England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Thursday, 7 November 2002

Thursday 7 November 2002

1. LORD JUSTICE SCHIEMANN: Before me is an application for permission to appeal a decision of the Immigration Appeal Tribunal which was hearing an appeal from Mr King, an adjudicator, in relation to the applicant, Tapiwa Mashoko, who comes from Zimbabwe.
2. The essence of the attack has to be and is focussed on Mr King's decision because the IAT said that it supported his reasoning. The function of this court is to see whether Mr King has made an error of law; but the concept of error of law is wide enough to include coming to a decision which is internally irrational. That is the basis of the attack which Mr Lorie has mounted on the decision.
3. What Mr King said in his determination is essentially this. He reviewed what the appellant had said on his interview when he came here in August 2001. In that interview, and indeed before the Adjudicator, Mr Mashoko said that he was a member of the opposition party in Zimbabwe, and that he had been attacked three times (very seriously) by persons who were at any event linked with the government and the leading party of ZANU-PF.
4. The Adjudicator accepted the background to the situation in Zimbabwe in broad terms; that is that there is a fair amount of lawlessness (some of it very serious) which is tolerated, if not at times encouraged, by ZANU-PF, either as a party or acting by its supporters.
5. The Adjudicator came to the conclusion that the appellant's claim to be a refugee failed essentially for the reason that the Adjudicator, having heard the appellant give evidence, found that in various respects the appellant was not truthful. That is, as Mr Lorie recognises, a decision which cannot be attacked as a matter of law, although of course it is possible that the assessment of the truth of an individual is something that the Adjudicator got wrong. But there is nothing in the determination itself which leads one to suppose that the Adjudicator went wrong in the sense of making a mistake in law.
6. However, the essence of Mr Lorie's attack is that even if one accepts everything the Adjudicator says, there is, nonetheless, an inconsistency in it, which provides at any event an argument which should be heard by the full court. In particular he relies on the acceptance by the Adjudicator of the facts that persons perceived as supporting the opposition, including teachers, civil servants, health workers and labourers, were often singled out for assaults or intimidation, and the acceptance of the Adjudicator that it might well be that as a supporter of the Movement for Democratic Change, the leading opposition party in Zimbabwe, Mr Mashoko was involved to some extent in violence. Mr Lorie's submission is that, given that Mr Mashoko was involved in violence, and given that it was accepted that he may well have been involved to some extent in the activities of the MDC at local level and was caught up in some of the violence that then existed, the Adjudicator was bound, effectively, to come to the conclusion that Mr Mashoko had a well-founded fear of persecution, and that in failing to come to that conclusion he made an error of law.
7. One has to look at the Adjudicator's decision in the round. The appellant, according to the Adjudicator, gave evidence in front of him and has spoken in a previous interview of three occasions in 2001 when he was assaulted. The difficulty is that the appellant accepted that he had in the past entered this country in 1999 when he had been sent back, and that when he came again in 2001 he had originally not referred to that previous visit, and that he said he had come to the United Kingdom on business on that occasion.
8. The Adjudicator says that persons perceived as supporting the opposition were often singled out for assault by ZANU-PF people. He accepts that ZANU-PF supporters used intimidation which involves severe assaults. But he then says:

"Having observed the appellant give evidence at some length and having considered in detail the objective material and his interview I find that his account is credible in certain aspects but lacks credibility in others.

The appellant claimed to have had a significant and prominent position within the MDC, certainly in relation to his area. I do not find that to be credible in all the circumstances."

9. He says that he accepts the appellant's account that he may well have been involved to some extent in the activities of the MDC at local level and was caught up with some of the violence that then existed. He said:

"I do not find, however, that he was of the significance in political terms that he claims. I find that he has exaggerated that matter."

He then gives various reasons why he has found that. He points out that the appellant gave a very full account of his being a businessman upon arrival, which was wholly false. He then refers to various other bits of evidence given by the appellant, and says:

"I can place very little reliance upon the truthfulness of the account of the general claim as given by the appellant.

I accept the nature of the behaviour of the ZANU-PF supporters as described by the appellant is amply borne out in the objective material. The real issue in this case is whether or not those experiences were experienced by the appellant himself.

For the reasons which I have already indicated I do not find that the appellant was of particular political interest to his opponents as claimed. I do not find, therefore, that they pursued him in the way which he described."

He says later on:

"I do not find that the appellant is credible as to the experiences which he has sought to outline in Zimbabwe. I accept that it may well be that as a supporter of MDC he was involved to some extent in violence. I do not find, however, that it was violence directed towards him in particular."

He says a little later on:

"I find the purpose of the appellant seeking to come to the United Kingdom was by way of economic betterment and for no other reasons."

And then later on:

"For the reasons that I have already indicated I do not find that the appellant would be of any interest to the authorities were he to return nor do I find that he is the target of adverse attention from any particular violent group. In those circumstances I do not find that the appellant would face a risk of death or ill-treatment or degrading treatment were he to return."

10. As I read that decision the parts of the appellant's evidence which were accepted were those parts which related to the general situation in Zimbabwe (which is clearly very unhappy) and the fact that he was a supporter of the opposition movement in a general sort of way at a lowly level. But I am afraid I cannot see that the Adjudicator has been illogical in the way that is suggested. To say that a person is involved to some extent in violence, or has been, is not a very precise description, but in the context is clearly one applying to somebody who would be part of a crowd protesting against ZANU-PF matters.
11. Mr Lorie has sought to persuade me that the Adjudicator accepted the attacks which were described by the appellant as having been made upon him on the three occasions, including an occasion when his car was focussed on. But I cannot read the Adjudicator as saying that. On the contrary, as it seems to me in the passages to which I have referred, he expressly rejected them. In those circumstances I do not consider that there is a prospect of success in showing that the Adjudicator has made on error of law; and that is the only question which would face the court if I gave permission.
12. In those circumstances the application for permission to appeal is refused.
(Application refused; no order for costs).