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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> R.T. (DRC) -v- Refugee Appeals Tribunal & anor [2014] IEHC 194 (28 March 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H194.html Cite as: [2014] IEHC 194 |
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Judgment Title: R.T. (DRC) -v- Refugee Appeals Tribunal & anor Neutral Citation: [2014] IEHC 194 High Court Record Number: 2009 414 JR Date of Delivery: 28/03/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 194 THE HIGH COURT JUDICIAL REVIEW [2009 No. 414 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996, IMMIGRATION ACT 1999, SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND STATUTORY INSTRUMENT 518 OF 2006 BETWEEN R. T. (DRC) APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER MICHELLE O’GORMAN) AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on 28th day of March, 2014 1. This is an application by way of telescoped hearing which challenges the decision of the Refugee Appeals Tribunal. Background 3. By letter dated 24th March, 2009, the applicant was notified of a decision by the Tribunal to refuse her appeal enclosing a copy of the tribunal member’s recommendation made 15th March. 4. The applicant’s fear of persecution rested on three matters, namely:-
(ii) the applicant’s membership of a social group comprising of Tutsi women; and (iii) a fear if refouled as a Tutsi failed asylum seeker. 6. The applicant explained at question 21 of the questionnaire why she left the DRC. In 1998 she was visiting her uncle’s home in Kinshasa when a Tutsi massacre occurred in the City. She was twelve years old. They fled to the Eastern Congo, 40 kilometres from Goma, where they lived for several years despite the fact that the Eastern part of the country was not secure. At the time of the upheaval in Kinshasa in 1998, the applicant lost contact with her parents and siblings and spent some nine years living in the village of Mushake with her uncle. Some years later hostilities erupted in that area and living conditions deteriorated. Her aunt was raped and she and two cousins were killed in an ambush. A large movement of population took place. In the course of the unrest her uncle was shot and died from his wounds. She stated that her uncle, before he died, told her to save herself and gave her his money. She was taken by a man to the neighbouring village of Kitshanga, where they remained until the following day. They then travelled to Goma where they remained until her escape from the country was organised. 7. In her s. 11 interview she indicated that the attack on her aunt and cousins took place in September, 2007 following which rebels took over the village of Mushake and she and the remaining members of her uncle’s family were obliged to flee. She eventually travelled to Kigali, Rwanda on 11th December, 2007. She then travelled to Brussels before travelling to Ireland where she arrived on 12th December. She said that she feared that if returned to DRC she would be alone as she did not have any family there or a place to live and that as a Tutsi, she will be subject to discrimination and violence. 8. The s. 13(1) report set out a series of “credibility” issues that arose in the applicant’s claim. It noted that the rebel leader in charge of the contingent that raided the village where she lived was a Tutsi who claimed that his presence in Eastern Congo was because of the Tutsi need for his protection. It was also considered that the applicant’s knowledge of the rebel leader and the general situation in North Kivu, where the village was situated was very limited. It was considered that the applicant did not have a fear of persecution of the rebel leader because she was of the same race. It was concluded, therefore, that the applicant’s decision to leave arose from the general violence in the Eastern region of the Congo which did not give rise to a Convention ground. The Tribunal Decision
(b) The applicant claimed that she did not know to which ethnic group the rebel leader who raided her village belonged or why he was fighting in North Kivu. The Tribunal concluded that it would be reasonable to expect that she would have some limited understanding about the reasons for the local war because she had been living in Mushake for some time and the civil war continued for a long period throughout the Kivu area. 10. The applicant’s sister and brother in law have been granted asylum in Ireland and the Tribunal stated that it had regard to the decision of the Refugee Appeals Tribunal dated 5th December, 2003, in their case. It was acknowledged by the Tribunal that evidence from family members other than the applicant could be relevant in the event that a particular family was the subject of persecution and similarly, that evidence of ethnic persecution could be persuasive, though not personal, to the applicant. However, the Tribunal stated that the decision of a body in a particular case is neither evidence in another case nor does it create a binding authority for future cases. The Tribunal concluded that the applicant’s sister’s decision was dated 2003, and related to events in the DRC from 1998 to 2002. It concluded that the decision in that appeal was not of sufficient relevance to the applicant’s case to warrant a conclusion that the current recommendation be overturned, particularly in the light of more recent country of origin information in respect of the situation in DRC and the credibility issues concerning the applicant. 11. It is clear expressly and implicitly from the decision that the credibility issues concerning the applicant concern only her account of living in the North Kivu area and the reasons why she fled. 12. As already stated, the applicant’s sister and brother in law have already been granted refugee status in this country. The applicant’s sister gave a history in her own case which was consistent with the life events in Kinshasa described by the applicant. She and her husband also gave evidence in support of the applicant’s case to the Tribunal. In their decision, the Tribunal summarised the background to the case as follows:-
The applicant met her husband to be in Kinshasa in 1997. Her father in law (was murdered in Kinshasa by Congolese on 20th July, 1998. There were many others killed on that day and the killing continued thereafter. They went to the Tutsi Minister to seek information about the killing and he advised them to leave straightaway, which they did. He said it would be a bad idea to stay and he believed that all Tutsis would be murdered. The applicants moved to and were married in Kisangani shortly thereafter.” 13. The tribunal member in the applicant’s case did not make a finding that the circumstances in which she came to leave Kinshasa were not credible. The determination in respect of lack of credibility is confined to the evidence which she gave in respect of her life over the subsequent years with her uncle in the Kivu area and the reasons given for her flight. Therefore, there was ample evidence of past persecution of the applicant and her family in the DRC at the time when she and other members of her family fled Kinshasa in 1998. That persecution was related to their race or ethnicity as Tutsis who were subjected to widespread vilification, discrimination and a government inspired campaign of murder. There was also considerable evidence of murderous violence erupting against Tutsis during periods of civil strife, especially in 2002 and 2004. An undercurrent of discrimination and hatred against Tutsis has continued. 14. This Court is not a court of appeal. The Tribunal heard the evidence and considered the materials relating to this matter. Though the entire account of her previous life was accepted as correct, and the named rebel commander was active in the Kivu area at the time which she claims to have fled, it was open to the Tribunal notwithstanding the existence of country of origin information that supported some features of the applicant’s claim to reject the applicant’s story in that regard. 15. However, it is clear that the Tribunal accepted that the applicant was a Tutsi, that she and her family had suffered prior persecution leading to their flight from Kinshasa in 1998, and her separation from her parents and siblings. The Tribunal did not appear to have accepted that she lived in Mushake or its environs, or that her aunt, uncle and cousins suffered the fate described. The Tribunal did not accept that she was fleeing anything other than the living conditions that existed in the DRC and had not left for a Convention reason. 16. Though her story was not believed, it was also necessary for the Tribunal to determine whether there was a future risk of harm. It had determined that she was a Tutsi. Tutsis had been subjected for reasons of race and assumed political allegiance to persecution in the past. That was clear from country of origin information and from the acceptance of the applicant’s story in respect of her earlier life. It was also clear from the accounts furnished by her sister and brother in law in the course of their evidence and their application for refugee status granted in 2003. Tutsis as an At Risk Category
‘In Kinshasa, the Tutsi community is small, probably no more than 60 people. There is also a small detachment of mostly Tutsi soldiers who work as former vice president Ruberwa’s bodyguards and some Tutsi officers in the FARDC high command. Many of the Tutsis living in Kinshasa have a high political profile’...’For the most part Tutsis in Kinshasa go about their daily business unmolested, although they are subjected to more racist comments in the street than other Congolese ethnicities (but less than white people are). Over recent years many of the Tutsis resident in Kinshasa were men who had left their families in the Kivus or overseas. Many have begun to or plan to bring their families to Kinshasa, reflecting their increased confidence in their local security’… ‘Recent fighting in Easter Democratic Republic of Congo has seen Nkunda (the rebel leader) blamed and Tutsis demonised by certain sections of the Kinshasa media and political scene. However, we have no reliable evidence to suggest that this has translated into increased harassment or other abuse of Tutsis in the city’…”
19. The Tribunal also considered decisions of the United Kingdom Asylum Immigrations Tribunal and, in particular, AB & DM v. The Secretary of State for the Home Department [2005] UKAIT 00118, which relied upon the same materials referred to and quoted above. These cases considered whether and to what extent those of Tutsi ethnicity were at a real risk of persecution and more generally what the current risks were for failed asylum seekers, who were Tutsis. 20. The following conclusion was reached:-
(i) We confirm as continuing to be a risk category those with a nationality or perceived nationality of a state regarded as hostile to the DRC and in particular those who have or presumed to have Rwandan connections or are of Rwandan origins. (ii) We consider that in light of recent developments there is now a risk category consisting of those who are Tutsi (or Banyamulenge) or are perceived to be Tutsi (or Banyamulenge). The only possible exception to it arises in relation to high level officials of RCD/Goma. We accept that in practice there is considerable overlap with (i) since as a result of the events of 2004 “Rwandan” and “Tutsi” are more often regarded as the same by the DRC authorities and civilian population and as a result Tutsis and those perceived as such face higher risks than before. However, they are distinct categories, one nationality based, the other ethnicity based.... 53. The Tribunal would reiterate some earlier observations on the task of assessing whether a person falls within the new second risk category as now extended. There are two main aspects to this. Firstly, on the evidence before us most but not all Tutsis would be at risk. As noted in paras. 39-40 some Tutsis may be able to obtain the protection of MONUC albeit in practice they may be limited to those with wealth who are high level officials within RCD/Goma and appear able to look to the authorities for protection. 54. Secondly, as with the military or political category, much depends on the perception of the authorities as to whether they view someone adversely. It is not sufficient for an appellant simply to state that he is Rwandan or Tutsi or would be perceived as such. Evidence as to ethnicity will need to be scrutinised carefully. Given that Tutsis are described as being physically distinct from other tribes (CIPU report October, 2004 at para. 6.71) a person is more likely to be viewed as a Tutsi by the authorities if he or she has those distinctive characteristics. Similarly those whose dialect, tribunal links and geographical origins link them closely to Tutsis, such as the Banyamulenge would also appear to fall within the at risk category. However, the mere fact of coming from the East or being of mixed ethnicity is unlikely without more to give rise to a perception of being Tutsi. The assessment must be made on the basis of a careful analysis of the appellant’s ethnicity, background and profile.” 21. The Refugee Appeals Tribunal concluded that while A.B & D.M. added Tutsis to the “at risk” category in the United Kingdom, the judgments did not imply that all individual claimants accepted as Tutsis will automatically be at risk of persecution, or that ethnicity in the absence of other factors such as political activity is likely to bring such individuals to the adverse attention of the authorities. It also stated:-
3.8.2 Treatment. At times of tension and anti-Rwandan feeling, numbers of people living in Kinshasa or other areas of Western DRC have been assaulted or arrested by the authorities on grounds of their Tutsi ethnic origin, namely because of their supposed Tutsi features. The most severe forms of anti-Tutsi feeling were demonstrated in August, 1998 and in the succeeding months, after the Kabila government broke with its erstwhile Rwandan supporters and incited hatred against Tutsis. At that time many people of Tutsi origin living in Western DRC left the area, sought asylum abroad or were resettled in other countries. 3.8.3 Members of former rebel groups dominated by Tutsis were appointed in the TNG (Transitional National Government) and during the 2006 elections a Tutsi from North Kivu province was elected to the national assembly. There are Tutsi members of both Houses of Parliament…Societal discrimination on the basis of ethnicity is practised by members of virtually all of DRC’s approximately 400 ethnic groups and in 2006 the FARDC and other security forces sometimes harassed arbitrarily, arrested and threatened Tutsis. Still there have been no recent reports that Tutsis have been subjected to any serious abuses by either government authorities or citizens. A National Institute for Social Security (INSS) Centre for Tutsis who were at risk was established in Kinshasa in 1998 with support from the Ministry of the Interior, ICRC and international donors. However, in the light of the greatly diminished risk of abuse and the increased tolerance of the local population the centre was closed in June, 2003. 3.8.4 Unlike in 2004 when numerous anti-Tutsi articles and government sponsored hate speeches and broadcasts were reported, anti-Tutsi sentiments – including appeals to force Tutsis into exile and practice discrimination towards Tutsis in regard to citizenship rights – were not expressed in private media or government affiliated media in 2005. Also, there were no known reports that government members encouraged hate speeches or any other intimidatory actions against Tutsis in 2005 or 2006. 3.8.5 Sufficiency of Protection. If this category of claimants’ fear is of ill treatment/persecution by the state authorities, they cannot apply to those authorities for protection. In October, 2004 the government deployed 5,000 troops to protect displaced Tutsis threatened by other ethnic groups in Eastern DRC. The authorities have, therefore, demonstrated their capacity to protect Tutsis from rival ethnic groups. If the ill treatment persecution is at the hands of non-state agents there is no evidence that such individuals would not be able to seek adequate protection from the authorities. 3.8.6 Internal Relocation. The law provides for freedom of movement within DRC, however, the TNG occasionally restricted these rights in areas under its control in 2006 by establishing barriers and checkpoints on roads, at ports, airports and markets for security reasons… 3.8.7 If a claimant’s fear is of ill treatment/persecution by the state authorities, relocation to a different area of the country to escape this threat is not feasible. Although there are practical difficulties in moving between areas under government control and areas which are not under government control relocation by river or air is possible and it is not unduly harsh. Those who are in fear of non state agents in areas dominated by rebel forces are able to safely relocate to a different area to escape this threat.” 23. The Guidance Note contains the following conclusion:-
3.8.10 The AB and DM and MK Country Guidance case law…adds Tutsis to the “at risk” categories and the judgments indicate that most Tutsis and those perceived as Tutsis are likely to be at risk of mistreatment. The judgments do not however imply that all individual claimants accepted as Tutsis will automatically be at risk of persecution simply on the basis of their ethnicity, rather that ethnicity in addition to other factors such as political activity are likely to bring such individual to the adverse attention of the authorities resulting in mistreatment which may amount to persecution. Case owners should assess each claim on the basis of a careful analysis of an individual’s ethnicity, background and profile, with well connected, more affluent Tutsis being unlikely to encounter/in a better position to avoid any risk of mistreatment.”
9. Thus, the essential conclusion being drawn by the note from the available information as of November 2006, is that the former dire situation of the Tutsi community as of 1998 had been considerably ameliorated by the advent of the transitional national government in which Tutsi representatives have participated, with increased resulting tolerance from the local population and at greatly diminished risk. Accordingly, in the final resort, while there may be some risk to which the Tutsis are exposed, it is not a risk amounting to risk of persecution unless, at least, in individual cases, it is established that there is some additional factors such as prior political activity which attracts the adverse attention of the authorities. 10. That seems to me to be entirely consistent with the approach that is taken by the tribunal member in the decision in this case. He finds that on grounds of ethnicity alone, as a Tutsi, the applicant is not at risk as of May, 2007. However, he then also examines the other factor in the sense of the note by looking at the claimed association of the applicant with (a criminal)…”…with a view to seeing whether it would constitute another such factor which would distinguish the applicant as exposed to exceptional risk, in addition to the general risk as a Tutsi member of the Congolese population.” 28. Clarke J. in Imoh v. Refugee Appeals Tribunal [2005] IEHC 220, stated that there is no logic in regarding a credibility decision which was based on a clear error of fact in respect of an applicant’s account as being invalid and not regarding a similar credibility finding which was based upon an error in relation to country of origin information as being invalid. However, having reviewed the country of origin information, the various decisions of the United Kingdom Courts and the Immigration Asylum Tribunal, the Kingdom Home Office Guideline Notes quoted and the decision of this court in Y.Z.W., I am not satisfied that the Tribunal erred in its general assessment and interpretation of the country of origin information submitted by the applicant. In this case the Tribunal concluded on the basis of the up to date information that it was unlikely that the applicant would be automatically at risk simply on the basis of ethnicity. It was Tutsi ethnicity together with other factors such as past experience or political activity that were likely to bring her to the attention of the authorities. However, though the applicant is acknowledged to be Tutsi, there is no evidence of any such political activity in her personal history that would bring her to the adverse attention of the authorities in the DRC. A question arises as to whether there was an additional factor in this case which was not or was inadequately considered by the Tribunal such as to vitiate the decision. Risk to Tutsis as Failed Asylum Seekers “In A.B. & D.M. on file it is stated:-
48. If someone is identified as a failed asylum seeker but there are no known political charges against him, there is a risk that they may be required to pay a ‘fine’. Those who do not have charges against them or are otherwise not of interest to the authorities will be released upon payment of the fine. . . . Research into an individual case may more easily lead to the discovery of the political, military or ethnic background of a returnee but may also identify someone as a mere returned failed asylum-seeker. 49. This evidence emphasises that the primary risk to a returnee is where they have a political or military or ethnic (Tutsi) background which makes him of an adverse interest to the authorities. However, the risk arises because of his background and not because he is a returnee. The relevance of the fact that returnees are closely scrutinised goes to the likelihood of that background coming to light. If someone is not of interest to the authorities but is identified as a failed asylum seeker then it is clear from the evidence that the only real risk they run is of being required to pay a fine. . . . The aim is to obtain money and must be viewed in the context of a society where corruption is endemic and there is a background of generalised chaos. . . . 50. The issue for the Tribunal is whether the position is such that there is a real risk of a breach of Article 3 (of the European Convention of Human Rights) for all returned asylum seekers identified as such. We are not satisfied that the high threshold is met. . . . We are confirmed in this view by the fact that the UNHCR in its letter of 2nd February, 2005, maintained its opinion which it has set out in previous letters that generally speaking it was possible for unsuccessful asylum seekers to return to the DRC provided that they had been found in fair procedures not to have international protection needs.” 32. I am not satisfied therefore that the Tribunal’s consideration of the applicant and her fear of persecution as a failed asylum seeker as a Tutsi was in error or is to be viewed as unreasonable or irrational. It was reached on the basis of the evidence of materials submitted and set out in considerable detail in the Tribunal decision. 33. The applicant also submits that the risk to Tutsis simpliciter was reemphasised in N.A. v. Secretary of State for the Home Department [2008] UKAIT 00071, in which the Hema who are closely related to the Tutsis ethnically were added to the list of those at risk of persecution. However, in that case the Tribunal stated:-
Evidence of Past Persecution as an Additional Factor
35. It is submitted that the Tribunal did not properly, fully and in a balanced manner consider all relevant factors concerning the applicant’s personal circumstances in determining that she could return to Kinshasa. In particular, the applicant and her family had already fled Kinshasa and been separated in 1998. The applicant’s sister and brother-in-law also fled Kinshasa at that time. She and her sister became separated from her immediate family. At the time of the Tribunal hearing, the applicant was 21 years of age with limited education. In addition, the country of origin information cited by the Tribunal stated that the Tutsi community in Kinshasa was small and probably no more than 60 people. It also consisted of a small detachment of Tutsi soldiers who worked as bodyguards and some Tutsi officers in the army high command. It noted that many of these Tutsis had a high political profile. It then concluded:
37. In my view, the evidence adduced before the Tribunal indicates an inconsistency and tension between the determination that the Tutsi continue to be at risk as clearly set out in A.B. and D.M. and the subsequent interpretation of that category by the United Kingdom Courts, the Immigration and Asylum Tribunal and the United Kingdom Home Office Guidance Notes. This risk has been repeatedly said to exist. It is now interpreted as a risk which of itself does not give rise inexorably to an entitlement to the grant of refugee status, but requires something additional evident from the surrounding circumstances of the individual applicant to justify the granting of refugee status. The materials quoted are not binding on a decision maker in this jurisdiction, nor should they be viewed as a form of legal precedent. They constitute country of origin information only and simple guidance as to how that information may be used. There is a danger that the subsequent interpretation of the A.B. and D.M. guidance may result in the determination that the Tutsis are at risk losing its meaning. A Tutsi applicant by reason of this categorisation must be regarded as different to a non-Tutsi citizen of the DRC. The evidence available to the United Kingdom authorities has resulted in the continuing categorisation of the Tutsis as a group considered to be at risk. DRC citizens generally are not considered to be at risk. I am satisfied that if this country of origin information is to be relied upon, it would be unreasonable not to afford that categorisation some evidential effect in an application by a Tutsi for asylum. 38. As noted earlier, the Tribunal accepted that the applicant’s family was forced to leave Kinshasa during the murderous events of 1998. As a twelve year old she had experienced persecution resulting in the destruction of her family life and separation from her immediate family and siblings and her local community and life in Kinshasa. 39. The UNHCR Guidelines acknowledge that the mere fact of belonging to a certain racial group would normally not be enough to substantiate a claim to refugee status. However, they also state that:-
40. The court is satisfied that the evidence of past persecution suffered by the applicant as a twelve year old and the continuing undercurrent of prejudice and discrimination against Tutsis in the DRC are factors additional to the fact of the applicant’s Tutsi ethnicity that should have been considered by the Tribunal, particularly in respect of future persecution. This is so, notwithstanding the finding that her reasons for leaving the country were not deemed to be credible. In MAMA v. The Minister for Justice [2011] 2 I.R. 721, Cooke J. held that the fact that particular facts or events relied upon as evidence of past persecution were disbelieved did not relieve the decision maker of an obligation to consider whether there was a risk of future persecution of the type alleged in the event of repatriation. To tell a story that is not true concerning events involving previous persecution “will not necessarily foreclose or obviate the need to consider the risk of future persecution provided there are some elements which furnish a basis for making that assessment” (para. 18). In my view, not only is there evidence of past persecution that ought to have been considered, but it was appropriate to do so bearing in mind the vulnerability of Tutsis as an at risk group. This evidence was highly significant particularly because the evidence that the applicant was a Tutsi, which was accepted by the Tribunal, assumes much greater relevance and importance when considered in this context because the Tutsi have been defined as an at risk group. 41. Furthermore, the generalised conclusion about the relative safety of Tutsis in Kinshasa based on the British Embassy letter appears to me to be unreasonable having regard to the acknowledged tiny population of Tutsis that remained in the capital. These are people who are prominent by virtue of which they are able to secure protection for themselves, as acknowledged in A.B and D.M. The applicant does not fall into that category. On her return she would be alone and would not have the benefit of any protection afforded by status or prominence. 42. I am satisfied that the applicant’s ethnicity in addition to the other factors which include evidence of previous persecution and periodic general persecution of Tutsis in the DRC, together with the underlying prejudice and discrimination which continues to place them at risk and the accepted experience of past persecution evidenced by her sister and brother-in-law in the decision submitted, are additional factors which should have been considered in relation to future risk given her membership of an at risk category, but were not. I am satisfied that a disproportionate weight was assigned to the applicant’s lack of credibility in this case without an adequate consideration of the risk of future persecution. 43. Therefore, I am satisfied in the circumstances of this particular case to grant an order of certiorari of the Tribunal decision and direct that the matter be remitted to the Tribunal for hearing by a different member on the basis that, for the foregoing reasons, the decision was fundamentally flawed.
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