1506242 (Refugee)

[2016] AATA 4972

1506242 (Refugee) [2016] AATA 4972 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506242

COUNTRY OF REFERENCE:                  South Africa

MEMBER:Susan Pinto

DATE:18 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2016 at 11:01am

CATCHWORDS
REFUGEE – Protection visa – South Africa – imputed political opinion – opponents of Zimbabwean Government – Zimbabwean Movement for Democratic Change – particular social group – women – children of mixed marriages – sexual assault – political violence – attacks by Zimbabwean agents – xenophobic attacks on Zimbabweans – effective protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of South Africa who is aged in her [age range]. The applicant arrived in Australia on a [temporary] visa on 12 December 2013. The applicant was accompanied to Australia by her son, [Master A], who is [age] years of age. The applicant and her son departed Australia on their [temporary] visas on 3 January 2014. The applicant returned to Australia on 27 August 2014. The applicant’s son left South Africa for [Country 1] in July 2014 and is currently living in [Country 1] with his [relative].  

2. The applicant applied to the Department of Immigration for the Protection visa on 14 November 2014. The applicant has claimed that her husband, [Mr A], was originally from Zimbabwe, but fled from Zimbabwe to South Africa and was granted South African citizenship. She claimed that her husband has been sought in South Africa by persons associated with President Robert Mugabe’s Zimbabwean regime and this has impacted on the applicant and her children who have been threatened and assaulted by those people.

3. The delegate refused to grant the visa on 17 April 2015. The delegate found that the applicant was a generally credible witness who spoke “honestly and coherently” regarding her situation in South Africa. However, the delegate was not satisfied that the applicant’s claims that her husband had been sought in South Africa several years after he had left Zimbabwe were truthful. 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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in South Africa for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to South Africa, there is a real risk that she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant provided documentation to the Tribunal indicating that she was born in Soweto, Johannesburg in South Africa in [year]. She indicated that she has a passport from South Africa which was issued [in] 2014. The applicant also indicated that she lived in Johannesburg from 1994 to 2001; from 2002 to 2007 she lived in [Country 1]; from June 2008 to September 2009 she lived in Cape Town; and from October 2009 to August 2014 she lived in Johannesburg, before moving to Australia in August 2014. The applicant currently resides in [a named town].

6. The applicant provided details of her employment indicating that she had been employed as [two related occupations] in Zimbabwe, South Africa and [Country 1]. The applicant indicated that in addition to her studies in South Africa she also completed [a qualification] in [Country 1].

7. The applicant also provided details of her family members, indicating that her partner, [Mr A], was born in Zimbabwe on [date] and gained South African citizenship in 1992. The applicant also indicated that her son [was] born in South Africa on [date] and her other son, [named], was born in South Africa on [date]. The applicant indicated that both her sons are currently residing in [Country 1]. The applicant indicated that her husband is residing in South Africa and her parents are deceased.

8. The applicant stated, in response to a question on the application form as to why she left South Africa, that it was because of the violent attacks she and her family received from “Mubage’s thugs”. The applicant states that her partner [Mr A] was originally from Zimbabwe and he fled to South Africa in 1992. He was assisted by [a Pastor] of [a church] in [Durban], South Africa. He was able to obtain documentation and has never been back to Zimbabwe because he fears being killed by Robert Mugabe’s loyalists as he was in opposition to Mugabe’s Zimbabwe African National Union-Patriotic Front (ZANU-PF). The applicant met [Mr A] in February 1998 in South Africa and they had a son, [Master A], together on [date] and they relocated to [Country 1] [in] 2001. [In] August 2007, the applicant moved back to South Africa with their sons [to] live close to her mother who was unwell, while [Mr A] stayed in [Country 1]. The applicant first lived in the family home in Cape Town where she obtained a job with [named company] as [an occupation] for one year.

9. [In] July 2008, they were attacked because of [Mr A’s] affiliation with white farmers and the Zimbabwan Movement for Democratic Change (MDC) which was in opposition to President Mugabe’s ZANU-PF. They know from statements that they made about [Mr A] that he was accused of being a “sale out” and fighting against Zimbabwe and the applicant was called “[Mr A’s] prostitute” and she was taunted. The applicant states that [Mr A] worked for the “white army” during the Zimbabwean fight for liberation and subsequently had an affiliation with the Movement for Democratic Change (MDC). He was wanted by Mugabe’s ZANU-PF before he fled to South Africa. For many years [Mr A] has not been involved in Zimbabwean politics or had any direct contacts with farmers. He has moved on with his life and is “just a family man” and stated that “we are just a private family”.

10. The applicant states that the attacks were “so much” that she and the children feared for their lives. At that time [Mr A] was still in [Country 1] so he asked them to move away from Cape Town. In November 2008, the applicant moved with the boys to Johannesburg. Initially, they did not want to live in the family house in Johannesburg so they rented accommodation. However, they were paying so much rent in the rented property that they decided to move into their family home [in] October 2009. For a while, they lived in peace but [in] October 2010 [Mr A] came back from [Country 1] and [in] October 2010, they were attacked and the boys were tied up and [Mr A] was also tied up and badly beaten. The applicant had a gun held to her head and they “commandeered around the house” and she was sexually taunted and assaulted” by the two men. They threatened to kill [Mr A] and asked them to leave South Africa. When they called the police they said “what do you want us to do if you say the men have left?”

11. [In] November 2010, the house in Cape Town was vandalised. Their property manager called the police, but they did not come to the home. On the day their house was vandalised two men came to their house in Johannesburg looking for [Mr A]. [Mr A] escaped and he has been in hiding since that time. They kept telling the applicant that if she does not give up the “bastard” (referring to her son [Master A]) and [Mr A] they will kill them. It became routine for them to come to the applicant’s house and threaten to kill them.

12. After being in hiding for almost four years, [Mr A] came out of hiding in August 2013 and was savagely beaten at a [venue]. They beat him up and took everything he had as well as his house keys. The applicant feared that her son would be killed and she obtained [temporary] visas for herself and her son and they travelled to Australia [in] December 2013. They returned to South Africa [in] January 2014. When they returned to South Africa the applicant secured a Student visa for her son [Master A] so he could continue his schooling in [Country 1]. He left in July 2014 for [Country 1]. The applicant states that she sent her son to [Country 1] in order to save his life and [in] August 2014 she returned to Australia on a [temporary] visa.

13. The applicant states that they reported the attacks to the police, but they asked them “if the people are gone where are we going to find them?” She states that when they tell people it is politically motivated they say it is just criminals, but their cars are constantly vandalised and they shoot into their houses. The applicant states that one of the incidents was [a date in] October 2010 and they reported it to the police, but nothing was done. Whenever they report anything to the police they ask them what they want them to do. During that incident they were bashed and their car was taken from them by two thugs. The applicant states that she finds it difficult to live a normal life because her family has been the victim of violent politically motivated attacks.

14. In response to a question as to whether she has experienced harm in South Africa, the applicant states that she, her son and partner have been attacked several times and each time she has been humiliated and called a prostitute for being in a relationship with a Zimbabwean “sale out”. They often refer to her son as a bastard and they almost strangled him when he was [age] years old. When they left Cape Town the attacks continued. The applicant refers to an incident [in] October 2010 when they hijacked her car at gunpoint in the driveway. The applicant states that she knows they were coming to attack their house but they decided to just take their car which was later recovered. The applicant states that her son has been traumatised and suffered a lot since they returned to South Africa and his reports from his school in [Country 1] show he continues to be traumatised.

15. In response to a question as to what she fears may happen if she returns to South Africa, the applicant states that if she returns she “might not make it up to a week”. She states that her partner [Mr A] is still currently in hiding. She states that since the attacks started she has been tied up, threatened at gun point, sexually assaulted and taunted. On three different occasions her son has had to watch [Mr A] being tortured. During the last incident they threatened to kill the applicant and her son if they did not return to Zimbabwe, but her husband cannot return to Zimbabwe due to political reasons. The applicant states that she has suffered various kinds of violence and threats of violence as a result of this situation.

16. In response to a question as to whom she thinks may mistreat or harm her if she returns, the applicant states that the “thugs loyal to the Zimbabwean president who are after my family and I”. The applicant states that the attacks started in Cape Town and they followed them to Johannesburg. A few days after they settled in Johannesburg they followed them and her partner [Mr A] has been in hiding since they tortured him and tied up the applicant and her son. It was at that time that they sent their [age] year old son to school in [Country 1]. The applicant states that she believes she will suffer harm because of the ferocity with which she was attacked the last time before [Mr A] permanently went into hiding which “shows that the thugs are not relenting”. They have been attacking the applicant and her family and threatened to shoot the whole family.

17. The applicant states that she does not believe the authorities can protect her and her family from the attacks. She states that she was sexually assaulted, taunted and hit with the butt of a gun during the attacks. They manhandled her and tied her up and touched her inappropriately whilst making sexual jokes. When she reported it nothing was done and the authorities denied it was politically motivated and said it was gangs from the townships. The applicant states that only once did the police take a statement, but they did nothing. The applicant remembers when they broke into the house in Cape Town and she reported it but the police told them to call only if the attackers were on the scene.

18. Documents provided in support of the application included a membership card in the applicant’s husband’s name, valid from [April] 2011 naming the applicant and her son as dependents; educational certificates in the applicant’s name showing the completion of courses in 2012; police clearance certificates; letters from disability services regarding the applicant’s volunteer work; death certificate for her mother, stating that she died [in] October 2011; newspaper reports regarding xenophobic attacks on young Zimbabweans in South Africa; driving licences; family planning records for the applicant; bank statements and mortgage documentation for properties in Cape Town; electricity inspection certificates; and birth certificates for the applicant and her son, [Master A]. The birth certificate for [Master A] states that his father [Mr A] was born in Johannesburg. A copy of a South African passport for [Mr A] was also provided. The passport was issued [in] 1993 and states that his place of birth was South Africa. 

19. The applicant also provided a Police Report, dated [in] October 2010, reporting the theft/robbery of a motor vehicle [earlier in] October 2010 from her property in Johannesburg. The report states that on [that date], the applicant was driving her car out of her gate when she was hijacked by two black men at gunpoint. The applicant states that she reversed her car out of the gate and when she stopped the car to get out and close the gate one of the men ordered her to start the car. She told him to take the keys. The second man pointed the gun at her and forced her out of the car. The applicant got out of the car and her son [Master A] who was with her quickly got out of the car and ran to call his father from the house.  The applicant states that the men then drove off with her car and took her keys. She requests that the police investigate and arrest the suspects as “nobody has a right to hijack my car”.

20. The applicant also provided a medical assessment, dated [in] December 2014, from [a named doctor] of the [named] Medical Centre, stating that the applicant is being seen for depression and Post Traumatic Stress Disorder (PTSD) and she has been commenced on [a medication].

21. A psychological assessment from [Agency 2], dated [in] December 2014, was also provided. The psychologist reports that the applicant’s history was obtained over the course of three counselling sessions. The psychological assessment states that the applicant met [Mr A] in Johannesburg. It states that [Mr A] had previously worked for the Rhodesian (white army) and he was targeted by Robert Mugabe’s army and he had to flee Zimbabwe to South Africa when Robert Mugabe became Prime Minister and mass killings began. The psychologist states that they then had a son in [year] and moved to [Country 1] where [Mr A] worked in a [workplace] and the applicant worked as [two occupations]. She returned to South Africa in 2007 to care for her aging mother and [Mr A] stayed in [Country 1]. In 2007 she moved back to Johannesburg, but relocated to Cape Town in 2007, but when there was a break in [in] July 2008 she moved back to Johannesburg.

22. The psychologist refers to incidents in October 2010 stating that [Mr A] returned [in] October 2010 and on [a later date in] October 2010 there were raids on the applicant’s home by Mugabe’s army. The first was on [date] October 2010. The psychologist refers to the applicant being given a poisonous substance [in] March 2013 and being tied up and called names; and another attack in August 2013 when they found [Mr A] in the house and they hit and assaulted him and asked why he had not returned to Zimbabwe. The psychologist refers to [Mr A] hiding in the bush for some period of time and states that in July 2014 [Master A] went to live with the applicant’s friends in [Country 1]. The psychologist concludes that the applicant is affected by her years of living in fear and is stressed due to the separation from her husband and sons and she wants to bring them to a safe place after years of living in fear.

23. The applicant was interviewed by the delegate on 14 April 2015. The Tribunal has listened to the CD Rom recording of the interview. The relevant evidence is discussed below.

    Application for review

24. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record. The applicant also provided a copy of the police report, dated October 2010, which is referred to above.

25. Following the lodgement of the application, the applicant’s newly appointed representative provided a detailed submission to the Tribunal. The representative set out the applicant’s claims which are discussed below.

26. The representative refers to the first attack which was [in] July 2008 when the applicant and [Master A] were targeted for the first time. The garage of the house was opened and all the locks had been tampered with and items of value had been taken. The applicant “concedes” that this could have been a result of generalised violence, but believes that this attack was also targeted. The family was fearful of further attacks and relocated to Johannesburg.

27. The representative refers to the next incident which occurred [in] October 2010 which was some [number] days after [Mr A] returned from [Country 1]. The applicant states that some men were watching the house from the street when she was on her way to work and to take her son to school. The applicant and [Master A] were in the car when an armed man stood beside her at the driver’s side car door. She was terrified for herself and her son. Upon seeing the man, [Master A] immediately ran through the open gate to the house to seek help from [Mr A] who was home at the time. The other man demanded that the applicant drive the car and she declined and they grabbed her handbag. [Master A] managed to get inside the house to safety to tell his father what they was happening. [Mr A] came to the gate to aid his wife and when he showed his face a gun was pointed at him and they yelled obscenities. [Mr A] hid behind a wall to avoid being shot. The men took the car and it was found days later. The applicant believes this was a “warning sign”.

28. The representative refers to the next incident which occurred on or about [a date in] November 2010, when the property in Cape Town was severely vandalised. The house and property and electrical wiring were dismantled. On the same day, the men entered the home with force and yelled statements at the applicant asking where her husband was and why she was with this man and why he was in Johannesburg, saying that he should leave because he is a foreigner. They made their hatred of her husband known.

29. The representative refers to the next incident which it is claimed occurred in December 2010, which is the third attack since [Mr A] returned to South Africa. The representative submits that this is incorrectly dated in the Department’s decision record. It is submitted that the applicant provided the correct details to her migration agent but it was incorrectly recorded. The representative submits that on this occasion the applicant’s husband was at home and they pointed guns at them and yelled the same taunts. The applicant was tied up and she was hit with the butt of her gun. The applicant was “sexualised” and touched inappropriately and they exposed themselves to her and whipped her husband and stamped on him. He was injured but not hospitalised. [Master A] was [age] years of age at that time and terrified and crying uncontrollably. The event was reported to the police but they were not of any assistance. At that point the family decided that [Mr A] needed to distance himself from them to avoid any further attacks. [Mr A] then moved from the family home in early 2011 and went into hiding between 2011 and 2013 when he resided in [another town], South Africa, which was approximately [distance] away. In early 2013 he returned to the family home because there had been no further unrest. However, in March 2013 the applicant and her son were the subject of another attack because of their relationship with [Mr A]. The representative notes that this was not recorded by her former migration agent, even though the applicant had made claims about it. The representative states that the applicant was given vegetables and forced to eat poisoned food and she was sexualised again in front of her son. The representative also refers to the next incident in which [Mr A] visited a [venue] in August 2013 and was bashed in a targeted attack and his belongings and keys and identification taken. This incident was reported to the police but the police were of no assistance.

1. In the submission, the representative refers to the applicant’s travel to Australia. It is submitted that [in] December 2013 the applicant travelled to Australia with her son [Master A] as the holder of [temporary] visas. The applicant discussed her concerns about living in South Africa with her distant relative who lives in [City 1]. They visited a community legal centre in [a different city] about obtaining assistance with Protection visas, but because Christmas was in close proximity they were unable to assist her. The applicant’s relative told her that if you have a child in Australia they must go to school and parents can be jailed if their children do not go to school. This frightened the applicant and she did not want any problems for herself or her son. The applicant departed Australia [in] January 2014 unsure how to protect herself in South Africa, but hopeful that the situation would improve. The representative submitted that the applicant’s travel to and from Australia can be explained by her inability to know how to progress a claim for asylum in Australia, as well as a genuine hope that she would not be forced to abandon her home country of South Africa. Upon her return to South Africa the applicant was fearful for the safety of her family, feeling defeated and overpowered by the constant attacks on her family.

2. The representative refers to an attack on the applicant and her son in their family home on or about [a date in] March 2014 at which time the applicant’s family home was ransacked and the men waved guns around the home and told them they were going to “wipe out everyone in the house”. The men were enraged that the relationship between the applicant and [Mr A] was continuing but when they were satisfied that the family was frightened they departed the house. The applicant noticed that the family’s passports had been taken and this sickened her because she felt that the identification of the family could be removed. Once she was able to compose herself and settle her son she began searching for avenues as to how they could leave South Africa. The applicant was able to arrange for [Master A] to leave South Africa in June 2014 to live with his [relative] in [Country 1]. She did not want to be separated from her son but decided that it was a necessary step to keep him safe. After [Master A] departed South Africa she made her own plans to depart. She left South Africa in August 2014 but did not resign from work because she did not want to raise suspicions. [Master A] was now safe in [Country 1] and [Mr A] was living in hiding in regional parts of South Africa. Following her arrival in Australia, the applicant sought the assistance of a migration agent in October 2014 and the application was lodged on 14 November 2014.

3. It is submitted that on or about [a date in] July 2016 [Mr A] was questioned by management at the location of his work about the validity and origin of personal documentation and qualifications. He has sent the applicant a text message regarding this and she is fearful that it will become obvious that [Mr A’s] qualifications were obtained in Zimbabwe. At this time no further action has been taken against [Mr A] but he is on high alert and the applicant is fearful for his safety.

4. The applicant provided a copy of the psychologist’s report, dated [in] December 2014, and a further report from [a welfare agency], dated [in] April 2016. The latter report indicates that the applicant was treated on [specified dates in March and] April 2016. The psychologist states that the applicant presented with several difficulties “reflecting her traumatic experiences in South Africa”, as well as ongoing uncertainties regarding her future and her separation from her husband and children. The psychologist states that her “primary concern is worry regarding her sons who live in [Country 1] and the effect of the separation from them on her mental state”. She reports problems with her digestive system after having her food poisoned by intruders when some people came into the family home, tied her and her son up, exposed themselves and unbeknown to her poisoned food in the house that she later consumed. The psychologist states that the applicant is particularly distressed by the separation from her son and is experiencing ongoing trauma and recurrent nightmares due to her experiences in South Africa. The psychologist states that these are particularly triggered by her separation from her husband and her fears for his safety in South Africa.

5. A text message, dated [in] July 2016, was provided. The text message advised the applicant that “there is a bit of a storm at work” about “Zim stigma they found out and need explanations”.

6. The applicant appeared before the Tribunal on 11 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A], by telephone from South Africa. The applicant was represented in relation to the review by her registered migration agent.

   ASSESSMENT OF CLAIMS AND EVIDENCE

   Does the applicant have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

7. The representative has submitted that the applicant fears harm because of her membership of specified particular social groups of women and as a result of her imputed political opinion. The Tribunal has considered whether the applicant has a well founded fear of persecution for these and any other Convention reasons.

8. Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of her experiences in South Africa. The applicant was advised at the commencement of the hearing and throughout the hearing that the Tribunal is separate and independent from the Department. The applicant was also advised that although the delegate accepted many of her claims, the Tribunal may reach a different conclusion on the evidence before it. As discussed with the applicant during the hearing, the Tribunal considers that despite comments to the delegate to the contrary, there are inconsistencies in her claims and evidence, and various aspects of her claims are not credible and inconsistent with independent evidence. The Tribunal has reached the conclusion that although some aspects of the applicant’s claims are truthful, including that her husband was in the Rhodesian white army for a short period of time in the late 1970s and she has been the victim of possibly two or three random crimes, her claims to have been targeted, sought and harmed during various specific incidents which resulted in her being tied up, tortured, sexualised and verbally assaulted have been fabricated in an attempt to establish that she has a profile in South Africa as a result of her marriage to [Mr A]. The Tribunal’s reasons for reaching these conclusions and its consideration of the evidence, including a discussion of the applicant’s oral evidence to the Department and the Tribunal, the written submissions and relevant country information, are discussed below.  

   The applicant’s husband’s background

9. As stated above, the applicant has claimed that she and her family have been subject to various attacks in South Africa because of her relationship with [Mr A] and his involvement in the Rhodesian white army in the late 1970s, prior to Rhodesia’s independence in 1980. The applicant told the delegate that she believes [Mr A] was taken from school to fight in the army. During the Tribunal hearing, the applicant confirmed that [Mr A] was in the Rhodesian army. The applicant indicated that she is uncertain of the exact dates, but believes he was [age] years of age when he was taken from school to fight in the army. The applicant stated that she believes he ceased his involvement in the army in 1982. However, when advised that Rhodesia gained its independence in 1980 and conscripts were no longer required because the war had ceased, the applicant indicated that she is uncertain of the dates.

10. The applicant stated that although her husband ceased his involvement in the Rhodesian army in the early 1980s he continued to be sought in Zimbabwe until he left for South Africa in 1992. The applicant stated that when the problems resurfaced he fled from Zimbabwe to South Africa. The applicant stated that [Mr A] was able to obtain South African citizenship with the assistance of a [pastor]. The pastor arranged for [Mr A] to obtain identity documents which stated that [Mr A] is his son.  The applicant confirmed during the Department interview that her husband has a South African passport and his identity documents state that he was born in Johannesburg. The applicant told the delegate that the passport he obtained is not fraudulent and [Mr A] is known in South Africa as the pastor’s son. The applicant confirmed her evidence during the Tribunal hearing and indicated that her husband left Zimbabwe for South Africa in 1992. The applicant confirmed during the hearing that her husband has since been granted another passport for travel to and from [Country 1]. However, her husband’s evidence was that he left Zimbabwe in 1990. He confirmed that he obtained a South African passport in 1993 with the assistance of a pastor.

11. The applicant’s husband confirmed in his evidence to the Tribunal that he was forcibly recruited to the Rhodesian white army towards the end of the Rhodesian war. [Mr A] confirmed the independent evidence obtained by the Tribunal indicating that black men in Rhodesia began to be forcibly conscripted to the army in the last two years of the war.[1] [Mr A] stated that at that time the fighting was increasing and the army required soldiers to fight and for that reason he was recruited. He stated that many illiterate people and students were forcibly recruited and he was among that group. He stated that in August 1980 he ceased his involvement in the army. At that time he had been in the army for approximately two years.

    [1] See 2013.pdf. ‘Other People’s Sons: Conscription, citizenship and Families 1970-80 and Howman, J.H, National Servicemen: Pay and Allowances 23 March 1973; Extended Service Gratuity Scheme for Security Forces, 10 April 1973, Cabinet Memoranda, CL/Smith/27.

12. The Tribunal has considered the applicant’s and her husband’s evidence in relation to [Mr A’s] background. The Tribunal accepts that the applicant would not have a precise knowledge of the dates of her husband’s involvement and makes no adverse findings regarding the slight inconsistencies regarding the date and timing of her husband’s involvement and his departure from Zimbabwe for South Africa. However, the Tribunal prefers the applicant’s husband’s own evidence regarding his involvement in the army and accepts that he joined the Rhodesian white army in 1979 when he was approximately [age] years of age and ceased his involvement in August 1980. The Tribunal accepts that his evidence is consistent with country information indicating that young black men were forcibly recruited to the army from about 1978 until 1980 when the war ceased. The most recent Department of Foreign Affairs of Trade report on Zimbabwe confirms that in 1965 the Rhodesian Front unilaterally declared independence from Britain under white minority rule, sparking international outrage and triggering international sanctions. From 1965 to 1979, rebels in the Zimbabwe African People’s Union (ZAPU) and the Zimbabwe African National Union (ZANU) waged a guerrilla campaign against the Rhodesian Front from Zambia and Mozambique. The report indicates that the hostilities ended following British brokered peace negotiations and the signing of the ‘Lancaster Agreement’ in 1979. The parties also agreed on a new constitution and Robert Mugabe’s ZANU Party won the general elections in February 1980 and Zimbabwe, as it became known formally gained independence from Britain on 18 April 1980.[2]

    [2] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report: Zimbabwe, 11 April, p.4.

13. The Tribunal accepts that the turbulent political situation of repression and economic instability has at different times resulted in considerable migration from Zimbabwe and other neighbouring African countries to South Africa. The Tribunal accepts that it is credible that [Mr A] migrated from Zimbabwe to South Africa in 1990 during one of these periods of political turmoil and economic instability. The Tribunal also accepts that there were problems with identity documents for black people under the apartheid regime which officially ended in 1991.[3] The Tribunal accepts that in such circumstances the applicant’s husband was able to obtain a South African passport in 1993 through the assistance of a pastor by the same surname who has stated that [Mr A] is his son, and he has held South African citizenship since that time.

    Attacks on the applicant and her family

    [3] ‘Pass Laws in South Africa 1800-1994’,South African History Online,

14. As indicated above, the applicant has claimed that it is because of [Mr A’s] background that he and her family have been sought in South Africa. The applicant told the Tribunal that it is not only she who is applying for asylum, but her two sons who are aged [ages] are in [Country 1] and are also applying for asylum. The applicant confirmed that she and her husband resided in [Country 1] for several years between 2001 and 2010 (the applicant until 2007 and her husband until 2010) but did not seek asylum during that time. The applicant stated that she was studying and working in [Country 1] and she and her family were lawful residents.

15. In her statement to the Department, the applicant claimed that it is [Mr A’s] “affiliation with white farmers and the Zimbabwean Movement for Democratic Change (MDC) which is in opposition to the ZANUPF, President Mugabe’s party”, which has resulted in him being sought in South Africa. She has since claimed that the main reason her husband has been sought in South Africa is because of his involvement in the Rhodesian army and he has been sought by persons associated with President Mugabe. The applicant clarified during the interview and hearing that her husband was not involved with the MDC, but he was considered to have been involved and was sought and he and his family harmed for that reason.

16. The applicant claimed during the interview and the hearing, when asked about her husband’s involvement in the army and why he would be sought in South Africa, that he was a soldier at [specified] level, but was about to be made a [higher level]. When asked at the hearing why this resulted in him being sought in South Africa, the applicant stated that he was considered to be an opponent of Mugabe and this was when the problems started and later resurfaced with illegal immigration and xenophobia against Zimbabweans. The applicant stated that her husband did not have any involvement in the MDC, but he was considered to have been involved in the MDC. The applicant’s husband told the Tribunal that it was as a result of tribal differences and his involvement in the army that he was considered to be an opponent of Mugabe. When asked whether he was harmed or had any problems between 1980 and his departure from Zimbabwe he stated that after he left the army he returned to the village and lived with his mother. He stated that people from the opposing tribe came to the village about three or four times but he then moved to the city for work to avoid them.

17. The applicant has claimed that she met [Mr A] in the late 1990s and their son, [Master A], was born in [year]. The applicant told the Tribunal that they did not have any problems from Mugabe’s people until 2008, when she had returned from [Country 1]. As indicated above, the applicant has claimed that the first incident occurred in 2008 when her home was broken into and ransacked, but she later realised it was probably [Mr A’s] opponents who had instigated the break into her home in Cape Town. She has claimed that the next incident occurred very soon after her husband returned from [Country 1]. When asked during the Tribunal hearing why she and her husband would be targeted some 30 years after he had been in the white Rhodesian army, the applicant stated that Mugabe has his secret agents and it was as a result of various political problems resurfacing that the attacks began when they returned from [Country 1]. She claimed that when the people were attacking them they were chanting things about [Mr A] being from Zimbabwe.

18. The applicant’s husband told the Tribunal that he was targeted for two reasons. The first is because of his involvement in a white army and he was regarded as a traitor and also because he was a member of the Ndebele tribe, which is the opposing tribe to Mugabe’s tribe, which was regarded as an enemy of Zanu. The applicant’s husband also referred to attacks and fighting between 1982 and 1984 when 20,000 people were killed in Zimbabwe. When advised that he appears to have been able to study and be employed as [a professional] for some years following his departure from the army in 1980, [Mr A] stated that he was treated like a traitor and people told him that it was not safe for him to remain in Zimbabwe. He was working but they did not stop looking for him. He also stated that everyone knows each other in Zimbabwe and it is like a “big town”. He stated that Mugabe has “CIO’s” (informants) everywhere and they were obviously against him. He stated that he and his family have now been sought for two reasons. The first is because of the xenophobia against Zimbabweans and the view that he is opposed to the ZANUPF, Mugabe’s party. He again stated that Mugabe uses people to pursue his opponents in South Africa. He stated that Zimbabweans are accused in South Africa of taking the women and jobs and the police side with South Africans against the foreigners. He also referred to Mugabe’s dislike of his tribe, the Ndebele.

19. The Tribunal has considered the applicant’s and her husband’s claims that they were targeted in South Africa due to the reasons outlined above. Having considered those claims, the Tribunal does not accept that they were sought in South Africa some 30 years after her husband was involved with the Rhodesian army. Nor does the Tribunal accept that some 20 years after he left Zimbabwe that he was considered to have been affiliated with white farmers or associated with the MDC or that Mugabe’s associates would pursue him in South Africa because he is a member of the Ndebele tribe, which was a claim raised during the Tribunal hearing. Firstly, in relation to his involvement in the army, as discussed extensively during the hearing, the applicant’s husband was born in [year] and would at that time have been [age range] years of age he was conscripted. As discussed above, the Tribunal has accepted conscription of young black men at that time. However, as also discussed during the hearing, the evidence indicates that there were very few black African officers and black men were conscripted only in the last years of the war.[4] The Tribunal considers it not credible that [Mr A], a young black man who was conscripted whilst a student, would have been eligible for promotion to a senior position within the Rhodesian army after such a short period of time. The Tribunal does not accept, therefore, that [Mr A] was in a senior position or was about to be promoted to the role of [higher levels] as claimed by the applicant and does not accept that he had any particular profile or status at the time he left the army in 1980.

    [4] See 2013.pdf. ‘Other People’s Sons: Conscription, citizenship and Families 1970-80 and Howman, J.H, National Servicemen: Pay and Allowances 23 March 1973; Extended Service Gratuity Scheme for Security Forces, 10 April 1973, Cabinet Memoranda, CL/Smith/27.

20. The Tribunal is prepared to accept that [Mr A] may have incurred some negative comments and hostility as a result of his involvement in the Rhodesian army soon after his departure from the army in 1980. However, given that the war ultimately resulted in the end of white rule in Zimbabwe and her husband was an ordinary soldier who had been forcibly conscripted, the Tribunal does not accept that it is credible that his involvement for a short period of time towards the end of the war resulted in him having any adverse profile or that this was the reason he left Zimbabwe for South Africa in 1990. As discussed at the hearing, although it is true that Mugabe targets his political opponents, the Tribunal could find no evidence indicating that persons who fought in the Rhodesian army many years ago have been targeted for harm, or that Mugabe has pursued such persons to South Africa or elsewhere.

1. The Tribunal also does not accept that the applicant’s husband was considered an MDC supporter, given that he left Zimbabwe in 1990 and the evidence indicates that it is only reasonably high profile persons who are harmed in South Africa and even low level MDC members are generally able to reside in Zimbabwe without suffering harm from Mugabe or his associates.[5] The Tribunal considers it evident that the applicant’s husband pursued further education and obtained stable employment as [a professional] for some years before moving to South Africa. The Tribunal does not accept that this is any way indicative of someone who was subject to discrimination or harm due to his background.

   [5] For a discussion of the treatment of MDC activists and supporters see the Department of Foreign Affairs and Trade Report 2016,DFAT Country Information Report: Zimbabwe, 11 April,

2. The Tribunal accepts that there was considerable political turmoil in the 1980s, leading to extended violence and this resulted in the deaths of many thousands of Ndebele in west Zimbabwe at the hands of the State security forces. The Tribunal also accepts, as reported by DFAT, that the Shona people and the Ndebele have a long history of animosity and that this peaked between 1982 and 1987. However, in 1987 the two parties, ZANU and ZAPU signed a peace accord and the two parties merged, forming the ZANU-PF under the leadership of President Robert Mugabe who has dominated Zimbabwean politics for the last 50 years.[6] The Tribunal accepts, therefore, that thousands of people were killed and targeted in the 1980s and the Ndebele were particularly targeted. However, given that [Mr A] did not leave Zimbabwe until 1990, which was after the peace accord was signed between the two parties, the Tribunal does not accept that he was specifically targeted because of his tribal membership whilst he was in Zimbabwe or that the fighting and violence between 1982 and 1987 was the reason he left Zimbabwe.[7] The Tribunal considers that there are many reasons that the applicant’s husband may have decided to leave Zimbabwe in 1990 and does not accept that he had an adverse profile or was of any interest to Mugabe or his associates at the time he left Zimbabwe.

   [6] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report: Zimbabwe, 11 April, p.4.

   [7] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report: Zimbabwe states at p. 8 that the Ndebele are represented at all levels of Zimbabwean society including as Vice Presidents, Ministers and key opposition figures and there is generally a degree of close contact between the Ndebele and Shona and intermarriages are relatively common.

3. The Tribunal also considers that the applicant’s and her husband’s evidence that they have been sought because her husband was born in Zimbabwe, and as a result of the resurgence of xenophobia in South Africa against foreigners, to be not credible. The Tribunal has had regard to the independent evidence referred to by the representative regarding xenophobic violence in South Africa and the submissions that applicant has been viewed adversely because South African nationals have fanatical attitudes towards foreigners and this has been directed at the applicant because she is married to a Zimbabwean and has children of mixed African race (Zimbabwean/South African). It is submitted that the United Nigerian Wives in South Africa (UNWISA) club demonstrates the “persecution” suffered by women who are married to non South African men. The representative refers to reports which state that the women meet because their names attract “galling remarks” and state that they need to be protected and their children need to be protected. The representative refers to a study by the Centre for the Study of Violence and Reconciliation which “corroborates the specific vulnerability of women in relationships with foreigners”. It is submitted that the country information indicates that South African women dating foreigners and those who are foreigners in South Africa face retribution from South Africans and refers to a report in the Telegraph regarding attacks and people bursting into the homes of South Africans in relationships with foreigners.

4. The Tribunal does not accept that the applicant’s husband falls within a category of Zimbabweans who have been harmed in xenophobic violence. The independent evidence indicates that the many thousands of Zimbabweans are resident in South Africa and there has been considerable migration from Zimbabwe at various times. The independent evidence also indicates that although there is violence against some foreigners, including Zimbabweans, due to their size it is the larger refugee and migrant populations, particularly Somali and Ethiopian grocery store owners, who are the primary targets of xenophobic violence and appear frequently in news reporting covering attacks.[8] Freedom House and the United States Department of State (USDOS) have stated that xenophobic attacks are generally concentrated in low socio‑economic areas with poor services and are often linked to protests over service delivery.[9] The USDOS reports that ‘citizens who blamed immigrants for job and housing losses and increasing levels of crime generally perpetrated such attacks’.[10] Xenophobic violence has recently been reported in Eastern Cape Province, with Somali shop owners in Port Elizabeth targeted.[11] Ramjathan-Keogh states that Eastern Cape Province is ‘in dire need of police intervention to prevent xenophobic attacks’.[12] In response to the violence, police assisted some Somali shop owners in Port Elizabeth with packing their goods and escorted them to ‘places of safety’, according to a 31 May 2013 Daily Maverick article. [13] The most recent Amnesty International Report on South Africa similarly reports on a new wave of xenophobic violence, but refers largely to refugee and migrant to migrant run shops and areas in which large numbers of refugees and asylum seekers live unlawfully.[14]

   [8] Integrated Regional Information Networks (IRIN) 2012, South Africa: Foreigners still at risk, 19 October, UNHCR Refworld < Accessed 23 July 2013; International Council of Voluntary Agencies 2013, NGO Statement on International Protection – Extended Written Version, 27 June, Reliefweb, p.11 < Freedom House 2013, Freedom in the World 2013 – South Africa, 31 August < US Department of State 2013, 2012 Country Reports on Human Rights Practices - South Africa, 19 April, Section 6. < US Department of State 2013, 2012 Country Reports on Human Rights Practices - South Africa, 19 April, Section 6. < ‘South Africa desensitised to xenophobia: Centre for Human Rights’ 2013, Times Live, 7 June <

   [12] Ramjathan-Keogh, K 2013, Five years on and no closer to solving xenophobic hatred, May, Lawyers for Human Rights < The Daily Maverick is an online South African news service. According to its website, the Daily Maverick is an ‘independently owned, private company with no affiliation to any other media group, (or political party or religious organisation)’. It is funded through advertising revenue. The Daily Maverick n.d., About Us < Accessed 29 July 2013. Patel, K 2013, ‘’Xenophobic’ violence spreads, threatens chaos’, Daily Maverick, 31 May < Amnesty International, South Africa 2015/2016: Annual Report.

5. The Tribunal does not accept that the applicant’s husband, who has had South African citizenship for over 23 years, has had employment as [a professional] and owns property in South Africa with the applicant, is regarded in the same category as the influx of illegal immigrants who have fled neighbouring African countries as a result of economic and political conditions in those countries. The applicant’s evidence at the hearing was that [Mr A] is regarded as a South African and is known as the “Pastor’s son” and the Pastor is a South African citizen. The Tribunal does not accept that it is credible that the applicant and her husband were sought in South Africa from 2010 to 2014 several years after her husband left Zimbabwe and in circumstances where he obtained South African citizenship in 1993, lived in South Africa for numerous years and been employed in various occupations. The Tribunal does not accept that he is viewed as a foreigner or that his status is otherwise than a legal resident and citizen of South Africa. As discussed at the hearing and above, the xenophobic attacks on Zimbabweans and other Africans are concentrated in areas characterised by poverty and lack of services and generally relate to persons without a status in South Africa. The applicant’s husband has a status as a South African citizen who has travelled to and from South Africa on a South African passport. The Tribunal considers that the claim that he is regarded with hostility as a Zimbabwean in circumstances where he is married to a South African woman and has had South African citizenship for over 20 years is not credible. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that the applicant’s claims have been fabricated around [Mr A’s] actual involvement in the Rhodesian army for a short period of time.

6. The Tribunal’s above findings are strengthened by other aspects of the applicant’s evidence, including inconsistencies in crucial aspects of the applicant’s claims. As discussed during the hearing, the applicant’s initial statement differs in crucial respects from her later evidence in relation to the attacks and the harm that she, [Mr A] and [Master A] experienced in South Africa. Thus, the applicant referred in her statement to being attacked [in] July 2008 and states that the attacks were so much that whilst [Mr A] was still in [Country 1] he asked them to move from Cape Town to Johannesburg. However, the applicant later claimed that the incident [in] July 2008 was a break in, and it was only later that she came to believe that it was a targeted attack due to the attacks that occurred in Johannesburg in 2010. The applicant also told the Tribunal that she moved from Cape Town to Johannesburg for work.

7. The applicant’s evidence as to the incident which occurred [in] October 2010, which she claimed was only [number] days after [Mr A] returned from [Country 1], is also confused and inconsistent. In her statement, the applicant stated that [in] October 2015, they were attacked and beaten and those claims were reiterated in the psychologist’s report from [Agency 2] which states that the applicant’s history was obtained over three counselling sessions. However, she stated on the application form that [in] October 2015 her car was stolen when she and her son were carjacked and that she knows they were coming to attack her house but they did not do so and decided to only steal the car. As also indicated above, the applicant provided a police report of [later in] October 2010 to the Department which confirms the hijacking of the applicant’s car [in] October 2010 day at gunpoint. However, the applicant has subsequently claimed in the submission to the Tribunal that in fact it was on [that date in] October 2010 that the theft of her car occurred and a gun was also pointed at [Mr A] when he came out to assist the applicant and their son. When asked at the hearing why the police report does not mention that a gun was pointed at [Mr A], the applicant stated that the police can write what they want. The Tribunal reminded the applicant she appears to have written the report.

8. In addition to the above, although the psychologist from [Agency 2] refers to an incident on [a date in] March 2013 where the applicant was given food which she subsequently discovered was poisoned, this is not mentioned in her initial statement. Nor is the incident in December 2010 referred to in her initial statement, although her representative has claimed that this incident was dated incorrectly by her representative and the delegate. Furthermore, although not detailed in her statement, the applicant has also subsequently claimed that there was a further incident in March 2014 after she and her son had returned from Australia which resulted in the applicant and her son being tied up while men waived guns around and threatened to wipe out everyone in the house and the passports were stolen at that time.

9. The applicant’s current representative has acknowledged that there are inconsistencies in the applicant’s account of her experiences in South Africa at different times, but has explained this by errors made by the applicant’s first representative and the applicant’s distress and depression, and that the psychologist may not have accurately recorded all of the applicant’s claims when she was assessed. The representative also submitted that there are a number of incidents and it may be that they have been misunderstood or confused at different times, particularly given that the applicant is suffering from depression and associated problems. The representative has also submitted that the applicant has been the victim of mistreatment of a sexual nature and the delegate has noted that she was stressed and emotional and it was for this reason that she did not specifically mention some aspects of these claims. The applicant told the Tribunal at the hearing that she told her representative everything and she cannot be responsible for the problems in her statement that was provided by the first representative, as she did not see the statement again after it was prepared. The applicant also claimed that she told everything to the psychologists but they may have not recorded it correctly in writing and it will be in their recordings.

10. The Tribunal has had regard to the applicant’s evidence and the submissions regarding the omission of significant aspects of her claims in her initial statement and the confused and inconsistent nature of the evidence in relation to the incident [in] October 2015. The Tribunal accepts that during the Department interview the applicant mentioned some of the incidents which she has since claimed occurred in South Africa, including the incidents in March 2013 and March 2014. However, as indicated above, the Tribunal nevertheless considers that the applicant has given inconsistent and confused evidence regarding some of the incidents. As discussed at the hearing, the applicant presented as an intelligent woman who provided considerable documentary evidence to the Department when she made the initial application and she was at all times represented by an immigration agent. The Tribunal accepts that the applicant is stressed and anxious, particularly due to her separation from [Master A], her teenage son. The Tribunal also accepts that the applicant was upset and undoubtedly anxious during the interview as was recorded in the Department’s decision record. The Tribunal has also regard to the psychologist’s reports regarding the applicant’s psychological problems and post traumatic stress disorder.  However, the Tribunal does not accept that the applicant’s psychological problems explain the problematic nature of the evidence in relation to some important aspects of the applicant’s claims. Nor does the Tribunal accept that the representative would have failed to include crucial aspects of the applicant’s claimed incidents in her initial statement to the Department and also to have given a different account of the event which occurred [in] October 2010, which is now claimed to relate to a different incident. Nor does the Tribunal accept that the representative would fail to include the significant incident which purportedly occurred in March 2014 after the applicant returned from Australia, which she has since claimed resulted in her finally deciding to arrange for herself and her son to flee South Africa. Whilst accepting that there are a number of claimed incidents which can lead to inconsistency and confusion, the incidents the applicant has claimed occurred in South Africa are integral to the reasons she purportedly decided to leave South Africa. The Tribunal does not accept that she would fail to ensure that they were accurately recorded in her initial statement to the Department, particularly given that she provided numerous documents regarding mostly unrelated matters.

11. Furthermore, the Tribunal considers that the dearth of documentation in the form of police reports or medical reports, in circumstances where the applicant has been represented by migration agents since the commencement of the application and would be aware of the importance of providing supporting documentation, is problematic. When advised at the hearing that the only document she has provided is in relation to the carjacking incident in October 2010, the applicant referred to her difficulty in obtaining police reports. She had earlier indicated on the application form that she was unable to obtain medical documentation due to the desire of doctors to protect the reputation of their country.

12. The Tribunal does not accept the applicant’s explanation for the lack of documentation. As discussed with the applicant during the hearing, she has been able to provide one police report relating to the carjacking, but unable to obtain any reports of very serious incidents where she claims her husband was tortured in front of her son, her son almost strangled, she and her son were tied up and threatened and she was poisoned and sexualised in front of her son. The Tribunal accepts that there are considerable reports of corruption and abuses in the South African police force, but does not accept that the police are inept to the extent that they would fail to take a report of significant incidents described by the applicant, particularly given that numerous measures have been put into place in an attempt to combat the high crime rate.[15] In the Tribunal’s view, the applicant has sought to rely on one report of the carjacking and theft of her car in October 2010 in an attempt to establish that she and her family have been subject to a series of targeted assaults. The Tribunal has had regard to the difficulties in asylum seekers obtaining supporting documentation, but does not accept that documentation from the South African police would be unavailable or unattainable if the incidents described by the applicant had occurred. Nor does the Tribunal accept the applicant’s reasons for failing to provide any medical documentation. In the Tribunal’s view, the absence of supporting medical or police documentation establishing the personal and targeted attacks is further indicative of the fact that the applicant’s claims have been fabricated.

    Delay and timing of the application

    [15] South African Government, ‘Police, defence and intelligence’,

13. In addition to the above, the Tribunal has considerable concerns in relation to the timing of some aspects of the application and the applicant’s return to South Africa in 2014 following her visit to Australia. The applicant has claimed that she cannot return to South Africa and told the delegate that she would not last “three days” in South Africa. However, when the applicant and her son travelled to Australia on a [temporary] visa she did not seek protection during that time and she instead returned to South Africa for over eight months with her son. The applicant, despite claiming it was her husband who was sought and was in hiding, also came to Australia without her husband who has remained in South Africa, purportedly in hiding. The applicant told the delegate that her husband is working and told the Tribunal that when she decided to leave she was focused on herself and her son and she made plans for herself and her son and her husband remains in hiding.

1. As indicated above, the applicant has claimed that when she arrived in Australia it was December 2013 and when she attempted to find out about Protection visas everything was closed and the community legal centre was unable to assist her. The applicant has also claimed that she thought that she would be jailed if her son did not go to school. She has also claimed that she returned to South Africa because she had hoped the situation would improve and she did not want to “give up” on South Africa. When this issue was discussed during the hearing, the applicant stated that she told her friend who she and her son stayed with in [City 1] about her problems in South Africa, but her friend would not allow her to stay with her for more than two weeks. The applicant stated that she did not have any choice but to return to South Africa. In response to the Tribunal’s doubts that she would return to South Africa with her [son] if they had been threatened with death and subject to the incidents she described prior to that time, the applicant stated that she did not have a choice but to return with her son and after the incident in March 2014 she had to obtain new passports and was only able to leave when the passports were issued in [2014]. The applicant’s son’s visa was no longer valid for Australia so she arranged for him to go to [Country 1] where he is living with his [relative]. The applicant stated that both her sons have sought asylum in [Country 1] as a result of [Mr A’s] Zimbabwean background. The applicant also confirmed that her husband is in hiding, and denied that her evidence indicating he is employed as [a professional] and has worked at the same company for five years indicates that he is not in hiding. When advised that if anyone was interested in him they would be able to locate him through his workplace, the applicant stated that he goes to various different locations for his job as [a professional]. When advised that the text message between herself and [Mr A] appears to have been contrived as it is unlikely that after five years the company would ask him about his Zimbabwean qualifications and background in July 2016 some [number] days before the Tribunal hearing, the applicant denied that the text message is contrived.

2. The Tribunal does not accept the applicant’s explanation for her return to South Africa from Australia in early 2014 and her failure to seek protection during the time she was in Australia in late 2013 and early 2014. The Tribunal accepts that some services were closed during the Christmas period. However, as discussed with the applicant during the hearing, most services re-open in the new year and she had a visa enabling and she and her sons had visas to allow them to remain in Australia for considerably longer. The Tribunal does not accept that the applicant returned to South Africa because she had “no options” or because she did not know how to progress Protection visa applications or that she hoped the situation in South Africa would improve. At the time the applicant returned to South Africa in early 2014 with her [son] she had claimed at that time to have been the subject of vicious attacks where she was poisoned, sexualised and her son seriously threatened. The Tribunal does not accept that the applicant’s return to South Africa with her son in such circumstances in any way supports these claims. The Tribunal considers that her evidence instead indicates that she returned to South Africa with her [son] because she had not experienced the harm she claims and neither she nor her son had been sought and experienced the claimed incidents in 2010 or 2013.

   Conclusions on claims of past harm

3. In the Tribunal’s view, the evidence set out above is indicative of the fact that the applicant has manufactured her claims regarding her and her family’s experiences in South Africa around her husband’s background as a Zimbabwean by birth who was involved in the Rhodesian white army, and some criminal matters which the family has experienced in South Africa.  The Tribunal does not accept, having regard to all of the evidence that the applicant or her husband were sought in South Africa. The Tribunal does not accept, therefore, that in South Africa they were sought because [Mr A] was in the Rhodesian army or that he was imputed to be involved with the MDC, or that he was sought because he is Zimbabwean, or because he is considered to be affiliated with white farmers, or because of his tribe or because their son is of mixed South African/Zimbabwean race, or for any of the reasons claimed by the applicant and her husband.

4. The Tribunal accepts on the basis of the documentary evidence that the applicant’s car was stolen in October 2010 and she and her son were forced out of their car by someone with a weapon. The Tribunal accepts that this incident would have been frightening, particularly given that the applicant’s son was only [age] years of age at that time. However, the Tribunal does not accept that the theft of the applicant’s car was targeted at her because of any association with [Mr A]. The Tribunal accepts only that this was a random criminal event.

5. The Tribunal also has some doubts in relation to the break in which she claims occurred in Cape Town in 2008, given that the documentation she has provided indicates only that her wiring was replaced at some time. The Tribunal also has some concerns in relation to the applicant’s acquisition of new passports in 2014 and considers that she may have reported the passports stolen in 2014 in order to obtain new ones, for reasons which may be connected to her current application for protection. However, the Tribunal is prepared to accept that the 2008 incident occurred and her passports were stolen at some time. The Tribunal does not accept that the theft of passports or the break in to her home in 2008 or the replacement of wiring indicates that she and her family were the subject of targeted attacks because of [Mr A’s] previous association with Zimbabwe and his involvement in the Rhodesian army. The Tribunal considers that these incidents were random and criminal events which occur within the context of a high crime rate in South Africa and were not as a result of the an imputed political opinion due to her husband’s past, the applicant’s race or her membership of any particular social groups or any other Convention reason.

6. The Tribunal accepts that the applicant has digestive problems and may at some time inadvertently suffered food poisoning, but does not accept that this occurred when persons broke into her home and fed her poisoned food. Nor does the Tribunal accept that the applicant’s husband is in hiding. The Tribunal does not accept that his employment of five years with the same employer is consistent with this claim and does not accept the applicant’s explanation for why he would be able to hide from Mugabe or his associates if he was sought by them. Nor does the Tribunal accept that her husband’s employer has recently asked him to explain his status and provide documentation regarding his Zimbabwean qualifications. The Tribunal considers, in the context of the problematic evidence discussed above, as well as timing of the text message which was shortly before the hearing, is indicative of the fact that it was fabricated in an attempt to establish further evidence to support the applicant’s claims.

7. The applicant has also claimed that her son was teased at school and called “Mugabe” because his father is from Zimbabwe and she told the Tribunal that her youngest son and eldest son’s visas have recently expired and told the Tribunal that her youngest and eldest son have sought asylum in [Country 1]. The Tribunal is prepared to accept that the applicant’s son may have been called ‘Mugabe’ at times at school, but does not accept that such teasing establishes that he was seriously harmed or he or his family were considered to be “foreigners” or targeted and harmed as such or that he or the applicant or [Mr A] were targeted or harmed because her son is of mixed South African and Zimbabwean race. The Tribunal has no further evidence in relation to the claims the applicant’s sons have made for asylum in [Country 1], but does not accept the applicant’s claims that they have been sought because of [Mr A], her husband, her elder son’s stepfather and her younger son’s father. The Tribunal does not accept that the applicant genuinely fears harm from persons associated with Mugabe or persons who have sought her husband because he was born in Zimbabwe and lived there for some years.

8. The Tribunal does not accept, therefore, that the applicant or her husband or son were the subject of personal attacks or targeted attacks or that they were tied up, beaten, threatened or harmed, or the applicant was poisoned or sexualised during those times. The Tribunal does not accept that the applicant, her son or her husband were the subject of the incidents that she claimed occurred whereby they were specifically targeted in July 2008 (which she has claimed may or may not have been only a break in and could have been a warning sign), October 2010, November 2010, December 2010, March 2013, August 2013 or 2014. The Tribunal does not accept that the applicant’s husband gave truthful evidence to the Tribunal and has formed the view that his evidence has been provided in an attempt to assist the applicant to obtain a visa for Australia. The Tribunal does not accept, having considered all of the evidence, that the applicant has suffered serious harm in South Africa the past for reasons of her imputed political opinion, race, membership of particular social groups or any other Convention reason.

9. In reaching the above conclusions, the Tribunal has had regard to the psychologist’s reports which refer to the applicant’s experiences in South Africa. As discussed during the hearing, the incidents described were reported to the psychologists by the applicant. The Tribunal does not accept that they occurred in the manner described by the applicant or for the reasons she has claimed. The Tribunal has not accepted the credibility of most of the applicant’s claims. The Tribunal is not satisfied that the psychologists’ reports overcome the problematic nature of the applicant’s own evidence and the adverse findings made by the Tribunal in relation to her evidence.

   The applicant’s return to South Africa

10. The Tribunal has not accepted the applicant’s claims regarding the past incidents whereby she claims that she and her family were specifically targeted due to [Mr A’s] background. However, the Tribunal must nevertheless consider whether there is a real chance that the applicant will suffer serious harm if she returns to South Africa now or in the reasonably foreseeable future. The applicant claimed, when asked at the Tribunal hearing why she cannot return to South African and what she fears will happen to her upon her return, that she does not want to live in a country where she can be killed at any time and where she has to suffer abuse from persons who expose themselves and have attacked her and her family.

11. The applicant’s representative has submitted that the applicant is a member of a particular social group of women at risk of violence in South Africa as well as other particular social groups of black South African women in a mixed marriage, and as a result of an imputed political opinion. The representative has referred to information regarding the humiliation, sexual assault and rape of women in South Africa and submits and refers to country information which shows that although there has been a general shift towards the empowerment of women in South Africa, gender based violence remains extraordinarily high and the mistreatment of women is ubiquitous throughout all parts of South Africa and justice for mistreated women is either inadequate or accessible. The representative also submits that as a black South African woman in a mixed race marriage, the applicant has and will be the victim of xenophobic violence which continues to plague the country.

12. As stated above, the information cited by the representative refers to xenophobic attacks which were generally concentrated in areas characterised by poverty and lack of services where “citizens blamed immigrants for increased crimes and the loss of jobs and housing”. The representative has also referred to reports on the hostility towards foreigners and submits that this is reflected in official policies. It is also submitted that the attitude of South African nationals and a fanatical attitudes is evidence and in the case of the applicant, this will be because she is married to a Zimbabwean and has children of mixed African race (Zimbabwean/South African). As stated above, the representative has referred to studies and has submitted that the country information indicates that South African women dating foreigners and those who are foreigners in South Africa face retribution from South Africans. It is also submitted that the applicant will be imputed with a political opinion due to [Mr A’s] past affiliations with white farmers and his imputed association with the Movement for Democratic Change (MDC) and they will continue to be harmed due to their “mixed race” son. It is submitted that the Rhodesian Bush war, was a war which was fought between the Ian Smith led white ruling government against the Mugabe government and this resurfaced in the late 1990s with the formation of the MDC and as a result of the applicant’s past political involvement, the applicant will suffer persecution as a result of her imputed political opinion – that is opposition to President Mugabe and the ruling Zanu PF party in Zimbabwe.

13. The Tribunal has not accepted that the applicant or her husband have been sought in South Africa by Mugabe or his associates. As stated above, the applicant’s husband had left Zimbabwe by 1990 and had obtained South African citizenship by 1993. The Tribunal does not accept that he was viewed as being associated with the MDC, given that he had been in South Africa for almost 10 years at the time of the MDC’s formation which the representative has submitted was in the late 1990s. Nor has the Tribunal accepted that the applicant’s husband is viewed as a foreigner or that this has resulted in the applicant, her husband or son being targeted. As stated above, [Mr A] has been a South African citizen for some 23 years. He is married to a South African and has a son born in South African. He is well educated and is currently employed in South Africa. The Tribunal does not accept that he is regarded in the category of foreigners as described above or that he has been subject to xenophobic attacks or that he or the applicant will be subject to such attacks in the reasonably foreseeable future. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm as a result of her marriage to [Mr A].

14. The Tribunal has accepted that the applicant has been the victim of crimes in the past, including a break in of her home in Cape Town, a car hijacking in 2010 and the theft of her passport. The Tribunal accepts that these incidents were undoubtedly distressing and of concern to the applicant. The Tribunal accepts that these incidents occurred in the context of South African society which has one of the highest crime rates in the world.[16] Indeed, some commentators have observed that “everyone is South Africa has been affected by crime, and the consequent sense of insecurity that comes with living in fear”.[17]  A 2011 survey showed that a third of South Africans are so afraid of being attacked by criminals that they will not walk alone in public places and many people secure their homes against thieves and carry a gun for protection.[18] Although most South African government crime statistical reports do not specify the racial ethnicity of the perpetrators or the victims,[19] researchers have assessed the racial breakdown of crimes through other sources. In 2007, the Christian Science Monitor reported that “it is a war of the have-nots against the haves” and that “crime is apparently not racially motivated. It is black upon affluent black as well as black upon affluent white”.[20] The Economic Intelligence Unit has stated that crime levels in South Africa are also due to the fact that South Africa has one of the most unequal distributions of income in the word and that rather than race, the causes of South Africa’s crime levels are based in the legacy of apartheid which has created a violent society with high levels of gun ownership.[21] The reports also indicate that “in most case attackers were acquaintances or family members of the victim”.[22]

    [16] UK Operational Guidance Note, 7 March 2013.

    [17] Silber, G. and Geffen, N. 2009, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December, p. 35.

    [18] McLea, Harriet 2011, ‘A nation living in fear’, Times Live, 24 November.

    [19] ‘Silber, G. and Geffen, N. 2009, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December.

    [20] Hughes, J. 2007, ‘South Africa’s rising wave of crime’, The Christian Science Monitor, 24 August.

    [21] ‘South Africa risk: Security risk’ 2008, Economist Intelligence Unit, 20 October.

    [22] United States Department of State 2016, South Africa  - Country Report on Human Rights Practices for 2016, 13 April, p. 31.

15. The applicant does not claim that she specifically fears the crime rate, but the Tribunal considers it likely that she has concerns in relation to the prevalence of crime in South Africa. However, the Tribunal has also found that the applicant has not been harmed or specifically sought or targeted in the past for a Convention reason has found that the incidents in 2008, 2010 and 2014 are random criminal events, rather than events which have been specifically targeted at the applicant for reasons of her imputed political opinion, race, membership of particular social groups or any other Convention reason.  The independent evidence indicates that the motive of the perpetrators of crime is considerably more likely to be based on perceptions of income and wealth inequality than on race.  The Tribunal accepts in the context of a high crime rate that the applicant and her family may be victims of break ins, robberies and similar such matters in the future. However, the Tribunal does not accept that the applicant would be subject to random crimes of this nature for a Convention reason. As stated above, this type of generalised criminal violence is generally economic in nature and not targeted at persons for Convention related reasons. The applicant has not claimed that she will be perceived as wealthy and targeted for this reason and the Tribunal is also not satisfied on the evidence before it that she would be targeted for this reason or any other Convention related reason upon her return to South Africa.

16. The Tribunal accepts that issues relating to sexual violence and rape raise different issues to generalised crimes such as those discussed above. The Tribunal has had regard to the independent evidence cited by the representative regarding gender based violence and attacks on women. The Tribunal considers that the particular social groups put forward by the representative, such as “women who are subject to violence in South Africa” and “black South African women in a mixed marriage who are the subject of xenophobic attacks,” are defined by the persecution and are unlikely, therefore, to comprise particular social groups.[23] However, the Tribunal accepts that women or black women or similar connotations form a particular social group in South African society. Nevertheless, although the Tribunal accepts the evidence presented by the representative regarding the high rates of gender based crime and violence against women, the Tribunal is not satisfied that there is a real chance that the applicant, whom the Tribunal has not accepted has been the victim of sexual violence during the attacks she claimed occurred in South Africa, and who will live with her husband upon her return to South Africa, whom the Tribunal has not accepted is in hiding, will be without male protection or that there is a real chance that she will suffer serious harm because of her membership of a particular social group of women, black women or any similar connotation of particular social group.

    [23] The characteristic or element which unites the group cannot normally be a fear of persecution. See Applicant A v MIEA (1997) 190 CLR 225 at 242.

1. The Tribunal has not accepted the applicant’s claims regarding [Mr A’s] targeting in South Africa because he will be considered to be affiliated with white farmers, the MDC, as a result of his tribe, their “mixed race” son or any of the applicant’s or her husband’s claims regarding their purported targeting. The Tribunal is not satisfied that the applicant will be subject to harm in the future as a result of any of these reasons. Accordingly, the Tribunal is not satisfied that the applicant will be imputed with a political opinion because of her association with [Mr A].

2. Having considered the applicant’s claims, both individually and cumulatively, and her personal circumstances and characteristics, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of any particular social groups, particularly women, black women or any black women married to foreigners or any other particular social group. Nor is the Tribunal satisfied that there is a real chance she will suffer serious harm for reasons of her imputed political opinion or any other Convention reason. The Tribunal finds, accordingly, that there is not a real chance that the applicant will suffer serious harm for any Convention reason if she returns to South Africa now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well founded fear of harm for a Convention reason.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, that there is a real risk that she will suffer significant harm?

3. The Tribunal has accepted that the applicant’s husband was in the Rhodesian white army for some two years and he was born and lived in Zimbabwe until 1990 when he left Zimbabwe for South Africa. The Tribunal has not accepted any of the applicant’s claims to have been sought and herself and her family harmed because of her husband’s background in Zimbabwe, his tribe, perceived political connections or associations with white farmers, their son’s “mixed race” or any other reasons she has put forward. For the reasons discussed above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of these reasons upon her return to South Africa.

4. The Tribunal has accepted only that the applicant has been the victim of some random crimes in 2008 and 2010 and again when she had passports were stolen in 2014. The Tribunal has accepted that these incidents were undoubtedly distressing. However, the Tribunal is not satisfied that the theft of her car, although admittedly at gunpoint when her son was present was done other than to obtain possession of the applicant’s vehicle. The applicant’s evidence does not indicate that she or her son was harmed as a result of the incident. In these circumstances, the Tribunal does not accept that this incident amounts to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as is required by the definition of significant harm in s.36(2)(aa). Nor does the Tribunal accept that the other two criminal incidents which it has accepted amount to significant harm.

5. Furthermore, the Tribunal has found that the crimes experienced by the applicant were random and the generalised crime in South Africa in the form of theft, car-jackings, burglaries and similar crimes affects the population generally. The Tribunal is not satisfied that the risk of such generalised crime is faced by the applicant personally. Section 36(2B)(c) states that there is taken not to be a real risk that the non-citizen will suffer significant harm if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Tribunal finds, therefore, that the applicant is taken not to be at a real risk of generalised criminal violence in South Africa. The Tribunal is not satisfied, therefore, that the generalised crime rate in South Africa presents a real risk to the applicant.

6. The Tribunal has accepted that sexual violence affects women particularly and that they are often vulnerable and at risk because of their membership of particular social groups. The Tribunal has had regard to the independent evidence cited by the representative and accepts that black women are often disproportionately affected by rape and sexual violence. The evidence also indicates that the majority of rapes and sexual violence occurs in poorer areas and townships and is perpetrated by persons known to the victims. The applicant will, as stated above, continue to reside with her husband who she has not at any time claimed will subject her to violence. The Tribunal has not claimed to have been the victim of random sexual violence in the past and the Tribunal has not accepted her claims relating to targeted attacks. The Tribunal has also accepted that her husband is in hiding and is satisfied that he will provide a source of protection for the applicant in the future. The Tribunal is not satisfied that the applicant is in a category of women, such as poor black women in townships, who are at an increased risk of sexual violence and rape. Thus, even having regard to the high rate of sexual violence and rape against black women, in light of evidence indicating that the majority of violence occurs in black and poorer townships and much of the rape and sexual violence is perpetrated by persons known to the victims, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm, including rape or sexual violence upon her return to South Africa.

7. Therefore, the Tribunal is not satisfied that the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty torture, cruel or inhuman treatment or punishment, and degrading treatment of punishment, for any reason upon her return to South Africa. 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 South Africa, that there is a real risk that she will suffer significant harm.

   CONCLUSIONS

8. 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).

9. 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).

10. 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

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

12. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa.’

    Refugee criterion

13. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

14. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

15. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

16. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

17. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.