Mukendi, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 456 (Admin)

Case No CO/8894/2005[2006] EWHC 456 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 21st February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE MUNBY
Between
THE QUEEN ON THE APPLICATION OF MULAU MUKENDIClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Applicant appeared in person and was not represented. for in personMR R PALMER (instructed by the Treasury Solicitor) appeared for CLAIMANT
J U D G M E N T
[1]MR JUSTICE MUNBY: This is an application for judicial review, permission having been granted by Walker J on 12 December 2005. The matter was originally listed for hearing before me on 9 February 2006 but had to be adjourned because the claimant, who appears in person and is currently detained at Yarl's Wood Immigration Removal Centre, had not been produced by the authorities.[2]The claimant, a citizen of the Democratic Republic of Congo, claimed asylum on her arrival in this country on 29 March 2004. Her application was refused by the Secretary of State on 13 May 2004. She appealed, but her appeal was dismissed by the adjudicator, Mr Sarsfield, in a determination dated 28 July 2004.[3]In paragraph 21 the adjudicator found that the claimant was not credible for a variety of reasons which he set out in paragraphs under letters a to v. In paragraph 22 the adjudicator concluded that the claimant had embellished her account as time had progressed. He found her to be evasive and found her account to be "not credible and a fabrication.".[4]In paragraph 19 of his determination the adjudicator made certain findings as to what he called the "stereotypical physical characteristics" of Tutsis of Ruwandan origin and acknowledged that Congolese people who are not Tutsis but had that appearance were viewed as Tutsis. He also recorded the well-known, if lamentable, fact that since the 1998 conflict began there have been serious human rights abuses committed against Tutsis, or those perceived to be Tutsis, both by government security forces in Kinshasha and elsewhere and also by private citizens.[5]As Mr Palmer, on behalf of the Secretary of State, correctly pointed out, the adjudicator, in paragraphs 23 and 24 of his determination, made four findings of fact which were not merely central to his decision but were also highly relevant to the subsequent decision of the Home Secretary which is the subject of the present challenge. The first of those four findings was:
"The appellant's physical appearance did not match that of a Tutsi"
. The second relevant finding was:
"On her own evidence she had a DRC identity card, so that her nationality as a Congolese was accepted by the authorities."
The third relevant finding was:
"Her mother, a Rwandan, remains in the DRC and there was no evidence that she or the appellants' family had continued to have problems."
The fourth relevant finding was:
"As I find the appellant's account a fabrication, I am not satisfied she has ever suffered as a result of any Rwandan connection or perception."
[6]The claimant sought permission to appeal from the decision of the adjudicator to the Immigration Appeal Tribunal. Permission to appeal was refused on 2 November 2004. The claimant subsequently exercised her right to make an application to a judge of this court for statutory review of that decision. That application in turn was refused. The claimant had accordingly exhausted all her rights of appeal and no longer had any lawful basis for remaining in this country.[7]On 27 September 2005, she was detained. On 12 October 2005, removal directions were given for the claimant's removal from this country to the Democratic Republic of Congo on an aeroplane leaving at 7pm on 2 November 2005. The present proceedings seeking judicial review were issued on that very day: 2 November 2005.[8]In the meantime, on 31 October 2005, immigration advisers acting on the claimant's behalf had written to the Secretary of State making what was described in their letter as a "further human rights representation". That letter briefly summarised the successive dismissals of the claimant's application for asylum and of her appeals against that refusal. It then rehearsed what, as Mr Palmer correctly points out, was the substance of the claim which had been put before the adjudicator and rejected by him. The letter went on to assert that the Congolese authorities were unable to protect her in the DRC and that there would be a breach of her human rights were she to be returned by this country to the DRC. Thus far, as Mr Palmer correctly points out, the letter said nothing that had not already been said previously by, or on behalf of, the claimant and in the event, as it happens, rejected by the adjudicator.[9]The letter then continued by saying that the claimant was providing "fresh evidence", that it was not safe for her to return to the DRC and that this country would be in breach of her Convention rights if she was removed to the DRC because, so it was asserted in the letter, she was in one of the categories of risk identified by the Tribunal in the case of AB and DM (Risk categories reviewed - Tutsis added) DRC CG [2005] UKIAT 00118. That, I should explain, was a country guidance decision of the Tribunal, dated 21 July 2005, which revisited, and in significant measure departed from, the views expressed by the Tribunal in the earlier case of L (DRC) 07/2004, which had been the relevant authority at the time of the hearing before the adjudicator and which had been taken into account by the adjudicator.[10]However, despite the assertion in that letter, as Mr Palmer points out, the only enclosures with the letter were a copy of the Tribunal's decision in AB and DM and a copy of a report which had been before the Tribunal in that case and had in fact been the basis of its decision. In other words, the letter sent on behalf of the claimant provided no additional factual material of any sort. It provided no fresh evidence. The only new material which was even referred to was the decision of the Tribunal in AB and DM.[11]The Secretary of State's decision letter was dated 2 November 2005. He rehearsed the history of the claimant's claim for asylum and its rejection by the adjudicator. He drew specific attention to various findings of the adjudicator, including some of those to which I have already made reference, in particular, the adjudicator's finding that the claimant's physical appearance did not match that of a Tutsi. The letter continued:
"It is noted your client sought leave to appeal to the Tribunal and raised the issue of her alleged Tutsi ethnicity in her grounds of appeal. However leave to appeal was refused and furthermore, an application for statutory review was also refused. You have provided no new evidence to support your assertion that your client would be at risk in DRC as a result of her Tutsi ethnicity or imputed political opinion. Taking this and the Appellate Authority's earlier findings of fact, we do not accept that your client's removal from the United Kingdom would breach the Refugee or the Human Rights Conventions. Accordingly, your representations are refused."
[12]The Secretary of State then went on to explain, by reference to paragraph 353 of the Immigration Rules, why it was that because the current representations were based on the same premise as the claimant's earlier application it had been decided not to treat her representations as a fresh claim for asylum and human rights. The Secretary of State further indicated that the claimant's application for discretionary leave on compassionate grounds was being refused, there being, as the letter put it, absence of sufficiently compelling or compassionate circumstances.[13]Although in form the application for judicial review was founded on a complaint that the Secretary of State had failed to deal with the further representations, the substance of the matter both when the application was before Walker J and today is the question of whether or not the Secretary of State was entitled to decide as he did and for the reasons he gave on 2 November 2005.[14]Bearing in mind that, as I have said, no fresh evidence or other relevant material of any sort had been placed before the Secretary of State, the question, in substance, comes down to this: whether the change in the law represented by the Tribunal's repudiation in AB and DM of the earlier learning in L justified, or required, a decision different from that to which the adjudicator had correctly come.[15]Mr Palmer correctly submits that, for present purposes the crucial findings of the Tribunal in AB and DM are to be found in paragraphs 39, 40 and 54 of its determination. In paragraph 39 the Tribunal said this:
"The evidence currently available satisfies us that the position has changed since the Tribunal considered the issue of the risk to Tutsis in M and TC. In the current situation in the DRC the Tribunal accept that, with the exception of high level officials of RCD/Goma, returnees of Tutsi ethnicity or believed to be of this ethnicity could be at real risk on return. The resentment against anything or anybody Rwandan or perceived to be Rwandan is very high such that there is a real risk of generalised hostility from local communities against which the authorities are currently unlikely to protect. The situation improved in 2003 but we are satisfied in the light of the evidence before us that there has been a sharp deterioration in 2004."
It is, however, important to read that in the light of what the Tribunal went on to say in paragraph 40:
"However, we would emphasise that a person cannot expect to succeed in a refugee or Art 3 claim merely by asserting that he or she is a Tutsi or would be perceived as one. Given that there are distinct physical characteristics typical of a Tutsi ... a highly significant consideration will be the extent to which a person possesses those characteristics. If a person claims to be of mixed Tutsi ethnicity"[ that is the case here] "it will be relevant to examine to what extent he or she will be seen to have taken the ethnic identity of their father or mother. Furthermore, given the importance in the DRC context of tribunal links, geographical location, linguistic identity, customs, traditions and other factors, there may be valid reasons for finding that a person, albeit lacking entirely the characteristics of a Tutsi, will be perceived as one."
In paragraph 54 the Tribunal summarised its approach as follows:
"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, ... 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, tribal links and geographical origins link them closely to Tutsis ... 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 an appellant's ethnicity, background and profile."
[16]Mr Palmer's submission is that having regard to the findings made by the adjudicator, having regard to the fact that no further evidence or material had been put before the Secretary of State, and applying the principles laid down by the Tribunal in AB and DM, the Secretary of State was fully entitled to decide as he did and for the reasons he gave. Mr Palmer submits that correctly understood there is nothing in the decision of the Tribunal in AB and DM which, in fact, lends any significant support to the claimant's case. As he correctly pointed out, the claimant did not advance to the Secretary of State any representations as to why she might be perceived as a Tutsi, despite her appearance (see, for the significance of that submission, the final sentence in paragraph 40 of the Tribunal's determination.)[17]He submits, correctly in my judgment, that the burden was upon the claimant to do so. He submits that all the claimant has done was precisely what the Tribunal, in the first sentence of its determination in paragraph 40, had spelt out would be insufficient, namely, she had merely asserted, and without elaboration, that she would be at risk by virtue of being perceived to be a Tutsi. As Mr Palmer pointed out, no reasons were advanced in the representations letter, or indeed, I might add, in the grounds for judicial review, as to why that should be so, save for a repetition of the very facts and matters which, having been so carefully considered by the adjudicator, had been rejected by the adjudicator; a rejection subsequently upheld not merely by the Tribunal but also on statutory review by this court.[18]Mr Palmer submitted that there was, in truth, and I agree, nothing before the Secretary of State upon which he could properly conclude that the claimant was at risk. He submits, and I agree, that the Secretary of State's decision was wholly in accordance with the decision of the Tribunal in AB and DM and that he was accordingly fully entitled not merely to refuse the claimant's further representations, but furthermore entitled to conclude that because they did not differ in any significant measure from her earlier claim they should not be treated as giving rise to any fresh claim.[19]As Mr Palmer points out, the highly significant factors in this case, as found by the adjudicator, are that the claimant did not possess the distinct physical characteristics typical of a Tutsi. Whilst she claimed to be of mixed Tutsi ethnicity it appeared that she had taken the ethnic identity of her Congolese father and not her Rwandan mother. In those circumstances, as Mr Palmer correctly submitted, the decision of the Tribunal in AB and DM shows that the claimant cannot expect to succeed merely by asserting that she was a Tutsi, or would be perceived as one, nor merely by asserting, without more ado, that she was of mixed ethnicity.[20]While lacking the physical characteristics of a Tutsi the claimant had advanced no basis other than that already rejected by the adjudicator upon which she might be perceived as one. Accordingly, submitted Mr Palmer, and I agree, there was no basis upon which the claimant could be assessed to be at risk of being perceived as a Tutsi. In those circumstances it followed, virtually inevitably, that the Secretary of State was entitled to conclude that her removal would not breach this country's obligations under either Convention.[21]As I have mentioned, the claimant appeared before me in person. As was her right, she chose to address me after Mr Palmer had made his submissions so that she would be in the best position not merely to make her own case, but also to meet the case being put against her by Mr Palmer. She told me of her fears as to what is happening at present in the DRC and of the fact that women are being raped and killed there. That, no doubt, is true. It does not assist the claimant in her particular circumstances.[22]The central core of her submissions to me was summarised in her observation, which was to the effect that, "If the adjudicator said that I am physically not or not like a Tutsi, I disagree." That assertion was elaborated to a certain extent, but, in substance and in reality, amounted to no more than(a) the assertion that the adjudicator was wrong and(b) the assertion that the claimant either is, or looks like, or would be perceived by people in the DRC to be, a Tutsi.[23]For reasons which I have already explained, mere assertion of those matters is not sufficient. The fact is that at the point which had been reached when I began to give this judgment, no fresh evidence, and no fresh material of any sort, had, at any stage, been placed either before the Secretary of State, before this court, or before me, going beyond the materials which were before the adjudicator.[24]The fact of the matter is that the claimant's case before me is founded on no more than assertion in just the same way as the Secretary of State correctly concluded that the representations made to him, in the letter of 31 October 2005, amounted to mere assertion. Mere assertion is not enough. In my judgment, for the reasons I have given, which are essentially the reasons laid before me by Mr Palmer both in his skeleton argument and in his oral submissions, the Secretary of State was fully entitled to decide as he did and for the reasons he gave.[25]Accordingly, in my judgment, this application for judicial review fails and must be dismissed.

MR JUSTICE MUNBY: Mr Palmer, I assume that there is no question of costs here?

[27]MR PALMER: No application.[28]MR JUSTICE MUNBY: The claimant appears in person. Has she at any time, as far as you are aware, been advised from anybody of the benefit of a public funding certificate?[29]MR PALMER: I am aware that in the different stages there are three different representations--[30]MR JUSTICE MUNBY: The claim form says that no she is not. Under section 4 it says "Is the claimant in receipt of a CLS certificate?" and the "no" box has been ticked.[31]MR PALMER: That is right. The representations were originally made by TM Legal Services and I note that at the bottom of the grant of permission by Walker J a new representative's name appears, but it does not appear that they have continued.[32]MR JUSTICE MUNBY: Very well. Nobody has made an application for detailed assessment for public funding purposes. There is no certificate on the file, so I think in the circumstances the order I make is simply an order dismissing the application for judicial review with no order as to costs.[33]MR PALMER: I am grateful, your Honour.

MR JUSTICE MUNBY: There is nothing else, Mr Palmer, is there?

[35]MR PALMER: ۍ[36]MR JUSTICE MUNBY: There is no need for the claimant remaining in court any longer and as far as I am concerned the claimant can now be returned to Yarl's Wood as soon as convenient.