Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01313/2013

THE IMMIGRATION ACTS

Heard at Bradford
Determination Sent
on 5th August 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PATERSON MWEDZIWENDIRA
(Anonymity direction not made)
Respondent
Representation:

For the Appellant: Mr Diwnycz - Senior Home Office Presenting Officer.
For the Respondent: Mr T Hussain instructed by Howe & Co Solicitors.

DETERMINATION AND REASONS

1. This is an appeal by the Secretary of State against a determination of First-tier Tribunal Judge Cox promulgated following hearing at Bradford on 14th March 2013 in which he allowed Mr Mwedziwendira's appeal, on asylum and human rights grounds, against the direction for his removal to Zimbabwe following the Secretary of State's rejection of his claim for asylum; accepted as a fresh claim on 28th January 2013.

2. The Judge set out his findings in appropriate detail relating to Mr Mwedziwendira and his activities. At paragraph 20 he records he found Mr Mwedziwendira to be an impressive witness who did not seek to bolster his claim and that there was no challenge to the credibility of the account that he has been an active member of the MDC since 2011. The Judge records those elements of the evidence in which he agreed with the Presenting Officer before recording at paragraph 22 that he was satisfied that Mr Mwedziwendira's present political activities in the United Kingdom are a genuine reflection of his political views. He accepted the findings of a previous judge that the appellant was not political active in Zimbabwe and that he was in the United Kingdom for nearly 11 years before joined the MDC and had not explained why it had taken so long before he joined this organisation.

3. From paragraph 24 Judge Cox refers to the current country guidance case law before concluding that he was not satisfied that Mr Mwedziwendira would be identified at the airport as having a significant MDC profile, as a result of which he is not at risk at the point of return [31]. The Judge then refers to the forthcoming elections in Zimbabwe (taken at the date of the hearing) and in paragraphs 34 of 35 makes the following findings:

34. Accordingly it seems to me, I also have to consider whether the appellant is likely to become actively involved in the election. On the one hand, there is the adjudicator's clear adverse credibility. On the other, a senior MDC Official has come to speak on the appellant's behalf and I have concluded that the appellant's present activities in the UK genuinely reflect his political views.

35. On the totality of the evidence and applying the lower standard of proof I find I am satisfied that the appellant would engage in political activities likely to attract the adverse attention of ZANU-PF. Especially as there is a forthcoming election campaign. Applying SM I find I am satisfied that, if the appellant is returned to Zimbabwe there is a real risk of him being persecuted on account of his political views.

Discussion

4. The challenge by the Secretary of State alleges that the credibility findings are unclear and inconsistent, or both, and need to be re-examined. She refers to the previous findings and alleges an error in the Judge failing to make specific findings on what Mr Mwedziwendira's political activities are and why they should be of interest to the Zimbabwean authorities.

5. This ground has no arguable merit. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) Blake J) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

6. Judge Cox accepted that the appellant was a credible witness, his account of activities in the United Kingdom on behalf of the MDC were corroborate by an Officer of that organisation and, notwithstanding what may have happened in the past, the situation at the date of the hearing was such that those activities were found to reflect a genuinely held political belief.

7. Permission to appeal was granted on the basis the Judge had found that Mr Mwedziwendira's activities in the United Kingdom were not such that he was at risk at the airport but would be at risk within Zimbabwe. The Judge clearly considered the case law relating to risk on return at the airport [29] and found that the appellant's profile was not such that he would be of adverse interest to the authorities at that time. This is not challenged by either party and is a sustainable finding. The Judge did not find that Mr Mwedziwendira's profile per se will place him at risk but rather the fact he will engage in political activities in Zimbabwe and, as a result of that profile, would come to the adverse attention of the authorities or their supporters such as to create a real risk of adverse attention [35]. It cannot be said to be perverse or irrational in light of the country guidance and at a time of heightened tension at elections, that a person who may be able to pass through the airport but who acts in a particular manner within Zimbabwe may face a real risk of persecution if his activities are deemed to be contrary to the interests of the State.

8. The second ground alleges a misdirection in law by the Judge attempting to distinguish the country guidance case of CM [2013] UKUT 00059 in paragraph 28 of the determination but paragraph 28 does not record any findings made by the Judge, but rather records Mr Mwedziwendira's Counsel's submission relating to the fact CM was a country guidance case in respect of the evidence at the end of January 2011. There is in that paragraph however a reference to elections due to be held in 2013. The Judge clearly applied the current case law as there is reference in paragraphs 30 and 33 to such cases. It is recognised in those cases that those with a particular profile may be at greater risk at times of elections.

9. While some may consider the Judge's decision to be particularly generous on the facts it has not been shown to be perverse, irrational, or contrary to the available evidence. It has not been shown not to be a finding within the range of findings the Judge was permitted to make on the evidence. It has not been shown that a material error of law has been made sufficient to enable the Upper Tribunal to interfere with the decision.

Decision

10. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

11. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order as no application was made for the same and the facts do no establish a basis for making such an order.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 19th September 2013