EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord MacKay of Drumadoon Lady Dorrian Lord Marnoch	[2013] CSIH 8 XA31/11 OPINION OF THE COURT delivered by LADY DORRIAN in the application for Leave to Appeal under the Tribunals, Courts and Enforcement Act 2007 by GM Applicant; _______________

Act: Caskie; Drummond Miller LLP

Alt: Webster; Solicitor to the Advocate General

13 February 2013

Background

[1] The applicant is a citizen of the Democratic Republic of the Congo, who, after flying to the UK in about September 2009 on false documents, sought asylum. She was born in Kinshasa but moved with her husband to Eastern Congo. She claimed that rebel soldiers attacked the family home in about December 2008 and she does not know what happened to her husband or son. She herself was raped by the soldiers and detained in a camp where she was regularly abused. Government soldiers took possession of the camp in 2009 and their behaviour was no better. She was abused and raped as previously. Nuns helped her to escape to the UK. The respondent accepted that the applicant had been raped, but considered that it could have been an isolated incident, and did not accept the rest of her account to be credible. It was considered that she would not be at risk if she were returned to Kinshasa, a distance of at least 1,000 miles from the area in which she had been raped.

[2] An immigration judge found the material core of her account to be reasonably likely to be true. It was acknowledged that she would not be safe in Eastern Congo and the question thus was whether she could relocate to Kinshasa. The immigration judge noted:

"The case was presented on the basis that the appellant would be stigmatised by the rape itself and might not receive the support of her family (in Kinshasa) and in any event her mother would force her to testify which would put her in considerable danger."

[3] The immigration judge found that the assertion that the applicant would be ostracized by her family was not supported in evidence. He considered that her evidence that she would have no choice but to accede to her mother's demands to be "very slender, lacking in detail and highly speculative". He also considered the assertion that, if she reported the rapes, she might be beaten, to be speculative. He considered that she would not be at risk in Kinshasa and could safely relocate there. He therefore refused her appeal.

[4] She appealed that decision to the Upper Tribunal. The grounds of appeal were that the immigration judge had overlooked parts of the COIR reporting impunity against complaints of sexual violence and intimidation and sometimes punishment of the victim. It was asserted that it would be a simple matter for the soldiers who raped her to identify her in Kinshasa. At the hearing before the Upper Tribunal permission was given to add an additional ground of appeal that:

"It is contrary to the Refugee Convention to require a rape victim to modify her behaviour in order to avoid persecution and in order to avoid risk in DRC"

The grounds did not seek to challenge the finding that the risk of being forced to bring proceedings was speculative.

[5] The senior immigration judge held that any COIR evidence which had been overlooked was to the effect that rape complainants are badly dealt with in DRC, but this matter was not significant to the decision. The immigration judge had found, and was entitled to find, that there was no reasonable likelihood that she would complain. Furthermore, the immigration judge had found that the individuals who had raped her in the east of the country would not be interested in her or her whereabouts were she to be returned to Kinshasa. The senior immigration judge pointed to evidence from which the immigration judge was entitled to reach that conclusion and considered that "The risk, amid the chaos of DRC, must be vanishingly small."

Submissions for applicant

[6] In the application to this court for leave to appeal from that decision, it is accepted that it was open to the immigration judge and senior immigration judge to make the finding that the applicant would not seek the prosecution of her persecutors. However, they had both fallen into error in failing to address why that was so. Under reference to HJ (Iran) v Secretary of State for the Home Department 2010 UKSC 31, it was submitted that if a material part of the reason for her failure to seek prosecution was that by doing so she would once again be at risk of persecution, her failure to do so should be left out of account. Counsel were agreed under reference to Hoseini v Secretary of State for the Home Department 2005 SLT 550 and DKN v Secretary of State for the Home Department 2009 CSIH 53, that the test to be applied in an application for leave to appeal was whether there were real prospects of success or other compelling reasons, the former of these being relied upon in the present case.

[7] In HJ (Iran) it was held that if a gay man would choose to live his life discreetly as a matter of his own volition, then he would have no well-founded fear of persecution. On the other hand, if the reason for living discreetly was not choice, but fear of what would follow were he not to do so, then that amounted to a well‑founded fear of persecution. By analogy, it was suggested that if the reason why the applicant would not report the rapes was fear of what would happen to her, she should qualify as a refugee.

Submissions for respondent

[8] On behalf of the respondent it was argued that (a) the applicant was not a member of a protected social group for the purposes of the refugee convention; (b) that the case of HJ (Iran) did not apply to someone in the applicant's situation; and (c) in any event, there was no evidence that she, herself, wished to report the rape and by failing to do so would be forced to modify her behaviour to any degree.

Discussion

[9] We agree with the submissions for the respondent that this application must fail. There was in this case no evidence that the applicant wished to report the rape or that she would have done so but for the fear of violence which might thereafter ensue. On the question of reporting the rapes the senior immigration judge notes that the applicant was not inclined to do so, and that in any event it would have no beneficial result. In that connection, she was not able to identify her attackers as they were in the habit of masking their faces. The senior immigration judge also found that there was no reasonable prospect of the government personnel who had raped and abused her being traced and punished. He pointed out that even in countries with well‑developed criminal investigation and prosecution systems, many genuine rape allegations do not result in successful prosecution. There was, of course, evidence that her mother might attempt to pressurise her into reporting the rapes, but as we have said, there was no evidence that it would have been her own wish to do so and that she was deterred by fear of the consequences. The immigration judge found, and this is not challenged, that the evidence that she would accede to this pressure was slender and speculative. In para 17 of the immigration judge's decision it is made clear that the appellant's concerns about returning to Kinshasa were twofold: concern about having been abused by soldiers of her country, and worry about what she would tell her family. Nowhere was it asserted by her that she wanted to report the matter of the rapes, but was afraid to do so. We are satisfied that for this reason alone the application must fail.

[10] There is in addition a prior question, which was not fully addressed before us, namely whether the applicant is a member of a protected social group for the purpose of the Refugee Convention. This issue was not addressed at any stage in the proceedings until the morning of the hearing before us. The protected social group of which she was said to be a member was thus not identified before either tribunal nor was it identified in the application for leave to appeal. When this court raised the issue, counsel for the applicant submitted that the social group of which she was a member was that of "women who have been raped as part of the pattern of abuse of rape in the DRC, as a weapon of war". However, we were not referred to any authorities regarding identification of a social group and the matter was not the subject of further development. In the circumstances we wish to reserve our opinion as to whether the applicant can properly be viewed as a member of a protected social group.

[11] Moreover, we are not in any event persuaded that there is a true analogy between the position of someone such as the applicant and that of the appellants in HJ (Iran). In that case the court was concerned with something which was an immutable, inherent human characteristic. The rationale was that to expect someone to live his life in a way which was not of his own choosing, effectively to live a lie, was not reasonable. It related to fundamental aspects of an individual's personality which it would be unreasonable to expect them to subjugate. In short the court effectively concluded that to expect a gay man who would not otherwise choose to live his life that way, to live discreetly and "hidden", would place an intolerable burden on him. However, even if the applicant had established that the reason for her not wishing to make a complaint to the authorities was fear of the consequences we do not consider that its suppression can be said to impose such a burden, at least in circumstances where there is such a paucity of evidence that even under a developed criminal justice system there would be no realistic prospect of success. The position might, we suppose, be different if there was clear incriminating evidence, for example, where a family member was involved. On that matter we again reserve our opinion.

[12] For the foregoing reasons we shall refuse leave to appeal.