1614206 (Refugee)

[2019] AATA 5958

1614206 (Refugee) [2019] AATA 5958 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614206

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Linda Symons

DATE:19 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 June 2019 at 4:53pm

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – executrix of former partner's deceased estate – unpaid wages of US$4,000,000 owed by Zimbabwean government – death threats – credibility issues – continued working for several years without pay – unpaid wages not part of declared estate – no steps taken to recover money owed – no harm ever occurred to the applicant or her family – conduct not consistent with fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), 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 on 11 August 2016 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, arrived in Australia [in] December 2015 as the holder of a [Visitor visa]. On 2 February 2016, she applied to the Department of Home Affairs (the Department) for a Protection visa and was granted an associated Bridging visa. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 5 September 2016, she applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Shona and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, [Mr A], who attended the hearing.

5. The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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 because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

10. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She was appointed the Executrix of her former partner, [Mr B]’s, estate. His estate is owed in excess of US$4,000,000.00 from the government of Zimbabwe [and] a company called [Company 1] which is owned by a relative of the current President of Zimbabwe.

    ·She has suffered trauma in the form of anonymous telephone calls warning her to back off, deflated tyres on her car on more than two occasions, being followed by another vehicle on several occasions and “suspicious vehicles” parked outside her apartment on several occasions.

    ·She shared this information with [Mr B]’s brother who informed her that [Mr B]’s life was under threat until he died and that he went into hiding at one stage. She has not sought help from the authorities as it is too dangerous to do so. The estate’s claims implicate top government officials in fraud.

    ·Threats against her life were more pronounced from June 2015 until she left Zimbabwe. She was appointed as the Executrix of [Mr B]’s estate in May 2015. This shows that the perpetrators had inside information about the case. Threats to her life have been endless.  

    ·The [Zimbabwean government] is involved in State security and she is lucky to be alive. There is nowhere to hide in Zimbabwe. She has minor children and aged parents and relocating would not have helped.

    ·She is unable to seek State protection because of corruption in the government and because people in the [government] are seeking to prevent disclosure of details of the money owing to her former partner.

13. The applicant has provided to the Department copies of her Zimbabwean passport, educational qualifications, work references, application by [Mr C] to the High Court, Letters of Administration dated [in] April 2015, her twin sons’ Birth Certificates and passports. She has also provided copies of her former partner’s Curriculum Vitae, passport, Birth Certificate and Certificate of Death.

14. The applicant attended an interview with the Department on 26 July 2016. During that interview, she re-iterated and expanded on her written claims. She claimed that she was being targeted by the Zimbabwean government.

15. The applicant has filed with the Tribunal an Echocardiography Report dated 30 April 2018 in relation to [Child D], a quotation from [Dr E], [medical specialist], dated 16 July 2018 in relation to [Child D], an email dated 10 December 2018 confirming transfer of the sum of [amount], a notification of payment dated 2 October 2018 from [Bank 1], email correspondence dated 13 December 2018 between her and [Dr E], a printout of an ANZSCO Classification of Occupations and country information on Zimbabwe.

16. On 23 January 2019, the Tribunal received pre-hearing submissions from the applicant’s migration agent.

    Receiving country

17. The applicant claims to be a citizen of Zimbabwe and has provided a copy of her Zimbabwean passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Zimbabwe. The Tribunal finds that Zimbabwe is her receiving country for the purpose of assessing her claims for protection.

    Third country protection

18. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

19. The applicant gave evidence that she prepared her application for a Protection visa herself. She stated that she is satisfied that her visa application is accurate and complete.

20. During the hearing, the Tribunal discussed with the applicant her family, education, employment, where she lived in Zimbabwe, her travel to [Country 1], her relationship with [Mr B], her reasons for leaving Zimbabwe and why she fears returning to Zimbabwe. The Tribunal found aspects of her evidence to be vague, implausible, contradictory and unconvincing. Her conduct in Zimbabwe and in Australia was not consistent with her claims. The Tribunal has concerns in relation to the credibility of her claims for the following reasons.

21. The applicant gave evidence that she first met [Mr B] in 1982 when he was [employed] at her school. She stated that after leaving school she commenced a relationship with him. She stated that they became engaged in 1987 but never got married. She stated that they lived together as partners from 1988 to 1991. She stated that they had a son named [Child F] (born on [date]). She stated that they separated by the time [Child F] was [age]. She stated that he maintained contact with [Child F] after they separated and she sometimes spoke to him when he picked up [Child F].

22. The applicant gave evidence that she commenced a relationship with a man named [Mr G] in 1998 and they were together until about July 2000. She stated that they had twin sons from their relationship being [Child D] and [Child H] (born on [date]). She stated that when the twins were [age] they separated. She stated that during the time that she was in a relationship with [Mr G] she had no contact with [Mr B] and a relative used to take [Child F] to him. She stated that after her relationship with [Mr G] ended she resumed contact with [Mr B]. She stated that [Mr B] wanted them to reconcile and become a couple again but she declined to do so.

23. The applicant gave evidence that she thereafter maintained contact with [Mr B] from time to time. She stated that he became ill in the last two years before his death (on [date]) and needed [treatment]. She stated that he had hit “rock bottom”. She stated that she would sometimes drive him to see the doctor and help him when she could. She stated that he used to talk about his project, wanting to get better and recover money that was owed to him. She stated that following his death, in early 2013 his brother [Mr C] made an application to the High Court in Zimbabwe for Letters of Administration appointing her the Administrator. She stated that she received notification from the High Court in Zimbabwe [in] 2015 that she had been appointed the Administrator of [Mr B]’s estate.

24. The applicant gave evidence that [Mr B]’s assets consisted of a vacant block of land, a stand in Harare and outstanding wages. She was not aware of whether he had any debts. When asked for the details of how and why he had outstanding wages of US$4,000,000.00, her evidence was vague, lacking in detail, contradictory and implausible. She stated that he was employed by the Zimbabwean [government] to undertake [Project 1] and worked on this project from 1998 to 2006. She did not have a copy of his employment contract and was vague about the details of the project. She stated that after the project was approved by the President the money was released. He stated that when he found out that the money had been released he started following up the money that was owed to him.     

25. The applicant gave evidence that [Mr B] used his own resources to “get things going”. When asked why it would have taken 8 years to implement [Project 1], she responded that she did not know and speculated that it could have been the government he was dealing with, technicalities or slow progress. When asked how he made a living if he worked for the [government] for 8 years and did not get paid, she responded that she did not know. She then stated that he worked on other things. When asked whether he completed the project for the [government] in 2006, she responded that according to him he had done enough work for the project to be adopted by the government.

26. The Tribunal asked the applicant what other work [Mr B] was doing and she responded that he was doing some consulting for a company called [Company 1]. She stated that he was part of a group of consultants doing a [study] for [Project 2]. She stated that his Resume indicates that he started working on [Project 2] in August 2006. She stated that he was not paid for his consultancy work for [Company 1] on [Project 2]. When asked if the other consultants were paid for their work, she responded that she did not know. When asked if his employment contract made provision for payment by instalments, she responded that she has not seen the employment contract but it was signed and lodged with Deloitte and Touche.[1]

    [1] An international accounting and professional services organization. (>

    The Tribunal asked the applicant when [Mr B] stopped working on [Project 2]. She responded that his health was failing in the last 2 years of his life. She guessed that he might have stopped working a year before he passed away. She stated that most of the work had already been done on the [study]. When asked if the [project] was ever built, she responded not to her knowledge.

27. The applicant gave evidence that [Mr B] had another job whilst working on [Project 2]. She stated that his second job was as a [Occupation 1] running the day to day affairs of a business owned by [Mr I]. She stated that, to her knowledge, he was not paid for the work he did as [Occupation 1]. She stated that the last information she had was that [Mr I] owed him money for his work as [Occupation 1] and for [Project 2]. She was not aware of when he stopped working as [Occupation 1].

28. The Tribunal asked the applicant how [Mr B] supported himself financially if he was not being paid for the work he did for [Company 1]. She responded that she could not answer that. She stated that his brother would “chip in”. She stated that his Resume states that he did some [work] for [Project 3] between February and April 2006. When asked what he did to recover the money that was owing to him, she responded that he pursued his money and it was blocked. She stated that his brother said he pursued the money, his life was threatened and he had to go into hiding. When asked for the details on how he pursued his money, she responded that he said ‘I am pursuing the money’ and ‘I have not been paid’. She stated that it was general talk. She was unable to provide any further details.

29. The Tribunal asked the applicant whether [Mr B] had commenced legal proceedings to recover the money owing to him. She responded “not to my knowledge”.  She stated that he approached a lawyer around the time he was getting threats. She stated that they both agreed that he needed to lie low until there was a clearer way to pursue the debt. She stated that he was using whatever channels he had to recover the money. When asked whether he lodged a complaint with the Treasury, she responded that she did not have that information. She stated that someone in the Treasury may have informed him that the money had been released but she is not sure.

30. The Tribunal finds the above evidence to be implausible for a number of reasons. First, it is implausible that [Mr B] would have worked in three different jobs between 1998 and approximately 2011 and not be paid for any of these jobs. It is highly unlikely that he would have continued to work for an employer for several years whilst not being paid for the work he was doing. The Tribunal raised as an issue with the applicant the implausibility of her claim that [Mr B] worked for the Zimbabwean government from 1998 to 2006, did not get paid and continued working there unpaid.

31. The applicant responded that [Mr B] put in his own resources to keep things going. She stated that he had “sunk his own money”. When the Tribunal again pointed out that he worked for years without being paid, she responded that he used to help [another] company. The Tribunal noted that his Resume indicated that that was between 1989 and 1993. She agreed and stated that they have “combis” and mini buses to transport people. Her response does not address the issue raised with her or alleviate the Tribunal’s concerns.

32. Second, it is implausible that [Mr B] would have been able to support himself financially between 1998 and approximately 2011 if he was not being paid for the work he did. The applicant was unable to offer an explanation for how he supported himself financially during this period other than to say that his brother would “chip in”. There is no evidence before the Tribunal that his brother was supporting him financially during this period or that he had an alternate source of income throughout this period.

33. Third, it is implausible that [Mr B] was owed in excess of US$4,000,000.00 from the Zimbabwean government and [Company 1] for the work he did. The applicant has provided a copy of [Mr B]’s Resume to the Department. It indicates that he collaborated in proposing a development of a large [project] to the Zimbabwean government. It states that the Zimbabwean government adopted the project and committed funds to commence the implementation of the project. This tends to indicate that [Mr B] was not the sole person responsible for the project but that he collaborated with others. It also tends to indicate that Zimbabwean government committed the funds for the implementation of the project and funds were therefore available for the payment of wages. The sum of US$4,000,000.00 is a large sum of money in the USA and is an astronomical sum of money in Zimbabwe. It is implausible that [Mr B] could have earned that sum of money for the work he was contracted to do.

34. In these circumstances, the Tribunal has serious doubts that [Mr B]  would have been entitled to receive in excess of US$4,000,000.00 or anything even remotely close to that for the work he did for the Zimbabwean government and [Company 1]. The Tribunal raised this as an issue with the applicant and noted that it had concerns in relation to the credibility of her claim that he was owed in excess of US$4,000,000.00 in unpaid wages. She responded that [Mr B] was the lead person on the [project]. She stated that he collaborated with others. She stated that he was going to have his fair share of the project and was the “brainchild of the project”. The Tribunal is not convinced by this response and it does not alleviate the Tribunal’s concerns.

35. Fourth, in his Affidavit dated 30 December 2015, [Mr C] stated that [Mr B] worked on two projects that were managed by Deloitte and Touche. If this international company was the project managers, then the Tribunal would expect them to be responsible for ensuring that [Mr B] was paid. The Tribunal raised this as an issue with the applicant and noted that it raised further concerns in relation to the credibility of her claims that [Mr B] was owed in excess of US$4,000,000.00 in unpaid wages.

1. The applicant responded that the two projects were separate projects. She stated that Deloitte and Touche “came in as a guarantor as to who will get what”. She stated that [Mr B] told her that he wanted everything to be above board. She stated that he did not want to work and not get paid. She stated that it was so that everyone could get their money. She stated that the owner was [Mr I]. She stated that it was a private company. She stated that she had a document which shows that it was a project worth US$[Amount 1].

2. The Tribunal sought to clarify the applicant’s evidence and asked her whether she was suggesting that Deloitte and Touche were the auditors of the projects. She responded that they had a contract with the [employees] and [Mr B] was one of the [employees]. When asked whether [Mr B]’s contract was between him and Deloitte and Touche, she responded that it is her understanding that Deloitte and Touche was “the custodian of the contract with [Company 1]”. When asked what she meant by that, she stated that it was so that the agreement on payment would not disappear. She stated that it was the way of locking in the agreement.

3. The Tribunal would expect that, in the circumstances, [Mr B] would have been able to seek the assistance of Deloitte and Touche to recover his unpaid wages. The Tribunal is of the view that this would have been the most obvious option, the cheapest and possibly the most effective way to recover the money owing to him. When the Tribunal put this to the applicant, she responded that this is what happens when there is corruption. When asked why [Mr B] did not just go to Deloitte and Touche and get them to solve the problem, she responded that it is a problem of political pressure. She stated that they were stifling the release of money. She stated that he pursued his money and was not paid. The Tribunal is not persuaded by this response and it does not alleviate the Tribunal’s concerns.

4. The Tribunal raised as an issue with the applicant its doubts that [Mr B] would have worked between 2006 and approximately 2011 and not be paid for his work. She responded that he had no money when he died. She stated that, if he had money, he would have been able to attend to his medical needs. She stated that he could not afford [medical treatment] and had [Medical Condition 1]. She stated that he had been reduced to nothing.

5. The applicant has provided to the Department copies of [Mr B]’s Death Certificate, Letters of Administration dated [in] April 2015 issued by the High Court and a letter dated [in] April 2015 from the Master of the High Court to the applicant. The Death Certificate indicates that [Mr B] died on [date] and the cause of death was [Medical Condition 1]. The Letters of Administration are dated [in] April 2015 and indicate that the applicant had been appointed the Executrix to administer [Mr B]’s estate.

6. The letter from the Master of the High Court enclosed the Letters of Administration and instructed the applicant to undertake a number of tasks. Firstly, she was required to advertise for debtors and creditors within 14 days, she was required to lodged the Executors Inventory with the High Court within 42 days and she was required to lodge an Account of Administration with the High Court within six months of the date of issue of the Letters of Administration.

7. The Tribunal asked the applicant what she did after she was appointed the Executrix to administer [Mr B]’s estate. She responded that she started receiving threats and a telephone call from someone who told her to ”drop the case”. She stated that she informed [Mr C] that she had received the Letters of Administration. She stated that they discussed the telephone calls and threats she was getting and decided to leave things and see what happened. She stated that if they had advertised in the paper it would have shown that they were in “full pursuit”. When asked whether that meant that she did not do anything to administer the estate, she responded that she “slowed down” and discussed it with [Mr C].

8. The Tribunal asked the applicant whether she advertised for debtors and creditors as required to do by the High Court and she responded “not yet”. When asked whether she prepared and lodged an Executor’s Inventory as required, she gave a long rambling answer and eventually stated “we did not pursue it”. When asked whether she informed the High Court that she was not following its directions, she responded “not yet”.

9. The Tribunal asked the applicant whether she did anything to recover the money owed to [Mr B]’s estate after she was appointed the Executrix to administer his estate. She responded that she did not do anything. She stated that if she advertised “whoever owed him would come up” and she was not going to do that. She stated that she had a discussion with his family in relation to her being the administrator up to a point. She stated that, at some point, she was going to hand it over to a lawyer to handle it for them. She stated that it was not something she was going to do.

10. The Tribunal asked the applicant whether she consulted a lawyer to administer [Mr B]’s estate. She responded no. She stated that she saw a lawyer “on the side” and was advised that the most critical point was to register the estate. She stated that they did not consult an “official lawyer”. The Tribunal asked her why she applied for Letters of Administration if she had already made a decision not to administer [Mr B]’s estate. She responded that a lot is happening in the country, the threat continued, she did not feel comfortable doing that and said she would withdraw and see how things go.

11. The Tribunal asked the applicant who was going to pay for the lawyer. She responded that they were going to ask that it be paid for from the proceeds. When asked what proceeds she was referring to, she responded from the monies [Mr B] was owed. When the Tribunal pointed out that there was no guarantee that the money would be recovered, she responded that they are confident that at some point the money will be recovered. When asked whether she had done anything to recover the monies owing to [Mr B]’s estate since coming to Australia, she responded no. When asked whether [Mr C] had done anything to recover the monies owing to [Mr B]’s estate, she responded that to her knowledge he has not done anything.

12. The Tribunal asked the applicant whether she intended doing anything to recover the monies that were owing to [Mr B]’s estate if she returned to Zimbabwe. She responded that if it is a safe environment and it is something that a competent lawyer can follow up, she would. When asked what would make it a safe environment, she responded that the people involved in [Mr B]’s case are politicians and a more tolerant government would make it safe. She stated that where there is no accountability for human rights people disappear and you never hear from them. When asked whether she was saying that she would wait until the government changes, the political situation in Zimbabwe changes and it is safer before she applies, she responded yes. She stated that she is mindful that she has family in Zimbabwe and does not think it is safe for them. She stated that she has no rights in Australia

13. The Tribunal asked the applicant why she has no rights in Australia and she responded that she has no protection. When asked what that had to do with her pursuing the money that was owed to [Mr B]’s estate, she responded that people on the ground are not protected. She stated that Australia may not give her protection and she would have to return to Zimbabwe. She stated that her hands are tied and she does not know what to do. When asked what the likelihood was of the situation in Zimbabwe changing, she responded that they never thought the last President would lose power. She stated that she is confident that citizens will be brave and stand up if it is not right. She stated that, at some point, she is sure that they can “start the claim” on behalf of [Mr B]’s estate.

14. The Tribunal discussed with the applicant the threats that she claims to have received. She stated that she first had a problem in early 2013. She stated that the tyres in her car were deflated but she brushed it off because everyone gets that. She stated that she then received a telephone call and the caller told her to “stop pursuing the estate”. She stated that she put it all together and realised that the deflated tyres had to do with [Mr B]’s estate. She stated that between mid-2013 until she left Zimbabwe in December 2015 she received over twenty anonymous telephone calls on her mobile telephone. She stated that it started when she started to lodge the application for Letters of Administration with the High Court. She stated that most of the time the caller kept quiet and she heard heavy breathing. She stated that on one occasion a male voice said “stop this estate you are following up on” and hung up. She stated that she did not report the telephone calls to the Police.

15. The applicant gave evidence that the tyres on her car were deflated on about three occasions. She stated that on one occasion she was returning from work when she noticed that a tyre was deflated. She stated that she managed to get people to help her. She stated that on another occasion she was driving when she felt the car was not right. She stated that she went to a service station and the people there helped her. She stated that on another occasion she noticed a car following her, went to a service station and screamed that she was being followed. She stated that the car took off. She stated that her windscreen wipers were ripped off. She stated that she noticed cars parked adjacent to her balcony.

16. The Tribunal asked the applicant whether she took down the number plates and she responded that the car parked near her house did not have a number plate. When asked whether she took a photograph of the car, she responded that she did not as she was too scared. When asked why having a car parked adjacent to her balcony was a problem, she responded that she got a feeling that her movements were being watched. She stated that on one occasion she drove around the block and the car was not there. She stated that all these incidents took place in 2015 after she started “pursuing [Mr B]’s estate”. She stated that she did not report any of these incidents to the Police.

17. The applicant stated that on one occasion, in 2012 and prior to [Mr B]’s death, she was robbed at a service station. She stated that the thieves grabbed her laptop. She stated that she reported that incident to the Police. The Tribunal noted that there is a high rate of crime in Zimbabwe.[2] She responded that she would not put it at high. She stated that there is crime in Zimbabwe and the situation is exacerbated by economic hardship. She stated that compared to other countries Zimbabwe is a fairly peaceful country. She stated that people are pushed by circumstances surrounding the economy. She stated that after these incidents she feared for her life.

    [2] Poverty crime on increase, Daily News Live, 2 September 2018. (>

    The Tribunal asked the applicant what she thought would happen if she returned to Zimbabwe. She responded that her life is in danger. She stated that when you are in danger you know it and feel it. She stated that, “based on what is on the ground”, she does not feel safe in Zimbabwe and fears for her life. The Tribunal noted that if these people wanted to harm her they had plenty of time and opportunity to do so before she left Zimbabwe in December 2015. When asked why they would now be interested in harming her, she responded that they know that she can still go ahead with the claims. She stated that she has already exposed them by pursuing [Mr B]’s estate and they know it is real. When asked how she has exposed them, she responded “by wanting to follow the estate.” She stated that they made the effort to say that they were going to register.

18. The Tribunal noted that she could have taken steps to have ownership of [Mr B]’s land transferred to [Child F]. She agreed and stated that they know it is more than the land. She stated that if it was just the land she does not think they would be threatened. The Tribunal noted that it only becomes a threat if she does something to recover the money. She responded “by registering the estate”. She stated that her life was already threatened and people are already out there waiting for her. The Tribunal noted that once she got the Letters of Administration she could have pursued the debts. The Tribunal noted that they could have harmed her then but did not. She responded that it does not take away the threat. She stated that if she returns to Zimbabwe anything could happen to her.

19. The applicant gave evidence that the economic situation in Zimbabwe has affected her but that is not the reason why she came to Australia. She stated that she fears for her life. She stated that she is turning [age] years old, is single, has aged parents and other family in Zimbabwe and it is not easy being away from family. She stated that she had not planned to leave Zimbabwe and it was not easy to make the decision to see what Australia could do for her.

20. The Tribunal has a number of concerns in relation to the above evidence. First, the applicant initially gave evidence that the incidents of harassment started in early 2013 beginning with the tyres on her car being deflated. During her evidence she made a new claim that the windscreen wipers on her car were ripped off. Later in her evidence, she stated that all the incidents took place in 2015. This contradiction in her evidence and the new claim raise concerns in relation to her credibility and the veracity of her claims. 

21. Second, the documents provided from the High Court have a file number ([number]) which tends to indicate that the file was opened in 2014 when the application for Letters of Administration was filed. If the application for Letters of Administration was filed in 2014, there was no reason why [Mr B]’s debtors would have had any concern about the applicant administering his estate prior to then. It is therefore implausible that they would have been harassing and threatening her from early 2013 as claimed. This raises further concerns about her credibility and the veracity of her claims.

22. Third, the applicant’s evidence is that the application for Letters of Administration was prepared by [Mr C]. She stated that an inventory of [Mr B]’s assets and liabilities had to be prepared and lodged with that application. She stated that the money owing to him from unpaid wages from the [government] job and [Project 2] was not included in the inventory of [Mr B]’s assets and liabilities because they were afraid that it would raise a lot of issues. She stated that they were not aware of whether he had any debts and the assets included in the inventory were the stand he owned in Harare and the vacant block of land. 

23. If the sum of US$4,000,000.00 was owing to [Mr B]’s estate, the Tribunal would expect her to have included unpaid wages in the inventory of assets and liabilities and indicated that those monies were yet to be recovered. The Tribunal is of the view that the failure to include the unpaid wages in the inventory of assets and liabilities is significant as it indicates that there was either no outstanding wages to recover or that no action was going to be taken to recover the outstanding wages on behalf of [Mr B]’s estate. This raises concerns in relation to the credibility of this claim.    

24. Fourth, if the people the applicant fears had access to the records of the High Court as she claims, they would have been aware that the assets of [Mr B]’s estate, as disclosed in the inventory of assets and liabilities, did not include the money owed to him in unpaid wages. This would also have indicated to them that, as it was not part of his declared estate, there was no plan to take action to recover the unpaid wages. Therefore, there was no need for them to feel threatened or to harass or intimidate the applicant. This raises concerns in relation to the credibility of her claims.   

25. Fifth, if the only assets disclosed in the application for Letters of Administration were a vacant block of land and a stand in Harare and the estate had no debts, administering [Mr B]’s estate and following the directions made by the High Court would not have presented a threat or been of adverse interest to anyone. It would only have benefitted [Child F], the applicant’s eldest son and [Mr B]’s next of kin. However, the applicant’s evidence indicates that, although she agreed to be the Administrator, she was not willing or able to administer the estate herself and did not have the resources to pay for a lawyer to do it on her behalf. This may lead the Tribunal to the conclusion that this was the reason why [Mr B]’s estate was not administered and not for the reasons claimed.

26. Sixth, the evidence before the Tribunal is that the applicant has not taken any steps to recover the unpaid wages owing to [Mr B]’s estate. Neither she nor her family have been harmed even after she was granted Letters of Administration. The people she fears have had plenty of time and opportunities to harm her if that was their intention. This may indicate that they have no intention of harming her now particularly as the time to administer [Mr B]’s estate has long expired.

27. When the Tribunal raised this as an issue with the applicant, she responded that it was not a decision she took lightly. She stated that her life was in danger in Zimbabwe. She stated that sometimes she could have died and no one would have known. She stated that it does not remove the threat on her life 3 years later. Her responsive does not overcome the many concerns the Tribunal has in relation to her credibility and the veracity of her claims.

28. Seventh, applicant has claimed that it is her intention to seek to recover the unpaid wages and that she will do so when the environment is safe. The directions made by the High Court require that [Mr B]’s estate be administered and an Account of Administration be filed on or before 30 October 2015. The Tribunal would expect that if her expressed intentions are genuine, she would have obtained some legal advice on what rights she has to pursue the recovery of unpaid wages on behalf of [Mr B]’s estate at a later date. Her evidence to the Tribunal is that she has not sought any legal advice in this regard.

29. The applicant’s last job was as a [Occupation 2] at a [business] in Harare. The Tribunal would expect that, at the very least, she would have spoken to a [lawyer] and obtained some advice/information in relation to her rights. Her failure to do so raises serious doubts about her expressed intention to pursue the recovery of unpaid wages on behalf of [Mr B]’s estate at a later date. It also raises issues in relation to her credibility and the veracity of her claims.

30. Eighth, throughout her evidence the applicant claimed that she received death threats. However, her evidence is that the only contact she had with the people she claims to fear was in one telephone conversation when a male voice said “back off” or, alternatively, “drop the case”, or, alternatively, “stop pursuing the estate”, or, alternatively, ““stop this estate you are following up on”. When the Tribunal asked her whether she was construing a telephone call when someone told her to “back off” as a death threat, she responded that “the way they said it was final”. The Tribunal does not find this response to be convincing and does not accept it. This raises further concerns in relation to her credibility and the veracity of her claims. 

31. Ninth, the applicant’s evidence to the Tribunal that she had not planned to leave Zimbabwe and that it was not an easy decision to make to see what Australia could do for her is not consistent with her earlier evidence to the Tribunal that she was looking at prospects of going overseas, had done some research, had done an IELTS test on 7 February 2015 as that was one of the requirements, was looking at studying in [Country 2] and had applied for jobs in [Country 1], [Country 2] and Australia. This may lead the Tribunal to the conclusion that it was her intention to find work in [Country 1], [Country 2] or Australia and by obtaining a Visitor visa to come to Australia and then applying for a Protection visa she was able to work in Australia. This raises further concerns in relation to her credibility and the veracity of her claims. 

1. Tenth, the applicant’s conduct in Zimbabwe was not consistent with her claims. Her evidence to the Tribunal is that she feared for her life in Zimbabwe. Her evidence is also that she has done numerous trips to [Country 1]. She stated that she owned a shop and used to travel to [Country 1] to buy stock for her shop. She also stated that one of her twin sons underwent [surgery] in [Country 1] and she would travel there with him for check- ups with the [medical specialist]. The Tribunal would expect that if she genuinely feared for her life in Zimbabwe she would have travelled to [Country 1], a place she was familiar with and which was easier, quicker and cheaper to get to than Australia, and claimed asylum there.

2. The Tribunal raised this as an issue with the applicant and noted that her conduct was not consistent with her claims and raised concerns in relation to the credibility of her claims. She responded that [Country 1] is very close to Zimbabwe. She stated that they have heard of cases of people trying to seek asylum in [Country 1] and getting haunted there. She stated that they use the crime there to eliminate people. She stated that she considered it but it was not something she was comfortable with as a single parent. She stated that she was going to take the twins with her.

3. When the Tribunal pointed out to the applicant that she was already applying for jobs in [Country 1], she agreed and stated that she was not considering seeking asylum there. She stated that she was going for a job without raising the alarm that she was being followed. The Tribunal pointed out to her that her evidence was contradictory as she was stating, on the one hand, that it was not safe for her seek asylum in [Country 1] but, on the other hand, she was applying for jobs there.  She responded that she did not believe that [Country 1] was safe for her.

4. The applicant’s response does nothing to alleviate the Tribunal’s concerns. The contradictions in her evidence raise further concerns in relation to her credibility and the veracity of her claims.

5. Eleventh, the records of the Department indicate that the applicant was granted a Visitor visa [in] December 2015. However, she did not arrive in Australia until [9 days later in] December 2015. The Tribunal would expect that if she feared for her life she would have left Zimbabwe immediately after she received the Visitor visa. Her delay in arriving in Australia after she was granted the Visitor visa is not consistent with her claims. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that it raised concerns in relation to her credibility and the veracity of her claims.

6. The applicant responded that she was coming to Australia for a wedding. She stated that the Visitor visa did not come on time for her to book a flight and she missed the wedding. She stated that she had to book a flight and make sure she” tidied things up”. Her response does not address the issue raised with her or alleviate the Tribunal’s concerns.

7. The applicant’s migration agent submitted that 9 days delay in leaving Zimbabwe after being granted a Visitor visa is not an unreasonable amount of time. He submitted that 9 days in not here or there in relation to safety. The Tribunal accepts that a delay of 9 days to depart a country after receiving a Visitor visa is not an unreasonable amount of time in normal circumstances. However, if a person has received death threats, genuinely believes that their life is in danger and fears for their life, even one day can make the difference between life and death.

8. Twelfth, the applicant’s conduct in Australia has not been consistent with her claims. The records of the Department indicate that she arrived in Australia [in] December 2015 on a temporary Visitor visa. She did not apply for a Protection visa until 3 February 2016. The Tribunal would expect that if her life was at risk in Zimbabwe she would have applied for a Protection visa as soon as possible after her arrival in Australia. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that her delay in applying for protection in Australia raised concerns in relation to her credibility and the veracity of her claims.

9. The applicant responded that when she came to Australia she did not have anything to support her application. She stated that her friend and her husband did not know that she had this case. She stated that after congratulating them on their wedding she told them about her situation in Zimbabwe. She stated that she looked at returning to Zimbabwe and the risks involved and felt that returning to Zimbabwe was too risky. She stated that she would never have left Zimbabwe without her children. She stated that she felt that she had dumped them. She stated that she knew that applying for a Protection visa could take a long time. She stated that, during the intervening period, she tried to apply for Visitor visas for her twins and that caused the delay. She stated that the application for visas for her twins was refused so she then applied for a Protection visa. She stated that it is better for them to know that their mother is alive than for her to go back and be killed. She stated that it was hard to weigh her options.

10. The Tribunal accepts that the applicant’s priority was to bring her twin sons to Australia and when she was unable to obtain visas for them she applied for a Protection visa. This does not alleviate the Tribunal’s concerns.

11. Thirteenth, the applicant wrote a letter dated 31 March 2016 to the Department in which she stated that her twin boys were still in Zimbabwe and they were distressed. She stated that their performance at school had deteriorated. She stated that she assured them that she would do her best to bring them to Australia. The Tribunal raised this as an issue with her and noted that it may lead it to the conclusion that she applied for a Protection visa so that she could bring her twin boys to Australia to give them a better life here and not because she is in need of protection. 

12. The applicant responded that any parent would want the best for their children. She stated that she is not using this application to remain in Australia. She stated that her children were in school and were distressed. She stated that she also felt distressed. She stated that one of her twin sons has now finished High School. She stated that he almost dropped out last year. She stated that she told her twin sons that she came to Australia on a Visitor visa. She stated that she never told them that she came here to seek protection. She stated that she does not know how it will impact on their lives. She stated that she told them that she will bring them here when her visa is okay. Her response does not alleviate the Tribunal’s concerns.

13. Fourteenth, the applicant has provided to the Tribunal a Medical Report which indicates that her son, [Child D], has [Medical Condition 2] and underwent surgery in 1999 and 2003. It indicates that he requires further surgery. It indicates that she was required to pay a substantial sum of money for the surgery. She wrote to the Tribunal indicating that it is the equivalent of AU$20,000.00 and that she had managed to collect half that money from working in Australia and was trying to save the balance. The Tribunal raised this as an issue with her and noted that it may lead it to the conclusion that she applied for a Protection visa to extend her stay in Australia so that she could work here and earn the money to pay for her son’s surgery and not because she is in need of protection.

14. The applicant responded that she has been able to take [Child D] to [Country 1] even in the difficult environment in Zimbabwe. She stated that she has done her best. She stated that she has been working with a [medical specialist]. She stated that medical aid in Zimbabwe is a problem. She stated that foreign treatment is not guaranteed. She stated that the economic situation has not just affected her but has affected everyone else. She stated that she did not do it deliberately for that. She stated that she would not have left any stone unturned to get [Child D] the medical treatment he needed. Whilst the Tribunal has sympathy for her son’s medical condition and the financial and other demands on her, her response does not alleviate the Tribunal’s concerns.

15. The Tribunal has had regard to the Affidavit of [Mr C] dated 30 December 2015. In his Affidavit he referred to the applicant receiving anonymous telephone calls and threats to her life. He referred to [Mr B] receiving such threats from anonymous persons and at one time going into hiding in fear of his life. He referred to the two projects [Mr B] worked on and stated that he was not paid for his [work] on those projects. He referred to the applicant being appointed the Executrix of [Mr B]’s estate.

16. The Tribunal discussed the Affidavit of [Mr C] with the applicant. She stated that when she decided to lodge an application for a Protection visa she contacted [Mr C] and told him what was happening. She stated that he did not know most of the details and she provided them to him. She stated that he then provided her with an Affidavit which she submitted with her visa application. The Tribunal is of the view that the Affidavit of [Mr C] is a self-serving document. It was prepared by [Mr C] based on information provided to him by the applicant and was for the purpose of supporting her application for a Protection visa. [Mr C] is not an independent witness and his evidence has not been tested. In these circumstances, the Tribunal places no weight on his evidence. 

17. The Tribunal has had regard to the written and oral submissions made by the applicant’s migration agent and country information provided by him. The written pre-hearing submissions focus on the Department’s Decision Record dated 11 August 2016 and why the applicant’s migration agent disagrees with the findings and decision made by the delegate. Aspects of the submission are not consistent with the applicant’s own evidence. For instance, the submission states that [Mr B]’s family were unable or unwilling to step up and make “an application for probate” themselves. The applicant’s evidence is that the application for Letters of Administration was prepared by [Mr B]’s brother, [Mr C]. The written submission contained speculation and conjecture that was not based on the evidence.

18. As the proceedings before the Tribunal are by way of a hearing de novo, the Tribunal did not find these written submissions to be helpful.  

19. In oral submissions to the Tribunal, the applicant’s migration agent submitted that the applicant was asked a number of questions in relation to [Mr B]’s contract and the relationships between the various parties. He submitted that she was not living with [Mr B] at the time of his death and is therefore not aware of his contracts and relationships. He submitted that [Mr B]’s family pushed her or encouraged her to become the Executrix of his estate and that was not something she volunteered to do.

20. The applicant’s migration agent submitted that, as a result of the applicant volunteering to take on the role of Executrix in a situation where she was not aware of all the relationships between [Mr B] and the others, she stepped into a hornet’s nest. He submitted that she was harassed on the telephone. He submitted that she answered some of the telephone calls and not others. He submitted that there were people who she believed, rightly or wrongly, to be following her. He submitted that she was under the impression that they were from the [government] so going to the Police was not in her best interests.

21. The applicant’s migration agent submitted that the applicant had explained that she had been to the Police in the past. He submitted that it is a common question in the western world “why didn’t you just go to the Police?” He submitted that in many parts of the world the Police are more corrupt than the general public. He submitted that in Cambodia, Zimbabwe and South Africa that is not the appropriate pathway and can sometimes get you into more trouble than it is worth.  

22. The applicant’s migration agent submitted that the applicant did not try to exaggerate her position or make out that she was something that she was not. He submitted that if she did not know something she made it very clear that she did not know. He submitted that if she felt the Tribunal had the wrong end of the stick she spent some time to clarify what was said and what was not said. He submitted that she was being exceptionally honest and that was perhaps because she was the daughter of a [religious clergy]. He submitted that she did not explain away in such a way to tell the Tribunal what it wanted to hear. He submitted that sometimes her answers did not satisfy the Tribunal. He submitted that that was a good measure of an honest person.

    91.The applicant’s migration agent submitted that when the applicant was appointed Executrix and the pressure was put on her it was clear that the threats were still there and she was frightened. He submitted that one of the reasons she did not take the next step was because she was worried for herself and her children. He submitted that she had been to [Country 1] in the past and in desperation she was looking at options. He submitted that she was looking at whether she could go there and work or seek asylum. He submitted that she did neither of those things because [Country 1] is a dangerous place. He submitted that his practise is increasing with [people of Country 1] escaping because they have been mugged or car jacked two or three times in one month.

23. The applicant’s migration agent submitted that the applicant was asked whether she would chase the money if she went back. He submitted that that is hypothetical. He submitted that the reason she is here is because she does not want to go back. He submitted that she said she has family in Zimbabwe and was very torn. He submitted that she has elderly parents who are not well and children there. He submitted that for her to even come here without her family and make a claim is a brave step. He submitted that she is giving up something. He submitted that, if the Tribunal were to grant her asylum, she would not be able to return to Zimbabwe. He submitted that if she wanted to meet her family they would have to leave Zimbabwe and meet her in another country. He submitted that she loves Zimbabwe and the people there. He submitted that for her to leave Zimbabwe was not a small step.

24. The applicant’s migration agent submitted that, in relation to whether [Mr B] was owed the US$4,000,000.00 or not, that is again a question of conjecture. He submitted that she does not have those details and is going on instructions from [Mr B]’s family. He submitted that she believes that there is US$4,000,000.00 to be had. He submitted that it is clear that the money was released from the Treasury and it has gone into the hands of the local officials and local members who have split it among themselves. He submitted that [Mr B] did not get a cent of it.

25. The applicant’s migration agent submitted that in relation to how [Mr B] supported himself for all those years, the Tribunal was asking the applicant for hearsay. He submitted that most of the questions in relation to [Mr B]’s relationships with others are all hearsay and she has given the most honest answer she can and what she believes to be true. He submitted that she reasonably believes that money was owed to [Mr B]. He submitted that she reasonably took action to become the Executrix. He submitted that she did not follow on the next step because she was afraid and is still afraid. He submitted that the Tribunal makes a good point in relation to whether she would be able to take up the fight if she returns to Zimbabwe. He said it is a hypothetical and is conjecture and hearsay. He submitted that she is not in a position to answer one way or the other.

26. The applicant’s migration agent submitted that, in relation to the applicant’s delay of 9 days from being granted a Visitor visa to leaving Zimbabwe is not an unreasonable amount of time given the period of time she was in Zimbabwe at risk from the family. He submitted that she got here relatively quickly. He submitted that 9 days is not here or there in relation to safety.

27. The Tribunal has had regard to the country information provided by the applicant and her migration agent. The Tribunal has been provided with an internet printout of an article dated 21 January 2019 and titled ‘Zimbabwe crackdown challenged in Court’ which refers to legal challenges to a clampdown on dissent by the Zimbabwean government following violent protests against a fuel price rise. It refers to the government imposing sporadic internet blackouts and lawyers’ groups planning to challenge this in the High Court. It also refers to the fragile state of Zimbabwe’s economy and that South Africa had turned down a request for a loan. The Tribunal has been provided with an article dated 22 January 2019 from Daily News Live titled ‘Govt has no power to shut down internet’ which indicates that the High Court ordered the government to open internet access to Zimbabweans and stated in its judgment that the State Security Minister had no authority to shut down internet access to Zimbabweans.

28. The Tribunal has been provided with an article dated 22 January 2019 from Daily News Live and titled ‘Zim authorities face ICC threat’ which indicates that South Africa’s main opposition party, the Democratic Alliance, has called upon the South African President to take urgent steps to stop the ongoing crackdown against dissenting voices by Zimbabwean security forces. It refers to the Democratic Alliance being left with no option but to approach the International Criminal Court to consider a preliminary investigation if the President fails to intervene. It refers to human rights groups and medical doctors raising concerns about the abuse of ordinary Zimbabweans by security forces during the protests in January 2019.

29. The Tribunal has been provided with an undated article in Stratfor titled ‘Zimbabwe: Internet, Phone Networks Reportedly Unavailable as Protests Continue’ which refers to the protests in Harare in January 2019 and the government disconnecting telephone and internet networks. The Tribunal has been provided with an article dated 28 September 2018 and titled ‘Barely any movement as Mnangagwa creates anti-corruption mirage’ which is critical of the new Zimbabwean government’s anti-corruption drive and promises. The Tribunal has been provided with an article dated 28 September 2018 and titled ‘Khama urges corruption fight to gain investor confidence’ which refers to a former President of Botswana speaking at a conference and urging the Zimbabwean government to forge ahead with its anti-corruption fight to restore investor confidence and foster smooth economic transformation.

30. The Tribunal has been provided with an article dated 25 January 2019 in Strarfor titled ‘There is little Zimbabwe can do to reverse its economic rot’ which refers to the economic crisis in Zimbabwe. The Tribunal has been provided with an article dated [in 2012] which refers to [Project 2] and the sum of US$[Amount 1] being secured for the project.

31. The Tribunal accepts that the Zimbabwean government raised the price of gasoline and diesel in January 2019 and that this led to three days of protests in Harare. The Tribunal accepts that the Zimbabwean security forces sought to control the protests and used excessive force to do so. The Tribunal accepts that the government shut down access to the internet in an attempt to clamp down on dissent and that the High Court found that this was unlawful and ordered that internet access be restored. The Tribunal accepts that there is a currency crisis in Zimbabwe. The Tribunal accepts that corruption in government has been a long term problem in Zimbabwe, that the current government is on an anti-corruption drive and that there are critics of its efforts. The Tribunal accepts that there was/is a [Project 2] and that the funds for this project were secured.

    Other considerations

1. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Zimbabwe and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

2. Having considered all of the applicant’s claims, the evidence and the submissions, the Tribunal finds that the applicant is not a credible witness. The Tribunal finds that she fabricated some of her claims for the purpose of obtaining a Protection visa.

3. The Tribunal accepts that the applicant was born on [date] at Mutare in Zimbabwe. The Tribunal accepts that she was in a relationship with [Mr B] and they became engaged to be married in 1987. The Tribunal accepts that they started living together as a couple in 1988 but never got married. The Tribunal accepts that they have one child of their relationship, namely [Child F] (born on [date]). The Tribunal accepts that they separated in 1991 when [Child F] was [age].

4. The Tribunal accepts that the applicant commenced a relationship with a man named [Mr G] in 1998 and they were together until about July 2000. The Tribunal accepts that they have twin sons from their relationship, namely [Child D] and [Child H] (born on [date]). The Tribunal accepts that they separated in 2000 when the twins were [age]. The Tribunal accepts that [Child D] has [Medical Condition 2] and has had [surgery] in [Country 1]. The Tribunal accepts that he is required to undergo further [surgery] and the applicant has been working and saving money to pay for this surgery.

5. The Tribunal accepts that [Mr B] was one of the [employees] employed by the Zimbabwean [government] to undertake [Project 1] and worked on this project from 1998 to 2006. The Tribunal does not accept that he was not paid any money for the work he did for the [government] during this period. The Tribunal accepts that he was one of the consultants employed by [Company 1] to work on [Project 2] and worked on this project from 2006 until about 2011. The Tribunal does not accept that he was not paid any money for the work he did on [Project 2] for [Company 1] during this period. The Tribunal accepts that he was employed in a [specified] position at [Company 1] as well during this period. The Tribunal does not accept that he was not paid any money for the [work] he did at [Company 1]. The Tribunal does not accept that he was owed in excess of US$4,000,000.00 in unpaid wages.          

6. The Tribunal accepts that [Mr B] passed away on [date] from [Medical Condition 1]. The Tribunal accepts that he was not well for about 2 years prior to his death. The Tribunal accepts that his brother, [Mr C], lodged an application for Letters of Administration with the High Court. The documents provided from the High Court tend to indicate that the application was made in 2014 and not 2013 as indicated by the applicant. The Tribunal accepts that the only assets included in the application were a stand in Harare and a vacant block of land. The Tribunal notes that the applicant’s eldest son, [Child F], was nominated as [Mr B]’s only surviving relative. The Tribunal accepts that the applicant agreed to administer [Mr B]’s estate.

7. The Tribunal accepts that Letters of Administration were issued by the High Court [in] April 2015 and the applicant was appointed the Executrix. The Tribunal accepts that the Letters of Administration were accompanied by a letter from the Master of the High Court directing the applicant to undertake a number of tasks by specified dates and to provide an Account of Administration by 30 October 2015. The Tribunal accepts that the applicant did not comply with any of the directions made by the High Court. The Tribunal accepts that she did not have the money to employ a lawyer to administer [Mr B]’s estate on her behalf and has not done so.  

8. The Tribunal accepts that the applicant believes that [Mr B] was owed money in unpaid wages. The Tribunal accepts that she has no knowledge of his employment contracts with the [government] and [Company 1], has not contacted Deloitte and Touche to obtain copies of the employment contracts or to find out any information that may be relevant to administering [Mr B]’s estate and has not taken any other steps to ascertain the details of what money, if any, is owing to [Mr B]’s estate. The Tribunal accepts that she has not consulted a lawyer to obtain advice on how to recover money that may be owing to [Mr B]’s estate or about her standing to do so in the future.

9. The Tribunal is not satisfied, on the evidence before it, that [Mr B] was owed any money in unpaid wages prior to his death. It follows that the Tribunal does not accept that the applicant has any intention of commencing legal proceedings to recover money owing to [Mr B]’s estate if she returns to Zimbabwe now or in the reasonably foreseeable future.

10. The Tribunal accepts that the applicant may have had a flat tyre prior to leaving Zimbabwe. The Tribunal does not accept that it had anything to do with her administering [Mr B]’s estate. The Tribunal does not accept that she had deflated tyres on more than three occasions. The Tribunal does not accept that she received anonymous telephone calls or death threats. The Tribunal does not accept that someone telephoned her and told her to “back off” or, alternatively, “drop the case”, or alternatively, “stop pursuing the estate”, or, alternatively, ““stop this estate you are following up on”. The Tribunal does not accept that she was followed when in her car or that “suspicious cars” were parked outside her apartment or that people were watching her.

11. The Tribunal does not accept that [Mr C] informed the applicant that [Mr B]’s life was under threat until he died and that he went into hiding The Tribunal is of the view that these claims have been fabricated for the purpose of enhancing her prospects of obtaining asylum.

12. The Tribunal does not accept that the applicant left Zimbabwe for the reasons claimed or that she fears returning to Zimbabwe for the reasons claimed. The Tribunal does not accept that she is of adverse interest to the Zimbabwean authorities and/or [Company 1] and/or [Mr I]. The Tribunal does not accept that she is unable to obtain State protection.

13. The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Zimbabwe now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?   

14. Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of her actual or imputed political opinion, membership of a particular group or any other reason set out in s.5J(1)(a) of the Act if she returns to Zimbabwe now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary      protection criterion?

15. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

16. Having considered all of the applicant’s claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Zimbabwe now or in the reasonably foreseeable future.    

17. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

19. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criterion in s.36(2) of the Act.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Linda Symons
              Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (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.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …