IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE BUXTON
MR JUSTICE WILSON
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant/Respondent|
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MISS N BRAGANZA (instructed by Messrs Douglas & Partners, Bristol BS2 8YA) appeared on behalf of the Appellant
MR ROBIN TAM (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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(a) he had been born and brought up in the area of Kisangani in the north-east of the DRC;
(b) upon his marriage, his father-in-law, who was a leader of one of the Mai-Mai militias, persuaded him to join it even though, by ethnicity, he was not a natural member of it;
(c) between 1999 and 2002, and indeed since then, the Mai-Mai had been in fierce conflict with the Rwanda-backed rebel forces known as RCD-Goma;
(d) in about 1999 his father-in-law had been killed by RCD-Goma;
(e) at that time he had himself been detained by RCD-Goma and, subject to two interruptions to which I will refer at (g) and (h), had been kept by them in subhuman prison conditions until May 2002;
(f) during the period of his captivity he had been cruelly tortured in an effort on the part of RCD-Goma to extract intelligence from him relevant to their conflict with the Mai-Mai; he had even suffered the passage of an electrical current through his penis and testicles;
(g) he had developed malaria with the result that between August and October 2000 his captors had allowed him to stay in hospital; both while in hospital, and indeed until 2001 while in prison, his wife had been permitted to visit him; and it was while in hospital that the child born in June 2001 had been conceived;
(h) in November 2001 he had managed to escape from the prison: in the course of carrying a bucket of the prisoners' faeces to a dump he had been able to escape through a crumbling wall but after about two days he had been recaptured; he ascribed to witchcraft his good fortune in being able to escape, although he accepted that in Western eyes such would be likely to be an unacceptable explanation for it;
(i) in May 2002 he had finally escaped, or been released, from prison; he had been enabled to do so because his guards had been distracted by riots outside the prison and because, in particular, one guard, being a member of his own tribe and surprised that he had subscribed to the Mai-Mai, had taken pity on him and helped him to flee; and
(j) thereupon an uncle had enabled him to escape upon forged papers from the DRC.
"Now that RCD-Goma have secured a strong position within the DRC's transitional government, we have every reason to believe that the RCD-Goma will intensify its efforts to quash the Mai-Mai movement. In all likelihood, this means that the anti-Mai-Mai campaign will move beyond eastern Congo to other parts of the country where Mai-Mai and their sympathisers may be residing. This more than likely scenario implies that no area of the DRC would be safe for [the appellant] to return to."
(a) in an obvious reference to the appellant's first alleged escape, she 'concluded' that his account of being able to escape through a broken wall was 'not credible';
(b) it was inherently implausible that someone who claimed to have regularly been tortured would have been able to make that escape;
(c) the above adverse finding, on an essential aspect of the appellant's claim, bore adversely on the rest of his account;
(d) in an obvious return to her analysis of the first escape, the background evidence did not support the suggestion that conditions of captivity by RCD-Goma were such that a prisoner could walk to freedom through gaps in the wall;
(e) in the light of the background evidence as to the brutal treatment of the Mai-Mai by RCD-Goma, the appellant's account of his second escape was 'wholly not credible';
(f) in an obvious reference to the same incident, it was 'not credible' that a guard would have had the inclination or the ability to release the appellant;
(g) in an apparent return to the circumstances of the first escape, it was 'wholly not credible' that a detention camp run by RCD-Goma would have had holes in the walls;
(h) in a further reference to the second alleged escape, it was 'not credible' that a guard would or could have assisted the appellant to escape;
(i) the appellant's claim to have been detained for as long as three years and regularly tortured with a view to obtaining information from him was 'wholly not credible' in that the background evidence suggested that RCD-Goma murdered members of the Mai-Mai, instead of detaining and torturing them over such a prolonged period;
(j) it was 'wholly not credible' that the appellant's alleged captors allowed his wife to visit him in prison and/or in hospital: although the background evidence suggested that the DRC government allowed prisoners to have such visits, there was nothing in the background material to support the professor's assertion that RCD-Goma allowed its prisoners to have such visits; and
(k) it was 'wholly not credible' that the appellant's alleged captors allowed him to go to hospital.
"The medical evidence does not assist the appellant. The medical evidence, whilst noting the number and location [and] size of numerous scars on the appellant and his current, assessed to be fragile, mental state, does not consider or deal with whether the scars could be the result of anything else, for example, childhood illness or skin disease. I conclude that the medical evidence does not assist in establishing the appellant's case and the doubts I have expressed on the credibility of the fundamental aspects of his claim have not been resolved by the medical evidence in any sense."
In a later passage the adjudicator affirmatively asserted that the scars 'could well be' from childhood disease, adult skin disease or illness.
"Although rebel-controlled areas are not safe for returnees, the appellant, with or without his family, can be returned to the DRC to Kinshasa."
(a) The adjudicator had not at the hearing articulated her theory that the appellant's scars had been sustained as a result of illness or disease and that, had she done so, the appellant would have sought an adjournment in order to call Dr Norman to address the theory.
(b) The adjudicator had far too readily dismissed the professor's focussed and informed comments upon the likelihood of the appellant's account in the light of the former's knowledge, direct and indirect, of circumstances in the DRC. In this regard it was submitted that the adjudicator had failed to look at the case in the round.
(c) The adjudicator's despatch of the appellant's arguments under Article 8 of the Human Rights Convention had been flawed.
"Credibility apart, the Tribunal considered the central issue was the risk faced by the applicant on return to Kinshasa. There was no evidence to suggest that the applicant will be at risk there, even if the applicant's account were true. ... That finding disposes of the grounds of appeal."
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come."
(a) The adjudicator found that the appellant's account of his second escape/release was wholly not credible. The professor, however, had offered a view that the reasons why he had been enabled to escape on this second occasion were very plausible. Although I have already accepted that issues of credibility were for the adjudicator, it was relevant for the professor to point out (as, notwithstanding the submissions of Mr Tam, I construe him to have done) that this second escape indeed occurred at the time of riots; and that the appellant and the alleged guard were members of a tribe which was not affiliated with the Mai-Mai and which had no particular sympathy with it. It was, to put it mildly, bold of the adjudicator to say that, notwithstanding the professor's view, the appellant's account of this incident was wholly not credible; and it seems to me that, although she had in principle the right so to do, she had to venture a reason not just for rejecting his view but indeed for placing it outside the spectrum of rational views.
(b) The adjudicator also found it wholly not credible that the appellant's wife would have been permitted to visit him in prison and in hospital. She did admittedly remind herself that her conclusion in this respect differed from that of the professor, who had, without qualification, stated that RCD-Goma allowed families to visit detainees. If he was thereby making a statement directly inconsistent with any of the other, objective material before her, the adjudicator has not identified it. Again in my view she owed the appellant a reason for finding that his expert's view was beyond the pale of credible views.
(c) The adjudicator's conclusion that the appellant's account of being detained and tortured for almost three years was incredible also ran wholly counter to the professor's view that his account of detention and torture was believable. I am yet again perplexed that the adjudicator, who of course did not need to express herself in such vivid terms, felt able to sideline the professor's view in this regard as worthless; and, as before, it seems to me that a proper fact-finding enquiry involves explanation as to the reason for which an expert view is rejected and indeed placed beyond the spectrum of views which could reasonably be held.
ORDER: Appeal allowed; the decision of the adjudicator quashed and the matter sent back to a different adjudicator for redetermination; the Respondent to pay the Appellant's costs, to be the subject of a Community Legal Service Funding detailed assessment.