1414955 (Refugee)

1414955 (Refugee) [2015] AATA 3469 (14 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1414955
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:Glen Cranwell
DATE:14 September 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 September 2015 at 2:20pm
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

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 visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Zimbabwe, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] August 2014.
The applicant appeared before the Tribunal on 9 September 2015 to give evidence and present arguments.
RELEVANT LAW
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 of the same class.
Refugee criterion
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).
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.
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.
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.
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.
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.
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.
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
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’).
‘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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This material includes:
·application for protection visa;
·personal particulars for assessment including character assessment form;
·copy of the applicant’s passport;
·interview with delegate dated [in] June 2014;
·written submissions from [the migration agency] dated 28 March 2014;
·letter from the applicant’s mother dated 23 March 2014;
·letter from the father of the applicant’s child dated 27 March 2014;
·statutory declaration of the applicant’s mother dated 3 September 2008;
·newspaper articles relating to conditions in Zimbabwe;
·statutory declaration of the applicant dated 1 September 2014.
The applicant’s claims are conveniently summarised in her statutory declaration provided to the Tribunal:
I was born on [date] in Zimbabwe. I am a citizen of Zimbabwe and an MDC Political Party member since 2002.
My family unit
I am not married. I live with my [mother] and my sibling [sister] who are now all Citizens of Australia after successful application and grant of a protection Visa Subclass
In February 2008 I was included in a [temporary] Visa Application which was granted in May 2008 due to the political turnmoil in Zimbabwe. My mother held very sensitive material in relationship to the harmonized elections in Zimbabwe. I felt very in secure at that time as our rented house in Zimbabwe Harare was under constant surveillance and my [cousin] was aware of the situation had stepped up to remove me from the political environment where I was vulnerable to harm by the ruling party Zanu PF members who had targeted my family and raped my [eldest sibling sister] in front of her [family members] watching.
My [mother] escaped and followed in the same year in August 2008 and since she had no valid visa other than a [temporary] visa she had used to enter Australia to seek protection she then applied for a protection Visa in September which was then granted by the Department of immigration in December 2008. My youngest sibling [sister] followed to join us in 2010 after successfully grant of [Visa] sponsored by my mother who had then been granted a protection visa for the same reasons that I feel unsecure to return to Zimbabwe for. My sibling [eldest sister] [travelled to Country 1] to seek protection and she has lived there ever since after protection visa grant.
I had a valid visa when I entered Australia under [temporary] Visa which I was included as a dependent I had not realised I should have lodged the protection visa on arrival since I was misinformed of the protection visa program. I have been safe being out of Zimbabwe as soon as I arrived in Australia under the [temporary] Visa program and still feel safe ever since.
Since my departure from Harare Zimbabwe In June 2008 I had not made or Independently submitted a Visa application of which I was a primary applicant and most of the errors that have been highlighted by the department have not been made by me personally and I have a right to be exempted from the confusion ie: [relatives] as quoted in the [two other] visa program that I have been included and both Visa were unsuccessful due eligibility of dependent. I had patiently waited for the positive out of both the Visa applications since my inclusion to the [temporary] Visa application had been successfully granted whilst I was outside Australia at time of grant and was very positive that the [two other applications] would be successfully granted as I was only a dependent to both applications and hence I was not at any time a primary applicant of the 2 known visa applications with the files known and kept with the immigration department.
Since my arrival in Australia in June 2008 I have lived safely from persecution, rape and abduction which has been the tactics of the Zanu PF ruling party to intimidate and cause harm to opposition members of which my family has been targeted. I am vulnerable to this cause and I have independently applied for a protection visa to the department of immigration and citizenship of Australia which has been refused after the officer has presumed and quoted from books how my safety and life is and not considering that thousands of MDC members have lost their lives since the inception of MDC Political Party and hundreds unreported deaths still continue to die, detained and harmed daily at this point in time.
The Review Tribunal need to look at the gravity of my life and disregard the presumption that has been used by the Department Case officer in quoting phrases and terminology copied from books and as the situation on the ground is very much different from the Department's view. I am have been safe form persecution regardless of the type of visa I have held in the past before the application of Protection Visa of which I am here today seek review of the refusal of grand. I should be exempted to all odds that have prevailed to the family who have in their faith, time and resources tried to keep me from harm.
My [mother], my sister [eldest sister] and my [youngest sister] are all out of danger and thanks to the Department of Immigration of Australia for granting their protection and [Country 1] to consider the same. I have not lived in Australia illegally and my quest for protection has been through family means by trying to include me in the visa programs that have failed. This has been not an opportunistic ideal to refrain from persecution but this has been desperation to avoid living in Zimbabwe where my life will be at risk of harm and persecution. I regret past errors and inconsistencies of both applications which meant no harm to my quest for freedom and liberty but has caused the Department Officers to judge negatively and not facing the facts that till today Zimbabweans of different political affiliation are not at liberty to exercise their political will and there after be accepted as citizens. I live today because I have been away from unjust political system of Zimbabwe.
I can not go back to Zimbabwe to face revenge for everyone in my family has been threatened for what my mother has done and for my political belief. I would rather die than accept deportation to the land of unjust. I sincerely ask the Review Tribunal not to judge me from quotes that have been portrayed in the my visa refusal but to consider the gravity of my family involvement of the rigging of the 2008 harmonized elections that we face prosecution from. The Zanu PF political party will never leave any stone unturned until their revenge on family members lives has been actioned. For that I refuse to go back to Zimbabwe and hereby apply for a fair review on this matter
In response to question 45 of the Form 80, the applicant listed her father as being “deceased”.
The applicant’s mother’s letter dated 27 March 2014 relevantly provides:
[The applicant] was raised by me only. [The applicant’s] father had no involvement in her upbringing and he is now deceased.
In her statutory declaration, the applicant’s mother details her detention and interrogations in [2008]. She then goes on to state:
I could not tell anyone at work as I did not know who I could trust. I did not tell my family in Zimbabwe as I was afraid it could cause them problems, so I had only told me daughter in Australia what had happened. My son-in-law said I should come to Australia to escape these problems and he gave me a letter to take to the Australian Embassy for a [temporary] visa application.
Independent country information
In respect to the risk of politically motivated violence towards members and supporters of the MDC, DFAT provided the following observations in May 2011:
Ordinary MDC-T and MDC-N members may be vulnerable to targeted politically motivated violence and intimidation, but the risks to ordinary members are not high compared to highly vocal party activists. The degree of risk generally depends how vocal a member is and where that member lives. MDC-T officials have said that at present, individuals who have membership cards but are not vocal supporters, are not likely to be targets of violence. Those at greatest risk are those who are seen to be vocal supporters of the party or who are perceived to be influencing others in their beliefs. Such individuals are not necessarily party members but may be community leaders like teachers who haven't shown themselves to be sufficiently loyal to local ZANU-PF authority. (DFAT report 1272, 12 May 2011)
In August 2012 DFAT provided this advice based on information from MDC officials:
The officials confirmed the situation for their members had improved a lot in recent years.  They believed there may be many instances of people seeking to remain in Australia for economic reasons, rather than concern for their welfare.  Zimbabwe's economic situation has improved markedly since 2008, although Australia will continue to remain a much more attractive location for pursuing a career.  Every case required separate consideration, with an individual's origins and their history of activism very relevant.  Very few of the cases referred to post (and none in recent times) have been prominent activists and many have very dubious - even clearly fraudulent - credentials.
At present, violence and intimidation were concentrated at particular flashpoints where MDC supporters could be targeted.  Current triggers for violence were MDC rallies, particularly, in sensitive areas.  At a recent rally in Zvimba, eight people had been injured.  While some rallies occur peacefully, problems were more likely to occur in areas that were considered to be ZANU PF strongholds, like the President’s home area of Zvimba, or areas that ZANU PF had lost in the last elections and wanted to win back, for example in Manicaland.  Poor urban areas in Harare, like the high density suburb of Mbare, were also flashpoints as ZANU PF vied for economic influence.
There were ongoing instances of intimidation but often it was sufficient for ZANU PF to remind people of what happened in 2008.  Despite this, there are still many parts of the country, particularly the wealthier areas of Harare, where people can support MDC without being subject to harm.  Many MDC politicians and their children, some of whom have returned from university education in Australia, are currently able to lead normal lives, although occasionally face intimidation from their political foes and possible violence at party rallies in sensitive areas.
As we approach elections, currently expected in mid-2013, there is still the possibility of increased violence.  This is likely to be targeted towards active party members, or those in areas where ZANU PF feels under threat.  Both ZANU PF and MDC face internal power struggles and the risk of intra-party and intra-party violence also remains. However the vast majority of Zimbabwean students in Australia, including genuine MDC members, have no reason for concern in returning to their homeland. (DFAT Report 1415 – RRT Information Request: ZWE40895, 21 August 2012).
In December 2012 DFAT provided this assessment of developments since the national unity arrangements and after the announcement by President Mugabe of elections in 2013:
In terms of the general atmosphere at present, the positive changes brought about the Global Political Agreement under which MDC was included in the government, continue to reduce the tension between the two parties outside the electoral context.  MDC and ZANU-PF sit together in Cabinet and Parliament and many senior members of both parties have built working relationships with each other.  Incidences of violence and intimidation continue to occur, but levels are relatively low compared to previous years, especially the peak in 2008, and the majority of MDC officials and supporters are able to conduct their activities without being harmed.  Currently there are reports of intimidation in the form of forcing people to buy ZANU-PF electronic membership cards.  The police and the judiciary, while not uniformly compromised, are led by partisan individuals who are able to deploy resources to political ends for politically sensitive trials or arrests.
…
The atmosphere is likely to change quickly once a date for elections is set.  The dynamics for the upcoming election are still not clear but it is likely that the intimidation and violence will be proportional to the degree of threat ZANU-PF assesses that it is facing.  There is a real prospect that it could be hard fought, with MDC-T and ZANU-PF wanting to overcome the frustration of shared power which has constrained them since 2008.  ZANU-PF may also feel that this is the last roll of the dice under the 89 year old President Mugabe.  On the other hand, it is also possible that the parties will reach some form of understanding about accommodating each other whatever the outcome, in which case the atmosphere may not be as tense.  Also, the presence of effective monitoring mechanisms could limit levels of violence and intimidation.
It is very difficult to assess the risk faced by particular individuals.  There are many people overtly engaged in assisting the MDC or working for civil society organisations who manage to do so without harm.  At present, those most at risk are likely to be:
·     those who are most vocal in their criticism of ZANU-PF or Mugabe
·     those who are seen to be organising or mobilising support for MDC
·     those at grass roots level who will not generate as much adverse publicity if they are harmed.
…there has not been a discernible change in the level of risk faced by MDC officials and supporters since the call for elections in March 2013.  No firm date has in fact been set for elections which are unlikely until later in the year.
Similarly, there has not been a discernible change in the level of risk faced by family members of MDC officials since the call for elections in March 2013. Family members of MDC politicians and high profile party officials are unlikely to be targeted due to the negative publicity that this would have.  Post is aware of children of well-known MDC politicians returning from studies abroad to live in Harare without facing threats or intimidation.  For less prominent MDC officials, while family members are less likely to be targeted than the official him or herself, there is still a risk family members may be harmed as a form of intimidation.  The overall risk will be influenced by the factors outlined below.
There has not been a discernible change in the level of risk faced by family members of MDC supporters since the call for elections in March 2013.  It is possible that family members of supporters could be targeted, especially if they are perceived to be more vulnerable for reasons like lack of education and awareness of rights.  The overall degree of risk faced would depend on the factors outlined below and the degree to which the relevant supporter was active.  Nonetheless, support for MDC is widespread, reflected in their parliamentary majority, and their rallies are well-attended so it is unlikely someone would be targeted simply for being a supporter, if that person was not particularly vocal or an organiser. (Source: DFAT report 1463 to the MRT/RRT: 20 December 2012).

The most recent 25 February 2014 DFAT “Country Report” on Zimbabwe stated:
DFAT assesses that mere membership of the MDC does not mean that an individual would attract adverse attention from the Government or face community prejudice. The profile and activities of an individual are more relevant to an individual’s risk profile than MDC membership. Typical MDC members do not advertise their membership openly. The more prominent and outspoken a member is, the more likely they are to attract adverse attention or harassment from authorities, possibly including legal action, property seizures or other forms of harassment.
DFAT assesses that in urban areas, membership of the MDC, in itself, will not necessarily attract discrimination from the state (official discrimination) or community prejudice (societal discrimination) at an individual level.
As to whether family members of persons with MDC links were at risk, DFAT in its 25 February 2014 “Country Report” indicated family or associates of MDC members, including high profile MDC members were at low risk of violence from police and government officials, although it noted some instances of harassment and intimidation occur.
In respect to violence surrounding the March 2013 referendum and the July 2013 elections, DFAT in its 25 February 2014 “Country Report” noted the elections were largely peaceful, despite some instances of violence being recorded. It also noted political violence had been decreasing over the past three years, and was significantly reduced during the 2013 election compared to previous elections, and that political violence is now more likely to be targeted at specific high profile individuals rather than any particular group.
Tribunal hearing
The applicant confirmed that she arrived in Australia [in] June 2008.
The applicant stated that she returned to Zimbabwe during her absences from Australia [in] February 2010, and [in] July 2011. She stated that she made those visits to visit her father who had [a medical condition].
The Tribunal put to the applicant that her mother’s letter had stated that her father was deceased. The applicant stated that her father is still alive, although he remains sick following his [medical condition].
The Tribunal asked the applicant what she feared if she returns to Zimbabwe. The applicant stated that her mother used to work for the government [in a specific area]. Her mother came to Australia to seek asylum. Her concern is that she might lose her life as a result of her mother’s activities. Her sister has left Zimbabwe as she also fears for her life. It would also be difficult for her son if she has to take him to Zimbabwe with her.
The applicant later confirmed that her son is an Australian citizen.
The Tribunal asked the applicant about her personal involvement with the MDC. The applicant stated that she had attended a few rallies. She had to do it in hiding given her [mother’s employment]. She held no post in the MDC.
The Tribunal asked the applicant whether she had any difficulties during her 2 visits to Zimbabwe following her arrival in Australia. She stated that she was questioned at the airport by the CIO. She was asked what she was doing in Australia, and where she would be staying in Zimbabwe. She did not otherwise suffer harm upon her return to Zimbabwe.
The Tribunal put to the applicant that her return to Zimbabwe might cause it to doubt whether she had a subjective fear of persecution. Most people who fear harm in a particular country do not voluntarily return to that country. The applicant stated that she understood the point, but she was only in Zimbabwe for short visits and was not staying there. If she was staying there longer, the community would recognise her and her live would be in danger.
The Tribunal put to the applicant a summary of the independent country information set out above, insofar as it relates to the level of risk of family members of MDC supporters. Relevantly, this information provided that family members of MDC politicians and party officials were at low risk of violence. It also referred to children of well-known MDC politicians returning from studies abroad to live in Harare without facing threats or intimidation.
The applicant stated that children of high-profile MDC members have security, which is the reason they are not harmed. She would be by herself. The community would hurt her.
The Tribunal asked the applicant why the community would hurt her. The applicant stated that they would recognise her and bash her. She would be left out of society.
The Tribunal referred to the passage from her mother’s statutory declaration set out at paragraph 23 above. It put to the Tribunal that the community in general would have no reason to target her, given that her mother did not disclose her detention and interrogations.
The applicant stated that her mother was suspected of being a MDC supporter. People knew she did not go to Zanu-PF rallies. They thought her mother was a spy, even though she did not tell anyone.
The Tribunal put to the applicant that her delay of almost 6 years in lodging a protection visa application, from her arrival in Australia [in] June 2008 to [March] 2014, might suggest that she does not have the fears claimed by her.
The applicant stated that she was given some wrong advice. Because she came on another type of visa, she thought she could not apply for a protection visa.
The Tribunal put to the applicant that her mother had applied for and was granted a protection visa, and it would have expected the applicant to be better informed about the possibility of seeking protection than most people. The applicant stated that she received some wrong advice.
The Tribunal put to the applicant that it might not accept that she returned to Zimbabwe to visit her father, as he was deceased. The Tribunal might form the view that she voluntarily visited Zimbabwe on 2 occasions, and was not harmed on either occasion. This, combined with the independent country information that family members of MDC supporters were at low risk of harm, might cause it to conclude that the risk of serious or significant harm to the applicant was remote.
The applicant stated that she only stayed a short time in Zimbabwe, and stayed with her father in a village rather than in Harare. If she stayed longer and returned to Harare, she would be recognised and people will harm her.
The Tribunal put to the applicant the independent country information that ordinary MDC members who were not vocal supporters were not likely to be targets of violence.
The applicant stated that her sister was attacked.
The Tribunal noted the peak of violence appeared to be around the elections in 2008, and that the level of violence in Zimbabwe had declined markedly since that time. This would place her at considerably lower risk than her sister. The applicant stated that there is still a lot happening, and that not everything is reported.
Relevantly to Minister intervention, the applicant denied being in a relationship with the father of her Australian citizen child. She provides primary care to this child.
Assessment of claims
On the basis of the materials and information provided to the Department and to the Tribunal, the Tribunal accepts that the applicant is a Zimbabwean citizen and that her identity is as she claims it to be. The Tribunal accepts on the basis of the information and materials provided to the Department and available to the Tribunal that the applicant does not have a right to enter or reside temporarily or permanently in any other country apart from Zimbabwe. The Tribunal accepts that Zimbabwe is the applicant’s receiving country for complementary protection purposes.
For the reasons which follow, the Tribunal is not satisfied on the basis of the evidence and materials before it that the applicant faces a real risk or chance of serious or significant harm should she be returned from Australia to Zimbabwe.
The Tribunal accepts that the applicant’s mother was detained and interrogated in Zimbabwe in [2008] as a result of her MDC involvement. She was subsequently granted a protection visa in Australia.
The Tribunal finds that the applicant’s mother did not tell anyone about her detention and interrogation.
The Tribunal finds that the applicant’s father has been deceased at all relevant times. Despite the applicant’s evidence at the hearing that he was still alive, the applicant’s own Form 80 response and her mother’s letter both indicate that he was deceased. The Tribunal considers that the applicant’s claims that he is still alive are fabricated as part of an attempt to explain her return visits to Zimbabwe.
The Tribunal finds that the applicant was absent from Australia [in] February 2010, and [in] July 2011. On both of those occasions, she returned to Zimbabwe. As noted above, the Tribunal does not accept that the purpose of these visits was to see her father. It follows that the Tribunal does not accept the applicant’s claims that she stayed with her father in a village rather than in Harare.
The Tribunal finds that the applicant was not harmed during these visits. The Tribunal accepts that she was questioned on her arrival at Harare airport by the CIO, but otherwise encountered no difficulties.
The Tribunal accepts that the applicant was a supporter of the MDC, and attended some MDC rallies. However, she held no post in the MDC and can be characterised as an “ordinary supporter”. The Tribunal accepts that if the applicant returns to Zimbabwe, she may wish to continue her activities as an ordinary supporter of the MDC by attending rallies.
The Tribunal finds, based on the independent country information, that the risk or chance of serious or significant harm to applicant as an ordinary supporter of the MDC is remote.
Having regard to the following factors:
·the independent country information that family members of MDC supporters are at low risk of harm;
·the finding that the applicant’s mother did not tell anyone about her detention and interrogation;
·the fact that the applicant voluntarily returned to Zimbabwe on 2 occasions and was not harmed on either occasion,
the Tribunal finds that the risk or chance of the applicant suffering serious or significant harm as a result of membership of her mother’s family or imputed political opinion is remote.
For completeness, the Tribunal finds that the applicant is not at risk from the community as a result of her mother’s detention and interrogation, given that her mother did not tell anyone about these matters. The Tribunal does not consider her mother’s absence of attendance at Zanu-PF rallies as being sufficient to ground community suspicions that she was a spy. Further, accepting that the applicant’s sister was harmed during the high point of political violence in Zimbabwe around the elections in 2008, the Tribunal does not accept that this is an indication of risk to the applicant given the marked decline levels of violence since that time.
The findings in the preceding paragraphs are supported by the applicant’s delay of almost 6 years in lodging her protection visa application after her initial arrival in Australia. The Tribunal did not find the applicant’s explanations of mistaken advice to be plausible, given that her mother held a protection visa on related grounds. As the Tribunal put it at the hearing, the applicant was better placed than most in relation to her knowledge of the availability of protection. Had the applicant feared harm as she claimed, the Tribunal considers that she would have lodged her protection visa shortly after her arrival in Australia and not have returned to Zimbabwe on the 2 occasions she did.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future should she return to Zimbabwe because of her actual or imputed political opinion, membership of a particular social group being her mother’s family, or for any other Convention reason. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
Ministerial intervention
The applicant is a single mother of an Australian citizen child. Were she to return to Zimbabwe, the child would either have to accompany her or be without his principal carer.
Having regard to these circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Glen Cranwell
Member

[2015] AATA 3469

14 September 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction