NM (MDC, NGO Worker, Risk on Return) Zimbabwe [2004] UKIAT 00173 (18 June 2004) [2004] UKIAT 00173

UKIAT

NM (MDC, NGO Worker, Risk on Return) Zimbabwe [2004] UKIAT 00173 (18 June 2004)

[2004] UKIAT 00173 · 2004-06-18

[1]APPEAL No. NM (MDC, NGO Worker, Risk on Return) Zimbabwe

[2004] UKIAT 00173

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 13 May 2004 Date Determination notified: 18 June 2004 Before Dr H H Storey (Vice President) Mr R Hamilton Mr A A Lloyd, JP Between NM APPELLANT and Secretary of State for the Home Department RESPONDENT Mr L Jackson of counsel instructed by South West Law for the appellant; Mr G Elks, Home Office Presenting Officer, for the respondent DETERMINATION AND REASONS The appellant is a national of Zimbabwe. She appeals the determination of an Adjudicator (Mr Richard J. Whiting) dismissing her appeal against a decision giving directions for removal following refusal to grant asylum.

[2]The basis of the appellant's claim was that she was a member of the MDC married to an MDC activist. She had attained a Master's degree in sociology from the University of Zimbabwe and had worked in Bulawayo as well as in the extreme east of Zimbabwe. She had been employed by an AIDS trust organisation called Family AIDS Caring Trust (FACT) in Mutare in the Eastern Highlands. Before the 2002 elections ZANU-PF introduced restrictions on the distribution of food through other than government agencies. The appellant, however, continued to distribute food and blankets despite these restrictions. In May 2002 war veterans threatened her with violence. In June 2002 the appellant ceased distributing aid herself but made it known it could instead be collected from her office. In September 2002 five men came to her house in Mutare. They attacked and struck her several times. They threatened her with a severe beating if she did not stop distributing food and returned to her home are in Bulawayo. The incident was reported to the police without result. On 23 November 2002 the appellant went with her husband to visit her mother-in-law in Fort Rixon. Five men came to the homestead and assaulted the appellant and her husband. She assumed they were from the CIO by virtue of the vehicle they drove. It was this incident that decided the appellant to leave the country.

[3]The Adjudicator accepted that the appellant was employed by FACT as claimed. He did not make a precise finding that the appellant was an MDC member and that her husband was an MDC activist. However it is sufficiently clear that these were aspects of her account which he accepted. At paragraphs 15-17 he addressed doubts raised by the respondent concerning her lack of detailed knowledge of MDC affairs and policies, her lack of detailed knowledge of ARV drugs used to treat HIV/AIDS sufferers, her travel on occasions outside the country and the precise location of the assault the appellant claimed to suffer in September 2002. He clearly saw these doubts as having been resolved.

[4]The Adjudicator also accepted that in November 2002 the appellant was assaulted whilst at the home of her mother-in-law in Fort Rixon and sustained injuries which resulted in hospital treatment. However, he considered that the appellant had failed to demonstrate that those who attacked her intended to deter her from her activities. The appellant had failed to give an explanation as to how her assailants might have come to know of her presence in Fort Rixon at that time, and where she had been before only a few hours before the attack. Noting that the appellant was not consistent about how long her husband had been hospitalised as a result of the attack in November (saying it was five days in one statement and three days in other statement), the Adjudicator continued:

'22. After the incident the appellant is recorded in a letter from her employer [G.I.] as having left that employment "unceremoniously" at the end of November 2002. Her address at that time on the hospital records was that of her parents in the suburb of Montrose, Bulawayo. It is at her parent's home that her two children were left at the time of her journey to the UK. I am unable to accept for the reasons recorded that the assault upon the appellant were those attributed by her , being her work in distributing aid in the eastern highlands of Zimbabwe. If her husband was assaulted at the same time as the appellant then given, firstly, his active role in support of the MDC, and secondly, the location of the attack being at his mother's house, the attack would appear to be more likely than not, related to his active MDC membership. Alternatively the attack could equally be part of the level of lawlessness endemic in the country. As the appellant said in evidence, "If every Zimbabwean who got beaten up left the country, there would be no-one in the country".'

[5]He then went on to find that he could not accept her claim to have been persecuted because of her political opinion since her own contention was that she had been persecuted on the basis of her work with the NGO (FACT) and her role within that organisation. He stated:

'I do not find that difference a matter for adverse credibility, but explicable by way of exaggeration made on her behalf in order to strengthen her claim for asylum.'

[6]Having dismissed the asylum grounds of appeal the Adjudicator went on at paragraph 33 to dismiss the Article 3 grounds of appeal as follows:

'The appellant has ceased to work for FACT in the circumstances recorded above. She has stated the real reason that she was intimidated and assaulted, within the circumstances stated above, was because she was distributing food and blankets to recipients in a manner which was contrary to Zimbabwean law, however repugnant such restriction may be to objective observers. The official and unofficial government agents have achieved their aim. Should she return to Zimbabwe and continue to employ her undoubted talents in support of individuals suffering from HIV/AIDS in such a way as not to offend against such legal restrictions she would not be at real risk of severe ill-treatment which would breach Article 3.'

[7]The grounds of appeal contended that the Adjudicator had erred procedural and substantially. Procedurally he erred in failing to put his doubts as to the appellant's credibility in respect of aspect of the Fort Rixon incident to the appellant. Substantively, he should have made a finding of past persecution, given his acceptance of the two attacks on the appellant in September and November 2002. In rejecting the appellants claim to have been targeted for political reasons, the Adjudicator misunderstood Counsel's submissions which were not that the only reason why she was targeted was her NGO activities but that this was the main reason. In any event, in rejecting that her NGO activity was perceived by ZANU-PF as political opinion, the Adjudicator failed to attach weight to the expert evidence of Professor Ranger which specifically addressed the political reasons behind the clamp-down on NGOs involved in food and aid distribution. Issue was also taken with the Adjudicator's apparent imposition at paragraph 33 of a requirement that the appellant in her future work on behalf of HIV/AIDS sufferers refrain from actions which would "offend against legal restrictions [on food distribution] however repugnant such restriction may be to objective observers".

[8]In amplifying the grounds Mr Jackson highlighted the Adjudicator's improper reliance at paragraph 22 on the civil standard of proof. He urged the Tribunal to allow the appeal outright.

[9]Mr Elks on behalf of the respondent did not seek to defend the Adjudicator's principal findings of fact. He urged us rather to remit the appeal in order for proper findings of fact to be made.

[10]We agree with Mr Jackson and Mr Elks that there are inadequacies in this determination. Subject to one caveat which we deal with below we do not see anything in Mr Jackson's point about procedural failings. It is true there was no Presenting Officer present at the hearing, but the respondent in the Reasons for Refusal Letter had challenged credibility and hence the appellant and his representatives were on notice that the appellant had to establish the truth of her claim. However, there were substantive failings. He failed to make specific findings on the expert report of Professor Ranger. He also failed to make specific findings in respect of the appellant's husband and in particular whether he was also attacked and hospitalised in November 2002. However, as we have already indicated, it is sufficiently clear that the Adjudicator found the appellant generally credible and that he accepted that she had been attacked by official and/or unofficial government agents on two occasions in September and November 2002. Furthermore, we consider the Adjudicator gave sound reasons (not challenged by way of a respondent's notice) for accepting much of the appellant's account. He was quite entitled to consider that the appellant had satisfactorily explained her limited knowledge of MDC policies and/or ARV drugs and had satisfactorily clarified a detail about the location of the September 2002 assault. We would also observe that the appellant had placed before the Adjudicator impressive documentary evidence in the form of a letter dated 16 May 2003 from the Director of FACT confirming the appellant's employment as a Regional Training Co-ordinator and later as a Senior Training Co-ordinator who "left unceremoniously due to what she perceived to be a threat to her life and family" and wage slips from the same employer. Thus we do not see any proper basis for interfering with the Adjudicator's positive finding.

[11]That leaves (and raises next) the issue of whether the Adjudicator was entitled to reject aspects of the appellant's evidence. In this regard we also see no basis for interfering in his expressed doubts as to whether the appellant's husband was assaulted and hospitalised in November 2002.

[12]However, we have serious concerns about the Adjudicator's treatment of the appellant's evidence relating to the motivation behind the assault on her on the same occasion in November 2002. On the one hand he accepted that she had been assaulted ad hospitalised by five men. On the other hand he did not appear to accept that the attack was carried out by official and/or unofficial government agents. We say "appear" because his findings on this point are not wholly unambiguous. At paragraph 33 he implies an acceptance that her attackers, whom he said had "achieved their aim", were "official and unofficial government agents". However, at paragraph 22 cited earlier he states that "[a]lternatively the attack could equally be part of the level of lawlessness endemic in the country".

[13]We do not consider that the Adjudicator, particularly having accepted the fact of the assault by five men on the appellant in 2002, was entitled to draw the inference that this further incident was simply a random or lawless attack.

[14]It may be, as Mr Jackson contended, that the Adjudicator became confused at this point of his determination as a result of a failure to apply the proper standard of proof of a reasonable degree of likelihood. Certainly his reference at paragraph 22 to one scenario being "more likely than not" betrays confusion. However, it seems to us that whatever the degree of confusion over the standard of proof, the Adjudicator simply forgot at this point to take proper account of the surrounding circumstances which he had, broadly, accepted. These circumstances were at follows. Within a few hour of her arrival in Fort Rixon after a journey of some 390 miles, she was attacked. The car used by her attackers belonged to a CIO official in Fort Rixon. The principal reasons the Adjudicator gave for rejecting the conclusion that her attackers were official or unofficial government agents were twofold: that the assailants had not (as had happened in September) identified themselves to the appellant and that the appellant had failed to offer any explanation as to how her attackers might come to know of her presence in Fort Rixon. As to the failure of the assailants to identify themselves, we consider that in this respect the Adjudicator was overly forensic. If they had seen fit to turn up in a car identifiable as a CIO car from Fort Rixon, that would appear to be enough by way of self- "identification". In any event, the objective evidence relating to attacks carried out by ZANU-PF and war veterans does not indicate that these bodies of individuals always or even mostly identify themselves. Given that under Zimbabwean law violent attacks on a person are criminal offences, it is perhaps easy to see why, even in a climate of impunity, such organisations or individuals would not always state who they were or why they were doing what they were do doing.

[15]Turning to the Adjudicator's other reasons for rejecting the appellant's claim that she had been targeted by official or unofficial state agents on this occasion, we agree that this is something that the appellant did not give an explanation for. However, it was sufficiently clear from her account, which we emphasise the Adjudicator found generally credible, that her NGO activities had attracted the adverse attention of the Green bombers on at least one occasion. In such circumstances we consider the Adjudicator was not entitled to rely, as a reason for rejecting the appellant's account, on the appellant's failure to explain a doubt which was never put to her. This is what we meant when we referred earlier to the one caveat we had regarding his procedure at the hearing. If the Adjudicator thought fit not to raise this matter with the appellant, he should in our view have himself considered other possibilities, including the possibility that the attackers had followed the appellant or had been alerted by unofficial or unofficial government agents elsewhere that the appellant (and her husband) was visiting Fort Rixon.

[16]We are conscious that the Tribunal does not lightly interfere with an Adjudicator's findings of fact. What we are presented with in this case, however, is an Adjudicator who makes general and specific positive credibility findings but holds back, on the strength of tenuous doubts not properly put to the appellant, from accepting that the November 2002 attack was in fact as a result of targeting by official or unofficial stage agents who had already threatened her with violence if she continued (as she did) with distribution of food and aid without going through government channels. Furthermore, having found the Adjudicator's findings in respect of this incident unsustainable, we consider we are in a position to decide the matter for ourselves, based on a closer appreciation of the circumstantial evidence.

[17]In considering the matter for ourselves, we also have regard to the evidence of Professor Ranger. Although noting that the Professor's report was before him, the Adjudicator made no further reference to it. Not only was that an error, but in our view the report was one which merited serious consideration. The Professor looked very carefully and in detail at the appellant's case, working broadly with the same factual premises as did the Adjudicator. We consider it salient to refer to the following passage in particular. Having noted objective evidence indicating that during the relevant period the Mugabe government and associated bodies took steps to prevent NGOs from distributing food and aid without going through government channels, the Professor wrote:

'For the past 18 months NGOs have been a major target of the Zimbabwean state. Legislation has been introduced to control their registration and operation; non-Zimbabwean officials in foreign agencies have been denied work permits; Zimbabweans working for them have been warned and threatened.'

'I have been told by my friends in NGOs – three young and middle aged women – how they have been threatened and warned and of how on occasion they have had to withdraw their workers from situations of violence, rape and hunger. As it happens, my paper for today's date – the Independent – carries a very relevant story. Headed "Mugabe orders aid agencies to surrender food" it describes how "the United Nations and other relief agencies" have been told "to surrender their emergency food aid to ruling part officials". The World Food Programme and its "partner NGOs" have been assisting on distributing food on a non-partisan basis. This is now to stop.'

[18]In our view close attention to this expert report afforded further evidence in support of the appellant's view that she had become a target for official and/or unofficial agents and that the November 2002 attack was a further instance of this attack.

[19]Accordingly we consider that the appellant had demonstrated a reasonable likelihood that she left Zimbabwe as a result of being targeted by official or unofficial government agents.

[20]Turning to the issue of current risk, we note that the Adjudicator had already established as a fact that the appellant would upon return seek to continue her NGO activity. Given her employer's vindication of her strength of commitment, we consider that was an entirely proper finding.

[21]Mr Jackson has complained about the Adjudicator's rejection of his submission that there was a Refugee Convention ground of political opinion at play in this case. We make no specific findings and conclusions on whether the Adjudicator properly understood the submissions put to him regarding this matter. It may well be that these submissions were that there were more than one political opinion dimension, one relating to the appellant's MDC involvement the other relating to her NGO activities. However, in view of the Adjudicator's identification of an inconsistency in the appellant's evidence relating to her husband, we shall proceed on the basis that the Adjudicator was justified in rejecting the claim that the appellant was targeted because of his MDC activities. Mr Jackson sought to rely on the Adjudicator's reference to it being "more likely than not" that the November 2002 attack on the appellant was related to his active MDC membership. However, this was prefaced by the words "If her husband was assaulted at the same time". This cannot be equated with a firm finding; it was simply an analysis of what would be the case if it were accepted the husband had been assaulted.

[22]Thus if the appellant is to succeed on the evidence as we have analysed it, it must be on the basis that the appellant's NGO activities were indeed perceived in political terms.

[23]We think the Adjudicator was wrong to reject the appellant's evidence regarding this. Once it is accepted (as we have) that the November 2002 incident was part of a continuation of the adverse interest in her on the part of the official or unofficial government agents, it is only a very small step to recognising that her attackers viewed her in political terms.

[24]Even if we put to one side the issue of whether in November 2002 her attackers were viewing her in political terms, the Adjudicator had accepted that in September they had sought to halt her food distribution to AIDS/HIV sufferers. In the light of the expert evidence of Professor Ranger, we consider that the authorities and those who are connected to them, ZANU-PF, war veterans, Green Bombers in particular, plainly do perceive NGO food distribution activities conducted outside their control in political terms. To put it bluntly, they see such activity interfering with their attempts to control food distribution seen as a reward for voting and supporting ZANU-PF.

[25]So far as current risk is concerned, before we can decide whether there would again be a Refugee Convention ground of political opinion, we have to address the difficulty that the Adjudicator considered that it would be open to the appellant to avoid food distribution contrary to government restrictions. We entirely agree with Mr Jackson on this point that the Adjudicator was wrong to effectively require the appellant to act in a way which was contrary to her own political personality. The evidence was that the appellant was a committed aid worker who would continue to work in this same field upon return. If the appellant had found it necessary for genuine reasons to act against government restriction in the past, it was reasonably likely she would act in the same way upon return. The Adjudicator should have borne in mind the need, as explained by Buxton LJ in Danian [2002] ImmAR "to address the critical question : if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum (emphasis added)."

[26]Thus we consider first of all that it would be reasonably likely the appellant would once again disregard government restrictions on food distribution and, secondly, that this would lead to further adverse attention from official and/or unofficial agents of the Mugabe government.

[27]We would add, as an aside, that although we have decided this case on the basis that the Adjudicator was entitled to discount, as a risk factor, the appellant's husband's active MDC involvement, given that the Adjudicator found the appellant broadly credible, he should, in our view, have recognised that this was an additional risk factor.

[28]For the above reasons, we have decided to allow this appeal. H.H. STOREY VICE PRESIDENT