United Kingdom Asylum and Immigration Tribunal

Mapesa v Secretary of State for the Home Department [2002] UKIAT 01035

HX-30531-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 15/03/2002

Date Determination notified: 08 April 2002

Before
Mr H J E Latter (Chair) Mr A Smith Mrs E Hurst
Between

 

Mapesa	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr A Solomon of Counsel, instructed by Perera & Co, Solicitors. For the respondent: Mr G Saunders, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. This an appeal by Anthony Mapesa, who claims to be a citizen of Burundi, against the determination of an Adjudicator (Mr P M S Mitchell) who dismissed his appeal against the respondent's decision made on 11 April 2001 giving directions for his removal following the refusal of his claim for asylum.
2. On the appellant's own account he arrived in the United Kingdom on 28 February 2001 and claimed asylum on 7 March 2001. He submitted a Statement of Evidence Form and was interviewed about his nationality and subsequently about his claim for asylum. He asserted that he was from Burundi and that as a Hutu he would be at risk of persecution on return. He gave an account of incidents of violence against him and other members of his family including an assertion that his father and brother had been killed and his wife had been raped. He said that he had been attacked and beaten by Tutsi soldiers.
3. On 4 November 2000 (according to the chronology) he left Burundi and went to Tanzania where he remained in hiding until late February 2001. He made contact with an agent who arranged for his travel to the United Kingdom.
4. The Secretary of State did not accept that the appellant was from Burundi but even if he was, the Secretary of State was not satisfied that he had a well-founded fear of persecution under the Refugee Convention. He set removal directions for Burundi. In paragraph 11 of the reasons for refusal letter, the Secretary of State says that he is taking this course to enable the appellant to appeal to an Adjudicator so that the decision to refuse asylum can be reviewed. His claim was refused. Removal directions were duly issued and the appellant appealed both on asylum and human rights grounds.
5. The appeal was heard by the Adjudicator at Croydon on 30 October 2001. The appellant appeared and was represented but there was no appearance by or on behalf of the respondent. The Adjudicator proceeded to hear the appeal. He was invited to allow the appeal under Rule 33(2)(a) of the Procedure Rules but he declined to do so. This was an entirely proper decision in the exercise of his discretion under that rule. He went on to hear oral evidence from the appellant. He also had before him the documentary evidence which he has itemised in paragraph 13 of his determination.
6. The Adjudicator accepted on the evidence before him that the applicant was most probably a Burundi. He accepted the account he had heard about the deaths of the appellant's brother and father and the rape of his wife but he did not accept the appellant's account of his own treatment at the hands of Tutsi solders. He took the view that this incident had been exaggerated but commented that, whether these events had occurred or not, it did not affect his final decision. He did not find the account given by the appellant for fleeing Burundi to be credible. He noted a discrepancy in the date of departure (4 November 2000 in the first statement but 4 October 2000 in the interview). He noted that the appellant had remained in Dar-es-Salaam until 27 February 2001. He did not believe that the appellant could have entered the United Kingdom without being challenged on arrival. He commented on the delay in claiming asylum. He noted that the appellant had left his wife and children in Burundi. He concluded that were the appellant to return to Burundi, there would be a sufficiency of protection for him. In so far as he feared ill treatment by individuals, that would not be of sufficient severity to cross the threshold of persecution. In any event, he would be protected by the authorities. Accordingly he dismissed the appeal both on asylum and human rights grounds.
7. Leave to appeal was granted in a determination notified on 19 December 2001. The Tribunal had before it documentary evidence produced by the appellant (A1-45) and by the respondent (the Burundi Country Assessment October 2001 prepared by CIPU). Mr Solomon produced a skeleton argument.
8. Mr Solomon made three submissions. The first was to attack the Adjudicator's findings on credibility in so far as there were parts of the appellant's evidence which he did not believe. The second relates to the assessment of risk on return. He asserts that the Adjudicator has either misapplied the criteria in Horvath or has not properly understood them. The third relates to the removal directions to Burundi.
9. Mr Solomon submitted that the Adjudicator's findings on credibility were perverse and his approach undermined his whole determination. He submitted that there was no proper basis on which the Adjudicator could reject the evidence that the appellant had been beaten by Tutsi soldiers. His account accorded with the objective evidence. The treatment was strikingly similar to the treatment experienced by his family. The Adjudicator must have accepted that there had been some ill treatment because he regarded the appellant's account as exaggerated. He was wrong to reject his evidence because of the lack of supporting medical evidence and the lack of scars.
10. He submitted that the Adjudicator was also wrong to comment that the appellant's reasons for fleeing Burundi were not credible. If the appellant was at risk of persecution, it did not matter how long he remained in Tanzania. The appellant had claimed asylum shortly after arrival. It was wrong to attribute to him knowledge of the asylum process and then to draw adverse conclusions. In the light of the background evidence set out in the CIPU report, the appellant would not be safe in Burundi. Mr Solomon submitted that the criteria in Horvath could not be met in the present claim. The Adjudicator appeared to have confused the issue of whether the appellant was at risk from the authorities or from non-state actors.
11. In so far as the removal directions were concerned, Mr Solomon sought leave to appeal against those directions on the basis that there was no power in law to make them. He said that as the Secretary of State did not believe that the appellant was from Burundi, it must follow that he could not and should not have made removal directions for Burundi. The subsequent finding by the Adjudicator that the appellant was from Burundi did not retrospectively validate the Secretary of State's decision.
12. Mr Saunders submitted that the removal directions were correct. There was power in law to remove to Burundi in the light of the Adjudicator's findings that the appellant was from Burundi. The issue was whether the appellant faced persecution on return there. His case was put on the basis that he was at risk because he was a Hutu. The background evidence did not support such a broad contention. The Adjudicator's comments about the circumstances in which the appellant left Burundi, lived in Tanzania and then came to the United Kingdom were significant pieces of circumstantial evidence which the Adjudicator was entitled to take into account.
13. The Adjudicator accepted that the appellant was a citizen of Burundi. The respondent has not sought to challenge that finding. In the Tribunal's view, the Adjudicator has in that respect reached a decision which was properly open to him on the evidence. The Adjudicator had various documents before him. There was no report from the respondent as to their authenticity. There were no certified translations. The Adjudicator could make no findings as to the validity of those documents for the reasons which he has set out in paragraphs 2-8 and 35 of his determination. He had to do his best on the evidence before him and he came to the conclusion that the appellant was "most probably" a Burundi.
14. Not only is the appellant from Burundi but he is a Hutu. There is now no dispute about this. This is important because during submissions the Tribunal asked Mr Solomon on what basis he was putting his case as to the reason why the appellant feared persecution on return. He accepted that his case was that the appellant faced persecution because he was a Hutu. It was not his submission that there were any particular features about the appellant's own personal circumstances or background which put him at any greater risk than any other Hutu. This being the case, much of the argument about which parts of the appellant's evidence should or should not have been believed, pales into insignificance.
15. So far as credibility is concerned Mr Solomon sought to attack the Adjudicator's rejection of the appellant's evidence of how he had been treated in Burundi. The Adjudicator did not believe that he had been beaten up by soldiers and tortured as he described. His conclusions in this respect are set out in paragraph 37 but the Adjudicator made it clear in the last sentence that whether or not those events occurred did not affect his final decision.
16. In the view of the Tribunal there is no adequate basis for a successful challenge to the Adjudicator's findings of fact. He heard the appellant give evidence. In our view he considered this appeal with care. He accepted some parts of the account given by the appellant but rejected others. The fact that he found some of the more serious assertions proved to the appropriate standard of proof does not mean that he was wrong not to find less serious assertions proved. It was for him to look at all the evidence and reach conclusions. The Adjudicator is criticised for his comments in paragraph 39 that the process of claiming asylum must be well known in Burundi as so many have claimed asylum elsewhere. The more significant point is that the appellant had the assistance of an agent who would have known the system. It is also argued that the Adjudicator was wrong to dismiss the account of ill treatment because of an absence of scarring and medical evidence. He has not rejected the account solely on these grounds but these were factors which he was properly entitled to take into account.
17. The issue before the Tribunal is whether the appellant as a Hutu would be at risk of persecution on return. In our view the background evidence does not support a contention as broad as this. The situation in Burundi is set out in the CIPU report. The population comprises Hutu (85%), Tutsi (14) and Twa (1%). Burundi is ruled by an authoritarian military regime and is controlled by members of the Tutsi ethnic group. The CIPU report records that most citizens assume that the Courts promote the interests of the Tutsi minority and members of the Hutu majority believe that the judicial system is biased against them. In making his assessment the Adjudicator took into account the background material which he has summarised at paragraphs 20-34 of his determination.
18. In paragraph 31 he has noted that according to the UNHCR as at the end of September 2000 about 10,000 Burundian refugees had returned from Rwanda, Tanzania, DRC and other countries. During the same period about 47,500 people fled Burundi to Tanzania and there are a further 563,700 Burundian refugees in Tanzania and in other African countries.
19. In our view in the light of this evidence the appellant is not at risk of persecution because he is a Hutu. In these circumstances the issue of whether there would be a sufficiency of protection in Burundi does not arise save as an aspect of considering whether he is at risk of persecution. The Adjudicator was entitled to find that the appellant was not at risk of persecution in Burundi. In so far as he was at risk from non-state actors, there was a sufficiency of protection.
20. The final point relates to the removal directions. The appellant did not appeal against these directions under section 66(2). His appeal was an asylum appeal under section 69(5). The only ground of appeal in an asylum appeal is that removal in pursuance of directions would be contrary to the Convention. For the reasons given by the Adjudicator and the Tribunal such removal would not be contrary to the Convention. If the appellant wished to appeal against the validity of the removal directions under Section 66(2) he should have done so when filing his notice of appeal or before the Adjudicator. The Tribunal are not prepared to grant him leave to amend his grounds of appeal to take the point at this stage.
21. In any event in our view there is no properly arguable case to support the contention that the Secretary of State had no power in law to make the removal directions. The power to make removal directions is set out in para 8(1) of Schedule 2 of the Immigration Act 1971. Removal directions may be made to the country of nationality or citizenship. It may be that the Secretary of State did not believe that the applicant was from Burundi but the Adjudicator has found that he was. In these circumstances there was power in law to make the removal directions. In our view the interests of justice do not require this appellant to be given leave to appeal against the validity of removal directions when he is being removed to the country where he claims that he is a citizen. The fact that the Secretary of State may have believed otherwise does not affect the lawfulness of the directions when given.
22. In these circumstances, for the reasons which the Tribunal have given, we take the view that the Adjudicator's determination was correct. The appellant fails to show that he has a well-founded fear of persecution under the Refugee Convention or that a return to Burundi would engage the United Kingdom's obligations under the Human Rights Convention.
23. Accordingly, this appeal is dismissed.

H J E Latter