinet Director in the Mobutu Government received a number of death threats and his car was stoned by Kabila supporters. As a result his parents had fled the DRC and the appellant had told her that he was unaware of their current whereabouts. He also gave an account that his brother Laurent was a General Treasurer of the MPR and in March 1997 escaped what he believed to be an attempt by the Kabila supporters to assassinate him. Two days after this he was invited into accompanying two men on a site visit and they handcuffed him, detained him and tortured him. He escaped from that detention with the help of soldiers loyal to Mobutu. He brother Jean-Paul was an electrician in Mobutu’s palace and like his father and Laurent, was alleged to be acquainted with Mobutu on a personal level. The appellant told the Adjudicator that Jean-Paul was beaten unconscious by anti-Mobutists. He also said that his brother Papi-Tuko was the Secretary of the MPR and was beaten up and was mugged by Kabila soldiers.
15. He stated that in April 1997 the Kabila soldiers mounted a raid on the family house and held them there for five hours. During that time the soldiers allegedly amputated the tip of the appellant’s right toe. His sister Jeanne, who was a party singer and dancer and readily identifiable as a Mobutu supporter from film footage of her activities at MPR events was allegedly gang raped by soldiers.
16. They sought refuge in the Tshatchi camp where they stayed for two days before returning home having been assured by Mobutu’s officials that it was safe to do so. However, continuous harassment by Kabila supporters drove them back to Tshatchi camp on 1 May 1997. In May 1997 the appellant and siblings left the camp and went to the Congo (Brazzaville) where they sought asylum. The Field Office of the UNHCR issued a letter on 22 May 1997 with a validity of three months pending examination of their case. On 31 May 1997 the Red Cross provided them with a document that secured them a travel permit issued on 3 June 1997 by the Congolese Government enabling them to leave Brazzaville for the UK.
17. The appellant then gave an account of the circumstances in which he travelled to the United Kingdom.
18. The Adjudicator did not believe this account. It is quite clear and with regard to the Tribunal ruling in relation to the documents that the appellant produced, the appellant and his family had close personal connections with Mobutu, the events as described by the appellant are true.
19. It is clear from the objective evidence if the appellant was returned to the Congo and because of his families close associations namely that his father was Chef de Cabinet to President Mobutu he would have a well founded fear of persecution for a Convention reason. There is a reasonable degree of likelihood that he would be persecuted if he was so returned.
20. In those circumstances and having regard to the Tribunal’s finding in relation to the authenticity of the documents and the particular circumstances of this particular case, the appeal is allowed.
J R A Fox
Vice President