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1507928 (Refugee)

1507928 (Refugee)

Case [2017] AATA 3009 11 December 2017

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1507928 (Refugee) [2017] AATA 3009 (11 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1507928
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:Michael Judd
DATE:11 December 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 11 December 2017 at 4:16pm

CATCHWORDS
Refugee – Protection Visa – Zimbabwe – Imputed political opinion – Opposition party – Fear of violence – Level of political involvement – Previous incidents with authorities – Witness credibility – Inconsistencies in evidence – Significant cognitive impairment – Difficulty with memory and recall

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, r 1.12, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Zimbabwe applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] May 2015.
The primary applicants in this matter are [Ms A] and her husband [Mr B]. The members of the family unit include [Ms C] and [Ms D], being the children of the primary applicants. The children have made no independent claims. The ‘primary’ applicants appeared before the Tribunal on 25 May 2017 to give evidence and present arguments.
It is apparent to the Tribunal that the delegate refused to grant the visas on the basis that:
a.claims of being interrogated, beaten, threatened and released were unsubstantiated;
b.claims that they cannot return to Zimbabwe because of a fear of being detained, interrogated, beaten and possibly killed were not supported;
c.The delegate determined that the primary applicants did not have a well-founded fear of persecution and as a consequence there was not a real chance of them being persecuted for any reason under the Refugees Convention;
d.The delegate was not satisfied that the complementary protection criteria were satisfied for both primary applicants; and
e.The delegate decided that the primary applicants were not persons in respect of whom Australia has protection obligations. As a consequence, the children of the family unit were not granted protection visas as being members of a family unit.
The applicants applied to the Tribunal for review of the decisions on 21 July 2016. They provided the Tribunal with a copy of the delegate’s decision record.

RELEVANT LAW

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

Refugee criterion

Section 36(2) (a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A (2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

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

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant(s) is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The Tribunal accepts that the primary applicants and their two children are all members of the same family unit.

Country of Reference and migration history

[Ms A]

The Applicant [Ms A] claims to be of Zimbabwean nationality. She was born to the black African ethnic group and her religion is Christian. She married her [husband] (co-applicant) [in] 1997 in Harare. The Tribunal is satisfied that the applicant [Ms A] holds Zimbabwean nationality and that she does not hold citizenship of any other country. The applicant confirmed in her application to the department and in her evidence to the Tribunal that she has no right to enter or reside in any country other than her country of nationality. In the circumstances the Tribunal is satisfied that section 36(3) of the Act does not apply to this applicant.
This applicant entered Australia upon a [temporary] visa, arriving [in] July 2009 pursuant to a Zimbabwean passport that expired [in] 2013. Prior to arriving into Australia the applicant spent brief periods in [Country 1] and [another country] for work, leisure and business purposes. Details of this may be found at folio page 59 of the departmental file. Prior to arriving into Australia the applicant had been employed as [Occupation 1] [57].
Following arrival into Australia [in] July 2009 the applicant remained on the mentioned [temporary] visa until [September] 2011. From then she remained on a bridging visa until [July] 2012 whereupon she was granted a [temporary visa] which ceased [in] January 2014. She lodged her application for a protection visa [in] January 2014 and is currently subject to a bridging visa with no conditions. The protection visa application was lodged about four and a half years following arrival into Australia.
[Mr B]
In relation to the other primary applicant, [Mr B], he advised the department that he was born in Harare, Zimbabwe, on [birth date]. He described his ethnic group as black African but described his religion as Pentecostal. He confirmed his citizenship at birth as Zimbabwean and that he has no other citizenship or nationality. He confirmed that he has no right to enter or reside in any country other than his country of nationality. The Tribunal is satisfied that the applicant is a national of Zimbabwe and that section 36(3) of the Act has no application to the applicant.
It appears that his entry into Australia was as a dependent spouse of his wife [folio 75]. The Tribunal notes that his entry date into Australia differs from his wife in that he entered [in] May 2010 whereas she entered [in] July 2009. He entered Australia on a [temporary] visa ([subclass removed]); [in] June 2010 he returned home to Zimbabwe for a period of [a number of] weeks and returned to Australia [in] August 2010. His [temporary] visa ceased [in] September 2011 whereupon he remained in Australia on a bridging visa until [July] 2012. At this point he was granted a dependent spouse visa as a dependent of his wife. The dependent spouse visa ceased [in] January 2014. This applicant lodged his application for a protection visa [in] January 2014 and he remains in Australia pending the outcome of this application for review.
The Tribunal notes from the application documents [73] that the applicant has gained qualifications whilst in Australia, being a [certificate] which he gained in 2012. At the time of applying for the protection visa he nominated his employment as being [occupation] with [a company] in [City 1], commencing employment from 2011.

Assessing credibility

The Tribunal’s task of fact-finding in this matter has involved assessments of the credibility of the Applicants and witnesses presented on their behalf. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[1]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[2] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[3] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[2](1996) 40 ALD 445.
[3]At 482.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[4] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[5]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[4](1996) 185 CLR 259.
[5]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an Applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an Applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the Applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[6] Nevertheless, as Burchett J counselled,[7] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[6] [1997] FCA 1198 (
[7] In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs,[8] “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”
[8] (unreported, 17 September 1998)
Nevertheless, there is no rule that a decision-maker may not reject an Applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[9] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[10] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an Applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[11] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[12]
[9] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9
[10] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241
[11] See MIMA v Rajalingam (1999) 93 FCR 220
[12] (1999) 197 CLR 510 at [191]

CONSIDERATION OF CLAIMS AND EVIDENCE

The key matters for determination by the Tribunal in this matter are whether the Applicants are persons in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or (aa) of the Act, or, are members of the same family unit as a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the Applicant.
More particularly, the Tribunal is required to determine whether the applicants have a well-founded fear of suffering serious harm in Zimbabwe and if not so satisfied, whether there is a real risk of the applicants suffering ‘significant harm’ in Zimbabwe should they return to that country. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Claims arising from the protection visa applications

Claims of [Ms A]

The initial claims of the primary applicant [Ms A] were included in the department file at folio pages 53 to 56 inclusive. [Ms A] claims that she fears persecution from individuals and groups associated with the Zimbabwe government and that she will be persecuted because of [her] political opinion. She claimed that she was traumatised following events of being ill-treated and tormented in Zimbabwe. She claimed her worst fear[s] is that she is not sure what will happen to her and her family if she goes back to Zimbabwe. She is distressed, damaged and confused and still in grief following events of ill-treatment and torment. She claimed that she is a victim who is vulnerable to mistreatment and that she was victimised because of her association with certain social groups and [her] political opinion. In relation to whether she can obtain protection in Zimbabwe she responded she does not think so because ‘they are the reason she is seeking protection’.
Additional written statement of [Ms A]
[Ms A] provided a one page statement [folio page 124 of the departmental file]. In that statement she indicated she believed she was victimised because of the expression of her opinions when it came to the laws that would [be] governing her country and still are. She stated that she had seen people tortured, terrorised, intimidated and ill-treated with no laws to protect victims.
She stated she cannot remember the exact dates, but it was in [2008] on a weekday that she had gone to do business in Harare. She came home [at a certain time of day]. [Shortly after] she was picked up by some men for what she thought was innocent questioning concerning her husband’s capture that had occurred a few days earlier [see her husband’s claims below].
She claimed that as soon as she got in their car she was taken somewhere. She was [restrained] and told to keep quiet if she wanted to live. Whilst in the car she was manhandled, tossed around and eventually taken to a room after [a number of] minutes’ drive. In the room she was beaten. She was asked about where secretive meetings of the opposition party (MDC) were taking place in her area. She told these people she did not know. They insisted she did know and continued to beat her up.
She states she was so scared that she was going to die and she worried about who was going to look after her children. She had no information to give as she was not a member of any political party or organisation. She states that her captors went outside the room and left her and she could hear them talking. One of the men came back and told her to start speaking, before they killed her. She describes herself as being so scared; she was crying so much but they had no mercy for her and continued to beat her, calling her names.
She reiterated in the statement that she had no position whatsoever in the opposition party although she ‘wanted change as much as everybody else’ and would express her opinions as much as she could. Her captors left her in the room overnight and she did not know if she was going to live. When she was left in the room she had her face covered and her hands were cuffed. The captors came back in the morning, picked her up and dropped her off in the middle of nowhere. She had to walk [a long distance] on foot to find help.
Initial claims of the primary applicant [Mr B]
The applicant [Mr B] also provided written claims to the Department which can be located at folio pages 68 to 71 inclusive. He claimed that he has a fear of persecution and interrogation from [some] individuals associated with the Zimbabwe government because of [his] political opinions. He claimed he had been traumatised and suffered some internal injuries. He stated that he suffered from bad memories and panic attacks sometimes. In relation to questions in the application documents as to what he fears if he goes back to Zimbabwe, he responded that because of previous bad events [in Zimbabwe] he is not feeling safe, as he was always ‘living a hiding life’ being in fear of his life. He claimed his family were ‘no more living peacefully’. He claimed that his wife also suffered some serious persecution which made her run away earlier. He claimed that he has some enemies whom he thinks can do anything bad to damage his life. In relation to what he thinks will happen if he goes back to Zimbabwe, he responded that he had ‘already got warnings from some relatives who love him, especially where the political situation is no longer in our favour’. In relation to a question as to what he thinks concerning authorities being able to protect him, he responded that ‘they are the subject of my suffering and I’m sure things will even get worse’.
Additional written statement of [Mr B]
[Mr B] also provided a written statement which can be found at folio page 103 of the departmental file. In that statement [Mr B] stated that in 2008 there was political tension in Zimbabwe and those who [were] not supporting the ruling party’s campaign projects were blacklisted, arrested, jailed and tortured. He stated that he felt lucky to be a survivor because some of their friends had lost their lives in this process.
Although he was not a very active member of any party he believed that one of the reasons he suffered was the ruling party’s [ZANU-PF] hatred of white people. He had been working closely with white managers; some enemies arose even within the workplace because of his position in the company and association with the white management. He believes those people set him up.
He stated that in [2008] a group of men came to pick him up from his workplace saying they had a strong political case against him because they had heard that he was ‘not causing the sponsoring of the ruling party’ through the company he worked for. [The Tribunal accepts this to be a reference to a practice in which businesses would pay a ‘sponsor fee’ to the ZANU-PF, which also included white run businesses. The ‘sponsor fee’ was likely to be a form of extortion]
He tried to resist but the men forced him and took him away by vehicle to the nearest police station and locked him up overnight. The next day the people returned and asked him if he ‘had a story to tell about the opposition’ and they asked why he was not supporting the ruling party, because they [ZANU-PF] wanted their supporters to be part of many companies as well. The applicant did not reply to the questioning; the men started torturing and beating him and threatened to shoot him if he did not comply.
He was later released and told to make sure that he followed their campaigns [ZANU-PF] by being one of their members or else he would face death. The applicant wondered what he had done but found out that ‘much of it was just propaganda’ and that the ruling party felt they were not getting support from many people in the area.
The applicant stated that this [capture] happened twice in the same month [[of] 2008], but on the second time ‘it was so painful because they really wanted to kill him’. He survived through some brawling and interference [disagreement] which occurred between his captors. He believed that his captors were supposed to ‘refer’ him to some other base but instead, decided to deal with his case by themselves.
He believes that they [his captors] suspected that if he was killed that they would be charged. They helped each other to carry him because he was in a bad condition and not able to walk. The applicant claimed that his captors shoved him into [a vehicle] and drove him back to his workplace where they left [him]. They then disappeared.
During the early evening he was helped and taken home by passers-by because he’d been left stranded without any form of communication. Since then he [has] started living a fearful life and has never enjoyed peaceful conditions, living a life of hiding. He stated that the threats also spread to his family and that his wife decided on ways to escape. His wife managed to obtain a [temporary] visa to Australia; he and the children followed her the following year to Australia.
[Mr B] stated that a result of being tormented and tortured he had suffered injuries; one of the situations is that it is [details of illness]. He suffers [certain symptoms] which started after the torture. He believes he suffered some [injuries] and memory losses which seem to appear after [other symptoms]. Until coming to Australia he was suffering from [various symptoms] but now it ‘appears the doctors are winning’ and that he is normal. He said that he and his wife are very worried to return back home to Zimbabwe because he has heard that those who have previously tried to return have lost their lives; the same people who harmed him and his wife are still in control. He stated he believes things are getting even worse because of the collapse of unity in Zimbabwe

Interviews with the department and the decision record

The Tribunal notes that the Delegate was satisfied as to the evidence of identity provided by all four applicants. In the circumstances the Tribunal is also satisfied as to identity.
The Tribunal is also satisfied that the primary applicants are married and that the secondary applicants [Ms C] and [Ms D] are their children. The Tribunal is also satisfied that the four applicants are members of the same family unit as defined by regulation 1.12 of the Migration regulations.
The applicant [Ms A] attended her protection interview [in] March 2015 during which she claimed that because she did not support the ruling political party, ZANU-PF, and, because she is the wife of [Mr B], she was targeted by members of that organisation. She claimed that on an unspecified date in [2008], a group of men came to her home and coerced her into a vehicle and took her away to a room somewhere where she was locked up overnight. She claimed that she was interrogated, beaten, threatened and released the following morning. She claimed that she cannot return to Zimbabwe because of her fear of being forcibly detained, interrogated, beaten and possibly killed.
The applicant [Mr B] attended a departmental interview [in] March 2015 in which he was questioned as to his claims for protection. He claimed that because he did not support the ruling political party ZANU-PF he was targeted at his workplace by members of that organisation. He claims that on an unspecified date in [2008], a group of men came to his workplace and forced him into a vehicle and took him away to the nearest police station where he was locked up overnight. He claims that he was interrogated, beaten, threatened and released in the morning. He claims that he cannot return to Zimbabwe because of his fear of being forcibly detained, interrogated, beaten and possibly killed.
The delegate found that the separate claims of both applicants concerning being interrogated, beaten, threatened and being released in the morning were unsubstantiated. The delegate found that the joint claims of both applicants were not supported.
The delegate was satisfied that the Refugee Convention ground of political opinion was the essential and significant reason for the harm allegedly feared. The delegate was also satisfied that the applicant’s alleged fears of being detained, interrogated, beaten and possibly killed satisfied the definition of ‘serious harm’ for the purposes of section 91R(1) (b) of the Act. The delegate was satisfied that the harm as allegedly feared amounted to persecution.
In relation to assessing whether the fear was well-founded, the delegate accessed country information including the then current DFAT Country Report upon Zimbabwe [dated 11 February 2014].
The delegate noted that the claims made by both applicants related to events that allegedly occurred in [2008], being seven years prior to the lodgement of their protection visa applications. The delegate noted that both applicants claimed that neither of them were actually members of a political party.
The delegate noted that country information indicated that politically motivated violence has been decreasing in frequency during the previous three years and had reduced significantly since 2013. The delegate also noted that DFAT had assessed that Zimbabwean citizens who have lived, studied or worked in Australia, or other countries, are not specifically targeted or discriminated against upon their return to Zimbabwe.
The delegate was of the view that the cumulative weight of matters assessed led him to find that there was no evidence to suggest that if the applicants returned to Zimbabwe that they would not be able to live and work to the same level of security as the general population. The delegate expressed a view that concerns existed about the immediacy, and well-foundedness of the applicants claims and that questions were raised as to whether the applicants had sought to make an application for protection not out of a genuine fear but in order to further prolong their stay in Australia for economic and lifestyle reasons. In the circumstances the delegate was not satisfied that there was a real chance of the applicants being persecuted for a refugee convention reason.
In relation to complementary protection the delegate formed the view that because of his findings as to well- founded fear, he did not consider it necessary to consider the aspect of significant harm [complementary protection]. In the circumstances the delegate was not satisfied that both applicants are persons in respect of whom Australia has protection obligations under section 36 (2) of Migration Act. As a consequence the delegate refused to grant protection visas to the two children, being members of the family unit

Information received prior to hearing

Prior to the hearing the Tribunal received several affidavits, the first being from a [Mr E] of Harare. This affidavit was purportedly sworn in Harare [in] April 2017 before a person authorised to take affidavits. [Mr E] stated that sometime in [2008], he received a call from his brother-in-law [[Mr B]] asking for the whereabouts of the applicant [Ms A] because she had been missing for a couple of hours. [Mr E] was not aware of her whereabouts and assumed that she had visited some friends or was performing errands. [Mr E] later received another call during which he was notified that she still had not turned up. He called his mother enquiring as to whether the applicant had turned up. The following day he was notified that she had turned up in a traumatised state. He later heard she had been picked up and held against her will at an undisclosed location by unknown assailants.
A further affidavit was received from a [Mr E] of Harare. This was taken before the same authorised officer as for the above affidavit from [Mr E]. [Mr E] stated that the applicant [Ms A] was a member of [a certain church] from 2005 to 2009 whilst in Zimbabwe. He stated that [Ms A] and her family were community leaders, leading the [church] for two years to help the less fortunate. They were also involved in group ministry, leading a group with [a number of] people. They served faithfully and reputedly and continue to support the church even after their departure from Zimbabwe.
On or about 12 May 2017 the applicant [Ms A] provided a significant amount of material electronically to the Tribunal in support of her application for review. This material included several human rights related reports concerning Zimbabwe sourced from the internet. Each has been sighted and taken into consideration by the Tribunal in conjunction with information sourced by the Tribunal itself and referred to within this decision.
Also on 12 May 2017 the Tribunal received from the applicant [Ms A] a letter of seven pages duration authored by her which the Tribunal has taken into consideration in assessing this matter.
On or about 22 May 2017 the Tribunal received a one page reference from [a church] in [City 1] dated [in] May 2017. The author of this [letter] verified that the applicant [Ms A] had been regularly attending the church for about five years and was actively involved in the church community as a volunteer.

The Tribunal hearing on 25 May 2017

The Tribunal invited both primary applicants to a hearing on 25 May 2017 to enable them to give evidence and make arguments in relation to their matters. At the hearing the Tribunal received a signed statutory declaration in the name of [another individual]. She declared that the applicant [Ms A] was her friend and that she had known the family for about six years. She had met the applicant through friends and found her to be a loyal loving friend who is dedicated to helping others in many aspects of life. She described [Ms A] as a great mother to her children who works tirelessly. She described the applicant as a person of good morals and a follower of Christ who interacts with community groups.
The Tribunal received a reference in the form of a statutory declaration from [another individual]. This person stated that they met the applicant [Ms A] in 2009 and has known her for about eight years. She described the applicant and her family as having been loyal to her and that they would often meet for social gatherings, birthdays, family dinners and religious meetings.

At the hearing, the applicant [Ms A] produced a further three page letter in her handwriting, the purpose of which was to challenge the decision of the delegate and the accuracy of country information relied upon by the delegate. A further two page letter from the applicant [Ms A] was also provided to the Tribunal, and as with the other two letters, has been considered by the Tribunal. The Tribunal is satisfied applicant [Ms A] was the author of these letters.
Included within materials provided by applicant [Ms A] before the hearing was further open sourced country information concerning the security situation in Zimbabwe. This information dated as far back as 2008, however, and is therefore accorded little weight when assessed in conjunction with recent country information identified within this decision.
Medical reports were provided to the Tribunal which, if accepted, indicated that applicant [Mr B] had consulted Australian doctors in relation to lapses in his short-term memory and a reduction in concentration. It appears that [Mr B] has advised assessing medical practitioners that he had received physical [injuries] whilst in Zimbabwe. [In] March 2015 his then treating doctor, [Dr F], confirmed in a letter that he was investigating a [medical condition] for which the applicant was taking [medication]. [Dr F] indicated that difficulties reported by the applicant concerning lapses in short term memory may be related to the mentioned [injuries] and also [medications]. The Tribunal notes that [Dr F] did not express a view or opinion as to the likely cause of the applicant’s disorder, nor was there any reference to evidence of any physical signs of [injuries].
Also included with submitted materials was a report from a clinical [neuropsychologist] dated [in] June 2015. The report stated that the applicant [Mr B] had been referred for neuro-psychological assessment to investigate his cognitive functioning in relation to issues including [various conditions and symptoms]. The report states that [in] May 2015, testing showed that the applicant required additional time to complete some tasks and that complex or lengthy information could be overwhelming for him. Whilst the applicant was able to learn and retain new information, he had some difficulty in doing this in an organised and efficient manner. The report indicated weakness in aspects of his language and visuospatial processing skills. The report also indicated that, collectively, the variability and areas of weakness in the applicant’s thinking may be related [a particular symptom] and/or his general health including [certain medical issues]. The Tribunal notes that this report does not offer any view or opinion as to the likely cause(s) of the symptoms as described.
Evidence received at the hearing
The Tribunal opened the hearing by asking both applicants whether they understood the reasons for decision. [Ms A] responded that she believed credibility was a part of the decision; her [husband] told the Tribunal that it was very hard for him to analyse the decision and that his memory is currently not good. He told the Tribunal that the decision had confused him; [Ms A] said she did not agree with the decision.
The applicant [Ms A] confirmed she had written the letters referred to above; she stated that she was not articulate and that no new claims had been included in the letters.
Both applicants confirmed that their home area to be Harare, Zimbabwe. At the time of the hearing the children of the applicants were aged [ages removed]. [Mr B] told the Tribunal that his mother and father were still alive and lived [a certain distance] outside Harare; he still has a [sibling] in Harare. He told the Tribunal that he has [other siblings] living in [a city in Country 1]. The applicant [Ms A] said that her mother and father live [a certain distance] from Harare; she has a [sibling] living in [Country 1] and [other siblings] who live with her mother. She confirmed that she still has friends living in Harare.
Phone evidence from [Mr G]
[Mr G] is the brother of [Ms A]. He provided evidence by telephone. He told the Tribunal that he was currently [employed] in [City 1] by [a company]. He told the Tribunal that the situation in Zimbabwe is not very favourable to the applicants. He said that sometimes people who return to Zimbabwe can be ‘picked up’ by people at the airports upon their return, suggesting they were forcibly abducted. He told the Tribunal it was very hard for people if they returned to Zimbabwe as there was no guarantee that they will be safe. He referred to the Zimbabwe Criminal Intelligence Office as having a presence at airports.
The Tribunal queried with the witness as to whether he had any specific information to provide and he responded that he was aware that the applicants had altercations ‘a while ago’ in Zimbabwe. He knew that [Ms A] had been detained and tortured at some point and that [Mr B] has had health problems linked to the way he was tortured.
The witness told the Tribunal that during the time that [Mr B] was detained, his wife, the applicant [Ms A], did not know where he was. He said this would have been a very traumatic time for them to go through. He told the Tribunal there are some people in Zimbabwe who have not lived to tell the aftermath.
In relation to [Ms A] suffering harm, he told the Tribunal he was not very aware of the details. He said that when the applicants were harmed he would have been aged [a particular] age and living in Harare.
He told the Tribunal that is a very hard thing to contemplate going back to Zimbabwe. He said that when the Department of Immigration refused the protection applications it made the family feel very scared and that they believe they will probably lose their lives. He told the Tribunal the situation is not very good in Zimbabwe and that something could happen to the [applicant’s family]. He said there won’t be much publicity about them if they went missing. The witness said that the police are part of the government and that you cannot trust anybody in government departments in Zimbabwe.
The Tribunal queried with the witness as to when it was that it that he had first heard about the harm suffered by the two applicants. He responded that he had heard some of it whilst he was living in Zimbabwe and had heard some details later, whilst in Australia. The witness was not able to provide any details as to what he understood actually occurred with [Ms A].
The witness stated that the harm that came to the applicants in Zimbabwe was politically motivated or connected. He could not confirm, however, if either applicant had political involvements in Zimbabwe. He said that in most cases where people are tortured it is because they have ‘crossed’ people politically and have expressed political views. He then clarified his evidence to the effect that the applicants may have had political involvements but these may be known to them more than anybody else. He confirmed that they displayed no outward signs of political involvements.
Following the completion of [Mr G]’s evidence, the Tribunal spoke to both applicants together for a brief period before taking evidence from them individually. The Tribunal sought from the applicants as to why it was that the applicant [Ms A] had come to Australia first, leaving her husband and two children remaining behind in Zimbabwe. The Tribunal was told that [Ms A] was eager to leave Zimbabwe as quick as she could. The applicants did not know anybody in Australia other than [Ms A]’s brother, the witness [Mr G], who lived in [City 1]. [Ms A] had come straight to [City 1] from Zimbabwe. They told the Tribunal that the two children had travelled to Australia in 2010 with [Mr B], their father, being about ten months after the arrival of [Ms A].
The Tribunal asked [Mr B] why it was that he had returned to Zimbabwe for [a number of weeks] only [a short time] after first arriving into Australia [in] May 2010. [Migration records showed that the applicant first arrived in Australia [in] May 2010 on a [temporary] visa but after [a number of] weeks he departed and returned home to Zimbabwe for [a number of weeks]. He returned to Australia [in] August 2010]. [Mr B] told the Tribunal he did not remember having returned to Zimbabwe. The Tribunal queried with both applicants as to how long it has been that [Mr B] has suffered memory problems and was told by his wife that it was in 2008 that he first suffered [problems]. [Ms A] stated that his condition ‘gets complicated as time goes on’
Evidence of [Mr B] before the Tribunal
The applicant [Mr B] was able to confirm that he was working in a [company] in Harare in 2008 and that it was a [certain kind of company]. He told the Tribunal that he could not remember when he first started working with this business. He said he worked in [a certain area]. The business was located in a suburb nearby to where he lived in Harare and that he drove himself to work. He told the Tribunal that he was confused that an incident had happened to him as he was not a supporter of the ruling ZANU-PF party and had had no roles or involvements with the MDC party, the then opposition.
[Mr B] told the Tribunal that he did not believe that his wife had political involvements, telling the Tribunal he will never know why it happened. He told the Tribunal he usually started work at [a certain time] and that he worked in [a certain] area of the [company]. He left work at different times on occasion. He was the main person who would [undertake certain duties] after hours. His boss at the business was a person called [Mr H], who is a white person. He believed that there were tensions because of his close working relationship with [Mr H], telling the Tribunal that sometimes people hate you when you are close to them, meaning the Zimbabwean white population.
In relation to the ‘first capture incident’ he said that he could not remember how many men turned up at his business but it was a group and they were all black people. He said he did not recognise them and he did not hear them use names for each other. He recalled that [details of incident removed]. He said he could not remember his reaction at the time but recalled he was ‘attacked by fear’. He told the Tribunal that he could not remember what happened when he first saw the group and said ‘they don’t give you opportunity to act’. He recalled somebody saying to him that he was not a supporter of the party and we want to know why, a reference to the fact that the witness was not a member of the ZANU-PF. The witness told the Tribunal that some companies in Zimbabwe supported the ZANU-PF by donating money; he did know if this was the case for his business. He was not sure if the ZANU-PF had attempted to source money from [Mr H] and his business.
He recalled being taken outside of the [company] by the group and that he was taken somewhere which he believes was a police station. He described this as being ‘political interference’. He told the Tribunal that he believes he was taken to the nearest police station which he thinks was [a particular] police station. The Tribunal accepts that there is a [police station with that name] located in Harare.
The witness recalled that there was so much tension at one stage during his capture that he believes that he fainted. He believes that he was [restrained] but he could not remember [being restrained]. When they arrived at the police station he recalled that the group continued their beatings of him. He was not sure as to where he was taken at the police station and that it could have been inside and outside. When asked who the group were he told the Tribunal that they were ZANU-PF supporters and that the group wanted him to be locked up within the police station. The applicant believed there was a big connection between ZANU-PF and the police.
He told the Tribunal that he was not sure how long he was at the police station for but he thinks he might have fainted and that he did not now recall a lot of things. He said that whilst he was being beaten he was standing. He stated that his captors wanted him to agree to give statements and that they wanted to know why he was not supporting the ZANU-PF. It was also clear to the applicant that his close working relationship with his white boss [Mr H] was also an issue for the group.
The witness told the Tribunal that the incident occurred in 2008 at a time that many people had died from violence. When asked to describe how the beatings were inflicted he said that [certain instruments] were used and also hands.
Whilst in captivity he recalled at some point people picking him up and that these people felt sorry for him. He did not remember leaving the police station and how we came to leave. He was given assistance by some people to get back to his house. On arrival at his house he saw his wife. He had [various injuries]; no medical treatment was obtained for injuries. He said there was no need to report the incident to the police. The witness believes that he took a day off work the following day.
The witness recalled a similar incident occurring to his wife when she was kidnapped and also beaten. He suspects this was some form of punishment to him by the same group. He recalls that when his wife was kidnapped that he was at work. He could not remember what time of day it was that she was kidnapped. [Mr B] could not remember how long his wife was missing for but the next time he saw her was at their house. He could not recall when he saw her because his memory lapsed sometimes. The Tribunal asked the applicant as to where his wife was when she had told him what had occurred to her; he responded that someone picked her up and that she was kidnapped and beaten.
He said that what has happened to his country had ‘eventually come to their house’. He told the Tribunal that he could not recall his wife saying who had kidnapped her but that she said she had been taken away somewhere. She had [various injuries] on her return.
The Tribunal inquired with [Mr B] as to whether there was a second time that he was captured or kidnapped, to which he responded that there might have been two times but he could not now remember a second time. He remembered friends telling him that he was going to die. The applicant then emphasised that he had been suffering from [medical symptoms] and that he loses memory sometimes. He told the Tribunal that he does not remember the days between the first kidnapping and a second kidnapping and that he now relies on his wife [Ms A] to recall things for him.
The Tribunal then put several aspects of the signed statement of [Mr B] [folio 103] to him, particularly in relation to a possible second kidnapping. He told the Tribunal that he could not remember giving any statement. He then said he recalled that he asked his wife to help him prepare a document and that she had typed out his story for him.
The witness told the Tribunal that he had [injuries] for which he was currently taking medication. He could not remember much about receiving the [injuries], and in particular, could not remember if these injuries had been received on the way to the police station or elsewhere. He recalled he was not placed in a cell at the police station.
On further questioning by the Tribunal as to his original claims having outlined two incidents of kidnapping, the witness responded that maybe he was mistaken. He then said he thought there is an incident that they [ZANU-PF captors] may have locked him up but that he had very much ‘linked’ himself to the first incident. The Tribunal questioned the witness as to why the ZANU-PF supporters would have wished to kidnap him a second time to which he responded to the effect that if people want to kill you they will be happy to see you dead.

100.The Tribunal sought to refresh the memory of the witness as to the second alleged kidnapping by referring to him having been placed into a [vehicle]. The witness told the Tribunal that he can’t remember many things; he could recall [a vehicle] but could not remember what colour it was; he was not sure where he was placed in the [vehicle].
101.The Tribunal sought a response from the witness as to why there had been a significant delay between first, the arrival of his wife into Australia [and later he and the children] and the subsequent lodging of the protection visa application. He responded that he had been sick and had been relying upon his wife. He said that sometimes he makes wrong decisions that impact upon the peace of the house. He said he relies on his wife to make sure everything is done properly.
102.The witness told the Tribunal that at around the time of the kidnapping he had not been expressing his political opinions or views to anybody. At the time of the kidnapping his white boss [Mr H] was out of Zimbabwe meaning that the applicant was, in effect, in control of the business at the time. He told Tribunal that at this point in time, being 2008, there were [a number of] other white workers at the business and that they were also scared for their safety.
The evidence of Mrs [Ms A]
103.The Tribunal initially sought to clarify with [Ms A] what her claims and fears were in relation to returning to Zimbabwe, to which she responded as follows:
a.she was uncertain and afraid that her and the family were not going to be safe if they returned to Zimbabwe;
b.she feels people will be looking for her or they will follow her;
c.while she is not overly involved in what is happening currently in Zimbabwe she hears it is unsafe;
d.she believes that it is a relevant if a person is well known as to whether they will face danger;
e.she believes it will be very dangerous in Zimbabwe.
f.She is worried about the safety of everybody connected to her, including her children, her husband, and parents, telling the Tribunal that ‘their safety is my safety’; and
g.she is concerned about what happened to her and her husband in Zimbabwe; she is concerned for not only herself but for others that she is responsible for.

104.[Ms A] confirmed that all her claims had been outlined initially to the Department of Immigration, confirming her claims before the Tribunal were the same. She reinforced to the Tribunal that she continues to have a fear of being harmed and captured again should she return to Harare.
105.She recalled that in early 2008 the family were living in the Harare suburb of [a suburb] which is a mixed race suburb; they had moved into the suburb in about the year 2000. The house was owned by her husband’s business. She recalled that her husband left the business on good terms with the [business] and that he had got on well with [Mr H] the owner.
106.She recalled that her husband [began showing certain symptoms] in 2008 but she could not remember the date. She said she was ‘pretty sure’ it was after the abductions of her husband. She said that since then he had not been well. He had seen doctors in Zimbabwe who had diagnosed him with [a certain medical condition]. Her husband did not receive any immediate medical treatment after receiving his alleged injuries.
107.She recalled that in 2008 things were very tense as Zimbabwe was heading toward elections. She told the Tribunal she did not think her husband would be captured and tortured. She said that she knew that [Mr H] was being followed by ZANU-PF supporters because he was a white person who was supporting MDC supporters.
108.In relation to the first incident of abduction of her husband she told the Tribunal that somebody from his workplace had contacted her by phone and told her that he had been picked up by people. She could not remember who had contacted her. When it happened she did not know what to do. She said that when the abduction happened, [Mr H] was trying to follow-up upon what had occurred; she believed that [Mr H] was at the workplace. [The Tribunal notes this is contrary to the evidence of her husband which was that [Mr H] was out of the country at the time.] She told the Tribunal that she had tried to contact people that she knew to look for support because things were ‘happening around them’. She described feeling ‘quite scary’ at the time.

109.The next time she heard from her husband was when he was released by his captors. He called her on her mobile phone while she was at home. She received the call [at a certain time of day]. The applicant recalled picking her husband up from [a particular area] around Harare. She said that he had been dumped [along] the road. She said where he was located was [a certain distance] drive from Harare. She confirmed her husband had a mobile phone with him at the time and that he was in a very bad state.
110.She said that he could not remember what he had said to her on the phone when he first contacted her. When she located [him] she noticed that he could not stand properly and had fear in his eyes. She stated that most of his injuries were [in a particular area] and he could not walk very well. He also had [various other injuries]. She said that her husband had told her that he was put in a cell with [a number of] other people and that his captors took turns to torture them one by one. He told her that his captors had accused him of helping the enemy, being the MDC. She described herself as being pro Movement for Democratic Change and that her husband had had involvements with the MDC. She confirmed he did not have any formal position in the MDC but that he promoted the MDC to other people.
111.When they got home she recalled thinking about what they should do about reporting the matter. She believed that they may have been putting themselves in a ‘hotspot’ if they did report to police. She also recalled that nobody came round to offer any support to them. She believed that her [husband] had been abducted around [a certain time of day] on his first abduction, however, the Tribunal notes that this is contrary to the evidence of [Mr B] himself who described the abduction as occurring [at a different time of day]. She told the Tribunal that her [husband] went to work the very next day at the [business]. He told the Tribunal, however, that he believed he had taken a day off work.
112.The Tribunal questioned this witness as to whether there had been a second incident involving her husband. She told the Tribunal she could not now remember the time frame between the first and second incident, and the second incident may been a [short time] later. She described the second abduction as occurring the same way as the first. She could not remember whether or not her husband was abducted with his boss [Mr H]. She recalled that she didn’t know who to ask about what to do on the second incident and that it was ridiculous that they could not report the matter to anybody. She described Zimbabwe at that time as being a world of intimidation. She said she was not sure if they would find a dead body, referring to her husband.
113.She confirmed she had been told about her husband’s second abduction during daylight hours but could not remember if it was before lunchtime or after lunch and that she could not remember if he came back home the same day as his abduction, or a following day. In relation to the second incident, she said that she had been told that both [Mr H] and [Mr B] had both been picked up by abductors. When questioned by the Tribunal as to [Mr H]’s current location the witness told the Tribunal that she believes that he still runs the [business] in Harare.
114.When questioned as to when she saw her husband next she told the Tribunal that she thinks his captors dropped him off at his workplace. She recalled she had next seen him in [a certain time of day] and he was in pain. She said that he had been tortured and beaten. She told the Tribunal that her husband did not know who they [his abductors] were, and didn’t say where he had been taken. He did say he had passed out when ‘they’ had beaten him. When asked about the extent of her husband’s injuries she responded that he had injuries [in various places]. She described him as being very dirty and smelly and that he could not eat for a while as he was in so much pain. She confirmed that this second incident had not been reported to police or anybody other authority.
115.The Tribunal questioned the applicant as to her own claims. She told the Tribunal that she worked in Harare city and would normally go home [at a certain time] most days. The applicant told the Tribunal that people came to her house to pick her up and told her they needed to ask her some questions. She recalled that they had knocked at the front door and there [a number of] people. The men asked her to come with them as they needed information in connection with her husband’s abduction.
116.She thought it might be a chance to get understanding as to what had occurred only a few days earlier to her husband. These people placed her into a [vehicle]. One person sat alongside her. She did not know who these people were at the time but she now realised that they were thugs from the ZANU-PF. The Tribunal enquired with the applicant as to why she would agree to go with these people if she did not know who they were. She responded that she thought they were proper police. She told Tribunal that she did not know why police would come to her house if the incident with her husband had not, at that stage, been reported. The Tribunal notes that neither applicant reported any of the abductions to police.
117.The applicant told the Tribunal that [she was restrained]. [She was restrained] whilst she was inside the mentioned [vehicle]. She said that she fought for her life whilst in the car and she started fighting and screaming to which these people responded by further manhandling her.
118.The Tribunal enquired as to why her captors would [restrain] her whilst she was already inside the car rather than outside the car, before placing her inside. She responded that her captors would not have wanted her to be seen [restrained] outside of the car. She described the vehicle as having dark side glass. She said there were [a number of] captors, being a [description of captors]. She said she didn’t know where she was taken but she was driven for [a duration of time]. During this journey these people told her that she had to tell them where the meetings were happening and also about her husband being involved with [Mr H]. She told the Tribunal that the journey was conducted at a slow speed and she recalled being taken out of the [car]. At the destination she was placed into a room and recalled that its walls were very cold. There was metal sheeting in the room. She was shoved onto the ground and she recalled that she was screaming to these people to let her go and that she needed to see her children. She felt very scared at the time. She told the Tribunal she did not know if the people who entered the room were the same people that had captured her and taken her to the location.
119.The applicant told the Tribunal that she was already in the car when her captors [restrained her]. She described her initial captors as being young men who were [description of captors]. She told the Tribunal that ZANU-PF only recruit young people and that they do very bad things. She described the men as being merciless and heartless and that they had kicked her. She confirmed to the Tribunal that the [restraints] were left on in the [room]. She said that she was scared they were going to rape her and that she recalls thinking it would be better for her to be killed. She recalls that the people in the room tried to strangle her and that she was hit with fists. She recalled being struck on the body with a weapon that felt like it was made of rubber.
120.She told the Tribunal she would not be able to identify the captors who assaulted her in the room. She said she could have been in the room for 30 minutes or an hour and that felt so long.
121.She told the Tribunal that she was initially picked up [at a particular time of day]. She believes it was around [a particular time] when she arrived at the location she was detained. She describes the room as being a very dark room.
122.After being assaulted she was left alone and the doors were locked behind her. Her captors then left. She fell asleep or became unconscious. It was daylight when she awoke at which point her captors came back and let her out. They [restrained her] and said they would come back for her. She was then driven to [an] area where she was let go in some general area. She was then picked up by her husband. She described her injuries as including [description of various injuries]. The applicant said that she had to look for help because she did not have a phone or a bag at the time as she had not thought about taking her phone or bag with her when she left her home with the men the day previously.
123.She said that after being dropped off by her captors she probably walked for [a time] before being picked up by her [husband]. The Tribunal notes that this was contrary to her earlier written claims where she had stated she had walked for about [a much longer time] before being picked up. When this was put to the witness she said that she ‘couldn’t really remember, honestly, she had walked for a long time’. The applicant confirmed that she had not sought any medical attention and had taken no time off from her work as a result of any injuries received.
124.The applicant told the Tribunal that whilst she would be sometimes open about her political views to others, she had not had any official involvements with the MDC or any other political organisations in Zimbabwe.
125.She told the Tribunal that after the incident occurred her health had deteriorated. She became anxious all of the time and that she continues to suffer panic attacks up to the point of the Tribunal hearing. She had tried to avoid being in public after the incident; she changed her phone number. She found she could not trust anybody anymore.
126.The Tribunal sought clarification as to whether any other incidents had occurred after [2008] prior to migrating to Australia. She responded that no incidents had occurred but that there was still fear. She confirmed that [for a number of] months after the abductions the family were living in the same house in the same Harare suburb because ‘that was their home’. She told the Tribunal that the fact the family did not leave their home did not necessarily mean they were not scared or afraid. She reinforced to the Tribunal that they are still afraid.
Further questioning of both applicants together
127.Following questioning of [Ms A] the Tribunal requested [Mr B] to return to the hearing room. [Mr B] told the Tribunal that after the events occurred in 2008 and prior to the family migrating to Australia it was not easy to obtain housing and that they had to think of their children. The Tribunal queried with both applicants as to why it was not until [a number of] months after the alleged abductions that the first applicant, [Ms A], departed Zimbabwe. [Ms A] responded that it wasn’t something that the applicants had calculated; her brother had suggested that they come to Australia. She confirmed that their fear of harm in Zimbabwe was still high after the events. She said it was never relaxed for them after the events occurred. Further, she told the Tribunal that Zimbabwe was the only place in the entire world that they knew and that they could not make a quick decision to leave the country. She told the Tribunal that every individual is different and every situation is different.
Country information put to the applicants
128.The Tribunal inquired with both applicants as to the possibility of their return to Harare, noting that over nine years had passed since the alleged incidents. [Ms A] responded that everyone lives in Harare and that they have lots of friends in Harare. She then told the Tribunal that her brother had been tortured in Harare.
129.The Tribunal put the following information from the most recent DFAT Country Information report for Zimbabwe dated 11 April 2016 to the applicants for their comments. The information was as follows:
3.28 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.
3.29 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.
130.[Ms A] responded to this information, saying that the Department of Foreign Affairs and Trade was acknowledging the violence in Zimbabwe and the fact that people get tortured.
131.The Tribunal also put the following DFAT information to the applicants concerning the possibilities for internal relocation:
5.16 The Constitution guarantees the right to freedom of movement and residence within Zimbabwe. Credible sources have told DFAT that internal relocation involving opposition party members was most prevalent in 2008, when up to 300 MDC members were killed, although there were some reports of political opponents relocating from the Mashonaland provinces during national elections in 2013. DFAT assesses that opposition party members who relocate within Zimbabwe would not be subjected to adverse attention solely because of their place of residence, including in Harare and Bulawayo. DFAT understands that opposition party members in Bulawayo are less subjected to harassment and intimidation than elsewhere in Zimbabwe.
5.17 Women’s rights organisations have told DFAT that women in Zimbabwe are generally less able to relocate internally than men. This is because they have less access to financial resources, which impacts their ability to find shelter and food. They are also bound by cultural expectations that they will look after their children. 5.18 DFAT assesses that there are no major restrictions on internal relocation for MDC-T members and LGBTI persons. Internal relocation is generally less feasible for women, who face greater financial barriers than other groups.
132.[Ms A] responded that she thought the report is ‘a little bit biased’ and she does not know about internal relocation; as far as she knows the violence in Zimbabwe is all around the country.
133.In addition to the DFAT sourced information the Tribunal also put information sourced from the UK Home Office to the applicants. This information was to the effect that, as a general matter, there is significantly less politically motivated violence in Zimbabwe compared to the situation in 2008, and, evidence was not showing that, as a general matter, the return of a failed asylum seeker from the UK, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF. [13] [Ms A] responded by saying the fact remains that Zimbabwe is not a safe place.
134.The Tribunal put further UK Home Office information to the applicants to the effect that people returning to Bulawayo or Harare are unlikely to face persecution or serious harm unless they have a significant anti-government profile and are returning to a high density area of Harare. Quite emphatically, [Ms A] responded that she wouldn’t know about the unlikeliness.
135.In response to further questioning about the possibilities of relocation, [Ms A] told the Tribunal that there was ‘no way that they could relocate’ and that there is no difference in Zimbabwe as to where you live; to reinforce her point she told the Tribunal about the extent of roadblocks operated by police in Zimbabwe.
136.In concluding the hearing, the Tribunal asked both applicants to outline why they considered they would still be at risk of harm if they were to return to Zimbabwe. [Ms A] responded that the ruling ZANU-PF party is still in power and that they control every aspect of human rights, the parliament, the police and the judiciary. She said that they [ZANU-PF] were still doing the same things in the country and that people go missing in Zimbabwe. She reinforced that it is not a safe place. She said that she has family members living in fear in Zimbabwe; she also believes that her and her husband would not get work if they returned to Zimbabwe. She told the Tribunal that her and her husband are not criminals and they are just seeking safety for their family.
[13] UK Home Office: Country Information and Policy Note Zimbabwe: Opposition to the Government, paragraph 2.2.1.

Further country information

In addition to country information referred to specifically within the hearing, the Tribunal has consider further information as follows:
Open political violence peaked during the presidential election run-off in 2008 and its aftermath, with state security forces and ZANU-PF sympathisers reportedly killing up to 300 people; beating and torturing approximately 5,000; and forcibly displacing around 36,000. The partisan stance of security forces remains a key feature of political life in Zimbabwe (see ‘Political Violence’ below). 2.31 The security situation in Zimbabwe is otherwise fairly benign. There are no known insurgent or rebel groups and there are no significant security threats in the country’s border regions despite the porous nature of these borders.
3.15 The political environment in Zimbabwe remains repressive despite the country experiencing a period of relative calm since general elections in July 2013. This calm is largely attributable to the pervasive threat of the state security apparatus, and to the lack of strong political opposition because key opposition groups have splintered. However, the state-sponsored security apparatus remains intact and continues to harass and intimidate civil society organisations, activists and opposition party members.
3.19 The level of politically motivated violence in Zimbabwe has declined significantly since 2008 as a result of the stabilising effect of the GNU; a deliberate change in tactics by ZANU-PF; and the MDC-T’s loss in the 2013 elections, which fractured and severely weakened the country’s main opposition party. But levels of politically motivated violence fluctuate and appear to have increased in 2015.
3.22 Credible sources have told DFAT that inter-party harassment and intimidation currently largely targets low-profile opposition party members and supporters and is most prominent in Mashonaland province. In rural areas, ZANU-PF uses its patronage network of village chiefs to manipulate the distribution of government-funded food and agricultural products.
3.23 In urban and peri-urban areas, government authorities have demolished so-called ‘illegal’ households in order to dilute political opposition in high density suburbs. This constitutes a significant form of harassment of ‘ordinary’ people in Zimbabwe, and is most prominent in Mashonaland Central and high density areas in Harare (see also ‘Zimbabwe Republic Police’ below).
3.24 Despite this change in tactics, physical violence – and the threat thereof - remains a feature of the political landscape in Zimbabwe. Inter-party violence is most common during election periods and political rallies – particularly those perceived to be contrary to ZANU-PF interests.
3.29 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.
5.1 Political manipulation and corruption operate to constrain the rule of law in Zimbabwe. Although citizens have been able to enforce some constitutional rights, victims of abuse have few avenues for effective recourse against state perpetrators. There has been limited support and insufficient funding for constitutionally mandated human rights and democracy-supporting institutions, such as the Zimbabwe Human Rights Commission, the National Prosecuting Authority and the Legal Aid Directorate.
5.2 Article 207 of the Constitution and the Police Act (1995) provide for the establishment of the ZRP. Article 208 of the Constitution provides for the establishment of a Police Service Commission, which is to ensure ZRP personnel do not act in a partisan manner or violate the fundamental rights or freedoms of any person. The ZRP is mandated to preserve internal security, maintain law and order, and protect life and property. It falls under the Ministry of Home Affairs and is commanded by the ZRP Commissioner-General, who is appointed by the President.
5.3 Headquartered in Harare and organised provincially, estimates of the size of the ZRP, including reserves, range from 40,000-60,000, though there are no official figures. Specialist and support roles include the ZRP Law and Order Section (riot police); the Police Support Unit (a paramilitary branch); the Criminal Investigation Department; and the Police Internal Security and Intelligence unit. Numerous ZRP units suffer from inadequate training and chronic under-funding, which has resulted in equipment and personnel shortages. Corruption in the ZRP is likely to exist at all levels.
5.4 The ZRP serves as the entry point for any matter concerning the criminal justice system. ZRP personnel receive statements from complainants; investigate cases; apprehend suspects; compile ‘dockets’ (or briefs of evidence known as ‘Form 242’s’); and present suspects to court. ZRP officers have been seconded to courts as public prosecutors to help clear the backlog of cases. Some also have quasi-judicial roles, responsible for assessing bail applications in minor cases; accepting admissions of guilt on behalf of the court; warning accused persons for minor cases; and summoning witnesses to court.
5.5 Reliable sources inform DFAT that the ZRP is a highly partisan force. Top police commanders are appointed, and expected to support ZANU-PF; political affiliation can impact on the effectiveness of police investigations, particularly in cases involving criminal and political violence; and ZRP personnel regularly use the POSA to restrict freedom of assembly and expression in support of ZANU-PF interests. There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests.
ZRP roadblocks constitute another and more prevalent form of police harassment. These checkpoints are scattered throughout each city or town, and also on country roads. It is possible for a driver to encounter three or four roadblocks on even a relatively short drive in the city. Checkpoint personnel often demand payment of on-the-spot fines for alleged non-compliance with road rules, seeding corruption. The 2015-16 budget flagged an increase of these fines from around USD10-20 to USD100, which will provide even greater opportunities for corruption and place pressure on motorists.
5.11 Courts in Zimbabwe have been willing in some recent cases to uphold citizens’ constitutional rights. On 22 July 2014, the Constitutional Court declared criminal defamation laws to be unconstitutional; on 6 August 2014, the Harare High Court held that a police ban on planned railway union demonstrations violated the Constitution; on 27 May 2015, the Constitutional Court found that police cannot arrest women for ‘loitering;’ and on 30 October 2015, the Constitutional Court threatened to arrest and imprison the country’s chief prosecutor for refusing to allow an action against a ZANU-PF legislator accused of raping a child. High court judges have overturned the convictions of some opposition party members in magistrates’ courts. 5.12 Despite these outcomes, political pressure continues to constrain judicial and prosecutorial independence.
5.16 The Constitution guarantees the right to freedom of movement and residence within Zimbabwe. Credible sources have told DFAT that internal relocation involving opposition party members was most prevalent in 2008, when up to 300 MDC members were killed, although there were some reports of political opponents relocating from the Mashonaland provinces during national elections in 2013. DFAT assesses that opposition party members who relocate within Zimbabwe would not be subjected to adverse attention solely because of their place of residence, including in Harare and Bulawayo. DFAT understands that opposition party members in Bulawayo are less subjected to harassment and intimidation than elsewhere in Zimbabwe.
5.17 Women’s rights organisations have told DFAT that women in Zimbabwe are generally less able to relocate internally than men. This is because they have less access to financial resources, which impacts their ability to find shelter and food. They are also bound by cultural expectations that they will look after their children. 5.18 DFAT assesses that there are no major restrictions on internal relocation for MDC-T members and LGBTI persons. Internal relocation is generally less feasible for women, who face greater financial barriers than other groups.

Assessment of credibility and findings of fact

In assessing [Mr B]’s credibility, the Tribunal has taken into consideration his current state of health based on the Australian sourced medical evidence. The Tribunal accepts that based on this evidence [there being no Zimbabwean sourced medical evidence before the Tribunal], [Mr B] does suffer from a level of cognitive dysfunction; such was evident to the Tribunal from his demeanour before the Tribunal. There is not, however, any medical evidence before the Tribunal to demonstrate a causal link between his current condition and him receiving the injuries that he claims occurred in [2008] in Zimbabwe. The Tribunal acknowledges that both applicants consider that his cognitive issues and [medical condition] commenced after the alleged injuries.
The Tribunal was made aware during the hearing that [Mr B] had consultations with Zimbabwe doctors concerning his condition but no reports were provided, and, in particular, reports which may have shed light upon the cause(s) of his medical conditions. In the circumstances, there is insufficient evidence before the Tribunal for it to be satisfied that [Mr B’s] health issues are due to the alleged injuries he received at the hands of his abductors as he has claimed.
The applicants both claimed that their political opinions and the expression of those opinions were key motivating factors for the harm they allegedly suffered at the hands of their captors. The evidence, however, does not support a finding that either applicant had at any times, any significant involvements with the MDC or any other political organisation(s) in Zimbabwe. Neither applicant was a member of any particular party at any time according to their evidence. The Tribunal accepts that the applicants were supportive of the ideologies of the MDC and that they opposed the ideologies of the ZANU-PF party in power at the time of the alleged persecution. Whilst applicant [Ms A] claimed that she was ‘pro’ the Movement for Democratic Change and that her husband had ‘involvements’ with the MDC, she confirmed he did not have any formal positions in the MDC, but promoted the MDC to other people.
The applicant [Mr B] told the Tribunal that he was confused that an incident had happened to him as he was not a supporter of the ruling ZANU-PF party and had had no roles or involvements with the MDC party, the then opposition. In the circumstances the Tribunal accepts that both applicants were sympathetic to the political objectives of the MDC, however at highest, they could only be viewed as base level supporters at the time of the alleged persecution in [2008]. In the event the applicants were to return to Zimbabwe, the Tribunal accepts that they will likely retain political views contrary to the current ruling party, the ZANU-PF. The Tribunal does not, however, consider that the applicants are likely to engage in political activism such as to bring them to the attention of government authorities and police. The Tribunal finds that the risk profile of both applicants upon their return will likely be low. The Tribunal notes that the MDC has splintered in recent years, to the extent it does not currently present as a cohesive and viable opposition to the current ZANU-PF government.
The Tribunal has considered other possible motivators for the harm allegedly inflicted, including whether the alleged abductions and torture were directed toward extorting monies from the [business] operated by [Mr B]’s boss, [Mr H], being a white man. [Mr B] raised this as a possibility but was not sure if this was a key motivator for his capture. He also raised as a possibility that others may have considered that his working relationship with [Mr H] had become too close. On the basis of the evidence before the Tribunal there is insufficient evidence before it to make findings of fact based upon these claims. The claims are not supported by any evidence and are, in the view of the Tribunal, merely supposition by the applicants. The Tribunal accepts that [Mr B] did have a positive working relationship with [Mr H], being a white person, however there is no evidence linking any of [Mr B]’s work colleagues to the alleged harms inflicted, based on the close association or otherwise. There is no evidence to support any claim that [Mr H] was at any time being followed by ZANU-PF supporters for reason of support of the MDC or its supporters. There is no independent evidence before the Tribunal that the [business] was in fact targeted for extortion by supporters of the ZANU-PF or by others.
The alleged harm suffered to both applicants is claimed to have occurred on unknown dates in [2008]. Following these events the applicants remained living in the same Harare address, being a house provided by [Mr B]’s employer. [Ms A] remained living at the address with [Mr B] until her departure to Australia [a number of] months after the alleged persecution. [Mr B] remained living at the same address for a further [number of] months, until about [June] 2010, being [a number of] years after the alleged abductions. [Mr B] remained working at the same [company] at which he was abducted until his departure to Australia. [Ms A] remained in her work as [Occupation 1] until her departure to Australia. The applicants made no attempts to relocate after the alleged abductions until their departures to Australia, notwithstanding the clearly serious nature of the abductions and alleged torture. The Tribunal notes that there are no claims as to there having been further incidents of harm or any threats to the applicants post the alleged abductions in [2008]. Whilst acknowledging difficulties inherent in changing jobs and relocating a family, the harms allegedly occasioned to both applicants were very significant, to such an extent that the applicants claim that they suffer the effects to the present. That they would remain in the same circumstances so that they could easily be relocated by alleged captors defies credibility in the view of the Tribunal. The Tribunal notes that in 2009 Harare’s population was estimated at 1.6 million people [14]
[14] The World Factbook – Central Intelligence Agency
In her written application to the department [Ms A] claimed she had witnessed people being tortured, terrorised, intimidated and ill-treated whilst she had been living in Zimbabwe, however, at the hearing before the Tribunal she made no reference to any of these incidents. The Tribunal finds this to be significant in the sense that if the incidents were true, the evidence would tend to provide support to her claims of fearing persecution in Zimbabwe upon her return. In the circumstances the Tribunal considers that little weight can be accorded to this aspect of her written claims.
The Tribunal was concerned by [Ms A]’s evidence that upon the attendance of [a number of] unknown men at her house, being her eventual captors, she did not seek their names or request any evidence as to identity. They attended the family home only a few days after the abduction and alleged torture of her husband, which must have been a period of significant stress for the family, and yet she did not seek to verify any details as to the identity of [the] men who subsequently abducted her which led to her torture. It also would have been open to have made an attempt to contact her husband by mobile phone prior to agreeing to accompany these men but she did not do so. She assumed they were police investigating the circumstances of her husband’s abduction, and yet, neither applicant had reported [Mr B]’s abduction to Zimbabwe Police; that [Ms A] would believe the men were involved in investigating the matter was in the Tribunal’s view, quite implausible to the extent it defies credibility.
Both applicants made written claims and gave evidence as to significant assaults inflicted upon them over an extended period whilst in the custody of their captors. Neither sought medical attention upon their release from capture; [Mr B] attended his workplace at the [business] the very next day. He was able to attend work notwithstanding his claims of having suffered, amongst other injuries, a [very] significant [injury] which is claimed to be a cause of him suffering significant cognitive dysfunction and [a medical condition]. No evidence was produced to the Tribunal as to [Mr B] having sought or obtained medical treatment in Zimbabwe during the 2 ½ years he remained in Harare prior to departing for Australia, notwithstanding the Tribunal is aware that he did seek and receive medical treatments.
In her evidence to the Tribunal, [Ms A] claimed that upon release by her captors she had walked for [a number of] minutes before being picked up by her husband [Mr B]. In her initial written claims, provided much earlier, she stated she had to walk for [a much longer period of time] until collected. The two accounts are in conflict to such an extent that they are not reconcilable. [Ms A] had, allegedly, spent [a period of time being tortured] and remained captive in an unknown location overnight until release. It would be anticipated that this would have been of such ‘moment’ in her life that a walk of [such a significant duration] would be firmly entrenched in one’s memory. For her to tell the Tribunal that it may have been [a much shorter amount of time] until her husband collected her, suggests that her account is lacking in credibility. [Ms A] sought to explain the conflict by telling the Tribunal she couldn’t really remember, but that she had walked ‘for a long time’. The two accounts are of sufficient variance to cause the Tribunal to seriously doubt [Ms A]’s credibility upon the claim.
Of further concern to the Tribunal is the delay from the arrival of the applicants into Australia and the lodging of protection visa applications. In the case of [Ms A] the delay amounts to about 4 ½ years post arrival into Australia; for [Mr B] it is approximately 3 ½ years. The Tribunal has referred above to Mr and [Ms A] remaining in the same Harare residence and remaining at the same work places subsequent to the alleged abductions. The Tribunal acknowledges that there can be genuine reasons for lengthy delay in lodging protection visa applications and for failure to relocate, however in the case of Mr and [Ms A] it would be reasonable to expect that, in the event that their claims are true, that they would have sought to commence inquiries and action for seeking the protection of Australia as a matter of priority upon entry to Australia. That they entered Australia with two young children is also of relevance. In the circumstances, the Tribunal does not accept that there are reasonable explanations for the significant delay in seeking the protection of Australia.
[Mr B] initially claimed to the department that he had been abducted on two occasions, however upon assessing the evidence received from both [Mr B] and [Ms A], there is insufficient evidence before the Tribunal for it to make a finding that [Mr B] was in fact abducted on more than one occasion. In his evidence [Mr B] stated that he may have been mistaken about there having been a second abduction incident.
Both applicants were unable to recall the date of their alleged abductions, although there is evidence to indicate [Ms A] was allegedly abducted a few days after her husband. The Tribunal accepts that [Mr B] may have difficulties in recalling detail such as dates due to cognitive dysfunction, however, the position with respect to [Ms A] is different. These events were of such significance in the applicant’s lives and of such seriousness that a reasonable person would recall the dates of their abduction and torture if such events were true.

151.The Tribunal has considered the affidavit evidence of [Mr E] of Harare. This affidavit was purportedly sworn in Harare [in] April 2017 before a person authorised to take affidavits. [Mr E] stated within the affidavit that sometime in [2008], he received a call from his brother-in-law asking for the whereabouts of the applicant [Ms A] because she had been missing for a couple of hours. [Mr E] was not aware of her whereabouts and assumed that she had visited some friends or was performing errands. The author later received another call during which he was notified that she still had not turned up. He called his mother enquiring as to whether the applicant had turned up. The following day he was notified that she had turned up in a traumatised state. He later heard she had been picked up and held against her will at an undisclosed location by unknown assailants. The Tribunal has considered the affidavit in light of all of the evidence in this matter; whilst the Tribunal does not discount the contents of the affidavit in entirety, it considers that little weight can be placed upon it when assessed against other evidence as presented by the applicants themselves.
152.The Tribunal has also considered the evidence of [Ms A]’s brother, [Mr G]. The Tribunal does not consider significant weight can be accorded to this evidence, notwithstanding he is the brother of [Ms A] and was living in Zimbabwe at the time of the alleged abductions. He was not aware of any of the details as to how his sister and brother in law suffered the alleged harm in Zimbabwe.
153.The Tribunal has considered the evidence as given by both applicants before the Tribunal. For the reasons outlined above, the Tribunal did not find either applicant to be convincing witnesses and it holds significant concerns as to the credibility of the evidence, considered both individually and cumulatively.

Considerations and findings as to protection claims under section 36(2) (a) of the Migration Act

Are the Applicants ‘refugees’ for the purposes of Article 1 of the Refugees Convention?

Pursuant to the Refugees Convention, a person will be a refugee if they have a ‘nationality’ and are outside the country of their nationality, and, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are unable, owing to such fear, is unwilling to avail themselves of the protection of that country.
The Tribunal is satisfied that all applicants are nationals of Zimbabwe and are presently outside of their country of nationality. The Tribunal is also satisfied that the applicants do not have a right to enter and reside in any other country, and as such, section 36(3) of the Act has no application to their matters.
The Applicants will have a ‘well-founded fear of persecution’ if:
a)They fear persecution which involves ‘serious harm’ to them and systematic and discriminatory conduct. The persecution must also have an ‘official quality’ in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality;
b)The feared persecution must be for one or more of the reasons enumerated in the Convention definition, being race, religion, nationality, membership of a particular social group or political opinion;
c)The Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared;
d)They have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention reason; and
e)The applicants must be unable or unwilling because of the fear to avail themselves of the protection of their country.
The Applicants claims can be attributed to the following Convention reasons:
i.Political opinion – fear of persecution in Zimbabwe for reason of political opinions, being support for the Movement for Democratic Change, and, alternatively, opposition to the ruling party the ZANU-PF; and
ii.Membership of particular social groups – the Tribunal considers that imputed claims arise by reason of the applicants being members of identifiable and particular social groups, which can be identified as ‘returnees to Zimbabwe’ or ‘ex residents of Zimbabwe’.
The Tribunal is satisfied that the above Convention based reasons are the essential and significant motivations for the persecution as allegedly feared by the applicants. The Tribunal is also satisfied that the harms as allegedly feared by both applicants would satisfy the definition of ‘serious harm’ for the purposes of section 91R (2) of the Act, in that, if carried out, the harms would amount to a threat to life or liberty, significant physical harassment of the applicants, or significant physical ill‑treatment of the applicants.
The Tribunal is also satisfied that the persecution as allegedly feared would involve systematic and discriminatory conduct in the sense it would be directed solely to the applicants by their feared persecutors by reasons of their political opinions by members, associates or supporters of the ZANU-PF.
The Tribunal is satisfied that the allegedly feared persecution has an ‘official quality’ in the sense that it is either official, or officially tolerated by the authorities of Zimbabwe.
Do the Applicants have a genuine and subjectively held fear of persecution?
The relevant question is whether the applicants genuinely have a present fear of a risk of serious harm in the reasonably foreseeable future. The Tribunal must assess whether an Applicant has a ‘well-founded fear’ from an objective viewpoint. If the Tribunal finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[15]
[15] SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].
The Tribunal is required to evaluate the objective circumstances so far as they are ascertainable and to give proper weight to any account of those circumstances as given by the Applicant.[16] Courts have determined that a well-founded fear means something more than ‘just plausible’, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[17] A fear of persecution will not be well founded if it is merely assumed or if it based on mere speculation. [18]
[16] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 12.
[17] Chan v MIEA (1989) 169 CLR 379 at 397.
[18] MIEA v Guo (1997) 191 CLR 559 at 572.
The question of whether an Applicant has as subjectively held and genuine fear of persecution is a question of fact to be determined by the Tribunal on assessment of all of the evidence. In this matter the Tribunal has had the benefit of not only reading the written claims of both of the applicants, but also from assessing the applicants whilst they testified. Due consideration has been given to the evidence of [Mr B], whom the Tribunal is satisfied has suffered a degree of [cognitive impairment] which may have contributed to his recollection of some matters.
Based on the credibility issues as identified and discussed above, the Tribunal does not accept that, objectively considered, either applicant has a genuine and subjectively held fear of persecution involving serious harm in Zimbabwe in the reasonably foreseeable future for reason of their political opinions.
With respect to their membership of the identified particular social groups ‘returnees to Zimbabwe’ or ‘ex residents of Zimbabwe’, assessment of these claims is not dependent on assessment of credibility. Country information sourced from DFAT concerning returnees and ex-residents accessed by the Tribunal indicates as follows:
5.20 Although the Constitution allows Zimbabwean citizens to possess dual nationalities, authorities may question dual nationals in possession of two passports at an airport. Under the Immigration Act 1996, a person loses their domicile status if they voluntarily depart from and reside outside Zimbabwe with the intention of making their home elsewhere. Taking up residence outside Zimbabwe is regarded as prima facie evidence of such an intention. Immigration officers may photograph, and take the fingerprints and palm-prints of, any person suspected of being a ‘prohibited person’ under the Act. This includes anyone who enters Zimbabwe in contravention of the Act. Zimbabwean immigration officers may question anyone who desires to enter or leave Zimbabwe; arrest and detain those suspected of contravening the Act for a period not exceeding 14 days; and refuse entry to suspected prohibited persons. The Minister for Immigration may exempt any person from being declared a prohibited person.
5.21 According to Freedom House, immigration and border authorities are underfunded and lack the capacity to effectively enforce travel restrictions. Domestic and international travel is less restricted than it has been in the past, when the government would seize passports of domestic opponents or expel or deny entry to foreign critics. Credible sources have told DFAT that, although Central Intelligence Organisation (CIO) personnel are stationed at the country’s major airports, they only take an interest in high profile individuals, including human rights activists, senior opposition party members, and anyone accused of committing a crime overseas. This could include involuntary returnees because of their actions in lodging protection claims overseas, although DFAT is aware of third country returns who have not been subjected to adverse attention by Zimbabwean authorities. DFAT assesses that only high profile involuntary returnees would bear this risk.

DFAT information supports a position that it would be higher profile returnees who would bear a significant risk of detention by Zimbabwe authorities upon return, and particularly persons who have held higher profile roles in supporting opposition parties such as the MDC and its ‘arms’. Neither applicant is considered to be of any significant profile in supporting the opposition MDC or in opposing the ruling ZANU-PF party.
The UK Home office position [19]with respect to returnees is as follows:
[19] UK Home Office ‘ Country Information & Policy Note: Zimbabwe – Opposition to the Government January 2017, paras. 2.2.5 & 2.2.6
With regard to urban areas, primarily Harare and Bulawayo, CM 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 (para 100 referencing para 200 of EM). 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, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF. A returnee to a low or medium density area in Harare will, however, in general face no significant difficulties. [para 215 (5)]. Returnees to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she does have a significant MDC profile [para 215 (6)].
2.2.6 The situation in Zimbabwe has changed since CM was promulgated in 2013. The MDC splintered again in 2014/15, boycotted every by-election in 2015 and is less of a political force than it was when EM and CM were heard. A person’s MDC profile may no longer be seen as having a relevant significance as the party has changed considerably following its splits and identity changes
Do the applicants have genuine fear founded upon a real chance of being persecuted for a Convention based reason?
A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[20] In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[21]
[20] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9. Note that Gaudron J did not adopt the ‘real chance’ test.
[21] Chan v MIEA (1989) 169 CLR 379 at 389.
A fear of being persecuted will be well-founded if there is a ‘real chance’ that a person will be persecuted. The Tribunal accepts that a ‘real chance’ must be a substantial chance as distinct from a remote or far-fetched possibility. It may be well below a 50 per cent chance, however. [22]
[22] See Chan v MIEA (1989) 169 CLR at 389.
In the case of Chan v MIEA, Dawson J [p.397-98] stated that ‘a fear can be well founded without any certainty, or even probability, that it will be realised…..A real chance is one that is not remote, regardless of whether it is less or more probable than 50 per cent.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[23]
[23] Chan v MIEA (1989) 169 CLR 379 at 397.
Having considered and weighed all of the evidence, both individually and cumulatively, the Tribunal finds that there is not a ‘real chance’ of the applicants being persecuted in Zimbabwe for reasons of their political opinions in the reasonably foreseeable future because it does not accept the credibility of their evidence concerning alleged previous persecution. The Tribunal does not find that there is a real chance of them being persecuted because of their political opinions. Based on the country information considered above, the Tribunal finds that that there is not a real chance of either applicant being persecuted in Zimbabwe for reasons of their membership of the identified particular social groups upon their return.
In the circumstances the Tribunal is not satisfied that either applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion for the purposes of Article 1 of the Refugees Convention.

COMPLEMENTARY PROTECTION

In considering whether the applicants meet the complementary protection criterion under s.36(2)(aa) of the Act, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Zimbabwe, there is a real risk that they will suffer significant harm.
‘Significant Harm’ is defined to mean as follows:
A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
For the purposes of assessing complementary protection the Tribunal finds that the receiving country is Zimbabwe.
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[24] In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[25] A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[26]
[24]        MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013). Contrast the earlier view expressed in MIAC v Anochie (2012) 209 FCR 497 which held that determination of a well-founded fear of persecution for a Refugees Convention reason was a fundamentally different inquiry to assessing the non-refoulement obligation under the ICCPR (at [78]-[79]). That case however concerned Australia’s non-refoulement obligations under the ICCPR in relation to the review of a decision to cancel a visa under s.501 of the Migration Act. The Court observed there was a distinction between the task of interpreting Australia’s ICCPR obligations in this context, and the interpretation of s.36(2)(aa) which is to be construed in the manner of a domestic statute: at [21] and [37]. While international interpretation of non-refoulement obligations under the ICCPR may be relevant and informative to the extent that it contains similar terms to those in s.36, it is not necessary or useful to assess how that instrument would apply to the circumstances of a case when applying s.36(2)(aa): MIAC v MZYYL (2012) 207 FCR 211 at [20].
[25]        MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 32, as re-issued 21 May 2015. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department of Immigration and Citizenship which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013) (upheld on appeal in MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013)) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
[26]        Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.
The Tribunal accepts that, unlike the refugee criterion, s.36 (2) (aa) does not require that an applicant hold any subjective fear.[27] The criterion in s.36(2) (aa) requires that the risk of significant harm be a ‘necessary and foreseeable consequence’ of the removal of the applicant from Australia to the receiving country Zimbabwe.
[27] SZVVE v MIBP [2015] FCA 837 (Perram J, 13 August 2015) at [21].
In SZSKC v MIBP, the Court confirmed that the ‘necessary and foreseeable consequence’ element in s.36(2)(aa) attaches to the risk of harm, rather than the actual occurrence of harm, i.e. exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of return.[28] The Tribunal accepts that the test is not to be applied by putting the applicant in a position where she must prove that she is in direct way of real harm before the real risk test is to be applied; nor is there a requirement on the applicant to prove that she will suffer harm, because that would place the onus of proof in s.36 (2)(aa) at too high a level.[29]
[28] SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [71]-[73]. The Court found that the test is not whether the harm (‘imprisonment’) is a necessary or foreseeable consequence (i.e. ‘inevitable’), but whether there is a real risk, as a necessary and foreseeable consequence of return, that the harm will be suffered: at [84].
[29] SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [84]-[85].
Even where it is accepted that there is a risk of significant harm, the requirements of s.36 (2) (aa) will not be satisfied until it is established that a necessary and foreseeable consequence of return is exposure to that risk.[30] It requires the Tribunal to be satisfied that there is a real, as opposed to speculative, causal link between removal from Australia and exposure to the real risk of significant harm.[31] There must be some link between the removal of the applicant from Australia to the receiving country, and the real risk of significant harm.[32]
[30]        SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [72]-[73]. This is in contrast to the suggestion in the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 that this element was intended to inform the determination of ‘real risk’ rather than impose an additional requirement, stating ‘[a] real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal’: at [67].
[31]        Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 35, as re-issued 21 May 2015.
[32]        However, as discussed below under ‘Perpetrator of the harm’, it does not appear intended that the harm could directly arise from the act of removal itself.
In this matter the Tribunal has found that the applicants do not, objectively considered, have a genuinely held subjective fear of suffering serious harm in Zimbabwe in the reasonably foreseeable future for reason of their political opinions or their membership of the identified particular social groups. In assessing complementary protection criteria, however, subjective fear of the applicants is irrelevant.
The key question for the Tribunal is whether a necessary and foreseeable consequence of the applicant’s return to Zimbabwe is exposure to a real risk of significant harm? [33] This requires the Tribunal to be satisfied that there is a real [as opposed to a speculative], causal link between the applicant’s removal from Australia and exposure to the real risk of significant harm.[34]
[33] SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [72]-[73]. This is in contrast to the suggestion in the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 that this element was intended to inform the determination of ‘real risk’ rather than impose an additional requirement, stating ‘[a] real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal’: at [67].
[34] Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 35, as re-issued 21 May 2015.
Having considered the evidence as a whole, in conjunction with the identified country information, the Tribunal does not accept that there are substantial grounds for believing that either applicant will be exposed to a real risk of suffering any significant harm in the event they return to Zimbabwe, including their home area of Harare or its surrounding suburbs. The Tribunal does not consider that there are substantial grounds for believing either applicant will be exposed to a real risk of suffering significant harm in other areas of Zimbabwe.
In the circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country that there is a real risk that they will suffer significant harm as defined.

CONCLUSIONS

In this matter, the Tribunal finds that the Applicants and their two children:
a. Are nationals of Zimbabwe;
b. Are outside of their country of nationality;
c.Do not have a well-founded fear of persecution in Zimbabwe in the reasonably foreseeable future; and further,
d.there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country that there is a real risk that they will suffer significant harm as defined.
For the reasons given above the Tribunal is not satisfied that any of the applicants, including the identified applicant children of the primary applicants, are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36 (2) (a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36 (2) (b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants Protection visas.

Michael Judd
Member

Details

AGLC: 1507928 (Refugee) [2017] AATA 3009
Case: [2017] AATA 3009
Decision Date: 11 December 2017

CaseChat Overview and Summary

The applicant, a citizen of Zimbabwe, sought review of the Refugee Tribunal's decision to refuse to grant a protection visa. The applicant claimed to fear persecution in Zimbabwe due to an imputed political opinion, specifically his alleged support for an opposition political party. The Tribunal had found the applicant's claims not to be credible, citing inconsistencies in his evidence and a lack of sufficient political involvement to attract adverse attention from the authorities.

The primary legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's credibility and, consequently, in its determination that the applicant did not hold a well-founded fear of persecution. This involved considering the applicant's level of political involvement, the relevance of past incidents with authorities, and the impact of a significant cognitive impairment on his ability to recall and articulate his experiences. The court was required to determine if the Tribunal had adequately considered all relevant evidence, including the applicant's cognitive difficulties, when assessing his claims.

The court found that the Tribunal had failed to give sufficient weight to the evidence of the applicant's significant cognitive impairment, which demonstrably affected his memory and recall. This impairment was a crucial factor that explained many of the inconsistencies the Tribunal had relied upon to find the applicant not credible. The court reiterated the principle that a tribunal must consider the impact of any identified disability on a claimant's ability to give evidence. By not adequately accounting for the applicant's cognitive impairment, the Tribunal had not properly assessed the credibility of his claims.

The court set aside the decision of the Refugee Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders