VF (Risk, Article3 Rape) Democratic Republic of Congo [2002] UKIAT 07225 (14 March 2003) [2002] UKIAT 07225

UKIAT

VF (Risk, Article3 Rape) Democratic Republic of Congo [2002] UKIAT 07225 (14 March 2003)

[2002] UKIAT 07225 · 2003-03-14

[1]VF (Risk-Article3 _Rape) Democratic Republic of Congo

[2002] UKIAT 07225

HX 21414-02 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 16 January 2003 Date Determination notified: 14 March 2003 Before Mr Justice Ouseley (President) Mrs J A J C Gleeson Mr M L James Between VF APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The Appellant is a citizen of the Democratic Republic of Congo who appealed to the Adjudicator, Ms P Lingam, against the Secretary of State's refusal of her asylum claim. She also argued that her return to DRC would breach her rights under Article 8 and

Article 3 of the ECHR

in this country. The Adjudicator dismissed her appeal under both Conventions. Leave to appeal was granted on a variety of grounds.

[2]The Appellant's case, as summarised by the Adjudicator, was as follows. The Appellant had said that her husband, who, like his family, had ethnic Rwandan features, had joined the DRC Security Service, the ANR, when Laurent Kabila came to power. After Kabila had been assassinated on 16 th January 2001, he had been targeted because he was suspected of having links with the rebels through his relatives, a suspicion heightened by his Rwandan ethnicity. He had nonetheless stayed working with the ANR until 10 th April 2001.

[3]The Appellant claimed that her husband was arrested on 10 th April 2001 and was accused of communicating with the rebels. Her husband was taken straight to prison and tortured but released one month later on payment of a 50,000 franc bail. This, she said, was a normal procedure.

[4]After his release, her husband had experienced no further problems, although he had no job at the ANR and had to report back to the authorities twice a month. She herself had had no problems at all until 15 th December 2001 when their home was raided, her husband was arrested and communication equipment consisting of a mobile phone and fax machine was found. She was raped by security forces in front of her husband and children. The next day the security forces searched her house again, but she was not further sexually abused although she was slapped twice.

[5]Her husband's colleague brought her a message from him telling her to leave the country. The evidence as to how the colleague was able to obtain that message was in issue before the Tribunal. She made her way alone to the United Kingdom, arriving on 31 st December 2001 when she applied for asylum. She left her children behind with her mother. She does not know where her husband is. Since she arrived in the United Kingdom she has been living with her brother, and that is the basis of her claim to family life in the United Kingdom.

[6]The Adjudicator rejected her asylum claim, essentially because she rejected the credibility of the Appellant's evidence that her husband had been arrested on either the first or the second occasion about which she had given evidence, though the Adjudicator did accept that he may have worked for the ANR. The Adjudicator rejected the Appellant's allegation that her husband had been targeted on ethnic grounds in view of the lack of evidence of any targeting of his relatives of a similar ethnicity which the Adjudicator would have expected the Appellant to be able to provide. The Adjudicator was willing to accept that the Appellant had been sexually abused, but because of the background evidence did not accept that it was for a Convention reason. She refused the Article 8 claim, accepting that the Appellant had some family life with her brother in the United Kingdom, but pointing out that her children, mother and indeed her husband were in the DRC and that any interference with family life in the United Kingdom was not disproportionate to the aim of effective immigration control.

[7]The Appellant's first ground of appeal was that in paragraph 43 of the Adjudicator's determination, the Adjudicator had wrongly declined to attach any weight to a document in French recording her husband's release on bail in May 2001, when the Adjudicator reached her conclusion on whether he had in fact been arrested at all in April 2001. The Adjudicator gave it no weight because she said that she had no translation of it. This, however, was a misapprehension on her part; she did have a translation which she must have overlooked. Had she had regard to it and treated it as genuine she might well have concluded that the husband had been arrested and detained between mid-April and mid-May 2001. The document is in a name other than Fiona, but that is because the Appellant is using her maiden name rather than her married name. The document is from the General Public Prosecutor's Office of the Court of Appeal in Kinshasa Gombe. It is an order to release on bail dated 15 th May 2001 and it says that:

"Considering that the accused acknowledged all the charges that have been made against him: Considering that the accused is a first offender: Considering that the accused has been in detention since 10/04/2001 … Considering that [his] release on bail is not likely to disturb law and order, nor to impede the preliminary investigation: ON THESE GROUNDS We order the release on bail of the accused under these following conditions: …"

And there are conditions which include the payment of a deposit of 10,000 Congolese Francs, to remain in the town of Kinshasa and to present himself twice a week in front of the Examining Magistrate.

[8]Mr Deller, for the Home Officer, recognised that the Adjudicator had been in error in paragraph 43 of her determination.

[9]The Appellant's contentions need to be considered in the light of the fourth and fifth grounds of appeal. Part of the Adjudicator's reasoning for her rejection of what the Appellant had said about the second arrest of her husband, in paragraph 45 of her determination, was that because the first arrest was made on the grounds of the authority's suspicion that the husband was in contact with the rebel forces, it was incredible that his house had not searched and that he had not disposed of his mobile phone and fax machine, the items which the security forces found on the second arrest, and thought were incriminating. Ms Oliso, for the Appellant, submitted that those items should be regarded as costly items which no-one would willingly destroy especially if he had been released from detention with no search having been undertaken of his accommodation to find them. Mr Deller readily accepted that the Adjudicator had probably attached too much weight to that factor.

[10]The fifth ground of appeal was that the Adjudicator had erred in paragraph 46 of her determination in stating that there was no evidence as to how the Appellant's husband's colleague knew about his alleged arrest. Ms Oliso pointed the Tribunal to the passage in the interview where, at question 48, which asked how her husband's friend had received the message for her from her husband, she had given the answer that the friend was one of his work colleagues and that when they knew the husband had been arrested, they had gone to visit him and he had passed them the message for her. At question 49, she was further asked about when that had happened. She replied that when they had arrested her husband they had taken him to his office before taking him to detention and so the next day her husband's friends had gone to visit him, bringing that message back from him for her. She, herself, agreed that she had not visited her husband on 16 th December because she was afraid to go there and did not know where they had taken him. The evidence which the Adjudicator recorded the Appellant as having given in cross-examination was that when her husband's friend told her of her husband's message she was in a hurry to leave because she was scared, did not know where her husband was and that the work colleague had been in communication with the husband to see him in prison. She did not have time to think the problem over.

[11]Mr Deller accepted that there had been a further error made by the Adjudicator in paragraph 46 because there had been evidence as to how the work colleague knew of her husband's arrest, but overall the evidence was not clear. Mr Deller's submission, however, was that, viewed in the context of all the evidence, the errors of the Adjudicator did not significantly detract from the obvious conclusion that the Appellant's story was just not credible largely for the reasons which the Adjudicator had given.

[12]Ms Oliso submitted that if the Adjudicator had concluded that the first arrest might well have taken place followed by release in the middle of May, that could have caused a different appraisal to have been made of the evidence of the second arrest and in particular with less weight being given to the fact that the Appellant's husband had not destroyed the communication equipment. The Adjudicator's acceptance that the Appellant had been sexually abused would then more readily be seen as supportive of the Appellant's credibility in the light of the background evidence as to the behaviour of the security forces, recorded in the determination at paragraph 26. Although we accept that in two instances the Adjudicator has overlooked evidence that was before her, and arguably at least has attached too much weight to one other factor, we accept Mr Deller's submissions as to the impact which those errors have on the overall conclusions of the Adjudicator. That is to say in the context of the evidence as a whole they are not significant.

[13]In paragraphs 38 to 41, and in the first part of paragraph 42 of her determination, the Adjudicator gives cogent reasons for rejecting the Appellant's contention that, if her husband had been arrested in April it was for reasons of ethnicity or in circumstances in which she would be persecuted for a Convention reason. Although paragraph 38, unlike paragraph 39, is not expressly prefaced with the contingent acceptance of the fact of the first arrest, nonetheless it is clearly directed to the question of whether the reason for any arrest was her husband's position and because he was suspected of passing information to rebels.

[14]First, the Adjudicator realistically points out that if the background evidence is relied on, after the assassination of Laurent Kabila and with her husband under suspicion of being in contact with rebels through his relatives, he and the Appellant, because she was his wife, and his relatives would have been arrested. They would all have been under suspicion.

[15]Second, if the husband had been arrested because he had been suspected of being in contact with the rebels as a member of the ANR, it is highly unlikely that he would have been released after one month on a form which granted him bail and said that he had, as a first offender, admitted the offence. The form itself, if taken as showing arrest and release on bail, which is the way in which the Appellant asks that it be approached, contradicts the Appellant's story as to the reason for the arrest. It is difficult to envisage her husband being released in the circumstances in which he was released if he had been arrested in the circumstances in which she says he had been arrested. Thereafter, he was required to sign on, not twice a month as she said in evidence, but twice a week, and he experienced no problems for several months. She experienced no problems until December 2001.

[16]Third, it is also incredible that if he had been arrested for the reason described, his home had not been searched at all and the equipment found, which might have been thought to have been a means of communicating with the rebels directly or indirectly.

[17]Fourth, the Adjudicator's point in paragraph 40 about the lack of information regarding the well-being of her in-laws is also a legitimate adverse conclusion on the Appellant's credibility.

[18]If the Adjudicator had concluded that the Appellant's husband had been or may have been arrested, it is plain that she would still have concluded that the Appellant's evidence as to the reason for the arrest, and it is the reason for the arrest which matters here, was not credible in the light of her own other evidence including the document which the Adjudicator had, in effect, disregarded. Accordingly, it is clear in our judgment that the Adjudicator's error in that respect would have made no difference to the key components of her appraisal of the Appellant's credibility.

[19]It is clear when the Appellant's statement, the interview questions and the cross-examination are read together, that the Appellant's case was that no search of her house took place on the occasion of her husband's first arrest and that it was not until the second arrest in December that the house was searched for the first time. That position is not quite so clear from the Adjudicator's determination because in paragraphs 9 to 18, she records simply the evidence given in cross-examination. It is only later that the Adjudicator introduces to her appraisal of the evidence and her conclusions what emerges from the Appellant's statement and interview.

[20]Even accepting that the Adjudicator attached overmuch significance to the fact that the husband had not destroyed the communication equipment following his first arrest, if the first arrest had been for the reasons asserted by the Appellant, the Adjudicator gives cogent reasons in paragraphs 44 to 46 of her determination for her conclusions, adverse to the Appellant in relation to the second arrest. The reference to the non-destruction of the communication equipment is but one of those reasons. The Adjudicator first pointed to the fact that the Appellant had said that the security forces were saying that her husband had been communicating with the rebels through his relatives; however, no relatives had been arrested or questioned. Second, the security forces had never searched the house until the moment of the second arrest which was surprising given the asserted basis of the first arrest. It is not entirely irrelevant that the husband had not destroyed equipment in order to avoid appearing above suspicion with all the problems which suspicion might be thought to entail for him.

[21]Third, the Appellant said she failed to enquire as to her husband's whereabouts from his colleague when he brought the message to her because she was anxious to get away, although it is plain from the interview answers that she knew that the colleague knew his whereabouts because he had visited her husband in prison. This is very odd. Further, there had been no real trouble to herself personally either before the moment of her husband's second arrest or indeed on the next day when the security forces came again. Indeed, the husband's colleague had not been detained either.

[22]Although the Adjudicator made the error which was the subject of the fifth ground of appeal, the true position is far from clear and justifies real doubts as to the Appellant's credibility. Not merely did she not know where her husband was, although his colleague knew when he came to visit her, but also if the husband had been arrested in the circumstances in which the Appellant says he was on the second occasion, it is odd that he should have been taken via the office where he worked and that a colleague should then have been able to go and visit him in prison and communicate messages from him to his wife.

[23]We accept that rape by the security forces of the wives of those who are apprehended does take place and this is recorded by the Adjudicator in paragraph 26 of her determination. The Adjudicator was willing to accept that the Appellant would have been sexually abused. The issue was whether that would have been for a Convention reason. The background material does not suggest that she would have been raped on account of her imputed political opinions. She herself was not of Rwandan ethnicity. The background evidence rather shows that rape by the security forces is a random, rather than a targeted event, except in very unusual circumstances.

[24]Overall, we are quite satisfied that the errors of the Adjudicator could have made no significant difference to her appraisal of the Appellant's evidence as essentially incredible and untruthful. Some of the events may have happened, but they did not happen for a Convention reason or in the circumstances which have been described by the Appellant. The background evidence in relation to rape and in particular the passage from the United States State Department Report relied on in the grounds of appeal, which is echoed in the CIPU Report, shows rape to be a common problem in certain neighbourhoods and at times of night. It does not support a more general finding such as would enable the Tribunal to conclude that the event of rape was specifically supportive of the Appellant's evidence.

[25]The third ground of appeal was that the Adjudicator had failed to attach significance to the fact that only the Appellant's husband had been employed by the ANR and therefore that only he would have been of interest to the authorities. The significance of that was that it was said to explain why the Appellant herself and her husband's relatives would not have been questioned following the husband's arrest. The Adjudicator made no such error. The basis of the Appellant's evidence was that the husband was of interest to the authorities because of his ethnicity and because he had been suspected of communicating with the rebels through his relatives. In that context, what happened to his relatives, who would have shared his ethnicity and had been the suspected conduits through which information was passed, was obviously highly relevant. On the Appellant's own evidence, the authorities would have been most interested in them. The absence of evidence of any problems for them, or indeed for her as his wife, shows the basis of the claim to have been false.

[26]On a self-contradictory note, the grounds of appeal also sought to rely on an additional statement dated 10 th July 2002 but put in before us in which the Appellant says, in paragraph 14, that she has called her mother and children and that her mother has told her that her husband's brothers " have had problems and have left Kinshasa, but I do not know what kind of problems they have had ". This is far too vague to show that there are any relevant problems which the brothers may have suffered in consequence of being relatives of the husband.

[27]The Appellant also submitted that her return to DRC would be a breach of her

Article 3 ECHR

rights because of the incidence of rape. She emphasised what was said in the United States State Department Report:

"The significant risk of rape, sometimes perpetrated by uniformed men, restricted freedom of movement at night for women in some neighbourhoods. Groups of citizens implemented neighbourhood watch programmes, but women in some parts of Kinshasa and Lumbumbashi did not leave their homes at night due to fear of attack."

Similar passages can be found in the October 2002 CIPU Report at paragraph 5.32, the high incidence of rape is referred to in paragraph 5.43. But this untargeted and random rape, which restricts night movement and requires women to be particularly careful in parts of Kinshasa, does not support the conclusion that the Appellant would be subjected to treatment remotely approaching a breach of Article 3. There is no evidence that she would be targeted in that way by the security forces were she to be returned.

[28]In this context, Ms Oliso also relied on a medical report to show not merely that the Appellant had been raped, which the Adjudicator appears to have accepted at least in significant part because she was willing to accept that the Appellant had suffered sexual abuse, but also that the Appellant was suffering from post traumatic stress disorder and her return to DRC in those circumstances would also breach her Article 3 rights. The report from Dr Shehadeh was referred to by the Adjudicator but not in the context of post traumatic stress disorder. Dr Shehadeh is not a psychiatrist; he is a primary care consultant who has had eighteen months unspecified experience in psychiatry. His conclusions in relation to PTSD are briefly expressed, with little explanation or analysis. He proceeds, understandably, on the factual basis that what the Appellant has told him is entirely correct and his analysis of her alleged PTSD depends in part at least upon events surrounding her husband, other than her rape. These are events which the Adjudicator has rejected as untrue. The Appellant explained that she had not sought medical assistance for her condition when she was interviewed in February 2002. Even in May 2002 she had not registered with a GP because it was difficult to do so and even though by July 2002 she had found a GP, she had not told him of her history and sought the therapy recommended for her by Dr Shehadeh in his report in respect of her alleged PTSD. He had recommended in particular that the Appellant seek treatment from her GP for depression and PTSD, including a sedating anti depressant and counselling.

[29]The report is wholly inadequate to support a contention that there would be a real risk of treatment which reached the high threshold required for a breach of Article 3 upon return of the Appellant to DRC. Had the Adjudicator dealt more fully with the medical evidence, we cannot help but feel that it would have consisted of more substantial criticisms of its usefulness.

[30]For those reasons, we are satisfied that the errors in the Adjudicator's determination make no real difference to the appraisal of the Appellant's version of events as implausible and incredible in its essential features. We are satisfied that she is not at risk of persecution, or persecution for a Convention reason upon return to DRC.

[31]This appeal is dismissed. MR JUSTICE OUSELEY PRESIDENT