SM (Zimbabwe) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the dismissal by the AIT of the applicant’s appeal against the refusal of asylum by the Home Secretary.

She arrived here from Zimbabwe in 2000 as a visitor and since then has remained here, as she admits, illegally. Finally in 2006 she sought asylum. That was refused by the Home Office and her appeal was dismissed by Immigration Judge Osborne. On a reconsideration which was then ordered, Senior Immigration Judge Eshun found that there had been no material error of law in Immigration Judge Osborne’s decision. She found there had been an error in the Immigration Judge’s declining to categorise the ill-treatment of opponents of the ZANU PF Regime as political, but it was immaterial because what mattered in law was the risk to the applicant personally, as she herself has recognised in her submissions to me today.

As to this, her father has been for a number of years the local chairman of the MGVDA, which is, as I understand it, a regional Matabele oppositionist movement. Although she claimed to fear persecution because of her father’s position, the evidence did not suggest that her father had suffered anything amounting to persecution therefore gave no basis for thinking that she in turn would do so. Her membership card was dated only shortly before she applied for asylum. Today she has read me a statement which says that her father is currently in hiding. That may be so but it does not by itself constitute fresh evidence of a real risk to her of persecution.

In addition the applicant gave a history of having on three successive occasions been raped by ZANU PF militants who had come to the house demanding proof of ZANU membership. The Immigration Judge was cautious about this evidence, both because of the repetition of the same scenario on three separate occasions and because the applicant’s immigration history and late application, in the Immigration Judge’s view, casts some doubt on her dependability.

The present renewed application for permission to appeal, which I refused on the papers, is made many weeks out of time with no good reason advanced for the delay. Indeed the applicant today tells me she did not even appreciate that there was a time limit for making this application. This alone would be sufficient reason, indeed a compelling reason, for refusing this application; but I should make it clear that in any event if the application had been made in time I would still not be justified in granting it, because no grounds are advanced, in spite of the heartfelt plea that is made for permission to remain here, on the basis of which this court could consider finding an error of law in the Senior Immigration Judge’s decision.

The applicant also seeks permission to introduce fresh evidence. It is in broad terms evidence about the continuing and deteriorating situation in Zimbabwe. The reception of fresh evidence is not ordinarily a function of this court. As I pointed out when dealing with this matter on the papers, new evidence which seriously changes the case for asylum may be considered by the Secretary of State, subject to the rules which provide for fresh claims. This court is ordinarily limited to considering whether, on the material before it, the AIT made a mistake of law; it is not concerned with whether it would have come to a different conclusion on the evidence.

For the reasons that I have indicated, there is no discernible error of law in the AIT’s decision. The Senior Immigration Judge was right to find that there had been an error of law by the first Immigration Judge, but equally right to find, for the reasons I have outlined, that it was not a material error.

The thrust of the grounds read to me today by the applicant is that even if there was not in law a good claim for asylum it was open to the Secretary of State in the exercise of her discretion to grant asylum and she should have done so. That is a very difficult claim for her to make out because discretion implies necessarily that the Secretary of State has a choice, and the choice was not exercised in the applicant’s favour. I do not find that surprising and it is certainly not a conclusion with which this court could interfere on grounds of law.

For these reasons I am not able to grant permission to appeal. If, as I say, new facts or new evidence amount to a fresh claim, then the rules make provisions for that to be considered by the Home Office. But for the present I am afraid there is nothing to support the application for permission to appeal.