MA (Rwanda) v Secretary of State for the Home Department [2007] EWCA Civ 310

Case No C5/2006/1457[2007] EWCA Civ 310
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRUBUNAL
[AIT No. AS/19535/2004]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 6 th February 2007
LORD JUSTICE BUXTON
LORD JUSTICE RIX and
LORD JUSTICE MOSES
Between
MA (Rwanda)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR D CHIRICO (instructed by Messrs Lawrence Lupin) appeared for Appellant.MR P COPPEL (instructed by the Treasury Solicitor) appeared for Respondent.
Judgment
[1]This is an appeal with leave of Lord Neuberger of Abbotsbury, as he now is, against a determination of Mr Timson, an immigration judge, dated 27 March 2006. That decision was following an earlier decision refusing asylum to this appellant by another immigration adjudicator.[2]The determination arises out of an application for refugee status made by this appellant in the summer of 2004. He is 40 years old and came from Rwanda but as a result of undisputed persecution he sought and gained refugee status in Uganda, across the border.[3]There was, as I have said, no dispute about the terrible events in which he had become embroiled in Rwanda. His mother was a Tutsi. The fighting had broken out between Rwanda and the Democratic Republic of Congo in May 2000 and following the genocidal conflict some six years before, this appellant had lost his identity card.[4]In May 2000 his family’s petrol station was raided and taken over by a Tutsi Colonel called Karenzi Karaki. He was accused of working for a rival organisation in July 2001 and then subjected, whilst in a period of four months’ detention, to appalling torture. He was eventually released through a Rwandan human rights organisation but meantime had lost the petrol station and his own house to this Colonel Karaki.[5]He was again detained, some two years later in April 2002, and poorly treated whilst in detention. He was then released but some months later the police returned to his house and, because understandably this appellant could not bear the thought of going back to detention, he escaped across the border of the Democratic Republic of Congo into Uganda where, protected by a Roman Catholic refugee organisation, he was subsequently granted refugee status.[6]His claim to that status in this country depends upon events which he asserted took place within Uganda. There were two events, he said, which stemmed from Colonel Karaki’s fear that the appellant would return to Rwanda and seek to recover the petrol station and expose Colonel Karaki as a criminal. So great, contended this appellant, was Colonel Karaki’s fear that he sent henchmen or a relative on two occasions across the border into Uganda in an attempt first to terrify the appellant into not returning to Rwanda and secondly by attempting to murder him.[7]Those two events took place on October 2003 and 26 May 2004. The appellant said in his statement about them: firstly that in October 2003 a man called Karangwa, a soldier with a Rwandan army, had come to Uganda. He was associated with Karaki and he had been one of the officers who had arrested him previously. The appellant said:
“They were looking for me. He asked me for the papers for my father’s petrol station. I wrote a letter to the Uganda police, UNHCR and Amnesty International to inform them and explaining that I was afraid.”
He continues that he got no help or protection in Uganda and was very scared as he thought they would return.[8]In a later statement he describes the second event on 26 May 2004. He said that three men in a car, including Karangwa, had threatened him with a gun. In that statement he describes Karangwa not as an associate of Karaki but as his younger brother. He says Karangwa put the gun against his head and they (that is Karangwa and the other men) said “let’s go”. He continues:
“I asked them where they were taking me. I started to struggle and I told them to shoot me there if they wanted to kill me. They started kicking me and pushing me towards the car. I started to scream and people [sic]. There were house [sic] nearby and the people came out from those. They must have responded to my screaming.”
[9]This claim for refugee status as a result of that behaviour in Uganda turns in part, but I emphasise only in part, on the credibility of that account of what happened on those two occasions in Uganda. But I emphasise it depends only in part upon believing the account of those two incidents because, in order to succeed, the appellant would have to show not only that those two events happened but they happened without any protection, and that they amounted to persecutory conduct. He needs to show that Uganda had failed to take steps to protect him from that conduct and that, if he were returned to Uganda those acting at the behest of Colonel Karaki would persist in that behaviour, find him in Uganda, pursue him there and force him by further persecutory conduct -- unprotected by Uganda -- not to return to Rwanda and expose Colonel Karaki as a criminal.[10]It is, having outlined those facts, not perhaps at first blush surprising that the immigration judge, Mr Timson, rejected that account saying that he did not accept that the Rwandan Army Colonel pursued the appellant into Uganda a number of years after he had confiscated his property. Now it is true that it was not a number of years, it was only two or three years afterwards, and so the appellant contended it was not just that the Colonel feared he would be divested of the property he had illegally taken but also that he would be exposed as a criminal But that said, the suggestion depends upon accepting that those in Rwanda acting at Karaki’s behest would have acted because Karaki was so frightened that he would lose the property and be exposed as a criminal that not only would he send henchmen but also he would successfully discover the whereabouts of this appellant.[11]There is no material whatever as to how it was anybody in Rwanda would have found where this appellant was living. But contends Mr Chirico, on behalf of this appellant, with the apparent tentative support of the judge giving leave for permission, the objective material supports the appellant’s account.[12]In that contention he starts with the unpromising beginning that the immigration judge maintains, at paragraph 25 of the decision, that he has considered carefully the background material. But that, of course, is not dispositive of the issue: if the appellant could show that there was background material supporting this chain of events and reasoning which amounts to persecution entitling the appellant to refugee status in this country, then the mere assertion by the immigration judge would not have disposed of the issue.[13]In that context we were shown documents which Mr Chirico contended supported his case. We were shown, firstly, from the CIPU, the Rwandan Country Report dated April 2004 a passage which referred to those seeking to return to Rwanda and how they might attempt to recover their property. This passage is under the rubric “Reclaiming of land and property”. It records that the government of Rwanda is committed to the return of property to returning refugees but goes on to refer to occasions when those returning refugees have difficulty in succeeding in having their property returned. In paragraph 6.119 it notes a report in 2003 when few people had success in pursuing restitution cases through the court system and a more up-to-date reference to a report from a western embassy that it was not always the case that returning refugees would have their property returned to them (see paragraph 6.121).[14]None of that material provides a basis for thinking that Colonel Karaki would fear that he would be divested of the petrol station to such an extent as to send people to Uganda to warn this appellant off. On the contrary, elsewhere in the background material it is recorded in a report from the Refugee Law Project as to Repatriation of Rwandese Refugees from Uganda dated March 2005 that there are particular difficulties in recovering property by a refugee if there is what is described as “‘a major’ on the land”. The report records, ”you cannot order him out”. (see paragraph 2.3)[15]The next document to which the appellant referred was a report from the IRIN news organisation, that is the United Nations Office for the Coordination of Humanitarian Affairs, 13 March 2006. This records cooperation between Rwanda and Uganda in a bid to curb cross-border crime. Mr Chirico contends that if it were right that the Colonel sent his associates over to Uganda to threaten the appellant in the way the appellant describes, this cooperation would make it even more likely that Uganda would fail to curb that sort of offence. I am afraid I cannot see any basis for such a contention. On the contrary, the cooperation recorded in that document makes it even less plausible that Uganda would not seek to protect those with refugee status from cross-border crime.[16]In those circumstances, those being the documents upon which the appellant relies, there is nothing whatever in the contention that the immigration judge’s decision was tainted by a failure to regard background material supporting the appellant’s account.[17]The next submission was based upon a passage within the decision where the immigration

judge said this at paragraph 19:

“I further do not find it all credible [sic] that the appellant believes he would have any hope whatsoever of gaining redress against this man for events which took place in Rwanda. Karaki was able with little difficulty to take over the property of the appellant and have him detained and tortured.”
[18]He continues at paragraph 20:
“Having seen what had had [sic] happened to him and having seen how the authorities showed no interest in pursing Karaki I do not for a moment accept the appellant believed there was any chance of obtaining redress against Karaki which is possibly why he had not sought any.”
[19]In that passage it appears that the immigration judge was disbelieving the appellant in his assertion of a fear as to what might happen He does not, as it is contended he ought to have done, consider whether Karaki might have believed that he was at such risk in Rwanda as to necessitate him acting against the appellant in Uganda. There may be certain infelicities and lack of clarity in those two paragraphs, but having regard to the background facts I see no reason whatever why it was not open to the immigration judge to reject not only the appellant’s account but his assertion of a fear at all. But the matter is perfectly clear when one looks at the earlier paragraph 18 of the decision in which the immigration judge explains that he does not find that there is any credible explanation as to why Colonel Karaki would continue to pursue the appellant as he continues:
“Despite being in Uganda for a considerable period of time the appellant has never once pursued Karaki through the Rwandan or Ugandan authorities in order to expose him.”
That was perfectly true. There was nothing to trigger Karaki’s fears by any attempt whatever within Rwanda by the appellant to reclaim his property or expose Colonel Karaki as a criminal. On the contrary, the appellant -- as the immigration judge records -- had done nothing. There is no basis for appeal in relation to the way the immigration judge had expressed himself in paragraphs 19 or 20.[20]The final ground of appeal in respect of which permission was also given relates to the way that the immigration judge considered the letters on which the appellant relied from members of his family and from the Ugandan police. In his decision the immigration judge said: “I do not accept the central core of this appellant’s claim, which is that a Rwanda Army Colonel pursued the appellant into Uganda a number of years after he had confiscated his property.” (see paragraph 21)[21]He then went on to refer to the documents from other members of the family and from the Ugandan police and from the appellant himself and said:
“Balancing them together with the appellant’s account I find they do not make an implausible account credible.”
[22]It is on that basis that the appellant now says that the immigration judge reached a concluded view as to credibility and then turned to documents which might have supported the very finding that he had already made. From time to time immigration judges do fall into such error and reach a concluded view without looking, as they must, at all the relevant evidence in the round (see Mibanga v Home Secretary [2005] EWCA Civ 367).[23]I am quite clear that the immigration judge made no such error in this case. He looked at those documents as part of the exercise in assessing the credibility of the appellant’s account before he rejected them. The explanation for the order in which he sets out his reasoning is merely that having stated that he did not accept the central core of the appellant’s claim he then set out the further material which went towards his final conclusion.[24]We have looked at that material. Far from supporting the appellant’s case, in an important respect they undermine it. There are the letters the appellant himself wrote to agencies complaining of his treatment in Uganda, letters from his family but, importantly, a letter on its face dated 28 May 2004 from a divisional CID officer in Nakawa Kampala to UNHCR in Kampala, recording the allegation made by the appellant that he had been threatened and attacked with a pistol. This shows that the Ugandan authorities were not turning a blind eye to this appellant’s complaint but were seeking to find redress.[25]For all those reasons there is, in my view, nothing in this appeal whatever and I would dismiss it.[26]I agree.[27]I also agree. It is important, I think, to underline that as my Lord, Lord Justice Moses, said at the start of his judgment, even if the whole of the appellant’s account were accepted as true he would still face very formidable difficulties in bringing his case within the requirements of the Refugee Convention. But even before reaching that stage, the credibility of his account had first to be addressed, as it was by the immigration judge.[28]In granting permission for this appeal Lord Neuburger said:
“There are a number of decisions of the Court of Appeal and of the AIT in which the determination of an adjudicator or Immigration Judge has been held to be unsatisfactory because it does not address oral or documentary evidence which appears to be inconsistent with the conclusion reached. On the other hand, it is plainly wrong to conclude that merely because a decision does not deal with every aspect of the evidence that it is flawed. The line is difficult to draw, but it seems to me that there is an arguable case here.”
We however have now had the benefit of very close consideration of that material which it is said the adjudicator did not address in his determination. It is absolutely clear for the reasons that my Lord has given that none of that material, and in particular what was described as the objective evidence, came anywhere near to giving assistance to the appellant in respect of the particular incident of which he complains, and in respect of the attitude of the Colonel that he alleges. The immigration judge was therefore under no obligation at all to go into that material, and if he had done so it would not have affected the outcome.[29]There is nothing in this appeal and it must be dismissed.

Order

Appeal dismissed