Nhengu v Secretary Of State For Home Department

J U D G M E N T

1. LORD JUSTICE KENNEDY: This is an asylum seeker's appeal against the decision of the Immigration Appeal Tribunal which, on 3 June 2003, dismissed the appellant's appeal against the determination of an adjudicator sitting at Birmingham.

Background

2. The appellant, who is now 24 years of age, is a native of Zimbabwe. He was born in Bulawayo and is a member of the Shona tribe, a substantial tribe in that region. He is unmarried. When living in Bulawayo he lived with his mother and his brothers. He worked as a cultural artist with a drama group called Young Warriors which, through the medium of national dance and music, sought to portray life as it is. The group performed on behalf of the Movement for Democratic Change and attended MDC rallies which angered the Zanu-PF youth, but he was not himself a member of the MDC.

3. The last time that the group of which he was a member performed at an MDC rally was in January 2002 at Matopo. After that the group performed at weddings and at end-of- school parties without incident.

4. On one occasion in late January 2002 the appellant was at a show in Entumbane when Zanu-PF youths came up and assaulted his group. There were injuries on both sides, and there was more trouble as they went home. They were attacked with stones and kicked. The appellant sustained injuries to his chest and his head. The matter was reported to the police and the police took statements but, he says, they then said that his group had started the violence and no action was taken thereafter.

5. On another occasion in April 2002 he was on his way to some shops in Entumbane when some youths approached and he fled. The youths took over the group's rehearsal venue and attacked the director's home.

6. The appellant then moved about 455 kms to Masuingo and after that he was not attacked. He remained there from April until August 2002. Then he met up with the group's director in Bulawayo and together they went to South Africa on 13 August 2002. Pausing there, it is worth noting that the appellant had never been arrested, nor had he been detained while he was in Zimbabwe. He did not seek asylum in South Africa because he says that the atmosphere was hostile.

7. He then travelled to the United Kingdom, arriving on 24 August 2002. The director who had gone to South Africa with him went back to Zimbabwe.

Claiming Asylum

8. On arrival in the United Kingdom the appellant did claim asylum, and by letter dated 30 August 2002 that application was refused.

9. He appealed to an adjudicator. That appeal was heard on 12 November 2002. The adjudicator found the appellant to be a "credible witness". On his behalf Mr Vokes before us this morning has stressed, and rightly stressed, that finding. The adjudicator also reminded himself of the test which he had to apply. In paragraph c. of his determination he said:

"c. In the case of Hovarth [2000] Imm AR 552 House of Lords, the test proposed by Stuart-Smith LJ, to establish refugee status, was held as correct by Lord Lloyd. This test stated that there were five conditions that an appellant must satisfy to establish his status as a refugee. These are 1. He is out of the country of his nationality because he has a fear of ill treatment. 2. The ill treatment he fears is of a sufficiently grave nature to amount to persecution. 3. The fear of persecution is well founded. 4. The persecution is for a convention reason. 5. He is unable or unwilling, owing to a fear of the persecution, to avail himself of the protection of that country. These are separate and discrete tests, each one of which must be satisfied."

10. The adjudicator then went on to remind himself what had been said about persecution by Lord Justice Staughton in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97, namely that it must at least be persistent and serious ill-treatment without just cause by the State, or from which the State can provide protection but chooses not to do so. He found -

1) that the appellant had a well founded fear of ill treatment. In his determination (at paragraph e.) he said:

"e. ..... I am satisfied having considered the objective evidence that the appellant has a well founded fear of ill treatment, and has fulfilled the first head of the test."

Mr Vokes submitted that the adjudicator was there referring back to what he had said about Ravichandran . With respect, it seems to me to be entirely clear that what the adjudicator was referring to was the five-stage test from Hovarth which he had set out two paragraphs earlier in his determination.

The adjudicator went on to say this:

"f. I am not satisfied however that the ill treatment is grave enough to amount to persecution. He was attacked and beaten up once. He sustained no broken bones and his treatment was the taking of pain killers. This does not satisfy [Lord Justice] Staughton's test, set out above. In the case of Balogh, Kelbelova [reference] it was held that the threshold in deciding whether there had been persecution is a high one and not every act of violence can be said to amount to persecution. It depends upon the circumstances in which it occurs and what can reasonably be expected to occur in the future."

11. The adjudicator, having reached that conclusion, then turned to deal also with the "internal flight alternative". That was clearly a second ground of his determination. He, in fact, found that alternative to be available and he dismissed the claim under Article 3 at the end of his determination.

12. The appellant then appealed to the Immigration Appeal Tribunal which gave leave to appeal on three grounds:

(a) that the adjudicator had concentrated on the question of whether the appellant's past experiences amounted to persecution without going on to deal with the future risk of it,

(b) that he took what might be a wrong view of the internal flight alternative, since the appellant claimed to fear persons "sponsored" by the government, and

(c) that he was arguably wrong not to consider the Home Office policy of not removing failed asylum seekers to Zimbabwe, as evidence that it would be unsafe to do so. Ground (c) was not pursued, and the Immigration Appeal Tribunal dealt with ground (a) in paragraphs 8 to 10 of its decision. It pointed out, rightly, that the adjudicator did not refer to Demirkaya v Secretary of State for the Home Department [1999] IAR 498. What the Immigration Appeal Tribunal said about that was this:

"As he [the adjudicator] did not also mention the Court of Appeal's conclusion in Demirkaya ..... that one act may be enough, but did refer to the appellant having been attacked and beaten up once, it is not entirely clear that he proceeded on a correct view of the law as to what amounts to past persecution."

13. That, as it seems to me, is a somewhat over succinct reference to the decision of the Court of Appeal in Demirkaya . In that case the court said (at page 446) that the determination of whether there has been ill treatment amounting to persecution is a question of fact. Lord Justice Stuart Smith said that in that case (page 446G) he suspected -

"that the Tribunal intended to find that although the appellant was at risk of some ill-treatment while in detention on his return to Turkey, this would not be of such a serious nature as to amount to persecution."

Thus drawing a clear distinction between ill treatment, on the one hand, falling short of persecution and ill treatment, on the other, which crossed that threshold. At page 448C he referred to Professor Hathaway's analysis and said that it was -

"helpful in showing that what conduct may amount to persecution is a question of degree. At one end of the scale there may be arbitrary deprivation of life, torture and cruel, inhuman and degrading punishment or treatment. In such a case the conduct may be so extreme that one instance is sufficient. But less serious conduct may not amount to persecution unless it is persistent."

Lord Justice Stuart-Smith then cited the words of Lord Justice Staughton in Ravichandran and continued:

"It would I think be open to a Tribunal to find that a single beating, unless it was particularly vicious or injurious, does not amount to persecution. But if there is a real risk of repetition the position would be different. I do not think therefore that the Tribunal's finding, that the appellant may be beaten on his return entitles the appellant to claim that that of itself amounts to persecution and the Tribunal must have misdirected themselves."

14. In the present case, having referred to Demirkaya , the Immigration Appeal Tribunal, as I have said, continued thus:

" ..... it is not entirely clear that he [the adjudicator] proceeded on a correct view of the law as to what amounts to past persecution."

The Immigration Appeal Tribunal then said at paragraph 9:

"9 That of course was not the real question before the adjudicator, but whether the appellant faced a real risk of such treatment on return. There he simply said 'It depends on the circumstances in which'"

and the tribunal interpolated

"'[ persecution ] occurs and what can reasonabl[y] be expected to occur in the future.' This was an unexceptionable, if perhaps rather anodyne statement of the question; but the adjudicator did not answer it.

10 Since however, the adjudicator had already found that the appellant did have a well-founded fear of ill-treatment by those responsible for the incident already mentioned, if he fell into their hands again, for which there was at least some political motive, we can take it that on the adjudicator's findings there was a real risk under either Convention at any point where he might do so."

15. Two points seem to me to stand out from those two paragraphs. The first is that in paragraph 9 the Immigration Appeal Tribunal misinterpreted the words used by the adjudicator. The adjudicator was not referring to persecution in the passage cited by the tribunal. It is quite clear that the adjudicator, when he said "It depends on the circumstances in which [it] occurs and what can reasonabl[y] be expected to occur in the future", was referring not to persecution but to an act of violence. That is clear from the previous sentence of his determination.

16. Having thus misinterpreted what the adjudicator had said, the tribunal then in paragraph 10 failed to draw the very distinction that the adjudicator had, on the authorities, rightly drawn between ill treatment, on the one hand, falling short of persecution and ill treatment, on the other hand, which crossed it. The adjudicator was entitled to draw that distinction. In the present case he found that the treatment to which the appellant had been subjected in the past did not cross the threshold and, quite plainly, he turned his mind to the future because he said at the end of paragraph f. that it depended on the circumstances what it was reasonable to expect to happen in the future.

17. The adjudicator's conclusion, in substance, was simply this that there was a risk that if this appellant were returned to Zimbabwe in certain circumstances he might suffer the sort of ill treatment to which he had been exposed in the past. But there is nothing on which the adjudicator could have found, nor did he find, that this appellant was at risk of anything more serious than that.

18. In order to deal with that difficulty, Mr Vokes, who has said everything that could possibly be said on behalf of this appellant, submitted that it was open to the tribunal to go its own way, to say on the basis of objective evidence that if this appellant were to be returned to Zimbabwe the tribunal, with its knowledge of conditions in that country, could find that there would be a risk of him being subjected to such ill treatment as would amount to persecution.

19. In my judgment, before the tribunal can even contemplate going its own way, it must first be satisfied that the decision of the adjudicator was wrong. In this case I am satisfied that if the tribunal had properly appreciated what the adjudicator had said in relation to this issue it would not have found that his determination was wrong, and accordingly, as it seems to me, this appeal must be dismissed on the basis that the adjudicator's finding should have been allowed to stand by the tribunal.

20. LORD JUSTICE CHADWICK: I agree.

21. LORD JUSTICE KAY: I also agree.

Order: Appeal dismissed with the costs.