AA/05490/2014
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The decision
IAC-AH-KEW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05490/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 2nd December 2014
On 30th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
R N M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs D Qureshi (Counsel)
For the Respondent: Mr P Armstrong (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge V A Osborne, promulgated on 12th September 2014, following a hearing at Stoke on Trent on 2nd September 2014. In the determination, the judge dismissed the appeal of the Appellant whereupon, the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female and a citizen of Zimbabwe. She appealed against the decision of the Respondent Secretary of State dated 3rd July 2014, refusing her application for consideration of a fresh claim based upon her human rights violations under paragraph 353 of HC 395.
The Appellant's Claim
3. The Appellant's claim is that she fears ill-treatment at the hands of ZANU-PF militias in Zimbabwe. Her brother had already died as a result of ill-treatment at their hands. She will be considered a traitor because she has been agitating for the removal of President Mugabe from power. She maintains that the coalition government would not be able to protect her because Mugabe controls all the security ministries. There would no safe place for her to go to and live in Zimbabwe. Her situation is particularly worse given the length of time she has spent in the UK without returning to Zimbabwe. In the UK, the Appellant had a membership of Zim Vigil which protested outside Zimbabwe House every Sunday.
The Judge's Findings
4. The judge observed that the Appellant had been able to produce evidence of her brother's death, by virtue of a death certificate, which showed that he died on 31st January 2011, and his occupation was described as a "teacher." However, there was no explanation whatsoever as to how he died and why he died (see paragraph 41). The death certificate does record that there was "painful growth on eye and general body pains" (see paragraph 42). The Appellant's case has been that her brother had been attacked by ZANU-PF members and had lost an eye in the attack and was badly beaten. She claimed that she had received a copy of the death certificate from her mother. However, the judge found no proof of posting.
5. The account given by the Appellant also was "vague and lacking in particularity to the extent that I cannot accept it as proof of the fact that her brother died as claimed or at all (or at all)" (paragraph 42).
6. The Appellant also relied upon her Article 8 rights on the basis of her relationship with a PE, but the judge found that PE had not attended the hearing to provide supportive and cooperative evidence for the Appellant, but only a short letter in which he said that they had been in a relationship for six months.
7. The judge placed little reliance on the relationship and could not be satisfied that it engaged Article 8 of the ECHR. Finally, the judge had regard to Section 117B(5) of the 2002 Act which makes it clear that "little weight should be given to a private life established by a person at a time when the person's immigration status is precarious," and this was the case here (see paragraph 46).
8. In short, although the judge was satisfied that the Appellant "may have been in attendance at these meetings and demonstrations" she went on to say that "I am equally satisfied that she was anxious to provide evidence of her sur place activities in order to bolster her claim."
9. Even if this was the case, the real issue was whether such evidence was "likely to have come to the attention of the authorities in Zimbabwe" and the judge was not satisfied that this would be the case. The Appellant had filed photographic evidence on the internet under the name of RK, but the judge recorded that,
"When asked about this the Appellant simply stated that it was her maiden name, but I find that it was rather an attempt to evade identification and may have been confusing for the other members of the organisation, because in the minutes of meetings she is referred to as RM" (see paragraph 50).
Finally, the judge applied the country guidance case of CM (Zimbabwe) (see paragraphs 51 to 58) and dismissed the appeal.
Grounds of Application
10. The grounds of application state that the judge failed to give proper reasons for findings that she made on the evidence. The judge considered the death certificate of the Appellant's brother but disregarded it because it did not comply with certain requirements. Second, the judge disregarded the statement from ROHR that the Appellant had been a very active member of the MDC in the United Kingdom (see paragraphs 43 to 45), without giving reasons why this could properly be said. Third, there was a letter from ROHR (at paragraphs 43 to 45) which the judge rejected, but the judge did so without putting the contents of the letter to the Appellant, and nor was she cross-examined about its contents.
11. On 23rd October 2014, permission to appeal was granted.
Submissions
12. At the hearing before me on 2nd December 2014, Mrs Qureshi, appearing on behalf of the Appellant, relied upon the Grounds of Appeal. She submitted that the judge wrongly rejected evidence of the Appellant's death by virtue of the death certificate. Secondly, the Appellant did say that her brother was in Botswana, but no one had asked her during the hearing that their brother did subsequently return back to Zimbabwe in 2010. He died there in 2011. Third, the Appellant has been engaged in sur place activities for the MDC in the UK. She would be detected upon return. There was no direct evidence of this. However, it was a real possibility.
13. For his part, Mr Armstrong submitted that the determination of Judge V A Osborne was extremely well-crafted. There were findings on credibility which were well made.
14. First, even if the brother had come back in 2010, and assuming that this is a material fact, the onus is on the Appellant to show that he did return back and consequently suffered an attack that led to his death.
15. Second, the judge explains why the writer of the letter signed by Ephraim Tapa in support of a claim to be a member of the ROHR was less than reliable (at paragraph 43 to 44). Ephraim Tapa had embezzled funds and acted without authority (see paragraph 44). The judge found that the Appellant had given no information "as to how she had come by this letter" (paragraph 45). Whatever errors there were in the determination were not material. It had to be remembered that a previous judge hearing her immigration appeal had found the Appellant not to be credible (see paragraphs 25 to 28 of the determination of Judge Atkinson on 22nd August 2002 at AA/05684/2008).
16. Third, there was no evidence that the authorities in Zimbabwe were aware of the Appellant's sur place activities. The judge explains why, given the Appellant's assumed name in the UK, she is not likely to be detected, even if the authorities wanted to identify her. Finally, if the Appellant was afraid of being detected, why would she publish a DVD and put herself on the internet.
17. As far as her Article 8 rights were concerned, these were based upon her relationship with PE, who had not attended. The Appellant had her mother and children in South Africa. She could easily return back there without an infringement of her Article 8 rights.
18. In reply, Mrs Qureshi submitted that the determination was fine on the facts but not on the findings, and this was an error. I should allow the appeal.
No Error of Law
19. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA [2007]) such that I should set aside the decision. My reasons are as follows.
20. First, the Appellant has had an appeal before Judge Atkinson on 22nd August 2008 when the judge went so far as to say that, "I find the Appellant has engaged in behaviour in terms envisaged by Section 8 which tend to undermine the credibility of her claim ..." (paragraph 25).
21. The judge then proceeds to provide examples of her implausibility (from paragraphs 26 to 29). Judge Atkinson at the time did not find the Appellant to be committed to the MDC (paragraph 28). He did not find that she was in fear of life as a result of threats made against her because "she did not leave Zimbabwe until July 2002." On her own account the Appellant received only one threat between November 2001 and her departure in July 2002" (see paragraph 27). Second, it is in this context that all the other evidence needs to be considered. The evidence in relation to the death of the brother is ambivalent in that it does not confirm that the Appellant died as a result of an attack by ZANU-PF members.
22. The fact that the brother returned back from Botswana to Zimbabwe in 2010, could just as equally be taken as evidence of the renewed safety of the country, as of the danger that awaited him. The judge concluded that the evidence was "vague and lacking in particularity" (see paragraph 42).
23. Second, the judge gives proper reasons for why the letter written by Ephraim Tapa, in support of the Appellant's claim that she is a ROHR member is less than reliable because "he had embezzled funds and acted without authority" (paragraph 44).
24. Third, the fact that the Appellant produced a DVD and put out photographic evidence about her on the internet in the name of RK shows that she is courting publicity deliberately, and in any event is unlikely to be identified under the name of "K" which is not the same name as "M" (see paragraph 50).
25. Finally, as far as the Appellant's Article 8 rights are concerned, PE did not give evidence, and in any event his written evidence was that he had only been in a relationship with the Appellant for six months, and the judge gave this proper consideration and concluded that it did not engage Article 8 (see paragraph 46).
26. What is different this time around in an appeal hearing before a judge is that the law with respect to Section 117B(5) as inserted by the 2002 Act, makes it quite clear that "little weight should be given to private life which is established precariously," and this is exactly how the judge approached the matter.
27. All in all, this is a case where the latest country guidance case of CM (Zimbabwe) [2013] UKUT 00059 fell to be applied, and was properly applied by Judge Osborne, with a clear reference to the relevant paragraph that, "as a general matter, there is significantly less politically motivated violence in Zimbabwe" and that currently
"The evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to ZANU-PF" (see paragraph 29 of the determination).
The judge had proper regard to this latest Upper Tribunal decision. It is a country guidance case. It fell to be applied. It was properly applied by the judge. The determination made is clear and comprehensive and cannot be faulted. There is no arguable error of law.
Decision
28. There is no material error of law in the judge's decision. The determination shall stand.
An anonymity order is made.
Direction Regarding Anonymity - Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05490/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 2nd December 2014
On 30th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
R N M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs D Qureshi (Counsel)
For the Respondent: Mr P Armstrong (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge V A Osborne, promulgated on 12th September 2014, following a hearing at Stoke on Trent on 2nd September 2014. In the determination, the judge dismissed the appeal of the Appellant whereupon, the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female and a citizen of Zimbabwe. She appealed against the decision of the Respondent Secretary of State dated 3rd July 2014, refusing her application for consideration of a fresh claim based upon her human rights violations under paragraph 353 of HC 395.
The Appellant's Claim
3. The Appellant's claim is that she fears ill-treatment at the hands of ZANU-PF militias in Zimbabwe. Her brother had already died as a result of ill-treatment at their hands. She will be considered a traitor because she has been agitating for the removal of President Mugabe from power. She maintains that the coalition government would not be able to protect her because Mugabe controls all the security ministries. There would no safe place for her to go to and live in Zimbabwe. Her situation is particularly worse given the length of time she has spent in the UK without returning to Zimbabwe. In the UK, the Appellant had a membership of Zim Vigil which protested outside Zimbabwe House every Sunday.
The Judge's Findings
4. The judge observed that the Appellant had been able to produce evidence of her brother's death, by virtue of a death certificate, which showed that he died on 31st January 2011, and his occupation was described as a "teacher." However, there was no explanation whatsoever as to how he died and why he died (see paragraph 41). The death certificate does record that there was "painful growth on eye and general body pains" (see paragraph 42). The Appellant's case has been that her brother had been attacked by ZANU-PF members and had lost an eye in the attack and was badly beaten. She claimed that she had received a copy of the death certificate from her mother. However, the judge found no proof of posting.
5. The account given by the Appellant also was "vague and lacking in particularity to the extent that I cannot accept it as proof of the fact that her brother died as claimed or at all (or at all)" (paragraph 42).
6. The Appellant also relied upon her Article 8 rights on the basis of her relationship with a PE, but the judge found that PE had not attended the hearing to provide supportive and cooperative evidence for the Appellant, but only a short letter in which he said that they had been in a relationship for six months.
7. The judge placed little reliance on the relationship and could not be satisfied that it engaged Article 8 of the ECHR. Finally, the judge had regard to Section 117B(5) of the 2002 Act which makes it clear that "little weight should be given to a private life established by a person at a time when the person's immigration status is precarious," and this was the case here (see paragraph 46).
8. In short, although the judge was satisfied that the Appellant "may have been in attendance at these meetings and demonstrations" she went on to say that "I am equally satisfied that she was anxious to provide evidence of her sur place activities in order to bolster her claim."
9. Even if this was the case, the real issue was whether such evidence was "likely to have come to the attention of the authorities in Zimbabwe" and the judge was not satisfied that this would be the case. The Appellant had filed photographic evidence on the internet under the name of RK, but the judge recorded that,
"When asked about this the Appellant simply stated that it was her maiden name, but I find that it was rather an attempt to evade identification and may have been confusing for the other members of the organisation, because in the minutes of meetings she is referred to as RM" (see paragraph 50).
Finally, the judge applied the country guidance case of CM (Zimbabwe) (see paragraphs 51 to 58) and dismissed the appeal.
Grounds of Application
10. The grounds of application state that the judge failed to give proper reasons for findings that she made on the evidence. The judge considered the death certificate of the Appellant's brother but disregarded it because it did not comply with certain requirements. Second, the judge disregarded the statement from ROHR that the Appellant had been a very active member of the MDC in the United Kingdom (see paragraphs 43 to 45), without giving reasons why this could properly be said. Third, there was a letter from ROHR (at paragraphs 43 to 45) which the judge rejected, but the judge did so without putting the contents of the letter to the Appellant, and nor was she cross-examined about its contents.
11. On 23rd October 2014, permission to appeal was granted.
Submissions
12. At the hearing before me on 2nd December 2014, Mrs Qureshi, appearing on behalf of the Appellant, relied upon the Grounds of Appeal. She submitted that the judge wrongly rejected evidence of the Appellant's death by virtue of the death certificate. Secondly, the Appellant did say that her brother was in Botswana, but no one had asked her during the hearing that their brother did subsequently return back to Zimbabwe in 2010. He died there in 2011. Third, the Appellant has been engaged in sur place activities for the MDC in the UK. She would be detected upon return. There was no direct evidence of this. However, it was a real possibility.
13. For his part, Mr Armstrong submitted that the determination of Judge V A Osborne was extremely well-crafted. There were findings on credibility which were well made.
14. First, even if the brother had come back in 2010, and assuming that this is a material fact, the onus is on the Appellant to show that he did return back and consequently suffered an attack that led to his death.
15. Second, the judge explains why the writer of the letter signed by Ephraim Tapa in support of a claim to be a member of the ROHR was less than reliable (at paragraph 43 to 44). Ephraim Tapa had embezzled funds and acted without authority (see paragraph 44). The judge found that the Appellant had given no information "as to how she had come by this letter" (paragraph 45). Whatever errors there were in the determination were not material. It had to be remembered that a previous judge hearing her immigration appeal had found the Appellant not to be credible (see paragraphs 25 to 28 of the determination of Judge Atkinson on 22nd August 2002 at AA/05684/2008).
16. Third, there was no evidence that the authorities in Zimbabwe were aware of the Appellant's sur place activities. The judge explains why, given the Appellant's assumed name in the UK, she is not likely to be detected, even if the authorities wanted to identify her. Finally, if the Appellant was afraid of being detected, why would she publish a DVD and put herself on the internet.
17. As far as her Article 8 rights were concerned, these were based upon her relationship with PE, who had not attended. The Appellant had her mother and children in South Africa. She could easily return back there without an infringement of her Article 8 rights.
18. In reply, Mrs Qureshi submitted that the determination was fine on the facts but not on the findings, and this was an error. I should allow the appeal.
No Error of Law
19. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA [2007]) such that I should set aside the decision. My reasons are as follows.
20. First, the Appellant has had an appeal before Judge Atkinson on 22nd August 2008 when the judge went so far as to say that, "I find the Appellant has engaged in behaviour in terms envisaged by Section 8 which tend to undermine the credibility of her claim ..." (paragraph 25).
21. The judge then proceeds to provide examples of her implausibility (from paragraphs 26 to 29). Judge Atkinson at the time did not find the Appellant to be committed to the MDC (paragraph 28). He did not find that she was in fear of life as a result of threats made against her because "she did not leave Zimbabwe until July 2002." On her own account the Appellant received only one threat between November 2001 and her departure in July 2002" (see paragraph 27). Second, it is in this context that all the other evidence needs to be considered. The evidence in relation to the death of the brother is ambivalent in that it does not confirm that the Appellant died as a result of an attack by ZANU-PF members.
22. The fact that the brother returned back from Botswana to Zimbabwe in 2010, could just as equally be taken as evidence of the renewed safety of the country, as of the danger that awaited him. The judge concluded that the evidence was "vague and lacking in particularity" (see paragraph 42).
23. Second, the judge gives proper reasons for why the letter written by Ephraim Tapa, in support of the Appellant's claim that she is a ROHR member is less than reliable because "he had embezzled funds and acted without authority" (paragraph 44).
24. Third, the fact that the Appellant produced a DVD and put out photographic evidence about her on the internet in the name of RK shows that she is courting publicity deliberately, and in any event is unlikely to be identified under the name of "K" which is not the same name as "M" (see paragraph 50).
25. Finally, as far as the Appellant's Article 8 rights are concerned, PE did not give evidence, and in any event his written evidence was that he had only been in a relationship with the Appellant for six months, and the judge gave this proper consideration and concluded that it did not engage Article 8 (see paragraph 46).
26. What is different this time around in an appeal hearing before a judge is that the law with respect to Section 117B(5) as inserted by the 2002 Act, makes it quite clear that "little weight should be given to private life which is established precariously," and this is exactly how the judge approached the matter.
27. All in all, this is a case where the latest country guidance case of CM (Zimbabwe) [2013] UKUT 00059 fell to be applied, and was properly applied by Judge Osborne, with a clear reference to the relevant paragraph that, "as a general matter, there is significantly less politically motivated violence in Zimbabwe" and that currently
"The evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to ZANU-PF" (see paragraph 29 of the determination).
The judge had proper regard to this latest Upper Tribunal decision. It is a country guidance case. It fell to be applied. It was properly applied by the judge. The determination made is clear and comprehensive and cannot be faulted. There is no arguable error of law.
Decision
28. There is no material error of law in the judge's decision. The determination shall stand.
An anonymity order is made.
Direction Regarding Anonymity - Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014