Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06425/2014

THE IMMIGRATION ACTS

Heard at UT Birmingham
On 25 January 2016
Decision and Reasons Promulgated
On 16 September 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL CHANA

Between

MINOUCHE [M]
(no anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr T Royston of Counsel
For the respondent: Mr D Mills, Senior Presenting Officer

Decision
1. The appellant is a national of the Democratic Republic of the Congo who claims to have been born on 4 January 1996 but was assessed as being-year-older and her date of birth was recorded as 4 January 1995. She appeals to the Upper Tribunal against the decision of first-tier Tribunal Judge VA Osborne dated 18 February 2015 dismissing her appeal against the decision of the respondent refusing her asylum and humanitarian protection in the United Kingdom.
2. Permission to appeal was granted by a Judge of the First-tier Tribunal V.A. Levin on 22 April 2015. The Judge was of the view that it was arguable that the First-tier Tribunal Judge may have erred in paragraph 64 of his decision when he stated that the appellant may have been the victim of sexual abuse and in a different setting other than whilst in detention. This is illogical as it is inconsistent with the Judges earlier finding at paragraph 52 when the Judge found the appellant's account to be credible. Further the Judge, misinterpreted Dr Turnville's medical report at paragraph 57 which may arguably have materially affected the outcome of this case. The Judge stated that It was further arguable that the Judge erred in law in failing to consider the risk that the appellant may face on return to the DRC having regard to acceptance at paragraph 37 of decision that the appellant's father was a political activist and that she had given a credible account of how she was detained and treated whilst in detention. Therefore, it is arguable that the Judge's consideration on the issue of risk on return was materially flawed.
The First-tier Tribunal's findings
3. The first-tier Tribunal Judge in her decision made the following findings which I summarise. At paragraph 26 of the decision, it was stated that the common area of concern in this appeal relates to the credibility of the appellant. The Judge set out at paragraph 29 the claimed political activities of the appellant's father and stated, "against this background, I find that if the appellant's father had genuinely been active in support of the party his chances of being detained would have remained high throughout the period in question". She stated that the appellant in her oral evidence at the hearing was cross-examined and was able to satisfy her that the appellant's father's meetings did take place and that the appellant's father was a political activist. He stated, "I find that the appellant's father did arrange for meetings of party members to take place at his home and on that basis, I am satisfied that he was an activist on behalf of the party".
4. The Judge accepted the appellant's evidence that she did not have any interest in political life because she was only 16 or 17 years old at the time. In respect of the appellant's father claimed ill-treatment whilst in detention he said that there was no corroborative evidence nor, was there any indication that any such evidence has been sought. The appellant could have brought documentary evidence about her father's hospitalisation which happened on three separate occasions. Similarly, the appellant appears to have made no attempts to contact the headquarters of Democratie Chretienne, although their address is given in Dr Seddons report, who could have confirmed the appellant's father's credentials as far as the party was concerned. The Judge took into account that the appellant has been represented throughout and enquiries could have been made on her behalf. The Judge found that failure to do so reflects adversely upon the appellant's overall credibility particularly insofar as it relates to her personal fear of persecution. He emphasised that this relates most particularly to the appellant's account of how she was detained, treated and raped whilst in detention.
5. The Judge did not find the appellant's evidence credible given the inconsistencies in the evidence as to how she went about making enquiries with Milka as to her father's whereabouts. The Judge found that the appellant has given no explanation as to why they should have gone directly to the Court in the absence of being advised of the hearing, and not first made enquiries with the local party headquarters or sought to find out about their father's whereabouts from the security forces. The Judge stated that the appellant in her evidence stated that Milka was told to return for a "further hearing" in April 2013. There is no indication as to how this information related to their father's claimed disappearance and reviewing the overall circumstances of this claim as to the appellant's visit to the courthouse, the Judge found that it lacks sufficient credibility for him to find that the event actually happened. The Judge also did not find credible that the appellant and the visit to the courthouse happened in November 2012 and they were not arrested until three months later in March 2013 as their arrest was linked back to the claimed visit to the courthouse. The Judge stated that the appellant said that the were looking for Milka and she made some reference that the sisters were accused of being troublemakers. The Judge found that there was no explanation for this long gap especially given her evidence that at that time, her father was still held.
6. The Judge considered Dr Seddon's report in which she states that the appellant's evidence of how she was detained in a big house is consistent with how people are detained in the Congo. The Judge found that Dr Seddon had also confirmed the widespread use of torture and rape in such circumstances. At paragraph 51 the Judge stated that "the appellant's claim to have been raped on numerous occasions whilst in detention demands careful assessment on the basis that sufficient proof of such a claim would indicate that she had been treated in a persecutory manner". The Judge said that the only piece of evidence of the appellant's claimed rape is contained within Dr Turville's report were at paragraph 13 to 22, she sets out the version of events as described to her by the appellant. The Judge found Dr Turvill's conclusions of particular significance. The Judge stated that the appellant confided to the doctor that she had been sexually active with a boyfriend prior to the events described in Dr Turville report at paragraph 44 and that she was not a virgin. The Judge noted that Dr Turvill stated that internal examination was not necessary as rape frequently leaves no scars and is not proof that rape did not occur. Therefore, there is no physical evidence that can be relied upon to demonstrate that the appellant had been consistently raped as claimed. The Judge noted Dr Turville's conclusions that the appellant has PTSD which could have been caused by the appellant separation from her family and her continuing immigration uncertainty but that these factors could have made her symptoms worse, they were unlikely to explain "hard-core PTSD symptoms". The Judge stated "I cannot escape the possible conclusion that the appellant may have experienced sexual abuse in the setting other than the one she described".
7. The Judge had regard to the respondent's background evidence in the Guardian, produced at the hearing, describing the extremely high prevalence of rape in all areas of the Congo and that at least 12% of the country's women have been raped at least once and that this is occurring not only in conflict areas. The Judge considered this to be an underestimation of the figure. The Judge then asked himself the question whether the appellant has been raped as claimed in the conditions as described by her.
8. The Judge the appellant's account of how she managed to escape from detention, causes him concern. He relied on Dr Seddon's report which confirms that escape from custody are fairly commonplace particularly with the use of bribes but said that the appellant does not describe her escape in those terms. The Judge noted that the appellant stated throughout that she was approached herself by one of the prison guards who offered to help and that all he asked for was a contact name. The appellant claims to have given details of her uncle and the guard then contacted her uncle and arrangements were made for the appellant to be released. There was a contradiction as to which guard escorted out of detention. In Dr Turnvill's report, it is stated that it was the same guard took a bribe and in her evidence at the hearing she said it was a different guard. The Judge found that the inconsistency had no explanation. The Judge found that it lacks credibility that she was able to give the guard contact details of her uncle and that arrangements for her release would be made within a matter of days and the appellant would not have any knowledge of any financial transaction which took place. The Judge stated that his "overall conclusion therefore is that I find I can be satisfied that the appellant may have been the victim of sexual abuse but not in the setting that she has described. The Judge stated that he cannot make a finding that the appellant had been treated in a persecutory manner or that she had taken any steps to protect herself which might have been available to her. The Judge considered the background information where it is reported the sexual abuses are endemic in the Congo and that such abuse may occur in domestic situations as well as a form of torture. The Judge found that the appellant had provided insufficient evidence to allow him to find, even to the low standard necessary, that she had experienced behaviour which would amount to torture at the hands of captors as opposed to in any other situation.
9. The Judge said "however bearing in mind my findings about the overall circumstances of the appellant as described by her in relation to her claim detention and subsequent escape, I am not satisfied again to the low standard necessary, that the appellant has given a truthful account in this regard".
10. The Judge did not find credible the appellant's description as to how she last spoke to her uncle in December 2013 but did not contact him again on his instructions. In reaching this conclusion, the Judge said that the appellant left behind her family in DRC including her older sister and younger siblings. He found that the appellant would understandably be concerned about their welfare and he was not satisfied that if the appellant's account of events had been truthful that her uncle would not have, at the very least, made enquiries as to their whereabouts in order to provide the appellant with such information.
11. The Judge took into account the country guidance case of the DRC and said that there is no other country guidance case upon which he can rely and therefore has paid close attention to the background information particularly as set out within the appellant's bundle. He accepted that there continues to be violence in the east of the country but the capital Kinshasa is in the westernmost part of the DRC. The appellant claims to have lived all her life prior to her departure in Kinsasha and therefore she would be returned there if she is removed from the United Kingdom. The Judge considered whether as a returnee from the United Kingdom as a field asylum seeker would put the appellant at risk. He stated that it is not accepted that simply returning as a failed asylum seeker per se would be an unacceptable risk and said that in any event the COI report on the DRC states that women are at no risk when they pass through immigration.
12. The Judge found that the appellant would have to support of her family on her return to the Congo who would help her to reintegrate. The Judge concluded that there was insufficient evidence that he can be satisfied that the appellant has demonstrated that she is at risk of persecutory treatment on return to the DRC and for similar reasons she cannot be satisfied that the appellant is in need of humanitarian protection.
13. The Judge dismissed the appellant's appeal under asylum grounds, the humanitarian and protection provisions and Article 3 of the European Convention on Human Rights and the Immigration Rules.
The appellant's grounds of appeal
14. Mr Royston at the beginning of the hearing said that he relies on grounds 1, 3, 7 and his oral arguments. The appellant's grounds of appeals are as follows which I summarise. The first ground is failure by the Judge to have regard to material consideration of risk to the appellant due to her connection with her father. The Judge failed to have regard to the appellant's future risk even if he did not accept that the appellant had been personally mistreated in the past. The Judge accepted that the appellant's father was a political activist who was at risk of detention and was arrested repeatedly by the authorities. The objective evidence supported factors which give rise to a risk to the appellant on return. He failed to take into account that the appellant's father's political activities would put her at risk because of her father's active membership of the DC and the fact that he had been arrested and detained on four occasions, and would therefore almost certainly be on file. The Judge did not say it disagreed with the experts evidence on this issue but does not appear to have taken it into account. The appellant claimed she was at risk because of her father's political activities and would "be perceived to have a military political profile in opposition to the government."
15. The third ground of appeal is unfairness and failure to have regard to material consideration that appellant's evidence was unchallenged at the hearing. The Judge makes no reference to the material consideration that the appellant's oral evidence on the circumstances of rape was not challenged at all by the respondent or the Judge. The Judge appears to have accepted the appellant's claim to have suffered rape in DRC but rejected her claim that this happened in detention accepting submissions made by the respondent in closing. There was no suggestion made that the appellant had not been raped in the circumstances she alleged, or indeed that she had not been raped at all. The Judge should have taken the respondent's failure to cross examine the appellant into account.
16. The appellant's evidence was unchallenged at the hearing and the reasons for refusal letter. In the case of RR (challenging evidence) Sri Lanka [2010] UKUT 274 (IAC) (25 August 2010) it was stated that if the appellant or expert chooses to give oral evidence then the respondents cross-examination should fearlessly and clearly include the suggestion that the appellant or expert that for example an injury was not caused and the way alleged by the appellant but by a different mechanism. It states that if the respondent does not put its case clearly it may well be very difficult for the Tribunal to decide against an appellant who has not been given an opportunity to deal with the respondent's concerns.
17. The seventh ground of appeal is that the Judge made logical errors regarding the appellant's credibility assessment. The Judge stated "I have considered all of the accounts given by the appellant as to how she was treated and I am satisfied that they are all sufficiently consistent for me to find that the accounts she has given is a credible one". However, the Judge then found that there was insufficient evidence to allow him to find her account credible. These two accounts are logically incompatible. The Judge also placed weight on an absence of corroboration. While accepting that the appellant's father was a political activist and was detained by the authorities, nevertheless required corroboration. A failure to corroborate true allegations cannot logically weaken the credibility of other parts of that person's account. The Judge also does not explain how the appellant could possibly have corroborated her claim to have been raped in detention beyond the evidence she did provide from Dr Turvill and the objective country evidence.
The respondent's rule 24 response
18. The respondent's rule 24 response is the following which I summarise. The Judge of the first-tier Tribunal directed himself appropriately. On the reading of the determination as a whole it is clear that the Judge was entitled to the conclusion that the appellant is not at risk on return to the DRC. The Judge points out at paragraph 77, to a lack of evidence to demonstrate that any treatment she may have sustained would reach the threshold. Paragraph 66 also notes the lack of evidence that the appellant had experienced torture at the hands of captives. These findings do not detract from or contradict the Judges positive credibility findings. The Judge has as required, given a balanced consideration to the relevant factors leading to the decision. The positive credibility findings are not, in themselves, sufficient to satisfy the Judge that the appellant qualifies for asylum or humanitarian protection.
The appeal hearing
19. Mr Royston on behalf of the appellant, in his submissions said that the Judge accepted that the appellant had been raped in the DRC even though he did not accept that it was during captivity. The appellant therefore has not fabricated her rape. This was not put to her in cross-examination. Being detained or not is not determinative. Not putting direct questions in cross-examination is significant. There was a lack of challenge to the appellant's evidence. The Judge accepted that the appellant's father was a political activist and the appellant was raped but then found that she was not detained. The Judge failed to appreciate that the risk both to the appellant was due to her father's political connection. The Judge did not give cogent reasons for why he did not agree with Dr Seddon's view as to why the appellant would be at risk in the DRC. Background evidence on DRC supports the proposition that risk attaches for family members of targeted persons. The Judge did not grapple with this. The Judge stated that the appellant's evidence had not been corroborated. The Judge placed weight on the absence of corroboration and criticised her for not providing documentation. The appellant could not have provided anything further. The Judge did not take into account that the respondent has a shared responsibility because the appellant was a child at the time of the events.
20. Mr Mills on behalf of the respondent made the following submissions. The Judge has failed to deal with whether the appellants father's activity puts the daughter at risk. It was accepted by the Judge that the father was a political activist but did not accept the appellant's risk on return. The error is not material. Country guidance does not show risk to relatives in the position remains that low-level supporters are not themselves at risk. It would not have made a difference to the Judge's conclusion. It is regretted that the presenting officer did not put questions to the appellant. The appellant may well have been a victim of rape and this was a finding open to the Judge to make. It is not a material error. The Judge made a finding that the appellant is an adult and therefore the Home Office policy is not relevant for her.
Discussion and findings on whether there is an error of law
21. I have given anxious scrutiny to the determination of first-tier Tribunal Judge Osborne and have taken into account the grounds of appeal, the case law and the documents in the appeal.
22. The Judge accepted that the appellant's father was a political activist and had been detained. He accepted that the appellant's father had meetings at his house and had been detained. The Judge did not make clear findings as to whether the appellants father's political profile would put the appellant at risk on her return. This is a material error of law as it was incumbent on the Judge to be clear findings as this was very relevant to the appellant's risk on return.
23. The Judge also accepted that the appellant had been raped in the DRC but said that it was not whilst in detention as the appellant claims. I find this to be remarkable finding in that because the appellant was not raped while in detention, she is not at risk on return. Rape in itself can amount to persecution and it matters not whether the victim is in detention are not when she is raped.
24. The Judge accepted the background evidence that rape is prevalent throughout the DRC which means that the Judge should have assessed the serious possibility of it re-occurring again for the appellant. The appellant should not be expected to put up with the serious possibility of being raped again even if this is part of the normal country conditions. Lord Justice Buxton in AA Uganda [2008] EWCA Civ 579, considered forced prostitution as being normal country conditions in Uganda. The same logic should be applied to rape in the DRC particularly where the appellant had already been raped and being made vulnerable thereby.
25. The Judge made inconsistent credibility findings in her decision. She stated "I have considered all of the accounts given by the appellant as to how she was treated and I am satisfied that they are all sufficiently consistent for me to find that the accounts she has given is a credible one". However, the Judge then found that there was insufficient evidence to allow her to find her account credible. I agree with the permission Judge that these two accounts are logically incompatible.
26. Mr Royston made much of the fact that the appellant had not be cross-examined at the hearing. There is some merit in this argument as the responsibility of challenging evidence of the appellant rests on the respondent. He referred to the case of RR (challenging evidence) Sri Lanka [2010] UKUT 274 (IAC) (25 August 2010) where it was stated that if the appellant or expert chooses to give oral evidence then the respondents cross-examination should fearlessly and clearly include the suggestion that the appellant or expert that for example an injury was not caused and the way alleged by the appellant but by a different mechanism. It states that if the respondent does not put its case clearly it may well be very difficult for the Tribunal to decide against an appellant who has not been given an opportunity to deal with the respondent's concerns. In the absence of any cross examination or an alternative position put to the appellant as to how the rape occurred, it was not fair or open to the Judge to find that the appellant was not raped in detention but in some other setting.
27. The Judge also material into error by requiring corroboration. At paragraph 51 the Judge stated that "the appellant's claim to have been raped on numerous occasions whilst in detention demands careful assessment on the basis that sufficient proof of such a claim would indicate that she had been treated in a persecutory manner". The Judge said that the only piece of evidence of the appellant's claimed rape is contained within Dr Turvill's report were at paragraph 13 to 22, she sets out the version of events as described to her by the appellant. The appellant provided whatever evidence she could which was a medical report. Dr Turvill in her report said that it internal examination would not reveal whether the appellant had been raped or not. Therefore, the only evidence which the appellant could possibly have given that she has been raped is her own evidence.
28. The Judge did not properly address the risk on return for the appellant as a lone female particularly bearing in mind that she has been previously subjected to sexual violence. The Judge stated that the appellant's family lives in Kinshasa and they will help her reintegrate. The Judge failed to consider the evidence that the appellant had been raped in Kinshasa, where she has always lived. This should have alerted the Judge that her family were not able to protect the appellant from being raped. The Judge having found that the appellant's father was a political activist, the risk to the appellant would increase.
29. I find that the Judge was not entitled to reach his conclusion that the appellant can return to the Congo, based on his consideration and evaluation of the evidence as a whole. I find that I have difficulty in understanding the reasoning in the Judge's determination and for why he reached his conclusions on the facts of this case. I find that the Judge was not entitled to conclude on the evidence before him that the appellant is not entitled to be recognised as a refugee or to be granted humanitarian protection in this country.
30. I find that material errors of law have been established in the decision of the First-tier Tribunal and I set it aside and remake the decision.

31. Having considered all the evidence in this appeal, I find that the appellant has demonstrated to the required burden of proof of real risk that she would be at risk if she is returned to the Congo. I consider that substantial grounds have been shown for believing that the appellant, if returned to the DRC, would face a real risk of suffering serious harm and in her circumstances will be unable, to avail herself of the protection of that country. It follows that. the appellant is entitled to Humanitarian Protection as defined by paragraph 339C of the Immigration Rules HC 395 (as amended).

DECISION

The appellant's appeal is allowed on humanitarian protection grounds

Dated this 14th day of September 2016
Signed by,

A Deputy Judge of the Upper Tribunal

Mrs Chana