ILS DISENT QUILS SONT CONGOLAIS MAIS ILS NE SONT PAS , MAIS QUI SONT ILS? LES BANYAMULENGES!!! REFUGEE STATUS APPEALS AUTHORITY NEW ZEALAND REFUGEE APPEAL NO 76342 AT AUCKLAND Before: B L Burson (Member) Counsel for the Appellant: C Curtis Appearing for the Department of Labour: No Appearance Date of Hearing: 15, 30 & 31 July 2009; 24 & 25 March 2010 Date of Decision: 23 April 2010 ___________________________________________________________________ DECISION ___________________________________________________________________ [1] This is an appeal against a decision of a refugee status officer of the Refugee Status Branch (RSB) of the Department of Labour, declining the grant of refugee status to the appellant, a national of the Democratic Republic of Congo (DRC). INTRODUCTION [2] This is the appellant’s second appeal to the Authority. The appellant arrived in New Zealand on 11 October 2007. He lodged a claim for refugee status on 23 October 2007 (“the first claim”). He was interviewed by the RSB in respect of the first claim on 10 December 2007, 3 and 4 January 2008. By decision dated 31 March 2008 the RSB declined the appellant’s first claim. The appellant appealed to the Authority. By decision dated 1 October 2008 the Authority (differently constituted) dismissed the first appeal. [3] On 23 December 2008, the appellant lodged a second claim for refugee status. He was interviewed by the RSB in respect of his second claim on 2 20 February 2009. By decision dated 21 April 2009 the RSB declined jurisdiction to hear and consider his subsequent claim. The appellant again appealed to the Authority. [4] Because this is the appellant’s second appeal, the appellant must first establish that the Authority has jurisdiction to hear the appeal. JURISDICTION OF THE AUTHORITY TO HEAR THE APPEAL [5] Section 129O(1) of the Immigration Act 1987 (which came into force from 1 October 1999) (“the Act”) provides: “A person whose claim or subsequent claim has been declined by a refugee status officer, or whose subsequent claim has been refused to be considered by an officer on the grounds that the circumstances in the claimant’s home country have not changed to such an extent that the subsequent claim is based on significantly different grounds to a previous claim, may appeal to the Refugee Status Appeals Authority against the officer’s decision.” [6] To address this issue, the Authority must compare the appellants original claim and his second claim. Unless the appellants second claim is based upon significantly different grounds, the Authority will not have jurisdiction to consider the second appeal: see Refugee Appeal No 75139 (18 November 2004). [7] Where jurisdiction to hear and determine the subsequent claim is established, the Authority must consider the merits of the subsequent claim in order to determine whether the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. This hearing may be restricted by the findings of credibility or fact made by the Authority in relation to the previous claim. That is because s129P(9) of the Act prohibits any challenge to a finding of fact or credibility made by the Authority in relation to a previous claim and the Authority has a discretion as to whether to rely on any such finding. [8] In this appeal, therefore, it is proposed to consider the appellants original claim and his further claim, as presented at the second appeal, with a view to determining: (a) whether, in terms of s129O(1) of the Act, the Authority has jurisdiction to hear the second appeal and, if so, (b) whether the appellant is a refugee within the meaning of Article 1A(2) 3 of the Refugee Convention. The first claim [9] The appellant’s first claim was based on allegations that he had been involved in various political activities opposed to the president of the DRC, Joseph Kabila. He claimed to have joined a church lead by a pastor opposed to Kabila. He also claimed to have joined an opposition party, the Mouvement de Liberation de Congo (MLC) and that his brother, who had been the MLC treasurer and righthand man of its leader, was killed in fighting between MLC forces and pro-Kabila government forces in March 2007. He further claimed to have been detained on two separate occasions in 2006 and 2007. He claimed that in 2007 during his second detention of some two to three months’ duration he was subjected to torture to the point of being hospitalised. He claimed to have escaped from the hospital and thereafter travelled clandestinely to Congo Brazzaville before travelling to New Zealand via South Africa on a false passport. [10] The Authority hearing the first appeal found that the appellant had been involved with the church but rejected as not credible his account of being involved with the MLC, his being detained and tortured, and his account of the death of his brother. The second claim [11] The appellant’s second claim is based on his ethnic identity as a Banyamulenge. The Banyamulenge are Congolese Tutsis who historically originated in Rwanda and who have suffered harassment and periodic persecution at the hands of Congolese ethnic groups. The appellant claims that following the determination of his first claim, inter-communal fighting in the east of the DRC has erupted making it unsafe for all Banyamulenge. Although he is only part- Banyamulenge, his facial features resemble those of a Banyamulenge and this is enough to expose him to harm at the hands of the Congolese population who harbour resentment and animosity towards Banyamulenge. Also, during the course of the hearing, the appellant was diagnosed with Type 1 diabetes. He claims he will be discriminated against in accessing health care services and medicines he needs to control his diabetes. He also fears he will be denied Congolese nationality. Finally, the appellant asks the Authority to revisit the finding made by the previous panel in respect of the death of the person he claimed to be his brother in light of fresh evidence. 4 Assessment of jurisdiction [12] On 15 July 2009, the Authority determined in a preliminary ruling that it has jurisdiction to hear this appeal. The appellant’s second claim is founded upon a resumption of large-scale fighting between protagonists in the conflict raging in eastern Congo in late August 2008. As will be discussed in more detail in due course, this outbreak of fighting is no more than the latest round in a conflict which has plagued the DRC on an ongoing and episodic basis since at least 2003. However, at the time of the Authority’s decision in respect of the first appeal, there was a temporary lapse in fighting between the protagonists as a result of diplomatic efforts in late 2007 and early 2008 – see International Crisis Group Congo: Five Priorities for a Peacebuilding Strategy (11 May 2009) at p2. This resumption of conflict, coupled with the claim now being advanced on the ground of ethnicity (race), meant that the Authority was satisfied that circumstances in the DRC have changed to such an extent from that which pertained in October 2008 and that the appellant’s second claim is based on significantly different grounds to his first. Preliminary issue – the question of the appellant having Canadian nationality Background [13] On 9 September 2009, while the Authority was in the process of finalising its decision, the Authority received a letter from the RSB dated 8 September 2009 advising that it had received information that the appellant may in fact hold Canadian nationality. The significance of this is that in order to be recognised as a Convention refugee, the appellant must establish that he has a well-founded fear of being persecuted for a Convention reason in respect of each of his countries of nationality. No final determination of this appeal could therefore be made unless a finding was reached as to whether the appellant was a national of Canada in addition to being a national of the DRC. [14] On 24 September 2009, the Authority received from the RSB copies of fingerprints taken from the appellant for forwarding to the Canadian immigration authorities for comparison with the fingerprint evidence of the person whose passport the appellant used, together with a copy of the interview report completed following an interview by Immigration New Zealand (INZ) with the appellant 19 August 2009. In this interview, the appellant denied being a Canadian national but admitted entering New Zealand on a Canadian passport belonging to a person he 5 claimed was his cousin. [15] In her letter of 10 December 2009, counsel referred to the impact the stress of waiting for the outcome of the investigations was having on the appellant’s health problems. In early August 2009, the appellant had been hospitalised following a diagnosis of Type 1 diabetes. Counsel now advised that on 8 December 2009 the appellant was found “near a coma” at the hostel where he lives. On 15 December 2009, the Authority received a further letter from counsel submitting a Patient Report form completed by St John’s dated 8 December 2009. The appellant is noted as becoming hypoglycaemic and shaking because he had “not eaten all day”. The report notes: “Refugee – problems with getting food/money”. [16] Attached to counsel’s letter of 10 December 2009 were copies of a series of emails between counsel and Mr MacRae, a compliance officer with INZ’s Compliance Operations Branch. In an email to counsel dated 24 November 2009, but not copied to the Authority, Mr MacRae states: “The Canadians indicated that an initial search had not resulted in a match for [the appellant’s] fingerprints. However, we are currently awaiting a definitive response from the Canadians of the results of an extended search. It is anticipated that the outcome will be available in the not too distant future. I hope to be in a position to advise you further before very long.” [17] Having regard to the ongoing health problems being experienced by the appellant, as a result of his diabetes, and the pressure being placed on the Auckland Refugee Council who, by letter dated 2 September 2009, had written regarding the large cost to the ARC of subsidising and assisting the appellant in managing his diabetes, the Authority determined that this matter should be relisted to hear further evidence as to the issue of the appellant having Canadian nationality. Accordingly, the Authority set the matter down for hearing on 24 and 25 March 2010, this being three months after Mr MacRae’s email to Ms Curtis and sufficient time for INZ to submit such further information it received from the Canadian authorities. Despite requests being made of INZ for any further information regarding the investigations being made with the Canadian authorities, as at the date of the reconvened hearing in late March 2010, no further information had been received from INZ. [18] At the reconvened hearing, the appellant repeated the account he had 6 given to Mr MacRae. The appellant explained that, fearing for his safety, he fled to Congo Brazzaville by boat where he stayed with a friend of a cousin. His cousin arranged for a false passport to be obtained for him and, using this passport, he fled to South Africa. In South Africa he contacted another cousin who was, by that time, a Canadian citizen and arranged with his cousin to borrow his Canadian passport to come to New Zealand. His cousin was approximately the same age, shared the same surname and they looked very similar. The appellant duly entered New Zealand using this passport. The appellant explained that, as a result of telling the truth about this assistance his cousin gave him, his cousin is now under investigation by the Canadian authorities for having allowed the appellant to use it in this way. This has caused his cousin’s father (the appellant’s paternal uncle) to become very angry with him. This uncle had been looking after the appellant’s children in the DRC but is no longer doing so. They are now being cared for by the appellant’s fiancée, AA, and an email to this effect was produced. Determination of the preliminary issue [19] The Authority is not satisfied on the evidence before it that the appellant holds Canadian nationality. The fingerprint evidence available is that the appellant’s fingerprints and those of the Canadian national whose passport he used to enter New Zealand do not match. While the email from Mr MacRae dated 24 November 2009 talks about further inquiries being made, the Authority has been provided with no further information by INZ as to those inquiries and how they could potentially outweigh the fingerprint evidence. Noting the appellant’s account to the Authority was consistent with what he told Mr McRae, the Authority finds that the appellant is a national of the DRC only. [20] What follows, therefore, is a summary of the evidence given in support of this second claim in relation to the DRC. An assessment follows thereafter. THE APPELLANT’S CASE Evidence of the appellant [21] The appellant was born in the mid-1960s. His father is an ethnic Nande, an ethnic Congolese tribe originating from the west of Congo. He is the pastor in a church in DRC. The appellant’s mother is from North Kivu, in eastern Congo, and is a Banyamulenge. The Banyamulenge are mainly Tutsis of Rwandan origin who 7 migrated to the DRC over the last 150 years. The Banyamulenge mainly live in the eastern parts of the DRC. [22] The appellant’s surname is an ethnic Nande surname. He cannot speak the Banyamulenge language apart from understanding basic commands that had been given to him by his mother. He does not converse in that language. Rather, he is fluent in the four national languages of the DRC and in French. However, his facial features are ones he inherited from his mother’s side. Whereas ethnic Congolese tribal groups have round faces, the facial features of Banyamulenge Tutsis are narrower and, accordingly, he is readily identifiable as a Banyamulenge. [23] The appellant undertook his primary schooling in Kinshasa at his father’s parish. At secondary school level he was sent to a boarding school in Bandundu province. In the late 1970s, his parents moved from Kinshasa to a town in Bandundu province. The appellant returned home from boarding school during the school holidays. Following completion of his secondary schooling in 1984, the appellant attended university and obtained his degree in 1992. [24] Following completion of his degree, the appellant began teaching at a secondary school attached to his father’s church. The appellant married in 1994, and taught at this school until 1997. At this time he decided to cease teaching, because it was poorly paid, and became a street-trader travelling between Kinshasa and towns near the Angolan border to trade his goods and purchase small quantities of diamonds to fund purchases of further goods in Kinshasa. [25] By 2000, the appellant was tired of this work which was hard and dangerous. By now he had three small children. During 2001, the appellant travelled from Kinshasa to Kivu in eastern DRC on a number of occasions to try and find better employment. While there he stayed at his mother’s familial village. Eventually, his persistence was rewarded and he was offered employment at an educational institute called ABC. ABC ran both primary and secondary schools as well as an orphanage. Although the children in the orphanage were primarily Banyamulenge, there were also Rwandan and some ethnic Congolese children. The appellant’s principal role was to travel around the Kivu region and identify children who had been orphaned or abandoned as a result of conflict in the region. [26] Whilst working at ABC, there was conflict between the Democratic Forces for the Liberation of Rwanda (FDLR) – a Rwandan hutu militia comprised in part of members of the Hutu interahamwe largely held responsible for the genocide of 8 Tutsis and moderate Hutus in the Rwandan genocide in the mid-1990s, the forces of Laurent Nkunda – a Tutsi Brigadier in the Rwandan-backed rebel group the Congolese Rally for Democracy (RCD), and the Congolese national armed forces loyal to President Joseph Kabila. This resulted in many deaths and mass displacement of civilians. The appellant travelled to internally displaced persons’ (IDP) camps in the outlying countryside in the wake of armed conflict. While the FDLR blocked access by international humanitarian organisations and international organisations, it tended to allow locally based non-governmental organisations (NGO) access. ABC was one such NGO and the appellant and his colleagues travelled to IDP camps after UNHCR-secured humanitarian corridors. The appellant’s role was to identify children abandoned or orphaned as a result of the fighting and bring a list of those children back to the head of the school who tried to accommodated as many as possible in the orphanage. In the event that there was too great a number of children their details were given to United Nations (UN) agencies or international NGOs. [27] The appellant’s family remained living in Kinshasa during this time as periodic fighting made it too dangerous for them to come to the eastern part of the DRC. The appellant worked in this capacity until March 2007 at which point he returned to Kinshasa. While he was in Kinshasa, his brother, BB, was killed. BB was a well-known businessman and a right-hand man to Jean-Pierre Bemba, who had stood against Joseph Kabila in the disputed 2006 presidential election. His brother was killed in post-election violence between the armed forces and guards loyal to Bemba. [28] The appellant fears being persecuted if returned to the DRC for two reasons. First, while it is the case that there were tensions between Banyamulenge and other Congolese ethnic groups in the past, the situation has now worsened following the resumption of conflict between Laurent Nkunda and the Congolese army in the eastern part of the country in October 2008. No matter where the appellant would be in the DRC he would not be safe from attack by members of the Congolese population who see Banyamulenge as Rwandan and blame them for waging wars against the Congolese people inside the DRC. Whereas, before, the fact that he could speak the Congolese national languages protected him from the previous bouts of anti-Banyamulenge violence, now mere facial similarity suffices.
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