KH

Heard at Field House		APPEAL NO  HX26333-2002	
On  20 November 2002		GM (risk –failed asylum seekers) Democratic Republic of Congo [2002] UKIAT 06741	

IMMIGRATION APPEAL TRIBUNAL

                                                                                Date Determination notified:

                                                                                         21 February 2003 ..........................................	

	Before:		

Mr H J E Latter (Chairman)
Mr A A Lloyd JP
Rt. Hon. The Countess of Mar
	
Between	
Guy  Mukendi	

		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
	
		RESPONDENT	

Appearances

For the appellant: 	Mr R Solomon of Counsel instructed by Makanda & Co, solicitors.	
For the respondent:	Mr D Ekagha, Home Office Presenting Officer. 

DETERMINATION AND REASONS

1.	This is an appeal by Guy Mukendi, a citizen of the Democratic Republic of Congo (DRC) against the determination of an Adjudicator (Mrs S Kebede) who dismissed his appeal against the respondent's decision made on 27 March 2002 giving directions for his removal following the refusal of his claim for asylum.  

2.	The appellant was born on 29 November 1984 or so he asserts.  The Secretary of State did not believe that this was the appellant's true date of birth.  He treated the appellant as an adult and he was interviewed about his claim on 21 March 2002.  The respondent did not believe the account given by the appellant and for the reasons set out fully in the decision letter dated 27 March 2002 he refused his claim on both asylum and human rights grounds.

3.	In brief outline the background to the claim is as follows. The claimant says that he left the DRC on 25 January 2002 by canoe for Congo- Brazzaville where he stayed for a day.  He then flew to Cameroon, staying for one night before his onward journey to the United Kingdom using a false red passport.  He says that both he and his father are Muslims.  His father was the leader of a group at Kinshasa University demanding change and democracy.  His father and others were arrested for demonstrating against the regime and put in prison.  The police came to the appellant's house after his father's arrest and assaulted the appellant and his sister.  A bribe was paid so that his father would be released from custody and he, the appellant and his sister were able to leave the DRC together.  They became separated as his father and sister were travelling with different agents.  He would be at risk on return to the DRC and the authorities would demand to know where his father was.  

4.	When interviewed the appellant confirmed that his father was a student at Kinshasa University and was a leader of the Islamic Congolese Group which had nothing to do with politics.  He was in the final year of a law course.  He had been arrested on 14 December 2001 when taking part at a demonstration which he had helped to organise.  After his father's arrest the police used to come to their house about twice a week and on one occasion tried to rape his sister but he managed to protect her.  

5.	This account was confirmed in the appellant's oral evidence before the Adjudicator.  The appellant said that his birth certificate which was with the respondent, was a genuine document. He was currently 17 years old.   He said that when he was trying to protect his sister from the soldiers he had been knifed and had a scar on his left leg.  He had come to the United Kingdom with an agent and was not questioned himself at the airport.  His father's friend had given them the money for the journey and then sold their house and taken the proceeds of the sale.  If he returned to the DRC he would be questioned about his father's whereabouts and would be arrested, beaten and killed.  

6.	The Adjudicator did not believe the account given by the appellant for the reasons which she has set out in paragraphs 25 - 30 of her determination.  She commented that his claim was based entirely on one incident, his father's involvement with the demonstration at Kinshasa University and his subsequent arrest and escape.  Even if the events described did occur, she found it was highly unlikely that the authorities of the DRC would have had or would now have any interest in the appellant himself given that he had had no involvement in politics, was not present at the demonstration and was only 17 at the time of his father's arrest.

7.	Mr Solomon in his submissions challenged the Adjudicator's findings on credibility.  In paragraph 25 of the determination the Adjudicator said that in the SEF the appellant had claimed that his father was the leader of a political group demanding change and democracy whereas in his interview he said that he was the leader of an Islamic group which had nothing to do with politics.  Mr Solomon argued that there was no necessary inconsistency between his accounts.  At A5 of the SEF the appellant said that his father belonged to the Islamic religion and he was demanding that there must be democracy.  He said that his father was the leader of the group that was demanding change and democracy at Kinshasa University.  In the interview at C4 when asked about the Islamic group he explained that it was nothing to do with politics (Q7).  He had made it clear in answer to Questions 17 and 18 that the demonstration at the university had nothing to do with the Islamic group and that his father went because he was a student.  In answer to Question 19, the appellant said that his father was amongst the organisers.  This was consistent with his father being described in the SEF as a leader of the group.

8.	In paragraph 26 the Adjudicator commented that in the SEF and in interview the appellant referred to his father being arrested with eight others yet when he was asked in cross-examination at the hearing whether or not his father was arrested with eight other people his response had been to ask why he said eight others and to ask for the question to be put properly.  Mr Solomon points out that in answer to Question 23 of the interview the appellant had said that they did not just arrest eight people but arrested a lot and amongst them were the eight organisers.  This clarified what was said in the SEF at A3 that his father and eight others were arrested.  

9.	In paragraph 27 the Adjudicator drew an adverse inference from the appellant's answer in cross-examination that he had been knifed by the soldiers when they came to arrest his father and he was trying to protect his sister.  This was inconsistent with his account that his father had been arrested at the demonstration.  Mr Solomon points out that in his evidence in chief the appellant had said that he had been knifed when trying to protect his sister from the soldiers.  Mr Solomon asserted that during cross examination when asked when the knifing incident had taken place, the appellant had asserted that it occurred during that period when his father was arrested and he did not know when.  He had not said that he was stabbed on the occasion of his father's arrest.

10.	The Adjudicator had commented that the appellant had made no mention of being knifed or of having a scar on his leg due to being knifed. He referred to Question 30 of the interview when the appellant was asked, "did you receive any injuries through the beatings?".  He had replied: "yes, they were beating us everywhere, I had injuries on the face - that's normal.  It has gone numb."  Mr Solomon submitted that this was a direct answer to a question asking about injuries received from beatings.  

11.	In summary Mr Solomon submitted that these factors taken together were sufficient to undermine the Adjudicator's findings on credibility.  In the light of her findings as to age, the appellant should not have been interviewed and it would be wrong to draw adverse inferences from discrepancies without taking into account the appellant's age and the fact that he had not been present at the incidents involving his father.  

12.	Mr Solomon went on to refer us to the background evidence and in particular to evidence at A30 and 32 of the US State Department Report confirming that the DRC authorities would hold family members of suspects.  This was further confirmed at A36.  At A35 there was a reference to security agents forcing their way into private homes without search or arrest warrants often beating inhabitants, stealing money and goods and raping the occupants.  He also referred to the CIPU Report at 5.38 which again referred to a number of women being held solely because of their relationship with their husbands who were implicated in the murder of the former President Kabila.  

13.	So far as the appellant's human rights claim was concerned, Mr Solomon submitted that, given the exceptional circumstances of this case and in particular the appellant's age, the fact that he would have no one and nowhere to return to and in the light of the critical humanitarian situation, it would be a breach of Article 3 for the appellant to be returned. There was a further factor to be taken into account, the risk of forceful conscription into the military referred to at pages 24, 25 and 27 of the US State Department Report.

14.	Mr Ekagha submitted that the Secretary of State had been entitled to interview the appellant.  He had appeared to be over the age of 18.  There is nothing to indicate that he had been at any disadvantage during the interview.  The Adjudicator's conclusions as to credibility were properly open to her and fully justified on the evidence.  They went to issues at the heart of the account.  The appellant had not himself been politically active.  If he had been knifed as he asserted, there really was no reason why he would not have said so during the interview.

15.	The Adjudicator was satisfied that the appellant's date of birth was, as he claimed, 29 November 1984.  Having seen the appellant she commented that she found it very difficult to assess his age but she came to the view that he could be just under or over 18 and in those circumstances quite rightly gave him the benefit of the doubt and accepted that he was 17 at the date of the hearing.  This does mean that the interview record should be treated with considerable care.  When interviewed the appellant was 17.  It is provided by para 350 of HC 395 that in view of the potential vulnerability of unaccompanied children, particular priority and care is to be given to the handling of their cases.  In the reasons for refusal letter at paragraph 5 the respondent commented that he was not prepared to accept the birth certificate as independent corroboration of his claim "considering the ease with which such documents can be obtained".  The respondent goes on to comment that although the appellant claimed to be a minor his physical appearance before the Asylum Screening Unit officer suggested that he was over 18.  In the absence of satisfactory evidence to the contrary the Secretary of State did not accept that he was a minor and was satisfied that he should be treated as an adult.  This approach does not entirely reflect the wording of para 349 of HC395 which says that a child for the purposes of para 350-352 means a person who is under 18 years of age or who in the absence of documentary evidence, appears to be under that age.  At the beginning of the interview the appellant was asked whether apart from his birth certificate he had anything that served as proof of his date of birth.  He replied that he did not.  The interview continues: "In that case we will have to treat you as an adult and interview you substantively."  The issue of whether the birth certificate was genuine or a forgery has not been addressed on the face of the appeal papers before the assertion in the reasons for refusal letter that such documents can be obtained with ease.  

16.	The Tribunal has taken into account that the interview was conducted in the presence of a representative.  The Tribunal notes that there was a five-minute pause after Question 25.  The appellant did say at the end of the interview that he was happy with his conduct and had understood the interpreter.  Even so the fact remains that on the Adjudicator's finding this was a 17 year old being interviewed. Indeed many of his answers arguably reflect a degree of brashness and over confidence but also display a lack of security and an immaturity consistent with a young man of 17.  We would be very cautious before drawing any adverse inferences from omissions or discrepancies in the SEF or the interview.  

17.	Insofar as the Adjudicator's comment in paragraph 25 of her determination that there is a contradiction between whether the group the appellant's father belonged to was a political group demanding a change and democracy or whether it was a religious group, there is some substance in Mr Solomon's submissions that the SEF and interviews can be read as indicating that the appellant did refer to two groups. It is not clear whether the Adjudicator drew an adverse inference in paragraph 26 from the fact that the appellant responded in the way that he did when asked in cross-examination whether or not his father was arrested with eight other people.  He had said both in his evidence and in interview that his father was arrested with many others and there were eight organisers.  If the appellant received a knife wound in an attack it is certainly reasonable to expect him to refer to it when interviewed.  However, the Tribunal are not so sure that it is reasonable to expect him to refer to it when asked about injuries received through beatings at Q.30 particularly when that question followed very shortly after the resumption of the interview following the short break when the appellant had been distressed after Q25 of the interview. 
18.	The Adjudicator commented that she found it lacking in credibility that soldiers would come to the appellant's house on a regular basis to beat him up once his father had been arrested and detained (paragraph 29).  The background evidence referred to by Mr Solomon does tend to indicate that such conduct does occur and may not be uncommon.

19.	The Adjudicator drew an adverse inference from the fact that the appellant's account of the date and objectives of the demonstration at the university was inconsistent with the objective evidence in para 5.11 of the CIPU Report.  The validity of this comment depends upon the extent of the appellant's own knowledge of the incidents and his comprehension of the issues involved.  Looking at the various factors which have been put before us in argument, the Tribunal are left in a position where we feel that there is a real doubt as to whether the Adjudicator was right to reject the credibility of the appellant's account.  There are some aspects of his account which rightly in our view give cause to doubt whether his version of events is correct but we are not satisfied that we could properly reject his account of events as untrue and in these circumstances the doubts we have must be resolved in the appellant's favour.

20.	In our view in the light of the background evidence to which we have been referred there is at least a serious possibility that the appellant would be at risk of ill treatment on return to the DRC.  There is evidence that the authorities detain and ill-treat relatives of those they have detained or are seeking to detain.  There is a specific reference at A32 to family members of other suspects being in detention in Makala Prison.  At page 36 there is a reference to the government arresting dozens of relatives of suspects in the Kabila assassination.  It is recorded that when unable to locate a specific individual, the authorities often arrest or beat the closest family member.  The DRC authorities behave in a ruthless way against their actual and perceived opponents. There is a consensus in the background evidence that the security forces commit with impunity extensive abuses including disappearances, torture, beatings and rape. 

21.	There is a reasonable degree of likelihood that if the appellant's father was involved as an organiser of a student demonstration that he would be of adverse interest to the authorities.  It follows in the light of the background evidence that there would be a risk to the appellant, which in our view can properly be categorised as a real risk.  In these circumstances the Tribunal are satisfied that the appellant does qualify for asylum.  The risk arises from his imputed political opinion.  Even if it did not arise for a Convention reason the Tribunal are satisfied that there would be a risk of treatment contrary to Article 3.  

22.	For these reasons, this appeal is allowed on both asylum and human rights grounds.

H J E Latter
Vice President