AN (Rwanda Prominent MDR family) Rwanda [2004] UKIAT 00334 (12 July 2004) [2004] UKIAT 00334

UKIAT
AN (Rwanda Prominent MDR family) Rwanda [2004] UKIAT 00334 (12 July 2004)
[2004] UKIAT 00334 · 2004-07-12
1. The appellant, a citizen of Rwanda, appeals with permission against the determination of an Adjudicator, Mr D J Salmon, sitting at Stoke-on-Trent, in which he dismissed on asylum and human rights grounds the appellant's appeal against the decision of the respondent on 8 September 2003 to give directions for the appellant's removal from the United Kingdom.2. The appellant, born in 1978, entered the United Kingdom on 16 August 1999 and applied for asylum the same day. He completed a statement of evidence form on 26 August 1999 and filed written statements both in that year and in 2001. He was interviewed by the Home Office in August 2003.3. The Adjudicator appeared to accept the following facts. In 1995 the appellant's uncle was killed by RPF soldiers and in the following year three of the appellant's cousins disappeared and are assumed to have been killed. In 1997 the appellant himself was arrested by RPF soldiers who were looking for Hutu men to send to fight in Zaire. After he was abused he was starved and beaten and released after about three months. During this time the appellant's father had also been arrested and tortured. By 1998, the appellant thought that it was safe to return to study in Kigali. However, once again, RPF personnel came looking for recruits to fight in the war in the DRC (as it now is). The appellant therefore returned to Cyngugu with money provided by his parents. He went to Kenya and made his way to the United Kingdom, arriving here in August 1999.4. That much the Adjudicator appears to have accepted (paragraphs 34 and 35 of the determination).5. Where the Adjudicator got into difficulties, however, was in assessing the veracity of the appellant's alleged present fear of returning to Rwanda. Essentially, what the appellant told the interviewing officer on 27 August 2003, was that his family's involvement in the political party known as the Mouvement Democratique Republiqain (MDR) had brought them into difficulties with the authorities during 2003. The appellant's father had disappeared; one of his uncles, Cyiza Augustin, had been abducted and killed and another uncle, Kabutse Leonard, had been detained (Determination, paragraph 12).6. Before the Tribunal, Mr Saville accepted that there were a number of failures on the part of the Adjudicator to find relevant facts. Essentially, the Tribunal finds that those failures related to -(a) whether the authorities were reasonably likely to be seeking the appellant himself, as he said his mother had told him;(b) whether his father had disappeared; and,(c) whether an uncle of the appellant had been detained in connection with MDR involvement.In an Amnesty International release of 4 September 2003 (appellant's bundle, D3), we find that:-
"Leonard Kavutse, a man known as Gatete and another called Jean Uhishakiye remain in detention and are possible prisoners of conscience. Leonard Kavutse is a former member of Parliament, and a founding member of Adep-Mizero, a political group that was denied legal status as a political party on the basis that it contravened the constitution and was receiving funding from abroad. He was held at Gikondo Police Station in the capital, Kigali from 19 August until 28 August, when he was transferred to Kigali central prison. On 28 August, he was made to appear on television to "confess" that he had written a letter to presidential candidate Faustin Twagiramungu, accusing the ruling Rwandese Patriotic Front (RPF) of being a criminal organisation. He reportedly added that the language used in the letter might incite the Rwandese public to violence. His televised confession appears to have been intended to discredit Faustin Twagiramungu, who himself had been accused by the authorities of encouraging racial divisions in non- Rwandans."
8. In order to set this incident in context, it is necessary to observe that, as noted in an Amnesty International Report of 14 October 2003, the attitude of the ruling RPF towards the mainly Hutu MDR substantially hardened during 2003 when a Parliamentary Commission reported that the MDR had been involved in "divisions which had characterised Rwandese history". 46 individuals were named in the Commission's report as supporters of the MDR "divisionist" ideology. Certain of those mentioned in the report fled; others were arrested or "disappeared". The report called for the banning of the MDR and the Rwandese legislature appears to have accepted its recommendations. At this point, the MDR fragmented into three factions, one of which is Adep-Mizero. Only one of these factions, the Party for Peace and Concorde (PPC) was allowed to register as a new political party (see also Annex B to the April 2004 CIPU report on Rwanda).9. The Adjudicator, at paragraph 31 of the determination, noted that unlike previous years, in 2002 there were no reports of politically motivated disappearances in Rwanda. Although the Adjudicator did not have before him the materials which have subsequently been placed before the Tribunal, it is manifest that the same could not be said of 2003. Indeed, at paragraph 6.132 of the CIPU report it is noted that (quoting the US State Department Report for 2003) there were reports of politically motivated disappearances during that year. In April 2003, "at least 6 persons, one of whom was named in the Report[(see above] disappeared, 4 were senior members of the government". Further disappearances of people named in the report are described at paragraphs 6.133 and 6.134.10. A number of birth certificates and an MDR Membership Card relating to the appellant's father were before the Tribunal.11. The Tribunal heard oral evidence in English from the appellant, in relation to these documents and, in particular on the issue (which was disputed by Mr Saville) as to whether the Leonard Kavutse referred to in the Amnesty International Report was in truth the uncle of the appellant.12. The appellant told us that the birth certificates, relating to his father and uncle, had been obtained by him from the uncle's daughter, currently in Kenya. Mr Saville suggested that there had been a discrepancy in the oral evidence given by the appellant to the Tribunal, concerning the point in time at which this lady left for Kenya. The Tribunal accepts, however, that the appellant was genuinely confused as to the nature of the question being asked and that he stated (and intended to state) that the lady in question had left after her uncle had been detained.13. The appellant gave detailed and, we find, persuasive evidence as to the various names of the grandfather, father and uncle, whereby the uncle bears one of the appellant's grandfather's names and his father bears another. We find that his evidence in this regard is such as to show, to the requisite lower standard of proof, that he is the nephew of Leonard Kavutse.14. At the time the appellant gave his interview in August 2003, when he spoke about the detention of Leonard Kavutse, that detention had occurred only a matter of days before. In our view, it is highly implausible that the appellant could have learnt this otherwise than by hearing about it from his mother in Rwanda, as he said was the case. Furthermore, it is unlikely that the appellant could at that stage have predicted that international observers would in due course record the detention of Leonard Kavutse.15. In short, the Tribunal finds that, looking at the evidence as a whole, the appellant has shown that he is the nephew of the Leonard Kavutse who was detained in August 2003 in connection with MDR involvement, who was compelled to "confess" his crimes on television and who, as far as we are aware, remains in detention.16. Given this finding, the Tribunal turns to consider whether, on the basis of it and the other matters accepted by the Adjudicator, the appellant can be said to be at real risk of persecution if returned today to Rwanda.17. At paragraph 6.46 of the October 2003 CIPU Report, a British/Danish fact finding delegation to Rwanda is reported as being told that "a person may be at risk of persecution irrespective of which party he or she is affiliated with. The issue is whether a person is considered to support the opposition against the present government." That the attitude of the Rwandese Government towards the two would-be off-shoot parties of the MDR is hostile can be ascertained from the passages from the Amnesty International documents and the April 2004 CIPU, to which we have referred.18. As both the US State Department Report and the April 2004 CIPU Report observe, the Government's human rights record remained poor and it continued to commit serious offences. "Police often beat suspects. Prison conditions remained life-threatening" (CIPU): paragraph 6.1).19. Mr Saville submitted that there is nothing in the objective evidence to show that family members of MDR members, or members of the would-be successor parties, are at risk from the authorities. As a general proposition, that is no doubt correct. The circumstances of the present case, however, are such that, looking at the evidence overall, it is simply not possible to say that there is no reasonable likelihood of the appellant having imputed to him the political opinion of his uncle (or, rather, uncles). Whether or not the appellant's father himself had a high profile within the MDR we do not know. The position of those other family members, however, is such that upon his return the appellant is likely to run into difficulties with the Rwandese authorities. He will have been absent from Rwanda for a significant period of time. It is accepted that the authorities will, in the circumstances, wish to question him. Regardless of the issue of nomenclature, we find it is reasonably likely that his family position will come to light relatively quickly. Despite improvements in many areas, Rwanda is a place where, once in detention, a person is likely to suffer extreme hardship.20. Accordingly, we find that, in the circumstances of this case which are, we must emphasise, somewhat exceptional, the appellant is today at real risk of persecution and Article 3 ill-treatment if he were to be returned to Rwanda.21. In the light of that finding, the Tribunal is compelled to allow the appellant's appeal outright. The admitted deficiencies in the Adjudicator's findings regarding whether the authorities personally sought the appellant and whether his father has disappeared are, in the circumstances, not determinative. Had we found them to be so, the appeal would have had to be remitted for proper findings of fact on those issues.22. This appeal is allowed.

P R Lane

Vice President

Approved for electronic promulgation