Fine Balance To Determine AA Case

Analysis Lloyd Msipa
The AA case came before the full bench of the Court of Appeal on the 6th of March 2007 following a protracted legal battle between the two parties. In short, the issue under contention is, if the Home Secretary was to resume involuntary returns of failed Asylum seekers to Zimbabwe in the light of the ill-treatment of returnees at the Harare Airport, will this be contrary to the obligations of the United Kingdom under Article 3 of the European Convention on Human Rights.
The Home Secretary’s argument is premised on the grounds that involuntary removals to Zimbabwe from the United Kingdom of failed asylum seekers does not by that alone make them face a ‘real risk’ of torture or inhuman or degrading treatment.
On the 12th of April 2006, the court allowed the Home Secretary to appeal against a previous decision of October 15th 2005 that had placed a moratorium on all removals of failed asylum seekers to Harare. The decision of July 31st 2006 dismissed AA’s appeal on the basis that it failed to meet the requirements of the 1951 Refugee Convention and European Convention on Human Rights. It is the appeal by AA on this decision that the full bench of the Court of Appeal sat to deliver judgment following a reserved judgment a few weeks ago.
Put simply the legal team representing AA put forward four grounds of which they contended that the previous decision was flawed. They argued :
That the Tribunal failed to put sufficient weight on the oral evidence coming from witness 5 and 6, former Central Intelligence Operatives (CIO). These two former CIO operatives already granted refugee status in the United Kingdom worked at the Airport in Harare and they were largely involved in the handling of deported failed asylum seekers. They narrated the way they ill-treated failed asylum seekers when they arrived from the United Kingdom.
The second ground put forward by the AA legal team flowed from the first one. They argued that if the tribunal did at all consider the oral evidence of witness 5 and 6, then the standard they used was so high such that it exceeded the civil standard of proof, that of their evidence being more probably true than not. In simpler terms the evidence by the CIO operatives only required to be probable only to be believable. They argued that the tribunal raised this bar so high such that it amounted to the criminal standard of proof, that of beyond reasonable doubt.
The third ground argued that the tribunal had misdirected itself in law by requesting that AA show any evidence of any ill-treatment of previous returned failed asylum seekers. They argued that the tribunal departed from the real test required in such instances of ‘real risk’ in light of the evidence in place.
The forth ground followed from the third in that the tribunal drew an adverse inference in the absence by AA’s failure to provide evidence of ill-treatment of any failed asylum seekers.
Put simply, it is on the basis of the above that AA was decided on the 6th of March 2007. Basically the Court of Appeal saw no basis at law to consider the third and forth grounds of this appeal. They argued that they did not see any evidence of the alleged negative inferences by the tribunal; hence the Justices spent the better part of morning deliberating on ground number one.
After due consideration the Court of Appeal decided that it would not be possible to achieve finality in this matter. The issue of the oral evidence provided by the two former CIO operatives took centre stage. In particular the oral testimony by witness 5 to the effect that he still had contacts at Harare Airport who continually kept him up to date as the procedure used to deal with failed asylum returnees.
Witness 6’s evidence to the effect that the CIO as an organization had lost all professionalism due to corruption hence the danger to returnees required further consideration. It is for these reasons that the Court of Appeal decided to have this case returned to the same Tribunal that initial decided it for them to exhaust the oral evidence given by the two CIO Operatives. The Justices did not see it necessary to deal with ground number two.
What would be of interest to most Zimbabweans out there is the fact that the Justices raised the question that would be probable be answered by the reconsideration of the oral testimonies of the CIO operatives. Will a failed Asylum seeker forcibly returned to Zimbabwe face any ill-treatment at Harare Airport simply on the grounds that they claimed and failed to get political asylum? The Justices seem to doubt this. In fact they proceeded to allege that in the absence of any adverse political profile, military or criminal attributes a failed asylum seeker forcibly returned to Harare is unlikely to face ill-treatment. It is this fine balance that they hope the reconsideration of the oral evidence supplied by witness 5 and 6 will tip the balance to the latter.
Lloyd Msipa is a Lawyer and writes from London in the United Kingdom. He can be contacted at lmsipalaw@gmail.com.