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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 >> Kindoki v Secretary Of State For Home Department [2001] EWCA Civ 579 (21 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/579.html Cite as: [2001] EWCA Civ 579

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday, 21st March 2001

Wednesday, 21st March 2001

1. LORD JUSTICE SEDLEY: This is an application made by Mr Soorjoo for permission to appeal, permission having been refused on the papers by Longmore LJ. The applicant is a Zairean, born in 1963. He claimed asylum upon reaching the United Kingdom in July 1994, not many days after his release from 15 months in prison without trial. His psychological state is poor and his case has been determined both by the special adjudicator and by the Immigration Appeal Tribunal on the basis of his two interviews and two statements. He has been represented throughout by the Refugee Legal Centre, but at both instances his claim to asylum was rejected.
2. The Immigration Appeal Tribunal, taking itself to be in effectively as good a position to appraise the facts as had been the special adjudicator, noted discrepancies but accepted the applicant's account as essentially true. His father was a military commander under President Mobutu but had fallen from grace. His brother was a member of the elite Presidential Guard but had deserted early in 1993. The applicant himself had joined a political party, Mouvence, in the belief that it was an opposition group. When he found that it was a government sponsored fifth column he joined a genuine opposition party, the UDPS, who however decided to keep him in Mouvence as an informer. It was while he was writing a report to the UDPS about military riots that had taken place in Kinshasa in February 1993 that his home was raided by troops looking for his brother.
3. Jumping forward in time, the IAT found that, when finally in the following year the applicant escaped from Zaire, he had "a subjective fear of persecution by reason of his political opinion." It seems strongly arguable that at that point of time it was also a fear which was objectively well-founded. He had been arrested, and for 15 months beaten and maltreated and repeatedly questioned, both about his brother's whereabouts and about the report that he had been writing. His statement, which as I have said was by and large accepted by the IAT, was clear that it was about the latter as well as the former that he was being beaten and interrogated. His first complaint about the IAT's decision is that it has marginalised the report without justification and, by focusing instead on the brother's whereabouts, has come to a conclusion – a wrong conclusion says Mr Soorjoo – that as at the date of the IAT hearing, by when there had been a change of regime (though not entirely for the better) in Zaire, he was not at risk as a member of the UDPS of political persecution.
4. This ground runs into Mr Soorjoo's second main ground which is that the IAT treated the objective risk of further maltreatment on political grounds as confined to certain high profile categories of Zairean mentioned in the UNHCR's 1998 Guidelines. This, says Mr Soorjoo, was not justified in the light of more recent UNHCR evidence, itself based upon other reliable sources which the IAT quoted and accepted, which showed that there was, by the date of the IAT hearing in August 2000, a continuing pattern of military brutality towards UDPS members generally. For example, the material passage of the UNHCR background paper, May 2000, contained the following two passages:

"Many UDPS members were arrested during the same year [1998] and some of them were severely beaten in custody."

5. Then again,

"Human Rights Watch maintains that activists from PALU and UDPS continue to be detained; others who were freed, reported that they were subjected to daily whippings and other forms of cruel, inhuman or degrading treatment or torture."

6. From the original of that document, which is exhibited to the papers, it is apparent that these two passages come respectively from the 1999 Amnesty International Annual Report and from the 2000 Human Rights Watch World Report.
7. In sum, therefore, it is submitted on the applicant's behalf that on the very evidence accepted by the IAT the applicant was known to the Zairean Government not only as the brother of a deserter but as a UDPS member, and that the Kabila regime was continuing to persecute UDPS members in ways of which the applicant had direct and highly traumatic personal earlier experience. In these circumstances Mr Soorjoo's criticism of the IAT's decision focuses on paragraph 19 of its decision:

"The other relevant category identified [in addition to former members of the DSP, the pretorian guard] were former ministers and ambassadors and opposition political leaders and activists but we are similarly satisfied that the appellant cannot properly be regarded as falling into the category of an opposition political activist. Even in his covert operations for the UDSP, the appellant was really doing little more than making reports on matters which were in the public domain in any event. As it seemed to the special adjudicator, it seems also to us significant that the main thrust of the questioning of the appellant was the pursuit of his defecting brother. He does not suggest that he was interrogated on any other basis during the imprisonment."

8. It seems to me, with respect, that it is a tenable criticism that the IAT has here artificially narrowed the class identified by the UNHCR's most recent evidence as at risk of political persecution, and that it has questionably situated the applicant outside the class facing such risk. It may not be a fair criticism that this paragraph omits the writing of the report to the UDPS, but there is force in the submission that the significance of it has been unjustifiably marginalised by describing the applicant – I am not certain on what basis – as "really doing little more than making reports on matters which were in the public domain." Assuming this to be so, one doubts whether soldiers are likely to be alive to such refinements whether under the old regime or the new. It is certainly the case, as Mr Soorjoo points out, that in paragraph 18 of his own statement the applicant makes it clear that it was both about his brother and about the report which he had been caught writing that he was repeatedly interrogated.
9. For my part, although this is not a stark case by any means, and although much of what is complained of is the appraisal of fact, I would grant permission to appeal in order to enable the applicant to argue, in a case which, after all may involve risk to life, that the IAT has erred in law by adopting an unjustifiably narrow view of the extent of risk to members of democratic opposition parties which was disclosed by the in-country evidence accepted by the IAT earlier in its decision.
10. I consider that, while success is by no means assured, there is a realistic prospect sufficient to justify the grant of permission.
11. LADY JUSTICE ARDEN: I agree. The tribunal came to the conclusion that the core basis of the applicant's claim should be accepted, and in particular the tribunal accepted expressly that the writing of the report which was the cause of his being arrested would have drawn the attention of the authorities to the family in the pursuit of his defecting brother.
12. Mr Soorjoo has directed our attention to the last sentence of paragraph 19 of the tribunal's decision which states that the applicant did not suggest that he was interrogated on any other basis during his imprisonment, whereas in paragraph 18 of the statement he makes it clear that he was asked about the report in the course of detention. Therefore it seems to me that there is a properly arguable point here that the tribunal may have overlooked a point on a question of fact. It may seem like a small point but it is arguable that it throws into doubt the tribunal's view that the applicant's view of the risk of persecution was not well-founded. The tribunal's view really depends on giving a narrow meaning to the word "activist", as my Lord has explained, by restricting it to a person whose activities are of a public or overt nature and drawing a conclusion as to the nature of the report which it can be argued is not justified by the evidence.
13. There is a reasonable prospect of success, although of course success is not an issue for this court at this stage. Therefore I would grant the application.
(Application granted; detailed legal aid assessment).