Facts:
The applicant claimed to be a national of the Democratic Republic of Congo (“DRC”). She arrived in Ireland and claimed asylum. Her fear of persecution rested on three matters, namely:-
- her race or ethnicity, based on the fact that she was a Tutsi;
- her membership of a social group comprising Tutsi women; and
- her fear if refouled as a Tutsi failed asylum seeker.
Explaining why she left the DRC, she said that in 1998 she was visiting her uncle’s home in Kinshasa when a Tutsi massacre occurred there. They fled to the north Kivu region of the DRC, where they lived for several years. During that upheaval in Kinshasa she lost contact with her parents and siblings. Some years later hostilities erupted in north Kivu and living conditions deteriorated; some family members were also killed, including her uncle. She was taken by a man to a neighbouring village, where they remained until the following day. They then travelled elsewhere, where they remained until her escape from the country was organised.
Having investigated her claim, the Refugee Applications Commissioner recommended that she not be declared a refugee. The s. 13(1) report set out a series of credibility issues that arose in the claim. It was considered that her knowledge of the general situation in North Kivu, including a specific rebel leader operating there, was very limited. It was considered that she did not have a fear of persecution of the rebel leader because they were of the same ethnic group, and that her decision to leave arose from the general violence in the eastern region of DRC, which did not give rise to a Convention ground.
She appealed unsuccessfully to the Refugee Appeals Tribunal, whose decision she impugned in these proceedings.
The Tribunal held, first, that her knowledge of the area in which she claimed to have lived in North Kivu was lacking, bearing in mind that she claimed to have been living there for a period of approximately nine years. Secondly, it concluded that she ought reasonably to have had some limited understanding about the reasons for the conflict in North Kivu because she had been living there for some time, and the civil war had continued for a long period throughout it. It also concluded that her failure to apply for asylum in Belgium and the fact that she risked travelling onward to another country on false documentation was not indicative of a person fleeing persecution.
The applicant’s sister and brother-in-law had been granted asylum in Ireland and the Tribunal stated in its decision that it had regard to the decision of the Tribunal on their case from 2003. The Tribunal did not consider their status to be decisive.
The court quashed the Tribunal’s decision.
Reasoning:
The court held that, althought the Tribunal was entitled to reject the credibility of the applicant’s claim, it was incumbent on it to determine whether there was a future risk of harm. It had determined that she was a Tutsi, and Tutsis had been subjected for reasons of race and assumed political allegiance to persecution in the past and were considered to be “at risk” in British caselaw and operational guidance notes.
The Tribunal concluded on the basis of up-to-date information that it was unlikely that the applicant would be automatically at risk simply on the basis of ethnicity. The court therefore upheld that aspect of the Tribunal’s assessment. It also concluded that the Tribunal’s consideration of her fear of persecution as a failed asylum seeker as a Tutsi was in order.
Finally, the court turned to the Tribunal’s finding that, considering the applicant’s age and the country of origin information to hand, internal relocation to Kinshasa would be available to her.
It concluded that the evidence of past persecution suffered by the applicant as a twelve year old, and the continuing undercurrent of prejudice and discrimination against Tutsis in the DRC, were matters additional to the applicant’s Tutsi ethnicity that should have been considered by the Tribunal, particularly in respect of future persecution, and notwithstanding that her reasons for leaving the country were held to lack credibility.
Additionally, it held that the conclusion reached by the Tribunal about the relative safety of Tutsis in Kinshasa appeared to be unreasonable having regard to the tiny population of Tutsis that remained in the capital, all of whom were prominent and able to secure protection for themselves. The court held that the applicant did not fall into that category. On her return she would be alone and would not have the benefit of any protection afforded by status or prominence.
Decision:
Accordingly, the court concluded that the Tribunal had erred in its assessment of the applicant’s case, and quashed its decision.
In deciding whether or not the applicant, a Tutsi, was a refugee from the DRC and had a forward-looking fear of persecution there, the Tribunal was obliged to take into account the fact that she had suffered past persecution in that country, and the existence of a continuing undercurrent of prejudice and discrimination against Tutsis there, notwithstanding that her reasons for leaving the country had been held to lack credibility.
