FN (Risk, Relocation, MDC) Zimbabwe [2003] UKIAT 00163 (04 December 2003) [2003] UKIAT 00163

UKIAT
FN (Risk, Relocation, MDC) Zimbabwe [2003] UKIAT 00163 (04 December 2003)
[2003] UKIAT 00163 · 2003-12-04
[1]FN (Risk – Relocation – MDC) Zimbabwe [2003] UKIAT 00163 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 24 November 2003 Date Determination notified: 4 December 2003 Before Mr P R Lane (Chairman) His Honour D Holden Between FN APPELLANT and Secretary of State for the Home Department RESPONDENT For the appellant: Miss S Solomon, Counsel instructed by Messrs Asghar & Co, Solicitors For the respondent: Ms A Holmes, Senior Home Office Presenting Officer DETERMINATION AND REASONS The appellant, a citizen of Zimbabwe, appeals with leave against the determination of an Adjudicator, Ms Rebecca Caswell, sitting at Bradford, in which she dismissed on asylum and human rights grounds the appellant's appeal against the decision of the respondent to give directions for the appellant's removal from the United Kingdom.[2]The Adjudicator found that the appellant was a member of the MDC, who attended meetings and put up posters. He had been attacked by ZANU-PF youths and also held by the police for two days, during the course of which he was ill-treated. Along with others, the appellant was the subject of attempts by ZANU-PF supporters to coerce people into attending a ZANU-PF meeting in December 2001. Together with others, he refused, as a result of which ZANU-PF youths went on the rampage.[3]On the basis of those findings, it is contended on behalf of the appellant that the Adjudicator erred in finding that the appellant would not be at real risk of persecution in his home area. It is further contended that the Adjudicator was wrong to conclude that, in any event, the appellant could avail himself of internal flight to another part of Zimbabwe. The reason for this contention is that the appellant would, it is claimed, be at risk of being detained at the airport, as someone who has a record of detention, and he would therefore be unable to avail himself of the opportunity of re-locating to some other part of Zimbabwe.[4]The Adjudicator's findings are set out at paragraphs 19 to 29 of her determination. Those findings are, the Tribunal considers, both eminently fair and well reasoned. The Adjudicator found that, notwithstanding the matters referred to above (which she accepted had occurred), the appellant would not have left his wife and child in the house alone, once he left for the second and final time, if the risk had been as significant as he claimed.[5]It is submitted on behalf of the appellant that the Adjudicator failed to appreciate that the ZANU-PF supporters were interested in the appellant himself, rather than his wife and child, albeit that the wife was herself an MDC member. This submission, however, fails to meet the point that the Adjudicator, at paragraph 22 of the determination, observed that, on his own account, the appellant had said that the reason for at least one of the visits by ZANU-PF to the wife at the family home, after he had left, was "that they wanted to scare her". In the circumstances, the Adjudicator was perfectly entitled to conclude that the appellant's decision to leave his family behind showed that, in reality, he faced no real risk of persecution in his home area.[6]Likewise, the Adjudicator was entitled at paragraph 24 to find that, if ZANU-PF had taken the friend known as Japhet, then:
"this would have marked a substantial increase in the level of danger to [the appellant] and his family (over and above that experienced in December 2001), and I find he would have taken steps to remove them as well as himself."
[7]At page 16 of the appellant's bundle, page 12 of the US State Department report on Zimbabwe for 2002, we note that the security forces "searched homes and offices without warrants, and the government was believed to monitor some private correspondence and telephones." The Human Rights Watch report at page 70 of the bundle observes that:
"Security forces possess good information on MDC members and their movements. They would sometimes ask those they were beating for the location of particular individuals; and even if they did not get this information, reveal they already knew the answer."
[8]At 6.149 of the October 2003 CIPU assessment on Zimbabwe, it is stated that:
"Opposition political activists, particularly those belonging to the MDC, have been targeted and attacked by government supporters and war veterans since the Parliamentary elections in June 2000."
MDC activists are also reported to have been abducted, especially in rural areas. The MDC "claimed that 227 of their activists had been abducted and beaten. Some abductees were tortured and others later were found killed. Members of the security forces also participated in attacks on opposition activists and suspected supporters."[9]What the Tribunal derives from these and, indeed, the other objective materials on Zimbabwe is that, whilst it is possible for an MDC member and supporter who does not merit the description of an activist, nevertheless to find himself or herself in receipt of the adverse attentions of ZANU-PF thugs and/or war veterans, the evidence does not show that any member as such runs a real risk of harm that can be categorised as so serious as to be persecutory or in breach of Article 3 of the ECHR.[10]Accordingly, on the basis of the facts found by the Adjudicator, we do not find that she could in any sense be said to be plainly wrong in her finding that this appellant could return to his family without running a real risk of such persecution or harm.[11]Even if that were not to be the case, however, the Adjudicator was in our view manifestly entitled to conclude that the appellant could re-locate to another part of Zimbabwe (as he had, in fact, actually done), without running a real risk of coming to the adverse attention of ZANU-PF/war veterans.[12]The grounds of appeal contend that internal flight is, in fact, not an option since the appellant is likely to face hostile treatment upon return to Zimbabwe. He will be questioned at the airport and the fact of his previous detention will come to light. The grounds in particular assert that the Adjudicator at paragraph 27 of her determination pointed to no evidence to support her finding that there would not "be a record of detention against" the appellant "given that he was, on his own account, released after two days without charge".[13]Miss Soloman submitted that there was no evidence either way on this specific issued but that, given the overall nature of the Zimbabwean regime at the present time, the Adjudicator had been wrong to assume that there was no real risk that such records existed and would be discoverable as regards this particular appellant.[14]We find that the Adjudicator was entitled to say what she did at paragraph 27 of the determination. Whilst the evidence clearly indicates that activists are capable of being identified by the security forces and ZANU-PF supporters, within Zimbabwe, it is simply going to far to infer the Zimbabwean authorities have a record-keeping system which would make available to staff at the airport information upon those who have merely been detained, without charge. The burden of proof remains on the appellant. He has failed to show any evidence to support a finding that such a record-keeping system exists and is operated in Zimbabwe in the manner asserted. Although no failed asylum seekers are, at the present time, being forcibly returned by the British authorities to Zimbabwe, we are unaware of any evidence to show that air travel between the two countries has ceased or that there is otherwise a complete absence of Zimbabwean citizens travelling for whatever reason from the United Kingdom to Zimbabwe. Were there evidence that returnees are being subjected to the sort of scrutiny alleged in the present case, one would expect evidence of it to be produced.[15]This appeal is accordingly dismissed. P R Lane Vice President

Cited in 1 later judgment