Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04776/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 18th March 2016
On 2nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

CK
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S Rogers, Immigration Advice Centre Ltd
For the Respondent: Mr. P Mangion, Home Office Presenting Officer

DECISION AND REASONS
1. The First-tier Tribunal has made an anonymity order and for the avoidance of any doubt, that order continues. CK ("the appellant") is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
2. This is an appeal against a decision and reasons promulgated by First-tier Tribunal Judge Shimmin on 20th August 2015, in which he dismissed an appeal against the decision of the Secretary of State for the Home Department to refuse to grant the appellant asylum.
Background
3. The appellant is a national of the Democratic Republic of the Congo ("DRC"). She arrived in the UK on 19th October 2014 and applied for asylum the following day. Her claim for asylum was refused for the reasons set out in a decision of the respondent dated 4th March 2015. The respondent accepted that the appellant is a national of the DRC, but rejected the appellant's account of her father's political profile, his death and the account given by the appellant of her own detention and exit from the DRC. It was that decision that gave rise to the appeal before First-tier Tribunal Judge Shimmin.
4. The appellant's case is summarised at paragraphs [12] to [21] of the decision of the First-tier Tribunal. Broadly put, the applicant claims that her father was a journalist and that in 2012 he and her mother were killed during a search of their home in Kivu. The soldiers were searching for tapes that her father held of political meetings of the chairman of Alliance des Patriotes pour la Refondation du Congo (APARECO). The appellant was taken by the soldiers, questioned about the tape, beaten and raped. She escaped from detention after about a week whilst her guards were drunk.
5. The Judge sets out his findings and reasons at paragraphs [27] to [45] of his decision. He sets out at paragraphs [46] to [54] of the decision his reasons for concluding, in light of the findings made, that the appellant would not face a real risk of persecution on return to the DRC and why the appellant is not entitled to humanitarian protection.

The grounds of appeal
6. The appellant contends that the Judge erred when considering the risk on return by limiting his consideration only to the issue of the appellant's profile with APARECO in the UK. The appellant contends that the Judge erred in concluding that as the country guidance case of BM and others (returnees - criminal and non-criminal) DRC CG [2015] 00293 (IAC) does not specifically refer to family members of APARECO being at risk, the appellant would not be at risk. The appellant contends that the Judge failed to consider whether she would be at risk, as a family member of her father, who was a person sought by the authorities due to his political opinion. The appellant contends that on the findings made by the Judge, she and her father are known to the authorities in the DRC and the appellant is therefore at risk upon return.
7. Permission to appeal was granted by Upper Tribunal Judge Goldstein on 20th October 2015. The matter comes before me to consider whether or not the determination by First-tier Tribunal Judge Shimmin involved the making of a material error of law.
The hearing before me
8. On behalf of the appellant, Ms Rogers adopts the grounds of appeal. She submits that the country guidance case of BM and others does not address the risk upon return to family members and it is therefore not sufficient to say that the appellant is not at risk. She submits that the Tribunal in that case, was not looking at the risk that family members might be exposed to. Ms Rogers submits that the appellant's father was a journalist and the Judge accepted that her parents were killed. The appellant has her own visible profile and Ms Rogers submits that cumulatively the findings made by the Judge in favour of the appellant, establish that she is at risk upon return. Ms Rogers submits that the evidence is clear that people have been arrested in the DRC because of the activities of members of their family. I invited Ms Rogers to draw my attention to any objective evidence that family members are at risk in the way contended for by the appellant. Ms Rogers relies upon the report prepared by Freedom From Torture (UK) dated 2nd June 2014 that deals with rape as torture and sexual violence in the DRC, but beyond that report Ms Rogers was unable to direct me to any objective evidence to establish that family members are in fact at risk.
9. The respondent has filed a Rule 24 response dated 9th October 2015 in which she confirms that the appeal is opposed. In the Rule 24 response, the respondent submits that the Judge directed himself appropriately and made findings that were properly open to him. The Judge accepted as credible, the core of the appellant's account. The respondent submits that it was open to the Judge to find that the appellant's 'modest' sur-place activities within APARECO do not establish even to the lower standard, that she is fully committed to the organisation and that the appellant is using her association with it, to bolster her asylum claim. The respondent submits that the Judge properly addressed his mind to the specific risk categories identified in the country guidance case of BM and Others and that it was is properly open to the Judge to conclude on the facts and evidence before him, that the appellant would not be of adverse interest to the authorities if returned to the DRC.
10. Mr Mangion adopted the rule 24 response and submitted that the Tribunal in BM and Others considered the evidence relating to the risk to family members and identified no particular problems. Any risk that there is, arises from what is set out in the Freedom From Torture report, but the Tribunal did not consider that the content of that report identified a particular risk category. He submits that there is no objective evidence to support the appellant's claim to be at risk upon return.
Error of Law Decision
11. I reject the claim by the appellant that the Judge erred when considering the risk on return by limiting his consideration only to the issue of the appellant's profile with APARECO in the UK. At paragraph [28] the Judge found that appellant's account of her claimed persecution in the DRC for imputed political opinion was truthful. His reasons for that finding are to be found at paragraphs [29] to [38] of his decision. The findings are not challenged by the respondent. The Judge then turned to the appellant's activities in the UK and at paragraph [45] of his decision states:
"I find that the appellant has established that she is involved with APARECO meetings in the North West by setting up the venue for meetings and helping during those meetings. She has not established that she is 'treasurer' of the branch as Mr Maliko claims. Both she and Mr Mbay denied the treasurer role in their evidence. I find that, at its highest, she does some fundraising.
12. At paragraph [46] of his decision, the Judge goes on to consider the risk the appellant faces on return to Congo, by reference to the country guidance case of BM and Others. He does so, in light of the findings that he has made in the preceding paragraphs. In my judgement there is nothing within the Judge's analysis of the risk upon return that suggests that the risk was assessed solely by reference to the appellant's profile with APARECO in the UK. At paragraphs [51] and [52] of his decision, the Judge states:
"51. The appellant argues that her father's problems would be visited against her if she returned to the Congo but I do not accept this. Firstly, even if her father was an APARECO leader the relatives of such persons are not a specific risk category within BM and Others. The appellant was young at the time of her abduction and that occurred about three years ago. I find that the appellant has not established that the authorities would still have any adverse interest in her or her father after such a period.
52. Mrs Rogers reminds me that I must consider the knowledge and perception of agents of the DRC. I have done this, combining my findings in respect of the appellant's history and sur place activities, but I find the appellant has not established/even to the lower standard, that she is reasonably likely to be at risk on return to the Congo and that she is within a risk category as defined in BM and Others."
13. The Judge expressly refers to the submission made on behalf of the appellant at the hearing of the appeal and in my judgement it is plain that the Judge considered the risk upon return by combining his findings in respect of the appellant's history and her sur place activities.
14. At paragraph [51] of his decision, the Judge found that the appellant has not established that the authorities would still have any adverse interest in her or her father after such a period. The appellant's account, accepted by the Judge, was that her father had been killed during the search of the family home in 2012. The finding made by the Judge is not challenged.
15. The Judge assessed the risk upon return by reference to the country guidance decision of BM and Others and in his decision identifies the relevant extracts from the headnote. In reaching its decision in BM and others the Tribunal had before it, the Freedom From Torture report that is now relied upon by the appellant and referred to by Ms Rogers. As Ms Rogers accepts, beyond the matters set out in the report from Freedom From Torture, there is no objective evidence that family members are at risk in the way contended for by the appellant. That report identifies rape and sexual torture experienced by women from the DRC who were detained and tortured, as a result of their political profile or that of a family member. The report is summarised at paragraph [31] of the decision in BM and others. The Tribunal also had before it a number of strands of objective evidence dealing with the treatment of returnees. The country guidance provided by the Tribunal was based upon a careful evaluation of the various strands of objective evidence before it. The Tribunal did not identify family members of those who have a political profile as being at risk upon return.
16. On the findings made by the Judge, it was in my judgement properly open to the Judge to find that the appellant has not established, even to the lower standard, that the appellant is reasonably likely to be at risk on return to the DRC and that she is within a risk category as defined in BM and Others.
17. It follows that the appeal is dismissed
Notice of Decision

18. The appeal is dismissed.
Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD

There can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Mandalia