The decision

Heard at Field House

On 10 September 2004

WM (MDC – Low level member- Credibility) Zimbabwe [2004] UKIAT 00340

Date Determination notified:

8 October 2004


Mrs J A J C Gleeson (Vice President)
Miss R I Emblin
Mr M E Fraenkel





For the appellant: Mr M Ahmed of Counsel
Instructed by the IAS Birmingham
For the respondent: Mr J Singh, Home Office Presenting Officer


1. The appellant appeals with leave against the determination of an Adjudicator, Mrs C E S Andrew, who dismissed her appeal on Refugee Convention and humanitarian grounds against the Secretary of State's refusal to recognise her as a refugee. Leave to appeal was granted limited to grounds 5, 7 and 8 of the grounds of appeal, which suggested that the Adjudicator erred in her understanding of the appellant’s evidence at paragraphs 30-31 of the determination, and that there was no inconsistency in encouraging people to boycott rallies in the 2000 elections whilst attending the rallies herself in 2002, in particular one at the Zimbabwe Ground at which Morgan Tsvangarai was speaking. The appellant never attended a Mugabe rally but only rallies addressed by members of the MDC.
2. Grounds 7 and 8 deal with the appellant's citizenship situation. She had joint Zimbabwean and South African citizenship and travelled frequently between the two countries. In November 2000 when she came to the United Kingdom for a visit, she was not intending to claim asylum, and nor was she when she came to the United Kingdom again after the elections in March 2002. She was committed to political change in Zimbabwe and as such had no wish to claim asylum in the United Kingdom but rather to take part in MDC activities to effect presidential change in Zimbabwe.

3. In order to continue taking part in the political process in Zimbabwe, the appellant had been obliged to renounce her nationality of South Africa; she now had no right to reside in South Africa. Mr Ahmed contended that in those circumstances, the Adjudicator’s comment that she would not be subjected to difficulties as an illegal immigrant in South Africa was speculative and irrelevant. By adopting the citizenship of Zimbabwe, the appellant did not intend to align herself with the Mugabe regime; her persecutors were the Mugabe regime and ZANU-PF, not Zimbabwe as a country. Those are the points upon which leave to appeal was granted.

4. At the beginning of the hearing, with the assistance of Mr Ahmed, we agreed the facts found by the Adjudicator as follows.
The appellant’s father was a well-known man and the Adjudicator accepted that he had been awarded an OBE for his services to social services within Zimbabwe. He had fallen out with President Mugabe. Their father had died in 1990.
The family had an MDC connection. The appellant herself ran a travel agency which was for some time located in a building owned by the MDC and she gave them free airline tickets when she could.
The appellant was able to obtain a fresh Zimbabwean passport in 2002, after surrendering her South African nationality.
She came to the United Kingdom to await the outcome of the 2003 elections.
Her mother and daughter remained in Zimbabwe, as her daughter was at school there, and so did her brother. On 12 May 2004, the appellant’s daughter joined her in the United Kingdom; her mother and brother remained in Zimbabwe.
The appellant’s sister was married to a South African man and lived in South Africa where she was settled, but she was continuing to run the travel agency in Zimbabwe which the sisters had formerly run jointly although from another building.
The appellant was a teacher who was asked to help out with the 2000 elections on a neutral basis, being approached through her daughter’s school. She distributed leaflets and was involved in voter education for the MDC.
She allegedly had some difficulty in March 2000 whilst in Zimbabwe. However, she came to the United Kingdom for a visit in November 2000 and returned, and has never been arrested or detained since that date, so that the March 2000 problems were not the trigger for her flight.
The appellant says she is the most active MDC supporter in the family.

5. The Adjudicator found that the appellant was simply a low level supporter of the MDC, and that her delay in claiming asylum (she did not claim until 3 January 2003 after arriving in the United Kingdom for the last time in March 2002) was significant in relation to her credibility.

6. The Tribunal asked the appellant’s counsel to take us to the evidence of risk on return. He referred us to paragraph 6.1 to 6.3 in the April 2003 Country Assessment which is the relevant assessment for these purposes.

‘6.1 The government human rights record remains very poor. Security forces committed several extrajudicial killings and in numerous other cases army and police units participated or provided transportation or other logistical supported to perpetrate political violence and knowingly committed their activities. The Zimbabwe Human Rights NGO Forum an umbrella group of prominent domestic human rights organisation reported that fifty-eight persons were confirmed killed as a result of political violence during 2002, mostly perpetrated by supporters of the ruling party. ZANU-PF supporters committed almost all of the killings during the year. The majority of those killed in political violence were MDC activists or supporters. A number of farm workers were reportedly killed in political violence, however exact figures are not known. The death of Vice President Joshua Nkomo in 1999 reopened public debate about atrocities committed by security forces in Matabeleland in the 1980s.

6.2 Although the judiciary is generally independent since 2001 it is coming under increasing pressure from the executive. The governed often refuses to abide by court decisions and frequently questions the authority of judges and threatens their removal. Press freedom is restricted and journalists are intimidated. Academic freedom is restricted. The government has exacerbated resentment of the white minority.

6.3 Although the government permits local civic and human rights groups to operate, it monitors their activities closely. National human rights groups include the Awami Trust, the AMI, the Catholic Commission for Justice and Peace, the Legal Resources Foundation, Zimbabwe Lawyers for Human Rights, the Zimbabwe Women Lawyers Association, the National Constitutional Assembly, the Musasa Project, the Zimbabwean Union of Journalists and ZimRights. The Zimbabwean Human Rights NGO forum is taking the lead in coordinating reports on human rights violations and abuses in the period prior to and following the 2000 Parliamentary elections.’

7. There were no disappearances in the appellant's own family. The appellant also relied on paragraphs 5.63 through to 5.77 in the CIPU Country Report for April 2004, and on the Home Office policy of not returning persons to Zimbabwe against their will. The general human rights situation in Zimbabwe was accepted even by the Home Office as far from satisfactory.

8. The present CIPU Country Report at 5.11 to 5.17 (April 2004) sets out the 2004 position of the Movement for Democratic Change which appears to have fifty MPs and 28 further candidates, all of whom claimed to have experienced human rights abuses within the past three years. As at November 2000, the MDC had a sixteen-member shadow cabinet. Most violations were perpetrated by formal state agents such as the police, CIO and the army. The remaining 50% were attributed to War Veterans, Youth Militias and ZANU-PF supporters.

9. The appellant asked us to look at paragraph 29 of the Adjudicator’s determination, in which she found the appellant to be a supporter or member of the MDC at its lowest level, and doubted whether many people were aware that she supported it. The claimant also relied on page 15 of her bundle, an Amnesty International report, in particular the headnote for May 2004, indicating that incidents of ill-treatment and torture were reported against supporters of the MDC throughout the year. Hundreds of people were detained for holding political meetings or peaceful political process. Journalists were harassed and detained in a leading private newspaper which shut down.

10. At pages 16 to 17 of the bundle, Amnesty International reports that the police had carried out widespread arrests of opposition members and supporters following MDC-led mass national protests; police officers had been implicated in torture, ill-treatment and unlawful killings, mostly of MDC supporters. Mr Ahmed suggested that the credibility findings were not sustainable and asked the Tribunal to allow the appellant’s appeal.

11. For the respondent, Mr Singh relied upon the Adjudicator's factual finding that the appellant was a low level supporter. The Adjudicator had not had the benefit of a Home Office interview and had assessed the case, analysing all aspects of the claim including the delay. It was not conceivable that the appellant would be unaware of the necessary procedures, given that she ran a travel agency, and the Adjudicator had been fully entitled to reach the conclusions set out at paragraphs 26-27 and 32-33. Had the appellant really been in fear, she could have used her South African passport to leave the country rather than opting to become fully Zimbabwean. Family members did not appear to be targeted by reason of real or perceived political opinion.

12. In conclusion, Mr Singh suggested that the Adjudicator’s determination was sustainably reasoned, with clear findings of fact; the last ill-treatment of the appellant had been related to the June 2000 elections. She had returned willingly to Zimbabwe in November 2000 and nothing had happened to her subsequently.

13. In reply, Mr Ahmed said that he had already covered the main points, as had the appellant’s representative before the Adjudicator. The appellant had not sought to bolster her claim and had confined it to her own membership without seeking to exaggerate the involvement of other family members. It was not clear whether the Adjudicator accepted her as credible and there was a reasonable prospect of her fearing persecution if she were forced to return. That of course is not the test. There has to be a real risk or a reasonable likelihood of persecution or treatment contrary to Article 3, not a reasonable prospect of her fearing it.

14. The Tribunal reserved its determination for postal delivery, which we now give. We have considered the Adjudicator’s determination, in particular the passages which are challenged -

‘29. However, I do not believe the appellant was anything other than a supporter/member of the MDC at its lowest level. I also have doubts there were many people aware that she supported the MDC.

30. In her statement, when asked with she did for the MDC at paragraph 5 the appellant refers to distributing leaflets and voter education. She enlarged upon this at paragraphs 7, 9 and 10. However, when asked about her activities in cross-examination the appellant said “I was making people feel comfortable when they came to vote – there was as lot of intimidation at the polls”. She went on to confirm that she did not have contact beyond her local ward other than bankrolling the party. When asked what this entailed it transpired the appellant and her sister’s travel agency gave away complementary tickets to the MDC. Further, when asked if Mr Murowa had a number of helpers the appellant answered that she was not sure. She went on to confirm that her contact with the MDC was through him. The appellant then went on to say that at the 2000 elections she tried to boycott rallies Mugabe had arranged and so also tied to tell people not to go, and that this was in neighbouring constituencies as well. She said she attended rallies herself and mentioned one at Zimbabwe Grounds.

31. This is not what the appellant said in her statement. She says at paragraph 9 that it was before the 2002 elections that she was trying to arrange rallies against Mugabe. This inconsistency leads me to doubt the appellant's credibility.

32. However, what persuades me the appellant was not known as an MDC supporter is the evidence she adduced of being appointed as a polling agent for the Presidential elections through her daughter’s school. When I asked her about this she told me the schools were asked to look for polling agents by the government. The appellant was well known at the school and as she said “I was meant to be netural”. I do not believe the appellant would have been appointed as a polling agent by the government, or that her name would have been put forward by her daughter’s school, had she been suspected of being an MDC supporter. Further, the appellant's evidence was that she was well known at her daughter’s school, yet she was perceived as being netural.

33. Further, I found the appellant’s evidence as to what she did as a polling agent to be implausible. She told me she was doing it for MDC members, making them feel comfortable when they came to vote. When I asked her how she knew they were MDC members the appellant told me it was because in the urban areas the majority of people were MDC. This may well have been the case but did not assist with the recognition of them.

34. I further found it implausible that despite the appellant's claim of being detained on one occasion in January 2000 and then three more time on the run up to the June 2000 elections during which the appellant was ill-treated, and on two occasions, once in January and once in June, being made to perform a sexual act, she comes to the United Kingdom in November 2000, stays for two weeks does not claim asylum. These are the only occasions on which the appellant adduces evidence of ill-treatment of her personally and despite having the opportunity to seek international protection shortly afterwards she failed to do so. I find this gives me further doubts about the appellant’s credibility.

35. Further, the appellant gave evidence to the effect that she was coming backwards and forwards from South Africa. She had dual citizenship until she renounced this to take Zimbabwean citizenship in 2002. I see no reason why, if she felt she was persecuted in Zimbabwe she could not go to South Africa and live there, as her evidence to me was, her sister is doing for much of the time. She was a citizen of South Africa and in such circumstances I believe she would not be subjected to difficulties in that country, as an illegal immigrant there.

36. Further, it is not the account of a person who is persecuted to give up their citizenship of another country, to take formal citizenship of the country which they very shortly thereafter allege is the persecutor. This also makes me doubt the veracity of the appellant's claim.

38. I believe the appellant was a very low level supporter of MDC. I do not believe she was known or perceived as such. Other than this I do not believe anything the appellant has told me which material to her asylum claim is. I did not find her to be a credible witness.’

15. The Adjudicator’s credibility finding is quite clear. The only thing that she believed was that the appellant was a very low level supporter of the MDC. The last time the appellant had any personal difficulties with the Zimbabwean authorities was in relation to the June 2000 elections, and that she was not in so much fear that she did not wish to return in November 2000. The appellant’s own evidence is that she was appointed as a polling agent for the 2003 elections through her daughter’s school as a neutral person; if she were well-known as an MDC supporter or member, she would not be selected through her daughter’s school as neutral in connection with those elections. That supports the Adjudicator’s findings that the appellant’s MDC leanings were unknown to the authorities, and even to her daughter’s school.
16. The Adjudicator’s reasons for finding that the appellant was a low level member are more than sustained by the evidence before her. Further, were the appellant in fear, it is not credible that she would opt to give up a South African passport (on which presumably she could travel, even though she could not reside in South Africa) and restrict her options by settling for only a Zimbabwean passport. The Adjudicator’s finding on that point is sound and sustainable.
17. We also consider that, having regard to the appellant’s previous journeys to the United Kingdom, and her business as a travel agent, the Adjudicator was entitled to place weight on the lengthy delay between her last arrival in the United Kingdom in March 2002 and her claiming asylum in January 2003.

18. In order to oust the Adjudicator’s findings of fact, the appellant must satisfy us that they are so perverse or Wednesbury unreasonable as to amount to an error of law. This Adjudicator’s findings are neither perverse nor unreasonable, but soundly based in the appellant’s own evidence. For all of the above reasons we consider that the Adjudicator’s conclusions are sustainable and the determination sound.
19. The appellant’s appeal is dismissed.