1507443 (Refugee)

[2018] AATA 1418

1507443 (Refugee) [2018] AATA 1418 (12 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507443

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Nicole Burns

DATE:12 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 April 2018 at 4:46pm

CATCHWORDS
Refugee – Protection Visa – Zimbabwe – Imputed political opinion – Supporter of opposition party – Movement for Democratic Change – Tsvangirai – Previous adverse interactions with state groups – Whether the applicant has a well-founded fear of harm – Country information supports applicant’s claims

LEGISLATION
Migration Act 1958, ss 36(2)(a), 65, 499
Migration Regulations 1994, Schedule 2

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. 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).

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa on 12 March 2013 and the delegate refused to grant the visa on 22 May 2015.

3. The applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. She did not attend the hearing.

5. The applicant came to Australia on a Zimbabwean passport, copies of which he has provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department).  The delegate had no concerns as to his claimed nationality.  The Tribunal accepts the applicant is a national of Zimbabwe and has assessed his protection claims accordingly.  

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant faces a well-founded fear of persecution on return to Zimbabwe or a real risk of significant harm under the complementary protection provisions.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

12. The applicant, [an age] year old man from Harare, fears persecution on return to Zimbabwe from Zimbabwe African National Union – Patriotic Front (ZANU-PF) supporters and militia on imputed political opinion grounds as an opposition (Movement for Democratic Change – Tsvangirai (MDC or MDC-T)) supporter and activist. 

13. The applicant set out his initial claims in a detailed written statement that accompanied his protection visa application.  In it he describes his and his family’s support to the MDC in the past, and problems that resulted.  Material provided in support of his visa application included a copy of his MDC membership card, medical reports (evidencing injuries sustained in confrontations with ZANU-PF supporters), a letter from the Zimbabwe Republic police, admission of guilt forms, and copies of death certificates of the applicant’s parents and [Relative 1].  Also submitted was country information from a variety of sources about the poor human rights and security situation in Zimbabwe for opposition supporters.

14. The delegate accepted the applicant’s claims of being an MDC supporter and activist and claims of past harm as a consequence.  However, based on country information indicating a change of tactics by ZANU-PF from 2013 – that is relying less on violent intimidation and more on targeted and systematic repression – the delegate found there was only a remote chance of the applicant facing serious harm on the basis of being an MDC supporter and activist on return to Zimbabwe.  In addition, the delegate found the applicant could relocate to another area of Zimbabwe to avoid the harm he feared from ZANU-PF supporters in Harare.

15. On review the applicant provided a written statement to the Tribunal setting out reasons why he is unable to return to any area of Zimbabwe and reiterating his claims and fears.  As well, he provided a written submission[1] addressing specific omissions, in his view, the delegate made in their decision, including the fact that elections are due in Zimbabwe this year (2018).  The applicant also provided a copy of a statutory declaration[2] which he had provided to the Department – dated after the delegate’s decision – in which he emphasises that he would not be safe anywhere in Zimbabwe because he belongs to a family that has long supported the MDC.  

    [1] Dated 7 February 2018

    [2] Dated 2 June 2015

16. Specifically the applicant submits that the delegate ignored country information that indicates that violence spikes during election cycles and periods of political uncertainty and that violence has continued to happen to opposition supporters since 2013 to date.

17. The applicant also provided to the Tribunal country information from a variety of sources to support his contention that his claims are well founded.

18. Other material provided to the Tribunal included a copy of a document from [a particular government department of a particular country] attesting to the applicant’s [Relative 2] being deemed a ‘protected person’, issued [in] January 2011.

19. The Tribunal found the applicant a credible witness who gave detailed and spontaneous oral evidence about his and his family’s support to the MDC in the past, reasons for his political activism, his experiences of harm as a result, and his fears about returning to Zimbabwe now.  His oral evidence was consistent with his detailed written claims to the Department and Tribunal.  It was also consistent with the oral evidence of his [Relative 3][3] at a hearing with the Tribunal on the same day, to the extent that they were aware of each other’s claims and circumstances.   As well, at hearing the applicant demonstrated an in-depth and reasonably sophisticated knowledge of the inception and development of the MDC, its more recent challenges, and about the political landscape in Zimbabwe more broadly including post-Mugabe.

    [3] The applicant’s [Relative 3] has also applied for a Protection visa, which was refused, and is subject to a separate review: [review number removed].

20. Accordingly the Tribunal accepts the applicant’s claims, summarised as follows:

    ·The applicant comes from a well-known family of MDC supporters and activists.

    ·His father, who died in 1997, advocated against the corrupt practices by ZANU-PF members working in the same insurance company in Harare.

    ·His [Relative 1], who died in 2002, angered at the death of his [brother] and the worsening economic situation in the early 2000s as a result of ZANU-PF’s policies, advocated against the government and was particularly active in the lead up to the 2002 elections.  The applicant helped his [Relative 1] at the time, for example by attending [meetings], and distributing flyers.  The applicant’s [Relative 1] was abducted and beaten by ZANU-PF supporters in [2002], before the elections.

    ·The applicant’s [Relative 1] was killed in an alleged ‘hit and run’ accident [later in] 2002 after being missing and the applicant and his family believe it was deliberate and politically motivated, given his [Relative 1]’s activism and support to the MDC.  His [Relative 1] was only [age] when he died.

    ·The applicant’s mother helped the applicant’s [Relative 1] support the MDC before he died, in the lead up to the 2002 elections, including by organising meetings, and arranging MDC memberships.  After his [Relative 1] died the applicant said his mother moved to Bulawayo.  She died shortly after, in 2003. 

    ·[Property at] the back of the applicant’s [Relative 4]’s property in Harare (where the applicant and his [Relative 3] stayed after his mother’s death when not at boarding school) were demolished by the ZANU-PF government in 2005.  Although his [Relative 4] told the government officials at the time she had planning approval they destroyed the [property], because she was unable to show she had ZANU-PF approval.

    ·Deeply affected by his [Relative 1]’s death, the applicant became more active in supporting the MDC in 2005 – when he became an MDC member - including by distributing flyers and going to rallies. 

    ·[In] 2005 whilst returning from distributing flyers in his area the applicant was approached by a group of Border Gezi who beat him, threatened to cut off his limbs, warned him to stop his work with the MDC, then left.  The next day he sought medical treatment at [a hospital] for bruises on his face and arms.

    ·In the lead up to the 2008 elections the applicant was rounded up by police along with [a number of] other MDC supporters at a [particular location], charged with causing public disturbances and violent behaviour, and detained in police cells for [a number of] weeks before being released.  He was threatened by a police officer during this time that he would be killed the same way his father was (in 1997).  He was also beaten up by police and abused by others in prison.  On his release he sought medical treatment at [hospital], on [a particular date in] 2008. 

    ·In [2008] the applicant was stopped by ZANU-PF militia whilst [performing an errand] in his area who asked where he was going, for him to give a ZANU-PF slogan and to show their card.  When he did not, they threatened him and abused him.  He was then dragged to a ZANU-PF base at [a particular location] where he saw many atrocities, including women being raped.  They let him go at midnight.  The applicant then moved to his [Relative 2] and [Relative 1]’s house in Harare where he stayed until he left the country.

    ·After the applicant left Zimbabwe his [Relative 2] and [Relative 1], who had accommodated him in Harare, started facing problems from ZANU-PF supporters who came to their house looking for the applicant and assaulted them.  As a result they moved to [a particular country], in around 2009 and where granted protection there. 

21. The applicant claims that because his parents – who were actively anti-government – died young and suddenly his relatives were suspicious and paid a private doctor to carry out post mortems, the results of which state they died of ‘unnatural’ causes.  He believes they were poisoned by ZANU-PF supporters.  He said it is a common practice in Zimbabwe and noted the current president was poisoned by other ZANU-PF factional members (it is suspected) only two months prior to the hearing. 

22. The applicant provided to the Department a copy of his parents’ death certificates.  His father’s certificate states that he died on [a particular date in] 1997 at [a particular] age from [various medical conditions] and the duration of his last illness was one day.  His mother’s death certificate states that she died on [a particular date in] 2003, at [a particular] age, due to ‘[various medical conditions]’ and that the duration of her illness was one day.  The applicant’s oral evidence was somewhat vague in this respect.  He said his mother paid someone to carry out his father’s post mortem but was not aware who organised his mother’s post mortem, or whether there were copies of the results.  However this can be explained in large part because of he was relatively young at the time of their deaths.  The Tribunal notes the applicant’s [Relative 3] provided a copy of a document titled ‘post mortem report’ dated [in] 1997 to the Department, which confirms his father died due to ‘unnatural’ causes.  However the applicant’s claims that his parents were poisoned is largely speculative and on the evidence before it the Tribunal is unable to make a firm finding as to whether or not they were killed as claimed.

23. Nonetheless, the Tribunal accepts his parents were politically active against the government as was the applicant and his [Relative 1], who it accepts was killed in 2002, possibly by ZANU-PF supporters.  The Tribunal accepts the applicant’s claims of past threats and harm he experienced by ZANU-PF supporters because of his support to the MDC. 

24. The Tribunal holds some concern in this case given the applicant’s delay in applying for a protection visa: that is applying almost four years after he arrived in Australia.  However given the Tribunal otherwise found the applicant credible, it accepts his explanation at hearing that he was initially focused on his studies and after he completed [a particular course], applied for a skilled visa in order to stay here, which was not successful.  It does not draw an adverse inference from the delay. 

25. Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution as an MDC supporter and activist on return to Zimbabwe in the foreseeable future.

26. It is submitted that the applicant faces a well-founded fear of persecution on return to Zimbabwe from ZANU-PF supporters and militia due to his anti-ZANU-PF political opinion as an opposition supporter and activist.  For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on return to Zimbabwe from ZANU-PF supporters and/or militias on imputed political opinion grounds, as an MDC supporter and being opposed to ZANU-PF.  It has therefore not been necessary to consider any other grounds. 

27. Whilst the Tribunal accepts the applicant’s claims of past experiences of threats and harm by ZANU-PF supporters in Zimbabwe, the most recent incidences took place around 10 years ago in the context of the 2008 elections and the Tribunal doubts the applicant would be of any ongoing adverse interest to ZANU-PF supporters or members on return on this basis.  However, the Tribunal accepts the applicant will become politically active in opposition to the ruling ZANU-PF on return.  At hearing the applicant said he believes he has the right to express his political opinion and given what he has experienced at the hands of ZANU-PF in the past, as well as his parents and [Relative 1], he will not be able to be quiet.  He has not been politically active in Australia; however he keeps abreast of the political situation in Zimbabwe through friends and social media, and other news sources.  The Tribunal accepts, based on his past activism, and contentions at hearing, that the applicant will become involved in some capacity in opposing ZANU-PF on return to Zimbabwe, or if not, only because of his fear of serious harm in doing so.

28. In its most recent country information report on Zimbabwe DFAT noted that the level of politically motivated violence in Zimbabwe has declined significantly since 2008 and that the state sponsored security apparatus has switched its focus from overt physical violence to more subtle forms of intimidation largely targeting low profile opposition party members and supporters. However, DFAT report that physical violence, and the threat thereof, remains a feature of the political landscape and that the ‘political environment in Zimbabwe remains repressive’.[4] 

    [4] DFAT, DFAT Country Information Report Zimbabwe, 11 April 2016, at 3.15, 3.19 and 3.20

29. Such intimidation is reportedly more obvious in rural areas,[5] although Harare, where the applicant comes from, is not immune.[6]   

    [5] Smith D, ‘Zimbabwe: Rural Violence Mars Peaceful Election Campaign’, The Guardian, 31 July 2013

    [6]  Ibid at 3.24

30. DFAT state the following about the status and treatment of MDC-T supporters:

    The MDC-T remains the main opposition party in Zimbabwe despite suffering two significant splits since 2005 (the MDC-Ncube broke away from the MDC-T in 2005 and MDC-Renewal separated from the MDC-T in 2014-15).

    ...

    Credible sources have told DFAT that MDC-T members are subject to a greater level of official discrimination than members of other opposition parties because of the MDC-T’s status as the country’s main opposition party. This affects senior and low-level party members. On 8 October 2015, the ZRP arrested an MDC-T supporter for publically criticising President Mugabe for reading the wrong speech during the State of the Nation Address in Parliament in August; and on 8 November 2015, the ZRP arrested a MDC-T MP, Eric Murai, and 16 party supporters for holding an unlawful public gathering. Harassment of senior MDC-T party members currently mostly takes the form of legal proceedings targeting their economic interests, such as court proceedings against party Secretary-General Mwonzora.

    MDC-T members are subjected to occasional violence, mostly from ZANU-PF youths and supporters. The situation in 2016 therefore contrasts with practices in earlier years, when senior members were at greater risk of physical violence. In March 2007, ZRP personnel arrested and assaulted MDC-T leader, Morgan Tsvangirai, in Harare for attempting to attend a prayer meeting authorities had deemed to be an illegal gathering.

    DFAT assesses that all MDC-T members face a moderate level of official discrimination throughout Zimbabwe. MDC-T members and their families also suffer indirectly from the government’s partisan distribution of food and agricultural products, as well as its demolition of illegal households. MDC-T members face a moderate threat of violence from ZANU-PF supporters.[7]

    [7] DFAT Country Information Report Zimbabwe, 11 April 2016 at 3.26 – 3.29

1. In their January 2017 report on Zimbabwe the UK Home Office states that with regard to returnees to urban areas, primarily Harare and Bulawayo, in the case of CM (EM country guidance; disclosure) Zimbabwe[8] the Upper Tribunal found that:

   ...a returnee to Harare will face difficulties living in high density areas not faced by those living in other urban areas and those persons perceived to be active in MDC politics may face the risk of targeted reprisals. However in such areas, in general a person without ZANU-PF connections will not face significant problems unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.[9]

   [8] Heard in October 2012 and promulgated in January 2013

   [9] UK Home Office, Country Information and Policy Note, Zimbabwe: Opposition to the government, 30 January 2017, at 2.2.54,

2. In the same report it is stated that the situation in Zimbabwe has changed since the case of CM promulgated in 2013, given the splintering of the MDC again in 2014/15, and the fact they have boycotted every by-election in 2015 means they are less of a political force than when this case was heard.  The report goes on to state, however, that:

   ...the largest MDC faction – the MDC-T – remains the main opposition party and some of its members, along with those of the new political party – People First, led by the former ZANU-PF vice president, Joice Mujuru – have been subject to harassment, discrimination, arbitrary arrest, abduction and physical abuse.[10]

   [10] Ibid at 2.2.7

3. In early 2018 Joice Mujuru and some of her opposition party members were attacked while holding a political rally in the lead-up to the 2018 elections, allegedly by members of the ruling ZANU-PF.[11] 

   [11] BBC News, ‘Zimbabwe opposition leader ‘attacked’ on campaign trail’, 1 February 2018,

4. The Tribunal notes in November 2017 Robert Mugabe was ousted from being president of Zimbabwe by the military, and his former vice-president, Emmerson Mnangagwa (also of ZANU-PF) became the new president.  Whilst too early to herald significant changes, if any, according to the International Crisis Group (ICG), Mnangagwa – who had been aligned with the military and Zimbabwe’s National Liberation War Veterans association[12] – has appointed a cabinet filled with supporters, including military officers and war veterans.[13]  ICG state as follows:

   Mnangagwa’s new administration rewarded key allies in ZANU-PF, brought in more war veterans and even two senior security service chiefs. It did not include opposition elements or external technocrats as had been expected. Although slightly slimmer in size, its composition reflects a large degree of continuity in substance, with at least a third of the cabinet having served in previous Mugabe administrations.[14]

   [12] International Crisis Group, ‘Zimbabwe’s Very Peculiar Coup’, Commentary/Africa, 16 November 2017,

   [13] International Crisis Group, ‘Zimbabwe’s “Military-assisted Transition” and Prospects for Recovery’, Briefing No 134, 20 December 2017,

   [14] Ibid, footnotes omitted

5. ICG assess that after initially striking a conciliatory tone in public statements, the new president appears to have backtracked, noting that immediately upon his return, Mnangagwa said that ‘ZANU-PF will continue ruling no matter what, while those who oppose it will continue barking’. Instead of the new president charting a new national political course, ICG are concerned that ‘it is equally possible the country is witnessing nothing more than a reconsolidation of power by ZANU-PF’.[15] In a separate report the ICG noted that whilst the leader has gone, at least for now the regime remains.[16]

   [15] Ibid, footnotes omitted

   [16] International Crisis Group, ‘Three Critical African Elections’, Commentary/Africa,  4 December 2017 >

   The ICG present the following analysis about the new president:

   Presented as a pragmatist, Emmerson Mnangagwa was unable to deliver needed reforms when he was vice president (2014-2017) under Mugabe. Whether he can succeed now remains in question. He has been accused of responsibility both individually and as part of ZANU-PF’s collective leadership for an array of human rights violations, ranging from the Gukurahundi massacres in the 1980s. Mnangagwa has appointed Perence Shiri the military commander of the 5th Brigade, the North Korean trained military unit responsible for many of these killings, as minister of agriculture and lands. Operation Murambatsvina (Move the Rubbish) that violently cleared slums across the country in 2005, and the election violence of 2008 that left over 300 dead. He has denied any role in these abuses.[17]

   [17] International Crisis Group, ‘Zimbabwe’s “Military-assisted Transition” and Prospects for Recovery’, Briefing No 134, 20 December 2017, footnotes omitted

6. In the same report ICG voice their concern about the new vice president, General Chiwenga, as follows:

   The loudest cheers at Mnangagwa’s inauguration ceremony were reserved for General Chiwenga. This echoed the strong support expressed for the military and Chiwenga during the unprecedented demonstrations on 18 November. The military was conspicuous in the stands of the national stadium during inauguration celebrations. Regarded by many as the power behind Mnangagwa, Chiwenga signaled that the military is now a direct political player, with many anticipating that at some point he will shift from the army to politics. His retirement by President Mnangagwa and pending “redeployment” was confirmed as part of the military leadership reconfiguration announced this week. Although no announcements were made at the December Extraordinary Congress, it is still expected Chiwenga will be appointed one of two second secretaries in ZANU-PF’s Presidium and then vice president. This could serve as a stepping stone to the presidency later. The military’s direct involvement in “guiding” both the ruling party’s and the government’s new direction makes it difficult to depict the events as a legal defence of the constitution.[18]

   [18] [18] International Crisis Group, ‘Zimbabwe’s “Military-assisted Transition” and Prospects for Recovery’, Briefing No 134, 20 December 2017, footnotes omitted

7. According to the ICG, elections in Zimbabwe must be held before September 2018.  Prior to Mugabe’s resignation, they were expected to be held in April. Mnangagwa has committed to holding them in 2018, though they state the elections are likely not until July or August. The ICG identify the following concerns in this respect:

   ZANU-PF appears intent on buying time to consolidate its position ahead of elections that must be held before September 2018 and that it is determined and well placed to win. There is precedent: after it blatantly rigged the 2008 elections and faced both violence and strong regional and international pressure, the party agreed to share power with the opposition but used the next four years to bolster its hold on power and engineer a huge, albeit highly controversial victory in the 2013 elections. Although Mnangagwa has promised “free and fair” elections, he takes over as an unelected president with a limited timeframe and with a long list of overdue electoral reforms to ensure their credibility. He and his government will need to act fast lest the vote be flawed and fail to deliver the required legitimacy for donors to re-engage and for Zimbabweans to work together on the country’s recovery.[19]

   [19] Ibid, footnotes omitted

8. Traditionally, political violence in Zimbabwe increases when elections are called and ZANU-PF has reportedly used threats and violence, including murder, against its political opponents in every election since 1980.[20] There are a number of reports of targeting of MDC supporters in rural areas during the 2013 election campaign[21] involving threats to cut off limbs,[22] burning of houses,[23] confiscation of land[24] and physical assaults.[25]

   [20] Kriger N, 2005, ‘ZANU(PF) Strategies in General Elections 1985-2005, Discourse and Coercion’, African Affairs, Vol104 No 414

   [21] See for example: Sibanda T, ‘Increasing Political Retribution Against MDC-T supporters’, SW Radio Africa, 14 August 2013; Amnesty International, Zimbabwe: Women Forced to flee their Homes for Refusing to Reveal their Vote, 7 August 2013

   [22] Karimakwenda T, ‘ZANU-PF threatening MDC-T in Binga with Amputations’, SW Radio Africa, 20 November 2012

   [23] Phiri G, ‘Zanu (PF) launches terror campaign’, Daily News, 15 November 2012, Nehanda Radio

   [24] Gweshe E, ‘Zanu (PF)  activists wrest housing stands from MDC’, The Zimbabwean, 24 October 2012

   [25] Zimbabwe Peace Project, ZPP Monthly Monitor: October 2012, 15 November 2012

9. The key role the army is likely to play in the elections was highlighted in a January 2018 article in Africa Confidential as follows:

   The planned 2018 election will go ahead but it is likely to be no freer than those of the recent past. Mnangagwa will use the poll to strengthen his legitimacy as President and to bolster his power base in parliament. He will win the election through a combination of strong-arm tactics and the residual goodwill of the electorate. His close aide Chris Mutsvangwa has already said that the army will play an important role in ZANU-PF's campaign.

   This is an ominous threat, given the crucial role that the military played in ensuring that voters supported Mugabe in the 2008 run-off after they failed to vote for him in the first round of elections.[26]

   [26] Africa confidential, ‘Old ZANU-PF in new bottles’, Vol 59 No 1, 12 January 2018,

10. The Tribunal notes in this regard at hearing the applicant provided articles which indicate that ZANU-PF have threatened a repeat of the 2008 election-related violence and intimidation, including deploying thousands of soldiers to live among the community. 

11. Having regard to such country information and what it accepts of the applicant’s past experiences in Zimbabwe and profile, the Tribunal is satisfied he faces more than a remote chance of serious harm on return to Harare on imputed political opinion grounds, as an active MDC supporter.  Although country information indicates a decrease in political violence in Zimbabwe post-2013 and Mugabe is no longer president, the architects of past abuses – ZANU-PF – remain in power, and the military and ZANU-PF’s desire to retain power is strong, presenting a concern of a return to violence in the upcoming elections which historically are times of uncertainty and often violence in Zimbabwe.  The Tribunal accepts the applicant would become politically active on return to his home area, or if not only because of his fear of serious harm at the hands of ZANU-PF.  This is evident from his past involvement with the MDC and ongoing interest in developments in Zimbabwe.  This risk is compounded by the fact the applicant has been absent from Zimbabwe for an extended period and because of his family’s profile as MDC supporters.  In such circumstances the Tribunal is satisfied the applicant faces a real chance of being threatened, intimidated and physically assaulted on return to Harare by ZANU-PF supporters as an MDC supporter. The Tribunal is satisfied the applicant’s imputed political opinion is the essential and significant reason for the harm and that the harm is systematic and discriminatory.

12. With respect to state protection, the applicant submits in his written submission to the Tribunal that Zimbabwe has one centralised state government and the police, central intelligence organisation (CIO) and army are all under the centralised ZANU-PF rule and do not offer help or assistance to members of other political parties.  Not only are those people who are not members of ZANU-PF unable to report political violence to the authorities, but the police and soldiers are sent by ZANU-PF to the communities to assault, abuse, harass, intimidate and sometimes imprison opposition members, the applicant argues.  The applicant submits further that this happens all over Zimbabwe, noting that chiefs and ZANU-PF aligned groups in each province are ZANU-PF members whose role is to monitor their communities.

13. The Tribunal notes that ZANU-PF exerts considerable influence and control over state security institutions and has sought to transform state security institutions into agencies which serve the interests of the party.  Accordingly, state security institutions have been used by ZANU-PF to target MDC supporters.[27] In 2013, Human Rights Watch reported that the Zimbabwe National Army had deployed soldiers across the country who had been implicated in directly campaigning for ZANU-PF and in ‘harassing and intimidating villagers’.[28] More recently the UK Home Office has also reported that the Zimbabwean police force is highly politicised.[29] DFAT reported that the Zimbabwe police force is a highly partisan force and that senior commanders are expected to support ZANU-PF and act in the interests of ZANU-PF. DFAT also noted the existence of militia groups which are linked to key political figures and which form part of the state’s apparatus to control the population.[30] Having regard to such country information, and noting that ZANU-PF remain in power in Zimbabwe, the Tribunal is not satisfied that state protection is available to the applicant.

    [27] International Federation for Human Rights, Run up to Zimbabwe’s July 31 General Elections. 20 Days to Ensure a Free, Fair, Transparent and Peaceful Protest, 9 July 2013

    [28] Human Rights Watch, The Elephant in the Room: Reforming Zimbabwe’s Security Sector Ahead of the Elections, 4 June 2013

    [29] UK Home Office,  Country Information and Policy Note – Zimbabwe: Opposition to the government, 30 January 2017, at 2.2.8

    [30] DFAT, DFAT Country Information Report Zimbabwe, 11 April 2016, at 5.5

14. The Tribunal is also not satisfied that the applicant can safely relocate to another part of Zimbabwe to avoid the harm he fears in Harare as the agents of harm are aligned with and authorised by the state, who exist nationally.

    DECISION

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Nicole Burns
    Member