1413930 (Refugee)

[2015] AATA 3324

1413930 (Refugee) [2015] AATA 3324 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413930

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Christine Cody

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2015 at 8:51pm

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

SUMMARY AND BACKGROUND TO THE APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented by her registered migration [agent], for the lodgement of the application with the Department, and during the application for review.

2. The applicant is a [age] year old Zimbabwean national who seeks to be granted a protection visa on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions. She fears harm from a number of people in Zimbabwe, including as arising from her connection with a claimed prominent member of the MDC, and the authorities’ views of the (imputed) political opinions of herself and her family. The Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor that there are 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 that she will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a protection visa. 

3. The Tribunal has before it the Department’s file relating to the applicant which contains documents including her protection visa application lodged [in] March 2013, her Form 80 (Personal Particulars), her statement sworn [in] July 2013, and other material including the recording of the delegate’s interview with the applicant [in] September 2013 (to which the Tribunal has listened) and supporting documentation she provided. The Tribunal also has had regard to the delegate’s decision to refuse to grant the visa dated [in] July 2014, in which he set out the reasons for refusal of the visa. Essentially she found that the applicant’s claims were not credible, and that she had fabricated claims that she had a profile with the Zimbabwean authorities in order to obtain a protection visa. The delegate was also concerned with the applicant’s 4 year delay in lodging her protection visa after she arrived in Australia, indicating that she did not have a strong fear for her personal safety or future well-being in Zimbabwe. She considered that the applicant’s true motive in lodging a protection visa was not a genuine fear of persecution but rather as an alternative migration pathway to remain in Australia.

4. The Tribunal’s file contains the application for review and a copy of the delegate’s decision record provided to the Tribunal by the applicant. The applicant provided submissions prior to the hearing (dated 14 July 2015), as well as a copy of the post-interview submissions provided to the Department [in] September 2013. The applicant attended a hearing before the Tribunal on 21 July 2015, where she gave evidence and presented arguments in English; and her agent was present. The Tribunal emphasised to the applicant at the commencement of the hearing that she should let the Tribunal know if she did not understand, and it could rephrase its question. The Tribunal considered the applicant’s English ability to be very good, and is satisfied that she was able to participate in the hearing, and adequately present arguments and give evidence. The Tribunal noted that there were occasions where she was silent when the Tribunal asked her questions, however this generally occurred when the Tribunal was putting concerns to her, and the Tribunal does not consider that this was as a result of any lack of ability to communicate. The applicant sought further time to produce documents after the hearing; although the Tribunal considered that such documents could have been produced before the hearing[1], it agreed not to make a decision and allowed further time for the documents to be produced. The Tribunal received further submissions and documents by way of letter dated 28 July 2015.

   [1] Migration and Refugee Matters Practice Direction of the AAT issued 1 July 2015, paragraph 5.1. 

5. The relevant law is set out in Annexure A. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Zimbabwe, 25 February 2014 (“the DFAT report”) as well as the relevant PAM.

   CLAIMS AND EVIDENCE

   The applicant’s claims and background

6. According to the documents produced by the applicant to the delegate (supplemented by her evidence to the Tribunal when relevant), the applicant’s background is as follows:

   ·     The applicant was born in Harare. Her ethnicity is Shona, and her religion is Christian. She speaks, reads and writes in both English and Shona.

   ·     She resided at the same address from [year] until 1999, moving to a new address in 1999, where she continued to reside until 2009.

   ·     She has [stated] years of education, firstly in Zimbabwe from 1995 until 2009 (culminating in studying for a [tertiary qualification at university] in Africa, Harare). She told the Tribunal that her father’s company paid for her school and university fees.  She then studied a [tertiary qualification at university] in Australia.

   ·     She did not list any employment in Zimbabwe. She told the Tribunal she did not work in Zimbabwe; she lived with her family.

   ·     She left legally from Zimbabwe with no difficulties. She came to Australia as a student.

   ·     The only employment she listed was as [an occupation] in Australia.

   ·     She is in contact with her family by Facebook, email and telephone.

7. The applicant’s claims from those documents are as follows:

   ·     Her mother’s best friend is [Ms A]. They were friends since before the applicant was born, and the families are very close. [Ms A] was an MDC member and [an official] of [a] Division of the party. She organised MDC meetings in her constituency, ordinarily in people’s homes.

   ·     [Ms A] started having problems in 2007 when ZANU-PF people were coming and harassing her at her house; that they would sometimes scratch her car or leave her with flat tyres; they would leave flags and threatening notes.

   ·     In May 2007, [Ms A] visited her sister in [Country 1]. Her husband [Mr B] and their children remained in Zimbabwe. ZANU-PF people started looking for her, and in August 2007, [Mr B] was attacked in their family home by people demanding to know the whereabouts of his wife.

   ·     In early October 2007, [Mr B] was threatened in his house in front of his children and tortured. After he was released, he told [Ms A] not to return to Zimbabwe and he stayed about 20 km away from the family home.

   ·     In early 2008 [Mr B] decided it was safe to return to his family home. He was again attacked by ZANU-PF people at home and taken away to an unknown location and tortured. He was hospitalised for a month with serious injuries, he went back into hiding until [Ms A] was able to arrange for him to join her in [Country 1], in around 2010.

   ·     The children were at boarding school during this difficult period however they returned home in April 2008 for school holidays. The father had not come home so the applicant’s mother would regularly go and check on them.

   ·     Toward the end of the holiday period, ZANU-PF went to the home and demanded information on the whereabouts of the parents. When the children said they didn’t know, ZANU-PF men threatened they would beat them if they didn’t have the answer the next time they came. The children returned to school, and from then on it was decided they would stay with the applicant’s family.

   ·     The children started living with the applicant’s family which led to adverse attention from ZANU-PF supporters.

   ·     The applicant started attending University in August/September 2008 and stayed away from home as much as possible because people were loitering around the home. When she walked, she would be shouted at, and pushed.

   ·     In 2009, people regularly began to intrude on their property.

   ·     [In] May 2009, the applicant was on her own and a group of men broke into the house. They demanded she tell them where they were hiding [Ms A]. When the applicant said she was not there, they threatened her with violence. They held her down and said they would take turns to rape her. However the phone rang and they were called to go somewhere else. They said they would return. As they were leaving one man set her dress on fire and [she] was burnt. Her parents came home and took her to a clinic.

   ·     After the incident to mother became very worried that the applicant would be attacked again, called [Ms A] and asked her to arrange to take the applicant and [Ms A]’s children. It was not possible for [Ms A] to take the applicant. Her mother then asked a relative, an Australian citizen, to help the applicant get an Australian visa. [Ms A]’s children left for [Country 1] about two weeks after the applicant left for Australia in July 2009.

   ·     In about mid-March 2010, her brother was attacked at home and decided to go into hiding in [a location] where the applicant’s [relatives] lived.

   ·     When ZANU-PF realised that the children had left they would visit about three times a week and whenever there were meetings in the neighbourhood they would repeatedly pass by the house, singing politically charged songs to harass and intimidate. The harassment of the parents has continued (although after the unity government was formed there was a lull in the politically motivated violence).

   ·     In October 2010, her father lost his position in October 2010 as the General Manager of [Company 1] after he was accused of sheltering MDC supporters. The family had to rely upon her mother’s [business], but on many occasions the [business’ property] were burnt out at night by ZANU-PF supporters, causing hardship to the family.

8. Thus, the applicant left Zimbabwe to come to Australia for safety. In Zimbabwe she was physically harassed and threatened by men supporting ZANU-PF. She fears that if she returns, she will be physically harassed by ZANU-PF supporters, security forces, police, and enemies of [Ms A]. She cannot obtain state protection because the authorities will be complicit. She cannot relocate.

9. The situation ahead of elections in 2013 is tense, as MDC supporters have been systematically targeted, assaulted, homes have been subjected to arson attacks; violence is directed at young people, and rape of women is used as a weapon, to intimidate the families of those viewed as opposing the regime.

10. She may have trouble because she supports the MDC. More importantly she is identified in Zimbabwe as someone who is associated with a high profile MDC activist who is thought to be active against the Mugabe regime.

11. The applicant discussed her claims and background with the delegate at interview. Some of her evidence is referred to in the delegate’s decision record provided to the Tribunal by the applicant.

12. The post-interview letter of 19 September 2013 provided submissions in relation to some of the issues raised by the delegate during the interview, including the significance of the timing of the applicant’s student visa application; the nature of the attack on her in May 2009; the significance of the period between her arrival in Australia in 2009 her application for a protection visa in 2013; and the reasonableness of internal relocation.

    The Tribunal

13. It was claimed that the applicant fears threats, abductions, physical violence or ill-treatment, sexual violence, torture or death by individuals associated with ZANU-PF-aligned militia. The reason for the harm feared was because she is a woman with a real or imputed pro-MDC political opinion, and associated with high profile MDC members and supporters. Country information was referred to in the submissions. She told the Tribunal that if she returns, she fears she will be physically attacked and raped by ZANU-PF supporters because they believe she has information pertaining to [Ms A] and her whereabouts.  She believes that if she is raped, she will get HIV.  The Tribunal asked the applicant whether leaving the country has any consequences for her in she did not respond other than to say she will be the new target to provide information about [Ms A].

14. She also told the Tribunal that people who are MDC, or assumed to be MDC sympathisers, have been disappearing, so she also fears this. She said she fears that she won’t be able to support herself because there are no jobs and people are not getting paid and she does not have a house.

15. The agent submitted that on the basis of past harm, and harassment, there is a real chance that the applicant would be subjected to harassment and physical violence. It was submitted that the incident in May 2009 occurred for a Convention reason (imputed political opinion). The Tribunal said it would accept that there was a Convention nexus if the claims were true, but it had concerns about the credibility of her claims.  

16. It was claimed that her brother had visited the home for the weekend at the end of May 2015; ZANU-PF approached the home and asked him questions including the whereabouts of [Ms A] and her children, and of the applicant. He said he didn’t know, he couldn’t answer questions; he was then physically attacked. Her parents arrived, and ZANU-PF ran away. Her brother has injuries, including a cut on his [head] and bruises and cuts.

17. The applicant told the Tribunal that her parents remain living in the family home in Harare. The Tribunal asked the applicant about the harassment that her family suffered. She said apart from her father losing his job and problems with [her mother’s business], her parents are harassed: about 5 times a year there is a significant event / political event, and ZANU-PF come in big groups to any house associated with MDC. Her parents are seen to be MDC supporters, so they are subjected to singing and threats (to the effect that ZANU-PF will “do away with” the MDC) and throwing stones. Other harassment occurs on average about every three months, she doesn’t know anything else that is said to her parents.

18. The agent said that ZANU-PF have been coming to the house, continually asking questions, threatening and asking about the applicant’s whereabouts after she left.

19. The applicant claimed that her mother stopped her [business] in March 2015 because of the harassment. When the Tribunal asked how they are surviving, she said they are doing ok, they are doing odd jobs, they own their house so they don’t need to pay rent, they grow their own food and occasionally the applicant sends money, as does [Ms A].

20. The agent suggested that the adverse employment situation should be taken into account in the context of relocation, and although educated, she would have to go to another area, where as a single woman she would not be not safe, nor would she be safe because of her association with a high profile political opposition figure, and because she came to Australia.

21. The post hearing submissions referred to some of the Tribunal’s concerns raised at hearing.

22. Further relevant evidence and information is provided below.

    FINDINGS AND REASONS

    Country of reference

23. According to the application form, the applicant is a Zimbabwean citizen. She provided a passport issued by the Republic of Zimbabwe. The Tribunal finds that the applicant is a national of Zimbabwe.  The Tribunal finds that the appropriate country of reference for the determination of the applicant’s refugee claims, and the receiving country for the determination of the applicant’s complementary protection claims, is Zimbabwe.

    Credibility

24. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

25. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

26. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

27. Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of her claims. The Tribunal considers that the applicant’s evidence was inconsistent, changing and not credible. The Tribunal sets out its reasons below.

    [Ms A]’s children

28. Firstly, the Tribunal was concerned that there were internal inconsistencies in her statement concerning when [Ms A]’s children start living with the applicant’s family. At paragraph 9, she claimed that they moved in from October 2007 (straight after the second torture of their father), however in paragraph 11 she claimed it was in April 2008, after the ZANU-PF men had come to the home and harassed the children and threatened to beat them. When this was put to the applicant, she said they did not come to live with them in 2007. Despite being given a further opportunity, she did not explain the inconsistency in her statement. The Tribunal considers this undermines her credibility.

29. Secondly, the Tribunal noted that [Ms A]’s husband, their children’s father, was twice located at that home and tortured, he had been in hiding from early 2008, yet  the children were permitted to return to that home and live there, alone, in April 2008 (with the applicant’s mother sometimes visiting them). The Tribunal noted that, according to the applicant’s claims, everyone was aware that ZANU-PF were desperate to discover the whereabouts of the children’s high-profile MDC mother, and it put to the applicant that it makes no sense that anyone would risk the children being left alone in the home, where they are clearly so vulnerable. When the Tribunal put this to the applicant, she said when “’it” first happened, they didn’t think it would happen again; the Tribunal noted that according to her statement, it had already happened twice (that the children’s father was tortured at the home);  it asked if she wanted to comment, and she said not at this time. The Tribunal considers the circumstances claimed to be highly unlikely, and to undermine the applicant’s claims, and her credibility.

    Claimed actions of ZANU-PF to obtain information about [Ms A]’s whereabouts

1. Thirdly, the Tribunal was concerned about the applicant’s inconsistent and not credible evidence concerning the actions of ZANU-PF to obtain information about [Ms A]’s whereabouts. In this regard, the Tribunal noted that [Ms A] had left in 2007; the children started living with the applicant’s family from (at least) August 2008; ZANU-PF had continued to seek the whereabouts of [Ms A]. In the circumstances, it did not understand why ZANU-PF would wait until May 2009 to come in to her home, to use violence to seek information about [Ms A]’s whereabouts. The applicant responded that she thinks ZANU-PF didn’t know the children were living with them until later. The Tribunal noted this was inconsistent with her statement, and read out to her paragraphs 12 and 13 of her statement, which indicated that ZANU-PF knew almost immediately that the children were living at their house:

   ·    the children moved in with them in the first week of August 2008;

   ·    men started coming to their house to abuse and harass and demand they give up [Ms A] or her whereabouts, and, from August/September 2008 when the applicant started attending university, she had to stay away alot because these people were loitering around the house, people would walk with her, shouting and pushing her; and

   ·    at the end of 2008 ZANU-PF supporters “continued” coming to the house, singing and shouting and demanding to know [Ms A]’s whereabouts.

2. When the Tribunal asked the applicant if she wanted to comment on this, she changed her evidence and said that the children were there for the one month holiday in August and ZANU-PF came to ask questions “but not much”, but they hadn’t seen the children, they saw the children in the November/December 2008 holiday. The Tribunal considered that her changing and inconsistent evidence undermines her credibility.

3. In any event, whether ZANU-PF knew about the children staying in August/September 2008, or even later in November/December 2008, according to her claims they did not undertake any violence to seek out information until the claimed attack on her in May 2009. The Tribunal put to the applicant that this did not appear to make sense if, as claimed, they were interested in the whereabouts of [Ms A]. In response the applicant said she was confused; the Tribunal repeated its concern; she then said that they would come and talk to her parents outside. The Tribunal said it doesn’t make sense that these violent people didn’t become more violent until May 2009. She responded that they are unpredictable and she doesn’t know how they work. While the Tribunal accepts that it is not possible to know the motivation or thought process of others, the Tribunal considers that in the claimed circumstances, the applicant’s claims are unlikely, and undermine her credibility.

4. The Tribunal put to the applicant that it did not seem that ZANU-PF wanted this information very badly, and it was difficult to accept that they would only concentrate on harming one person, namely [Ms A]’s husband, if the applicant and her family had the children. The applicant said that she is just saying this is what happened and she doesn’t know why they waited this long.

5. She claimed that it was her mother who was close to [Ms A] and that ever since 2007, and continuing to date, in 2015, ZANU-PF “people” wanted to know [Ms A]’s whereabouts She also claimed this is the reason why she was harmed, and why she will be harmed in the future (the Tribunal asked the applicant why she thought she was targeted by ZANU-PF, and she said that they wanted to know [Ms A]’s whereabouts; she was young, close to the family, and they thought she would have said something).

6. However, despite claiming that ZANU-PF members could be violent (which is consistent with the country information), she claimed that they did not use violent means to obtain information from her mother or father, about [Ms A]’s whereabouts. The Tribunal considered it highly unlikely that if they wanted information on [Ms A], they would not use their violent ways to get information from her parents, over an 8-year period during which they have wanted this information. This is particularly so as the Tribunal put to the applicant that it is her mother who is good friends with [Ms A]; her mother has remained there, in the family home in Harare, the whole time; yet they have done nothing to her, which does not make sense if, they seek information about [Ms A], and this is what they will ask the applicant about, upon her return. The Tribunal considered the failure to use violence on her parents to be even more unlikely given her claims that they were prepared to torture [Ms A]’s husband twice to get information on her whereabouts, and given her claims that ZANU-PF were aware her parents were harbouring [Ms A]’s children. When the Tribunal put this to the applicant she agreed that no physical violence was used on her parents, but said they were harassed (including that her father lost his job in 2010 and her mother’s [business] was affected). The Tribunal notes that these actions did not yield results for ZANU-PF (ie information about [Ms A]). The applicant said that they knew the parents wouldn’t give up the information; the Tribunal does not find this persuasive, especially considering that they were prepared to torture [Ms A]’s husband. The Tribunal considers that if they really sought such information, the with their predisposition to violence, they would have used physical violence on the parents. The Tribunal considers her evidence that they did not physically harm her parents despite wanting information about [Ms A] to undermine her claim that they had any interest in obtaining information about [Ms A].

7. The Tribunal was further concerned because when it asked the applicant what ZANU-PF had been saying to her parents, she did not suggest that their people had even been asking about the whereabouts of [Ms A]. The Tribunal considers that this undermines her that ZANU-PF have an interest in her whereabouts.

8. The applicant told the Tribunal that ZANU-PF focus on the children. The Tribunal put to the applicant that this was difficult to accept, in particular noting that since she left in 2007, [Ms A]’s children also left in 2007, and her brother left between 2010 and 2015, therefore there were no children for ZANU-PF to harass for this information.  The Tribunal considers the applicant’s claim that they considered the best way to obtain information about [Ms A] was from the use of violence on children, to be not credible (particularly noting that they could have harmed the children while they were still living in their own home, when they had been approached and threatened by ZANU-PF, and also when ZANU-PF were aware that [Ms A]’s children were in the applicant’s family home, but did not take any steps to harm them or seek information from them). The Tribunal finds the applicant’s explanation as to why her parents were not attacked (i.e. they only attacked the children) to be inconsistent with their attack on [Ms A]’s husband, and their failure to attack [Ms A]’s children.

9. In the circumstances, the Tribunal considers it not credible that ZANU-PF did not take any violent steps to obtain information from her parents, particularly considering her mother’s close connection to [Ms A], said to be a high profile MDC member.

10. The Tribunal considers the applicant’s claims and evidence about ZANU- PF people wanting information about a high profile MDC member called [Ms A] to be highly unlikely.

    The incident of May 2009 (lead-up and following events)

11. The Tribunal had a number of concerns about the credibility of the claimed incident in May 2009, as set out below.

12. Fourthly, the Tribunal was concerned because the applicant provided inconsistent evidence about the whereabouts of her family on that day. In the hearing, the applicant said that she wasn’t left alone for a long time by herself, she didn’t predict this would happen and she didn’t lock the door, her mother had gone out with the children to the markets and her father had gone to work. The Tribunal noted that this was inconsistent with what she had said at interview, as set out in the delegate’s decision record, namely that her parents and [Ms A]’s children were at her mother’s [business]. The applicant did not explain the inconsistency when asked at hearing. The Tribunal does not accept the submission in the post-hearing letter (referred to later in paragraph 68), that this is a minor inconsistency.

13. Fifthly, she told the Tribunal that she had been left alone at home, the door was unlocked, and the people just walked straight into the house. The Tribunal notes that: there was a constant hunt for [Ms A]’s whereabouts; ZANU-PF knew that the applicant’s family were harbouring the children; the applicant claimed it was difficult to leave the house, she was scared, her father would accompany her to university “for her safety”, in 2009 “people began to regularly intrude onto our property”.  The Tribunal said that it did not make sense that, in the circumstances, her parents would leave her home alone, with the door unlocked. In response, she said that ZANU-PF had never laid a hand on children. The Tribunal put to the applicant that it did not seem likely that her parents would be willing to take that risk. She responded that it was in broad daylight and they didn’t think anything would happen. The Tribunal does not accept this explanation because of the claimed circumstances.  

14. Further, as put to the applicant, her explanation (they had never laid a hand on children) was inconsistent with her statement, where she claimed that from about August/September 2008 it was difficult to leave the house, she stayed away as much as possible, because “people would walk with me, shouting and pushing me”. When the Tribunal asked for her comment on this, she said that although they had pushed her, they had not hit her. The Tribunal notes this is inconsistent with her claim that they had never laid a hand on children (and thus would not lay a hand on her). The Tribunal also notes that she had claimed in her statement that ZANU-PF had, prior to this, threatened to beat up [Ms A]’s children in about April 2008. Thus, there were threats to harm children which had been made one year prior to the applicant being left home alone with the door unlocked, in circumstances where people were regularly intruding on their properly; the Tribunal does not find this credible. The Tribunal is also concerned that the applicant changed her evidence when concerns were put to her, which also undermines her credibility. 

15. Sixthly, according to her statement, the ZANU-PF men who had attempted to rape her said they would return, and if they didn’t get answers, they would finish what they started. However, the Tribunal was concerned that after the incident at her home, she remained home for a further six weeks until she left Zimbabwe. The Tribunal noted that [Ms A]’s husband managed to go into hiding, and asked why did she not go into hiding. She responded that she had nowhere else to go, and her mother was trying to get her out of the country.

16. The Tribunal put to her that her brother was able to move, going to their aunt and uncle’s home; and [Ms A] has a significant role in the MDC, she would have contacts, her mother could have asked for [Ms A]’s help to get the applicant into hiding.  The applicant did not engage with the Tribunal’s concern, instead she just said that it was an emotional time and she needed to stay with her mother and [Ms A] was informed of what happened and she had said she would try to get her to [Country 1]. The Tribunal put to the applicant that if she needed her mother, she could have accompanied the applicant to her aunt/uncles’ home.

17. The agent submitted at hearing that it was reasonable for the applicant to have remained at home for the 1.5 month period between May 2009 until she left for Australia. The Tribunal does not find this persuasive in light of the claims that these people were intent on obtaining information, their propensity for violence, and the claim that they had said they would return.

18. The Tribunal’s concern in this regard was heightened because, as put to the applicant, ZANU-PF had plenty of time to come back for the information (six weeks while she was still at home) yet they did not do so. When the applicant was asked about this, she said “yes”. The Tribunal considers that their claimed failure to return to seek the information that want undermines her claim that they have interest in her, and in pursuing her for information concerning the whereabouts of [Ms A].

19. Seventhly, the Tribunal was concerned about her evidence concerning the timing of the claimed incident, and her application to come to Australia. According to her statement, it was after the incident that her mother was worried she would be attacked again, and started making arrangements to have the applicant leave the country. However, this was inconsistent with the timing of her student visa application which was lodged before May 2009 (as put to her at the delegate’s interview)[2]. The Tribunal has taken into account the applicant’s responses when this issue was put to her; namely that she only found out later that the student visa application had been lodged before the incident; her mother did not tell her what she was doing.

    [2] As set out in the September 2013 submissions.

20. The Tribunal has considered this explanation, expanded on in the September 2013 submissions, namely that the applicant was mistaken, and that her family had made the visa application because they were concerned for her safety “in light of the frequent harassment”. The Tribunal notes that this explanation, confirmed by the applicant, is inconsistent with a concern previously put to the applicant; the Tribunal considers that if, even before the May 2009 incident, they were so concerned about her safety such that they thought they had to get her out of the country, then this is even more reason for them not to have left her alone in the house in the circumstances.

    Changing evidence about political involvement

21. Eighthly, The Tribunal was concerned about the applicant’s changing evidence about political involvement. She claimed in her statement “I support MDC, which may cause me trouble”. The submissions of September 2013 also state that the applicant has an “actual pro-MDC political opinion” . However, she told the Tribunal that she had no political involvement at all. The Tribunal sought her confirmation of this response and she agreed. The Tribunal asked whether she had claimed to have attended meetings previously and she said no. This however was different to the reference in the delegate’s decision record that the applicant had claimed to have attended meetings. She told the Tribunal that her family is not involved in the MDC, except that her father supports MDC, he thinks they are good, but he doesn’t tell anyone his opinion; he is not known as a supporter. And as far as she knows, there is no one else in her family who is involved in MDC, and not her (she also claimed however that their home was known to be MDC supporters/harbourers).

22. The Tribunal put to her that in her statement she had claimed to be an MDC supporter which may cause her trouble. In response she said that she feels ZANU-PF should not be in power and MDC should, but she does not attend meetings or anything like that. The Tribunal considers that if she was an MDC supporter she would have given consistent evidence in this regard; and that her evidence undermines her claim to be an MDC supporter (or that there is any reason for her to be imputed as an MDC supporter). The Tribunal has considered the post-hearing submissions which suggest that the applicant was confused in this regard, the Tribunal does not however accept this.

    The airport

23. Ninthly, the Tribunal noted that when she left Zimbabwe, she left through the airport, using her own passport, and she was permitted to leave with no questions about [Ms A]’s whereabouts, or no attempt to stop her from leaving. The Tribunal put to the applicant that the authorities could have used the opportunity to at least question her about this high-profile MDC supporter that she is connected to. In response, she claimed that at the airport there is a lot of international press and so they don’t hurt people at the airport. She said she also had an aunt who accompanied her, and as she went at the last minute, only immediate family were aware of her departure. The agent submitted in the post-hearing submission that these were reasonable explanations. The Tribunal has considered the explanations, however, it does not find them persuasive. The Tribunal notes that in the pre-hearing and post-hearing submissions, references were made to the DFAT Report confirming that there is government influence throughout all levels of civil service, law enforcement and the militia, including in the Central Intelligence Organisation, the Armed Forces, and the Zimbabwean Police Force; and that a number of ZANU-PF supporters have control of major police and security networks, as well as powerful legislative, administrative and commercial positions[3] . As put to the applicant, security at the airport are entitled to ask questions, and they could have easily asked her questions. She said that her name would have been on the intelligence database; the Tribunal considers it is highly unlikely that if she was a source of information about this high profile MDC member, and the authorities have been after information for 6 years, that they would just let her leave the country without taking the opportunity to ask her questions.  

    Delay in lodging protection visa application

    [3] Prehearing submissions, paragraph 3.4, and post hearing submissions, paragraph 4.4, both referring to the DFAT Report.

24. Tenthly, the Tribunal was concerned about the delay in lodging her protection visa application form. According to her application form, the reason she came to Australia was to seek safety. The Tribunal notes that she arrived in Australia with a student visa. She told the Tribunal that she had failed a subject three times which meant that she was prevented from finishing her course, and she stopped studying in 2011 but she could not recall which month. She claimed she received advice from an academic counsellor, in the international office at the university, that she could stop studying for one year and then start again. The Tribunal expressed surprise at this suggestion, noting she was on a student visa. The applicant claimed to believe that she was allowed to remain here for one year, doing nothing, and then she could start studying again.

25. She claims that she applied for and was offered a place in another course but that she could not raise the funds for it, and it was at this time that she took advice about a protection visa application.

26. The Tribunal suggested she could have obtained migration advice much earlier, in 2011 when she had her difficulties: she said she did not do so. The Tribunal also found it highly unlikely that she was unaware that her visa had been cancelled [in] September 2011 until she was informed of this in the Departmental (protection) interview (September 2013). In this regard the Tribunal noted that she had undertaken a series of appeals with the university from February 2011 until June 2011: she was notified [in] June 2011 of the right to an external appeal but she did not do so. The Tribunal noted that she did not undertake the external appeal, and suggested it was highly unlikely that she would think that her visa would not be cancelled in these circumstances. In response the applicant said she did not think, and maybe she did not know about the visa cancellation because she moved address and did not notify anyone of her new address; the Tribunal notes the reference in the delegate’s decision record that when her student visa was cancelled in September 2011, she was unable to be located[4]. The applicant told the Tribunal that she should have known it was cancelled but she didn’t receive the notification because she moved addresses and didn’t inform anyone, which was her fault. She said she  knew her visa was in trouble because of the appeals but she was hoping to go back to school in one year, and she didn’t claim protection because she thought she could do it through another avenue.

    [4] References in this paragraph to details about the applicant’s studies and visa are sourced from the delegate’s decision record provided to the Tribunal by the applicant. The Tribunal also notes that Departmental records about the applicant’s studies are located in the Departmental file: where relevant they have been summarised in the delegate’s decision record.

1. Even if, for some reason, the applicant was not aware of the cancellation of her visa in 2011, which the Tribunal considers doubtful noting the steps she took to appeal at the university, her student visa was due to expire [in] October 2012. As put to the applicant, she would have realised in 2011 that she may not be able to remain in Australia, and she could have taken advice from a migration agent about her circumstances. She did not lodge a protection visa application until [March] 2013, six months after the date her student visa was due to expire. The Tribunal put to her that it found it difficult to accept that she took no steps until she lodged her protection visa application in March 2013.

2. She also told the Tribunal that she didn’t know what to do until she went to [a migration agency] and lodged her application. The Tribunal found this doubtful, and it put to the applicant that she had relatives in Australia who had been in contact with the Department about their own matters. She had told the Tribunal that when she arrived in Australia she lived with her cousin [who] came to Australia more than 10 years ago on a working visa; she is [an occupation]. She also has another cousin, with whom she currently lives, who has been in Australia since 2007. He arrived as a student then married an Australian woman and has remained here on that basis. The Tribunal noted that the applicant was an educated woman, she speaks English fluently and came here to study a Bachelor degree; and she has managed to work in Australia. She told the Tribunal that after she ceased studying in 2011 she continued to work. She had started work in 2010, and continued to do so (in the field of [deleted]). She said she only stopped working when she applied for her protection visa in March 2013 as she did not have work rights; later she recommenced working as she was granted work rights, and she works now.

3. In her statement she claimed that she had hoped the situation in her country would improve and that she could have gone back to contribute to her country; at the same time she hoped to have other visa options after her studies were completed. The Tribunal has difficulty in accepting this, noting that she had problems with her studies, and still did not take migration advice. 

4. At interview, when asked why she had not mentioned a fear of returning to Zimbabwe at any point (during the appeal process concerning her studies, and the cancellation process concerning her visa), she said she had not approached the Department out of a fear of being detained and returned to Zimbabwe and also she believed that the situation in Zimbabwe would improve[5]. 

   [5] Delegate’s decision record, page 7.

5. The agent submitted that it was reasonable that the applicant delayed in applying for a protection visa; she had multiple reasons for not applying after her arrival in Australia and repeated the reasons. The Tribunal does not find these reasons persuasive concerning her delay after 2011, when she was aware of the problems with her studies.

6. The Tribunal has considered all of her explanations for her delay, including those in the submissions, however it considers that she is an educated person, fluent in English, who claimed to come to Australia for safety and to fear returning, but she did not take steps to seek advice about how to stay in Australia due to her fears until 6 years after her arrival, despite her precarious student visa situation. The Tribunal considers this undermines her claims to have held a fear of harm when she arrived, and while she has been in Australia. 

7. Finally, the applicant told the Tribunal that she had approached the Zimbabwean authorities in Australia to obtain a new passport as her old passport had expired. She said she had gone to the embassy in Canberra and had no difficulties in obtaining a passport. The Tribunal put to the applicant that if she had been through what she claimed, it did not understand why she was not wary of approaching the Zimbabwean authorities. In response, she said she had no form of ID. The Tribunal noted that she would have had a letter from the Department in relation to her status. She said that she was not worried because she was not in Zimbabwe. The Tribunal noted that although she was not in Zimbabwe, she had family in Zimbabwe, and she had revealed where she was to the authorities. The agent submitted that the applicant instructed them that she renewed her passport in order to obtain identification to be used for everyday needs and that when she had used her national ID card this was not accepted. It was suggested that her fears are that the police and security forces specifically are complicit in the actions of ZANU-PF supporters and that she will not be afforded effective state protection, however she did not have any subjective fear that she would be seriously harmed by representatives of the Zimbabwean government in Australia.

8. The Tribunal accepts that the applicant was not in Zimbabwe, and may have wanted to have a passport issued by the Zimbabwean authorities for identification purposes, and that she does not have a direct fear of harm by the Zimbabwean authorities while she is in Australia. If not for its other concerns, the Tribunal would give the applicant the benefit of the doubt in this regard. However, taking into account its other concerns, the  Tribunal considers her direct approach to the embassy to undermine her claims to have a genuine fear of the authorities in Zimbabwe.

9. On the basis of the above, the Tribunal is not satisfied that the applicant is a witness of truth.

   Other matters

10. The Tribunal has considered that the applicant may have been nervous at appearing before a Tribunal, or during the process, however it is not persuaded that these matters can explain the difficulties with her evidence.

11. The agent claimed that on occasions the applicant was confused by a question, for example when the Tribunal asked her how many times the [business] had been tampered with, she said once; the Tribunal put to her that this was inconsistent with earlier evidence that it had occurred on several occasions. The agent said that the applicant was confused and thought the question related to a particular time period; the Tribunal had not however limited the time period in its question. 

12. The agent also submitted in the post-hearing submission that English is her second language (agreed), that the hearing was conducted by videolink (the Tribunal does not consider that this affected her ability to give evidence and present arguments), that she was stressed (the Tribunal accepts that attending a hearing could be stressful) however it does not accept that these matters can explain the concerns of the Tribunal. The Tribunal has also taken into account the AAT Guidelines, but it is not satisfied that the difficulties with the applicant’s evidence can be explained by the matters contained therein.

13. It was further submitted in the post-hearing letter that the contradictions in her evidence are minor; the example given was her inconsistent evidence about the whereabouts of her parents during the [May] incident. The Tribunal does not accept that the difficulties with her evidence are minor; and it considers that she would recall with some consistency the whereabouts of her parents, noting her claim that it was because they left her that she experienced a traumatic event.

14. The agent made oral submissions at the hearing that the applicant could not obtain corroborative evidence from the police as she did not report to the police as people who report ZANU-PF harassment to the police could have even more problems. The Tribunal has taken into account the submissions and does not place any weight on the absence of police reports relating to the claimed incidents about the applicant or her brother.

15. The agent submitted that the applicant had given consistent evidence in the process; the Tribunal accepts that some of the evidence given by the applicant has been consistent, however this does not overcome the concerns raised by the Tribunal, as set out above.

16. In making its findings, the Tribunal has taken into account the supporting documents provided by the applicant. The Tribunal noted at hearing that there is country information that documents can be fabricated[6]; it further noted that people can write letters for a number of reasons. The Tribunal has such significant concerns about the applicant’s credibility that it is not prepared to give any weight to the documents provided other than set out.

    [6] DFAT Report, paragraph 5.28: “Fraud is common in Zimbabwe, including for national identity cards and birth registrations. This is compounded by the availability of genuine documents fraudulently obtained (and often from relevant authorities), that are available for a fee and regularly used where originals do not exist”.

17. The applicant told the Tribunal that the clinic she had attended had closed, however she would ask her mother if she had any document from the clinic. The applicant produced after the hearing a “Patient Record Card” from [a health facility], which states that the applicant presented [in] May 2009 with … [burns]. The applicant also provided photographs in the pre-hearing submissions, said to be of her [limb] (with burns). The Tribunal put to the applicant that although it was prepared to accept that these were her [limbs], and that they had scars on them, this did not mean that scars had been caused in the circumstances claimed. The Tribunal is prepared to accept that the applicant has burn scars on her [limbs], as they were burned [in] May 2009. The Tribunal is not prepared to accept that the burns were caused in the manner claimed.

18. The applicant produced a photograph in the pre-hearing submission, said to be of her brother after having been beaten in May 2015 (the photograph showed a man with a bloodstained bandage on his head). At the hearing, the Tribunal put to the applicant that even if it accepted that the photo was of her brother, the injury could have been caused by anything. A further photo was produced with the post-hearing submissions, said to be a photo of the applicant, her brother and their mother (when the applicant and her brother were young children): it was submitted that it was “clear” that the person was the applicant’s brother. The Tribunal is not however satisfied that the two persons in the two different photos are the same. The Tribunal gives them no weight.

19. In her protection visa application form, the applicant claimed that she was relying upon supporting documents including “her father’s complaint letters to the union, and supporting statements from [Ms A]. The applicant produced to the Department one letter which stated that her father had made a complaint about unfair dismissal and non-payment of pension, and he was pursuing a remedy, however as put to the applicant at hearing, the document provided made no mention of any political reasons, it was simply a Notification to the Managing Director of [Company 1] to attend proceedings in relation to “alleged unfair labour practice and non-payment of terminal benefits”. The Tribunal does not accept that this letter supports the applicant’s claims that her father lost his job for the reasons claimed.

20. There was no statement or letter from [Ms A] produced to the Department, or to the Tribunal prior to the hearing (the Practice Direction states that documents not previously produced should be lodged 7 days prior to the hearing). At the hearing, the applicant provided, via her agent, a letter which was said to be from [Ms A]; it was dated [in] July 2015, and was unsigned. It stated her position in MDC; that she is a friend of the applicant’s family who looked after her children when she fled, that the applicant was targeted as she was seen on several occasions with her children; the applicant fled to Australia; the applicant is on a list of targeted people including those who ran away for political issues. The Tribunal noted that it indicated that the Tribunal could telephone the writer; the applicant did not make a request that the Tribunal do so. The Tribunal put to the applicant that the letter could have been written by anyone.

21. In the post-hearing submissions, further documents were produced (with no explanation as to why they were not produced earlier), namely emailed letters from [Country 1] showing that [Ms A] was granted refugee status in 2009. Even if the Tribunal accepted that a person called [Ms A] was granted asylum in [Country 1], and knows the applicant, the Tribunal does not accept, on the basis of its credibility concerns, that the applicant’s claims are true nor that her knowledge of such a person will lead to the applicant facing a real chance of serious harm or a real risk of significant harm in Zimbabwe. The Tribunal has also considered emailed photographs which are said to show the applicant’s mother with [Ms A], and another photo said to show the applicant as a child, and [Ms A].  The Tribunal is not satisfied that the assertions about these photos are true and it gives them no weight.

    Credibility summary  

22. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of events, as well as claimed fears, upon which she has based his protection claims.

    Findings on the applicant’s claims

23. On the basis of the adverse credibility finding, the Tribunal is not satisfied that anyone had an adverse interest in the applicant when she was in Zimbabwe; that she or her family are, or have been imputed as, pro-MDC, anti-ZANU-PF, or as not supporting ZANU-PF. The Tribunal does not accept that they harboured the children of a prominent MDC member nor of anyone associated with MDC; nor that they are associated with anyone associated with MDC or people perceived to be anti-government; it does not accept that she and members of her family (or their property) have been harassed, threatened or harmed as claimed or perceived as anti-government or MDC supporters. It does not accept that her name is on any list, nor on any intelligence database, or that she is known or suspected to have information about, or be a supporter of, MDC, or anything of adverse interest to the authorities. The Tribunal rejects her claim that she may have trouble because she supports the MDC. Further, the Tribunal does not accept the claim that she is identified in Zimbabwe as someone who is associated with a high-profile MDC activist who is thought to be active against the Mugabe regime, nor does the Tribunal accepted there is any real chance or real risk of the applicant being so perceived or identified.

24. The agent submitted that country information indicated that it is not just people who are opposition members who face harm, if they are considered supportive of MDC, or known to not support ZANU-PF, they can be harmed. The Tribunal notes that in the delegate’s decision produced to the Tribunal by the applicant, it was confirmed that the harassment, arrest, detention, imprisonment and killings of opponents to Robert Mugabe’s ZANU-PF regime, most notably, those promoting the MDC, is well documented in independent country information[7].   The Tribunal said it appeared that the suggestion was that ZANU-PF would cause people harm even if there was a more tenuous link than being an opposition party member. It said that if it required country information on this, it would ask the agent for this. However, the Tribunal is not satisfied that the applicant or her family members have been considered to be not supportive, or of adverse interest to ZANU-PF, nor does it consider that there is any reason for them to be imputed as not supporting ZANU-PF.   

    [7] Delegate's decision record, page 8.

25. The applicant claimed that there is violence directed MDC supporters, and in particular at young supporters of MDC (including rape of women). However the Tribunal does not accept that the applicant is an MDC supporter, nor that she has been so perceived; it does not accept that she or her family will be perceived as, or will be anti-government in the future.  It does not accept that she faces a real chance of serious harm or a real risk of significant harm for this reason.

26. The applicant said that she fears that she won’t be able to support herself because there are no jobs and people are not getting paid and she does not have a house. The Tribunal put to the applicant that she has her parents’ house; she responded so much is happening there and the ZANU- PF keep coming. The Tribunal has not accepted this claim, and finds that she will return to her family’s home and continue to live with her parents.

27. The applicant told the Tribunal that her father was the General Manager of the whole of [Company 1]. The Tribunal put to the applicant that this sounded like a very senior position, she denied this, although she said she did not know what he did. The Tribunal is prepared to accept that the applicant’s father held the senior position of General Manager in [Company 1]; her university education was paid for by her father’s work and she never had to work while she was in Zimbabwe, and her parents were able to afford to send her overseas to study a Bachelor’s Degree in Australia.

28. The Tribunal has not accepted that the applicant’s father supports MDC, is or has been perceived as supporting MDC or as not supporting ZANU-PF.  The Tribunal does not accept that her father is or was imputed with any adverse political opinion.

29. The post-hearing submissions suggest that country information indicates that employees who support MDC can have their positions terminated as a result of political allegiance. While the Tribunal accepts this is true, it does not accept that this applies to the applicant’s father, as it does not accept that he supports MDC. The Tribunal does not accept that her father lost his job for imputed or actual political reasons.

30. The Tribunal has considered the notice produced by the applicant concerning her father taking action in relation to the claimed loss of his job, however it gives greater weight to its concerns with the applicant’s credibility, and it does not accept that her father was dismissed from his employment at all. The Tribunal finds that the applicant’s father remains working in his job. 

31. The Tribunal does not accept the applicant’s assertion that her parents are destitute; it finds that the applicants’ parents continue to be financially secure. The Tribunal considers that the applicant will continue to be supported financially and in all ways by her family, and she will continue to live in the family home with her parents.

32. On the evidence before it, the Tribunal is not satisfied that the applicant is perceived as not supporting ZANU-PF, nor that she is perceived as supporting MDC. Concerning the claim at hearing that she would not be able to get a job, it does not accept that she will be discriminated against for reasons of her real or imputed political opinion, or for any Convention reason.

33. Claims were made in the context of relocation that the applicant, as a female without family support, would have difficulties and suffer harm, including in finding work, and it would not be reasonable for her to relocate. The Tribunal has not accepted that the applicant faces a well-founded fear of persecution, or a real risk of significant harm,  in Harare, living with her parents, and it is thus not necessary to consider the issue of relocation.

    The applicant’s claimed profile for being in Australia

34. The Tribunal asked the applicant what she had been doing in Australia and she made no mention of MDC or any other political/social activities; nor did she claim that she was a member of MDC.

35. The Tribunal noted that there was a claim in the written materials that she may face harm because she has lived in Australia for so long; but when it had asked her why, she couldn’t really explain why. It gave her another opportunity to explain why living in Australia would cause her harm.  She said [Ms A] has been away for so long, and because of her association with [Ms A], if she goes back, they will start again and assume she is in direct contact with [Ms A]. The Tribunal does not accept that the applicant has any association with a political activist, nor that she faces a chance or risk of being imputed of any such association. The Tribunal does not accept that the applicant has any subjective fear that because she has spent time in Australia she is of interest to the authorities.

1. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by her, or on her behalf.

   Complementary protection

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

3. The Tribunal has accepted that the applicant is a young, female former student who has studied and worked in Australia. The Tribunal does not accept that she or her family have experienced any of the past harm claimed. The Tribunal does not accept that she and her family are of adverse interest to the authorities, or imputed with any political opinion (nor that they hold any adverse political opinion).

4. The applicant told the Tribunal that her time spent in Australia will cause her problems because it will heighten the authorities’ perception of her connection to [Ms A]; the Tribunal has not accepted that the applicant is or will be imputed with any such connection.

5. The applicant said that she will not have a house and job: the Tribunal does not accept that she will be destitute upon return to Zimbabwe. It has found that she will return and live with her parents, who will continue to support her. The Tribunal notes her concern that she will not find a job or be paid. She said she has been working in [certain workplaces] in Australia but there are no [such workplaces] in Zimbabwe. The Tribunal referred to the DFAT report[8], acknowledging that there are difficulties in the economy, but it put to the applicant that she is well-educated, resourceful, she has work experience, and she would live with her parents, and her father supports the family with his senior job. Although the applicant may experience difficulties in obtaining work, the Tribunal does not accept that her circumstances amount to significant harm. 

   [8] “There are few job prospects in the formal economy. Estimates of unemployment vary greatly.  Official statistics suggest an unemployment rate of approximately 11 per cent, based on those registered to seek employment in the formal economy.  The real rate of unemployment is much higher, likely between 80 and 95 per cent. Many rely on the informal economy to survive…….

   Despite overwhelming non-participation in the taxable economy, Zimbabwe’s gross domestic product remains at approximately USD 9.8 billion, characterised by an acute concentration of wealth and widespread poverty..”: paragraphs 2.9, 2.10, DFAT Report Zimbabwe 25 February 2014.

6. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Zimbabwe, there is a real risk that she will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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).

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

   Christine Cody
   Member

   
   

   ANNEXURE A - RELEVANT LAW

9. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

   Refugee criterion

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

11. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. 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.

    Complementary protection criterion

18. 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. 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 and the Tribunal has done so.