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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Khumalo v Secretary Of State For Home Department [2002] EWCA Civ 746 (14 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/746.html Cite as: [2002] EWCA Civ 746

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

		The Royal Courts of Justice The Strand London Tuesday 14 May 2002

Tuesday 14 May 2002

1. LORD JUSTICE LONGMORE: This applicant seeks permission to appeal against a decision of the Immigration Appeal Tribunal of 7 January 2002, dismissing her appeal from the decision of a special adjudicator made on 30 July 2001, by which he decided the case against this applicant and effectively affirmed the refusal by the Secretary of State to grant her asylum and permission to enter.
2. The applicant -- with whom, as the single Lady Justice said, one has considerable sympathy -- is a citizen of Zimbabwe. She arrived in the United Kingdom in April 2001 and claimed asylum on the basis that she had a well-founded fear of persecution by the ruling Zanu-PF party in Zimbabwe, if she returned there, on the ground of her membership of the Movement for Democratic Change ("MDC") which is part of the opposition to the government, particularly in the light of her work as, and what she did as, a primary school teacher at the primary school where she taught.
3. The special adjudicator recorded certain important facts. He recited her account of the matters, saying that:

"She first encountered problems with Zanu-PF in mid-November 2000 when a group of people came at night to the school (where the Appellant slept) asking if she was a member of MDC and saying that schools belonged to Zanu-PF. They harassed her and others for 30 minutes and went away. That harassment involved beating."

4. The appellant saw a doctor after the attack. She went to Bulawayo to stay with her family, and also went later to Botswana where she stayed with her brother, returning in December 2000. She applied for extended leave from the school and went back to Botswana. She returned to the school in March 2001, thinking that the situation might have improved.
5. The second incident of harassment occurred towards the end of March 2001 at the same school. The applicant locked herself in the headmaster's office and after some beating of doors and of windows the Zanu supporters who had appeared then went away.
6. She left Zimbabwe on 10 April. She was asked certain questions on arrival in the United Kingdom and explained that she returned to Bulawayo at weekends from the school. When asked why she had not gone to Botswana after further difficulties in March 2001, she explained that going there would have been useless because "the people" would have been able to find her there.
7. The special adjudicator then went on to hold as follows:

"Although the background evidence before me is largely of difficulties encountered by teachers leading up to the election I nevertheless accept that it is possible that intimidation continued afterwards.

I think however the Appellant exaggerated the events which occurred in November 2000. At her interview, she explained that she was required by her assailant to lie down and she and her colleagues' faces were slapped. She believed those assailants to be Zanu-PF supporters. In her statement however the Appellant gives an account of rather more serious treatment. She said the ordeal involved kicking and being beaten. I think it surprising the Appellant did not mention these aspects in the interview and I thing it likely the more serious treatment did not occur. There is no dispute that the Appellant took some time off staying with her brother in Botswana but her leave expired and it was necessary for her to return in March. I think it significant on the second occasion when she was harassed and intimidated at the school she was not physically ill-treated. The trouble makers did not stay long and nothing more serious occurred. I accept they were Zanu-PF supporters."

8. The special adjudicator then came to his conclusion in the following terms:

"I do not consider the ill treatment which the Appellant suffered at the rural primary school was sufficiently serious or persistent to amount to persecution within the meaning of the Refugee Convention. In the light of the background evidence however there is a theoretical risk it might be unsafe for the Appellant to return to rural Zimbabwe where in her role as a teacher she might encounter further difficulties which could be more serious."

9. The special adjudicator then went on to consider the internal flight alternative. He held that Bulawayo was itself a safe area and it would not be unduly harsh for her to relocate in Bulawayo if she had to go back to Zimbabwe.
10. The applicant appealed to the IAT, who upheld the findings of the special adjudicator. She now seeks permission to appeal on two principal grounds. Firstly, the finding of fact by the special adjudicator, upheld by the IAT, that the risk of ill-treatment was merely theoretical is said to be (a) irrational and (b) to be based on an error of law, namely, based on the evidence of what had happened in the past without regard (1) to what would happen in the future and (2) whether the applicant had a well-founded fear of persecution in the future. Secondly, it is said that the special adjudicator and the IAT were wrong to say that the applicant could exercise the internal flight alternative.
11. In support of the application for permission to appeal, Mr Williams has emphasised the fact that there was before the adjudicator and the IAT a bundle of background evidence which indicates that those who supported the opposition to Zanu-PF, including MDC members, were indeed subjected to physical violence and that attacks on schools and teachers were particularly relevant.
12. I have come to the conclusion that it would be inappropriate to grant permission to appeal. I give my reasons shortly. As far as the first ground is concerned, it is said that the special adjudicator and the Immigration Appeal Tribunal focused mainly, or even exclusively, on whether the applicant had encountered persecution in the past. I accept, of course, that if the adjudicator and the Tribunal had not considered whether the applicant had a well-founded fear of persecution in the future, then that decision would have been flawed. But in practice what has happened in the past is almost always going to be relevant to the question of whether an appellant has a well-founded fear of persecution in the future, particularly where the situation in the country in question has not changed. It is a legitimate and sensible starting-point for the inquiry to determine whether the appellant has in the past suffered persecution which he or she claims to fear in the future. The first sentence of paragraph 6.7 of the adjudication, which was approved by the Tribunal, I have set out, and the adjudicator then went on in the second sentence to consider the future. He decided, in the light of the evidence before him, that although the applicant had not suffered persecution within the meaning of the Refugee Convention in the past there was "a theoretical risk" that she might do so in the future, but the risk was insufficient to persuade him that she had discharged the burden of proof that was on her of showing that she had a well-founded fear of persecution.
13. A subsidiary argument was based on the case of MM (01/TH/994) heard before the Immigration Appeal Tribunal on 17 May 2001, because the IAT in the present case distinguished MM on what were said to be insufficient grounds. In MM the facts were that the appellant was a schoolteacher who was passing on "the message" and that message was anti-Mugabe. I quote from paragraph 12 of the decision:

"That being so, there was ample evidence before the adjudicator to indicate that teachers were being targeted and so there was nothing surprising in the fact that this appellant [MM] was intimidated in the way that he describes ... because ... as an opponent of [Mr] Mugabe, he was preaching what was regarded as sedition to the school children whom he was teaching."

14. In the present case the finding made by the Immigration Appeal Tribunal was that the applicant had been advised by the headmaster to be discreet about the fact that she supported the MDC and that in relation to children she taught she had said that she told them to tell their parents if they were going to hold meetings. Mr Williams says that is a finding that she was going to publicise the meetings in much the same way as MM had preached sedition. I can only say I do not regard that as the true interpretation of those findings. It seems to me that the facts of the two cases are distinct from one another. Of course MM is not a binding decision in any event on the Tribunal and each case of this kind is fact-sensitive.
15. In the light of my conclusion on that point, the attack on the decision in relation to internal flight does not really arise. However, I did permit Mr Williams to develop his arguments on that and I will say also that I was not impressed by those arguments as showing any error of law on the part of the special adjudicator. It seems to me that his findings in this respect cannot be challenged. It is said that there is fresh evidence which shows that there is now persecution in Bulawayo but I was not shown any authority which indicated to me that on appeal on a point of law, that fresh evidence can be assessed by the court, since it would be impossible to say that the Immigration Appeal Tribunal had erred in law in not considering evidence that was not before them. Whether the evidence would be sufficiently compelling to justify a reapplication to the Home Secretary would of course be an entirely different matter.
16. Lastly, it was said that there was no proper assessment of whether it would be unduly harsh to require the applicant to invoke the internal flight alternative, but the special adjudicator and the Immigration Appeal Tribunal did consider that matter and I cannot detect any error of law in their approach. As I say, that is in any event irrelevant because I cannot detect any error of law in the first question that was before both the adjudicator and the Tribunal on the question of well-founded fear of persecution.
17. So I find myself in agreement with the single Lady Justice who refused permission to appeal and I will do the same.
18. I will add that it does seem to me that this is a case where the Legal Services Commission ought to have taken into account the considerations set out in Ullah v Secretary of State for the Home Department on 26 July 2001. Counsel, however, has assured me that that he had that decision well in mind when he advised that legal aid be granted in this case, and of course I accept that that was so.
19. MR WILLIAMS: In those circumstances, my Lord, may I have a determination assessment of the appellant's costs?
20. LORD JUSTICE LONGMORE: A what assessment?
21. MR WILLIAMS: Determination assessment.
22. LORD JUSTICE LONGMORE: Well, I suppose so, yes; as I indicate, slightly reluctantly, but yes, of course.
23. MR WILLIAMS: I am grateful.