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Cite as: [2005] UKAIT 152, [2005] UKIAT 00152, [2005] UKAIT 00152

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TN and others (BDK members – not at risk) Democratic Republic of Congo [2005] UKAIT 00152

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 29 September 2005

Date Determination notified: 04 November 2005

Before

Dr. H. H. Storey (Senior Immigration Judge)

Ms. D. K. Gill (Senior Immigration Judge)

Mr. M. E. A. Innes

Between

TN and others	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr. S. Revindran, of the Refugee Legal Centre (RLC).

For the Respondent: Mr. A. Sheikh, Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

Whilst active members of the BDK (Bunda Dia Kongo) are reasonably likely to experience some problems in Bas Congo, these are not such as to amount to persecution or treatment in breach of Article 3. Nor is there any real risk that active members of the BDK would be persecuted or would suffer Article 3 ill-treatment in Kinshasa. Those who are not members of the BDK but who are associated with it are not at greater risk than active members of the BDK.

This is a reconsideration of the Determination (promulgated on 21 June 2004, following a hearing on 4 June 2004) of Ms C E Pugh (an Adjudicator as at the date of the hearing), who dismissed the appeals of the Appellants which were brought under section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended) on asylum and human rights grounds against the decisions of the Respondent of (respectively) 26 January 2004, 23 January 2004 and 27 January 2004 to refuse them leave to enter the United Kingdom.

The Appellants are nationals of the Democratic Republic of the Congo (DRC). They arrived in the United Kingdom on 2 December 2003, having travelled from the DRC via Angola and Zambia. Their dates of birth are (respectively) 10 May 1968, 1 January 1944 and 25 December 1982. The First Appellant and the Third Appellant are sisters. The Second Appellant is their mother. The First Appellant's daughter claims as a dependant in her claim.

This appeal came before the Tribunal on 12 July 2005, at which time Mr. P. Deller (Senior Home Office Presenting Officer for the Respondent) conceded that there was a material error of law in the Adjudicator's Determination, in that, the Adjudicator had failed to treat past persecution on political and religious grounds (paragraph 63 of the Determination) as indicative of future risk. At the hearing on 12 July 2005 (when the Appellants were represented by Mr. Revindran), the parties agreed that there was no need for oral evidence to be heard, and that the second-stage of the reconsideration would proceed by way of submissions only, on the following issues which the parties also agreed were the issues before the Tribunal at the second stage of the reconsideration:

(a) the current risk to members of the BDK or those who are associated with the BDK (Bunda Dia Kongo);

(b) the scope and viability of the political profile risk category.

Before us, the parties confirmed the above.

At the earlier hearing on 12 July 2005, the parties were informed that this would be a country guidance case. However, the documentary evidence before us is fairly limited and, in the event, we did not have the benefit of submissions from the parties. For this reason, we have decided not to designate this case as a country guidance case. Nevertheless, this case is being reported because, notwithstanding the limited evidence before us, we deal with the general risk to BDK members and those associated with the BDK, and it is right that our findings on this evidence should be made known.

At the commencement of the hearing before us, Mr. Revindran renewed the request to adjourn the hearing which was made by way of a letter dated 28 September 2005. In this letter, Mr. Revindran explained the difficulties he had had in locating an expert who could assist. On 9 September 2005, an expert was located but he was currently located in the DRC. His report was only sent to the RLC on Monday 26 September 2005. It was immediately sent for translation. There were then some difficulties in transmission of the report, the result of which was that, as at the time of writing the letter, the translation of the report had not been received. Before us, Mr. Revindran informed us that the report had been faxed to the RLC's office at the hearing centre but some of the pages were missing. We adjourned the hearing for about an hour to allow Mr. Revindran time to arrange for the report to e-mailed to him at the hearing centre and for Mr. Sheikh to consider his position in relation to the report.

When the hearing resumed, Mr. Sheikh lodged a copy of the CIPU report on the DRC dated April 2005. Mr. Revindran confirmed that he had received the Appellants' expert report. However, he informed us, initially , that he was not going to submit the report in evidence because (inter alia) the expert had not addressed the question posed to him as to the likelihood of the Appellants being detained for 5 months without their details being taken. Furthermore, the expert did not reach a firm conclusion about the risk of future persecution. Secondly, Mr. Revindran informed us that he was in difficulty, and was withdrawing representation.

We informed the parties that, whilst it was regrettable that Mr. Revindran felt compelled to withdraw representation, we were proceeding with the hearing. However, we indicated that, in the circumstances, it may be inappropriate for Mr. Sheikh to make any submissions at any length. Mr. Sheikh did not object to the Tribunal deciding the appeal on the documents before us, which (as we advised the parties before us) are as set out in paragraph 9 below.

Mr. Revindran then informed us of two things. Firstly, the First and Third Appellants (who were present at the hearing) had told him they wished to submit the report after all. Secondly , although he had withdrawn representation, the First and Third Appellants had requested him to pass on a request to the Tribunal to adjourn the hearing to enable the Second Appellant to attend the hearing, in case she wished to say anything to the Tribunal. We were informed that the Second Appellant was currently an in-patient at a hospital in Leeds. We refused to adjourn the hearing on that ground. Our reasons are as follows:

(a) clear directions had been given at the previous reconsideration hearing that there would be no further oral evidence from the Appellants, only submissions. No application had been made prior to the date of the hearing to vary that and permit oral testimony;

(b) the risk of future persecution is one which falls to be determined largely on the basis of an assessment of the objective evidence. We had the benefit of a report which had been specially commissioned on the Appellants' behalf.

(c) Rule 21(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that the Tribunal must not adjourn a hearing unless satisfied that the appeal cannot otherwise he justly determined. For the reasons given above, we were not so satisfied.

Documents: Before concluding the hearing, we clarified with the parties what documents we had before us and would be taking into account, in addition to those already served. These were:

(served on behalf of the Respondent)

(i) the CIPU report dated April 2005;

(served on behalf of the Appellants)

(ii) the report of Mr. Alex Kabinda Ngoy, a lawyer and barrister before Lubumbashi, under reference: LRDC / AKN / 2005, entitled: Report on the situation of Bundu Dia Kongo religious group members;

(obtained by the Tribunal but referred to in the letter from the RLC dated 28 September 2005)

(iii) the US State Department (USSD) International Religious Freedom Report 2004 in the DRC;

(obtained by the Tribunal)

(iv) the USSD Report on the DRC for 2004 dated 28 February 2005.

We have also referred to the report dated 12 December 2003 from the Belgian General Commission for Refugees and Stateless Persons (CEDOCA) entitled: "Report on the Bundu Dia Kongo (the Democratic Republic of the Congo)" (the Belgian CEDOCA Report). This report was before the Adjudicator and she considered it in some detail. It describes the BDK movement/sect in detail, including its creation, philosophy, structure, leadership, the conditions and training for new members, its emblem, membership cards and statutes, as well as the events of July 2002 and subsequently.

We were told by Mr. Revindran (before he withdrew representation) that he had just received a newspaper article in French, which had not been translated. However, he also informed us that, although he could not say what the contents of the article were, he was not intending to place reliance on it.

The basis of the Appellants' claims: In brief, the Appellants claimed that they had been persecuted on account of their association with, and activities with, the BDK. The First Appellant became a member of the BDK in about 1982 / 1983. In 1987, she married a BDK pastor, and moved with him to Bas Congo where he was the pastor. Subsequently, the Second Appellant, and later the Third Appellant, went to live with the First Appellant in Bas Congo. On 26 June 2003, the Appellants were preparing for the 40^th anniversary of their church which was also the 40^th anniversary of the death of Kasa-Vubu, the former president of the DRC. A lorry full of soldiers turned up at the church. Some women were shot; the Appellants and the daughter of the First Appellant were taken by the soldiers to their house, where the First Appellant's husband and the women were beaten. The women were also subjected to multiple rape. The First Appellant and the Third Appellant were taken to prison, the Second Appellant and the First Appellant's husband being too unwell. The First Appellant's husband died from his injuries. Subsequently, the Second Appellant was taken to prison. The women stayed in prison for 5 months in difficult conditions. They were beaten and raped. They escaped with the assistance of a guard, who was paid a bribe of US$ 2,000. On the night of 6^th to 7^th November 2003, the guard let them out. There was a van waiting to take them to a Kimbanguiste Church. However, as the pastor there was too afraid to keep them overnight, he immediately took them to the ocean.

The Adjudicator's Determination: In a carefully reasoned and detailed Determination, the Adjudicator assessed the credibility of the Appellants' accounts. Whilst making several adverse credibility findings, she also referred to evidence which "could work in favour of the Appellants". She accepted that the Appellants had suffered some traumatic event. It is plain from the Adjudicator's reasoning that she decided to place considerable weight on a particular newspaper article. The particular newspaper article on which the Adjudicator relied is dated 5 March 2004. Given the weight she placed on it, it is important for this Tribunal, when assessing the risk on return, to take account of contents of the article. This is what the Adjudicator says about this article at paragraph 51 of the Determination:

This article says that the followers of BDK are still being pursued for reason of religious affiliation. It speaks of the events in Bas Congo "last year". It says the followers are hounded and prevented from practising. This is not mentioned in the CIPU, but by itself this would simply be one more piece of background material. However, the article goes on to refer to the "arrests last June" and then names the First Appellant as "wife of the leader of the movement", names her daughter, and goes on to name the Third Appellant as being in charge of the young choir members and the Second Appellant as the gardener of the church. I note that in the translation, and again in the second translation the name of the Second Appellant was missed out. I do in fact read French, but I do not need to do so in order to spot the name in the article. It is clearly there. I note in passing that it is odd that the Second Appellant should be gardener at the church, given the problems that she had with her back from 1998. The Article says nothing about their further imprisonment and escape. The article continues by saying that the paper covered the affair "in its various publications, denouncing the abuses of so-called justice". They went on to say that followers of the BDK were not rebelling against the central power but wanting to celebrate the 40^th anniversary of their church and the rehabilitation of the late President Kasa-Vubu.

(our emphasis)

The fact that the Appellants and the First Appellant's daughter were named in an article which the Adjudicator clearly accepted and placed heavy reliance on is relevant to our determination of the issues before us. Similarly, the fact that the article suggests that they were arrested is also relevant.

At first sight, it is not entirely clear whether the Adjudicator accepted the Appellants' accounts as to the manner in which they escaped – or were released – from detention. Towards the end of paragraph 61 of the Determination, the Adjudicator referred to the cross-examination of the Home Office Presenting Officer and stated:

I believe that the questions were meant to show that if the Appellants had been imprisoned, which the Home Office Presenting Officer was not at that point accepting but which I will accept, then they had been let out as no further interest. The background material shows that BDK members who were imprisoned after the events of 2002 often managed to bribe their way out or were simply released. The story is generally in accord with the background material.

However, given that the Appellants did not seem to be well acquainted with their own religion, the Adjudicator concluded that they had not come to the church through a burning conviction but had done so through the marriage of one of the family members. She concluded that the marriage must have been seen as a provision of security (paragraph 58 of the Determination). She therefore accepted that the Appellants were "associated" with the church through marriage of one of them but for reasons of security rather than conviction, that they were imprisoned and therefore persecuted for their religion and their political opinion, that political opinion may well have been imputed to them simply because they were members of the particular church.

At the commencement of the hearing (and before Mr. Revindran withdrew from representation), we asked the parties to address us on whether the Adjudicator's finding as to the claims of the Appellants that they had escaped from prison was sufficiently clear and, if not, whether the Tribunal ought to hear oral evidence on this limited point, notwithstanding the concession at the hearing on 12 July 2005 that oral evidence was not necessary. Mr. Sheikh submitted that the Tribunal should distinguish between a person who escapes from prison by, for example, breaking out of the prison and scaling a wall and a person who secures their release by paying someone a bribe. In Mr. Sheikh's submission, there is no reason to suppose that a person in the latter category would be treated or regarded as an escapee or would be wanted, as a person in the former category might be. Furthermore, the Adjudicator stated at paragraph 71 of the Determination that the Appellants would be safe in Kinshasa. This means that she must have found that no charges were brought against the Appellants. In response, Mr. Revindran informed us that, in his view, no useful purpose would be served by hearing oral evidence, because the Appellants have given oral evidence and there is nothing further they can add to their accounts of their escape. It was for the Tribunal to draw inferences from the evidence they had already given. The Appellants regarded themselves as having escaped from prison. We noted the Second Appellant's answers to questions 89 to 91 of her interview (page C16 of the statutory appeal bundle lodged in her case), which read:

Question: Did you walk out of prison?

Answer: A lorry was waiting for us outside the prison. We walked to the lorry to the church.

Question: Were there guards when walking to the lorry?

Answer: Just one guard

Question: His name?

Answer: I don't know him my daughter knows.

We reserved our determination.

DETERMINATION

We deal first with the Appellants' accounts of their "escape" from prison. Mr. Sheikh sought to rely on the Tribunal's Determination in Tharmakulaseelan [2002] UKIAT 03444. That was a case which was decided with regard to the country situation in Sri Lanka. In that case, the Tribunal found that the objective evidence shows that bribery is widespread in Sri Lanka, that bribery related releases would not, in the absence of some special and credible reason, be likely to be treated as escapes, and would not result in the inclusion of the individuals involved on a wanted list. Indeed, the Tribunal considered itself able to go further and to state that, although the Sri Lankan government was trying to control bribery, such was the culture of bribery that the mere fact that a bribe was paid does not in itself imply that the bribe is procuring action which would not otherwise in time be taken. Nor does it necessarily imply that the person bribed would be willing to take a serious personal risk by, for example, releasing a suspected terrorist. The Tribunal in Tharmakulaseelan emphasised that each case has to be decided on its own facts and there may well be examples of cases where bribery has procured an assisted escape.

In our view, it would be wrong for this Tribunal to adopt the conclusions of the Tribunal in Tharmakulaseelan because that Tribunal considered the objective evidence in another country. What we have to do is to consider the objective evidence with regard to the DRC and decide the significance of the payment of bribes securing a person's release from prison. Paragraph 5.37 of the CIPU report refers to bribery being ubiquitous in the DRC. This is attributed to a report from the United Nations Special Rapporteur for the DRC of March 2004. Section 1c of the USSD Report for 2004 refers to prison guards frequently requiring bribes from family members and NGOs to visit or provide detainees with food and other necessities. Paragraph 5.65 of the CIPU report states that, during the course of a "country of origin information seminar" in June 2002 sponsored by UNHCR and ACCORD (the Austrian Centre for Country of Origin and Asylum Research and Documentation), it was stated that it was generally possible to bribe one's way out of custody, including military custody, although it would be more difficult to do so in the case of a high security category. The USSD Report on Human Rights Practices for 2004 states as follows:

Most citizens were engaged in subsistence agriculture or commerce outside the formal wage sector. The average wage did not provide a decent standard of living for a worker and family, and most workers relied on extended family and informal economic activity to survive. Minimum wage laws continued to be suspended at year's end. Civil servant salaries remained very low, ranging between $4 and $20 per month, and salary arrears continued to be a problem (see Section 6.b.). However, depending on their position, civil servants, including police and soldiers, frequently supplemented their incomes through extracting bribes and various other practices of corruption.

(first paragraph of section 6e. (Acceptable Conditions of Work))

(our emphasis)

It is therefore abundantly clear from the background material before us that corruption amongst public officials and security officials is a major problem in the DRC. We are satisfied, given that bribery in the DRC is not only widespread but ubiquitous, that bribery related releases would not, in the absence of some special and credible reason, be likely to be treated as escapes, and would not result in the inclusion of the individuals involved on a wanted list. Indeed, as is the case with Sri Lanka, such is the culture of bribery in the DRC that the mere fact that a bribe was paid does not in itself imply that the bribe is procuring action which would not otherwise in time be taken. Nor does it necessarily imply that the person bribed would be willing to take a serious personal risk by, for example, releasing a suspected terrorist. However, each case has to be decided on its own facts. There may well be examples of cases where bribery has procured an assisted escape. We stress that we have reached these conclusions on the basis of the objective evidence in the DRC.

We must look at the circumstances relating to the detention of the Appellants and their "escape" together with the objective evidence in order to determine whether their "escape" was a bribery-assisted release (in which case they were no longer of interest at the time of their release) or a bribery-assisted escape. The fact that the Appellants regarded themselves as having escaped is a relevant factor (and we take it into account) but it is not determinative. The fact that the Appellants were persecuted in detention is an important factor. This is particularly so in this case because, notwithstanding the fact that the background material shows that detainees are often abused, the Adjudicator made a specific finding that the Appellants were persecuted for their religion and their political opinion (paragraph 63). It is the finding that they were persecuted for the religion and their political opinion which reduces the likelihood that the bribe secured their release and increases the likelihood that the bribe secured an assisted escape. The amount paid by way of a bribe is also relevant. The Appellants paid a large bribe (US$2,000) but (again) this is not determinative.

In order to determine whether the bribe paid by the Appellants was nothing more than a bribery-related release or whether it procured their escape, it is necessary for us to consider whether the background evidence shows that it is reasonably likely that the authorities would have continued to have an adverse interest in the Appellants at the time of their release / escape.

We therefore turn to the background evidence with regard to the BDK. The USSD International Religious Freedom Report 2004 describes the BDK as "an ethnically based spiritual and political movement that called for the overthrow of the Government and the establishment of an "ethnically pure" kingdom from the Bakongo tribe". This is a very succinct description of the group. The IRIN (United Nations Integrated Regional Information Networks) report dated 26 July 2002 described the BDK as a nationalist politico-religious group centred in the Bas Congo province (west of Kinshasa) which has campaigned for the independence of the Bas Congo region from the rest of the DRC (see paragraph 6.216 of the CIPU report). The same IRIN report states that the BDK demands that its adherents renounce western and eastern religions". It seeks the restoration of the ancient Kongo kingdom within its pre-colonial boundaries. An information response by the Canadian Immigration and Refugee Board (IRB) dated 15 October 2003 refers to a source describing it as a "hodge-podge of ideas" covering religion, philosophy, pure science, history, geography and politics and which is tailored to the Bakongo who are described as "the chosen people of the world-wide Black race" (paragraph 6.218 of the CIPU Report). The headquarters of the BDK are in Kinshasa.

The basic philosophy of the BDK is to promote the positive side of the Kongo ancestral tradition through research and education and to apply the scientific principle of the Kongo ancestral tradition. The three pillars of the movement are science, religion and politics – which are symbolised (respectively) by their ancestors Mpanzu, Nsaku and Nzinga from whom Bakongos are descended.

According to the Belgian CEDOCA Report (pages 38 to 39), on 22 July 2002, in Kinzao-Mvute, about a hundred BDK members, wishing to commemorate the 40th anniversary of the creation of Bas-Congo Province, started to walk from their old temple to a new one, which was about 1 km away. On the way, they were stopped by the security forces and prevented from continuing their journey. Some of the members were arrested and badly beaten by the security forces. Also, on 22 July 2002, a meeting held in a temple in Tshela by BDK members was disrupted by units of the Congolese armed forces. Soldiers surrounded the temple and asked the 55 men, women and children in the temple to go outside and climb into military vehicles located outside the temple. As soon as all the BDK members had left the temple, it was burnt down. The report goes on to state that all 55 members of the group were interrogated by the security forces but, by 26 July 2002, all had been released from the Tshela central prison, apart from Ne Mbambi Mbumba and Ne Nandi Kandi. Page 42 of the Belgian CEDOCA report goes on to state:

NB. Many members of BDK were arrested during the events of July 2002 in the Bas-Congo. Of these, only 40 people …….. were transferred to Kinshasa and put on trial. All the others arrested were released a week or two after their arrest, by paying a sum of money or by bribing police officers. Others managed to escape. All the women were freed (so, no women were put on trial).