1601454 (Refugee)

[2018] AATA 933

1601454 (Refugee) [2018] AATA 933 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601454

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Nicole Burns

DATE:1 March 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 1958.

Statement made on 01 March 2018 at 1:21pm

CATCHWORDS
Refugee – Protection visa – Zimbabwe – Political opinion – Movement for Democratic Change – Opposition to ZANU-PF – ZANU-PF supporters – Youth militia – Exposing electoral fraud in 2013 – Electoral violence – Physical and sexual assault – Control over state security institutions

LEGISLATION
Migration Act 1958, ss 36, 65, 438, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [a named person], who is the applicant’s [Relative A].  

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

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

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

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

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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

13. From the outset the Tribunal records that it found the applicant a credible witness who gave detailed and spontaneous oral evidence about his and his family’s support to the MDC in the past, reasons for his political activism, experiences of harm as a result and fears about returning to Zimbabwe now.  His oral evidence was consistent with his detailed statutory declaration provided to the Department,[1] in which he initially set out his claims, and his statutory declaration provided to the Tribunal,[2] in which he expanded upon those claims and addressed specific concerns raised by the delegate.  As well his evidence was corroborated by his [Relative A]’s oral evidence to the Tribunal.  At hearing the applicant demonstrated a reasonable knowledge of the inception and development of the MDC and about the political landscape in Zimbabwe more broadly. 

    [1] Dated [in] January 2014

    [2] Dated [in] January 2018

14. To support his claims the applicant provided to the Department a number of photographs.  These included those of himself and his [Relative B] in Zimbabwe wearing MDC attire; his [Relative B]’s [business] in Harare containing MDC paraphernalia; his [Relative B] with [Mr A], [a former senior official]; and of the applicant’s scars allegedly as a result of being beaten and tortured in Zimbabwe in 2013 (the latter taken by his [Relative A] after his arrival in Australia).  The applicant also provided a letter[3] of support from the [former] MDC [official], [Mr B]; a statutory declaration from his mother; and various documents attesting to his enrolment (and expulsion) at [a named] School in the period before he came to Australia the last time in late 2013. 

    [3] Dated [in] March 2015

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

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

    ·His [Relative B] was a member of the Zimbabwe Congress of Trade Unions, which was a precursor to the MDC founded in September 1999.  His [Relative B] is friends with senior MDC figures, including [Mr B] and [Mr A].  He also used to provide [equipment] from his [business] in Harare to [assist in preparations for] MDC rallies, in particular during the lead-up to the July 2013 general elections. 

    ·The applicant’s [relative], angered by the takeover of his land by ZANU-PF, also actively supported the MDC through [activities] at rallies in [a district] (a ZANU-PF stronghold) for example.  He was killed in pre-election violence in 2002.

    ·The applicant’s [Relative A] actively supported the MDC, was seriously harmed and threatened by ZANU-PF supporters as a result and was granted a protection visa on this basis in Australia in 2010.

    ·The applicant became an active supporter of the MDC in late 2012/2013 whilst at [school] in [Town 1] by distributing materials (T-shirts, flyers, books, and flags) procured through a contact at [a] University and by promoting their policies in the lead-up to the July 2013 election at ‘growth points’ in [Town 1].  He also attended a pro-MDC rally in [Town 1] as well as numerous rallies in Harare in the two weeks prior to the July 2013 election.  Together with his uncle and others in Harare, the applicant promoted the party extensively through distributing flyers and putting up posters; for example, he used his [Relative B]’s [business] as a hub and storage place. 

    ·On the day of the election on 31 July 2013 the applicant was warned by a polling officer – who he suspects was ZANU-PF aligned – to keep quiet or he would be killed. The applicant had become angry (verbally) on discovering his [relative’s] name was not on the voters list.  The polling officer also told him that ‘they’ knew who he was.

    ·After the election – which ZANU-PF ‘won’ – the applicant returned to school in [Town 1] where he discovered the extent of the electoral fraud.  Angered, he returned to the ‘growth points’ in [Town 1] and spoke out against the matter, in around late September/early October 2013.

    ·Sometime in October 2013 the applicant was abducted by ZANU-PF youths when walking home from talking at one of the growth points in [Town 1], taken to a camp and assaulted, raped and tortured before being left unconscious on a road.  The next day he went to his parents’ house in Harare where his mother helped care for him. 

    ·Shortly after, the applicant was expelled from his school for a range of disciplinary reasons including because he was absent after being attacked, had absconded from a [school event] earlier (he attended an MDC rally in Mutare instead) and had removed a photograph of Robert Mugabe – the then President and leader of ZANU-PF – [after] the election results were announced. 

    ·Although expelled from school, the applicant was able to complete his exams in October/November 2013.  Afterwards he stayed at [Mr B’s] house in Harare, to reduce any risk his parents may have faced from ZANU-PF supporters looking for him, before going to Australia in December 2013.

16. The Tribunal initially had some concern about the applicant’s claims to have been targeted and seriously harmed by ZANU-PF youths post-election, given the election results in their favour and country information which indicates that political violence and intimidation by ZANU-PF supporters had reduced during this period (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review).  At hearing the applicant said he was politically active after the election – trying to expose electoral fraud – at growth points in [Town 1] where ZANU-PF supporters were present: he believes they then followed him and recognised him by his [facial feature] as the young guy ‘making noise’ in Harare and [Town 1] that they had heard about.  The applicant noted that around two weeks prior to the election [Mr B] had advised him to ‘take it down a notch’ with regard to his participation in MDC rallies and promoting the party, worried the applicant may be recognised by ZANU-PF supporters, who disguise themselves as MDC supporters and infiltrate such events, and possibly harmed.  The Tribunal accepts the applicant’s evidence in this regard and notes that whilst country information indicates a reduction in politically motivated violence, violent incidences did occur, as did protests against the election results. 

17. Another related concern the Tribunal had with the applicant’s case is why he returned to the area where he was attacked shortly after to attend his high school exams in late October/early November 2013.  At hearing the applicant explained that once registered in that particular area, and the date to make any changes had passed, he had no other option but to sit the exams in [Town 1].  He noted that he stayed living at his parents’ house in Harare during the exam period, commuting to [Town 1] each day.  His exam results were poor in contrast to his grades beforehand which show, it is submitted, how he was affected by the attack.  Having viewed evidence of the exam results and earlier results, the Tribunal accepts that was the case and accepts it could have been due to the trauma of the attack.  The Tribunal also accepts the applicant needed to return to [Town 1] to complete his [exams]. 

18. The Tribunal notes the delegate made adverse credibility findings with respect to the applicant because, among other things, his [Relative A] returned to Zimbabwe after his protection visa was granted, including with his children.  At the Tribunal hearing the applicant’s [Relative A] explained the circumstances of his return to Zimbabwe.  He told the Tribunal that in around 2015 his wife suffered [a medical condition].  This was compounded by caring for the [children] (and the applicant’s [Relative A] was away from home a lot [for his work]), so she was [requiring treatment].  They therefore made the difficult decision to return to Zimbabwe and leave their [children] with [family] in Harare to care for them whilst the applicant’s wife received the necessary treatment back in Australia.  Six months later the applicant’s [Relative A] and his [wife] returned to Zimbabwe to pick up their [children].  The applicant’s [Relative A] said during both trips he stayed in Harare only, for less than two weeks, and was not politically active.  He added that although his wife was better at the time, he had to accompany her during the second trip because the airlines would not allow only one parent to accompany their [children] on the flight because [of their] age.  The Tribunal found the applicant’s [Relative A] a credible witness and accepts his explanations as to why he returned to Zimbabwe after his protection visa was granted.  It accepts he was only there temporarily, was confined to Harare and was not at all politically active.  It accepts that his risk of persecution in such a context was less than if he had stayed for longer and does not draw an adverse inference from this fact in relation to the applicant’s claims.

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

20. It is submitted that the applicant faces a well-founded fear of persecution on return to Zimbabwe from ZANU-PF supporters and youth militia on account of his:

    ·Actual/imputed political opinion of supporting the MDC and being opposed to ZANU-PF and

    ·Membership of a particular social group, being [his] family.

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

22. At hearing the applicant claimed ZANU-PF will still see him as a threat if he has to return to Zimbabwe because of his attempts to expose electoral fraud in 2013.  He said he is easily recognisable because of his [facial feature].  The Tribunal accepts the applicant was seriously harmed by ZANU-PF supporters/militia in October 2013 following speaking out about electoral fraud.  However, given this occurred almost five years ago, in the context of the general election and immediate aftermath at the time, and there was no follow-up in relation to the applicant, the Tribunal doubts the applicant would be of ongoing adverse interest on return to Zimbabwe because of these events that took place at that time.

23. Nonetheless, the Tribunal accepts, based on the applicant’s past activities, and his commitment to supporting the opposition on return to Zimbabwe – evident at hearing – that the applicant would become politically active in opposition to the ruling ZANU-PF party on return to Zimbabwe in some capacity and if not, it would be only because of his fear of persecution.  Although he has not been politically active whilst in Australia, the Tribunal accepts his reason for this: that is because most of the politically active diaspora MDC members reside in the United Kingdom.  Nonetheless he has kept abreast of issues in Zimbabwe and spoke at length at hearing about the current political landscape post-Mugabe, emphasising that nothing has changed.  Specifically he noted at hearing and in his statutory declaration provided to the Tribunal that the new ZANU-PF leader, Emerson Mnangagwa, is known as ‘garwe’ (crocodile); was best friends with Mugabe for over 40 years; was responsible for bloodshed in Bulawayo in the eighties; has removed all MDC members from his cabinet and has stacked the cabinet with older ZANU-PF allies; the man who replaced him as vice-president was a former military leader; and ZANU-PF control the main ministries and have control of the country’s finances.  Further, the applicant said he believes the upcoming elections will be marked by violence again because the same ZANU-PF people who orchestrated the violence in the past are still in power and want to keep it, including through violence, intimidation and corruption of the election process against opposition supporters. 

24. These sentiments were echoed by the applicant’s [Relative A] in his oral evidence to the Tribunal.  He noted that the regime was not going anywhere; the same machinery is in place; in the period they have lost Mugabe the ZANU-PF will try to make sure to eliminate the MDC, especially with the death of Morgan Tsvangirai;[4] the new government is more militaristic than before (they are called a ‘command cabinet’); and former ZANU-PF members on ‘twitter lines’ have warned there will be the most bloodshed in history around the 2018 elections and already on the ground young people are dying. 

    [4] On 15 February 2018:

25. The representative said at hearing that there was already talk about the death of Morgan Tsvangirai leaving a huge power chasm which ZANU-PF will seize upon; in the lead-up to the 2018 elections ZANU-PF will crush any opponents; and youth in particular are at risk, as they have been in the past.  The applicant, at [age], and given his history and political commitment, squarely fits within this risk profile.  The representative referred to country information about ‘brainwashed’ and ‘drug-affected’ ZANU-PF youth engaging in politically motivated violence in Zimbabwe in the past, which escalates during election periods. She submitted that if the applicant returns during this heightened time of trying to regain momentum behind the MDC, given his past and his family’s ongoing support to the MDC, he would be involved in supporting the opposition at some level and this would lead to a well-founded fear of persecution. 

26. 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’.[5] 

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

1. Such intimidation is reportedly more obvious in rural areas,[6] although Harare, where the applicant comes from, is not immune.[7]   

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

   [7]  DFAT, DFAT Country Information Report Zimbabwe, 11 April 2016 at 3.24

2. 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.[8]

   [8] Ibid at 3.26 – 3.29

3. 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[9] 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.[10]

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

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

4. 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.[11]

   [11] Ibid at 2.2.7

5. Recently 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.[12] 

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

6. 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[13] – has appointed a cabinet filled with supporters, including military officers and war veterans.[14]  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.[15]

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

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

   [15] Ibid, footnotes omitted

7. 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’.[16] In a separate report the ICG noted that whilst the leader has gone, at least for now the regime remains.[17]

   [16] Ibid, footnotes omitted

   [17] 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.[18]

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

8. 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 signalled 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[19].

   [19] Ibid, footnotes omitted

9. 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.[20]

   [20] Ibid, footnotes omitted

10. 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.[21] There are a number of reports of targeting of MDC supporters in rural areas during the 2013 election campaign[22] involving threats to cut off limbs,[23] burning of houses,[24] confiscation of land[25] and physical assaults.[26]

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

    [22] 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

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

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

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

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

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

12. With respect to state protection, the applicant claims the police and justice system (and media) are controlled by ZANU-PF.  It is submitted that although the applicant fears harm at the hands of non-state actors, he cannot apply to the authorities for protection as they are controlled by ZANU-PF; state authorities including police operate with impunity throughout Zimbabwe, targeting MDC supporters; and therefore he will be denied effective state protection.

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

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

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

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

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

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

    Other matters

15. The Tribunal notes information contained on the Departmental file which is the subject of two non-disclosure certificates under s.438 of the Act. Having regard to the certificates – copies of which the Tribunal provided to the representative at hearing – the Tribunal is satisfied they are valid. The information to which they are subject includes details about the applicant’s [Relative A’s] movements and immigration history, indicating his returns to Zimbabwe after he was granted protection in Australia. As discussed, the Tribunal accepts the explanations provided for each of his returns and does not draw an adverse inference from this information in relation to the applicant’s case.

16. The information to which the certificates are subject also includes allegations from a third party that the applicant’s protection claims are false, that he was not an MDC supporter, was not expelled from high school and that his [Relative A] and [his wife] have been coaching him.  At hearing the applicant said he has no idea who would have made these allegations, which are untrue, and speculated that somehow ZANU-PF may have been behind them.  Given they are anonymous and the fact the Tribunal found the applicant (and his [Relative A]) to be credible witnesses, the Tribunal gives these allegations no weight. 

    CONCLUSION

17. 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

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

    Nicole Burns
    Member