1613506 (Refugee)

[2017] AATA 1801

1613506 (Refugee) [2017] AATA 1801 (9 August 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613506

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Jane Marquard

DATE OF DECISION:  9 August 2017

DATE CORRIGENDUM

SIGNED:17 October 2017

PLACE OF DECISION:  

AMENDMENT:  The following corrections are made to the decision:

In error:

The date listed of 8 August 2017 is incorrect on the decision record cover page.

Should read:

DATE OF DECISION: 9 August 2017

Jane Marquard
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613506

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Jane Marquard

DATE:8 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the second-named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the first-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.

Statement made on 09 August 2017 at 9:16am

CATCHWORDS

Refugee ­– Protection visa – Zimbabwe – Social group – Disabled people – Women – No state protection

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 91S, 438, 499

Migration Regulations 1994, Schedule 2, r 1.12

CASES

Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Mima v Haji Ibrahim (2000) 204 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
VSAI v MIMIA [2004] FCA 1602
MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are citizens of Zimbabwe. The first-named applicant is the mother of the second-named applicant, who is [age] years old.

2. The first-named applicant first arrived in Australia [in] June 2006 on a [temporary] visa. She departed Australia [in] June 2008.

3. She arrived in Australia the second time [in] July 2008, and departed [in] February 2011.

4. She arrived in Australia the third time [in] May 2011 and departed [in] September 2011.

5. She arrived in Australia the fourth time [in] October 2011 and departed [in] December 2012.

6. She arrived in Australia the fifth time [in] January 2013. [In] June 2013 she was granted a [temporary] Visa valid to [December] 2014.

7. [In] December 2014 the applicants applied for protection visas under s.65 of the Migration Act 1958 (the Act).

8. A delegate of the Minister for Immigration (the Department) refused to grant the visas [in] August 2016.

9. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

10. The first-named applicant provided the following information to the Department:

    ·She was born in [Village 1], Mashonaland in [year]. The second-named applicant was born in [year]. They are of Shona ethnicity and are Catholics;

    ·Her parents were living in Harare and both [worked]. Her mother was [an occupation], and her father was [an occupation]. She has [siblings];

    ·She finished school in [year] in Harare. She then attended [an educational institution] in Harare from [year] to [year];

    ·She met her husband [in] 1996 and  was married in 2000;

    ·Her mother-in-law did not like her as she earned more than her husband and her family were Catholics, not Presbyterians;

    ·She and her husband eventually moved to Harare. From 1997 to 2002 she worked at [Company 1] in [a section]. Around 1999 the country descended into chaos under Mugabe;

    ·[In] June 2000 she was carjacked in Harare. She was driving a car with an anti-hijack device, so that it could not start without using the key in a particular way. She ran to her [relative]’s gate and two men caught her and hacked her hair with a knife. The carjackers eventually worked out how to start the car, and took off. The police were nonchalant and provided no help;

    ·There was legal immunity for war veterans. Around 2001 she was working at [Company 1] as a [section] officer.  One morning the war veterans arrived at their offices. War veterans had been trying to take over white firms and businesses. The manager and two Black partners went down to try and diffuse the situation. Some of the veterans asked to see her and [her colleague], as they had heard reports that they were “in the pocket of the white man”. This was because she and [her colleague] had recently investigated one of their workers who had stolen a laptop. This worker dobbed them in to the war veterans. She and [her colleague] were taken away in a car. She was terrified of being raped and killed, especially because war veterans were often stoned or drunk. They went to an office in [a certain] Street. Her secretary had called her parents, who in turn called [a relative] who worked high in [an] intelligence agency. Through this, they were released;

    ·From 2002 to 2003 she was unemployed;

    ·Her daughter [was] born on [date]. She was living alone at the time as [her husband] had gone to [Country 1] [in] August 2002. She had not gone with him because she was pregnant. [Her husband] has remained primarily in [Country 1] and had little involvement in their lives;

    ·In December 2003, when [her daughter] was [age] she was taken to hospital. After having numerous medical problems, in 2005 she was diagnosed with [medical conditions]. Her treatment started in Zimbabwe and continued in Australia. She has [treatment] every 6 [months]. [Details of treatment deleted].  She was told that when she turned [age] that they could re-assess treatment. She is concerned about [her daughter]’s treatment if she returned to Zimbabwe;

    ·Unemployment is high in Zimbabwe and she has no husband or family to help her. Her father has passed away and her mother is unemployed;

    ·In 2003 she took her mother-in-law to see a witchdoctor. The witchdoctor sacrificed a chicken and bathed in its blood. In October 2005 she told her husband’s cousin, [that] her pad bag had gone missing. She jokingly asked him if his father who was a witchdoctor could find it, and he became very angry. The next morning, she found used sanitary pads and several pairs of her underwear in his room. She did not know how witchcraft worked, but wondered if it was a kind of curse. It was weird and disturbing;

    ·If she returns she fears witchcraft and threats from her husband’s family. She fears it will be used as revenge. The authorities have no control over witchcraft;

    ·In January 2006 the applicants were carjacked again. A man with a wrench came to the back passenger window. She was in the car with [her daughter], her [brother] and a [maid]. [Her maid] undid her daughter’s seatbelt and they dropped to the ground. [Her brother] jumped out of the car and chased him away, but the man had grabbed the baby bag;

    ·In 2011 she returned to Zimbabwe for three months because her father was ill and she wanted to help her mother. During this time she was confronted by her mother-in-law who said that she was angry that she was divorcing her son and that she would “deal with her” if she went through with it. Her mother-in-law said she had rights to [her granddaughter], even though she had nothing to do with it, and the applicant feared she would take her;

    ·She was divorced [in] August 2014;

    ·Her daughter is young and needs treatment. Medical facilities in Zimbabwe have collapsed and she could not afford treatment. Zimbabwe’s health system remains inefficient, corrupt and plagued by shortages of even the most essential medicines. [Medication 1] is not considered an essential medicine and its availability is limited. There is corruption in the health services and long distances between healthcare facilities;

    ·There are negative and superstitious attitudes towards disability in Zimbabwe. Children born with disabilities are thought to bring bad omens to families. The existence of disability is sometimes ascribed to witchcraft or immoral behaviour by the child’s mother, such as promiscuity. It can also be viewed as a spiritual punishment;

    ·The second-named applicant fears discrimination and marginalisation. She also fears sexual abuse;

    ·Crime is also out of control and she would be vulnerable as a single woman living alone with a child, without anyone to take care of them. Violence against women is a significant problem;

    ·She also fears her husband’s family would be violent to her;

    ·She fears being harmed as a white sympathiser due to her employment with white owned corporations and the incident where she was almost killed by anti-White militia; and

    ·The police cannot protect her or her daughter.

11. The applicants provided the following documents to the Department and Tribunal:

    ·Divorce certificate dated [August] 2014;

    ·Letter from [a] [Surgeon], Harare, dated [October] 2005. The letter states that [the applicant’s daughter] had developed [symptoms] from the age of [number] months. She was in hospital at the age of [age] for one week. [Details of medical condition deleted];

    ·Letter from [an] Associate Professor [from a] Clinic, dated [January] 2010 stating that her problems, according to Dr [name], appeared to emanate from [deleted]. She has received [Medication 1] twice which appears to be resolving her symptoms;

    ·Letter from [Dr A], [Health] Service, dated [November] 2014, stating that [the applicant’s daughter] has [a medical condition] and is treated [on] a regular basis;

    ·Letter from [a person] saying that “those people” had gone to the house and seen the new owners and were not happy, saying that they had warned the applicant not to go ahead with selling;

    ·Letter from [Dr A], [health] Service dated [March] 2016 stating that [the applicant’s daughter] has a diagnosis of [a medical condition], and had received [treatment] regularly to treat [her condition];

    ·Articles on witchcraft in Zimbabwe, some of which referred to legislation criminalising witchcraft practices;

    ·Photographs of the second-named applicant;

    ·Diagnosis by [a health practitioner] dated [May] 2017;

    ·Diagnosis by [Dr A], [health] Service dated [May] 2017;

    ·Letter from [Dr B], Consultant Paediatrician, [name] Paediatric Clinic, dated [April] 2017; and

    ·Letter from [the family practitioner], Harare, outlining inadequate facilities in Harare, for treatment of the second-named applicant’s condition.

12. The applicants appeared before the Tribunal on 17 May 2017 [to] give evidence and present arguments. The first-named applicant’s brother was present as a support person.  The applicants were represented in relation to the review by their registered migration agent.

13. The first-named applicant provided the following information to the Tribunal:

    ·She was born in the village of [Village 1] in a farming community in Mashonaland. Her mother worked as [an occupation], and her father as [an occupation]. She lived for two years in [Harare]. Then she returned to Harare for most of her high school;

    ·Her father has passed away but her mother is still alive, and she is living in [Village 1], with her brother and his family.

    ·Her brother [is] an Australian citizen. Her sister is living in Harare with her husband and [working]. They are going back to [Country 1] at some point as they are [Country 1] citizens;

    ·Her grandmother, aged [age], lives in Zimbabwe, as do her [relatives]. She has remained close to the family, but does not have many friends or colleagues living there anymore;

    ·She came to Australia [in a certain capacity], and later was granted a [temporary] visa;

    ·    When her [daughter]was [age] the first-named applicant took her to see a [specialist] in Zimbabwe because of issues she was [experiencing]. She had surgery when she was [age] years [old]. The doctors [details deleted]. They also performed [a procedure], even though one doctor at the time had suggested [Medication 1].  The second [applicant] had constant [treatment], which was painful for her. [Details deleted];

    ·    When they moved to Australia, [her daughter] began treatment with Australian doctors. She suffers pain [constantly]. She also gets bad headaches. With the treatment she receives, she can function in everyday life. [Details of symptoms deleted];

    ·    [Her daughter] is having [Medication 1] every 6 [months]. At that time, friends will ask her what is [wrong]. She is comfortable to talk about her health issues with her close friends, but with other people she does not feel comfortable talking about it;

    ·    The doctors have told her that if she went off [Medication 1] she would end up in a wheelchair, or not walking. [Details deleted];

    ·    [Details of condition deleted];

    ·    When [her daughter] was younger, they said she could not do [a certain activity];

    ·    Strangers will notice that [she has a disability];

    ·    The first-named applicant went back to Zimbabwe in 2011 twice to help her mother, when her father was ill, and later for her father’s funeral. She also returned for his stone laying in 2012. She took [her daughter] with her on these trips;

    ·    According to the doctors in Zimbabwe, treatment for [her daughter]’s condition is non-existent in Zimbabwe. For her specific treatment, there is no-one who administers [Medication 1] for children. She rang [Company 1], where she used to work, and got the name of an appropriate doctor. She does not know this doctor, she just asked her whether the treatment was available generally in Zimbabwe and she said it was not;

    ·    Doctors and other medical professionals in Australia have advised her that if treatment for [her daughter] is not available, then she may be confined to a wheelchair;

    ·    When she took [her daughter] back with her to Zimbabwe, on the three occasions, people did ask what was wrong with her, but she was not out in the community much. She was only with family at home and mostly they knew about her condition. Her family is supportive towards her. They did not have problems with community discrimination, but they were at home nearly the entire time;

    ·    However if [her daughter] does not have treatment in Zimbabwe then she will become more disabled and may be confined to a wheelchair. The first-named applicant has never seen anyone in wheelchairs with jobs in Zimbabwe. It is difficult to get jobs anyway but it would be more difficult for people with additional needs;

    ·    She said that people in Zimbabwe feel like a mother must have done something wrong if they have a disabled child. Her own mother-in-law said that to her directly. [Her daughter] was shunned by her own family, they had no affection towards her because there was something wrong with her. Her father has never been present in her life. She thinks he is in [Country 1].  For a while her mother-in-law wanted to claim [the applicant’s daughter] for the purposes of getting her house. His family do not keep in touch with [her daughter];

    ·    She said that the influence of the hostile attitudes towards disabled people are so strong that she herself believed that she had done something wrong and that was why [her daughter] was disabled;

    ·    Her own family supported her but they are educated. But even some relatives who are ignorant would look at her as if she had done something wrong, as she has a disabled child;

    ·    The attitudes to disability are very different in Zimbabwe compared to Australia. In Zimbabwe, even children with minor disabilities had to go to a special school. You never saw people with special needs in jobs.  At school, people would make fun of disabled children. Disabled people, and albinos, get assaulted because of ignorance;

    ·    She fears that having a disabled child would make her more vulnerable to crime. On her last visit they were asked to hand over their car and money, and had to take out the rifle they carry there. Unemployment and crime rates are high in Zimbabwe;

    ·    Attitudes are more conservative in the rural areas, but also prevalent in Harare;

    ·She was asked why she fears war veterans. She said that she was abducted by them ten years ago, but knowing what is happening from news and family sources, she would still be in the same situation. The war veterans have the feeling that anyone with a better life, should be targeted. They would think that because she has money and lived overseas she owed them. She does not know if they would see her as a white sympathiser. In [Village 1] her mother and father were farming, [so] the war veterans targeted her family because they had assets and money. Her parents allowed the veterans and Green Bombers to have [an animal], and cut their trees, but they kept coming back. Her mother tried to appease them, and her [relative] is associated with Zanu PF which gave them some protection. Her family were not politically active. The war veterans might now think she was associated with the Movement for Democratic Change (MDC) because she has come from overseas. They would not harm them every day, but she does have some fear of them;

    ·She would have to stay with her mother in [Village 1] initially as she would have nowhere else to go;

    ·She said she does not know if witchcraft would affect her. Her ex-husband left her when she was [pregnant]. She was going to go to [Country 1]. Then they found out she was pregnant. Her husband took her ticket. He never returned. After  the payment of lobola, she did not fall pregnant for some time, so her mother-in-law did not like her. Then after she had [her daughter], her mother-in-law thought that her husband was sending her money which he was not actually doing. They had already bought a house. If you are married then everything belongs to one’s husband. This was why the mother-in-law wanted to claim the house, and was antagonistic. In 2012 when the first-named applicant returned to Zimbabwe, she was struggling. She went to a lawyer to find out if she could sell the house. So they did this, and her in-laws are angry about this. She is still having difficulty recovering the money for the house. Logically she does not know that witchcraft would work. But she still fears that they would attempt to use witchcraft if she returns.

14. The second-name applicant provided the following evidence, in summary:

    ·She [is age] years old and in Year [grade] at school. Her favourite subjects are [deleted]. She enjoys [sport];

    ·She is usually sore at the end of each day. [Details deleted];

    ·She [experiences symptoms] at the end of the six months between treatments;

    ·She does not talk to other people about her condition, only her close friends;

    ·[Details of treatment deleted];

    ·She says that people at school have not been mean to her about it.  She is scared of people being mean to her though, and she does not tell them the truth about her medical condition.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. In coming to a decision, the Tribunal has taken into account evidence in the Department file, and before this Tribunal, and independent information about Zimbabwe.

16. A summary of the relevant law is set out in Attachment A.

    Nationality

17. The applicants provided copies of their passports, and the first-named applicant gave evidence that they are citizens of, and born in, Zimbabwe. It was clear that they were familiar with the culture, history and geography of Zimbabwe, and the Tribunal accepts on the evidence before it that they are citizens of Zimbabwe, and that Zimbabwe is the receiving country for the purposes of the complementary protection provisions.

    Findings of Fact

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The Tribunal is satisfied that the applicants have provided credible evidence about all matters. The evidence has been consistent throughout various accounts of it to the Department and Tribunal. Furthermore, the first-named applicant provided the kind of spontaneous recall and detail often commensurate with telling the truth. For example, in relation to the incident with the war veterans, she described street names, reasons for the invasion, and her feelings while being taken away in the car. She also did not attempt to embellish evidence. For example in relation to the witchcraft issue, she stated that she was not sure if this would become an issue again, but it was a possibility that she would be harmed for these reasons. This kind of evidence suggests that she is telling the truth about the events discussed.

3. The Tribunal is satisfied that the second-named applicant has had [the medical condition] since birth. The oral evidence of the applicants about her condition, is supported by numerous medical reports. This includes a letter from [the surgeon], who treated her in Zimbabwe, dated [October] 2005, stating that she had developed [symptoms] from an early age, and would become very weak. At the age of [number] months she suffered a bad episode and was in hospital for a week. She started [to have symptoms].  She was sent [for treatment] but her condition did not improve. [The] Hospital then provided a diagnosis of [medical condition]. She was reported to have [certain] problems. The doctor stated that a diagnosis of [medical condition] was made, but that she also had a progressive [disorder] of an unknown nature. Letters from doctors in Australia have confirmed that she has a diagnosis of [medical condition]. A letter from the Senior Paediatric [health practitioner] at [a] Hospital dated [November] 2014 stated that they had treated the second-named applicant for four years, in conjunction with [a] program provided by the [Health] Service based at the Royal Children’s [Hospital]. She had received management to address [her health] [problems]. The Tribunal is satisfied that, as set out in letter from [Dr A], a Paediatric [Specialist] dated [May] 2017 she is receiving treatment for the [condition].

4. The Tribunal is satisfied therefore that the second-named applicant has, since birth, had a form of [a medical condition] which has had multiple impacts on her health and life.

5. The Tribunal is also satisfied that the applicants have been the victim of crime on a number of occasions in Zimbabwe. This included an incident in 2001 when the first-named applicant was abducted by war veterans from her office at [Company 1] in Harare. In 2006 she was carjacked while her child was in the car.

6. The Tribunal is also satisfied that in 2003 the first-named applicant took her mother-in-law to see a witchdoctor, and that in 2005 her husband’s cousin displayed strange behaviour towards her, which she felt could have been related to witchcraft.

   Well-founded fear of persecution

7. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

8. 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.

9. The applicants have stated that the second-named applicant fears persecution for reasons of her disability.

10. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in the case of Applicant A v MIEA (1997) 190 CLR 225, and also in Applicant S v MIMA (2004)217 CLR 387. In Applicant S, Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

11. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country.

12. In this case, disabled people in Zimbabwe are identifiable by a characteristic common to all members, their disability. The characteristic is not the shared fear of persecution. The possession of the characteristic distinguishes the group from the society at large, as disabled people are distinguished in all aspects of society, including education, and community attitudes towards them, from other groups.

13. The Tribunal is satisfied therefore that the second-named applicant is a member of the particular social group, disabled people in Zimbabwe.

14. The next question is whether the persecution feared is for reasons of the second-named applicant’s membership of the particular social group, and whether there is a real chance of serious harm for this reason.

15. The applicants claim that the second-named applicant would not be able to receive the kind of treatment she needs in Zimbabwe, and this will lead to a deterioration of her condition such that she would be unable to walk and would need to be in a wheelchair. They claim that with such an obvious and visible condition, she would be discriminated against, and that she would be vulnerable to physical and psychological harm for reasons of her disability.

16. The Tribunal is satisfied based on the medical evidence that with the treatment the second-named applicant is receiving in Australia, she is effectively managing the condition such that she can live a relatively normal life. This is set out in a letter dated [May] 2017 from [a health practitioner] who reports that the second-named applicant had undertaken an individualised [program]. [Dr A], a paediatric [specialist], reports in a letter dated [May] 2017 that the second-named applicant is classified [deleted], which is an indication of her functional [ability].  According to [Dr B], a Consultant Paediatrician, in a letter dated [April] 2017, the second-named applicant has had life-long input from the [team] at [a] Children’s Hospital. She reports that she is extremely academically capable and thriving at school.

17. The Tribunal is satisfied on the basis of the medical evidence provided that the second-named applicant requires consistent appropriate treatment if she is to continue to manage her condition and progress, rather than regress, and for new symptoms which [arise]. The health practitioner] states that she needs an ongoing [support] to maximise her potential and minimise the functional impact [throughout] her adolescence and into adulthood. She said that it is “imperative” that she continues to receive ongoing specialised [treatment] [and] management under a specialised [multi-disciplinary] medical team. This conclusion was supported by [Dr B], a consultant paediatrician in a letter dated [April] 2017, who stated that it was essential that the second-named applicant continue to receive consistent medical care, for a new issue [as] well as the physical consequences of her [medical condition]. The proposition is also supported by [Dr A] in her report dated  [May] 2017, where she states that the second-named applicant requires regular monitoring [to] ensure that she has an accurate [program] to ensure the best [outcome]. She also required [details deleted].

18. The Tribunal is satisfied that the applicant will not be able to access the kind of medical care she receives in Australia if she returns to Zimbabwe in the reasonably foreseeable future.  A letter from [a] family practitioner in Harare, dated [April] 2017, reports that there is no dedicated [unit for her medical condition] in Zimbabwe, and that the [specialist] in Harare[does] not do the [Medication 1] [treatment] the second-named applicant requires. She goes on to say that while there would be adequate [treatment of a certain kind], the [other treatment] “would be a problem”. She said that while [the other treatment] can be performed in Harare, the [material] used is inferior and it would be very expensive to import the newer materials. She recommended that the second-named applicant remain in Australia for her treatment. The first-named applicant has advised that she received the name of this doctor from her previous employers in Harare, [Company 1], and that she did not know the doctor but just wanted to find out if treatment for the second-named applicant was available. Thus, an objective medical practitioner with no connection to the applicants has provided independent advice about the availability of treatment. The Tribunal gives this report significant weight. The fact that [Medication 1] treatments are not available is also confirmed in the Essential Medicines List and Standard Treatment Guidelines for Zimbabwe.[1] The first-named applicant gave evidence that the second-named applicant has [Medication 1] treatment every six months and [she has other treatment] at this time as well. She said that doctors have advised them that if [Medication 1] was unavailable, she could eventually end up in a wheelchair. The evidence suggests that [Medication 1] and the materials for casting may not be available.

    [1] World Health Organisation, “Essential Medicines List and Standard Treatment Guidelines for Zimbabwe”, http:\\apps.who.int/medicinedocs/documents/s21753en/s21573en.pdf – accessed 12 July 2017

19. The claim that the treatment she would receive would not match the kind of treatment she would receive in Australia, is supported by the fact that when she was treated in Zimbabwe prior to coming to Australia, she received treatment which is not used in Australia, according to [Dr A], a Paediatric [Specialist] in a letter dated  [May] 2017. This treatment was surgery to [deleted], and according to [Dr A], is not used in Australia because of the risk of [deleted]. [The health practitioner] in her report referred to it as “[mismanagement]”.

20. Furthermore, reports about the medical system in Zimbabwe indicate that there are many problems with lack of resources. For example, the Department of Foreign Affairs and Trade, commenting on the health system generally, has said that Article 76 of the Constitution establishes a right to basic health-care services for all citizens. However budget cuts and poor governance have reduced overall health care services, resulting in resource, personnel, medical and equipment shortages.[2] A report from the Anti-Corruption Resource Centre in Zimbabwe states that the system is inefficient, corrupt and plagued by shortages of even the most essential medicines.[3]

    [2] Department of Foreign Affairs and Trade, Country Information Report, Zimbabwe, 1 April 2016

    [3] Anti-Corruption Resource Centre, “Zimbabwe: Overview of Corruption in the health and education sectors and in local governments”,  June 2015

21. The Tribunal is also satisfied, on the basis of medical evidence, that should the second-named applicant not receive the kind of treatment she is currently receiving in Australia, her condition will deteriorate and it is possible she will not be able to walk. [The health practitioner] in her letter dated [May] 2017 has said that if she is [mismanaged] again, or her [treatment] is inadequate, then statistically it is highly probable that she would progress to a [deleted]. She goes on to suggest that her mobility would deteriorate to the point where she would require aides, such as sticks or crutches to walk. [The] Senior Paediatric [health practitioner] at [a] Hospital in a letter dated [November] 2014 stated that without her treatment, the second-named applicant is at greater risk of developing [health conditions]. She also reports that she would be likely to experience greater pain and reduced mobility, likely to impact her functional independence.

22. The Tribunal is satisfied that the second-named applicant if she was unable to receive appropriate treatment, would suffer serious harm if she returned to Zimbabwe in the reasonably foreseeable future, on the basis of the country sources set out below.

23. It was estimated by the National Association of Societies for the Care of the Handicapped (NASCOH) in 2007 that more than 1,200,000 Zimbabweans, ten percent of the population, were classified as disabled. [4] The United States Department of State Report on Human Rights Practices 2015 for Zimbabwe, states that the Constitution’s Bill of Rights provides that no person may be deprived of fundamental rights, and prohibits discrimination based on disability. The Report states that notwithstanding this provision, discrimination based on disability persisted.[5] The Report goes on to state:

    Government institutions often were uninformed and did not implement the law. The lack of resources devoted to training and education severely hampered the ability of persons with disabilities to compete for scarce jobs. The law stipulates that government buildings be accessible to persons with disabilities, but implementation was slow.

    The National Association of Societies for the Care of the Handicapped (NASCOH) drafted a National Policy on Disabilities in 2009, but the government had not approved the policy. Persons with disabilities faced harsh societal discrimination and exclusion, as well as poor service delivery from state bodies. .. Persons with disabilities living in rural settings faced even greater challenges.

    Although two senators were elected to represent persons with disabilities, parliament rarely addressed problems especially affecting persons with disabilities. Parliament does not provide specific line items for persons with disabilities in the various social service ministry budgets.

    Most persons holding traditional beliefs viewed persons with disabilities as bewitched, and in extreme cases families hid children with disabilities from visitors. According to the National Association of Societies for the Care of the Handicapped, the public considered persons with disabilities as objects of pity rather than persons with rights; they constituted a forgotten and invisible group.

    There were very few government-sponsored education facilities dedicated to persons with disabilities. Educational institutions discriminated against children with disabilities. Essential services, including sign language interpreters, Braille materials, and ramps, were not available, and prevented children with disabilities from attending school. Many schools refused to accept children with certain disabilities. Schools that accepted students with disabilities offered very little in the way of nonacademic facilities for those accepted as compared with their counterparts without disabilities. Many urban children with disabilities obtained informal education through private institutions, but these options were generally unavailable for persons with disabilities in rural areas. Government programs, such as the basic education assistance module, intended to benefit children with disabilities, failed to address adequately the root causes of their systematic exclusion. The National Association of Societies for the Care of the Handicapped reported that 75 percent of children with disabilities had no access to education.[6]

    [4] UK Home Office, Country of Origin Information Report: Zimbabwe, 23 December 2009

    [5] United States Department of State, Country Reports on Human Rights Practices for Zimbabwe 2015, 2016, – accessed 9 June 2017

    [6] United States Department of State, Country Reports on Human Rights Practices for Zimbabwe 2015, 2016, – accessed 9 June 2017

24. As referred to in the United States Department of State Report, Zimbabwe does have legislation, including the Disabled Persons Act, 1992 which prohibits discrimination and encourages provision of services to disabled people, however the report and other information suggests that this Act is not enforced.[7] According to various sources, myths and misunderstandings surrounding disabilities contribute to the exclusion of disabled people in Zimbabwe from daily life.[8] The perception that disabled people are of no value, is demonstrated in a statement by an influential leader of a women’s organisation in Zimbabwe. When invited to discuss the work of the Disabled Women Support Organisation (DWSO), she replied “We do not network with people with disabilities. What will [people] say if I am seen having a meeting with you? You have to stay indoors and ask the Department of Social Welfare to assist you with food.” Disabled people are often confined to specialised institutions and not included in wider society. As well as attitudinal barriers to social inclusion, disabled people in Zimbabwe face environmental, legal and institutional barriers to achieving equal opportunity.[9] A documentary about a young disabled Zimbabwean woman, Prudence Mabhena, who “was abandoned by her family and shunned by her community” demonstrates the challenges faced by disabled people, including “stigma and discrimination, abandonment, [and] barriers to education and health care”.[10]

    [7] Kwena,S, AfricaRenewal Online,  “Africa’s disabled will not be forgotten”,  April 2010, - accessed 9 June 2017

    [8] US Department of State, Country Reports on Human Rights Practices for 2009: Zimbabwe, 11 March 2010

    [9] Choruma,T, “The Forgotten Tribe: People with Disabilities in Zimbabwe”, Progressio, January 2007, pp.8, 12; Charowa, G, “Layers of discrimination: disabled women in Zimbabwe”, Afrol News, 9 December 2005

    [10], Human Rights Watch website, ‘Voices to be Heard, In Harmony’, source: The Huffington Post, 3 May The Zimbabwe Situation website, ‘Oscar nomination for ‘Music by Prudence’ about disabled Zimbabwean singer Prudence Mabhena’ 2010, source: San Francisco Bay View, 5 March 2010,

1. NASCOH considers disabled people to be “a forgotten and invisible group in society”. Disabled people “suffer from widespread violation of their fundamental freedoms and rights…face exclusion from education, employment, cultural activities, festivals, sports and social events and are especially vulnerable to poverty, physical and sexual violence, lack of access to health care, emotional abuse and neglect”. For example, disabled people are excluded from HIV/AIDS prevention programmes, and only 33 percent of disabled children have access to education, compared to more than 90 percent of the general population.[11]

   [11] US Department of State, Country Reports on Human Rights Practices for 2009: Zimbabwe, 11 March 2010, Section 6; ‘Disability in Zimbabwe’ (undated), NASCOH website

2. An article in AfricaRenewal had this to say about disabled children:

   In the streets of Harare hundreds of disabled people beg for alms. Most do so in dirty clothes, in makeshift wheelchairs or on crutches, while the less fortunate drag themselves on their hands and knees.

   Most were previously cared for in special homes, including the Jairos Jiri Centre, Copota School, Danhiko and the Chinyaradzo Children’s Home. Such institutions used to get financial support from the government and the corporate world, but the economic decline that began in Zimbabwe in 2000 made life in the homes difficult and forced most residents to opt for life on the streets. With very little assistance available, many disabled people have few options but to beg on the streets.

   “The government has forgotten the disabled people,” laments Mr. Kuchera. “Nothing was mentioned in the country’s 2010 budget. There are no projects or programmes whatsoever for disabled people.”

   Those with disabilities also seem to confront an uncaring society. When they approach members of the public for help in starting market gardening, dressmaking or music projects, they are regarded as a nuisance. The general feeling is that the only places for a disabled person are in the street or in front of a church, begging. The situation is worse in rural areas, where children with disabilities are usually confined to the house because of long-held traditional beliefs that they are curses from God.

   “Society views disabled people as useless liabilities that have no role to play in society,” says Gladys Charowa, a single mother who was left wheelchair-bound by a 2001 car accident. She is a founding member and executive director of the Disabled Women Support Organization, a group that focuses on helping women and girls with disabilities…

   Because of the prevalent social attitudes towards people with disabilities, Ms. Charowa says, they often face discrimination. In Zimbabwe, women with disabilities experience especially severe discrimination. [12]

   [12] Kwenda, S, Africa Renewal, “Africa’s disabled will not be forgotten”, April 2011 - accessed 10 June 2017,

3. A 2004 report by Save the Children Norway found that sexual abuse of children with disabilities is increasing in Zimbabwe, and that 87.4 per cent of girls with disabilities had been sexually abused. Approximately 48 per cent of these girls were mentally challenged, 15.7 per cent had hearing impairments and 25.3 per cent had visible physical disabilities. Of those who had been sexually abused, 52.4 per cent tested positive for HIV.[13] Access to counseling, testing and treatment is severely limited.[14] A recent article in NewsDeeply referred to this report and the particular case of a girl with cerebral palsy who had been raped, suggesting that this was a common story in Zimbabwe where women with disabilities are particularly vulnerable to gender violence.[15]

   [13] Quoted in ReliefWeb, “Women with disabilities face more abuse”, 3 December 2013, - accessed 20 June 2017

   [14] [14] Nyakanyanga, S, NewsDeeply, “Women with Disabilities sidelined as Zimbabwe tackles GBV”, 12 January 2017, - accessed 20 June 2017

   [15] Nyakanyanga, S, NewsDeeply, “Women with Disabilities sidelined as Zimbabwe tackles GBV”, 12 January 2017, - accessed 20 June 2017

4. In addition, disabled people face discrimination in employment and access to job opportunities, due in part to a lack of qualifications resulting from limited access to education. Disabled people are reportedly among the poorest in Zimbabwean society, with between 70 and 99 percent of disabled people unemployed.[16] However, according to the most recent CIA World Factbook, unemployment in Zimbabwe was 95 percent in 2009 for all people, although figures vary and include underemployment.[17] The Department of Foreign Affairs and Trade states that the UN 2014 Human Development Index ranked Zimbabwe 156 out of 187 countries. The World Bank classifies Zimbabwe as a low-income country, and an estimated 72% of people live in poverty, with more than one-fifth in extreme poverty.[18] Within this context, the needs of disabled people are not given priority and there is clear discrimination in employment.  Employers cite costly measures required to accommodate disabled workers as a significant deterrent from hiring disabled people. Discrimination within the workplace includes a lack of appropriate facilities, limited opportunities for promotion, and verbal abuse and marginalisation by co-workers.[19]

   [16] UK Home Office 2009, Country of Origin Information Report: Zimbabwe, 23 December, p.104 –; Khupe, W. P., “Disabled People’s Rights… Where Does Zimbabwe Stand?”, The Zimbabwean, 12 April 2010;  - accessed 9 June 2017

   [17] Central Intelligence Agency (CIA) 2017, ‘World Factbook: Zimbabwe’, CIA website, - Accessed 12 July 2017

   [18] Department of Foreign Affairs and Trade, Country Information Report, Zimbabwe, 1 April 2016

   [19] Choruma, T, “The Forgotten Tribe: People with Disabilities in Zimbabwe”, Progressio, January 2007, pp.17-18

5. It is widely reported that negative attitudes and societal discrimination expose people with disabilities to a greater risk of sexual abuse and contracting HIV. Cultural beliefs that sex with a disabled child, or a virgin, can cure HIV have led to an increase in rape and sexual abuse of disabled children and adults, as they are assumed to be virgins.[20]

   [20] Choruma, T, “The Forgotten Tribe: People with Disabilities in Zimbabwe”, Progressio, January 2007, pp.17-18

6. Disabled people also suffer from a lack of access to general health care for similar reasons to those outlined above. These include poverty, a lack of trained staff in rural areas, under-funded and ill-equipped health care centres, physical inaccessibility of buildings that do not provide for people in wheelchairs, communication problems with staff who are not trained in sign language and centres that do not offer information in Braille, as well as negative attitudes of health care staff towards disabled people, and stigmatisation of disabled people by staff who are insufficiently trained about disabilities.[21]

   [21] Choruma, T, “The Forgotten Tribe: People with Disabilities in Zimbabwe”, Progressio, January 2007, pp.17-18

7. As discrimination against women persists in Zimbabwe, disabled women have the disadvantage of double discrimination. According to the United States Department of State Report, 2015, in the section on the rights of women, it is stated that all “laws, customs, traditions, and practices that infringe the rights of women conferred by this constitution are void to the extent of the infringement.” Nevertheless, according to the Report, discrimination against women persisted. Laws against rape are not effectively enforced, and rape remains a widespread problem. Victims reported few cases of rape due to social stigma and societal perceptions that rape was simply a “fact of life” that could not be challenged. A lack of services for rape victims also discouraged reporting. Most rural citizens were unfamiliar with laws against domestic violence and sexual offenses. Chiefs of local jurisdictions usually handled gender-based violence in trials applying customary law. Police sometimes did not act on reported rape cases if the perpetrators were aligned with ZANU-PF. A local NGO, Msasa Project, which provides emergency shelter and related services for women, handled a monthly average of 1,684 cases of violence against women. Msasa reported that 77 percent of their clients were girls under age 18.[22] The Department of Foreign Affairs and Trade has said that rape is criminalised but sexual abuse is widespread. The 2012 Report by Msasa Project found that one in three girls had been raped by the time they were 18 years old. The Report states that there is broad societal tolerance of sexual and other violence against women.[23] More recent statistics from the Zimbabwe National Statistics Office indicate that 21 women are raped daily, or one woman every seventy-five minutes.[24] In a UN Population Report quoted by Sally Nyakanyanga in a recent article, it was found that one in three girls aged 15 to 49 had experienced violence and 1 in 4 had experienced sexual violence [25]

   [22] United States Department of State, “Country Reports on Human Rights Practices for Zimbabwe 2015”, 2016, – accessed 9 June 2017

   [23] Department of Foreign Affairs and Trade, “Country Information Report, Zimbabwe”, 1 April 2016

   [24] Zimbabwe Situation, “One woman raped every 75 minutes: Zimstat , 4 April 2016, – accessed 15 June 2017

   [25] Nyakanyanga, S, NewsDeeply, “Women with Disabilities sidelined as Zimbabwe tackles GBV”, 12 January 2017, - accessed 20 June 2017

8. 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.

9. The Tribunal has considered the fact that the first-named applicant has returned to Zimbabwe on three occasions to visit her father who was sick and then to take part in burial ceremonies. On each of these occasions she took the second-named applicant with her, which could, prima facie, indicate that she did not have a genuine fear of serious harm in respect of the second-named applicant. The Tribunal accepts that on these visits the applicants remained primarily at home with family. The situation would be different if the applicants lived in Zimbabwe, and the second-named applicant wanted to go to school and be a part of the community, and later get a job. Although she did not suffer harm when she returned, she had very little exposure to the community. If she returned she would have to be exposed to the community, at the very least through school and work. The Tribunal accepts that the applicants have a genuine fear of serious harm if they returned to Zimbabwe.

10. 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. 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 chance: Chan v MIEA (1989) 169 CLR 379.

11. The Tribunal is satisfied, given the country sources cited above considered cumulatively, and the applicants’ particular circumstances, that there is a real chance of serious harm for the second-named applicant, one that is not remote or insubstantial, were the applicants to return to Zimbabwe in the reasonably foreseeable future. The Tribunal is satisfied that the second-named applicant’s disability is already very visible, [details deleted]. If she were to return to Zimbabwe, the medical reports indicate that it is unlikely that her current course of [Medication 1] treatment and other forms of treatment, would be available. If this were the case, the medical evidence indicates that her symptoms would exacerbate and deteriorate and she would have difficulties walking, and her pain would be extensive. Her condition would become substantially more obvious to those around her.

12. The Tribunal is satisfied that there is a real chance that a child with this level of disability would be subject to serious harm, that is harm as envisaged by section 91(R) of the Act. Under s.91R(1) persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Section 91R(2) provides that the following are indicative instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

13. In the second-named applicant’s case, the country sources indicate that there is a real chance that she will suffer physical harassment and ill-treatment, and that this may include sexual assault given the very high statistics of sexual assault against disabled girls and women. The fact that she will be unable to run means that her chance of avoiding assault is less than that of able bodied women. Furthermore, her opportunities for education are extremely limited, especially considering that she and her mother would be living in a rural area. The sources indicate that many schools exclude disabled people and there are few private schools available in rural areas. Her chances of finding a job are minimal as there is discrimination against disabled persons in the workplace. While her mother may be able to support her currently, if anything happened to her mother, she would be unable to support herself. As she will be living in a rural area, the chances of societal discrimination are high, as attitudes are much more conservative in rural areas and are also prevalent to a lesser degree in urban areas. Considering all these aspects cumulatively, the Tribunal is satisfied that the harm she would suffer would be serious, in that there is a real chance of serious physical harassment or ill-treatment as well as a denial of access to services which would threaten her ability to subsist or earn a livelihood.

14. The Tribunal is also satisfied that the persecution would involve systematic and discriminatory conduct (s91R(1)(c)), in that it would be non-random, deliberate and pre-meditated. [26] The country sources indicate that there is selective harassment against disabled people and the harm that the applicant would face would involve serious harm directed at her because of her disability.

    [26] See Mima v Haji Ibrahim (2000) 204 CLR 1; VSAI v MIMIA [2004] FCA 1602

15. The Tribunal is not satisfied that state protection would be available for the applicant. According to the United States Department of State Report on Human Rights Practices for 2015, government institutions often were uninformed about disability and did not implement the law and provided poor service delivery to people with disability.[27] Furthermore, sources indicate that laws against rape are not effectively enforced. Chiefs of local jurisdictions usually handled gender-based violence in trials applying customary law. Police sometimes did not act on reported rape cases if the perpetrators were aligned with ZANU-PF.[28] Given the attitudes to disabled people, and disabled women particularly, the Tribunal is not satisfied that state protection would be available to her.

    [27] United States Department of State, Country Reports on Human Rights Practices for Zimbabwe 2015, 2016, – accessed 9 June 2017

    [28] Khupe, The Zimbabwean , ‘Disabled used as guinea pigs’, 2 July 2010, – Accessed 27 July 2010

16. The Tribunal is not satisfied that the harm would be localised to a particular region, as there is a real chance of serious harm all over the country. The Tribunal is not satisfied therefore that the applicants would be able to safely relocate to a different region. The Tribunal is also not satisfied on the evidence before it that the applicants have the right to enter and reside in a safe third country.

17. The Tribunal is satisfied therefore that there is a real chance of serious harm to the second-named applicant were the applicants to return to Zimbabwe, for reasons of her membership of the particular social group, people with a disability.

18. The Tribunal is satisfied therefore that the second-named applicant has a well-founded fear of persecution for a Convention reason were she to return to Zimbabwe in the reasonably foreseeable future.

    Member of the family unit

19. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant 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 expression is defined in r.1.12 of the Regulations to include a parent.

20. The Tribunal is satisfied therefore that the first-named applicant is a member of the family unit of the second-named applicant.

    Section 438 Certificate

21. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folio 155 of the Department file would be contrary to the public interest, because these folios contain information relating to “an internal working document and business affairs”. In the Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal disclosed the information to the applicant, and further notes that, in any event, the information in this folio is not relevant to this decision, as it is information concerning a checklist of information provided to the Department and is not of probative value to this review. The Tribunal has not taken account of information in these folios.

    CONCLUDING PARAGRAPHS

22. For the reasons given above the Tribunal is satisfied that the second-named applicant is a person in respect of whom Australia has protection obligations. Therefore the second named applicant satisfies the criterion set out in s.36(2)(a).

1. The Tribunal is satisfied that the first-named applicant is a member of the same family unit as the second-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the second-named applicant’s application. It follows that the first-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

2. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the second-named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the first-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.

   Jane Marquard
   Member

   
   

   Attachment A

   RELEVANT LAW

3. 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

4. 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).

5. 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.

6. 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.

7. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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

14. 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’).

15. ‘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.

16. 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

17. 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

18. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant 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 expression is defined in r.1.12 of the Regulations to include parent/child.