Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02826/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th June, 2016
Dictated 24th June 2016
Signed 28th June 2016
On 11th August 2016

Before

Upper Tribunal Judge Chalkley

Between

MISS PATRICIA ESTHER MURUNGU
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Muzenda, Longfellow Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born on 8th October, 1979 in Harare, Zimbabwe and is a citizen of Zimbabwe. She entered the United Kingdom on 21st December, 1999 with entry clearance as a visitor valid for six months until 23rd June, 2000. On 26th July, 2000 she applied for an extension of her leave to remain as a student. This was granted on 9th August, 2000 until 30th September, 2001. On 25th July, 2001 she applied for leave to remain as a student. This was granted on 17th August, 2001 and gave her leave to remain until 28th July, 2002. On 15th July, 2002 she applied for an extension of leave to remain as a student and that was granted on 2nd August, 2002 giving her leave until 31st August, 2003.

2. On 11th August, 2003 she again applied for leave to remain as a student and this was granted on the same date and she was given leave until 31st October, 2004. On 20th October, 2004 she applied for an extension of leave as a student. The application was rejected on 18th November, 2004, because the required documents had not been submitted. She was issued with a letter in which she was told that she had 28 days to reply and that if she did not return her application within 28 days in a manner that complies with the requirements her application would be invalidated and the fee if any would be refunded. In that event should she wish to apply for leave to remain in the United Kingdom she would have to make a new application.

3. The appellant reapplied on 14th December, 2004, but this application was also rejected on 23rd December, 2004, because the information required was still not provided. On 18th January, 2005, she made a valid application for leave to remain in the United Kingdom as a student and this was granted on 3rd March, 2005. She was given leave until 31st December, 2006. On 22nd December, 2006, she applied for leave to remain as a student and this application was granted on 24th January, 2007, giving her leave until 30th June, 2007. On 26th February, 2007, the appellant applied for leave as a dependent spouse. This application was granted on 14th March, 2007 and she was granted leave until 14th March, 2012. On 10th January, 2009, her spouse contacted the Home Office and informed them that their relationship had ended and that the appellant and he were no longer living together.

4. The appellant's leave was curtailed on 11th March, 2009 and notice sent to her address twice, first on 11th March, 2009 and then again on 26th March, 2009. The appellant then applied for settlement on the basis of her long residence. Her son who had been born to her on 11th November, 2007, was included as a dependant. The application was refused on 26th June, 2011.

5. The appellant claimed asylum on 11th June, 2015. The appellant's application was refused and she appealed to the First-tier Tribunal.

6. In a determination promulgated on 26th April, 2016, First-tier Tribunal Judge Petherbridge dismissed her asylum appeal and her human rights appeal.

7. The judge noted that the appellant had been a supporter of the MDC but only since 2009, despite having arrived in the United Kingdom in 1999. Having spent a considerable amount of time in the United Kingdom as a student and married a Zimbabwean national by whom she had had one child, she then claimed asylum. The appellant told the judge that her marriage broke up on account of his support for ZANU-PF.

8. The appellant maintained that she had received threatening telephone calls, which she assumed were from members of ZANU-PF, during which she was threatened if she continued to support the MDC. She told the judge that she thought she had received three such calls. The appellant explained that the leader of her MDC branch was going to provide her with a letter confirming that she had complained to him about receiving threatening telephone calls, but no letter had been produced to the judge. The judge thought that it was simply not credible that the appellant would not have pursued the letter with more vigour, since it would have provided her with corroborative evidence of her claim. There appeared to be no reason why her confirmatory letter could not have been obtained, given that one had been offered.

9. The judge rejected the appellant's evidence that she had received threatening telephone calls. She had only been involved with the MDC since 2009, some ten years after she arrived in the United Kingdom, and the level of her involvement could not be regarded as being anything other than at low level and hardly likely to be of any interest to the authorities, were she to be retuned to Zimbabwe. He reminded himself of the country guidance in EM & Others (Returnees) Zimbabwe CG [2011] UKUT 98 and noted her evidence that she came from the rural area of Rusape. He suggested that that evidence was at issue with what the appellant had said at her initial interview recorded at B4 of the respondent's bundle, when the appellant claimed to have been born in Harare. That was the only place mentioned in her documents in support of her application and an address in Harare was given as her last address in Zimbabwe during the appellant's interview.

10. The judge did not believe that if returned to Zimbabwe, the appellant would be returning to a family in a rural area and neither did he believe that if returned to Harare she would face any significant difficulties, he having found that she had no significant MDC profile. He concluded that the appellant's home was in Harare and could find no objective evidence to support a finding that there would be no employment prospects were she to be returned. He noted that she had a diploma in nursing and had considerable experience as a care worker.

11. The judge rejected her evidence that she had been the victim of threatening phone calls made against her by members of ZANU-PF as a result of her MDC activities and described her MDC activities in the United Kingdom as not placing her beyond the having a low profile. He found that she would not be at any risk on return and dismissed her claim. The appellant sought and obtained permission to challenge the determination.

12. Addressing me, the appellant's solicitor expanded upon the grounds of challenge. He suggested that the judge was wrong to suggest that the appellant would return to Harare, because her home was not in Harare, it was in Rusape. That was the area that she would go to but it was, he suggested, an area of serious risk.

13. I asked him what evidence he had that it was an area of serious risk and he referred me to an article starting at paragraph 20 of his bundle published by the Guardian dated 18th June, 2008 referring to the herding of people from Rusape into an open field by soldiers from the ruling party and telling the crowd that "your vote is your bullet". Mr Muzenda confirmed that he had no evidence today that there was any risk in Rusape now.

14. Mr Muzenda suggested that the judge's reasons for rejecting the appellant's claim to have been threatened by ZANU-PF members were inadequate. He went on to explain that it was necessary for a judge to indicate precisely where in Harare the appellant would go. This he had failed to do. The appellant would in fact return to her home in Rusape. I asked him whether she had family members there and he told me that she did. I pointed out to him that in her interview she had claimed that her last address in Zimbabwe was in Harare and had given a full address for the property she had lived in.

15. Mr Muzenda continued by suggesting that the judge had based his findings on the record of interview, but the statement which the appellant had made and which had been prepare pared in readiness for the hearing made it quite clear that the appellant comes from Rusape and not the home area. Finally, he suggested that the judge had made no finding as to the appellant's declared intention to continue with her activities on her return.

16. Mr Duffy referred me to what the judge had said at paragraph 48 of his determination. The judge clearly found the appellant not to be credible, because he rejected her claim that she had been the victim of threatening phone calls made against her by members of ZANU-PF.

17. In relation to the appellant's home in Zimbabwe, the Tribunal in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 make it clear that the issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to a place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is likely that a person with a well-founded fear of persecution in a major urban conurbation such as Harare will have a viable internal relocation alternative to a rural area in the Eastern Provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona. Mr Duffy said that this appellant had said in her statement that she was from Rusape, as the judge had noted, but he had also noted that elsewhere she claimed that she been born in Harare and had given as her last address in Zimbabwe an address at 7941 Seventeen Avenue, Glen View 8, Harare. The judge was entitled to say what he did and to consider her return to Harare.

18. Mr Duffy urged me to find that there was no risk to the appellant on the basis of the judge's findings. She has contented herself in the United Kingdom with low level activity for the MDC and if she was determined on her return to Zimbabwe to continue with her low level activity that was not likely to cause her to be at any risk. So far as obtaining a letter from the MDC local leader to confirm that she had complained to him about receiving threats from ZANU-PF members, the judge was entitled to note that she had failed to do that (TK (Burundi) [2009] EWCA Civ 40).

19. Mr Muzenda suggested that paragraph 43 of the determination was wrong. It would be wrong to return the appellant to Harare, because, she is not from Harare but from Rusape, he repeated. The statement which she prepared in response to the Secretary of State's refusal letter makes it clear that she is from Rusape and the judge had simply ignored this. As to credibility, the judge rejects her claim to have received threats but nonetheless the judge does accept that she was a lowly level member of the MDC.

20. I reserved my determination.

21. In the statement prepared by the appellant for her asylum appeal and dated 22nd March, 2016, the appellant does make it clear that she has no accommodation anywhere other than Rusape which is her rural home. However, the judge was entirely correct to point out that she had claimed to have been born in Harare and that it was the only place mentioned in the documents in support of her application that identified where she lived immediately before she came to the United Kingdom. When she was asked at her asylum interview for the last address in her country of origin she gave it as being 7941 Seventeenth Avenue, Glen View 8, Harare. Mr Muzenda suggested to me that this was a temporary address where she had gone before making her visa application to come to the United Kingdom. I wholly reject that suggestion. If someone is asked for their last address in their country of origin they would hardly give a temporary address that they had only spent a short time in while they were making a visa application. I believe that it was much more likely than not that they would give their last residential address.

22. I believe that the judge was perfectly entitled to assume that the Glen View 8 address had been her last permanent residential address before she came to the United Kingdom. If it had been a temporary address I would have expected her to say that "I was only there a short while and my permanent address in Zimbabwe was in Rusape" but she did not.

23. I do not accept that the judge has erred. He was clearly aware of her claim to come from Rusape, because he referred to it. He had clearly read the appellant's statement. On the evidence before him he was perfectly entitled to reject her assertion that Rusape was her last address in Zimbabwe.

24. Turning to the first challenge, I note that the evidence of the appellant was that she assumed that these threatening telephone calls were from members of ZANU-PF. The appellant's evidence about this appears to be vague. At paragraph 14 of her statement she said this:

"However a few months down the line Wolverhampton Branch ran into problems as it was discovered that some in the leadership of the branch were on the ZANU-PF payroll, they were informers. A trend had emerged whereby members were receiving, as I also did, threatening anonymous calls. It turned out that all the information relating to the branch had appasnretly been relayed to the CIO in Harare. The branch was immediately disbanded. My biggest concern is that the regime in Zimbabwe is obsessed with record keeping on its targets."

25. The appellant's evidence is vague and does not describe what was said to her in these telephone calls and the judge recorded that when she gave evidence she thought she had received three such calls.

26. The appellant told the judge that she had mentioned the calls to the MDC branch leader who had promised to provide a confirmation of that. The appellant's explanation as to why no letter was forthcoming was that the leader was out of the country. The judge was entitled to suggest that bearing in mind the importance of the evidence and the importance of her asylum application, it was simply not credible that the appellant would not have pursued with more vigour the obtaining of such a letter.

27. The judge was not calling for corroboration of the appellant's account; the appellant was simply implying that she could have obtained evidence but had failed to do so. That he was entitled to do (See TK (Burundi) [1999] EWCA Civ. 40).

28. In the circumstances I believe that the judge was entitled to reject the appellant's account that she had ever received threatening telephone calls and I believe also that he was perfectly entitled to find that her level of involvement could not be regarded as being anything other than low level and hardly of any interest to the authorities were she to be returned to Zimbabwe. I believe he was entitled to find that she could be returned to Harare without being at any risk from ZANU-PF.

29. Finally it was suggested by Mr Muzenda that the judge erred by failing to make material findings as to risk assessment concerning her professed intention to carry on with her political activities were she to be returned to Zimbabwe. Given that her activities in the United Kingdom were found by the judge to be at a low level, I do not accept that he did err. Were the appellant to be returned to Zimbabwe and choose to remain in Harare there would be no reason at all why she could not engage in similar low level MDC activities, if she chose to do so.

Notice of Decision

30. For all these reasons I find that the determination of the First-tier Tribunal Judge did not contain any error on a point of law. I uphold his decision.

31. No anonymity direction is made.

32. I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley