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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Y K M v Secretary Of State For The Home Department [2007] ScotCS CSIH_55 (22 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSIH_55.html Cite as: [2007] CSIH 55, [2007] ScotCS CSIH_55 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord Nimmo SmithLord Clarke |
[2007] CSIH 55XA96/05 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL by Y.K.M. Appellant; against THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT Respondent: _______ |
Act: Bovey, Q.C., Caskie; Drummond Miller
Alt: Lindsay; The Office of the Solicitor to the Advocate
General
The appellant's family
history
[1] The appellant
has a tragic family history. He was the
third of seven children of Hutu parents who had their home at Rwamagana in the
eastern
[2] On the
evening of
[3] The
appellant's loss of family did not end there.
After a number of moves, to which it will be necessary to return, the
appellant and his siblings lived for a time in
Earlier procedure
[4] The appellant's
claim for asylum was refused by the respondent in terms of a letter dated
[5] The Asylum
and Immigration Tribunal was constituted by Mr. M.E. Deans (Senior Immigration
Judge) and Mr. J.G. Macdonald (Immigration Judge). Mr. Deans is a particularly experienced
judge in immigration and asylum matters.
That Tribunal was impressed by the appellant. It formed a very favourable view of him when
he gave evidence before them. He was, it
found, honest truthful and articulate.
All challenges to his credibility as a witness were rejected by the
Tribunal. His academic record, both in
Further aspects of the
appellant's history
[6] In order to
set in context the discussion before us it is necessary to return to the
appellant's history. Once the situation
at Rwamagana had calmed down, the appellant, his cousin and his younger siblings
made their way to the home of the appellant's uncle in
[7] Some months
later the appellant began to receive threats or warnings. He regularly found plastic bags full of
water, urine or blood under his bed sheets in the dormitory. Knives and crosses were drawn on his
desk. Written messages were received
saying "Don't do it", "You are dead" or "[J] is dead". ([J] was the name of one of the appellant's
sisters.) Warnings and threats of those
kinds continued until the appellant left school and went home in June
2002. Shortly thereafter his youngest
sister met two men who slapped her face and told her to give to the appellant a
piece of paper. On it was a drawing of a
young girl with a line across her chest in red ink. On the forehead of the image was written "[J]"
and the words "Don't do it". A similar
threatening incident involving one of the appellant's younger brothers occurred
shortly thereafter.
[8] A week later
the appellant's uncle and his uncle's son were arrested by the army, apparently
on political grounds. After their
detention threatening messages began to arrive at the house. Blood was also found on the shop windows and
doors. Arrangements were made for the
appellant and his siblings to stay with a friend of the uncle. A few days later those who had arrested the
appellant's uncle ordered that the shop be shut. In July 2002 the uncle's friend was also
detained, apparently for the same political reasons as the uncle. Thereafter arrangements were made, as earlier
narrated, for the departure of the appellant and his siblings from
The grounds of appeal
[9] In his
grounds of appeal the appellant maintains that the Tribunal erred in law in
holding that he did not have a well-founded fear of persecution, if returned to
The appellant's submissions
[10] Mr. Bovey for
the appellant did not maintain that the Tribunal had erred in any of the
general legal considerations applicable to cases of this kind. It was accepted that under the Refugee
Convention it was for the appellant to satisfy the Tribunal that he faced a
real and substantial risk (or a real and substantial danger) of serious harm
were he to be returned to
[11] Mr. Bovey's
criticism of the Tribunal's decision was directed to its treatment of certain
of the evidential materials which it had considered. Among other materials placed before it on
behalf of the appellant was a report by Professor Fairhead, an acknowledged
expert on Central African affairs. At
paragraph 6 of his report Professor Fairhead quoted from certain materials which
had not already been supplied to the Tribunal.
The first quotation was in the following terms:
"(a)
'According to several human rights
organizations and government officials, hundreds of witnesses to the Genocide
were killed throughout the country, reportedly to prevent testimonies and
undermine the rural justice system (Gacaca).'".
Having referred to three other quotations, he stated:
"(e) Rwandan
government's recognition of this problem:
'14 May 2004 (IRIN) - Rwandan
President Paul Kagame has dissolved a district executive committee in the
southwestern province of Gikongoro where several killings of genocide survivors
has [sic] occurred, the Rwandan News
Agency reported on Thursday. Kagame's
action followed his two-day visit to Gikongoro that ended on Tuesday, the
agency reported. Cabinet approved his
decision on Wednesday, at a meeting during which replacements for the dismissed
officials were named. Killings of
genocide survivors in Kaduha District occurred in 2003. Four genocide survivors were reportedly
killed in Gikongoro in late 2003 by a group of genocide suspects in order to
prevent them from testifying in the Gacaca justice system, introduced in the
country in 2001. Similar killings were
also reported in the central
[12] Among other
sources of information before the Tribunal was a report from "News from
"[That report] referred to a
Senatorial Commission of enquiry having been set up in
The Tribunal described that report as "of
[13] The Tribunal
also noted that the Home Office Country Report for
[14] At paragraph
57 of its decision the Tribunal observed that, while the expert report by
Professor Fairhead was highly informative, it was for the Tribunal to assess
whether on the basis of the report, and other evidence before it, the appellant
had established a real risk of serious harm and of failure of state
protection. The Tribunal accepted that
the appellant had a genuine fear that he would be harmed if he returned to
"These are, in our view, largely
subjective fears. The U.S. State
Department Report, quoted by Professor Fairhead, refers to several human rights
organisations and government officials reporting that hundreds of witnesses to
the genocide were killed throughout the country in 2004 reportedly to prevent
testimonies and undermine the rural justice system. However, when the evidence for this is
examined closely, as it is by Professor Fairhead at 6(e) of his report, it
appears that concern has focused, in particular, from the Rwandan President on
the southwestern
[15] Mr. Bovey
submitted that the Tribunal had misunderstood Professor Fairhead's report. At paragraph 6(e) he had not "examined
closely" the evidence for the quotation at paragraph 6(a). He had been producing two distinct pieces of
information. The information at
paragraph 6(a) related to the calendar year 2004, while paragraph 6(e) was a
report dated
Discussion
[16] The Tribunal
correctly recognised that it was for it, on the whole evidence before it, to
assess whether the appellant had established a real risk of serious harm and a
failure of state protection. As regards
risk, the frequency with which potential witnesses were killed was clearly a
relevant consideration - as were the places in the country where such killings
occurred. The Tribunal had before it
specific information from specific sources.
In December 2003 the BBC had reported Ibuka (an organisation
representing survivors of the genocide) as stating that a number of people had
been killed that year. One or two, Ibuka
had said, were killed every month but three had recently been killed in
Gikongoro. That report, together with
one to the same effect in Mail and Guardian Online, had been noted in the
C.I.P.U. Rwanda Country Report published in April 2004, which had also reported
that the killings in Gikongoro were "rampant".
In the IRNR report published in May 2004 it was stated that killings of
genocide survivors had occurred in 2003 in Kaduha District (in Gikongoro
province) and that four genocide survivors were reportedly killed in that
province in late 2003 in order to prevent them from testifying in the Gacaca
justice system. Similar killings were
also reported in the adjacent central
[17] As to
paragraph 57, the Tribunal there asked itself the question whether the general
statement in the U.S. State Department report was borne out by specific
evidence. It concluded, as it was to
restate at paragraph 72 after a full examination of the material before it,
that the specific evidence did not support the generalisation (which itself did
not have its origin in any named source).
The parenthetical reference to Professor Fairhead's report simply points
to the fact that paragraph 6(e) does not tend to support killings of the order
indicated in the
[18] In all these
circumstances we are not satisfied that any error of law has been demonstrated
in the Tribunal's evaluation of the risk presented in Rwanda as at 2005 to
potential witnesses at Gacaca trials.
Having reached its general conclusion, the Tribunal then addressed the
particular situation of the appellant.
It found that the measures taken against him appeared to have been
directed towards frightening him rather than harming him. It considered the possibility that those
people might, if their attempts to frighten him failed, resort to actual
violence but were not satisfied that the appellant had shown a real risk of
violence towards him. No criticism was
in the end made of this part of the Tribunal's reasoning.
[19] Mr. Bovey having
failed to persuade us that the Tribunal erred in law in its approach to the
evaluation of risk, the foundation for his challenge to its decision on state
protection is largely removed. We
should, however, say something about this second aspect of the case. The sufficiency of state protection has to be
measured against the nature and extent of the risk presented to the appellant
as an individual and as a member of the class of persons for whom harm is
apprehended. Mr. Bovey did not suggest
that the
Disposal
[20] In all these
circumstances we are satisfied that this appeal must be refused.
Coda
[21] We would add
one word in relation to the procedure suggested by Mr. Bovey in the event
of the appellant being successful on the substance of his appeal. We do not regard section 103B(4)(b) (which
empowers the court on an appeal to "make any decision which the Tribunal could
have made") as intended to confer on this court any fact-finding
jurisdiction. An appeal lies to it only
on a point of law (section 103B(1)).
While further agreed facts might no doubt be taken into account by this
court, any adjudication on disputed or potentially disputed matters of fact is
for the Tribunal.