PG v The Secretary of State for the Home Department [2015] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 112

P1176/14

OPINION OF LORD BANNATYNE

In the petition of

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner: Winter; Drummond Miller LLP

Respondent: McIlvride QC; Office of the Advocate General

18 August 2015

Introduction
[1] This matter came before me for a first hearing in which the petitioner sought judicial review of a decision of the respondent refusing to treat the petitioner’s further submissions as a fresh claim. The letter containing the said decision was dated 1 April 2014 (“the challenged decision letter”).

Background
The petitioner’s immigration history
[2] The petitioner’s immigration history is helpfully summarised in the respondent’s decision letter of 1 August 2013, number 6/1 of process, as follows:

“You claim to have arrived in the United Kingdom on 16/07/04 and were granted Leave to Enter the United Kingdom until January 2005. You failed to make any further application for leave to remain in the United Kingdom. You claimed asylum on 29/05/09. This was refused on 14/07/09 and your appeal against the decision was dismissed on 20/11/09.

You then applied for a High Court Review but this was refused by the Senior Immigration Judge on 15/12/09. You submitted further representations on 2/11/10 which were refused on 11/03/11. Your appeal to the First Tier was struck out on 27/05/11. Your appeal rights were exhausted on 27/05/11.

You submitted further representations on 07/03/12 which were refused on 20/11/12.”

The petitioner’s further representations
[3] The petitioner submitted further representations dated 8 July 2013. In summary these further representations were:

He claimed to have an adverse political profile with the MDC and ROHR
In support of this claim he submitted the following:
Letter from ROHR, dated 5/7/13
Online petitions
An internet article
ROHR branch minutes and email correspondence
A letter from Zimbabwe Action in Solidarity (ZAS), dated 2/6/13
A letter from Zimbabwe Vigil, dated 8/6/13
Numerous letters of concern from you to various organisations
Photographs of sur place activities with the ROHR and Vigil
MP’s Letter, dated 11/6/13

[4] The material findings in terms of the respondent’s decision letter dated 1 August 2013 were these:

First relative to submissions that had previously been considered:

“In determining your claim, reference has been made to the findings made by the Immigration Judge under the following case law Deveseelen [2002] UKAIAT 00702, it was held that ‘an assessment of the matters that were before the first Adjudicator, it should simply be regarded as unquestioned ... The first Adjudicator’s determination should always be the starting point.’ (Paragraph 39)

It was noted by the immigration judge that in your original submission application you made no mention of a political profile for yourself or your family members, which would have put you at risk of persecution on return to Zimbabwe. Also it was noted that you failed to mention any incidents where you had suffered any persecution in the past due to your political profile or that you attended MDC public meetings where you would have been identified as a supporter. Therefore the judge found that it was not credible that either you or your family had any adverse political profile. (para 47-48 of AIT).

The Immigration Judge in your appeal did not find you to be a credible witness in paragraphs 46-47 of the appeal determination and did not find you to engage Article 2 and 3 of the ECHR.

Your further submissions refusal letter dated 11/3/11 noted that you failed to provide any form of evidence to support your claim that you have a political profile in the UK due to your membership of the MDC, ROHR, Zimbabwe Vigil and Communities Point Organisation. It was considered that you had failed to show that you have a adverse political profile in the UK and you also failed to show how you or your family in Zimbabwe would be of adverse interest to the Zimbabwean authorities.

Your further submissions refusal letter dated 20/11/12 considered your sur place activities and it was considered that you are not at risk on return to Zimbabwe.”

[5] Secondly, relative to submissions which had not previously been considered:

“You have been in the UK since 2004 and the evidence you have provided of your ROHR activities are all dated 2013, it is further noted that your previous further submission refusal letter dated 11/03/11 noted that you claimed to be a member of the ROHR yet you failed to provide any form of documentary evidence of this. Again in your further submissions refusal letter dated 20/11/12 you did not submit any documentary evidence to show your involvement with the ROHR. It is considered that the documents you have provided to show your involvement with the ROHR have been made in an attempt to bolster an otherwise weak asylum claim and to address the failings identified by the Immigration Judge in your appeal and your previous further submissions refusal letters.

...

You are named as the sponsor on each of these petitions. It is noted that your name appears on the above documents and names you as the sponsor. ... is a free ‘do it yourself’ site for creating and promoting online petitions. It is further noted that when you printed these documents off on 05/07/13 that there was only a total of 22 signatures between the three petitions. It is considered that you have failed to show evidence that the Zimbabwe government are aware of these petitions, it is therefore considered that the petitions do not place you at risk on return to Zimbabwe and little weight is placed on them in support of your claim.

Consideration is given to your claim that you have an active profile which can be easily accessed on the internet. You further state that a ‘google search’ makes reference to your interview on YouTube with ... with the heading ....

It is not accepted that appearing on this internet based channel would bring you to the adverse attention of the authorities. There is a large amount of photographic and video evidence on this website and no evidence to show that people have been specifically targeted due to them being recognised and considered as activists on return to Zimbabwe. You have provided no evidence and it is therefore unclear how the Zimbabwean authorities would be aware of this video. Therefore, no weight is attached to your claim to have an active profile in support of your claim.

...

You do not have a significant political profile. Whilst you may raise some suspicion due to your length of stay outside Zimbabwe there is no indication that the CIO at the airport would have reason to view your absence with any suspicion. As stated above, the process of screening passengers on return is an intelligence led process and there is no evidence that you are of any interest to the authorities. You have failed to demonstrate how you, as an individual, would be at risk upon return at the airport or bring yourself to the adverse attention of the authorities.”

For the foregoing reasons the respondent refused to treat these further representations as constituting a fresh claim. The petitioner thereafter lodged further submissions by letter dated 21 October 2013 (6/2 of process).

[6] The respondent refused to treat the petitioner’s further submission as a fresh claim in a letter dated 1 April 2014, the challenged decision.

[7] In terms of the challenged decision letter the respondent took account of the previous findings of the immigration judge as set forth in the decision letter dated 1 August 2013 (see: paragraph 16).

[8] Thereafter the respondent dealt with the further evidence submitted by the petitioner and commented as follows:

“Submitted Evidence – ... printouts

17. From the printout of the ... upcoming events submitted in your client’s representations it is accepted that your client is recorded as the vice chairperson of [your local] branch of the ROHR for a meeting on 17 August 2013. On a search of your client’s name on the ... website on 28 March 2014, the result confirmed this mention. Your client’s disagreement with the findings in the reasons for refusal letter of 01 August 2013 that he was not accepted as a vice chairperson of [your local] branch of ROHR is not accepted, given that the Home Office letter was written 16 days prior to your client’s name being listed on the website as the vice chairperson for a branch meeting on 17 August 2013. It is also noted from this recent search of the ... website in March 2014 that this was the only event in which your client’s name was mentioned. The ... website also states it is a non political organisation. Your client now resides in Edinburgh and there is no information provided if his involvement with ROHR or the [local] Branch continues. It is not considered that a single mention of your client’s name in the non political website is sufficient to establish that your client has a political profile which would bring him to the attention of the authorities in Zimbabwe.

Submitted Evidence – results of Google search of client’s name

18. It is not considered that the evidence your client has provided of a google search of his name in October 2013 would bring him to the attention of the authorities on return to Zimbabwe. Full consideration was given to your client’s google search representations in the reasons for refusal letter of 01 August 2013 and it is not considered that your current representations provide any justification for departing from those findings. Your client has provided no evidence of why the Zimbabwean authorities would have an interest in him following his sur place low level political activity. As noted in the reasons for refusal letter of 01 August 2013, (Page 9:

‘It is noted in HS that the process of screening passengers is an intelligence led process and the CIO will generally have identified from the passenger manifest in advance, based upon such intelligence, those passengers in whom there is any possible interest. The fact of having made an asylum claim abroad is not something that, in itself, will give rise to adverse interest upon return. The case law of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUAT 59 (IAC) confirms that the situation regarding the risk on return at the airport remains the same as noted in HS.

The Immigration Judge did not find you to be at risk on return. It is considered that based on the evidence you have provided regarding your involvement with the ROHR, ZAS and Zimbabwe Vigil does not show you to have a significant political profile and there is no evidence that you would be of interest to the authorities on return. It is therefore considered that you have failed to show that you would specifically be at risk on return.

... As stated above, the process of screening passengers on return is an intelligence led process and there is no evidence that you are of any interest to the authorities. You have failed to demonstrate how you, as an individual, would be at risk upon return at the airport or bring yourself to the adverse attention of the authorities.’

19. Your client has provided no further information in his current representations which would lead to a departure from the reasons outlined in the Home Office letter of 01 August 2013. For all the reasons outlined above and in addition to the findings outlined in the reasons for refusal letter of 01 August 2013, it is considered that your client’s current representations, when taken together with all other material previously considered, do not create a realistic prospect of success before an Immigration Judge.”

[9] For these reasons the respondent refused to treat the further representations as constituting a fresh claim.

The regulatory background
[10] The petitioner’s submissions were considered by the respondent in terms of paragraph 353 of the Immigration Rules which provides:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.”

The approach of the court
[11] Both sides were agreed that the approach of the court in a judicial review of this type was as set out in ABC v SSHD [2013] CSOH 32 at paragraph 11:

“1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v the Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3. The court must ask itself two questions:

1. Has the Secretary of State asked himself the correct question? - that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).”

[12] In addition, with respect to rule 353 parties accepted that “the case which has no realistic prospect of success ... is a case with no more than a fanciful prospect of success.” (See: R on the application AK (Sri Lanka)) v SSHD 2010 1 WLR 855 at paragraph 34 per Laws LJ.

Submissions on behalf of the petitioner
[13] Mr Winter’s general submission was this: the respondent in the challenged decision letter had failed to exercise anxious scrutiny and accordingly the decision was irrational.

[14] Mr Winter turned first to set the legal landscape in which the decision was made and directed my attention to WM(DRC) v SSHD 2007 Imm AR 337 at paragraphs 22 to 26. He submitted that in the said case the Court of Appeal had observed that fresh representations may cast doubt on previous adverse credibility findings. He submitted that this observation was pertinent in the instant case, given that at an earlier stage adverse credibility findings had been made in relation to the petitioner.

[15] Mr Winter then took me to HS (returning asylum seekers) Zimbabwe CG (2007) UKAIT 00094 in order to set out the circumstances in which he submitted the petitioner would face a risk of persecution or serious ill-treatment on his return to Zimbabwe.

[16] In this country guidance case the Upper Tribunal gave guidance with reference to the issue of how immigration control in relation to returnees operated at Harare Airport. This would be the airport to which the petitioner would be returned, if he was unsuccessful in this judicial review. The Upper Tribunal’s material findings in relation to this were as follows:

“260. We have examined carefully those issues about which the Court of Appeal expressed concern. We have more extensive and up to date background and expert evidence as well as the benefit of hearing further evidence from W5 and W6 and receiving detailed submissions from counsel. We have explained why, as a result we see no reason to take a different view of the evidence as a whole from that taken by the Tribunal in AA(2). Indeed that is the view we reach ourselves on the basis of all the evidence now available. We have explained why the evidence of W5 and W6 does not support the proposition that violence is used during the initial interview that will take place at the airport. The evidence before us reinforces the finding that there is a two stage process at the airport and that anyone identified during the initial questioning that takes place at the airport as being of interest will be taken for interrogation. At that second stage there is a real risk of serious harm, but not before.

...

264. The CIO has taken over responsibility for the operation of immigration control at Harare airport and immigration officers are being replaced by CIO officers. We accept also that one of the purposes of the CIO in monitoring arrivals at the airport is to identify those who are thought to be for whatever reason, enemies of the regime. The aim is to detect those of interest because of an adverse military or criminal profile. The main focus of the operation to identify those who may be of adverse interest remains those who are perceived to be politically active in support of the opposition. But anyone perceived to be a threat to be or a critic of the regime will attract interest also.

265. The fact that the CIO has taken over responsibility for monitoring all returning passengers at Harare airport is not something that effects the level of risk. The evidence before AA(2) was that all deportees were handed over to the CIO for questioning in any event. Then, as now, those deportees will have been identified in advance from the passenger manifest and the CIO will have formed a preliminary view as to which, if any, are of further interest.

266. Large numbers of passengers pass through the airport. The CIO continues to recognise that it cannot question everyone; and so there is a screening process to identify those who might merit closer examination. We see no reason to suppose that the heightened role of the CIO would change this. There are now additional demands upon the CIO as it is responsible for monitoring all passengers passing through the airport, both on arrival and departure. We have set out the evidence that indicates in whom the CIO has an interest. This will be those in respect of whom there is any reason to suspect an adverse political, criminal or military profile of the type identified in AA (2). In addition, those perceived to be associated with what have come to be identified as civil society organisations may attract adverse interest as critics of the regime.

...

270. The question, then, is whether in respect of a deportee who has made an unsuccessful asylum claim before being returned to Harare airport, but about whom nothing is known such as to give rise to any adverse interest, he will be identified and detained for questioning, either at the airport or elsewhere.

...

276. There is certainly evidence of the political rhetoric portraying Britain as using asylum seekers as a cloak to conceal spies and saboteurs being sent back to destabilise the situation in Zimbabwe. The issue to be addressed is whether that assertion is believed and acted upon.”

[17] In addition he directed my attention to paragraph 34 in HS where it was confirmed that those at risk on return to Zimbabwe were those who fell into the risk categories identified in SM and Others (MDC-internal flight-risk categories) CG (2005) UK IAT 00100.

The tribunal in HS at paragraph 34 went on to give the following further guidance regarding risk categories:

“247. All those returned involuntarily to Zimbabwe will be identified as deportees as the respondent has no plans to change the method of removal. This will mean that the returnee will either be escorted, in which case the escort will hand the passport over to the authorities at Harare Airport or, if not escorted, the travel documents will be retained by airline staff who will hand them over to the authorities at Harare Airport. Although the airline staff has discretion with regard to the travel documents, the evidence does not indicate that in any significant number of cases the deportee is allowed possession of the documents before disembarking.

248. All persons identified as deportees will be diverted for questioning by CIO officers who are required to produce a report in respect of all persons who have been forcibly removed to Zimbabwe from the United Kingdom, whether escorted on the plane or not. There is no indication that the authorities in Zimbabwe have any means to distinguish between deportees who have made an unsuccessful asylum claim in the United Kingdom and those who have been removed simply because they have no leave to remain.

249. The purpose of the initial interview is to establish whether the deportee is of any interest to the CIO or the security services. The deportee will be of interest if questioning reveals that the deportee has a political profile considered adverse to the Zimbabwean regime. Further interrogation away from the airport may also follow if enquiries reveal aspects of a military history to be followed up such as being absent without leave or being involved in military activities outside Zimbabwe. Also, the CIO will refer to the police any issues of outstanding criminal matters such as arrest warrants. There is no evidence that the fact alone of a past criminal conviction, as opposed to an unresolved allegation of criminal activity or an outstanding arrest warrant, will give rise to such an interest. There is also no evidence that a simple fact that a returnee has in the past served in the Zimbabwean army will prevent the passage of a returnee through the airport after this first stage enquiry.”

[18] It was Mr Winter’s position that having regard to this country guidance on the issue of risk on return to Zimbabwe, the respondent had failed to exercise anxious scrutiny in the following respects:

The petitioner did not have to have a “significant” political profile, to come to the attention of the CIO on his return to Harare Airport.He contended that the respondent in her refusal letter had adopted the test of significant political profile when judging the question of risk.It was his position that to be at risk on return the petitioner merely had to have been critical of the regime.He in particular referred me toparagraph 264 above.The further representations he submitted showed that the petitioner would be classed as a critic of the regime.
Moreover, ROHR and the petitioner’s involvement with that organisation had not been the subject of anxious scrutiny.It had been said by the respondent in the challenged decision letter that this body was a non-political organisation.However, the aims of ROHR were these:

“Restoration of Human Rights (ROHR) Zimbabwe is a non-political organisation whose members are passionate and committed to bringing about change in Zimbabwe. We strongly subscribe to the founding principles of returning Zimbabwe to the apex of human rights vanguard and an economic powerhouse on regional and international levels. (ROHR) Zimbabwe is founded on the following objectives:- to educate and encourage Zimbabweans to stand together and demand that their human rights issues be addressed – to encourage active participation of Zimbabweans in governance issues including their constitutional rights – to work closely with other organisations that share the same objectives and values nationally, regionally and internationally.”

Given these aims it was his position that ROHR would be categorised as a civil society organisation in terms of the above country guidance and thus the petitioner’s association with it would lead to adverse interest by the CIO on his return to Harare Airport.

Beyond the above the respondent had failed to have regard to the number of occasions upon which the petitioner was named in the google search which formed part of the further representations.

Against that background Mr Winter submitted that there was more than a fanciful prospect of success before the First-tier Tribunal.

[19] Mr Winter accepted that the applicant in HS had been returned to Zimbabwe. He submitted that the petitioner’s circumstances could be distinguished from those of the applicant in HS on the basis of the factors within the further representations. He referred me to RM (Zimbabwe) v SSHD 2011 [EWCA] Civ 428. He did so in order to illustrate the other end of the spectrum from the applicant in HS. At paragraph 23 RM’s circumstances were set out as follows:

“It seems to me that the IJ’s analysis, far from being irrational or perverse, was careful and considered. First, RM undoubtedly was in a risk category, being the family member of a former member of MDC (SM and others, para 43; AA(2) para 244; HS para 282). Second, he did not, simply by placing RM in an SM and Others risk category, assume a real risk of persecution or ill-treatment. He noted the necessity that each case should be considered according to its own particular circumstances. This was, in my view, recognition that a theoretical risk is not the same thing as an actual risk. Third, IJ Sharp, in evaluating whether RM would be at actual risk on return, considered the likely outcome of RM’s arrival at Harare airport under a notice of removal. Fourth, applying HS, he correctly identified RM as a returnee who would be subjected to the first stage screening process, unlikely to be treated as a mere traveller. Once RM was subjected to the screening process IJ Sharp concluded that there was a real risk that their family association with a founding member of MDC (UK), living at the same address for several years, would be revealed. If and once the CIO became aware of the connection it was, IJ sharp concluded, likely that RM’s protestation that she was herself unconnected with MDC would be treated with further suspicion. It is likely that she would be detained for a second stage interrogation. In my judgment, none of these findings is in any sense irrational or perverse.”

[20] He contended that the petitioner fell somewhere midway between the applicant in HS and the applicant in RM and that the petitioner did face serious risk on his return to Zimbabwe.

[21] Lastly, Mr Winter referred to RT (Zimbabwe) v SSHD [2013] 1 AC 152 where with respect to the issue of a returnee “being discreet” on return Lord Dyson at paragraph 26 adopted the reasoning of Gummow and Hayne JJ in the appellant S 395/2002 case [2004] INLR 233 at paragraph 80:

“If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the charge of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be ‘discreet’ about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.”

[22] For all of the above reasons Mr Winter moved that I should grant the prayer of the petition.

Reply for the respondent
[23] Mr McIlvride submitted that I should sustain the respondent’s plea in law and refuse the petition.

[24] It was his position that the decision of the respondent could not be said to be Wednesbury unreasonable.

[25] He first turned to set out what he submitted was the relevant country guidance with respect to the issue of risk on return to Zimbabwe. It was his position that this was contained in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059.

[26] The procedural history of this case was he submitted of some importance. The previous country guidance case (EM) had been quashed by the Court of Appeal but only because of a failure to disclose material on the part of the respondent. There was no criticism by the Court of Appeal of the actual guidance contained in EM. The matter thereafter returned to the Upper Tribunal as CM and that tribunal had the benefit of the findings in EM and heard further representations following upon the disclosure of the material above referred to (see: paragraphs 167 and 168). The country guidance in EM was not amended (see: paragraph 210 and paragraph 214). The guidance was given in light of the decision in RT (see: paragraph 214).

[27] Mr McIlvride then directed me to the following parts of the country guidance given in that case which in his submission were relevant for the purposes of consideration of the issues in the present judicial review, this country guidance was contained in paragraph 215:

“(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, 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 the ZANU-PF.

...

(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connection will not face significant problems there (including a ‘loyalty test’), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.

(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has significant MDC profile.

(7) 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 the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre 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.”

[28] Mr McIlvride advised that paragraphs 6 and 7 above had been highlighted by him as the petitioner’s place of return, should he be returned to Zimbabwe would be Harare. This was not disputed by Mr Winter.

[29] Mr McIlvride went on to refer to paragraph 218(iv) of the decision which said this:

“The assessment of risk to CM proceeded on the basis of a preserved finding that any political profile he had in Zimbabwe was ‘of the lowest level’, as found by the tribunal in EM. He claimed to be politically active in the UK but waited some two years before joining the MDC here and the minutes provided at meetings at his local branch showed that his record of attendance was irregular and characterised by a conspicuous lack of activity.”

[30] Mr McIlvride pointed out that this was very similar to the circumstances in the instant case. Mr McIlvride contended that the respondent in reaching her decision had taken account of the following: The petitioner had been disbelieved that he was politically active in Zimbabwe. He had arrived in this country as long ago as 2004. No evidence of political activity had been produced until 2013. Mr McIlvride pointed out that this was a much longer gap from arrival in this country and political activity taking place than in the case of CM. He submitted that the petitioner’s “political activity” in this country, which was his involvement with ROHR as set out in the decision letters amounted to this: attendance at four meetings and in addition being shown as the vice chairperson of his local branch of the ROHR at a branch meeting on 17 August 2013. Mr McIlvride’s position was that this level of “political activity” was very similar to that of CM.

[31] Mr McIlvride submitted that given the above, the petitioner was not going to be someone that the CIO would think was worthy of any interest on his return to Harare.

[32] He then turned to paragraph 220 of CM which said this:

“When the appeal returned to the Upper Tribunal, CM adduced further evidence including local party minutes and screen-prints of photographs of MDC meetings posted on flicker, in which he could be seen. That evidence was clearly material and important. A letter from the MDC attached to CM’s witness statement dated 20 September 2012, further confirmed this connection with the party. CM’s further witness statement provided the tribunal with current evidence from his family circumstances in Zimbabwe.”

[33] Again Mr McIlvride submitted that the circumstances of CM were very similar to the circumstances put before the respondent by the petitioner in the instant case. Thereafter Mr McIlvride referred me to paragraph 222 in CM where a submission was made by the applicant which was on all fours with what was being said in the instant case. The submission was as follows:

“According to Mr Henderson, the risk to CM on return arises in two ways: first, because of the risk of adverse identification at Harare Airport. CM has been involved with the MDC via involvement at his local UK party branch and that connection, at the very least, is a matter of public record and a source of possible adverse identification. W83 had given evidence of CM’s MDC activities. A photograph showing CM appeared on the MDC website. Secondly, and on that accepted evidence, CM is not only nonaligned with ZANU-PF and opposed to it, but a supporter and member of the MDC. He was a local activist in Zimbabwe, engaged in fundraising activities and likely to be of interest to ZANU-PF and the CIO, particularly with the elections being imminent. There was a real risk of intrusive questioning at the airport in Harare. Even if he were able to pass through the airport, he would be at risk in Hatfield.”

[34] Thereafter at paragraph 229 the Upper Tribunal set out their views on this submission saying this:

“229. We were equally unimpressed by his attempts to present himself as an MDC activist in his local United Kingdom branch, despite the previous findings of the AIT judge and assessment in EM (as to which no arguable error of law has been identified). The materials show that he does continue to participate in branch activities but, having regard to our assessment of his oral evidence as a whole, we conclude that this reliance is part of a deliberate attempt to redress previous negative findings and induce us to change our assessment of his personal status. It does nothing to show a real risk that he would be regarded as worthy of hostile interest on or after return.”

[35] The Upper Tribunal thereafter concluded at paragraphs 232 and 233 as follows:

“232. Despite the evidence of W83, we were wholly un-persuaded that CM is now or would be on return of interest to the Zimbabwe CIO or other State security services. There is no reliable reason to believe that he would be interrogated about MDC activities at the airport and fall within one of the risk categories in HS. If the web-based information regarding CM had come to anyone’s attention at all, which we doubt, it would not lead to a risk of ill-treatment for that reason alone. In the light of the preserved assessment of absence of any significant MDC activities in Zimbabwe, we do not consider that there is any real risk that he would be assessed as an activist on return or would genuinely wish to engage in such activism. We do not find any reason to change the previous findings regarding CM’s assertion of activism whilst in Zimbabwe (EM [90]).

233. Accordingly, his case for international protection depends on the generic risk to any low level MDC supporter who is returned to Harare at the time of the promulgation of this decision. Applying the conclusions we have set out earlier regarding the status of EM and having regard to the fresh evidence concerning the general position as at October 2012 (which is the latest we have) and our findings thereon at paragraph 216 above, it is manifest that CM’s claim fails.

[36] Turning to the decision letters, Mr McIlvride highlighted in 6/1, (the passage I have earlier referred to at paragraph [5], when quoting the first paragraph under the heading “submissions which had not previously been considered”, and submitted that it was noteworthy that in the further representations the petitioner did not quarrel with the respondent’s assessment and produced no further objective evidence to counter that assessment.

[37] In 6/1 of process at page 7 of 21 there was consideration of the issue of a search on Google showing the petitioner to have an active political profile.

[38] Turning to the challenged decision letter the respondent gave full and anxious consideration to the further material produced and took account at paragraph 16 of the previous findings.

[39] Against that background he submitted that the conclusion at paragraph 19 could not be characterised as irrational. Rather, the conclusion was entirely reasonable.

Discussion
[40] I am of the view that there was considerable merit in the submissions made by Mr McIlvride.

[41] With respect to the issues raised in this case, I am persuaded that the decision in CM is of considerable significance.

[42] The first point of importance, which is dealt with in CM is the issue of: “significant political profile”. Mr Winter’s position was that the respondent had erred in law in applying that test when considering the petitioner’s further representations. This was identified as an instance of a failure to exercise anxious scrutiny. It is clear on a fair reading of paragraph 215(i), (1) and (5) of CM that the issue of whether a failed asylum seeker being returned to Zimbabwe has a significant anti-government profile is a relevant question in considering the question of risk on return.

[43] Secondly, CM is of some significance with respect to its analysis of whether CM would fall into one of the risk categories outlined in HS on his return to Harare Airport.

[44] The Upper Tribunal held that CM would not fall into any risk category. The factors they took into account in holding this included:

CM only had a political profile at the lowest level in Zimbabwe (paragraph 218(iv).In the instant case the respondent’s position, which was not challenged, was that the petitioner had no political profile from his time in Zimbabwe and moreover adverse credibility findings were made in relation to his position regarding his time in Zimbabwe.
CM had only become politically active two years after coming to this country (paragraph 218(iv).In the instant case it was only after nine years that the petitioner was said to have produced any evidence showing involvement with ROHR.Thus in the instant case there was a very substantial period while the petitioner was in this country when there was no “political activity” on his part.
At paragraph 229 the Upper Tribunal concluded:

“Having regard to our assessment of his oral evidence as a whole, we conclude that this reliance (reliance on his political activity in the UK) is part of a deliberate attempt to redress previous negative findings and induce us to change our assessment of his personal status. It does nothing to show a real risk that he would be regarded as worthy of hostile interest on or after return.”

[45] In the instant case a similar finding was made in 6/1 of process where this was said:

“You have been in the UK since 2004 and the evidence you have provided of your ROHR activities are all dated 2013, it is further noted that your previous further submission refusal letter dated 11/03/11 noted that you claimed to be a member of the ROHR yet you failed to provide any form of documentary evidence of this. Again in your further submission refusal letter dated 20/11/12 you did not submit any documentary evidence to show your involvement with the ROHR. It is considered that the documents you have provided to show your involvement with the ROHR have been made in an attempt to bolster an otherwise weak asylum claim and to address the failings identified by the immigration judge in your appeal and your previous further submission refusal letters.”

[46] The above finding in 6/1 of process was relied upon in the challenged decision letter (see: paragraph 19).

[47] I am persuaded that the respondent was entitled to take into account all of these factors in reaching her decision. They were all factors which were taken into account in CM and beyond that, looking at these factors without reference to CM I am unable to identify any reason why they would not form relevant considerations in deciding as to whether the petitioner would be regarded as worthy of hostile interest on or after his return to Zimbabwe.

[48] With respect to the further submitted evidence, the first piece of additional evidence was this: the petitioner was vice president of his local branch of the ROHR as at 17 August 2013. In terms of the decision letter of 1 August 2013 his attendance had been shown at four meetings of this branch of the ROHR. That is a very low level of activity in an organisation which is not political in nature. The position was not that the petitioner was an active member of the MDC, the main political opposition party in Zimbabwe. No evidence was produced by the petitioner to the respondent that membership of the ROHR would cause adverse interest to be taken by the CIO on his return to Harare. No objective evidence was produced to the respondent that the authorities in Zimbabwe would perceive ROHR as a civil society organisation. It seems highly doubtful that such a “political background” would even come to the attention of the Zimbabwean authorities. The respondent was entitled to hold that the foregoing did not show a political profile which would bring the petitioner to the attention of the authorities in Zimbabwe.

[49] Turning to the further representations based on the google search and the petitioner having an active profile thereon, this matter was specifically considered in terms of the decision letter 1 August 2013 where this is said at page 7 under the heading “internet”: “Consideration is given to your claim that you have an active profile which can be easily accessed on the internet.” Thereafter proper consideration is given to the issue and it was held that this would not bring the petitioner to the attention of the Zimbabwe authorities. The further evidence merely produced a Google search in relation to the petitioner and added nothing of materiality to what had already been considered.

[50] Against the above background I am satisfied that in the challenged decision letter the respondent is entitled to say this at paragraph 18 :

“Full consideration was given to your client’s google search representations in the reasons for refusal letter of 1 August 2013 and it is not considered that your current representations provide any justification on departing from those findings.”

[51] In my view the respondent was entitled to hold having considered all of the material before her including the further representations that there was no realistic prospect of an immigration judge holding that the petitioner would be exposed to a real risk of persecution on return to Zimbabwe. There was no evidence produced to show that the petitioner would be someone who would be of interest to the CIO on his return to Zimbabwe. There was no reason on the information produced to believe he fell into any of the risk categories identified in the country guidance. Beyond that it seemed most unlikely that any of the web based and other information relied on by the petitioner would come to anyone’s attention.

[52] His case was on all fours with CM, and came to this: it was based on the generic risk to someone who for a short period of time had at a very low level been involved in some activity in this country which did not fall in line with the position of the authorities in Zimbabwe. In light of the country guidance to which I have referred, if his actings were on his return discovered by the Zimbabwean authority, they would not put him in any risk category. Beyond that I am satisfied that it is difficult to see how such low level activity would in any event come to the authority’s attention.

Conclusion
[53] for the above reasons, I conclude anxious scrutiny was applied to the petitioner’s further representations. I am satisfied that the decision reached in the challenged decision letter was one which a reasonable decision maker was entitled to make.

Decision
[54] For the above reasons I sustain the respondent’s plea-in-law, repel the petitioner’s plea-in-law and refuse the petition. I was not addressed on the issue of expenses and reserve my position on that issue.