[2003] UKIAT 197
- Case title: TN (Assessment of evidence)
- Appellant name: TN
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Zimbabwe
- Judges: Mr J Freeman, Mrs L Verity
- Keywords Assessment of evidence
The decision
JD
Heard at Field House on
TN (Assessment of Evidence) Zimbabwe [2003] UKIAT 00197
9 December 2003
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 11.12.2003
Issued: 16/12/2003
Before:
Mr. J. Freeman (chairman)
Mrs. L. H. S. Verity (legal member)
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT
and
CLAIMANT
For the Secretary of State: Mr. J. Wyatt
For the claimant: Mr. G. Rodwell, solicitor, Southern & Co, Nelson
DETERMINATION AND REASONS
This is a Home Office appeal against decision of the adjudicator, Mr. K. S. Levin, sitting at Manchester on 20 May, allowing a asylum and human rights appeal by a citizen of Zimbabwe. The adjudicator was seriously hindered by the unexplained absence of a presenting officer, and whatever may have to be said about the merit of his decision, he did a very conscientious job of work reaching it.
2. We shall turn straight to the history of this case. The claimant is a member of the Ndebele tribe and the family has their own farm in that part of Zimbabwe. The claimant mentions at paragraph 3 of her witness statement that, in the early 1980s when she was only a small child, ‘my father was apparently fighting to protect his farm when he was brutally murdered. Despite threats, my mother kept possession of the farm’. In that statement, she blames the Shona tribe generally for that, though the adjudicator found that the notorious Fifth Brigade of the Zimbabwean armed forces had been involved. At all events, this was clearly an early attempt by the other side, however defined, to gain possession of the farm.
3. The next seventeen years passed without serious incident until 7 June 2000, when the claimant says her brother Bekithemba ‘was brutally murdered by war veterans who were trying to take over our family farm’. That incident was specifically accepted by the adjudicator at paragraph 16. He goes on,
I further accept the credibility of the appellant’s claim that on 12 August 2000, six war veterans visited the family farm and threatened they would kill the appellant if her mother did not hand over the deeds to the family farm.
and at paragraph 17,
I further find that it was as a direct consequence of the incident which occurred on 12 August 2001 when the war veterans threatened to kill the appellant if the deeds to the family farm were not handed over to them which led to the appellant fleeing Zimbabwe on 27 September 2000.
It is quite clear from those dates that the adjudicator there meant to refer to the same incident on 12 August 2000, and not 2001.
4. It is agreed the claimant left Zimbabwe by air, on her own passport. Since that time she has occasionally heard from her mother, and her cousin who is living with her. They have gone to Beitbridge on the South Africa border and, in the absence of a presenting officer, the adjudicator quite rightly took up the Q of whether internal flight to there was possible. He goes on to say this at paragraph 18:
Pertinently, the appellant in her evidence, told me that the only way that her mother and cousin could buy food at Beitbridge was to join the Zanu-PF as merchants had been instructed only to sell food to card carrying members of the Zanu-PF. The claimant’s evidence in this regard is consistent with the background material which documents the government sanctioned policy of food distribution. In such circumstances, even if it was safe for the appellant to relocate to Beitbridge, I find that it would be unduly harsh to expect her to do so.
5. Mr. Wyatt argued that this family were only of any serious interest to Zanu-PF as the owners of the farm, of which they had now been dispossessed. There was no reason why they should not return to Beitbridge or elsewhere in Zimbabwe. We took up with Mr. Rodwell the adjudicator’s view of the background evidence, in the passage we have quoted from paragraph 18. We particularly enquired whether there was indeed any background material to confirm the suggestion that through ordinary retail shops food was only available to holders of Zanu-PF cards, either generally or at particular locations.
6. What Mr. Rodwell referred us to was an Associated Press release of 19 March 2003. The relevant passages were these:
Aid workers have accused the government of using food as a political tool against the members of the opposition Movement For Democratic Change, which narrowly lost parliamentary elections of 2000, and a disputed Presidential poll of March.
Some gas stations again ran dry in Harare on Monday with long lines of cars waiting for fuel, food lines were common outside stores promising deliveries, and selling corn meal, bread, sugar, cooking oil and milk.
7. There are known difficulties with aid supplies in Zimbabwe being distributed under Government auspices only, and presumably to those who either were or pretended to be government supporters. This case does not involve supplies of that kind. Mr. Rodwell very frankly concedes that there is no background evidence to which he can refer us about difficulties in buying food from ordinary shops without a party card. There are of course shortages and queues, as we saw in the second part of that passage, but that is another matter.
8. Mr. Rodwell quite rightly referred us to the long history of conflict between the government side and the Ndebele people, but he did not argue that all Ndebele were at risk in Zimbabwe. He suggested that there was some special risk to this claimant on account of her support for the Liberty Party of Zimbabwe (LPZ). This organisation, and the Liberty Party tout court, which is a fragment of it, were dealt with in paragraphs 5.12 to 5.15 of the CIPU report before the adjudicator (April 2003, substantially unaltered in that for October). What is said there can reasonably be summarised on the basis that the LPZ/Liberty Party is a negligible force in Zimbabwe politics; and any annoyance that it causes to the Government side is a matter of highly localised pin-pricks.
9. Nevertheless, we have been referred to the evidence of Dr. Deborah Potts, who is a “senior lecturer in geography with reference to Southern Africa” at King’s College London. She gives no details of any personal experiences of Zimbabwe that she might have. She does consider it worth pointing out that she has ‘until recently been a supporter of Zimbabwe’s Zanu-PF government which transformed people’s lives in terms of their general welfare in the 1980s’. How that might reflect on her political judgement we shall leave for others to consider.
10. The material passages of her report relied on by Mr. Rodwell are these. At page 3:
The events surrounding the 2000 parliamentary elections were widely reported in the British media and the Home Office must be aware of them. Many MDC supporters, and in particular party workers were killed, and many more suffered violent treatment. It is important to note it was not only MDC supporters who suffered - anyone who made clear they opposed the government was in line for persecution.
She gives an example of various groups to which this appellant does not belong and goes on to say
not supporting Zanu-PF enough is sufficient to attract persecution let alone actively and visibly supporting an opposition group.
No details, however, are given to support that conclusion.
11. On the following page, Dr. Potts goes on in a passage, also printed in bold type and for good measure double-underlined by someone,
I would argue most strongly that no known opposition (whether MDC or other party) was already experienced persecution should be sent back to Zimbabwe unless it has become clear that the government has ended its litany of persecution. So far the evidence is that persecution has continued unabated.
12. While nobody in their right mind would seek to defend the actions or character of the Zimbabwe government, and the misuse of ‘litany’ is irrelevant, Dr. Potts, in our view, especially in the last quoted passage, has gone well beyond the proper sphere of the expert into that of the advocate, in which her approach contrasts strongly with the moderate and attractive way in which Mr. Rodwell presented his own case. We do not consider that Dr. Potts has adequately supported the strong views that she expresses, and we think that her evidence in this, and in any other similar cases where it is presented, needs to be treated with considerable caution.
13. We have to approach this case on the basis of the individual risk to this claimant. The first question raised by Mr. Wyatt’s argument in support of the appeal is whether there is any real risk of Zanu-PF seeking her out in Beitbridge or anywhere else to which she might return. Mr. Rodwell has referred us to the interest of the ‘war veterans’ in the title deeds to the farm. We take the view that these would be of limited interest in any case in the current situation in Zimbabwe, where property rights for land are hardly respected at all. There is, in any case, no evidence that the claimant’s mother, who seems from the evidence we have already quoted to have been the registered proprietor, or the person named on the deeds, has been approached to hand over the deeds while in Beitbridge. It is noteworthy that the claimant says that the men had ‘threatened to kill her if her mother [our emphasis] did not hand over the deeds to the family farm’.
14. Then there is the family history. But, as we have already pointed out, the murder of both the claimant’s father and her brother took place in attempts at various times to seize the family farm, which has now been done. We take the view that there is clearly no basis on which this claimant, who it must be remembered was allowed to leave the country on her own passport, would be sought out in Beitbridge, or anywhere else, unless she tried to get the farm back. There are of course, no removals to Zimbabwe being carried out, but we have to approach the case as if there were. There is no suggestion that this claimant would be unwise enough to make an attempt of that kind.
15. Then we come to the remaining features of the situation in Beitbridge. Here the adjudicator clearly misunderstood the background evidence as to food sales, which was a cardinal point in his decision that internal flight there would be unduly harsh. Zimbabwe is one of the best-known countries with which the Tribunal has to deal. English is the official language, and there are many contacts with this country. If there were any published or other independent evidence that ordinary tradesmen had been selling food only to party cardholders, we should have expected to see it, especially in the context of a case clearly so professionally and conscientiously prepared on behalf of the claimant as this one was.
16. This was a crucial point, in our view, on which the adjudicator went wrong. His decision went out on 9 June. The legal basis of our jurisdiction was not canvassed before us. We are inclined to take the view that the requirement in the present legislation for an error of law is a threshold one, which only falls for consideration on the application for permission to appeal. Whether we are right or wrong about that, we are satisfied that this adjudicator’s misunderstanding of the background evidence can be characterised as a clear error, and if necessary one of of law. It was entirely understandable, in the absence of a presenting officer, which once again is a regrettable feature of this case, but the adjudicator was clearly wrong. It follows that the Home Office appeal is allowed.
John Freeman
(chairman)
Heard at Field House on
TN (Assessment of Evidence) Zimbabwe [2003] UKIAT 00197
9 December 2003
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 11.12.2003
Issued: 16/12/2003
Before:
Mr. J. Freeman (chairman)
Mrs. L. H. S. Verity (legal member)
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT
and
CLAIMANT
For the Secretary of State: Mr. J. Wyatt
For the claimant: Mr. G. Rodwell, solicitor, Southern & Co, Nelson
DETERMINATION AND REASONS
This is a Home Office appeal against decision of the adjudicator, Mr. K. S. Levin, sitting at Manchester on 20 May, allowing a asylum and human rights appeal by a citizen of Zimbabwe. The adjudicator was seriously hindered by the unexplained absence of a presenting officer, and whatever may have to be said about the merit of his decision, he did a very conscientious job of work reaching it.
2. We shall turn straight to the history of this case. The claimant is a member of the Ndebele tribe and the family has their own farm in that part of Zimbabwe. The claimant mentions at paragraph 3 of her witness statement that, in the early 1980s when she was only a small child, ‘my father was apparently fighting to protect his farm when he was brutally murdered. Despite threats, my mother kept possession of the farm’. In that statement, she blames the Shona tribe generally for that, though the adjudicator found that the notorious Fifth Brigade of the Zimbabwean armed forces had been involved. At all events, this was clearly an early attempt by the other side, however defined, to gain possession of the farm.
3. The next seventeen years passed without serious incident until 7 June 2000, when the claimant says her brother Bekithemba ‘was brutally murdered by war veterans who were trying to take over our family farm’. That incident was specifically accepted by the adjudicator at paragraph 16. He goes on,
I further accept the credibility of the appellant’s claim that on 12 August 2000, six war veterans visited the family farm and threatened they would kill the appellant if her mother did not hand over the deeds to the family farm.
and at paragraph 17,
I further find that it was as a direct consequence of the incident which occurred on 12 August 2001 when the war veterans threatened to kill the appellant if the deeds to the family farm were not handed over to them which led to the appellant fleeing Zimbabwe on 27 September 2000.
It is quite clear from those dates that the adjudicator there meant to refer to the same incident on 12 August 2000, and not 2001.
4. It is agreed the claimant left Zimbabwe by air, on her own passport. Since that time she has occasionally heard from her mother, and her cousin who is living with her. They have gone to Beitbridge on the South Africa border and, in the absence of a presenting officer, the adjudicator quite rightly took up the Q of whether internal flight to there was possible. He goes on to say this at paragraph 18:
Pertinently, the appellant in her evidence, told me that the only way that her mother and cousin could buy food at Beitbridge was to join the Zanu-PF as merchants had been instructed only to sell food to card carrying members of the Zanu-PF. The claimant’s evidence in this regard is consistent with the background material which documents the government sanctioned policy of food distribution. In such circumstances, even if it was safe for the appellant to relocate to Beitbridge, I find that it would be unduly harsh to expect her to do so.
5. Mr. Wyatt argued that this family were only of any serious interest to Zanu-PF as the owners of the farm, of which they had now been dispossessed. There was no reason why they should not return to Beitbridge or elsewhere in Zimbabwe. We took up with Mr. Rodwell the adjudicator’s view of the background evidence, in the passage we have quoted from paragraph 18. We particularly enquired whether there was indeed any background material to confirm the suggestion that through ordinary retail shops food was only available to holders of Zanu-PF cards, either generally or at particular locations.
6. What Mr. Rodwell referred us to was an Associated Press release of 19 March 2003. The relevant passages were these:
Aid workers have accused the government of using food as a political tool against the members of the opposition Movement For Democratic Change, which narrowly lost parliamentary elections of 2000, and a disputed Presidential poll of March.
Some gas stations again ran dry in Harare on Monday with long lines of cars waiting for fuel, food lines were common outside stores promising deliveries, and selling corn meal, bread, sugar, cooking oil and milk.
7. There are known difficulties with aid supplies in Zimbabwe being distributed under Government auspices only, and presumably to those who either were or pretended to be government supporters. This case does not involve supplies of that kind. Mr. Rodwell very frankly concedes that there is no background evidence to which he can refer us about difficulties in buying food from ordinary shops without a party card. There are of course shortages and queues, as we saw in the second part of that passage, but that is another matter.
8. Mr. Rodwell quite rightly referred us to the long history of conflict between the government side and the Ndebele people, but he did not argue that all Ndebele were at risk in Zimbabwe. He suggested that there was some special risk to this claimant on account of her support for the Liberty Party of Zimbabwe (LPZ). This organisation, and the Liberty Party tout court, which is a fragment of it, were dealt with in paragraphs 5.12 to 5.15 of the CIPU report before the adjudicator (April 2003, substantially unaltered in that for October). What is said there can reasonably be summarised on the basis that the LPZ/Liberty Party is a negligible force in Zimbabwe politics; and any annoyance that it causes to the Government side is a matter of highly localised pin-pricks.
9. Nevertheless, we have been referred to the evidence of Dr. Deborah Potts, who is a “senior lecturer in geography with reference to Southern Africa” at King’s College London. She gives no details of any personal experiences of Zimbabwe that she might have. She does consider it worth pointing out that she has ‘until recently been a supporter of Zimbabwe’s Zanu-PF government which transformed people’s lives in terms of their general welfare in the 1980s’. How that might reflect on her political judgement we shall leave for others to consider.
10. The material passages of her report relied on by Mr. Rodwell are these. At page 3:
The events surrounding the 2000 parliamentary elections were widely reported in the British media and the Home Office must be aware of them. Many MDC supporters, and in particular party workers were killed, and many more suffered violent treatment. It is important to note it was not only MDC supporters who suffered - anyone who made clear they opposed the government was in line for persecution.
She gives an example of various groups to which this appellant does not belong and goes on to say
not supporting Zanu-PF enough is sufficient to attract persecution let alone actively and visibly supporting an opposition group.
No details, however, are given to support that conclusion.
11. On the following page, Dr. Potts goes on in a passage, also printed in bold type and for good measure double-underlined by someone,
I would argue most strongly that no known opposition (whether MDC or other party) was already experienced persecution should be sent back to Zimbabwe unless it has become clear that the government has ended its litany of persecution. So far the evidence is that persecution has continued unabated.
12. While nobody in their right mind would seek to defend the actions or character of the Zimbabwe government, and the misuse of ‘litany’ is irrelevant, Dr. Potts, in our view, especially in the last quoted passage, has gone well beyond the proper sphere of the expert into that of the advocate, in which her approach contrasts strongly with the moderate and attractive way in which Mr. Rodwell presented his own case. We do not consider that Dr. Potts has adequately supported the strong views that she expresses, and we think that her evidence in this, and in any other similar cases where it is presented, needs to be treated with considerable caution.
13. We have to approach this case on the basis of the individual risk to this claimant. The first question raised by Mr. Wyatt’s argument in support of the appeal is whether there is any real risk of Zanu-PF seeking her out in Beitbridge or anywhere else to which she might return. Mr. Rodwell has referred us to the interest of the ‘war veterans’ in the title deeds to the farm. We take the view that these would be of limited interest in any case in the current situation in Zimbabwe, where property rights for land are hardly respected at all. There is, in any case, no evidence that the claimant’s mother, who seems from the evidence we have already quoted to have been the registered proprietor, or the person named on the deeds, has been approached to hand over the deeds while in Beitbridge. It is noteworthy that the claimant says that the men had ‘threatened to kill her if her mother [our emphasis] did not hand over the deeds to the family farm’.
14. Then there is the family history. But, as we have already pointed out, the murder of both the claimant’s father and her brother took place in attempts at various times to seize the family farm, which has now been done. We take the view that there is clearly no basis on which this claimant, who it must be remembered was allowed to leave the country on her own passport, would be sought out in Beitbridge, or anywhere else, unless she tried to get the farm back. There are of course, no removals to Zimbabwe being carried out, but we have to approach the case as if there were. There is no suggestion that this claimant would be unwise enough to make an attempt of that kind.
15. Then we come to the remaining features of the situation in Beitbridge. Here the adjudicator clearly misunderstood the background evidence as to food sales, which was a cardinal point in his decision that internal flight there would be unduly harsh. Zimbabwe is one of the best-known countries with which the Tribunal has to deal. English is the official language, and there are many contacts with this country. If there were any published or other independent evidence that ordinary tradesmen had been selling food only to party cardholders, we should have expected to see it, especially in the context of a case clearly so professionally and conscientiously prepared on behalf of the claimant as this one was.
16. This was a crucial point, in our view, on which the adjudicator went wrong. His decision went out on 9 June. The legal basis of our jurisdiction was not canvassed before us. We are inclined to take the view that the requirement in the present legislation for an error of law is a threshold one, which only falls for consideration on the application for permission to appeal. Whether we are right or wrong about that, we are satisfied that this adjudicator’s misunderstanding of the background evidence can be characterised as a clear error, and if necessary one of of law. It was entirely understandable, in the absence of a presenting officer, which once again is a regrettable feature of this case, but the adjudicator was clearly wrong. It follows that the Home Office appeal is allowed.
John Freeman
(chairman)