Heard at FIELD HOUSE
On 11th December 2002
By Video link with Leeds	         
TC (Teacher-Failed Asylum Seeker-Returns) Zimbabwe  [2002] UKIAT 07342

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified

..20./.03./ 2003............

Before:
Mr.D. J. Parkes (Chairman)
Mrs. A. J. F. Cross de Chavannes
Mrs. S. I. Hewitt

	BETWEEN

MISS TUMIRAI CHIBANDA

Appellant 

- and -

THE SECRETARY OF STATE 
FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Zimbabwe.    She appeals against the determination of an Adjudicator, Mrs. M. L. Reeds, promulgated on 8th June 2002, dismissing her appeal against the refusal of the Respondent on 18th January 2002 to grant her leave to enter the United Kingdom.    The Appellant had applied for asylum but had been refused and she appealed to the Adjudicator upon both asylum and human rights grounds.    

2.	The Appellant was represented before us by Mr. M. Schwenk of Counsel instructed by Messrs. Alison McDonald, Solicitors and the Secretary of State by Senior Presenting Officer, Mrs. M. Walton. 

3.	The issue in the appeal is whether it would be contrary to the Refugee or Human Rights Convention for the Appellant, as a failed asylum seeker, to be returned to Zimbabwe.     It is submitted that the position of the Secretary of State is illogical in refusing asylum because of his policy of not returning for the time being failed asylum seekers to the country on the basis that it is unsafe so to do.     The argument is that the only logical reason why it could be unsafe is because of the perception of the authorities that asylum seekers, failed or not, must have a political opinion antagonistic to that of President Mugabe.   

4.	We should say a little of the facts.   Miss Chibanda claimed to be a schoolteacher in a country area.    Her mother is similarly a teacher.    Both of them, it is claimed, sufficiently supported the M.D.C. to have voted for the local candidate at the last election but the Appellant was, apart from that, entirely inactive in her support because, among other things, open political allegience would be regarded as incompatible with her occupation as a schoolteacher.  It was said that members of Zanu P.F. had had a meeting at the school and in spite of the entreaties of the Appellant in an effort to stop them doing so the children had chanted pro M.D.C. slogans.     The Appellant and other teachers had been blamed and a few days later a group whom the Appellant took to be Zanu P.F. members had thrown stones at her home.    The only indication, apart from perception, that the Appellant had any interest in the M.D.C. was that she had obtained a membership card when she joined and so that document was destroyed and the Appellant obtained or manufactured what purported to be a letter from a company called Tripple X Computers giving the name of three companies in the United Kingdom and purporting to confirm that she worked as a buyer for that organization and was visiting the United Kingdom on company business.   That letter was used both on exit from Zimbabwe and also, apparently, upon entry into the United Kingdom.   The Appellant concedes that it is a false document.   

5.	The Adjudicator did not find the Appellant to be a credible witness.   Her mother, also a schoolteacher, remained at the family home.   The Appellant had not left Zimbabwe until a month after the incident of which she complained, she had no real evidence that Zanu P.F. were involved with the group who threw stones.    In spite of the fact that the issue was raised in the Secretary of State’s letter of refusal the Appellant had taken no steps to obtain from her mother any documentary evidence of her membership of the M.D.C. or of her occupation as a schoolteacher.     Her credibility was not assisted by the production of the letter now accepted to be false.    Whilst a reason for the production of it to enable departure from Zimbabwe had been given that did not constitute good reason for any deception with the use of it upon arrival in the United Kingdom.    

6.	There was strong reason not to suppose that the Appellant was as knowledgeable about the M.D.C. as would be the case if what she said was genuine.   She claimed to have voted for a particular candidate in a particular constituency at the most recent elections and yet she was mistaken both as to the name of the candidate and the constituency.  The Appellant said that she had never attended any rallies or demonstrations or even meetings, held any post in the party or done anything remotely involved with the party except for voting.   She claimed to have made efforts actively to discourage the children from chanting M.D.C. slogans.    

7.	It is not clear why but the Adjudicator did accept or at least assume to be correct the Appellant’s account of an incident on 1st December 2001 that she had been harassed and assaulted on that one occasion by being hit on the back with a stick and fondled but she found that to be an isolated, random incident not connected with membership of the M.D.C.   

8.	The Adjudicator carefully considered the totality of the evidence, including the objective evidence, before reaching her conclusions as to what she believed and did not believe and it is clear that the conclusions to which she came were open to her upon the basis of the evidence. 

9.	Upon the real issue before us the Adjudicator noted that attacks have taken place upon members of the teaching profession and that on 15th January 2002 the Home Secretary had announced that removals to Zimbabwe of failed asylum seekers would be suspended until after the Presidential election in March 2002.    He confirmed that asylum claims from Zimbabwe would continue to be judged on their respective merits.    Refugee Status has been granted to M.D.C. activists including teachers, nurses and journalists.  

10.	The Adjudicator took the view that each case must be judged not simply upon the objective evidence but upon the totality of the evidence taking account of its own particular facts and individual merits.    We see no way in which it could be argued that she was mistaken in that view.    

11.	It is argued before us that weight should be attached to the contents of a letter written to the Secretary of State on 15th January 2002 by the United Nations Association in the United Kingdom.    The letter expressed concern that Zimbabwean asylum seekers were not only being refused refugee status in the United Kingdom but being immediately deported back to Zimbabwe.    The letter referred to  alarming reports of infiltration of immigration centres by President Mugabe’s agents who report back on who is seeking asylum here.    The writer fully supported the decision of the Secretary of State not to return forcibly any genuine asylum seekers until the Presidential elections had been held and urged further sympathetic consideration of their situation if, as the United Nations feared, the election proved basically fraudulent and Mr. Mugabe’s thuggery against opponents continues. 

12.	There was produced on behalf of the Secretary of State three Tribunal decisions all of them dating from the latter part of 2002, two of which dismissed appeals by unsuccessful asylum seekers from Zimbabwe and the third of which allowed an appeal by the Secretary of State against an Adjudicator who had allowed an asylum seeker’s appeal.    On behalf of the Appellant there was produced two determinations of the Tribunal allowing appeals by Zimbabwe asylum seekers.    They were heard in September and October of 2002 respectively.   Nothing confirms more accurately, to our mind, the wisdom of the Adjudicator in her conclusion that each of these cases depends very much upon its own facts.     One of those before us was particularly mentioned as exhibiting facts very similar indeed to those in the present case.    That would certainly be so had the Adjudicator found the Appellant in this case to be entirely credible.  Each of the determinations produced bore similarities to the present case.    The production of past determinations of the Tribunal in this fashion is not as a general rule particularly helpful even where apparent consistency is shown, because so often there are other decisions, not disclosed or discovered which would in any event suggest a contrary view but on examination again would depend upon the assessment of the facts concerned.     

13.	Mrs. Walton suggests that an important feature of this appeal is that the Appellant obtained exit from Zimbabwe with the aid of the business letter which was not suspected and would return having, on the face of it, simply carried out the duties for which she had come to this country.   She, therefore, would not be presenting herself as a failed asylum seeker or as one perceived to be an opponent to the regime. 

14.	We do not accept the submission that a decision by the Secretary of State to suspend for the time being the return of failed asylum seekers to Zimbabwe equates with any kind of admission that to return them would be in breach of either the Refugee or Human Rights Convention.   There is nothing, so far as we can see, to prevent the Secretary of State from observing the situation in any particular country and deciding that for the time being, as a matter of policy this country should not return people to it, for whatever reason, without coming to any conclusion that if he did so they would be persecuted or alternatively that the treatment which they would receive would reach a certain level of severity.    In any event even if the Secretary of State did so consider his view could be open to challenge.    If it were not so the appeal system, among other things, would be moribund.  

15.	We do not find it to be established that the Adjudicator ignored the situation if the Appellant was returned to Zimbabwe having failed in her asylum claim in this country.    At paragraph 44 of her determination the Adjudicator considered the situation at some length including what would be, or might be, perceived of the Appellant upon her return and the fact that the business letter which she had used and her apparent purpose in coming to the United Kingdom.  

16.	Cases relating to Zimbabwe are undoubtedly difficult.    This is an appeal, however, in which, so it seems to us, the Adjudicator took great care and considered the totality of the evidence including that relating to the issue upon which this appeal is brought to the Tribunal.    Having heard the submissions of both parties we consider that the conclusions of the Adjudicator were open to her upon the totality of the evidence and that cause has not been shown for the Tribunal to interfere.    This appeal is therefore dismissed. 

D. J. Parkes
Acting Vice-President