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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lusala, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 420 (25 March 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/420.html Cite as: [2004] EWCA Civ 420

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(MR P R MOULDEN AND MR A F SHEWARD)

		Royal Courts of Justice Strand London, WC2A 2LL
		25 March 2004

1. LORD JUSTICE LAWS: I will ask Lord Justice Carnwath to give the judgment on this appeal.
2. LORD JUSTICE CARNWATH: This is an appeal, with permission granted by Lord Justice Ward, against a decision of the IAT.
3. The appellant, Mr Lusala, is a national of the Democratic Republic of Congo. He originates from Goma, which is in the East of the country. His father is of Hutu ethnicity and his mother is a Bakongo. He left the Congo on 28 April 2001 and travelled to the United Kingdom via Kenya. He claimed asylum on the grounds that he feared persecution on various grounds, including the fact that he had Hutu ethnicity.
4. The applicant's Statement refers to his ethnic origin as half Hutu and half Bakongo. He refers to the military training in which he had been involved, which was suspended when the rebellion started. He says that his father was arrested several times because he was Hutu. When the rebellion started he fled with his parents from Goma to Kinshasa. Problems began when Kabila took over power and announced that everyone was Congolese and started to recruit people for military service. The appellant says he fled from the Congo and lived in his mother's village in Kimbunga. He refers to the troubles that took place thereafter.
5. The Statement refers to the experiences in a refugee camp where he says the soldiers raped the women, including his sisters. Earlier this year when Kabila's son became President the applicant says that there were regular meetings with the Rwandan President, Mr Kangama, after which Mr Kangama declared that all the Hutus in Congo should return to Rwanda. Mr Lusala and his family were frightened. They subsequently decided that it was becoming very dangerous because he was half Hutu and was the oldest son, and also because he was a soldier, which would create problems for him if he was returned to Rwanda. He then made arrangements to leave the Congo.
6. The application was rejected by the Department. The appeal came before the adjudicator and was decided on 30 August 2002. The adjudicator summarised the claim and noted that the skeleton argument was apparently based on the problems and dangers arising from the appellant's ethnicity, but in evidence it was clarified that the claim was really based on the objection to military service. The adjudicator considered that issue and rejected the claim both under the Asylum Convention and under the Human Rights Act.
7. There followed an appeal to the Immigration Appeal Tribunal. Leave for that appeal had been granted on grounds relating to the European Convention. In his decision of 12 December 2002, the acting Vice-President thought that the adjudicator should have given further consideration to the claim under Article 3 of the European Convention. However, when the matter came before the Immigration Appeal Tribunal, that aspect of it had retreated into the background and the matter was looked at more generally. The tribunal refused the appeal in a determination notified on 9 June 2003.
8. The appeal is now based on the contention that the tribunal in some way ought to have had regard to guidance about conditions in the Congo contained in a decision in M(DR Congo) v SSHD UKIAT00071, heard on 9 July 2003, the decision being notified on 15 August 2003. In particular, reliance is placed on a UNHCR report, which is referred to at some length in that decision, dealing with the conditions in the Congo, the position of Hutus and the incidents of persecution of Hutus in some parts of the country.
9. It is said that the tribunal in Mr Lusala's case either should have taken that into account or, alternatively, that this court should remit the matter so that it can be taken into account. The principal point upon which Mr Zahed relies, is a decision of this court in Polat v SSHD [2003] EWCA Civ 1059. That case involved, different circumstances, although it is true that there was some discussion of the importance of guideline cases relating to the conditions in particular countries. Mr Zahed relies on the fact that the Court of Appeal remitted the matter for consideration by the tribunal on the basis that it had not properly considered one particular report by a Mr McDowall. The important point, however, is that the report in question was submitted to the tribunal when it was considering the application for permission to appeal to this court (paragraph 29 of May LJ's judgment). The tribunal had decided that that was not a matter which it should take into account in deciding whether to grant permission to appeal on a point of law. Mr Saini, for the Secretary of State, conceded that, as May LJ put it:

"In the exceptional circumstances in this case, it was an error of law not to take account of Mr McDowall's report with a view to directing a rehearing."

That concession was considered by this court in the case of E and R v Secretary of State [2004] EWCA Civ 49. The counsel in that case, Mr Kovats, did not support the concession, and the judgment of the court, which I gave, contained some discussion of the correctness of that concession both under the previous rules and under the rules under consideration in "E".

10. That, it seems to me, does not help the appellant in this case because there is no suggestion that the letter from the UNHCR or any other relevant material on this issue was available to them at any time when they were seized of this case. It seems to me therefore impossible that there could be said to be some error of law, even on the basis of the concession made in Polat. As was made clear in "E", notwithstanding dicta in some of the cases, the law remains that an appeal to this court is on a point of law arising from the decision of the tribunal. If the matter was not before the tribunal, it cannot be said that there was an error of law. The remedy, if new material comes to light which is relevant, is to put it before the Secretary of State.
11. The one exception to that, which again was discussed in "E", is where it can be shown that there is a clear mistake of fact in the tribunal's decision. The circumstances upon which that can be arise are very limited. The facts of this case fall nowhere near them. Accordingly, this appeal must fail.
12. I note that Miss Giovannetti has commented on some aspects of the material relied on by Mr Zahed as to conditions in the Congo. She questioned how relevant it is to Mr Lusala's position. It is unnecessary for me to go into that, and it is inappropriate to do so, in view of the fact that this matter may be subject to further consideration by the Secretary of State.
13. Accordingly, I would dismiss this appeal.
14. LORD JUSTICE JACOB: I agree.
15. LORD JUSTICE LAWS: I agree.

Order: Permission to appeal refused. Public funding order of appellant's costs.