1616256 (Refugee)

1616256 (Refugee) [2019] AATA 322 (31 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616256
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:David McCulloch
DATE:31 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2019 at 8:33am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – particular social group – former member of police force – political opinion – support opposition parties – house broken into and vandalised – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 19 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, applied for the visa on 16 January 2015.
The Tribunal conducted a hearing with the applicant on 16 January 2019. The Tribunal also took evidence by telephone from the applicant’s sister, [Ms A]. The applicant and her sister communicated with the Tribunal in English.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Zimbabwe, 11 April 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate indicates the following in relation to the applicant’s migration history. The applicant was granted a [temporary] visa offshore on 10 December 2014 which had been applied for on 11 November 2014. The applicant arrived in Australia [in] December 2014. The protection visa was applied for on 16 January 2015.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in [Zimbabwe]. The applicant is a Christian and lists her occupation as [an occupation]. The applicant was divorced [in] December 2014 from a marriage that occurred [in] October 2002. The applicant lists her mother and [siblings] living in Zimbabwe and a brother living in [another country]. The applicant lists her sister, [number] nieces and [number] nephews living in Australia.
The applicant left Zimbabwe legally through Harare international airport. The applicant travelled to [a second country] for a holiday in August and September 2012. The applicant visited her ex-husband in [Country 1] in April 2013. From birth until 1997 the applicant lived at an address in Harare. From 1997 until 2003 the applicant lived at [specified location in] Gweru. From May 2003 until May 2014 the applicant lived at another address in Harare. Between June 2014 and December 2014 the applicant lived at an address in Harare, being the same address lived at between birth and 1997.
The applicant completed her secondary education in [year]. Between 1992 and 1995 the applicant completed a course in [specified discipline] in Harare.
The applicant answers yes to the question as to whether she has ever been employed as an intelligence officer or an agent of an intelligence or security agency. In providing details, the applicant says that she worked for the police force [in specified role] from [1997] until [2007]. In providing further details of employment, the applicant indicates that she [has held various positions within the police force]. From January 2009 until December 2014 the applicant was [in a specified role] at [specified workplace] in Harare.
The application forms for the protection visa indicate the following claims for protection. The applicant came to Australia for [a family event]. The applicant left the police force in 2007, just before the 2008 elections. She left because they were forced to beat up people from the opposition. The applicant wanted to join the opposition. The applicant was resented and there were problems after she left the police force. Even though the applicant had left the force, people knew that the applicant was once in the force and have been seeking revenge. The problems resulted in the applicant’s husband leaving her.
Every year the applicant’s house is broken into and property vandalised but nothing taken. Notes are left that the applicant should not have left the police force, she is a traitor and will be dealt with accordingly. The applicant does not know who breaks into the property and why. The applicant worries about what will happen if she is at home when they break in. The applicant does not know if the break-ins are from people in the community or the police.
The applicant ended up moving in with her mother but in November 2014 someone threw stones and broke windows at the home. Each time incidents happen the applicant reports the matter to police. So far nothing has been done. The applicant is told on each occasion that she should not have left the police force.
In the police force, the applicant was forced to vote for the President in front of an officer in charge and this was an arrangement she did not like.
The applicant cannot relocate as [her specialised occupation] can only be found in Harare. The applicant thought she would be safe in her mother’s home but this was not the case. She is scared to relocate to another city where there are no family members. The applicant tried to move to [Country 2] where her husband was working but he was not comfortable with the arrangement. He thought that people from Zimbabwe would follow and create problems for him. The applicant had to return to Zimbabwe.
The Tribunal notes the following from the interview between the applicant and the delegate of the Minister. The applicant’s mother is alive and living in Harare. The applicant’s father passed away in 1992. The applicant has [siblings]. A sister lives in Australia and has children. The applicant joined the police force [in a specified role] at the age of [age]. She progressed to being [a higher position], managing other [workers].
Although the applicant worked in [a specialised department], at busy times she and her colleagues would be called upon to engage in regular duties. This would include in the period in the lead up to elections. In the lead up to the 2008 election, the applicant did not like the fact that she was having to be involved in taking repressive action in demonstrations; beating up people for their political views. She said that she had to beat people up under orders from her boss and had to order others to beat people.
The applicant indicated that after she left the police force her home was vandalised. When asked how often and when the applicant said once in each of 2008, 2009 and 2010 and twice in 2012. The applicant indicated that on one occasion a glass door was broken and on another occasion a window was broken.
During the break-ins notes would be left and one note was found once in her letterbox. The applicant indicated that perhaps three or four notes had been left and they would say things such as ‘why did you leave the police force?’ and, ‘you should have remained in the police force’.
The applicant indicated in the interview that she did not know who had done this. People in the community might be involved or the police could be involved.
The applicant was asked whether she received other threats and she indicated that she did not, other than receiving the notes.
The applicant said that she moved in with her mother after her husband left at the end of 2013. The applicant indicated that stones were thrown at her mother’s house. The delegate said to the applicant that that could have been from anybody, kids. The applicant said that only happened when she was there. As a result, the applicant indicated that she returned back to her own home.
The applicant reported the incidents to her local police station and made a report, but nothing was done. When the delegate indicated that it might be thought that she would be given assistance as a former police officer she said that police could not help if there was not enough evidence.
The applicant indicated that at first her husband supported her but then deserted her. She could not have children, which was very difficult culturally and created issues with the husband. He did not want to be involved in the drama of the applicant’s life.
The applicant referred to potentially being targeted because of her uncle. He [held a senior position] with the police force. He moved positions to become [senior office bearer] of the opposition party.
The applicant referred to another relative [being] a prominent member of the opposition party, the Movement for Democratic Change (MDC). The applicant said that she supports some of the views of this party, such as not promoting violence.
The applicant provided in advance of the Tribunal hearing a document from the Zimbabwe Republic Police, being an ‘outcome of report received’ dated 20 April 2014, referring to a report to the police made on 10 April 2014. The document provides no details of the nature of the report but indicates that relevant papers are being held by the station pending possible receipt of further information.
Independent information
The DFAT Country Report – Zimbabwe, 11 April 2016 provides:
Zimbabwe Republic Police (ZRP)
Article 207 of the Constitution and the Police Act (1995) provide for the establishment of the ZRP. Article 208 of the Constitution provides for the establishment of a Police Service Commission, which is to ensure ZRP personnel do not act in a partisan manner or violate the fundamental rights or freedoms of any person. The ZRP is mandated to preserve internal security, maintain law and order, and protect life and property. It falls under the Ministry of Home Affairs and is commanded by the ZRP Commissioner-General, who is appointed by the President.
Headquartered in Harare and organised provincially, estimates of the size of the ZRP, including reserves, range from 40,000-60,000, though there are no official figures. Specialist and support roles include the ZRP Law and Order Section (riot police); the Police Support Unit (a paramilitary branch); the Criminal Investigation Department; and the Police Internal Security and Intelligence unit. Numerous ZRP units suffer from inadequate training and chronic under-funding, which has resulted in equipment and personnel shortages. Corruption in the ZRP is likely to exist at all levels.
The ZRP serves as the entry point for any matter concerning the criminal justice system. ZRP personnel receive statements from complainants; investigate cases; apprehend suspects; compile ‘dockets’ (or briefs of evidence known as ‘Form 242’s’); and present suspects to court. ZRP officers have been seconded to courts as public prosecutors to help clear the backlog of cases. Some also have quasi-judicial roles, responsible for assessing bail applications in minor cases; accepting admissions of guilt on behalf of the court; warning accused persons for minor cases; and summoning witnesses to court.
Reliable sources inform DFAT that the ZRP is a highly partisan force. Top police commanders are appointed, and expected to support ZANU-PF; political affiliation can impact on the effectiveness of police investigations, particularly in cases involving criminal and political violence; and ZRP personnel regularly use the POSA to restrict freedom of assembly and expression in support of ZANU-PF interests. There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests. On 21 October 2015, ZRP personnel reportedly assaulted a MDC-T member, Tazviona Marima, at the Rusape Police Station; and on 22 October 2015, police in Harare assaulted and detained NewsDay reporter Tapiwa Zivira for allegedly filming ZRP raids on ‘illegal’ households in the capital.
Prosecutions in police brutality cases are rare, with the majority of investigations into past allegations of security force brutality still pending. Sentences upon conviction are also generally lenient. On 28 October 2015, a court in Harare ordered two ZRP officers to pay fines of $100 each for brutally assaulting and permanently disabling a Harare man in May 2012.
ZRP roadblocks constitute another and more prevalent form of police harassment. These checkpoints are scattered throughout each city or town, and also on country roads. It is possible for a driver to encounter three or four roadblocks on even a relatively short drive in the city. Checkpoint personnel often demand payment of on-the-spot fines for alleged non-compliance with road rules, seeding corruption. The 2015-16 budget flagged an increase of these fines from around USD10-20 to USD100, which will provide even greater opportunities for corruption and place pressure on motorists.[1]
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Zimbabwe and accordingly her claims will be assessed against Zimbabwe.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, the applicant has been significantly inconsistent as to the number of times her home was vandalised and over what period.
The Tribunal in the hearing put evidence to the applicant provided by her in the interview with the delegate pursuant to the procedural requirements of s.424AA of the Act. That was evidence that her home had been subject to five break-ins, once in each of 2008, 2009 and 2010 and twice in 2012. It was noted to the applicant that this was markedly inconsistent with her evidence in the Tribunal hearing about break-ins occurring once or twice a month continually from 2008 until 2014. The applicant had indicated in response that whilst there may be gaps of a month or so between break-ins, on average there would be one to two break-ins per month.
The Tribunal noted to the applicant that this was a very significant discrepancy in a key aspect of the applicant’s claims which cast significant doubt on her credibility. The applicant elected to respond in writing.
In the written response provided after the hearing the applicant said that whilst there were many break-ins, they did not happen monthly. At times months would go past without any break-ins.

Whilst there might have been months between break-ins, the applicant was specific in evidence in the hearing that although there would be gaps, on average there were one to two break-ins a month. Whilst the Tribunal does not expect perfect recollection as to the number and frequency of break-ins, there is a vast difference between five break-ins over a period of five years, and break-ins averaging one to two times a month over a period of six years. The Tribunal also notes that in the hearing when the Tribunal put to the applicant that she had perhaps reported break-ins to the police 50 times she agreed that this was the case. There is a stark inconsistency between five and 50 break-ins.
Secondly, the applicant has been inconsistent in evidence as to whether she had suffered threats or difficulties in person from the individuals who were seeking to harm her in Zimbabwe. As put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act, in her evidence to the delegate at the interview she indicated that no threats or difficulties in person had occurred. In contrast, in the Tribunal hearing the applicant indicated that there had been one incident in which she had been a passenger in her husband’s car when the window of her car door had been broken by individuals who reached in and grabbed her bag. The applicant indicated that, whilst not sure, she had always thought that this could have been perpetrated by the individuals who are seeking to harm/intimidate her.
In the Tribunal hearing the applicant indicated that maybe she missed recounting this issue to the delegate and referred to her lack of certainty as to whether this was perpetrated by the individual seeking to harm/intimidate her. The applicant also elected to respond to this issue in writing. In response the applicant indicated that she was not sure whether this attack was connected with the break-ins or it was just a common theft.
The Tribunal is inclined to consider that if the applicant genuinely believed that the smashed window and bag snatching from a car was related to an ongoing attempt to intimidate/harm the applicant through multiple break-ins that she would have recounted this incident to the delegate and not have indicated that she suffered no direct threats or harm.
As elaborated in the issue below, on the version of the applicant’s evidence that there were no direct threats, the fact of individuals going to the effort of frequently vandalising the applicant’s house yet having no direct contact with her was not plausible to the Tribunal.
Thirdly, the applicant’s claims of a group of individuals seeking to harm/intimidate the applicant over a long period of time by constantly breaking into and vandalising the applicant’s house had an air of unreality to the Tribunal, as noted to the applicant in the hearing.
On the applicant’s evidence in the hearing the individuals that were seeking to harm/intimidate the applicant had gone to significant and sustained efforts by breaking into and vandalising her family home between 12 and 24 times a year. The applicant indicated in the hearing that neither she nor her husband were ever home when these break-ins occurred. She indicated that on most of the occasions of the break-ins she would report the incident to the police. The Tribunal put to the applicant that this would suggest, on the basis that there were 12 break-ins over six years, she had been to the police on about 70 occasions. When the applicant indicated that on some occasions she may not have reported the matter to the police and the Tribunal indicated that she perhaps had gone to the police on 50 occasions she agreed with that number of reports.
The Tribunal has great difficulty accepting that an individual or a group of individuals with an intent to target the applicant would do so with the rigour and sustained effort of breaking into her house and vandalising it between 12 and 24 times a year over four years, particularly without taking further steps to approach and intimidate or harm the applicant directly. The claims in this respect have an air of unreality.
Fourthly, the applicant has not provided documents supporting multiple reports to police.
There is a lack of documentary evidence to support in the vicinity of 50 complaints to police over a number of years. As it is, the applicant has provided only one police report with few details as to the substance of the complaint. The applicant indicated in the hearing that this related to an attack on her family home prior to her moving in with her mother. The Tribunal notes that in the interview with the delegate the applicant indicated that the last attack on her family home was in 2012, which is at odds the document which reports a complaint in April 2014.
The applicant requested in the hearing to be allowed more time to have relatives obtain other police records that she may still have in Zimbabwe as to complaints in relation to other break-ins. The Tribunal provided two weeks for the applicant to seek such further information. In the written response provided the applicant indicated that she had sent her niece in Zimbabwe to collect the reports from the police but she could not get them. This was because the police said that they would not give them to anyone but the applicant. In addition, it would take time to find information because they are stored in archives.
The discussion in the hearing with the applicant was about police records of the reports that the applicant still held in her possession in Zimbabwe, with the applicant indicating that she may be able to access such documents. The discussion was not about reports that the applicant would be able to seek to obtain from police.
Although not determinative in adverse credibility findings, the provision of one document only, evidencing one police report, when the applicant claims that she made approximately 50 reports to the police buttresses more significant credibility concerns.
The cumulative impact of the credibility concerns are significantly undermining as to the credibility of the claims made by the applicant including as to individuals or a group pursuing a vendetta against the applicant after she left the police force by continually vandalising her home. The Tribunal finds particularly adverse to the applicant the markedly inconsistent claims as to the frequency of the attacks on her home. The Tribunal does not find the applicant a credible witness.
Whilst the Tribunal accepts that the applicant was a member of and left the police force in 2007 for the reasons claimed, it does not accept that she was subsequently targeted either by police themselves or members of the community for the reasons claimed or at all. The Tribunal is not satisfied that the applicant was targeted as a result of having a relative in the police force or having relatives involved in opposition political parties.
The Tribunal is not satisfied that there are individuals or groups in Zimbabwe who have had or continue to have an intention to harm/intimidate the applicant for the reasons claimed. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm for the reasons claimed.
In making its findings the Tribunal has taken into account the document from the Zimbabwe police indicating the outcome of a police report from April 2014. Whilst the Tribunal accepts that the applicant made a report to police at this time it is not satisfied that the report was in relation to instances of break-ins as part of a constant pattern of break-ins over a period of many years as claimed. The provision of this one police report does not persuade the Tribunal as to the truth of the applicant’s claims.
The Tribunal has taken into account the evidence of the applicant’s sister, [Ms A] during the Tribunal hearing. [Ms A] did not provide any information that independently corroborated the applicant’s claims apart from indicating that the applicant had told her about the numerous break-ins. The Tribunal does not find that this evidence overcomes the cumulative impact of the credibility issues identified.
In the written response provided following the hearing the applicant referred to having generalised concerns as a result of the security situation in Zimbabwe. The applicant refers to reports of police officers being forced to vote in front of their superior officers. The applicant makes reference to allegations of individuals in the opposition party being killed and many more jailed. She refers to individuals being injured due to opposing the government. The applicant refers to women being raped. The applicant refers to there being no rule of law.
The Tribunal accepts that there are political, societal and public order difficulties in Zimbabwe, including as outlined in the DFAT report on the country referred to above. The applicant has not made claims that she is a member of any opposition political party although she has indicated family links to the opposition and that she supports the opposition.
The Tribunal is not satisfied that there is independent evidence before it to establish that an individual who supports opposition parties but is not themselves taking a significant part in political activity faces a real chance of serious or significant harm as a result of their political opinion. The Tribunal therefore does not consider that the applicant faces a real chance of serious or significant harm as a result of her political opinion.
The Tribunal is not satisfied that the independent evidence before it as to the situation in Zimbabwe demonstrates such a dire situation that every individual in the country faces a real chance of serious or significant harm. Therefore the Tribunal does not consider that the applicant faces a real chance of serious or significant harm simply as a result of being a citizen of Zimbabwe and resident in the country.
The Tribunal does not consider claims that police officers were forced to vote for the government by their superiors is now relevant to the applicant given that she has long since left the police force.
On the Departmental file is a Certificate and Notification issued under s.438 of the Act preventing the disclosure of information on the Departmental file on the basis that it contains an internal working document and business affairs. The Tribunal does not consider that this justifies the public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid. The information subject to the Certificate and Notification does not contain any matters significantly relevant to the applicant’s claims.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a reason set out in s.5J(1) of the Act for the reasons claimed. 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.
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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 [government] 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.
…

1. DFAT Country Report – Zimbabwe, 11 April 2016, paras 5.2-5.7

[2019] AATA 322

31 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction