1508193 (Refugee)

[2018] AATA 1734

1508193 (Refugee) [2018] AATA 1734 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508193

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Nicole Burns

DATE:13 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2018 at 3:08pm

CATCHWORDS

Refugee – Protection visa – Zimbabwe – Imputed Political Opinion ­­– Fear of Persecution from Zimbabwe African National Union supporters-Patriotic Front (ZANU-PF) supporters – Particular Social Group – Family member of Movement for Democratic Change supporters

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa [in] May 2013 and the delegate refused to grant the visa [in] June 2015.

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

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. The applicant, a [man] from Harare, fears persecution on return to Zimbabwe from Zimbabwe African National Union – Patriotic Front (ZANU-PF) supporters and militia on imputed political opinion grounds as an opposition (Movement for Democratic Change – Tsvangirai (MDC or MDC-T)) supporter and as a member of a (particular social group of) family of well-known MDC supporters.  He came to Australia in September 2012 holding a [visa].

13. The Tribunal has first considered the applicant’s claims to face a well-founded fear of persecution on return to Zimbabwe as a member of [Relative 1’s] family.  It notes that on 12 April 2018 the Tribunal set aside the decision to refuse to grant [Relative 1] a protection visa.[1]   It is well established that family can constitute a particular social group for the purposes of the refugee definition, as long as the applicant is a relative of a person who is targeted for a refugee reason.  The Tribunal in [Relative 1’s] case was satisfied that he held a well-founded fear of persecution on return to Zimbabwe on account of his political opinion as an MDC supporter, which is a refugee reason.  On this basis the Tribunal is satisfied that the applicant, who is a member of the particular social group of [Relative 1’s] family, faces a well-founded fear of persecution from ZANU-PF supporters on return to Zimbabwe on this basis in the reasonably foreseeable future. 

    [1] Administrative Appeals Tribunal (AAT) No. 1507443

14. Given this finding it is not strictly necessary for the Tribunal to consider the applicant’s other claims, including those related to his imputed political opinion as an MDC supporter.  Nonetheless, for the reasons that follow the Tribunal also accepts the applicant faces a well-founded fear of persecution on return to Zimbabwe from Zimbabwe African National Union – Patriotic Front (ZANU-PF) supporters and militia on imputed political opinion grounds as an opposition (Movement for Democratic Change – Tsvangirai (MDC or MDC-T)) supporter.

15. The applicant provided detailed oral evidence about his (and his family’s) support to the MDC in the past and problems that resulted at hearing, which was consistent with his written[2] and oral evidence to the Department and his representative’s written submissions[3] to the Tribunal.  The applicant’s oral evidence was also consistent with [Relative 1’s] oral evidence to the Tribunal in a separate hearing on the same day, to the extent that he was aware of the applicant’s past experiences and circumstances. The Tribunal notes the delegate accepted the applicant’s claims about his past experiences in Zimbabwe. For these reasons the Tribunal accepts the applicant’s claims about his past experiences in Zimbabwe, summarised as follows:

    [2] Set out in a typed statement attached to the visa application and a statutory declaration dated [June] 2015.

    [3] [Source deleted]. 

    ·Although the applicant himself was never an MDC member, he supported them and belongs to a family that has long supported the MDC and/or been against ZANU-PF. 

    ·[Relative 2] spoke out against his bosses being corrupt – who were ZANU-PF supporters - at an [company] where he worked in Harare, which resulted in threats to [Relative 2] and family.  [Relative 2] died in [year] and his family members believe he was poisoned.  His family organised a post mortem which concluded that he died of ‘unnatural’ causes[4]. 

    ·[Relative 3], motivated by Relative 2’s] death, was actively involved with the MDC.  He was killed in [year], allegedly in a hit and run accident however the applicant’s family believes he was killed by ZANU-PF.

    ·[Relative 4], who supported the MDC in Harare through helping organise meetings and memberships for example, moved to Bulawayo after [Relative 3’s] death, afraid their family was being targeted.  She died there in [year] and the applicant’s family believe she was also poisoned.  Her post mortem results also indicated that she died of ‘unnatural causes’. 

    ·[Relative 1], was an MDC supporter and active member and experienced threats and harm in Zimbabwe as a result.

    ·In 2005 the cottages attached to [Relative 5]’s home in Harare were bulldozed by the ZANU-PF government.

    ·In 2007[5] the applicant was stopped whilst walking near [a] school and beaten by a number of ZANU-PF youth so severely that [he sustained a significant injury].  He spent a few days in hospital and had to wear a brace for a year.

    ·In the lead up to the 2008 elections ZANU-PF militia sometimes forcibly entered [Relative 5’s] house where he lived (when not [at] school) and dragged the applicant on the streets, forcing him to sing ZANU-PF songs; they accused him of faking his [injury]; and at times they beat him and tortured him.  On occasion [Relative 5] tried to stop them but they beat her.

    ·During this period the applicant was taken to police cells, beaten and tortured and asked questions such as why he was trying to overthrow the government four or five times since 2008. 

    ·In 2012 the applicant was taken by members of the Central Intelligence Organisation (CIO) to a room near a police station in Harare and asked what he had been up to.  They released him after he spent [some time] in the police cells.

    [4] The applicant submitted a copy of a typed document titled ‘post mortem report’ dated  [April] 1997 which indicates [Relative 2] died due to unnatural causes.

    [5] The applicant clarified that he erroneously states this incident happened in 2005 in his statutory declaration to the Department.

16. Given these findings the Tribunal has considered independent country information about the situation for opposition supporters in Zimbabwe and the current political environment in assessing whether the applicant’s fears on return to Zimbabwe now or in the foreseeable future are well founded.

17. In its most recent country information report on Zimbabwe DFAT noted that the level of politically motivated violence in Zimbabwe has declined significantly since 2008 and that the state sponsored security apparatus has switched its focus from overt physical violence to more subtle forms of intimidation largely targeting low profile opposition party members and supporters. However, DFAT report that physical violence, and the threat thereof, remains a feature of the political landscape and that the ‘political environment in Zimbabwe remains repressive’.[6] 

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

18. Such intimidation is reportedly more obvious in rural areas,[7] although Harare, where the applicant comes from, is not immune.[8]   

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

    [8]  Ibid at 3.24

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

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

    ...

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

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

    DFAT assesses that all MDC-T members face a moderate level of official discrimination throughout Zimbabwe. MDC-T members and their families also suffer indirectly from the government’s partisan distribution of food and agricultural products, as well as its demolition of illegal households. MDC-T members face a moderate threat of violence from ZANU-PF supporters.[9]

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

20. In their January 2017 report on Zimbabwe the UK Home Office states that with regard to returnees to urban areas, primarily Harare and Bulawayo, in the case of CM (EM country guidance; disclosure) Zimbabwe[10] the Upper Tribunal found that:

    ...a returnee to Harare will face difficulties living in high density areas not faced by those living in other urban areas and those persons perceived to be active in MDC politics may face the risk of targeted reprisals. However in such areas, in general a person without ZANU-PF connections will not face significant problems unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.[11]

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

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

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

    ...the largest MDC faction – the MDC-T – remains the main opposition party and some of its members, along with those of the new political party – People First, led by the former ZANU-PF vice president, Joice Mujuru – have been subject to harassment, discrimination, arbitrary arrest, abduction and physical abuse.[12]

    [12] Ibid at 2.2.7

22. In early 2018 Joice Mujuru and some of her opposition party members were attacked while holding a political rally in the lead-up to the 2018 elections, allegedly by members of the ruling ZANU-PF.[13] 

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

23. The Tribunal notes in November 2017 Robert Mugabe was ousted from being president of Zimbabwe by the military, and his former vice-president, Emmerson Mnangagwa (also of ZANU-PF) became the new president.  Whilst too early to herald significant changes, if any, according to the International Crisis Group (ICG), Mnangagwa – who had been aligned with the military and Zimbabwe’s National Liberation War Veterans association[14] – has appointed a cabinet filled with supporters, including military officers and war veterans.[15]  ICG state as follows:

    Mnangagwa’s new administration rewarded key allies in ZANU-PF, brought in more war veterans and even two senior security service chiefs. It did not include opposition elements or external technocrats as had been expected. Although slightly slimmer in size, its composition reflects a large degree of continuity in substance, with at least a third of the cabinet having served in previous Mugabe administrations.[16]

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

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

    [16] Ibid, footnotes omitted

24. ICG assess that after initially striking a conciliatory tone in public statements, the new president appears to have backtracked, noting that immediately upon his return, Mnangagwa said that ‘ZANU-PF will continue ruling no matter what, while those who oppose it will continue barking’. Instead of the new president charting a new national political course, ICG are concerned that ‘it is equally possible the country is witnessing nothing more than a reconsolidation of power by ZANU-PF’.[17] In a separate report the ICG noted that whilst the leader has gone, at least for now the regime remains.[18]

    [17] Ibid, footnotes omitted

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

    The ICG present the following analysis about the new president:

    Presented as a pragmatist, Emmerson Mnangagwa was unable to deliver needed reforms when he was vice president (2014-2017) under Mugabe. Whether he can succeed now remains in question. He has been accused of responsibility both individually and as part of ZANU-PF’s collective leadership for an array of human rights violations, ranging from the Gukurahundi massacres in the 1980s. Mnangagwa has appointed Perence Shiri the military commander of the 5th Brigade, the North Korean trained military unit responsible for many of these killings, as minister of agriculture and lands. Operation Murambatsvina (Move the Rubbish) that violently cleared slums across the country in 2005, and the election violence of 2008 that left over 300 dead. He has denied any role in these abuses.[19]

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

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

    The loudest cheers at Mnangagwa’s inauguration ceremony were reserved for General Chiwenga. This echoed the strong support expressed for the military and Chiwenga during the unprecedented demonstrations on 18 November. The military was conspicuous in the stands of the national stadium during inauguration celebrations. Regarded by many as the power behind Mnangagwa, Chiwenga signaled that the military is now a direct political player, with many anticipating that at some point he will shift from the army to politics. His retirement by President Mnangagwa and pending “redeployment” was confirmed as part of the military leadership reconfiguration announced this week. Although no announcements were made at the December Extraordinary Congress, it is still expected Chiwenga will be appointed one of two second secretaries in ZANU-PF’s Presidium and then vice president. This could serve as a stepping stone to the presidency later. The military’s direct involvement in “guiding” both the ruling party’s and the government’s new direction makes it difficult to depict the events as a legal defence of the constitution.[20]

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

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

   ZANU-PF appears intent on buying time to consolidate its position ahead of elections that must be held before September 2018 and that it is determined and well placed to win. There is precedent: after it blatantly rigged the 2008 elections and faced both violence and strong regional and international pressure, the party agreed to share power with the opposition but used the next four years to bolster its hold on power and engineer a huge, albeit highly controversial victory in the 2013 elections. Although Mnangagwa has promised “free and fair” elections, he takes over as an unelected president with a limited timeframe and with a long list of overdue electoral reforms to ensure their credibility. He and his government will need to act fast lest the vote be flawed and fail to deliver the required legitimacy for donors to re-engage and for Zimbabweans to work together on the country’s recovery.[21]

   [21] Ibid, footnotes omitted

2. Traditionally, political violence in Zimbabwe increases when elections are called and ZANU-PF has reportedly used threats and violence, including murder, against its political opponents in every election since 1980.[22] There are a number of reports of targeting of MDC supporters in rural areas during the 2013 election campaign[23] involving threats to cut off limbs,[24] burning of houses,[25] confiscation of land[26] and physical assaults.[27]

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

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

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

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

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

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

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

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

   This is an ominous threat, given the crucial role that the military played in ensuring that voters supported Mugabe in the 2008 run-off after they failed to vote for him in the first round of elections.[28]

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

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

5. With respect to state protection, the Tribunal notes that ZANU-PF exerts considerable influence and control over state security institutions and has sought to transform state security institutions into agencies which serve the interests of the party.  Accordingly, state security institutions have been used by ZANU-PF to target MDC supporters.[29] In 2013, Human Rights Watch reported that the Zimbabwe National Army had deployed soldiers across the country who had been implicated in directly campaigning for ZANU-PF and in ‘harassing and intimidating villagers’.[30] More recently the UK Home Office has also reported that the Zimbabwean police force is highly politicised.[31] DFAT reported that the Zimbabwe police force is a highly partisan force and that senior commanders are expected to support ZANU-PF and act in the interests of ZANU-PF. DFAT also noted the existence of militia groups which are linked to key political figures and which form part of the state’s apparatus to control the population.[32] Having regard to such country information, and noting that ZANU-PF remain in power in Zimbabwe, the Tribunal is not satisfied that state protection is available to the applicant.

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

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

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

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

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

   CONCLUSION

7. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

   Nicole Burns
   Member