Case No: CO/2021/2000
 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT LIST

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12th October 2000

B e f o r e :

THE HON MR JUSTICE HOOPER

	The Queen on the application of 
Ondelio Lisungi	Applicant	
	- v -		
	Immigration Appeal Tribunal	Respondent	

- - - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - - -

Mr Steven Kovats (instructed by  The Treasury Solicitors for the Respondent)
Ms M Phelan (instructed by  Lloyd and Associates for the Applicant)

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
As Approved by the Court

Crown Copyright

 Mr Justice Hooper:
1.	This is an application for permission to apply for judicial review of a decision of the Immigration Appeal Tribunal (“IAT”) refusing the applicant leave to appeal against a determination of a Special Adjudicator (“SA”) dismissing her asylum appeal.  She was born in what is now the Democratic Republic of Congo and arrived in this country on the 11th March 1996 on a false passport in transit to Canada.  When her false passport was detected she claimed asylum.  She was interviewed in November 1996 and the Secretary of State refused asylum in March 1997.  On 21st February 2000 the SA dismissed her appeal and 21st March 2000 the IAT refused leave to appeal.  Leave was refused on the papers by Silber J on 21st July 2000. The applicant renewed the application for permission before Newman J on 18th August 2000.  Newman J ordered that the application for permission be adjourned on notice to the respondent.  Newman J invited the respondent to assist the Court particularly in regard to gender based asylum claims.
2.	Although there are two respondents named, the SA and the IAT, Ms Phelan on behalf of the applicant accepted that the decision of the SA was not a decision which could be quashed by this Court given the right of appeal to the IAT.  
3.	The SA set out the evidence which the applicant gave before her:
“The appellant raises one issue only before me, that of asylum.  She arrived in the UK on 11.3.96 using a Haiti passport but in possession of her own Zairean passport which was found in her luggage.  She then claimed asylum.  She was accompanied by her child, Dubilio Yabele.  The evidence the appellant put forward in support of her claim for asylum was that she would be persecuted in her country due to her connection with one Honore Ngbanda who was Conseiller Special en matiere de Societe de Chef de l’Etat.  She had been his secretary.  Also, her cousin was married to the cousin of the leader of the opposition, Etienne Tshisekedi.  She was suspected of having sympathies with the opposition party and her boss panicked because of this and she was accused of giving out secrets.  Mr Ngbanda had never personally accused the appellant of any wrong-doing but his agent tortured her and asked her lots of questions.  The appellant complained of having been arrested twice, ‘first time during a party at my cousin’s.  I was taken to a villa by some officers and asked why I was at a party with the leader of the opposition, knowing he was there.  I went because of my cousin and they could not understand.  This was March 1993.’  The appellant said she had been arrested for the second time at her home in April 1993.  She complained that she had been driven out of her house because her rent was paid by the government.  She was taken from home, her children were taken away from her and she was taken to the office of the AND (now called SND) and she was tortured and raped and kept for four days.
It emerged that the appellant had been in France in June 1994 and remained there, making a claim for asylum which was rejected, until February 1996.  She then had news from home that her home had been set on fire and that her daughter had been badly burned.  She got a fake identity with a fake Haitian passport in order to return to Zaire to see her children.  She left again in March 1996 and arrived in the UK in transit for Canada where she thought she would have a better chance of obtaining asylum.”

4.	The SA then set out what the applicant had said in interview.  This was in large measure consistent with what she had said in evidence.  Although the SA was invited by the presenting officer to make an adverse finding as to the applicant’s credibility she reached the following conclusion: “I treat the appellant’s evidence as credible and that upon which I am relying in determining this appeal.”  
5.	In her decision the SA described a period of at least 2 months where the applicant remained in Kinshasa following her detention.  She said that she “has offered no evidence that anyone was looking for her during that period.”  She went on to say:
“She has offered no evidence which supports her view that her former boss, for whom she never worked in his political capacity but only in his private capacity, was behind the arrests.  The appellant was arrested first having just left a party at which Tshisekedi was in attendance.  She was questioned in that context.  Even she did not know whether her cousin’s marriage to Mr Tshisekedi’s younger brother or cousin ... was a factor in her arrest.  During the next arrest she was questioned about any connection to the UDPS.  By her own account she had never been a member and was not in any sense political.”
6.	In so far as the rape was concerned, the SA said that she was not satisfied that the applicant was raped as punishment for any political activities. She found that her attackers were acting on there own initiative. She said that there was no evidence of any connection between the rape and the burning of her sister’s house in which the appellant’s daughter was so badly injured.
7.	The SA went on to say:
“The appellant returned to Zaire in 1996 to see her children.  She was not able to remove them from the country with her.  It was not until some time after the appellant left Zaire again in 1996 that the regime there changed and the Mobutu years were over.  Mobutu died in Morocco in September 1997 having left the country finally in May 1997.  The Kabila regime began in 1997.  The previously existing institutions, save for the judiciary, were disbanded.  The UDPS were included in the government.  It seems to me that so much has changed, and so much time has passed, that whatever the appellant complained of in the past, there is little likelihood that a person of so little political connection would be noticed if returned there in 2000.  The connection, such as it is, to Tshisekedi is so slight that there is no chance that it may be remembered at this remove.  I have considered the background evidence put before me in some detail and I can find no support therein for the proposition that the appellant would be at risk of persecution on account of any political opinion which might have been imputed to her back in 1993 or 1994.  I therefore dismiss her appeal. I decline to make any recommendation.”
8.	In dismissing the application for leave to appeal to the IAT, Mr E Maddison wrote:
“The Tribunal has read the supplementary documents submitted which do not in its opinion undermine the adjudicator’s conclusions.
The adjudicator heard oral evidence from the applicant.  She accepted her as a credible witness but concluded that her connection with public figures in the old regime was so slight, and so much … had passed that the applicant would be at no risk on return in 2000.  That general conclusion is not invalidated by any error she may have made over the position of the UDPS.
The adjudicator appears to have considered all the evidence before her, properly directing himself as to the proper standard of proof.  The adjudicator came to clear findings of fact, after giving to each element in the evidence the weight she considered appropriate.
The Tribunal has studied the papers on file.  It considers that the conclusions of the adjudicator are fully supported by the evidence.  There is no misdirection in law.  Read as a whole the determination is a full, fair and reasoned review of the applicant’s case.
In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused.”
9.	The first ground relates to Mr Maddison’s conclusion that the adjudicator’s findings were fully supported by the evidence.  It is submitted that Mr Maddison’s conclusion by is one that is arguably “Wednesbury” unreasonable.  In the grounds of appeal prepared for the IAT and now, complaint is made of the following passages in the SA’s determination: “The UDPS were included in the government” “It seems to me that so much has changed” and “The connection, such as it is, to Tshisekedi is so slight”.  
10.	As to the first of those three, Mr Maddison wrote: “That general conclusion is not invalidated by any error she may have made over the position of the UDPS”.  It appears that a number of members of the UDPS were included within the new government, although not as representatives of their own parties.  Political activity, although not membership of political parties, was banned  (see page 92).  Mr Maddison’s approach to this “error” is one that he was reasonably entitled to reach.   
11.	As to the second and third passages Mr Maddison said that the SA had: “concluded that her connection with public figures in the old regime was so slight, and so much …had passed that the applicant would be at no risk on return in 2000.”  Ms Phelan supports her submission that things had not changed by reference to passages in a 1999 Home Office Report, which describes arbitrary arrests, torture within prisons and extra-judicial killings.  She also submits that the SA discounted the significance of the link to Mr Tshisekedi particularly in the light of the burning of her house.  Mr Kovats, whilst accepting that Report, submits that the SA was saying that the applicant’s position had changed.  Although she might be at risk of arbitrary arrest, torture or of being killed, she was in no different position than any other person living in the Democratic Republic of Congo.  With the fall of President Mobutu and given the passage of time she was not now at risk of persecution for a Convention reason for the reasons given by the SA and affirmed by Mr Maddison.  He supports the SA’s conclusions by pointing out that the applicant’s connection was to Mr Tshisekedi was not a close one and that she herself was not a member of the UDPS.  I take the view that Mr Kovats’ submission is right and that this ground has no arguable merit.  The fact, if such be the case, that she may be at risk if returned is something which, as Mr Kovats accepts, the Secretary of State must  consider before returning her. 
12.	I turn to the second ground: the applicant had a gender claimed basis for asylum in the light of Islam v. SSHD and R. v. IAT ex parte Islam [1999] 2 A.C. 629.  Ms Phelan sought to put before me background material which was not placed before the SA or IAT.  Given that I have to rule on the challenge to the IAT’s decision, I must do so by reference to material before it.  The statutory framework provides procedures for consideration by the Secretary of State of new material.  Although the SA had not been asked to consider this ground, the IAT were.  Mr Maddison, as Mr Kovats accepts, did not deal with these grounds in the manner that he should have done.  I must therefore decide whether leave to appeal would necessarily have been refused if the IAT had considered the matter in a proper manner.  
13.	The background material available to the IAT showed that the security forces are themselves often responsible for rape, and that there are reports of rape by those forces and prison officers on detainees.  According to a Home Office Report referred to in the grounds to the IAT (94): 
“Women are generally relegated to a secondary role in society and are believed to be commonly subject to domestic violence, including rape, although no statistics are available.  The significant risk of rape restricts freedom of movement for women in many neighbourhoods.  Rape has been reported in the course of arbitrary detention/torture by the Mobutu and Kabila regimes and by government and RCD rebel forces.” 

14.	According to a US State Department Report (98):
“The Kabila Government’s human rights record remained poor.  Citizens do not have the right to change their government peacefully.  Security forces were responsible for numerous extrajudicial killings, disappearances, torture, beatings, rape, and other abuses.  In general, security forces committed these abuses with impunity, although a special military tribunal tried and executed some security force members for various human rights abuses.  Prison conditions remained harsh and life threatening.  Security forces increasingly used arbitrary arrest and detention throughout the year.  Prolonged pretrial detention remained a problem, and citizens often were denied fair public trials.  The special military tribunal tried civilians for political offenses and executed civilians, frequently with total disregard for process protections.  The judiciary remained subject to executive influence and continued to suffer from a lack of resources, inefficiency, and corruption.  It was largely ineffective as either a deterrent to human rights abuses or a corrective force.  Security forces violated citizens’ rights to privacy.  Forcible conscription of adults and children continued, although children were conscripted to a lesser extent than in the previous year.  Government security forces continued to use excessive force and committed violations of international law in the war that started in August 1998.  On at least three occasions, government aircraft bombed civilian populated areas in rebel-held territory.  Although a large number of private newspapers often published criticism of the Government, the Government continued to restrict freedom of speech and of the press by harassing and arresting newspaper editors and journalists and seizing individual issues of publications, as well as by continuing to increase its restrictions on private radio broadcasting.  The Government severely restricted freedom of assembly and association.  The Government continued to restrict freedom of movement; it required exit visas and imposed curfews even in cities not immediately threatened by the war.  The Government continued to ban political party activity and used security services to stop political demonstrations, resulting in numerous arrests and detentions.  It also harassed and imprisoned members of opposition parties and harassed human rights nongovernmental organizations (NGO’s).  Violence against women is a problem and rarely was punished.  Female genital mutilation (FGM) persists among isolated populations in the north.  Discrimination against indigenous pygmies and ethnic minorities is a problem.  Serious governmental and societal violence and discrimination against members of the Tutsi ethnic minority continued; however, the Government protected many Tutsis who were at risk and permitted 1,341 to leave the country.  The Government arrested labor leaders during public sector strikes and allowed private employers to refuse to recognize unions.  Child labor including use of child soldiers remained a common problem.  There were credible reports of beatings, rapes, and extrajudicial killings of Tutsis; however, societal abuses of Tutsis in government-controlled areas were far fewer than in 1998 because by the start of the year surviving Tutsis generally either had left the government-controlled part of the country or were in hiding, places of refuge; or government custody.”

15.	Ms Phelan relied particularly on the passage: “Violence against women is a problem and rarely was punished.”  Mr Kovats submitted that these words had to be read against the background of the whole passage which shows a general breakdown in law and order affecting both men and women. 
16.	In Shah and Islam Lord Steyn made it clear that everything depended on the evidence and findings of fact in the particular case.  The defining factual framework in that case was the toleration and sanction of discrimination against women by the state (636-637).  In the words of Lord Hoffmann (655B):
“The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state.”
Earlier he had said that the state denied women a protection against violence which it would have given to men (653F). 
17.	In my judgment, the evidence before the IAT did not come even close to the evidence which supported these conclusions.  
18.	I can deal with ground 3 briefly.  This ground was raised for the first time before the IAT.  It is submitted on behalf of the applicant  that she is entitled to rely on paragraph 52 of the UNCHR Handbook (page 94).  Mr Maddison having failed to deal with this ground properly, I must approach the ground in the same manner as I approached ground 2.  In my judgment the evidence put before the SA by the applicant does not, as Mr Kovats submitted,  come within that paragraph.  This ground also fails. 
19.	This application for permission therefore fails. 

- - - - - - - - - -

MR JUSTICE HOOPER:  For reasons which I made available to counsel yesterday, this application for permission fails. You both have a copy of the judgment?
MR KOVATS:  My Lord, yes, thank you.
MR JUSTICE HOOPER:  Miss Phelan, you had a copy yesterday, I hope.
MISS PHELAN:  Yes, thank you.
MR JUSTICE HOOPER:  Thank you, Mr Kovats, for sending me that typographical error. Anything further?
MISS PHELAN:  Yes, my Lord. The applicant has been legally aided, and I would ask for assessment of costs.
MR JUSTICE HOOPER:  Yes, certainly you can have that. Thank you both for your help.
MR KOVATS:  Thank you.