1413372 (Refugee)

[2015] AATA 3689

1413372 (Refugee) [2015] AATA 3689 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413372

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Fraser Syme

DATE:16 November 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 November 2015 at 2:31pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old man from Zimbabwe. According to the applicant, he and his family members were harmed in the past by a relative, Mr M who holds a senior rank in the Zimbabwean military. After the death of the applicant’s father, Mr M sought to coerce the applicant’s mother to remarry with another relative of the applicant, Mr N, so as to access the property of the applicant’s family. The applicant’s mother refused and later took the applicant’s [siblings to Country 1]. The applicant remained in Zimbabwe. He was harmed by supporters of  the ruling Zimbabwe African National Union Patriotic Front (“Zanu-PF”) for his support of the opposition Movement for Democratic Change (“MDC”) and because he refused a demand of Mr M that the applicant join the Zimbabwean military and because of his family’s refusal to cooperate with Mr M. His grandmother and another person were murdered for sending documents regarding to Mr M to the applicant’s mother in [Country 1]. His former family home was subject of an arson attack by supporters of the Zanu-PF. He fears if he returns to Zimbabwe, he will be harmed by Mr M, or supporters of the Zanu-PF. Furthermore, because he has no relatives remaining in Zimbabwe he will be homeless and unemployed if he returns to Zimbabwe.

2. The applicant requested his claims be considered together with the protection claims of his sister, Ms F.

3. The applicant applied to this Tribunal [in] August 2014 for review of a decision made by a delegate of the Minister for Immigration [in] July 2014 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act (1956). The applicant included the delegate’s decision with the review application.

4. This review application raises the following issues for the Tribunal to determine:

   a.Has the applicant provided credible evidence.

   b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Zimbabwe.

   HISTORY OF THE APPLICATION FOR REVIEW

5. This is the applicant’s second application for a protection visa.

6. The applicant entered Australia on a student visa in August 2007, thereafter he was granted a number of student visas, the last of which expired in August 2012. He first applied for a protection visa in September 2010 (“the first application”). The department refused that application in March 2011. The Refuge Review Tribunal (“RRT”) affirmed that decision in March 2012. The applicant then applied for Ministerial intervention under s.419, which the Minister declined to exercise in March 2012. Following the decision in SZGIZ [1] (which is discussed in more detail below), the applicant applied to the department for a second protection visa in October 2013 (“the second application”). The applicant’s claims in the second application are essentially the same as those he raised in the first application regarding his fear of Mr M; his pro-MDC political opinion and lack of family in Zimbabwe. The delegate conducted an interview with the applicant in person in May 2014. The Tribunal has listened to a recording of that interview.

   [1] SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013

7. In the decision under review, the delegate found the applicant not to be a credible witness.  On the basis of country information, the delegate was not satisfied the applicant would face a real chance of suffering serious or significant harm if he returned to Zimbabwe.

8. The applicant appeared before the Tribunal in person on 21 July 2015 to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal hearing. The migration agent provided submissions prior to and after the hearing, which the Tribunal has had regard to as set out relevantly in more detail below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    The effect of SZGIZ and its relevance to this review

11. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ, the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed. 

12. As noted above, the decision under review is a valid application because the applicant is considered `SZGIZ-affected’ as he has not left Australia since the final determination of the first application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicant has standing to make the application under review to afford hearing of his complementary protection claims.

13. As the applicant has previously had his claims for protection assessed under s.36(2)(a), applying the reasoning in SZGIZ the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it must confine its consideration of the applicant’s claims  to whether he satisfies the ‘complementary protection criterion’ in s.36(2)(aa) of the Act.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

15. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is a DFAT Country Report - Zimbabwe (“the DFAT report”) published by DFAT, to which the Tribunal has had regard.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. In making its findings, the Tribunal is mindful the applicant has a tertiary level of education and was [age] years old at the time of the hearing. The applicant addressed the Tribunal in fluent English. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

18. The Tribunal finds the applicant is a national of Zimbabwe. He provided his Zimbabwean passport to the department and the Tribunal. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Zimbabwe as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the city in which the applicant was born and where he last lived in Zimbabwe to be his home region.

19. The applicant provided to the delegate with his first application: his and Ms F’s Zimbabwean passports; death certificates of his father and grandmother; an undated Z$10 MDC membership card; a letter from the MDC; and various news reports about Mr M. The applicant additionally provided to the delegate with the second application; the decision of the Minister not to intervene in Ms F’s case; a photograph of Mr M on a bed wearing a uniform (“the first photograph”); and news reports regarding political violence in Zimbabwe in 2008.

20. Prior to the hearing, applicant provided to the Tribunal newspaper reports regarding Mr M, the most recent of which was dated 2011 and indicating Mr M: was involved in a coup attempt against President Mugabe in 2007; was accused of having an affair, and holds a senior military rank. He provided too a letter from the MDC about his membership of that party. At the hearing, the applicant provided reports regarding human rights in Zimbabwe from Amnesty International, the MDC website and New Zimbabwe website.

21. After the hearing, the applicant provided another photograph said to be of Mr M (“the second photograph”) which the migration agent submits was taken at a family wedding the prior weekend and sent to the applicant by his cousin in Zimbabwe. Attached too is an article dated August 2015 confirming Mr M still has the same senior military rank and holds a leadership position in the joint operations of both branches of the military. The submission includes an extract from the Zimbabwean ministry of defence website stating both branches of the military operate under a defence joint command structure.

    Credibility of evidence of past harm

22. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). However, the Handbook also states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

23. The Tribunal notes it may have regard to the Handbook, but is not bound by it. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437. The Tribunal told the applicant it considered his credibility was in issue.

24. At the hearing, the Tribunal discussed with the applicant in detail each of his claims, from both the first application and the second application and the country information he provided as well as country information the Tribunal had access to. It discussed information from the decision of the RRT in relation to his first application. As requested by him, it had regard to the claims of his sister in her protection visa application, the delegate’s reasons for refusal of her protection visa and the decision of the RRT to affirm that decision. The Tribunal explained too the effect of SZGIZ and that the Tribunal would only assess his claims in relation to the complementary protection criterion.

25. After the hearing, on 30 July 2015 the Tribunal sent a letter to the applicant adopting the procedure in s.424A, to which the applicant replied on 13 August 2015 stating he had no further response or comment to make and relied on the evidence he had provided in the past to the department, RRT and the Tribunal.

26. In summary, the applicant’s claims are he fears if he returns to Zimbabwe he will be harmed by Mr M who he claims is his uncle and is a senior ranking military officer. He fears supporters of Zanu-PF will harm him at the bequest of Mr M and/or because of the applicant is a supporter of MDC. He claims his mother and [siblings] left Zimbabwe to go to [Country 1] because of threats of harm from Mr M. His mother though did not have sufficient funds to take the applicant too. He remained in Zimbabwe where he faced further threats from Mr M and supporters of the Zanu-PF. He claims he left Zimbabwe and went to [Country 2] to avoid harm from Mr M and Zanu-PF. At the hearing, although the claims was raised by Ms F and he asked his claims be considered together with hers, he explained has no fear that he will be harmed by supporters of the MDC because of his claimed relationship to Mr M. The Tribunal has therefore has not had any more regard to that issue. He further fears he will be homeless and/or unemployed if he returns to Zimbabwe as he has no relatives there and therefore will be forced to join the military.

27. For the following reasons, the Tribunal finds the applicant has not provided credible evidence of past harm.

28. Claimed relationship with Mr M: As evidence of the applicant’s claimed relationship with Mr M, he provided the first photograph. That depicts a man, wearing a uniform, in a relaxed pose on a bed. The applicant says Mr M gave the first photograph to the applicant’s father as a token of their friendship and relationship. The applicant claims if there was no such relationship, he could not be in possession of the photograph as Mr M is particularly sensitive to people having his photograph. The Tribunal put to him possession of the photograph was not very persuasive evidence of his being related to Mr M. While he had provided death certificates for his father and grandmother, he said he was unable to get birth certificates of his father and Mr M showing any relationship to Mr M. He said he was estranged from his extended relatives after the death of the applicant’s father. He did not collect any such evidence prior to departing Zimbabwe because he did not know he would apply for asylum one day. The Tribunal noted that was inconsistent with his claims he fled Zimbabwe due to fear of harm. The Tribunal further noted the first photograph of Mr M did not come to light until his mother was charged with fraud in [Country 1] for using a false passport (discussed further below). The applicant invited the Tribunal to compare the photographs of Mr M in the newspapers and the first photograph.

29. As noted above, the applicant provided a second photograph said to be of Mr M after the hearing. The migration agent submits this is evidence Mr M is still close to the applicant’s extended family and a continuing threat to the applicant.  The second photograph depicts two men in suits standing either side of a bridal couple. The Tribunal is willing to accept for the purpose of this decision that one of the men in a suit resembles the photographs of Mr M in the newspaper reports the applicant provided. Allowing for the passage of more than 30 years between the two photographs, the Tribunal is again willing to accept for the purpose of this decision there is a resemblance between the man in the second photograph and the first photograph.

30. The Tribunal notes there is no first-hand evidence from the applicant as to how he obtained the wedding photograph. The migration agent submits that the photograph was given to the applicant by a cousin. That is inconsistent with the applicant’s claims he is not in contact with relatives in Zimbabwe and has been estranged from them since the death of his father. There is no information as to what the relationship is between the applicant and the bridal couple or Mr M and the bridal couple or how this is a ‘family wedding’.

31. The Tribunal is not persuaded the applicant having possession of the first photograph of Mr M demonstrates Mr M is a relative of the applicant. The Tribunal is not persuaded about that for a number of reasons (which are set out in more detail below), including: that his mother has a fraud conviction in [Country 1] and it is his mother who provided the first photograph to him; the inconsistencies in the applicant’s own evidence; the applicant providing non-genuine newspaper reports; and the inconsistencies in the applicant’s evidence and the evidence of Ms F. The Tribunal places weight too on the applicant not providing the first photograph until his second application.

32. The Tribunal has had regard to the second photograph of Mr M the applicant provided after the hearing. The explanation as to how he obtained that photograph is inconsistent with his earlier evidence about being estranged from his relatives in Zimbabwe. Due to the lack of primary evidence from the applicant, the Tribunal is not satisfied the applicant received the second photograph from his cousin or that the photograph depicts Mr M at the wedding of any relation to the applicant.  The Tribunal considers the applicant providing the two photographs as an attempt to demonstrate a relationship with Mr M is an example of his seeking to rely improperly on that evidence to support his claims related to Mr M. The Tribunal considers the applicant so doing is supporting of its finding the applicant was not a credible witness and has fabricated his claims as a means to remain in Australia.

33. His mother’s delayed application for protection in [Country 1] and conviction for fraud. The applicant claimed his mother went to [Country 1] in 2001 to avoid harm in Zimbabwe and later took his [siblings] there, but the applicant remained in Zimbabwe. According to a transcript of proceedings before the [court, in] February 2008 his mother pleaded guilty to committing an offence of possession of a false identity document and [in] April 2008 was sentenced to [a term of] imprisonment suspended for 18 months. The circumstance of her offence was she used a [Country 3] passport to which she was not entitled to remain and work in [Country 1]. The Tribunal provided the applicant with a copy of that transcript with the s.424A letter, which he declined to respond or comment to.

1. The Tribunal discussed with the applicant his mother’s conviction for fraud made it difficult to place weight on claims of the applicant on which he relies on his mother as being the source. That included possession of the photograph of Mr M and the circumstances of the death of his grandmother. It noted his mother was convicted in [Country 1] for using a [Country 3] passport which she said a friend sent to her from Zimbabwe. She initially claimed she thought because the applicant’s father had worked in [Country 3] in the past, she was entitled to hold that passport. The Tribunal noted if that was the case, she could have taken the [Country 3] passport with her to [Country 1] when she left Zimbabwe. But her pleading guilty indicates she knew she was never genuinely entitled to hold that [Country 3] passport. The applicant replied that characterisation of the evidence was unfair, but then later agreed she pleaded guilty.

2. The Tribunal further commented about his mother’s delay in applying for asylum in [Country 1]. That was not excused by her holding had the [Country 3] passport as she was not entitled to that [Country 3] passport. Her delay in applying for asylum in [Country 1] undermined her claim she genuinely feared harm if she returned to Zimbabwe.

3. As set out in the s.424A letter, the fraud conviction of the applicant’s mother causes the Tribunal to question the credibility of the applicant’s claims which are related to information told to him by his mother, including the circumstances of the claimed death of the applicant’s grandmother and how the applicant’s mother obtained possession of the first photograph of Mr M. Her using a [Country 3] passport to which she was not entitled is further relevant because it suggests his mother remained in [Country 1] without proper authority from some time  after her arrival in 2001, yet she delayed her application to apply for asylum in [Country 1] until after her wrongful use of the [Country 3] passport was detected. That delay undermines the credibility of the applicant’s claim his mother went to [Country 1] to avoid harm.

4. The Tribunal considers the conviction of his mother for fraudulently using a [Country 3] passport in [Country 1] undermines the credibility of his claims. It undermines that his mother departed Zimbabwe due to fear of harm from Mr M because she did not apply for protection in [Country 1] upon arriving there, rather, she remained in [Country 1] on a passport to which she was not entitled. His mother having a fraud conviction undermines too the credibility of the applicant’s claims on which he relies on his mother as being the source. In particular, that the first photograph of Mr M on a bed was a gift to the applicant’s father from Mr M (discussed above) and the circumstances under which the applicant’s grandmother died (discussed below). The Tribunal considers the applicant’s mother being convicted of fraud in [Country 1] and delaying her application for protection both weigh in favour of finding the applicant has fabricated his claims.

5. The applicant providing fabricated newspaper reports of an arson attack on his former family home: The applicant claimed his former family home was subject to an arson attack which indicates an ongoing threat to him in Zimbabwe. He provided a newspaper article about that arson attack to the RRT dated [in] October 2011 ‘[headline]’. He told the RRT that report was published in [the] newspaper. According to information provided to the RRT by DFAT, the article he provided did not appear in the print version of that paper on that date. The Tribunal provide a copy of the print version of [the newspaper in] October 2011 to the applicant with the s.424A letter which the applicant declined to comment or respond to. The s.424 letter set out what the Tribunal discussed with him at the hearing, that his providing the newspaper report undermines the credibility of his claim there has been an arson attack on his former family home and that his willingness to purport the article appeared in the newspaper, when it did not, undermines his credibility generally.

6. At the hearing, the applicant told the Tribunal he asked a friend to find information about Mr M. But he did not check what his friend provided was genuinely published in that paper on that date. He did not know why his friend created the non-genuine news report. He denied that he asked or paid the friend to do that. The Tribunal noted his providing the non-genuine report undermined the credibility of his evidence. The Tribunal noted his earlier evidence that his mother had sold the house and therefore there was no connection between the arson attack and the applicant in any event. The applicant conceded he no longer sought to advance the claim the house was burnt in an arson attack due to any connection with him or his family. The Tribunal noted that nonetheless, he had provided the non-genuine newspaper report in support of his former claim.

7. The Tribunal is not persuaded by the applicant’s explanation he relied on his friend to obtain information for him and that it was the applicant’s error not to check whether the report was genuine. The Tribunal considers it implausible the applicant’s friend would create false newspaper reports unless asked to do so by the applicant. The Tribunal does not accept the applicant was unaware the newspaper report was not genuine at the time he provided it to the RRT. Albeit the applicant has since renounced the claim his former family home was subject of an arson attack, the Tribunal considers the applicant providing the non-genuine newspaper report weighs heavily in favour of finding the applicant has manufactured his claims and is not a credible witness generally.

8. Inconsistent evidence regarding the relatives of Mr M: The Tribunal discussed with the applicant In his evidence to the RRT, he said Mr M had [siblings] and that Mr M and his father had a close relationship. The RRT put to the applicant a newspaper report regarding the death in a traffic accident in January 2010 of [another sibling]. of Mr M. The Tribunal gave the applicant a copy of the news report with the s.424A letter. The Tribunal put to the applicant that he did not know the existence of Mr M having [another sibling] undermines the credibility of his claim that his father had close relationship to Mr M. At the hearing, the applicant said he did not know all his relatives and in Zimbabwean culture, there is no concept of a first cousin.

9. The Tribunal is not persuaded by the applicant’s explanation he did not know about Mr M having a [another sibling] for cultural reasons. The applicant has claimed there was a close relationship between his father and Mr M. The Tribunal therefore considers it reasonable the applicant would be aware of the number of [siblings] of Mr M. His not knowing that information undermines his claim his father had a close relationship with Mr M and is further reason in favour of the Tribunal finding the applicant has fabricated his claims.

10. Inconsistent evidence between the applicant and Ms F: The applicant requested the Tribunal to consider his claims a alongside the claims in the protection application of his sister, Ms F. The Tribunal put the following information from Ms F’s evidence to the applicant in the s.424A letter that the applicant declined to comment or respond to:

    a.while Ms F and their sister Ms P were residing in [Country 1] with their mother prior to January 2006, the applicant was left alone in Zimbabwe to face most of the threats. That is inconsistent with the applicant’s evidence to the RRT that he suffered no harm between 2001 to 2006 from Mr M. The applicant later changed his evidence to the RRT that threats began in 2005 from Zanu-PF. At the hearing, the applicant said he was always being pressured by Zanu-PF because of his MDC membership. As set out in more detail below, the applicant claimed to join MDC only in 2004. His claim he was pressured by Zanu-PF does not explain the threats prior to that date

    b.Ms F said Mr M pressured their mother to marry the cousin of their father, Mr N. This is inconsistent with the applicant’s evidence that Mr N is the [age] brother of their father. The applicant again replied at the hearing in his culture, there is no concept of first cousin all male relatives are regarded as brothers. The Tribunal noted it would be clear to Ms F whether Mr N and their father had shared parents or not. The Tribunal further noted the role Mr N played in his sister’s life would make him someone very memorable to her. Her father had recently died, her mother was being forced to marry Mr N and her mother and she left Zimbabwe because of that. The applicant replied perhaps Ms F became confused during the interview. The Tribunal noted she made the claim Mr N was their father’s cousin more than once. The Tribunal is not persuaded by the applicant’s claim Ms F did not know the correct relationship between Mr N and their father for cultural reasons. Neither is the Tribunal persuaded by the applicant’s claim Ms F was confused at the interview with the delegate. She provided that evidence not only during the interview.

    c.in January 2006, Ms F returned to Zimbabwe from [Country 1] on her way to Australia. That she would come to Zimbabwe and put herself at risk of harm is inconsistent with the applicant’s claims he had been harmed by Mr M and Zanu-PF. The applicant did not respond or comment on this information put to him in the s.424A letter.

11. The Tribunal considers the inconsistencies in the evidence between the applicant and Ms F undermines the credibility of  his claims he was harmed by Mr M or Zanu-PF at any time or that Mr M coerced his mother to marry anyone. Their evidence between the applicant and Ms F of when and from who the applicant faced risks is inconsistent. The Tribunal considers it implausible Ms F would be willing to return to Zimbabwe if the applicant was genuinely being harmed by Mr M or supporters of Zanu-PF.

12. The Tribunal places considerable weight on the applicant and Ms F providing inconsistent evidence as to the nature of the relationship between their father and Mr N. While mindful some of the events occurred while she was a child, the Tribunal considers it reasonable that Ms F would know whether Mr N was her father’s brother or cousin. The Tribunal considers the inconsistent evidence between the applicant and Ms F and his non-persuasive explanations are further factors weighing in favour of finding the applicant is not a credible witness and has fabricated his claims. 

13. Implausible evidence regarding the death of the applicant’s grandmother: The applicant claimed he was told by his mother that his grandmother sent the first photograph of Mr M from Zimbabwe to the applicant’s mother in [Country 1]. His grandmother asked her grandson to take the photograph in an envelope to the post office. The grandson invited a friend to accompany him to the post office. That friend (unbeknown to the grandson) was a member of the Zanu-PF youth league. The friend recognised the photograph of Mr M and informed Zanu-PF about the applicant’s grandmother sending the photograph of Mr M to the UK. Zanu-PF supporters then attacked and killed the applicant’s grandmother and another woman. On her deathbed, that other woman told a relative about their being attacked and the attacker’s mention of the first photograph.

14. The Tribunal put to the applicant information from Ms F’s application that she gave the department a DHL envelope addressed to their mother in [Country 1] with a post stamp dated [in] March 2008 which Ms F said was used to send the first photograph of Mr M to their mother. That envelope names the applicant’s ex-de facto wife Ms G as the sender. The Tribunal provided a copy of the DHL envelope with the s.424A letter. That the DHL envelope identifies Ms G as the sender undermines the credibility of his claim that his grandmother was killed as a consequence of her sending the photograph Mr M to his mother in [Country 1]. During the hearing, the applicant stated he was unsure that DHL envelope was the one in which the first photograph was sent to his mother as there were a number of documents being sent from Zimbabwe around that time.

15. The Tribunal noted it was difficult to accept that the first photograph of Mr M was so important, that Mr M was willing to have the applicant’s grandmother killed because of it. Yet, Mr M was willing to give the same photograph to the applicant’s father as a gift. The applicant replied the first photograph was of high importance to Mr M because it was being sent to his mother in [Country 1]. When asked how Mr M knew what his mother was going use the photograph for, the applicant said because the Zanu-PF youth told Mr M. The Tribunal expressed its difficulty in accepting the friend who accompanied the grandson to the post office would be able to recognise Mr M in the photograph. The applicant replied the friend was able to do that from having seen newspaper photographs of Mr M. The applicant’s earlier evidence was there are very few photographs available of Mr M. When giving that evidence, he emphasised his friend and ex-de facto Ms G had gone to the newspaper archives to provide the reports he gave to the Tribunal prior to the hearing. When that information was put to him, he then said he was referring to online photographs, but there are photographs of Mr M in the newspapers. He estimated the grandson was around [age] at the time and that the friend was maybe [age]. The Tribunal noted it had difficulty accepting as plausible the grandson was friend with a politically savvy [age] who happened to be able to recognise Mr M, who while he was a military officer with some profile, he was not a prominent politician. The Tribunal further expressed difficulty accepting that friend was also so well politically connected as to be able to inform Mr M about seeing his photograph. The applicant replied Mr M is well-known. The Tribunal commented why then was the applicant not able to provide more newspaper reports about Mr M.

16. The Tribunal put to the applicant information from the DFAT report regarding the prevalence of fraudulent documents in Zimbabwe, including that non-genuine birth and death certificates are readily obtainable. It noted the grandmother’s death certificate bore a different name, which it understood he sought to explain to be due to use of her maiden name. The applicant had no comment about that. He claimed the UK officials had found the death certificate of his grandmother to be genuine. The Tribunal invited him to provide evidence of that after the hearing. He did not do that.

17. The Tribunal is willing to give the applicant the benefit of the doubt that the envelope Ms F gave to the department was not the one which was sent to his mother in [Country 1]enclosing the photograph of Mr M. However, the Tribunal finds it implausible that Mr M became aware of the applicant’s grandmother sending the photograph to his mother in [Country 1] because a Zanu-PF youth league member accompanied the grandson to the post office, was able to recognise Mr M and inform Mr M about that. The Tribunal further finds it implausible Mr M would arrange for the bashing to death of the applicant’s grandmother and another person for so sending the first photograph to [Country 1]. The Tribunal is mindful the applicant is relying on information from his mother as the source of these claims and her conviction for fraud further undermines the credibility of the claims. The Tribunal considers these to be reasons in favour of finding the applicant’s claims are not credible.

18. Dates on MDC membership letters: The applicant told the Tribunal he joined the MDC in 2004. The Tribunal noted in his original application he did not mention he was a member of MDC. He said that was a drafting error of his former lawyer to omit that. The Tribunal put to him he still signed that statement. It referred to the two letters from the MDC and membership card he provided. The first letter dated January 2011 states the applicant was an active youth member of MDC-T since he departed Zimbabwe (to [Country 2]) in 2004 before the split in the MDC. He agreed with the information the Tribunal put to him from the DFAT report the MDC split occurred in 2005. It noted too his previous evidence he left Zimbabwe in 2006, which is after the MDC split and makes the information in the letter wrong. The Tribunal put to the applicant it was not just the case of a wrong date in the letter, but it refers also to the MDC split and he could not be a member of the youth MDC-T before the split, as MDC-T only existed after the 2005 split.

19. There are a number of other inconsistencies between the two letters. The second letter dated August 2015 is from the same author. The second letter does not acknowledge any error in the 2011 letter. The 2015 letter states the applicant was a member of MDC-T, not a youth member as was stated in 2011 letter. The 2011 letter states activities the applicant did for MDC-T, there is no mention of those activities in the 2015 letter. The 2011 states the applicant left Zimbabwe after being harmed by Zanu-PF. The 2015 letter states the applicant left Zimbabwe after being harmed by Mr M. The applicant explained the author does not know the applicant personally, the applicant’s friend asked the author to write the letters and may have given the wrong information. The Tribunal noted it was then questionable how much weight it could put on the letters if they did not represent the author’s personal knowledge of the applicant.

20. The Tribunal discussed with the applicant too the undated MDC membership card he provided. It indicated he had paid Z$10. Anyone who paid that fee would be issued such a card. The Tribunal noted too the applicant had provided differing evidence about whether he was an ‘active’ member of MDC. He said he had distributed some flyers to people.

21. Although at some point the applicant has paid the Z$10 membership fee to join the MDC, the Tribunal considers the multiple inconsistencies in the two letters undermine the applicant’s claim he was ever an active member of the MDC at any time. It place particular weight on the inconsistency regarding the date he left Zimbabwe in relation to the split in the MDC. The applicant’s explanation the author of the letter had no personal knowledge of the applicant further undermines that the letters credibly represent the applicant was ever an active member of the MDC or suffered any harm from the Zanu-PF or Mr M for reason of his being a member of the MDC. While the Tribunal is willing to accept the applicant is a low-level supporter of the MDC (discussed in more detail below), the Tribunal considers his providing the two letters to be further reasons supporting a conclusion the applicant has fabricated his claims.

22. Demand of Mr M the applicant join the military: The Tribunal noted the applicant’s claim he refused Mr M’s demands to join a branch of the military. The applicant agreed that that branch and the branch in which Mr M is an officer are separate branches of the military. It noted too his earlier evidence he assumed Mr M was looking to increase his influence in the other branch by having the applicant join that branch of the military, perhaps as a precursor to another attempted coup (newspaper reports the applicant provided indicate Mr M was allegedly involved in an earlier attempted coup against the Mugabe government). The Tribunal asked how as a new recruit to that branch if Mr M was in another branch would assist Mr M. The applicant replied there was an error in his earlier evidence, Mr M had actually had asked the applicant to join Mr M’s branch of the military, not the other branch. He said it was a typo. The Tribunal noted the applicant’s previous evidence consistently, was Mr M demanded he join the other branch of the military. The Tribunal considers the applicant changing his evidence at the hearing to be a further example of the applicant not providing credible evidence.

    Delay

1. The applicant applied for protection in 2010 although he arrived in Australia in 2007. He said he did not know much about protection visas at that time he arrived. He was hesitant to apply because of the difficulties his mother faced in her asylum claim in [Country 1] and hoped to rely on his student visa to remain in Australia. The Tribunal put his delay in applying for protection undermined the genuineness of his claims. Albeit he had a student visa, if he genuinely feared to return to Zimbabwe, it was reasonable to expect him to take steps to apply for protection without delay.

2. For reason of the numerous difficulties in the claims and evidence of the applicant set out above, the Tribunal rejects the applicant has suffered any significant harm in the past. It rejects that Mr M is the applicant’s uncle and it follows that the Tribunal rejects Mr M sought to coerce the applicant’s mother to marry Mr N or any other person. It rejects that his mother and his [siblings] went to [Country 1] to avoid harm from Mr M. It rejects that the applicant faced any threats of harm from Mr M while the applicant remained in Zimbabwe. It rejects Mr M demanded the applicant to join any branch of the military. It rejects he was harmed by followers of the Zanu-PF at the behest of Mr M or for reason of the applicant’s pro-MDC political opinion. It rejects the applicant went to [Country 2] to avoid further harm. It rejects the applicant’s grandmother was killed for sending the first photograph to the applicant’s mother in [Country 1].  It rejects the applicant’s former family home was subject of an arson attack by supporters of the Zanu-PF. The Tribunal considers the applicant has fabricated his claims or relied on claims fabricated by his mother of harm by Mr M or Zanu-PF supporters for the purpose of creating a backstory on which to apply for protection in Australia.

3. The Tribunal is willing to accept the applicant may have a political opinion of supporting the MDC and having regard to the newspaper reports provided to the department and to the Tribunal before and after the hearing, the Tribunal accepts Mr M is a high ranking military officer. The Tribunal further accepts if the applicant is removed to Zimbabwe, he would do so as someone who applied for asylum in Australia. 

   Assessment of real risk of future significant harm

4. The Tribunal has found above the applicant has faced no past harm. The Tribunal is mindful it must consider the applicant’s risk of significant harm not only currently but into the reasonably foreseeable future if he is removed to Zimbabwe.

5. General human rights: The applicant provided a number of reports regarding the general human rights situation in Zimbabwe. In summary, they include reports dated in 2015 of issues of: harm to journalists; delays in constitutional reform affecting human rights and police beating opposition protesters; harm to rural women; rural food distribution; demolition of housing; police harming street vendors; attacks on rural MDC supporters and a report from 2013 of the political situation prior to the 2013 election.  

6. When asked to explain how the issues discussed in those reports were relevant to a real risk of harm to applicant, he said it could happen to him either because of his support for the MDC or because of his relationship to Mr M. The Tribunal noted then the harm he feared was due to his political opinion and relationship to Mr M, not due to the general human rights situation in Zimbabwe. The Tribunal put to the applicant it appeared then that none of the reports he provided would appear to be relevant to his particular circumstances. He made no further comment. The Tribunal considers the applicant’s claims to be vague. He did not identify how any of the reports were relevant to his personal circumstances so as to represent a real risk he would suffer significant harm.

7. The Tribunal’s review of the reports also fails to recognise there being any suggesting the issues discussed in those reports would give rise to a real risk of the applicant suffering significant harm if he is removed to Zimbabwe.

8. Spending time in Australia and applying for asylum: The applicant explained he had been in Australia for a length of time and returning to Zimbabwe would be different to him. He further said he would be denied everything and have nowhere to go. The Tribunal indicated he had not identified any harm of a nature that would be a ground of significant harm. He added he was beaten before and may be beaten again. The Tribunal noted he claimed to be beaten because of his uncle and his political opinion. Not because he had been in Australia and applied for asylum. The applicant then conceded his asylum application in Australia was confidential and he would not be harmed for that reason.

9. The Tribunal discussed information from the DFAT report that returnees to Zimbabwe from Australia are not targeted for harm. It discussed too that not having family or a home or a job to return to in Zimbabwe would cause some distress and difficulty to the applicant, but that it was not cruel or inhuman treatment or punishment or degrading treatment or punishment. The applicant had no comment.

10. The applicant raised too if he returned to Zimbabwe it would cause him psychological harm. He had no medical reports regarding his having any diagnosed psychological condition. The Tribunal noted it possibly could not put much weight on his claims regarding that. He would be worried every day that Mr M would be coming to harm him.

11. The Tribunal does not consider there is a real risk the applicant will suffer significant harm if he is removed to Zimbabwe because he spent time and applied for asylum in Australia, he conceded that himself during the hearing and the DFAT report supports that conclusion. The Tribunal does accept the applicant may face difficulties re-adjusting to life in Zimbabwe and will also face difficulties finding somewhere to live and employment. The Tribunal notes however the applicant has shown himself to be resilient in the past having lived previously in [Country 2] and establishing himself in Australia. The Tribunal considers the applicant has exaggerated his lack of support in Zimbabwe exacerbating those difficulties or that he will suffer psychological harm. The Tribunal rejects the applicant will be forced to join the military as a last resort to support himself. It has difficulty accepting he is estranged from all his relatives but in any event, he gave evidence of being assisted by friends to obtain documents from Zimbabwe and that he has some contact with his ex-de facto partner Ms G. The Tribunal finds the applicant does not face a real risk of any form of significant harm if he is removed to Zimbabwe because of difficulties finding work or accommodation.

12. Relationship to Mr M: The applicant claimed during the hearing that using his high rank with the military, Mr M will know as soon as he returns to Zimbabwe. The Tribunal noted his mother was no longer in Zimbabwe and had sold her land and Mr M still had his military rank, why would Mr M be interested in the applicant. The applicant said Mr M still bore a grudge against him. The applicant raised too the possibility Mr M may be planning a second coup and that the applicant may be harmed because of that as a relative of Mr M. He was unable to explain why that might have any likelihood of occurring, other than it appeared Mr M still had a senior military rank and he had been involved in the earlier coup.

13. The Tribunal noted the newspaper reports before it indicated other persons accused of being involved in the first coup have been jailed or demoted, yet it appeared Mr M had not received any sanction. That suggested either Mr M had a limited role or had sufficient political capital and nous to maintain his rank notwithstanding any role in the coup. The Tribunal was willing to accept that suggested Mr M to be a person with some wherewithal and therefore it was plausible he had the capability of harming the applicant did he so desire. However, the Tribunal had doubts Mr M had as prominent a profile as the applicant was claiming or he would have been able to provide a greater volume of newspaper reports about Mr M.

14. On the basis of the news reports provided, given his position and his profile the Tribunal is willing to accept Mr M would have the wherewithal to target a person for harm The Tribunal however has rejected above that the applicant is related to Mr M, that Mr M coerced the applicant’s mother to marry Mr N or that Mr M threatened the applicant in the past. It follows that the Tribunal does not accept Mr M holds any interest in the applicant’s return to Zimbabwe nor would Mr M have any grudge against the applicant. The Tribunal considers there to be only a remote or speculative chance that applicant would face significant harm caused by Mr M if the applicant was removed to Zimbabwe.

15. Support for MDC: The applicant provided the MDC membership card and has claimed some low level political activity in support of the MDC. Although the Tribunal rejected above the applicant has ever been an active member of the MDC, the Tribunal is willing to accept for the purpose of this decision the applicant has some political opinion in sympathy with the MDC and is a low-level supporter of the MDC.

16. The Tribunal discussed with the applicant information from the DFAT the report that low level supporters of the MDC are at a low risk of being targeted for harm and the overall level of political violence in Zimbabwe has significantly lowered in recent years. The situation for MDC supporters in the applicant’s home area indicated MDC were in the majority in low and medium density areas. The applicant told the Tribunal he would continue to be a member of the MDC if he returned to Zimbabwe, he would be involved in anything he could do to help make changes. The applicant added not all instances of harm against MDC members are reported. Non-supporters of the Zanu-PF are denied many things. When asked to explain that, he noted a report he provided Zanu-PF members suspected of supporting former the vice-President were denied access to food aid (detailed in one of the human rights reports he provided). The Tribunal noted that was not related to the circumstances of the applicant.

17. The Tribunal considers the applicant has exaggerated his future political intentions to do anything he can to make changes if he is removed to Zimbabwe. The Tribunal finds the applicant continue what he has been in the past, that is a low-level supporter of the MDC. On the basis of the country information that low-level supporters of the MDC are not targeted for harm, particularly in the applicant’s home city and that the overall climate of political violence in Zimbabwe has lessened substantially compared to the past, the Tribunal considers there to be only a remote chance and therefore not a real chance the applicant will face significant harm as a low-level supporter of the MDC if he is removed to Zimbabwe.   

18. Having considered the applicant’s claims separately and cumulatively, the Tribunal considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe there is a real risk the he will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

    CONCLUSIONS

19. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2)(b) or (c).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Fraser Syme
    Member