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The Queen on the application of Ondelio Lisungi v. Immigration Appeal Tribunal [2000] EWHC Admin 401 (12th October, 2000)
Case No: CO/2021/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12th October 2000
B e f o r e :
THE HON MR JUSTICE HOOPER
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The
Queen on the application of
Ondelio Lisungi
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Applicant
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v -
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Immigration
Appeal Tribunal
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Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Steven Kovats (instructed by The Treasury Solicitors for the
Respondent)
Ms M Phelan (instructed by Lloyd and Associates for the Applicant)
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JUDGMENT
As Approved by the Court
Crown Copyright
MR JUSTICE HOOPER:
1. This is an application for permission to apply for judicial review of a
decision of the Immigration Appeal Tribunal ("IAT") refusing the applicant
leave to appeal against a determination of a Special Adjudicator ("SA")
dismissing her asylum appeal. She was born in what is now the Democratic
Republic of Congo and arrived in this country on the 11th March 1996 on a false
passport in transit to Canada. When her false passport was detected she
claimed asylum. She was interviewed in November 1996 and the Secretary of
State refused asylum in March 1997. On 21st February 2000 the SA dismissed her
appeal and 21st March 2000 the IAT refused leave to appeal. Leave was refused
on the papers by Silber J on 21st July 2000. The applicant renewed the
application for permission before Newman J on 18th August 2000. Newman J
ordered that the application for permission be adjourned on notice to the
respondent. Newman J invited the respondent to assist the Court particularly
in regard to gender based asylum claims.
2. Although there are two respondents named, the SA and the IAT, Ms Phelan on
behalf of the applicant accepted that the decision of the SA was not a decision
which could be quashed by this Court given the right of appeal to the IAT.
3. The SA set out the evidence which the applicant gave before her:
"The appellant raises one issue only before me, that of asylum. She arrived in
the UK on 11.3.96 using a Haiti passport but in possession of her own Zairean
passport which was found in her luggage. She then claimed asylum. She was
accompanied by her child, Dubilio Yabele. The evidence the appellant put
forward in support of her claim for asylum was that she would be persecuted in
her country due to her connection with one Honore Ngbanda who was Conseiller
Special en matiere de Societe de Chef de l'Etat. She had been his secretary.
Also, her cousin was married to the cousin of the leader of the opposition,
Etienne Tshisekedi. She was suspected of having sympathies with the opposition
party and her boss panicked because of this and she was accused of giving out
secrets. Mr Ngbanda had never personally accused the appellant of any
wrong-doing but his agent tortured her and asked her lots of questions. The
appellant complained of having been arrested twice, `first time during a party
at my cousin's. I was taken to a villa by some officers and asked why I was at
a party with the leader of the opposition, knowing he was there. I went
because of my cousin and they could not understand. This was March 1993.' The
appellant said she had been arrested for the second time at her home in April
1993. She complained that she had been driven out of her house because her
rent was paid by the government. She was taken from home, her children were
taken away from her and she was taken to the office of the AND (now called SND)
and she was tortured and raped and kept for four days.
It emerged that the appellant had been in France in June 1994 and remained
there, making a claim for asylum which was rejected, until February 1996. She
then had news from home that her home had been set on fire and that her
daughter had been badly burned. She got a fake identity with a fake Haitian
passport in order to return to Zaire to see her children. She left again in
March 1996 and arrived in the UK in transit for Canada where she thought she
would have a better chance of obtaining asylum."
4. The SA then set out what the applicant had said in interview. This was in
large measure consistent with what she had said in evidence. Although the SA
was invited by the presenting officer to make an adverse finding as to the
applicant's credibility she reached the following conclusion: "I treat the
appellant's evidence as credible and that upon which I am relying in
determining this appeal."
5. In her decision the SA described a period of at least 2 months where the
applicant remained in Kinshasa following her detention. She said that she "has
offered no evidence that anyone was looking for her during that period." She
went on to say:
"She has offered no evidence which supports her view that her former boss, for
whom she never worked in his political capacity but only in his private
capacity, was behind the arrests. The appellant was arrested first having just
left a party at which Tshisekedi was in attendance. She was questioned in that
context. Even she did not know whether her cousin's marriage to Mr
Tshisekedi's younger brother or cousin ... was a factor in her arrest. During
the next arrest she was questioned about any connection to the UDPS. By her
own account she had never been a member and was not in any sense political."
6. In so far as the rape was concerned, the SA said that she was not satisfied
that the applicant was raped as punishment for any political activities. She
found that her attackers were acting on there own initiative. She said that
there was no evidence of any connection between the rape and the burning of her
sister's house in which the appellant's daughter was so badly injured.
7. The SA went on to say:
"The appellant returned to Zaire in 1996 to see her children. She was not able
to remove them from the country with her. It was not until some time after the
appellant left Zaire again in 1996 that the regime there changed and the Mobutu
years were over. Mobutu died in Morocco in September 1997 having left the
country finally in May 1997. The Kabila regime began in 1997. The previously
existing institutions, save for the judiciary, were disbanded. The UDPS were
included in the government. It seems to me that so much has changed, and so
much time has passed, that whatever the appellant complained of in the past,
there is little likelihood that a person of so little political connection
would be noticed if returned there in 2000. The connection, such as it is, to
Tshisekedi is so slight that there is no chance that it may be remembered at
this remove. I have considered the background evidence put before me in some
detail and I can find no support therein for the proposition that the appellant
would be at risk of persecution on account of any political opinion which might
have been imputed to her back in 1993 or 1994. I therefore dismiss her appeal.
I decline to make any recommendation."
8. In dismissing the application for leave to appeal to the IAT, Mr E Maddison
wrote:
"The Tribunal has read the supplementary documents submitted which do not in
its opinion undermine the adjudicator's conclusions.
The adjudicator heard oral evidence from the applicant. She accepted her as a
credible witness but concluded that her connection with public figures in the
old regime was so slight, and so much ... had passed that the applicant would
be at no risk on return in 2000. That general conclusion is not invalidated by
any error she may have made over the position of the UDPS.
The adjudicator appears to have considered all the evidence before her,
properly directing himself as to the proper standard of proof. The adjudicator
came to clear findings of fact, after giving to each element in the evidence
the weight she considered appropriate.
The Tribunal has studied the papers on file. It considers that the conclusions
of the adjudicator are fully supported by the evidence. There is no
misdirection in law. Read as a whole the determination is a full, fair and
reasoned review of the applicant's case.
In the opinion of the Tribunal this is not a proper case in which to grant
leave, and such leave is refused."
9. The first ground relates to Mr Maddison's conclusion that the adjudicator's
findings were fully supported by the evidence. It is submitted that Mr
Maddison's conclusion by is one that is arguably "Wednesbury" unreasonable. In
the grounds of appeal prepared for the IAT and now, complaint is made of the
following passages in the SA's determination: "The UDPS were included in the
government" "It seems to me that so much has changed" and "The connection, such
as it is, to Tshisekedi is so slight".
10. As to the first of those three, Mr Maddison wrote: "That general conclusion
is not invalidated by any error she may have made over the position of the
UDPS". It appears that a number of members of the UDPS were included within
the new government, although not as representatives of their own parties.
Political activity, although not membership of political parties, was banned
(see page 92). Mr Maddison's approach to this "error" is one that he was
reasonably entitled to reach.
11. As to the second and third passages Mr Maddison said that the SA had:
"concluded that her connection with public figures in the old regime was so
slight, and so much ...had passed that the applicant would be at no risk on
return in 2000." Ms Phelan supports her submission that things had not changed
by reference to passages in a 1999 Home Office Report, which describes
arbitrary arrests, torture within prisons and extra-judicial killings. She
also submits that the SA discounted the significance of the link to Mr
Tshisekedi particularly in the light of the burning of her house. Mr Kovats,
whilst accepting that Report, submits that the SA was saying that the
applicant's position had changed. Although she might be at risk of arbitrary
arrest, torture or of being killed, she was in no different position than any
other person living in the Democratic Republic of Congo. With the fall of
President Mobutu and given the passage of time she was not now at risk of
persecution for a Convention reason for the reasons given by the SA and
affirmed by Mr Maddison. He supports the SA's conclusions by pointing out that
the applicant's connection was to Mr Tshisekedi was not a close one and that
she herself was not a member of the UDPS. I take the view that Mr Kovats'
submission is right and that this ground has no arguable merit. The fact, if
such be the case, that she may be at risk if returned is something which, as Mr
Kovats accepts, the Secretary of State must consider before returning her.
12. I turn to the second ground: the applicant had a gender claimed basis for
asylum in the light of Islam v. SSHD and R. v. IAT ex parte Islam
[1999] 2 AC 629. Ms Phelan sought to put before me background
material which was not placed before the SA or IAT. Given that I have to rule
on the challenge to the IAT's decision, I must do so by reference to material
before it. The statutory framework provides procedures for consideration by
the Secretary of State of new material. Although the SA had not been asked to
consider this ground, the IAT were. Mr Maddison, as Mr Kovats accepts, did not
deal with these grounds in the manner that he should have done. I must
therefore decide whether leave to appeal would necessarily have been refused if
the IAT had considered the matter in a proper manner.
13. The background material available to the IAT showed that the security
forces are themselves often responsible for rape, and that there are reports of
rape by those forces and prison officers on detainees. According to a Home
Office Report referred to in the grounds to the IAT (94):
"Women are generally relegated to a secondary role in society and are believed
to be commonly subject to domestic violence, including rape, although no
statistics are available. The significant risk of rape restricts freedom of
movement for women in many neighbourhoods. Rape has been reported in the
course of arbitrary detention/torture by the Mobutu and Kabila regimes and by
government and RCD rebel forces."
14. According to a US State Department Report (98):
"The Kabila Government's human rights record remained poor. Citizens do not
have the right to change their government peacefully. Security forces were
responsible for numerous extrajudicial killings, disappearances, torture,
beatings, rape, and other abuses. In general, security forces committed these
abuses with impunity, although a special military tribunal tried and executed
some security force members for various human rights abuses. Prison conditions
remained harsh and life threatening. Security forces increasingly used
arbitrary arrest and detention throughout the year. Prolonged pretrial
detention remained a problem, and citizens often were denied fair public
trials. The special military tribunal tried civilians for political offenses
and executed civilians, frequently with total disregard for process
protections. The judiciary remained subject to executive influence and
continued to suffer from a lack of resources, inefficiency, and corruption. It
was largely ineffective as either a deterrent to human rights abuses or a
corrective force. Security forces violated citizens' rights to privacy.
Forcible conscription of adults and children continued, although children were
conscripted to a lesser extent than in the previous year. Government security
forces continued to use excessive force and committed violations of
international law in the war that started in August 1998. On at least three
occasions, government aircraft bombed civilian populated areas in rebel-held
territory. Although a large number of private newspapers often published
criticism of the Government, the Government continued to restrict freedom of
speech and of the press by harassing and arresting newspaper editors and
journalists and seizing individual issues of publications, as well as by
continuing to increase its restrictions on private radio broadcasting. The
Government severely restricted freedom of assembly and association. The
Government continued to restrict freedom of movement; it required exit visas
and imposed curfews even in cities not immediately threatened by the war. The
Government continued to ban political party activity and used security services
to stop political demonstrations, resulting in numerous arrests and detentions.
It also harassed and imprisoned members of opposition parties and harassed
human rights nongovernmental organizations (NGO's). Violence against women is
a problem and rarely was punished. Female genital mutilation (FGM) persists
among isolated populations in the north. Discrimination against indigenous
pygmies and ethnic minorities is a problem. Serious governmental and societal
violence and discrimination against members of the Tutsi ethnic minority
continued; however, the Government protected many Tutsis who were at risk and
permitted 1,341 to leave the country. The Government arrested labor leaders
during public sector strikes and allowed private employers to refuse to
recognize unions. Child labor including use of child soldiers remained a
common problem. There were credible reports of beatings, rapes, and
extrajudicial killings of Tutsis; however, societal abuses of Tutsis in
government-controlled areas were far fewer than in 1998 because by the start of
the year surviving Tutsis generally either had left the government-controlled
part of the country or were in hiding, places of refuge; or government
custody."
15. Ms Phelan relied particularly on the passage: "Violence against women is a
problem and rarely was punished." Mr Kovats submitted that these words had to
be read against the background of the whole passage which shows a general
breakdown in law and order affecting both men and women.
16. In Shah and Islam Lord Steyn made it clear that everything
depended on the evidence and findings of fact in the particular case. The
defining factual framework in that case was the toleration and sanction of
discrimination against women by the state (636-637). In the words of Lord
Hoffmann (655B):
"The distinguishing feature of the present case is the evidence of
institutionalised discrimination against women by the police, the courts and
the legal system, the central organs of the state."
Earlier he had said that the state denied women a protection against violence
which it would have given to men (653F).
17. In my judgment, the evidence before the IAT did not come even close to the
evidence which supported these conclusions.
18. I can deal with ground 3 briefly. This ground was raised for the first
time before the IAT. It is submitted on behalf of the applicant that she is
entitled to rely on paragraph 52 of the UNCHR Handbook (page 94). Mr Maddison
having failed to deal with this ground properly, I must approach the ground in
the same manner as I approached ground 2. In my judgment the evidence put
before the SA by the applicant does not, as Mr Kovats submitted, come within
that paragraph. This ground also fails.
19. This application for permission therefore fails.
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MR JUSTICE HOOPER: For reasons which I made available to counsel
yesterday, this application for permission fails. You both have a copy of the
judgment?
MR KOVATS: My Lord, yes, thank you.
MR JUSTICE HOOPER: Miss Phelan, you had a copy yesterday, I hope.
MISS PHELAN: Yes, thank you.
MR JUSTICE HOOPER: Thank you, Mr Kovats, for sending me that
typographical error. Anything further?
MISS PHELAN: Yes, my Lord. The applicant has been legally aided, and I
would ask for assessment of costs.
MR JUSTICE HOOPER: Yes, certainly you can have that. Thank you both for
your help.
MR KOVATS: Thank you.
© 2000 Crown Copyright
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