1614559 (Refugee)

1614559 (Refugee) [2019] AATA 3425 (2 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614559
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Linda Symons
DATE:2 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 June 2019 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – ZANU PF – Movement for Democratic Change – social group – women – failed asylum seeker – multiple previous visas – inconsistent evidence – credibility issues – fabricated claims for purpose of obtaining Protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Zimbabwe, first arrived in Australia [in] July 2008 as the holder of a subclass 573 Student visa. She departed Australia [in] November 2009 and returned [in] January 2010. She departed Australia [in] November 2010 and returned [in] February 2011. On 11 April 2012, she was granted another subclass 573 Student visa that was valid until 11 May 2012.
On 11 May 2012, the applicant was granted a Bridging A visa. This visa expired on 24 December 2012 and she thereafter remained in Australia as an unlawful non-citizen. On 30 December 2013, she was granted a Bridging E visa. This visa expired on 6 January 2014 and she thereafter remained in Australia as an unlawful non-citizen. On 19 March 2015, she was granted another Bridging visa E in association with her application for a Protection visa. She was subsequently granted two further Bridging E visas on 30 June 2015 and 19 July 2017.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 5 March 2015. 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 9 September 2016, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. She was represented by her migration agent, [who] attended the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She was born on [date] in Harare in Zimbabwe and is a Zimbabwean citizen.
·Her father [was] a [Official 1] in Zimbabwe and therefore held a position of significant political power. He left Zimbabwe in August 2000 and sought asylum in [Country 1]. She has only had sporadic contact with him since then and has not been able to contact him for several years.
·Her mother [and] her brother, [Mr A], live at [Location 1] in Harare. She grew up living there as well and when she returned to Zimbabwe in the past she has stayed there.
·She was never a political person, but following the elections in 2008 she noticed that there were a number of protests held and organised by ZANU-PF people. Her area had previously been a district that strongly supported ZANU-PF but had been won by the Movement for Democratic Change (MDC) in that election so the ZANU-PF forces in the area were particularly active.
·Her mother warned them not to get involved, so on one occasion when she saw a protest at the shopping centre she walked away and went home. Shortly afterwards, ZANU-PF representatives knocked on their door and aggressively told them to go to the shopping centre. They questioned why they were not already there and were threatening. They had no choice, so they went to the shopping centre and set at the protest for hours.
·In 2008, she applied for a Student visa to study in Australia and was granted the visa on 22 May 2008. She subsequently travelled to Australia to study a [degree] at [University] in [an Australian state]. She returned to Zimbabwe to visit her family in November 2009 and remained there until January 2010. She again returned to Zimbabwe [in] November 2010 and was planning to visit her family and spend time in her old home.
·Soon after she returned to Zimbabwe, her friend [Ms B] told her that a man named Mr [C] had been asking about her. Apparently, he had heard that she was in Australia and was asking questions about when she would be returning. Mr [C] was a [Senior Official] of [Organisation 1]. She had never met him [personally]. He lived close to where she lived in Harare.
·When she returned to Zimbabwe, Mr [C] continued to ask [Ms B] unusual questions about her including asking for details of her daily routine and where she might be at certain times. She came across him in person a few times thereafter in what seemed like chance meetings which she believes were caused by him deliberately. On one occasion, he asked her about her father, where he currently was and what he was doing. He seemed to know about her father’s politics and was interested in that. It may also have been because she had left Zimbabwe to study in Australia.
·There were a number of political and economic problems in Zimbabwe around that time and major crises across the country. This meant that anyone who left Zimbabwe at that time was seen as not being proud of their country, not very patriotic and abandoning their country. For this reason, she did not tell anyone outside her immediate family that she was going to study in Australia. However, Mr [C] would have been able to find out where she had gone through [Organisation 1’s] records.
·[In] December 2010, after she had returned to Zimbabwe for about a week, she was returning home after spending a day in town. She had just got off the bus and was walking home when a car pulled up and began to drive slowly alongside her. [Details deleted]. There were four men in the car wearing smart, casual plain clothes. One of the men, sitting in the back seat was Mr [C].
·Mr [C] offered her a lift but she refused. Before she realised what was happening, the car pulled over and the men dragged her inside the car. The car then drove off. She tried to talk to the men but one of them slapped her hard across the face. She cried and pleaded with them to let her go. They drove very fast for a short time and then stopped in a deserted area. The other three men got out of the car and stood around nearby. Mr [C] then physically assaulted her and sexually assaulted her in the car. She cried for help throughout but there was nobody else nearby to hear and Mr [C]’s bodyguards ignored her.
·She was in pain and suffering. She was terrified of what would happen next and felt completely humiliated and destroyed. To this day, she struggles to fully describe and express the experience and finds it difficult to talk about. After Mr [C] had finished sexually assaulting her, he called his bodyguards back to the car, they got back in and then drove her back. They dropped her off near her house. The whole ordeal had taken about 30 to 45 minutes.
·When she got home, she had been weeping and her clothes were covered in blood. She was also visibly hurt from the slap she had received. She told her family what had happened and they immediately took her to the Police Station to make a report. When she got to the Police Station, she told them that she had been sexually assaulted and wanted to file a report. They began to write down the report. She was asked who had done it and when she told them it was Mr [C] they asked her whether she was serious. The Police Officer asked if she knew who she was talking about and if she was sure. They acted very sceptical and were reluctant to do anything. However, they filed a report about the sexual assault.
·The following day, while she was at home alone, Mr [C] went to her house with three other men. He told her that the Police had informed him of her report against him. He made a number of threats against and said she must think she was too good for Zimbabwe since she had returned from Australia. He warned her not to pursue any investigation against him saying “don’t try me.”
·She was terrified that he would return and get her at any time. On the following day, she returned to the Police Station to make another report and to see if they would protect her from him. The person at the reception desk would not make another report. He told her that she could not do anything to him and that making another report or following it up would be pointless. He said that since this was Zimbabwe, Mr [C] was too powerful to be brought down by her. He told her that if she kept making complaints about him, he would be able to get her.
·After this, she was even more afraid as it was clear that the Police would not be able to protect her from Mr [C] and his men at [Organisation 1]. Her brother, [Mr A] suggested that she should go to their grandmother’s place. Her grandmother lived [in] the suburb of [Suburb 1] in Harare. They thought that she would be safer there, so she and [Mr A] went there immediately.
·Two days later, Mr [C] went to her grandmother’s house. There were two cars; one with three men inside and the other with two. They forced their way into her grandmother’s house damaging things as they did. They kicked in the glass kitchen window and shattered the glass all over the carpet. They took blankets from her grandmother’s bedroom and began wrecking things all over the house. There was no reason for it other than to scare her and harm her family. Mr [C] made more threats to her saying that if she tried to run away he would find her. He told her that this was his last warning and if she ever said another word about it to anyone he would come after her and find her wherever she was.
·After that, she did not say a word to anyone. It was clear that Mr [C] could find her wherever she went, so she returned to her family home. She stayed inside for almost all of the next [number of] months whilst she was in Zimbabwe because she was scared to go outside. It is shameful to be sexually assaulted in Zimbabwe. She was afraid of being shamed by people in the community if they knew what had happened to her. She did see a doctor in Zimbabwe after the sexual assault to have a medical examination and to talk to someone about what had happened. She also spoke to some people from her Church who counselled her about the experience and helped her to come to terms with what had happened. These conversations help her emotionally but they did not help her to feel secure against Mr [C] coming after her again.
·She returned to Australia [in] February 2011 after spending [a few] days in [Country 2] visiting a friend who lived there. A few weeks after she returned, she realised that she was pregnant from the sexual assault. She did not know what to do and wrestled with the decision for a long time. Eventually she decided to have an abortion. She attended a clinic in [City 1] and had an abortion. It was a difficult decision to make and she continues to question it. She continued to wrestle with the emotional and psychological impacts of the sexual assault. That year at university was difficult for her and she failed a subject for the first time and got poor grades across the board.
·To this day she struggles to talk about what happened and suffers from flashbacks. She finds it hard to make sense of the experience and what happened. She finds it difficult to enter into and maintain relationships with people. She is afraid that something like this could happen again if she returned to Zimbabwe. When she returns to Zimbabwe, it will be recorded officially and [Organisation 1] and Mr [C] and his friends would know that she was there.
·She knows of other cases in Zimbabwe where these kinds of attacks have happened. In those cases, the powerful men did not stop harassing the girls they had attacked. She believes that Mr [C] will keep harassing her whenever he feels like it. He has a number of means at his disposal and can use his political power to disrupt her life. He would be able to stop her from getting jobs that she applies for, have Zimbabwean authorities hassle her and make it difficult for her to live her daily life. She will always be afraid that he will come after her again and attack her. She is terrified he will track her down, kidnap her, assault her, sexually assault her again and kill her if he wants to. He has a lot of powerful friends who would help him.
·Her brother, [Mr A], has had problems because of this even though he was not the one attack. He is a keen [sportsman] and is very talented. At one point, he was selected to play in a Zimbabwean team that was travelling [overseas]. However, he was “kicked out” of the [team]. Eventually, one club told him that they did not want to get into trouble with “politics.” She is afraid that this shows how much power Mr [C] has and what he might be able to do to her if she is forced to return to Zimbabwe.
·Her Student visa expired after her course finished in May 2012. She applied for a Temporary [visa] to stay in Australia but was confused about the requirements for the [visa]. As a result, she did not provide the required [documentation] and her visa application was refused. Since then, she was terrified to return to Zimbabwe so she stayed in Australia even though she did not have a visa. She did not know much about how to apply for protection and was too scared to talk about what had happened to her.
·She wishes to remain in Australia so she does not have to return to Zimbabwe. There is nowhere in Zimbabwe that would be safe for her. It is not a big country and Mr [C] and his friends could find her wherever she went.
The applicant provided to the Department copies of the bio data page of her Zimbabwean passport, her [degree] from [University], her Academic Transcript from [University], an undated statement from [Ms D], a statement dated 11 November 2014 from [Mr E], a statement dated 8 February 2015 from [Ms B], a statement dated 11 February 2015 from [Organisation 2], a statement dated 5 December 2010 from the [Location 2] Police Station in Zimbabwe, and country information on Zimbabwe.
On 6 March 2015, the Department received written submissions dated 18 February 2015 from the applicant’s migration agent. He submitted that the applicant is seeking protection on the grounds of her actual or imputed political opinion and/or her membership of one or more particular social groups being “Zimbabweans known to have anti governmental associations who left Zimbabwe to reside in Western countries (such as Australia) during the early 2000’s”, “relatives of Zimbabwean political dissidents”, “Zimbabweans who have been identified by security officials as being security concerns”, “women in Zimbabwe” and “women in Zimbabwe who have previously attracted attention from security forces”.
The applicant attended an interview with the Department on 28 July 2016. During the interview, she reiterated her written claims.
The applicant has provided to the Tribunal copies of the Department’s Decision Record dated 1 September 2016, her [Australian] Learner Driver Licence, a Statutory Declaration by her dated 29 January 2019, a printout from her [Social Media] account, [an Australian] Birth Certificate for [her daughter] and a copy of her Zimbabwean passport.
The applicant requested and was granted further time after the hearing to provide additional evidence and submissions. Following the hearing, the Tribunal received an undated letter from [Organisation 3] in Zimbabwe, two undated statements from the applicant’s mother, a Statutory Declaration from her dated 18 February 2019, a printout from the MDC Zimbabwe [social media] account, an undated statement from [Mr A], a fact sheet about [Organisation 2] and a printout from [a sporting group’s] Facebook account.

The Tribunal has received written submissions dated 29 January 2019 from the applicant’s migration agent. In his submissions, he stated that the applicant is seeking protection on the grounds of her anti-government political opinion and/or her membership of the particular social group of “family members of political dissidents”, “returnees from overseas” and/or “women”.
Receiving country
The applicant claims to be a citizen of Zimbabwe and has provided a copy of her Zimbabwean passport to the Department and the Tribunal. 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
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
The applicant gave evidence that her application for a Protection visa was prepared by her lawyer on her instructions which were true and correct. She stated that she was satisfied that her visa application was accurate and complete. When asked whether there had been any changes in her circumstances since she filed her visa application, she stated that she has a partner and a child. She stated that she has also changed her address.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in Zimbabwe, her experiences in Zimbabwe and why she fears returning to Zimbabwe. The Tribunal found aspects of her evidence to be contradictory, vague, implausible and unconvincing. There were significant inconsistencies between her evidence to the Department and her evidence to the Tribunal. She made a series of new claims before the Tribunal. Her conduct in Zimbabwe and in Australia was not consistent with her claims. The Tribunal has concerns in relation to her credibility and the veracity of her claims for the following reasons:
First, in her visa application, the applicant claimed that he father was a [Official 1] in Zimbabwe, this was a position of significant political power, he left Zimbabwe in August 2000 and sought asylum in [Country 1]. She claimed that she has only had sporadic contact with him since then and has not been able to contact him for several years.
The applicant subsequently filed a Statutory Declaration dated 20 September 2018 with the Tribunal in which she made a number of new claims. In that Statutory Declaration, she claimed that her father was a [Occupation 1] and then became a [Official 1]. She claimed that he was a [Official 2] at [a] Court. She claimed that he was an active member of the ZANU-PF and in 1998 or 1999 he changed political parties and became a member of the MDC. She claimed that he used to attend MDC rallies. She claimed that shortly after he became a member of the MDC he lost his job.
In her Statutory Declaration dated 20 September 2018, the applicant made further new claims that her father told her in around 2015 that he and Mr [C] had worked together, there was bad blood between them and he was not surprised that Mr [C] was trying to hurt his family. She stated that she did not include this claim in her visa application because this conversation with her father occurred after she had filed her visa application. She offered no explanation for why she had not mentioned the new claims in relation to her father’s political affiliations, referred to in paragraph 25, above in her application for a Protection visa.
The applicant subsequently filed a Statutory Declaration dated 29 January 2019 with the Tribunal. In that Statutory Declaration, she stated that she found out about the information in paragraph 26 above in 2015 after she filed her application for a Protection visa. She stated that her father worked with Mr [C] when he was a [Official 2]. She stated that she did not mention these claims in her interview with the Department on 28 July 2016 because she was not in a good state at that time. She stated that she gave birth to her daughter on [date], was in pain from giving birth, was struggling with breast feeding and lack of sleep and was not thinking properly.
The Tribunal does not accept this explanation. These new claims are directly relevant to the applicant’s claims and are significant as they could explain Mr [C]’s adverse interest in her. She was represented by competent lawyers at the time her application for a Protection visa was prepared and since then. The Tribunal would expect that, if she found out this information in 2015, she would have informed her lawyer of this information then and filed a Statutory Declaration with the Department setting out her new claims. She had another opportunity during her interview with the Department on 28 July 2016 to inform the Department of these new claims but did not do so.
The delegate did not make a decision until 1 September 2016. The applicant had a month after her interview with the Department to inform the delegate of her new claims, if she forgot to do so during the interview, prior to a decision being made. She did not make these new claims until after the Department had refused her application for a Protection visa. She did not make these new claims until 20 September 2018 and 29 January 2019. Her delay in making these claims and the circumstances and timing when she made these claims raise concerns in relation to her credibility and the veracity of her claims.
Second, during the hearing, the applicant gave evidence that when her father was a [Occupation 1] he was a member of ZANU-PF. She stated that he then changed political parties, became a member of MDC and thereafter lost his job. She stated that he told them he was not working and was looking for a job. She stated that that was why he decided to leave Zimbabwe as there were no opportunities in his life. When asked whether her father was involved in politics in Zimbabwe, she responded that she was not sure. She stated that she did not know how far he took it. She stated that it was “just coming up”.
Following the hearing, the applicant filed with the Tribunal a Statutory Declaration dated 18 February 2019 in which she made new claims. She claimed that her father was kidnapped for “a very short time”, her family never really told them about it as they were too young and her mother told her about it recently. She provided no other details.
The applicant is currently [age] and was [age] at the time she lodged her application for a Protection visa. She was [age] at the time her father left Zimbabwe in 2000. Even if her mother considered her too young at the age of [specified] to be told that her father had been kidnapped, the Tribunal would expect that her mother would have informed her of this when she was older and certainly prior to 2019. Further, the Tribunal would expect her to have discussed relevant issues with her mother prior to filing her application for a Protection visa and to have been informed of this at that time if she had not been informed earlier. Her failure to make this claim in her application for a Protection visa is significant. During the hearing, the Tribunal raised a number of concerns with her in relation to her case. She thereafter made this claim and other new claims following the hearing.
Throughout the proceedings before the Tribunal, the applicant has made a number of new claims in relation to her father and these claims have gradually increased in gravity. The gravity and timing of this new claim raise concerns in relation to her credibility and the veracity of this claim.
Third, following the hearing, the applicant filed with the Tribunal two undated statements from her mother. In the first statement, her mother stated that the MDC was formed in 1999 and her husband was elected [an official] for the [Town 1] Constituency. She stated that this was not well received by the local ZANU- PF who labelled him a “sellout”. She stated that he was kidnapped by [Organisation 1] and managed to escape with the assistance of someone he had previously helped. She stated that a report of his kidnapping made to the Police made the situation worse. She stated that he had to flee to [Country 1] in September 2000 as he had received death threats. She stated that she was asked about his whereabouts by people she did not know and told them he had travelled to a rural area.
In her undated statement, the applicant’s mother stated that [Town 1] had been a ZANU-PF stronghold from 1980 to March 2008 when they lost to the MDC for the first time. She stated that violence started thereafter with soldiers, [Organisation 1] and ZANU-PF militia beating people and subjecting them to physical and sexual abuse. She stated that Mr [C] went to the marketplace where she was selling [goods] and stated that she needed to be “corrected mentally ”as she was a risk to the nation and demanded that she provide her husband’s address within a week. She stated that she then fled to the city.
In her undated statement, the applicant’s mother stated that she withdrew from politics from 2009 onwards. She stated that she returned from the city after the ‘government as national unity’ was formed. She stated that after President Mugabe resigned in 2017 she openly identified with the MDC not realizing that it was “bait”. She stated that they have been traumatized and accused of funding the MDC. She stated that her daughter and son have been “condemned without trial”. She stated that it would be “suicide” for her daughter to return to Zimbabwe where she could be killed. She stated that her daughter was sexually assaulted, reported it to the Police and was advised to keep quiet. She stated that her son was recently assaulted by the Police and was only saved because a member of the MDC National Council approached the Police and made inquiries about him.
The Tribunal has a number of concerns in relation to this evidence. Firstly, the applicant has never claimed that her father was elected [an official] for the [Town 1] Constituency. Her evidence to the Tribunal is that her father changed from being a member of the ZANU-PF to being a member of the MDC and he attended some MDC rallies. Secondly, the applicant’s mother stated that her husband was kidnapped by [Organisation 1]. Following the hearing, the applicant provided the Tribunal with a letter from [Organisation 3] in Zimbabwe (see below) which stated that he was kidnapped by [Organisation 1], ZANU-PF militia and the Green Bombers.
Thirdly, the applicant’s mother stated that her husband left Zimbabwe in September 2000 because he had received death threats. The applicant’s evidence to the Tribunal was that, after her father lost his job, he was looking for a new job. She stated that he then decided to leave Zimbabwe as there were opportunities in Zimbabwe. Fourthly, the applicant’s mother stated that she was asked about the whereabouts of her husband by people she did not know and Mr [C] demanded that she provide him with her husband’s address. The Tribunal is of the view that if her husband was of adverse interest to [Organisation 1], they would have already known that he had departed Zimbabwe and what his destination was. Therefore, there would have been no need to ask her for information about his whereabouts.
Fifthly, if [Organisation 1] had kidnapped the applicant’s father and he was of adverse interest to them, he would not have been able to depart Zimbabwe. The country information indicates that [Organisation 1] personnel are stationed at Zimbabwe’s major airports.[1] Sixthly, the applicant’s mother stated that after her contact with Mr [C] in the marketplace where she was selling [goods], she fled to the city. She did not specify when she had that contact with Mr [C] but it was presumably after her husband had departed Zimbabwe in August 2000 or, alternatively, September 2000. Her evidence of fleeing to the city is not consistent with the applicant’s evidence that she, her mother and brother lived at [Location 1] in Harare, she grew up living there and stayed there when she visited from Australia. In her visa application, she stated that she lived at [Location 1] from [date] to May 2088.
[1] DFAT Country Information Report on Zimbabwe dated 11 April 2016.
Seventhly, the applicant’s mother stated that her son was recently assaulted by the Police and was only saved because a member of the MDC National Council approached the Police and made inquiries about him. Following the hearing, the applicant filed with the Tribunal a statement from her brother in which he set out the problems he has had in Zimbabwe. He made no mention of being assaulted by the Police and being saved because a member of the MDC National Council approached the Police and made inquiries about him. The Tribunal would expect that if this had in fact occurred, he would have mentioned it in his statement.
In view of the above, the Tribunal finds that the applicant’s mother is not a reliable witness and places no weight on her evidence in the undated statement referred to above. The fact that the applicant has filed this statement with the Tribunal to support her application for a Protection is of concern to the Tribunal as it raises further concerns in relation to her credibility and the veracity of her claims.
Fourth, following the hearing, the Tribunal was provided with what appears to be a letter from [Organisation 3] in Zimbabwe. It states that the [applicant’s] family has been instrumental and vocal since the inception of the MDC in 1999. (The applicant was [age] and her brother was [age] in 1999). It states that, because of the applicant’s father’s activism as [an official] of the Constituency, he was labelled ‘a dangerous personnel’ by the oppressive ZANU-PF party. It states that he was kidnapped by [Organisation 1], ZANU-PF militia and the Green Bombers. It states that he was forced to leave the country and go to [Country 1]. It states that the applicant’s brother is [an official] in the [Town 1] Constituency. It states that the family’s persistent contribution within the country led to them being severely persecuted by the ZANU-PF. It states that the family is in danger and receives death threats because they want to know the father’s whereabouts.
The Tribunal has a number of concerns in relation to the authenticity of this letter. Firstly, the letterhead is titled ‘From [Organisation 3]’. It is implausible that a [Organisation 3] letterhead would be titled ‘From [Organisation 3]’. Secondly, it contains a seal with the words ‘Movement for Democratic Change - MDC’. It is implausible that a [Organisation 3] letterhead would have a seal for a political party. Thirdly, it is undated. The Tribunal would expect that a letter from the [Organisation 3] would be dated. Fourthly, it is implausible that the [Organisation 3] would be writing letters of support for members of the MDC. Fifthly, the applicant has not claimed that she or any member of her family have received death threats because the ZANU-PF or anyone else wanted to know her father’s whereabouts.
For the reasons given above, the Tribunal is not satisfied that this is an authentic document and finds accordingly. The Tribunal places no weight on this evidence. The fact that the applicant filed this document with the Tribunal raises concerns in relation to her credibility and the veracity of her claims.
Fifth, in her visa application, the applicant claimed that her mother and her brother live at [Location 1] in Harare. She claimed that she grew up living there as well and when she returned to Zimbabwe in the past she has stayed there. Her evidence is that Mr [C] lived close to her home in Harare and that he can find her anywhere in Zimbabwe. If Mr [C] wanted to target her and her family because there was “bad blood” between him and her father and/or because of her father’s political affiliations, he had plenty of time and opportunity to do so from the time her father left Zimbabwe in August 2000 and her leaving Zimbabwe in 2008 or when she returned to Zimbabwe in 2009. As a single mother with two young children, her mother would have been very vulnerable when her husband left Zimbabwe in 2000 as would she and her brother who were considerably younger then.
When the Tribunal raised this as an issue with the applicant, she responded that she only found out that Mr [C] worked with her father when she spoke to him in 2016. She stated that she does not know why Mr [C] waited until 2010. She stated that people sometimes do things 20 years later. She then stated that he targeted her because of her father and because she left the country. The Tribunal does not find this response to be convincing. Firstly, her evidence that she only found out in 2016 that her father and Mr [C] worked together is not consistent with her evidence in her Statutory Declaration dated 29 January 2019 that she found out around 2015. Secondly, if Mr [C] was targeting her because she left the country, the Tribunal would expect him to have targeted her when she travelled to Zimbabwe [in] November 2009 and returned [in] January 2010.
Thirdly, the Tribunal would expect Mr [C]’s adverse feelings towards the applicant’s father to be at its highest when they were working together and when her father left Zimbabwe in August 2000 rather than 10 years later.
Following the hearing, the applicant provided the Tribunal with a Statutory Declaration dated 18 February 2019 in which she stated that the reason she was sexually assaulted 8 years after her father left Zimbabwe was that until 2008 [Town 1] was a ZANU-PF stronghold and after the MDC won a majority of seats in Parliament in 2008 [Organisation 1] became active and were harassing and abusing people. She stated that this gave Mr [C] an opportunity to seek revenge and use his political powers on her and her family. She stated that he first asked about her in 2009 but did not do anything then because she was there for a short period in 2009. She stated that he then attacked her in 2010 within two weeks of her arrival in Zimbabwe.
The Tribunal does not accept this further explanation. If Mr [C] was a high ranking officer in [Organisation 1] and was as politically influential as the applicant claims, he would not have needed to wait until there was political unrest in 2008 to extract his revenge. She did not make any claims in her application for a Protection visa that Mr [C] made inquiries about her in 2009 or that there were any problems or incidents during her visit to Zimbabwe in 2009. This evidence is also problematic and is discussed further below. Her responses do not alleviate the Tribunal’s concerns.
Sixth, in her application for a Protection visa, the applicant did not make any claims in relation to any incidents during her visit to Zimbabwe between November 2009 and January 2010. She has filed with the Tribunal a copy of the Department’s Decision Record dated 1 September 2016 which indicates that during her interview with the Department she was asked whether anything happened to her when she visited Zimbabwe in 2009 and she answered no. During the hearing, she did not refer to any incidents when she visited Zimbabwe in 2009.
In her Statutory Declaration dated 20 September 2018, the applicant made a number of new claims including that when she returned to Zimbabwe in 2009 a man approached her and her mother, whilst they were walking in [Town 1], and said to her “so, you are in the diaspora, you think you are better than us.” She claimed that she told him that she was studying away from home. She stated that her mother later told her that he was from [Organisation 1]. She stated that she did not mention this in her application for Protection visa because it was only recently that her mother told her that he was from [Organisation 1].
The Tribunal has concerns in relation to this claim. First, she made this claim for the first time on 20 September 2018 after her application for a Protection visa was refused and after she had specifically told the delegate during her interview with the Department that nothing happened during her visit in 2009. Second, the Tribunal finds it implausible that she and her mother did not discuss the incident at the time it happened and that her mother did not inform at that time that the man was from [Organisation 1]. This raises concerns for the Tribunal in relation to her credibility and the veracity of this claim.

Seventh, in her Statutory Declaration dated 20 September 2018, the applicant made another new claim that she could not remember exactly when but on one visit to Zimbabwe someone approached her and asked her about her father. She claimed that she was asked whether he left Zimbabwe because of the political situation and because he was an MDC member. She claimed that she was asked if she was going to join him. She stated that she did not tell this man anything and said she did not know what he was talking about. She offered no explanation for why she had not made this claim in her visa application.
This claim is directly relevant to her claims that she was of adverse interest to the authorities because of her father’s political affiliations. The Tribunal would expect that, if this incident occurred, she would have mentioned it in her application for a Protection visa and put forward her best case. Her failure to mention this claim in her application for a Protection visa raises concerns in relation to her credibility and her veracity of her claims.
Eighth, in her visa application, the applicant claimed that when she returned to Zimbabwe on [in] November 2010 her friend [Ms B] told her that a man named Mr [C] had been asking questions about her and continued to do so after she returned. She claimed that she had never met him [personally]. She claimed that she came across him in person a few times thereafter in what seemed like chance meetings which she believes were caused by him deliberately. She claimed that, on one occasion, he asked her about her father, where he currently was and what he was doing. She claimed that these encounters took place prior to him sexually assaulting her [in] December 2010.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 1 September 2016. It indicates that during her interview with the Department, she stated that after her arrival in Zimbabwe in 2010 she saw Mr [C] on a few occasions. She stated that she noticed him observing her from a distance and on one occasion he waved to her. During the hearing, she gave evidence that she first had contact with Mr [C] on the day that he attacked her [in] December 2010. [Details deleted].
The Tribunal is of the view that these are significant inconsistencies in the applicant’s evidence. These inconsistencies raise concerns in relation to her credibility and the veracity of her claims.
Ninth, in her visa application, the applicant claimed that [in] December 2010 she had got off the bus and was walking home when a car pulled up and began to drive slowly alongside her. She claimed that there were four men in the car and Mr [C] was one of them. She claimed that he offered her a lift but she refused. She claimed that, before she realised what was happening, the car pulled over, the men dragged her inside the car and the car then drove off. She claimed that they drove very fast for a short time and then stopped in a deserted area. She claimed that the other three men got out of the car and stood around nearby. She claimed that Mr [C] physically and sexually assaulted her. She claimed that Mr [C] than called the other men back to the car and they drove her to her home and dropped her off. She stated that this incident took 30 to 45 minutes.
In her Statutory Declaration dated 20 September 2018, the applicant re-iterated the claims she made in her visa application in relation to this incident. She then made new claims that after Mr [C] finished sexually assaulting her he told the other men “go and drop this child of a traitor.” She offered no explanation for why she did not make this claim in her visa application.
In her Statutory Declaration dated 29 January 2019, the applicant stated that she provided the above new information in her Statutory Declaration dated 20 September 2018 about comments Mr [C] made while or after he sexual assaulted her that led her to believe that he targeted her because of her or her father’s political opinion. She stated that she did not mentioned this previously because it was a traumatic memory, she would rather not think or talk about it and she was not in a good state at her interview with the Department. She stated that after her visa application was refused, she forced herself to think about it and remember these things.
During the hearing, the applicant gave a different version of these events. She stated that in] December 2010 she was walking home when a car [pulled] over. She stated that she thought they wanted directions. She stated that there were four men in the car. She stated that they got out of the car and pulled her into the bushes. She stated that Mr [C] then sexually assaulted her. She stated that she begged him and offered him money. She stated that Mr [C] called her the daughter of a traitor. She stated that the other men were walking around. She stated that she then went back to the car with them and got into the car. She stated that Mr [C] answered a telephone call and she heard his name mentioned. She stated that they dropped her off near her house.
The Tribunal has a number of concerns in relation to this evidence. Firstly, there are significant differences in the details of this incident including where it took place, whether or not she was slapped by one of the men, whether or not Mr [C] said anything to her or about her and what was said by Mr [C]. Secondly, the Tribunal does not find the applicant’s explanation for the new claims she made in her Statutory Declaration dated 20 September 2018 to be convincing. Whilst the Tribunal can understand that if she had experienced a traumatic event she may not have wanted to think about it or talk about it, her decision to apply for a Protection visa meant that she had to think about it and properly instruct her lawyer. She was represented by a competent lawyer at the time her application for a Protection visa was prepared and a detailed Statement of Claims was filed with the Department. The Tribunal would expect her to have wanted to put her best case forward at that time.
Thirdly, the applicant did not make any claims in her application for a Protection visa that she held any political opinions. In fact, in her Statement of Claims she stated ‘I was never a particularly political person.’ However, in her Statutory Declaration dated 29 January 2019, she made a new claim that the comments made by Mr [C] led her to believe that he targeted her because of her or her father’s political opinion but did not specify what her political opinions were. It is of concern to the Tribunal that she has sought to provide an explanation for Mr [C]’s adverse interest in her after her application for a Protection visa was refused by the Department.
The significant inconsistencies in the applicant’s evidence in relation to Mr [C]’s attack on her and the new claims she has made since her application for a Protection visa was refused raise concerns about her credibility and the veracity of these claims.
Tenth, in her visa application, the applicant claimed that when she got home after she was sexually assaulted by Mr [C] she had been weeping, her clothes were covered in blood and she was visibly hurt from the slap she had received. During the hearing, the Tribunal asked her whether she suffered any injuries as a result of the assault and she responded that her lower back was hurting and she had a bruise on her leg. When asked whether she had any other injuries, she responded no. She made no mention of bleeding or her clothes being covered in blood or a bruise from being slapped.
Following the hearing, the applicant provided the Tribunal with an undated statement from her mother in which she stated that on the day when the applicant was sexually assaulted she received a telephone call from her son. She stated that her son told her that the applicant was at home crying, her face was swollen and her clothes were born. At no point did the applicant claim that her clothes were torn.
These inconsistencies in the applicant’s evidence raise concerns about her credibility in the veracity of her claims. Her mother’s evidence also raises concerns in relation to her reliability as a witness.
Eleventh, in her visa application, the applicant claimed that when she got home after the assault her family took her to the Police Station to make a report. She claimed that on the following day, while she was at home alone, Mr [C] went to her house with three other men. She claimed that he told her that the Police had informed him of her report against him. She claimed that he made a number of threats against and said she must think she was too good for Zimbabwe since she had returned from Australia. She claimed that he warned her not to pursue any investigation against him saying “don’t try me.”
In her Statutory Declaration dated 20 September 2018, the applicant stated that on the day after the assault she was home alone when Mr [C] and two other men went to her house. She claimed that Mr [C] told her that he was aware that she had filed a report against him at the Police Station and that there was nothing she could do, he could make her life miserable and a living hell, she claimed that he told her to drop everything and stop using his name. She claimed that he called her a whore.
During the hearing, the applicant gave a very different version of this incident. She stated that she was at home with her brother when Mr [C] went to their house. She stated that the three men he was with broke the screen on the front door and kicked and broke the glass front door. She stated that Mr [C] insulted them. She stated that he was shouting and said a “bunch of staff” that she could not remember. She stated that he then left.
Following the hearing, the applicant provided the Tribunal with an undated statement from her mother in which she stated that when Mr [C] came to her house on the day after the sexual assault the applicant was at home with the maid.
There are significant inconsistencies in the applicant’s evidence in relation to whether she was at home alone or with her brother, whether or not Mr [C]’s men damaged her house and what Mr [C] said to her. These inconsistencies in her evidence raise concerns in relation to her credibility and the veracity of her claims. Her mother’s evidence also raises concerns in relation to her reliability as a witness.
Twelfth, in her visa application, the applicant claimed that on the following day she went to the Police Station to make another report and was advised that it was pointless to do so as Mr [C] was too powerful to be brought down by her and he would be able to get her. She claimed that her brother suggested that she go to her grandmother’s house at [Suburb 1] in Harare and so she and her brother went there immediately. She claimed that two days later Mr [C] went to her grandmother’s house. She claimed that he told her he would find her wherever she was so she decided to return to her family home. She claimed that she stayed inside her family home for almost all of the next two months whilst she was in Zimbabwe because she was scared to go outside.
During the hearing, the applicant gave a different version of events. She stated that, after going to the Police Station for a second time, she went to her [aunt’s] house at [Suburb 1] in Harare. She stated that she stayed there for seven weeks until she left Zimbabwe to return to Australia and never left the house because she was scared to do so.
The Tribunal is of the view that the inconsistency in the applicant’s evidence in relation to whether she went to her grandmother’s house at [Suburb 1] and returned to her family home two days later and stayed there for the next two months until she left Zimbabwe or remained in her [aunt’s] home at [Suburb 1] for seven weeks until she left Zimbabwe to return to Australia is significant. This inconsistency in her evidence raises further concerns in relation to her credibility and the veracity of her claims.
Thirteenth, in her visa application, the applicant claimed that two days after she went to her grandmother’s house at [Suburb 1] Mr [C] and his men went there. She claimed that they arrived in two cars; one with three men inside and the other with two. She claimed that they forced their way into her grandmother’s house damaging things as they did. She claimed that they kicked in the glass kitchen window and shattered the glass all over the carpet, took blankets from her grandmother’s bedroom and began wrecking things all over the house. She claimed that Mr [C] made more threats to her saying that if she tried to run away he would find her, told her that this was his last warning and if she ever said another word about it to anyone he would come after her and find her wherever she was.
In her Statutory Declaration dated 20 September 2018, the applicant referred to this incident and made new claims. She claimed that one of the men had a gun. She claimed that Mr [C] told her “see how I found you, I can find you anywhere. You think just because you are now living overseas that you can come here and do whatever.” She claimed that he told her not to go to the Police because they would always tell him what she said. She claimed that he told her this was her last warning and if she ever said another word about it to anyone he would come after her, find her and make her life a living hell. She claimed that he said “ask your dad what we can do to you.”
In her Statutory Declaration dated 29 January 2019, the applicant stated that the reason why she did not mention these claims previously was because it was a traumatic memory that she would rather not think or talk about and because she was not in a good state at her interview with the Department. She stated that after her application for a Protection visa was refused, she was forced to think about it and remember these things.
During the hearing, the applicant stated that during this incident Mr [C] was accompanied by three men. She stated that he told her “you can never go anywhere. I can find you. Don’t press the charges. Tell your dad what can happen.”
The applicant has made new claims in relation to what Mr [C] told her during this incident. There are several inconsistencies between what she claimed he said in her visa application and subsequently. The Tribunal does not accept her explanation for why these claims were not made in her visa application. Whilst the Tribunal can understand that if she had experienced a traumatic event she may not have wanted to think about it or talk about it, her decision to apply for a Protection visa meant that she had to think about it and properly instruct her lawyer. She was represented by a competent lawyer at the time her application for a Protection visa was prepared and a detailed Statement of Claims was filed with the Department. The Tribunal would expect her to have wanted to put her best case forward at that time.
The Tribunal is of the view that, if she forgot to mention her new claims at the time her application for a Protection visa was prepared, she had the opportunity to provide written evidence to the Department before her interview or provide this evidence orally during her interview on 28 July 2016. If she was unable to provide this evidence orally at her interview with the Department because she was recovering from childbirth at that time, she had time after the interview to provide written evidence to the Department before the decision was made. She did not make these new claims until after the Department had refused her application for a Protection visa. She did not make these new claims until 20 September 2018. The inconsistencies in her evidence, the new claims she has made, her delay in making these claims and the circumstances and timing when she made these claims raise concerns in relation to her credibility and the veracity of her claims.
Fourteenth, in her visa application, the applicant claimed that after this second incident with Mr [C] she did not say a word to anyone. She claimed that she did not leave her house for almost all of the next two months because she was afraid to go outside. She also claimed that she saw a doctor in Zimbabwe after she was sexual assaulted for a medical examination and to talk to someone about what had happened. She claimed that she spoke to some people from her Church who counselled her about the experience and helped her to come to terms with what had happened.
In her Statutory Declaration dated 20 September 2018, the applicant claimed that she was so terrified after this incident that she did not say a word to anyone. However, she also stated that she saw a doctor and spoke to people from her Church who counselled her.
During the hearing, the applicant gave evidence that she took Mr [C]’s threats seriously. She stated that she saw a doctor and told him about the assault but not who did it. She stated that he asked her what happened and prescribed some pills. When asked what kind of pills he prescribed, she responded that he prescribed Panadol and antibiotics. She stated that she spoke to three people from her Church who counselled her. She stated that she spoke to her friend [Ms B] and told her what had happened. When asked whether she told anyone else about the sexual assault, she responded “not anyone else”.
The Tribunal has concerns in relation to this evidence. Firstly, the applicant’s evidence is that Mr [C] threatened her that if she ever said another word to anyone about what happened he would come after her and make her life a living hell. She stated that she took his threats seriously and was so terrified that she did not say a word to anyone. However, she also claimed that she thereafter talked to her doctor, three people from her Church and her friend [Ms B] about what happened. Her conduct is not consistent with her claims.
Secondly, the Tribunal would expect that if the applicant had discussed the sexual assault with her doctor he would have been concerned about issues such as her contacting a sexually transmitted disease and becoming pregnant. In these circumstances, the Tribunal has difficulty accepting that she would have been prescribed Panadol and antibiotics and finds this evidence to be implausible.
The Tribunal raised as an issue with the applicant its concerns in relation to the inconsistency in her evidence, on the one hand, that she was so terrified after this incident that she did not say a word to anyone and, on the other hand, her evidence that she spoke to a doctor, three people at her Church and her friend [Ms B] about what happened. She responded that when it happened she did not tell anyone. She stated that her family and the housemaid knew what happened and her mother told her aunt about it. She stated that her friend [Ms B] went to see her and she told her about it. She stated that her mother brought people from the Church to the house to help her and support her.
The applicant’s response explains the circumstances in which she told people about it but does not address the issue raised with her. The inconsistencies in the applicant’s evidence and the implausibility of her evidence in relation to the doctor raise concerns in relation to her credibility and the veracity of her claims.
Fifteenth, the applicant’s evidence is that after Mr [C] went to her grandmother’s house or, alternatively, her [aunt’s] house she stayed inside her family home for almost all of the next two months or, alternatively, stayed inside her [aunt’s] home for the next seven weeks until she left Zimbabwe to return to Australia because she was scared to leave the house. She has not claimed that Mr [C] had any contact with her during that period or since she came to Australia. Mr [C] was aware of where her family home was and where her grandmother/ [aunt’s] house was.
The Tribunal raised an issue with the applicant the fact that, if Mr [C] had a continuing interest in her, he would have returned to her house or her grandmother/ [aunt’s] during that period. The Tribunal noted that he did not prevent her from leaving Zimbabwe in February 2011. The Tribunal raised doubts that he had a continuing interest in her and would harm her if she returned to Zimbabwe.

The applicant responded that she is not sure why he did not “keep doing it.” She stated that, at the moment, he has done enough damage to her. She stated that if she had kept on pursuing it he would have done something horrible to her. She stated that she kept quiet. She stated that she has no evidence to show her loyalty to ZANU-PF. She then made new claims that she will be taken by soldiers, the army and [Organisation 1]. She stated that she is not just afraid of him. She offered no explanation for why she feared she would be taken by soldiers, the army and [Organisation 1] and why she had not made these new claims previously.
The applicant’s response supports the view that Mr [C] no longer has any interest in her as he has done enough damage to her and she has not pursued the matter. In the circumstances, it is highly unlikely that she would seek to pursue the matter if she returns to Zimbabwe. It is therefore highly unlikely that Mr [C] would have an ongoing interest in her for this reason if she returns to Zimbabwe. If Mr [C] has no ongoing interest in her by extension nor will [Organisation 1]. She has not claimed to have had any contact with soldiers or the army in the past or to have been of adverse interest to them. Therefore, the Tribunal does not accept that she would be taken by soldiers, the army or [Organisation 1] if she returns to Zimbabwe.
Sixteenth, the applicant’s evidence is that Mr [C] sexually assaulted her [in] December 2010 and went to her grandmother’s house or, alternatively, her [aunt’s] house a few days later. Her evidence is that she was so terrified thereafter that she did not leave her house for almost two months or, alternatively, her grandmother/ [aunt’s] house for seven weeks, until she left Zimbabwe to return to Australia. The Tribunal would expect that, in these circumstances, she would have left Zimbabwe and returned to Australia as soon as possible. When asked why she did not return to Australia sooner, she responded that she was not emotionally well, was not stable enough to travel on her own and it was financially expensive.
The Tribunal accepts that it may have cost money to change the return date on her flight to Australia. She has not provided the Tribunal with any evidence of her financial circumstances at that time so the Tribunal is unable to make any finding as to her financial capacity at that time. However, the Tribunal notes that her aunt lives in [Country 3] and has been supportive of her. Her evidence is that her aunt helped to pay for her tuition fees for her studies in Australia and she visited her aunt in [Country 3] during her visit in 2009.
In these circumstances, the Tribunal would expect the applicant’s mother or brother to have accompanied her to her aunt’s house in [Country 3] where she could have remained safe from harm from Mr [C] until it was time for her to return to Australia. Her continued residence in Zimbabwe for almost two months after the last incident is not consistent with her claimed fears and raises concerns in relation to her credibility and the veracity of her claims.
Seventeenth, in her visa application, the applicant claimed that she returned to Australia [in] February 2011 after spending two days in [Country 2] visiting a friend who lived there. She claimed that a few weeks after she returned she realised that she was pregnant and she had an abortion at a clinic in [City 1]. She claimed that she continued to wrestle with the emotional and psychological impacts of the sexual assault. She claimed that that year (2011) at university was difficult for her, she failed a subject for the first time and got poor grades across the board. In her Statutory Declaration dated 20 September 2018, she re-iterated these claims.
The applicant has provided to the Department a copy of her Academic Record from [University]. It does not support her claims. It indicates that she failed the subject [Subject 1] in the first semester of 2010 and she failed the subject [Subject 2] in the second semester of 2010. Therefore, 2011 was not the first time she failed a subject as claimed. Her Academic Record also indicates that in the first semester of 2011 she got a credit and a distinction in two of her subjects and in the second semester of 2011 she got two distinctions in two of her subjects. This is not consistent with her claim that that she got poor grades across the board in 2011. In fact her Academic Record indicates that in 2011 she got more distinctions in her subjects than she had previously in 2008, 2009 and 2010. This independent evidence contradicts the claims made by her and raises concerns in relation to her credibility and the veracity of her claims.
When the Tribunal raised this as an issue with the applicant, she responded that it should have been [Subject 3] that she failed. She stated that she got 28%. She stated that she wanted to pull out but it was too late and she had to go through as a unit. She stated that the second time she tried [Subject 3] she wanted to withdraw. She stated that she did not take [Subject 3] again and it was an option that year. She stated that her units may look good. She stated that she got 58% in [Subject 4]. She stated that it was an easy subject and she thought she would have done better. This response does not address the issues raised with her and does not alleviate the Tribunal’s concerns.
Eighteenth, the applicant’s conduct in Australia has also not been consistent with her claims. The records of the Department indicate that her last Student visa expired on 11 May 2012. She then applied for a [temporary] visa and was granted a Bridging visa. Her application for a [temporary] visa was refused on 26 November 2012 and her Bridging visa expired on 24 December 2012. She thereafter remained in Australia as an unlawful non-citizen. She was at risk of being deported to Zimbabwe thereafter. She was granted a Bridging visa on 30 December 2013 on the basis that she was making arrangements to depart Australia. It was a condition of that visa that she produced to the Department a valid passport, a valid ticket and departed Australia by a specified date.
The applicant did not inform the Department that she had any concerns about returning to Zimbabwe. She failed to comply with the conditions of that Bridging visa and did not depart Australia. She applied for a Protection visa in January 2014 and that application was deemed to be invalid. Her Bridging visa then expired on 6 January 2014 and she once again became an unlawful non-citizen. She was thereafter at risk of being deported to Zimbabwe. She then applied for a Protection visa on 6 March 2015 and was granted a Bridging visa.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect that if she feared for her safety if she returned to Zimbabwe she would have ensured that she was not in Australia unlawfully and at risk of being deported to Zimbabwe. The Tribunal also noted that it would expect that she would have sought immigration advice and lodged an application for a Protection visa soon after she returned to Australia in February 2011. The Tribunal noted that her conduct in Australia has not been consistent with her claims. The Tribunal noted that her immigration history is of great concern to it as it may lead it to the conclusion that she applied for a Protection visa as a last resort to extend her stay in Australia and not because she is in need of protection.
The applicant responded that the reason she did not apply for protection when she returned to Australia was because she did not want to talk about it. She stated that she felt exposed and naked when she talked to anyone. She stated that her decision to have an abortion was her hardest decision because of her beliefs. She stated that it was the worst day in her life. She stated that it was difficult to talk about, she avoided it and was ashamed about it. She stated that she wanted to concentrate on her studies and follow the pathway to a Skilled visa. She stated that when she went to the Department she was given a Bridging visa.
The applicant stated that she told the case officer that she could not return to Zimbabwe and was told that if she did not have a ticket the only visa she could apply for was “a de facto visa”. She stated that she did not tell the case officer her reasons. She stated that when she tried to apply for a Protection visa on her own she got the application wrong. She stated that she had to save money to seek legal advice. She stated that she did not want to talk about what happened and about the abortion. She stated that that is the reason why it took a while to talk about it. She stated that she has not told all her friends what happened. She stated that she told her fiancé brief details.
The Tribunal pointed out to the applicant that if she had done a search on the internet she could have found places where she could get free legal advice. She responded that she wanted to go with the best.
The Tribunal accepts that if the applicant had been sexual assaulted, became pregnant as a result and had an abortion, she may have been reluctant to speak about this. However, the Tribunal is of the view that if her fears about returning to Zimbabwe are genuine she would have overcome her reluctance and sought immigration advice sooner. Even if she delayed applying for protection because she thought she could get a Skilled visa, the Tribunal would expect that if she genuinely feared returning to Zimbabwe she would have got some immigration advice at that time and not become an unlawful non-citizen in Australia leaving herself at risk of being deported to Zimbabwe.
The Tribunal is not persuaded by the applicant’s explanation. The Tribunal is of the view that her delay in applying for protection raises concerns in relation to her credibility and the veracity of her claims.
Nineteenth, in her visa application filed on 6 March 2015, the applicant claimed that as a result of being sexually assaulted by Mr [C] she finds it difficult to enter into and maintain relationships with people. This is not consistent with her evidence in her Statutory Declaration dated 29 January 2019 in which she stated that in or around 2015 she commenced a de facto relationship with [Mr F] who is also from Zimbabwe. She stated that they have a daughter [who] was born on [date]. [Mr F] did not attend the hearing or give any evidence to support the applicant. This is of concern to the Tribunal particularly when he may have been able to corroborate some of her evidence.
Twentieth, during the hearing, the Tribunal attempted to speak to the applicant’s mother. The Tribunal contacted her by telephone and, shortly after she commenced giving her evidence, the applicant requested that the telephone call be terminated as she had concerns that the call may be monitored. Therefore, the Tribunal terminated the telephone call. Following the hearing, the Tribunal received two undated statement from the applicant’s mother. The first was in relation to the applicant’s father, the details of which are referred to in paragraphs 34 to 36 above. The many problems with this statement are referred to in paragraphs 37 to 41 above.
The second undated statement from the applicant’s mother is in relation to the sexual assault on the applicant. There are a number of inconsistencies between her account of what happened and the applicant’s account of what happened which are referred to herein. In view of the inconsistencies in her evidence and the Tribunal’s concerns in relation to her reliability as a witness referred to above, the Tribunal places no weight on the evidence given by the applicant’s mother in this statement. The fact that the applicant has filed this statement with the Tribunal to support her application for a Protection is of concern to the Tribunal as it raises further concerns in relation to her credibility and the veracity of her claims.
Twenty first, the Tribunal has considered a statement dated 8 February 2016 from [Ms B]. In her statement, she states that the applicant went to Zimbabwe for a holiday in 2009 and they spent time together. She stated that two days before the applicant left Zimbabwe Mr [C] asked her a number of questions about her. She stated that she told the applicant about this and they decided to ignore it. She stated that in 2010 the applicant updated her [Social Media] account and stated that she was counting down to going home. She stated that she met Mr [C] and he asked her questions about the applicant’s impending trip to Zimbabwe. She stated that after the sexual assault she visited the applicant and was told what happened. She stated that she bumped into Mr [C], he asked her when their friend was coming back and laughed.
In her Statement of Claims in her visa application, the applicant made no mention of [Mr C] asking [Ms B] questions about her when she was in Zimbabwe in 2009, them discussing this and deciding to ignore it. This raises concerns in relation to the credibility of the evidence given by [Ms B] and her reliability as a witness.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 1 September 2016 which indicates that during her interview with the Department she was asked if anything happened to her when she visited Zimbabwe in 2009 and she answered no. She made no mention of Mr [C] making inquiries about her. This raises further concerns in relation to the credibility of the evidence given by [Ms B] and her reliability as a witness.
In her Statutory Declaration dated 20 September 2018, the applicant stated that prior to going to Zimbabwe in 2010 she posted a comment on her [Social Media] account to the effect “[deleted]”. She stated that her friend [Ms B] commented on that post. She made new claims that Mr [C] sent [Ms B] a [message] asking her when she would arrive in Zimbabwe and [Ms B] responded that she did not know how long she would be in Zimbabwe but knew she was returning. This claim is not consistent with [Ms B]’s evidence that she met Mr [C] and he asked her these questions. [Ms B] made no mention of Mr [C] contacting her on [Social Media]. This raises further concerns in relation to the applicant’s credibility, the credibility of the evidence given by [Ms B] and her reliability as a witness.
As the applicant requested the Tribunal to abort the telephone call to her mother during the hearing as she was concerned that the call may be monitored by the authorities, the Tribunal did not think it was appropriate to contact [Ms B] by telephone during the hearing. The Tribunal raised as a concern with the applicant the fact that it had been unable to test [Ms B]’s evidence and gave her further time after the hearing to provide additional evidence from [Ms B] if she wished to do so. The Tribunal did not receive any further evidence from [Ms B].
The applicant had previously provided the Tribunal with a printout from her [Social Media] account showing the comment “[deleted]”. There was no evidence on that document that [Ms B] had responded to that comment as claimed by the applicant. The Tribunal would expect that she would have provided a printout from [Ms B]’s [Social Media] account showing Mr [C]’s contact with her on [Social Media], if that in fact happened as claimed, as it would have gone a long way to support her claims. Her failure to do so raises further concerns for the Tribunal.
In view of the Tribunal’s concerns referred to above, the fact that [Ms B] is not an independent witness and her evidence has not been tested, the Tribunal places no weight on [Ms B]’s evidence.
Twenty second, the Tribunal has considered an undated statement from [Ms D]. When asked who she was, the applicant stated that she is her mother’s sister from [Country 1] who was visiting her grandmother. In her statement, Ms [D] stated the following in part:
“…I am aware of the fact that [the applicant] is a sexual assault victim which occurred sometime in 2010. Being a close aunt it came to my realization that something was amiss with my niece, she became withdrawn and put herself in a cacoon. She was not jovial as she used to be. It puzzled me until I anonymously sought information on my suspicions of sexual assault. Armed with this information I engaged my niece who initially refuted but later broke the veil and released the fact that she was a sexual assault victim”. She went on to state that she counselled and supported her.
The Tribunal has a number of concerns in relation to this evidence. Firstly, the applicant’s evidence is that the only people she spoke to about the sexual assault were her mother, brother, doctor, three people from the Church and her [friend]. Therefore, her evidence is not consistent with the evidence given by Ms [D] that she spoke to her about the sexual assault and counselled and supported her. Secondly, her evidence is that her mother informed her aunt that she had been sexually assaulted. Therefore, it would not have been necessary for her aunt to seek information anonymously. Thirdly, Ms [D] does not indicate who she sought the information from and why she needed to do so anonymously.
In view of the above, the Tribunal has concerns in relation to the credibility of the evidence given by Ms [D] and her reliability as a witness. Further, Ms [D] is not an independent witness and her evidence has not been tested. In these circumstances, the Tribunal places no weight on this evidence.
Twenty third, the Tribunal has considered a statement dated 11 November 2014 by [Mr E]. The author stated in part that he/she is an elder [at] the Church, was approached by the applicant’s mother after she was sexually assaulted by an unnamed man [and] counselled her.
The Tribunal raised as an issue with the applicant the date of the statement from [Mr E], noted that it is dated four months before she filed her application for a Protection visa and its concerns in relation to the authenticity of this document. She initially responded that she thinks that it is a mistake and she did not know when it was signed. She then stated that she was gathering information and the evidence she needed.
In view of the many concerns the Tribunal has in relation to the truthfulness of the applicant’s claim that she was sexually assaulted by Mr [C] and with the supporting documents that she has provided, the Tribunal is not persuaded by this evidence and places no weight on it.
Twenty fourth, the Tribunal has considered a document titled ‘Outcome of Report Received’ issued by the [Location 2] Police in Harare. This document is dated [in] December 2010. It relevantly states the following:
Reference your report to the Police on [date]-12-2010 (Sexual assault), it is advised that:-
(a) As a result of investigations carried out the accused person is yet to be arrested.
(b) The relevant papers are held by this station pending possible receipt of further information. In the event of any new development you will be advised.
Please advise this Station of any change of address.
The Tribunal has a number of concerns in relation to the authenticity of this document which it discussed with the applicant. Firstly, the country information indicates that there is a Police Station in [Town 1] which is [a number of] kms from [Location 1] [2] [3] where the applicant was staying with her mother and brother at the time of the sexual assault and report to the Police. The Tribunal would expect her to have gone to the [Town 1] Police Station to make a report and not to the [Location 2] Police Station which is [a number of] kms from [Location 1]. Secondly, the letter gives an address for her in [Location 2]. Her evidence is that she was staying with her mother at [Location 1] at that time.
[2] [Source deleted].
[3] [Source deleted].
When the Tribunal raised this as an issue with the applicant she responded that a report can be made at [Town 1] but documents have to be picked up from [Location 2]. The Tribunal does not find this response to be convincing for the reasons given below.

The Tribunal does not accept that Mr [C] made inquiries about the applicant with [Ms B]. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal does not accept that the applicant had any direct or indirect contact with Mr [C]. It follows that the Tribunal does not accept that the applicant was sexually assaulted by Mr [C] or any of her claims that flow from that.
The Tribunal does not accept that the applicant is of adverse interest to Mr [C], [Organisation 1], any other Zimbabwean authority, the ZANU-PF or the community at large because she left Zimbabwe and travelled abroad and/or because she considers herself “too good for Zimbabwe”.
The Tribunal accepts that the applicant had an unplanned pregnancy which she terminated in [City 1] [in] February 2011. The Tribunal accepts that she still has some unresolved emotional issues in relation to this.
The Tribunal accepts that the applicant’s brother is a good [sports] player, he was selected to play in [Country 1] but was unable to do so. The Tribunal does not accept that this was caused by any of the reasons claimed. The Tribunal does not accept that he is a member of the MDC and [an official] in the [Town 1] Constituency. It follows that the Tribunal does not accept any of her claims that flow from that.
The Tribunal accepts that the applicant’s mother warned her and her brother not to get involved in politics. The Tribunal does not accept that she attended any political rallies in Zimbabwe. The Tribunal does not accept that she joined the MDC in 2017. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal is not satisfied that she has any interest in the MDC or in politics in general or that she will do so upon her return to Zimbabwe.
Therefore, the Tribunal finds that the applicant is not of adverse interest to Mr [C], [Organisation 1], any other Zimbabwean authority or ZANU-PF for any of the reasons claimed.
In view of the above, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be subject to serious harm or significant harm for reason of her actual or imputed political opinion and/or her membership of a particular social group/s being ‘Zimbabweans known to have anti-government associations who left Zimbabwe to reside in Western countries during the early 2000s’ and/or ‘Relatives of Zimbabwean political dissidents’ and/or ‘Zimbabweans who have been identified by security officials as being security concerns’ and/or ‘a family member of political dissidents’ if she returns to Zimbabwe now or in the reasonably foreseeable future.
The Tribunal has considered whether there is a real chance or a real risk that the applicant would be subject to serious harm or significant harm for reason of her membership of a particular social group being ‘women’ and/or ‘women in Zimbabwe’ and/or ‘women in Zimbabwe who have previously attracted attention from security forces’ as submitted by her migration agent. The Tribunal has had regard to the country information referred to in the submissions.
In view of the findings above, the Tribunal does not accept that the applicant is a member of the particular social group ‘women in Zimbabwe who have previously attracted attention from security forces’ as submitted by her migration agent.
Country information on women and girls in Zimbabwe indicates that:
The Constitution provides for the full participation and equal representation of women in all spheres of society, as well as equal access to resources. It also prohibits discrimination on the basis of sex, gender, marital status, pregnancy or culture. Section 124 of the Constitution provides for an additional 60 National Assembly seats reserved for women on a proportional representation basis for the first two terms of Parliament.[6]
[6] Ibid.
Country information also indicates that domestic violence and sexual abuse, more particularly intimate partner violence and abuse, persists. It indicates that ‘although the Criminal Law (Codification and Reform) Act and the Domestic Violence Act criminalize rape and domestic violence, societal discrimination and domestic violence persist and sexual abuse is widespread’.[7]
[7] Ibid.
DFAT assess that ‘women face a moderate level of official discrimination given their limited access to senior bureaucratic and other official posts and the ineffectiveness of State protection for women subjected to intimate partner violence and gender based violence. Women face a moderate level of societal discrimination because of broad societal tolerance of sexual and other violence against women.’ [8]
[8] Ibid.
In this case, the applicant’s mother and brother live at [Location 1]. She lived there with them until she left Zimbabwe in 2008 and when she returned to visit in 2009 and 2010. She will therefore have accommodation and the support of her mother and brother when she returns to Zimbabwe. She will also have the protection of an adult male. There is no suggestion that she was subjected to domestic violence or fears domestic violence at the hands of her mother or brother. There is no evidence before the Tribunal that she had an intimate partner in Zimbabwe.
The applicant completed High School in Zimbabwe. She has obtained a [degree] in Australia. She has gained work experience in a number of different jobs in Australia. Her prospects of obtaining employment would therefore be better than many other Zimbabweans. Her evidence to the Tribunal is that she has not worked since the birth of [her daughter] and that her partner, [Mr F], has financially supported them for the last three years. There is no suggestion that he will not continue to do so until such time as she finds employment in Zimbabwe.
The applicant is in a long term relationship with [Mr F] who is from Zimbabwe and now an Australian citizen. She is therefore able to return to Zimbabwe and apply for a Partner visa to re-join him in Australia. Without pre-empting the outcome of an application for a Partner visa, there is no apparent reason why she would not be granted that visa. Her stay in Zimbabwe is therefore unlikely to be for an extended period. In the meantime, she and her partner will have to agree on an interim arrangement. One option is for her partner and daughter to accompany her to Zimbabwe. Her migration agent has submitted that they are unable or unwilling to obtain Zimbabwean documents to enable this to happen.
In view of the findings above, the Tribunal does not accept the submission that the applicant fears approaching the Zimbabwean Embassy to renew her passport which has expired. The country information indicates that recent amendments to the Citizenship of Zimbabwe Act now enable Zimbabwean citizens to hold dual citizenship.[9] [Mr F] is therefore able to hold both Zimbabwean and Australian citizenship. He is also able to apply for a Zimbabwean passport.
[9] Zimbabwe: Cabinet Okays Citizenship Law Amendments to Bring Dual Citizenship, AllAfrica.com, 27 February 2019. (
As indicated earlier, [her daughter]’s birth will have to be registered with the Registrar General in order for her Zimbabwean citizenship rights to be activated. As her birth has not been registered within twelve months of her [birth], written authority may need to be sought from the Registrar General. The Tribunal does not accept the submission that there is a real risk that the Registrar General may refuse to register the birth of returnees in order to limit voting rights and adverse voter turnout in view of [her daughter]’s age and more importantly the recent amendments to the Citizenship of Zimbabwe Act which enable Zimbabweans to hold dual citizenship and therefore voting rights. Once [her daughter]’s Zimbabwean citizenship is recognised she will be able to apply for a Zimbabwean passport. The Tribunal does not accept that she may not be able to access public services like education and health care.
A second option available to the applicant and [Mr F] is for her and [her daughter] to go to Zimbabwe without him and live there for a short period until she is able to obtain a Partner visa and return to Australia. The evidence before the Tribunal is that he has financially supported her and [the daughter] for the last three years. There is no suggestion that he will not continue to do so until she returns to Australia. [Her daughter] would have the opportunity to get to know the members of her extended family in Zimbabwe. Her maternal grandmother and maternal uncle speak English so she will be able to communicate with them and have the opportunity to experience a different culture. In view of her age, it is unlikely that she will attend school in Zimbabwe. In these circumstances, the Tribunal is not satisfied that the applicant or [her daughter] would be subject to discrimination or harassment or psychological harm on the grounds that [her daughter] was born overseas and/or her father has dual citizenship as submitted.
A third option available to the applicant and [Mr F] is for her to return to Zimbabwe on her own. Her evidence is that [Mr F] does not want to return to Zimbabwe and does not want [her daughter] to go to Zimbabwe. This is clearly the least desirable option, but if this is the decision that they make, it would mean that she would be separated from [her daughter] for a short while. It would also mean that child care arrangements would have to be made for [her daughter] with family or friends or at a child care centre or, alternatively, for her to attend pre-school during work hours so that [Mr F] can continue to work and support his family.
In the circumstances of this case, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be subject to serious harm or significant harm for reason of her membership of a particular social group being ‘women’ and/or ‘women in Zimbabwe’ if she returns to Zimbabwe now or in the reasonably foreseeable future.
The Tribunal has considered whether there is a real chance or a real risk that the applicant would be subject to serious harm or significant harm for reason of her membership of a particular social group being ‘a returnee from overseas’.
Country information on the treatment of returnees indicates that:
Credible sources have told DFAT that, although [Organisation 1] personnel [only] take an interest in high profile individuals, including human rights activists, senior opposition party members, and anyone accused of committing a crime overseas. This could include involuntary returnees because of their actions in lodging protection claims overseas, although DFAT is aware of third country returns who have not been subjected to adverse attention by Zimbabwean authorities. DFAT assess that only high profile involuntary returnees would bear this risk.[10]
[10][Source deleted].
When the Tribunal discussed the above country information with the applicant, she responded that [Organisation 1] and authorities abuse their power. She stated that they do not have to account for their actions and can get away with anything. She stated that what their duties are and what they are supposed to do is different from what they do. She stated that they harm people. This response does not address the issue raised.
The Tribunal has found that the applicant is not of adverse interest to [Organisation 1] or any other Zimbabwean authority. In view of the findings above, the Tribunal is not satisfied that she or any member of her family have a high profile that it likely to attract the adverse attention of [Organisation 1] or any other Zimbabwean authority on her return to Zimbabwe.
The Tribunal accepts that the applicant may be subject to comments or even discrimination from some members of the community because of her prolonged stay in Australia. The Tribunal is not satisfied, on the evidence before it, that this would amount to serious harm or significant harm.
In view of the above, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be subject to serious harm or significant harm for reason of her membership of a particular social group being ‘a returnee from overseas’ if she returns to Zimbabwe now or in the reasonably foreseeable future.
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?
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?
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.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Zimbabwe now or in the reasonably foreseeable future.
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.
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
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.
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
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.
…

[2019] AATA 3425

2 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction