The decision

H-TH15-WEC -V1
Appeal No :HX23903-01
MN (Risk-MDC) Zimbabwe CG [2002] UKIAT 02246


Heard at : Field House
Determination Promulgated
on : 6 March 2002

Dictated : 20 May 2002
....28th june 2002...........................


Mr K Drabu (Chairman)
Mr A G Jeevanjee
Professor B L Gomes Da Costa JP



The Secretary of State for the Home Department



For the Appellant: Ms K Cronin of Counsel, instructed by Steele Ford & Newton, Solicitor
For the Respondent: Mr D Ekagha, Home Office Presenting Officer

1. The Appellant is a citizen of Zimbabwe. He is an ethnic Ndebele who comes from the Nkete area of Bulawayo. He entered the United Kingdom on 16 May 2001 and claimed asylum on arrival. On 22 May 2001 the Respondent refused to grant asylum and made the decision to give directions for his removal from the United Kingdom to Zimbabwe for reasons set out in his letter of the same date. His appeal against the Respondent’s decision was heard by an Adjudicator (Mr Paul Chambers) on 16 October 2001 and in a written determination promulgated on 5 November 2001 the Adjudicator dismissed the appeal and gave his reasons for doing so.

2. On 17 December 2001 the Appellant was granted leave to appeal to the Tribunal. In its decision to grant leave the Tribunal (Dr H H Storey) said, “Arguably the Adjudicator was wrong not to make a finding of past persecution and to oppose the issue of current risk in the light of past persecution against the backdrop of increasing state repression against persons who have been involved with the MDC. The grounds disclose an arguable case with real prospect of success.”

3. We heard oral submissions from Ms Cronin and Mr Ekagha. Mr Ekagha for the Respondent argued that the Adjudicator’s conclusion was correct despite having found that the Appellant had been kidnapped. He submitted that the findings of fact made by the Adjudicator lack proper reasoning and he asked that we allow the appeal but direct it to be heard afresh by a different Adjudicator. When asked to specify the findings of fact which in his view lacked sufficient reasoning, Mr Ekagha was not able to do so. Ms Cronin argued that the findings made by the Adjudicator were clear and reasoned but his conclusions were flawed. She pointed out that paragraph 24 of the determination was “speculative” and “fanciful” and that the Adjudicator had erred in believing that in order to succeed in his claim the Appellant had to show that he had been individually targeted. She relied on the decision in Jeyakumaran v Secretary of State for the Home Department [1994] Imm A R 45. and submitted that if the Adjudicator had directed himself properly he would have concluded that the Appellant would be at real risk of persecution for a Convention reason on removal to Zimbabwe.

4. At the conclusion of the hearing we announced our decision to allow this appeal and we now give our detailed reasons for concluding that the Appellant has established his claim for asylum in the United Kingdom. Our conclusion is based partly on the findings of fact made by the Adjudicator on the claims of the Appellant and setting them into context of the objective evidence that was before us when we heard the appeal. It is also partly based on evidence which in our view the Adjudicator rejected without good reason and which we have accepted as credible.

5. In this appeal the Adjudicator had made the following findings. He had found that the Appellant was a member of the MDC and as a member the Appellant had given active assistance to the MDC. The Adjudicator had said that although the role played by the Appellant in the MDC was not of great significance but it may have brought him to the notice of the Zanu-PF. In August 2000 the Appellant and his friends were kidnapped by the War Veterans while they were playing football. They were not physically assaulted but they were held against their will. They were kidnapped at gun point, blindfolded and taken to a farm where they were detained for four days under armed guard and forced to sing political songs. After four days the Appellant escaped from the farm. In March 2001 while he was at an MDC rally the rally was attacked by the War Veterans and the police. The Appellant sustained injuries as a result of this attack. The Adjudicator also accepted that the Appellant’s mother was involved with the MDC and her involvement was known to the Zanu-PF. The Adjudicator did not accept that the two incidents amounted to persecution. He concluded that in neither of the incidents had the Appellant been targeted specifically. With respect we disagree with the Adjudicator on both counts. We find that the two incidents considered cumulatively did amount to persecution for a Convention reason. The harm inflicted upon the Appellant was serious and it was due to his association with the MDC. The harm was inflicted upon him by the state and those (the War Veterans) who, the objective evidence, establishes are working at the behest or at the very least with the protection of the authorities in Zimbabwe. We find that the Adjudicator was wrong to find on the evidence before him that the Appellant had not been persecuted in the past. He was equally wrong to determine the issue of current risk without regard for past persecution. In our view the Demirkaya principles were clearly applicable and relevant to this case. As the Tribunal said in granting leave to appeal, the past experiences of the Appellant had to be given due weight in evaluating the future risk of recurrence of such worse persecution against the backdrop of increasing state repression against those seen to be associated with the opposition. With regard to the Adjudicator’s conclusion on targeting, we find merit in the arguments advanced by Ms Cronin. It was clearly held in the case of Jeyakumaran that there is no requirement that a person be singled out for persecution to be a refugee. In our judgment the Adjudicator clearly mis-directed himself in this regard. The Adjudicator did not accept the Appellant’s evidence that on 1 May 2001 the Criminal Intelligence Organisation members visited the Appellant’s home looking for him. According to the Appellant he saw them coming from his living room window and he escaped out of the back of his house. The Adjudicator rejected this evidence saying “I do not accept if they had come to arrest him, that it would have been such a simple matter to have escaped undetected”. We do not see it that way at all - especially as there has been no inconsistency or embellishment of any kind in this part of the evidence or indeed in any other part of the Appellant’s evidence. The Appellant left Zimbabwe due to the fear caused by this visit and he fled his home in Zimbabwe and took shelter first in an aunt’s house and then in a friend’s house before coming to the United Kingdom. The Adjudicator did not accept the Appellant’s evidence that when he spoke to his parents after getting to the United Kingdom and asked them whether the Criminal Intelligence Organisation had visited again, he felt that “they are withholding something”. He rejected it saying that it “did not seem truthful”. No reason as to why it did not seem truthful has been given and again looking at the totality of the evidence including the young age of the Appellant, we accept his evidence on this point. We see no reason to disbelieve his assertions in this regard. The objective evidence does not contradict the real possibility of people in the circumstances of the Appellant being sought by the authorities at the time. Having reviewed all the evidence we concluded that the Appellant had by a narrow margin established his claim to asylum. The detailed knowledge shown by the Appellant about the MDC and its leadership structure has satisfied us that he was genuinely involved with the MDC and this involvement is reasonably likely to put him at real risk of persecution on removal to Zimbabwe. In the circumstances we do not find it necessary to consider the Appellant’s claim on the human rights aspect of this appeal. This appeal is allowed.

K Drabu
Vice President