1700617 (Refugee)

1700617 (Refugee) [2020] AATA 650 (8 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700617
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Tania Flood
DATE:8 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.

Statement made on 08 January 2020 at 11:53am
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – Movement for Democratic Change – particular social group – returned asylum seeker – anti-government – claims harmed by authorities – student son potentially subjected to serious harm to complete tertiary studies – compulsory National Youth Service Program – politically partisan training – state protection not available – safe relocation within home country not feasible –other applicants members of same family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 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 and Border Protection on 23 December 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants’ who claim to be citizens of Zimbabwe, applied for the visas on 15 January 2015. The delegate refused to grant the visas on 23 December 2016.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Zimbabwe for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Zimbabwe there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Summary of claims
The applicant’s claims are outlined in detail in a typed statement dated 16 January 2015 which is annexed to his application for a Protection visa. His claims are summarised as follows:
He is Zimbabwean but before coming to Australia he lived with his family in [Country 1] since 2007.
Since the formation of the Movement for Democratic Change (MDC) he has actively supported the party.
In December 1999 he came to the attention of the Central Intelligence Organisation (CIO) who warned him to cease his support for the opposition. In early January 2000 he was taken from his house, along with others, to a secret location where he was beaten before being released. A similar event happened in February 2000.
In May 2000 two CIO’s escorted by two police officers came to the house at [a certain time]. They searched the house and took away their MDC papers and cards and threatened their lives.
Due to these incidents he decided to leave the country. He moved to [Country 1] in August 2000.
In [Country 1] he was not actively involved in opposition politics although every now and again he would secretly go home and meet members to get feedback on progress.
In January 2003 he was transferred to [a certain] area in [Country 2]. When his contract ended in March 2005 he and his family went back to Zimbabwe and lived in Harare. In around mid-April he was arrested by police and held for [a number of] weeks at [Named] police station. He was beaten up, interrogated and physically tortured. They threatened to kill his family if he continued to support the opposition. Upon his release he noticed he was constantly being followed and monitored by CIO’s.
In February 2006 he was attacked at his house in [Named Location] and arrested again on suspicion of supporting the opposition. After that incident he restricted his movements.
In March 2007 he moved to [Town 1] with his family and worked for [Named Employer] at their [office]. One day when he was visiting a [site] with colleagues they were approached by a person who claimed to be a war veteran named [Mr A]. He was beaten with a steep pipe. [Mr A] accused the management of the mine of working with the opposition. He found out later that [Mr A] had information about his previous activism in Bulawayo.
Around that time the political situation was worsening. In December 2007 he quit his job and moved with his family to [City 1] in [Country 1] where they lived until February 2012.
He did not seek asylum in [Country 1] because the process takes so long and it was easier to apply for a [temporary] visa. They set up a shop which his wife ran and he [worked]. He came to realise that [City 1] was becoming flooded with people from Zimbabwe and there were a lot of CIOs residing in the city. He felt it was safer for him to migrate to Australia.
He initially did not want to apply for a Protection visa in Australia because he believed the situation in Zimbabwe would improve. That is why he chose to apply for a [temporary] visa.
He has been told by friends that he is still targeted in Zimbabwe. He fears for his life in Zimbabwe.
Submission to the Tribunal
On 24 October 2019 the Tribunal received a submission made on the applicant’s behalf. The applicants’ claims which are outlined above are repeated in the submission. In addition it is claimed that the second named applicant is also a supporter of the MDC. The submission outlines the following responses to contested findings of the delegate:
As to the delegates finding that the applicant was not targeted by the Zimbabwean government it is submitted that the applicant is a very extroverted person and speaks openly about injustices, abuse and corruption. It is submitted that it is difficult to be both a member of the MDC and a senior [industry] official and not speak openly against the injustices, political abuse and incompetence of the ruling party elite as their policies and actions directly affect the way you do business.
As to the delegates finding regarding the applicants lack of detail on how he was targeted by the CIO and monitored, it is submitted that it is a known fact that the CIO keep tabs on all citizens outside the country by marking their passports with the country they currently reside in as their “country of permanent residence” despite the holder not actually having such status in that country. Also, the CIO keeps tabs on all professional people. A few months after being transferred from [one location] to [another] the officer commanding the CIO called “[Mr B]” approached him at [Named Location] and wanted to confirm his real name. It is submitted that “[Mr B]” had his file from the CIO and wanted to know if he had changed his name to [Alias 1], [Alias 1 surname] being his nickname. Further, the CIO used unmarked vehicles to follow people of concern to them. The CIO makes it known it is following a person as a means of intimidation.
As to the delegates conclusion that it is not plausible that a person who genuinely fears for their life to consider pride as an obstacle to seeking protection, it is submitted that whilst in [Country 3] the applicant’s wife wanted to apply for protection but the applicant said no because he believed he would be able to get a job and live in any country in the world by applying for a [specific] visa.
As to the delegates finding that the applicant did not leave Zimbabwe in fear of his life, it is submitted that the applicant was actually residing in [Country 1] on a work visa before leaving for Australia. It is submitted that there was no need to apply for protection at an earlier date in Australia because he had a valid work visa and therefore had no need to apply. This decision should have no bearing on the authenticity of his claims. The prospect of applying for protection only became a reality for the applicant when his work visa was getting close to expiring and he was unable to find a suitable job to maintain his work visa. There was also no other visa he could apply for.
Attached to the submission are various articles which it is submitted provide a clear understanding and picture of the current situation in Zimbabwe and support the applicant’s claims for protection. It is submitted that if the applicant is forced to return to Zimbabwe there is a real chance his life (and his family’s lives by association) would be in danger and/or a real risk that he will suffer significant harm. His claims for protection are based on his political opinion, arising from his membership of a particular social group.
Tribunal hearing
The applicants appeared before the Tribunal on 31 October 2019. By and large the first named applicant repeated his claims as outlined above. He also provided the following background information:
He completed his higher schooling in [Country 3]. After completing his degree he went back to Zimbabwe but returned to [Country 3] a few years later to complete his Master degree. He returned to Zimbabwe in 1989 and lived and worked in numerous locations until 2000 when he relocated to [Country 1] for work. He subsequently lived for a few years in [Country 2] before returning to Harare in 2005. In 2007 he returned to [Country 1] where he remained until 2012 when he moved to Australia. His family accompanied him to these various locations but his eldest son remained in Zimbabwe where he was attending boarding school when the family moved to [Country 1] in 2007. Between 2007 and 2012 the applicant made numerous trips to Zimbabwe to visit family and for work purposes. These visits were generally short but on occasion he stayed for up to two weeks usually for work purposes. He confirmed that he suffered no harm during those visits. The applicant also travelled to [Country 4] in 2007 and to [Country 5] in 2010 for work purposes. The applicant stated he owns a vacant plot of land in Harare but sold his home years ago.
As to the applicant’s MDC involvement he said that he joined the party in 1999 but since about 2007 he has not maintained his formal membership. When questioned about his role in the party the applicant stated that he participated in [a certain activity] by [undertaking a particular task]. He said he held a position at branch level but could not recall the details of that position. He conceded it was a low level position. He said he had no political involvement in the years he lived in [Country 1] and [Country 2] as he was too far removed from the situation. That said, the applicant maintained that he is a well-known professional and that his expressed opinions about the political and economic situation in Zimbabwe and his support for the opposition was influential and therefore notable to the government. When asked for evidence of his membership of the MDC and/or his level of political involvement the applicant stated that he left everything behind in Zimbabwe.
The applicant was asked if he maintains any contact with his MDC colleagues in Zimbabwe. He responded that he is in a [Social Media 1] group for former classmates who are now located in various parts of the world. He said he has lost contact with MDC members in Zimbabwe because he has been away too long. He added that he is a member of a [Social Media 2] group whose members are largely from Harare. He said this group comments on political developments but also has an interest in [certain] issues. When asked if he is a regular user of [Social Media 2] he said he is not. He said he checks messages but doesn’t normally make any posts. He also said that he has written an article which makes suggestions for constitutional change in Zimbabwe which he intends to publish.
As to the applicant’s claimed past harm in Zimbabwe he added no further detail other than that outlined in his written statement. The Tribunal notes he initially failed to mention the attack on his house and his arrest in 2006 until prompted. The Tribunal also observed and discussed with the applicant at hearing the fact he frequently referred back to his written statement for the details of his claimed past harm.
As to his fears of returning to Zimbabwe now the applicant testified that he would find it difficult to keep quiet about the injustices and corruption in the country. He said that this will draw him back into the political arena and he said that speaking out about such matters will put him at risk of harm. He said that it is an unpredictable environment to return to and he noted that opposition members are still being abducted and that the rule of law is broken in Zimbabwe. Further, he said that the dire economic state of the country cannot be divorced from politics and that this will also determine his behaviour on return. He submitted that it would be abhorrent for him to return to such a situation and not speak up about it.
The applicant also testified that his absence from the country is recorded on his passport in that it states he is a “permanent resident” of Australia. When asked to explain why he will be suspected of being sponsored by western forces and considered an enemy of the state he said that if he returns to live in Zimbabwe he will be questioned about his absence and reasons for returning and it is even possible the government will think he is being sponsored by the Australian Government or the CIA, especially when his former support for the opposition is picked up. The applicant stated that the government will be aware of his visa status in Australia and his attempt to obtain asylum and he indicated that there is evidence of returnees from [Country 3] encountering problems on return to Zimbabwe. The applicant’s wife added that the former President Mugabe once declared that people who remained in Zimbabwe were “his” where those who left “were not his”.
The applicant’s wife and eldest son testified that they fear what will happen to them if something were to happen to the applicant. The applicant’s wife said that people opposed to the government are being persecuted and raped. His son said that his father’s political enemies would become his enemies. He added that he has had no stable home for many years and does not know where home is.
The applicant’s wife stated that she was a member of the MDC but was never actively involved in political activities. She said she thought her husband’s former involvement was putting them at risk and she urged him to stop. The applicant’s eldest son said he had no interest in Zimbabwean politics but if something were to happen to his father he could not say what would happen.
As to their ability to resettle in Bulawayo or Harare the applicant noted that he will soon be [a certain] age and he has lost the right to a pension in Zimbabwe. He said his children are still completing their education and he would not have the means to continue supporting them. He said he would be reduced to being a [certain occupation] and his children would be unable to get any work.
The applicant repeated his evidence to the delegate in respect of his delay in applying for a Protection visa in Australia, namely that he was too proud to do so until left with no alternative.
Post-hearing submission dated 14 November 2019
A further submission in support of the applicant’s claims was provided to the Tribunal on 14 November 2019. It includes the following submissions:
DFAT’s report of April 2016 clearly and categorically supports the applicants claims at page 10, clause 3.22, namely that credible sources have told DFAT that inter-party harassment and intimidation currently largely targets low-profile opposition party members and supporters. Reference is made to various articles and reports which indicate that failed asylum seekers returning to Zimbabwe face persecution.
FINDINGS AND REASONS
Country of reference
The applicants have produced copies of their Zimbabwean passports which verify their claimed identities and nationalities. The Tribunal accepts they are Zimbabwean nationals.
The first named applicant claims his membership and support of the MDC in Zimbabwe brought him to the adverse attention of the authorities, including the CIO and the police, and resulted in him being detained and tortured on numerous occasions between 1999 and 2007 before he last departed the country. It is also claimed that the second named applicant was an MDC member. The Tribunal does not find these claims to be convincing for a number of reasons which are outlined briefly as follows:
-    The first named applicant described a very low level of political involvement during the formative years of the MDC but subsequently refrained from any political activity while living for many years in [Country 1] and [Country 2]. The Tribunal is not satisfied that a person with such a low political profile would have attracted the multitude of problems which are claimed to have occurred.
-    The second named applicant described having no real political involvement at all.
-    The first named applicant’s oral and written accounts of the incidents of past harm were cursory and very scant on details and the reasons for the harm which was inflicted on him were not convincingly explained given his lack of political profile and long absences from the country. Further, the applicant relied frequently on his written notes to recall what were disturbing attacks on his person and property and even so he omitted to mention significant events until prompted by the Tribunal.
-    The link between his assault at the hands of [Mr A] and his political profile was not convincingly explained.
-    Significantly, he was able to make frequent return visits to Zimbabwe from [Country 1] between 2007 and 2012 without incident.
-    He made no attempt to seek protection in either [Country 1] or [Country 2] and there was a long delay between him arriving in Australia and his application for a Protection visa which is not in the Tribunal’s view sufficiently explained.

The Tribunal is prepared to accept the first named applicant, and to a lesser degree the second named applicant, may have had some minor involvement in MDC affairs many years ago but not to the extent which is claimed. The Tribunal is not satisfied that these applicants were MDC members or high profile or active MDC supporters or that the first named applicant encountered the past harm that is claimed between 1999 and 2007. It follows that the Tribunal is not satisfied the applicant or any of his family members will suffer serious harm on return to Zimbabwe for these reasons.
Irrespective of the above, the Tribunal found the applicants to be educated, informed and concerned citizens who genuinely fear for their futures in Zimbabwe under the Zanu PF led government. On the available evidence, the Tribunal accepts that the applicant and his family members, like many Zimbabweans then and now, are very opposed to the current government and favour political and economic change.
Is there a real chance the applicants will suffer serious harm if they return to Zimbabwe now or in the reasonably foreseeable future?
The Tribunal heard evidence from the applicants about their fears of returning to Zimbabwe for other reasons including their likely future political activity, that they will be targeted due to being returned asylum seekers and because they have lived outside of Zimbabwe for many years they will be suspected of being sponsored by western forces and enemies of the state. For the reasons which follow the Tribunal has not found it necessary to make a finding on these particular claims.
At the conclusion of the hearing the applicant’s wife expressed for the first time the fear that her sons, in particular her eldest son, could be taken and trained as youth militia and subsequently seriously harmed if the family returns to Zimbabwe.
Relevantly, country information indicates that Zanu PF established a National Youth Service in 2000 with the stated purpose of empowering Zimbabwean youth for nation building. However, in practice, it became a training ground for Zanu PF youth militia, including the so called green bombers, who along with state security departments such as the police, army and CIO were used to crackdown on opposition supporters. According to numerous human rights reports the green bombers were responsible for terrorising political opponents, electoral violence, including rape and murder and were instrumental in farm invasions.[1] The National Youth Service reportedly ended in 2009 while the green bombers were reportedly disbanded in January 2018. However there is information which indicates that the green bombers were re-established ahead of presidential and parliamentary elections in July 2018.[2] A more recent Newsday article reports that the opposition MDC has claimed that soldiers and green bombers dressed as riot police were deployed to crush an anti-government protest in Harare in August 2019.[3]
[1] Zimbabwe’s Zanu PF to revive infamous ‘green bombers’, Times Live, 16 December 2018
[2] ZWE106107.E-Zimbabwe: Viva Zimbabwe party, including leadership, structure, objectives and activities: requirements and procedures to become a member of the party: treatment of youth activists and members of opposition parties since the resignation of President Robert Mugabe in November 2017 (2016 – May 2018) Immigration and Refugee Board of Canada, 7 May 2018
[3] ‘Soldiers, Green Bombers dressed in police uniform’, Newsday, 19 August 2019.
An article entitled ‘National youth service training – shaping youths in a truly Zimbabwean manner’ [4] and another entitled ‘Fear, Terror and the Spoils of Power – youth militias in Zimbabwe’[5] support the applicants submissions below about the nature of the youth training employed in the past. These articles indicate that the training was reportedly politically partisan and military in nature. They also indicate that the youth militia have themselves become victims of serious abuse in the course of their training. It’s reported that the training conditions in the camps were severe and involved political indoctrination, intimidation, physical violence and abuse including rape. Some youths who fled the training and even the nation to escape, reportedly demonstrated signs of severe depression and guilt as a result of what they have seen and done.
[4] ‘National youth service training – shaping youths in a truly Zimbabwean manner’,
[5] Fear, Terror and the Spoils of Power – youth militias in Zimbabwe, -power--youth-militias-in-zimbabwe.html
A number of recent sources state that Zimbabwean authorities plan to reintroduce a “rebranded” National Youth Service. For example, the December 2018 Times Live report says that Zimbabwean youths intending to go into government employment or attend state tertiary institutions would be forced to undergo national youth service from as early as 2019 as part of a resolution passed at a Zanu PF conference held near Bulawayo.[6] Another December 2018 report states that public servants might be forced to under ‘ideological orientation’ before recruitment if a proposal tabled by Zanu PF members is adopted. According to the article a few years ago the ruling party set up a college to ensure supporters get a deeper understanding of its history, values and principles. The college complements the Border Gezi youth militia training programme under which youths notoriously known as green bombers are taken through party orientation for six months. Zanu PF members now want civil servants to undergo the same orientation programmes.[7] A ZimEye article from August 2019 also states that the Zimbabwean government will soon reintroduce the National Youth Service.
[6] ‘Zimbabwe’s Zanu PF to revive infamous ‘green bombers, Times Live, 16 December 2018
[7] ‘Zanu PF urges ‘ideological training for civil servants’, New Zimbabwe, 7 December 2018
On 4 December 2019 the Tribunal invited the applicants to comment on this information which was sourced after the hearing held on 31 October 2019. The applicant’s responded as follows:
It is widely known that the National Youth Service has been used by the ruling elite to terrorise and subdue opposition members, their supporters and any members of the community regarded as “enemies of the state”. The prospect of it being re-introduced by the brutal Mnangagwa government is sad news for the citizenry of Zimbabwe. Whilst the government tries to sanitize the service as national service it is only used for the purposes of serving the ruling elite. The government also tries to make the recruitment look voluntary however youths intending to go into government employment or attend state tertiary institutions would be forced to undergo national youth service. During training there is a lot of brain washing and poisoned indoctrination together with training for fatal violence. It is submitted that the oldest son is studying law and is in his third year. If they are sent back to Zimbabwe he would have to enrol at a local Zimbabwean university and on completion of his studies he would logically enter the civil service for his pupillage training. Therefore he would be forced to attend the so called Youth Service where he would be forced to partake in activities for the political benefit of the ruling party which he abhors, including violent activities.
Based on this information, the Tribunal has formed the view that indications are that plans are underway to reintroduce a National Youth Service program which would require youths intending to attend state tertiary institutions to undergo national youth service. The Tribunal accepts that the eldest son is mid-way through a [degree] and that if the applicants are required to return to Zimbabwe he will enrol at a local Zimbabwean university to complete his studies. There are no indications that the younger son is currently a University student or is planning to enrol in a University in the foreseeable future.
Given the above, the Tribunal has considered whether the eldest son’s fears of being seriously harmed for this reason are well founded.
The Tribunal notes that Robert Mugabe was ousted as President of Zimbabwe in November 2017 by the military and that his former vice-president, Emmerson Mnangagwa (also of Zanu PF) assumed the Presidency and defeated the MDC’s Nelson Chamisa in another disputed presidential election in July 2018.
According to the International Crisis Group, Mnangagwa has appointed a cabinet filled with supporters, including military officers and war veterans. ICG states as follows:
Mnangagwa’s new administration rewarded key allies in Zanu PF, brought in more war veterans and even two senior security service chiefs. It did not include opposition elements or external technocrats as had been expected. Although slightly slimmer in size, its composition reflects a large degree of continuity in substance, with at least a third of the cabinet having served in previous Mugabe administrations.[8]
[8] International Crisis Group, ‘Zimbabwe’s Military-assisted Transition and Prospects for Recovery’ Briefing No 134, 20 December 2017.
ICG assess that after initially striking a conciliatory tone in public statements, the new president appears to have backtracked, noting that immediately upon his return, Mnangagwa said that Zanu PF will continue ruling no matter what, while those who oppose it will continue barking. Instead of the new president charting a new national political course, ICG are concerned it is equally possible the country is witnessing nothing more than a reconsolidation of power by Zanu PF.[9] In a separate report the ICG noted that whilst the leader has gone, at least for now the regime remains.[10]
[9] As above
[10] International Crisis Group, ‘Three Critical African Elections”, Commentary/Africa, 4 December 2017.
DFAT’s most recent report echoes ICG’s analysis and states that initial hopes that the change of leadership would result in long-awaited improvements to Zimbabwe’s political and economic climate have been tempered by further economic deterioration, droughts and natural disasters, the violent repression of several demonstrations by security forces, and an increasing intolerance of political dissent.[11]
[11] DFAT, Country Information Report, 19 December 2019
DFAT’s report goes on to state that public confidence in the broader political reform agenda has been set back considerably by two recent cases in which security forces have used lethal force against demonstrators, resulting in mass casualties. In addition to 1 August 2018 post-election violence, security forces reportedly killed at least 17 demonstrators in mid-January 2019 during nationwide protests over fuel price increases. Fourteen of those killed were shot dead reportedly by security forces using live ammunition. Two died from injuries sustained following severe beatings while in another case an army truck ran over and killed a 54 year old woman in unclear circumstances. The Zimbabwe Association of Doctors for Human Rights reportedly provided emergency medical services to 81 people with gunshot injuries in various locations nationwide in the period between 14 and 21 January 2019.
Having regard to this information the Tribunal is not satisfied that a newly instituted National Youth Service will operate substantially different to the former version of the program. The Tribunal considers it likely that the National Youth Service could again forcibly require its participants to consolidate the reign of Zanu PF through any means necessary. In forming this view the Tribunal has placed weight on the reported remarks made by a Zanu PF central committee member in 2018 in regards to the proposed re-introduction of the national youth service – “Zimbabwe is ruled by a revolutionary party and for it to survive the youth have to know the country’s history and be patriotic” and the closing remarks of the party’s first secretary, President Emmerson Mnangagwa at Zanu PF’s 17^th annual people’s conference held in Bulawayo in 2018 in which he vowed that Zanu PF was on a self-restructuring exercise in order to rule for infinity.[12]
[12] ‘Zanu PF to revive infamous ‘green bombers’, The Zimbabwe Mail16 December 2018
In the circumstances and given the above reporting about the nature of the youth training provided in former years the Tribunal is satisfied that if the eldest son participates in a National Youth Service program in order to complete his tertiary studies he could be subjected to serious harm while undergoing what will essentially be forced, politically partisan training. The Tribunal is satisfied that like the rest of his family he is politically opposed to the current government and that his participation in a National Youth Service program of this nature will be in unwilling and in conflict with his political opinions. The Tribunal considers his reluctance to participate will be evident, if not expressed and together with the fact he has been absent from Zimbabwe for a great deal of his life, the Tribunal is satisfied that he will be at risk of being perceived as an opponent of the government.
DFAT’s most recent report[13] states that while there are no official restrictions on individuals criticising the government, or on the discussion of matters of general public interest in practice, authorities have been sensitive to criticism of the government in general, and particularly in cases when it has been perceived to be directed towards Mnangagwa personally. Despite a Supreme Court challenge, authorities have continued to charge persons accused of insulting the President and his office under section 33(2)(b) of the CLCRA. In September 2018, police cited a different section of the CLCRA while arresting a Harare man who had reportedly said that Mnangagwa was incapable of running the country. According to DFAT there have also been a number of recent cases in which perceived critics of the government have been temporarily abducted and mistreated by unknown assailants widely believed to be state security authorities.
[13] DFAT Country Information Report, Zimbabwe, 19 December 2019
DFAT assesses that the ability of Zimbabweans to criticise the government and express dissent publicly, either collectively or individually, is limited in practice. Authorities are likely to use broad interpretations of national security legislation to prevent political demonstrations from occurring where possible. Zimbabweans attempting to demonstrate without authorisation – and, to some extent, even with authorisation – face a high risk of violence from state authorities. Individuals who are perceived as being personally critical of Mnangagwa face a risk of both legal sanction and possible violence from state authorities.
Having regard to what the Tribunal accepts the third named applicant will do, or if not only because of fear of serious harm, the Tribunal has concluded that he faces more than a remote chance of serious harm on return to Zimbabwe on actual or imputed political opinion grounds. The Tribunal is satisfied he will face a real chance of being threatened, physically assaulted and/or abducted or arrested in Zimbabwe by Zanu PF supporters and groups aligned with Zanu PF, including state institutions for expressing anti Zanu PF opinions or for criticising the Mnangagwa government in connection with the National Youth Service program.
With respect to state protection, human rights observers report that state protection forces are heavily politicised and lack independence from government. DFAT reports that government has routinely used state authorities to restrict the activities of its opponents and the partisan stance of security forces remains a key feature of political life in Zimbabwe. Human rights observers have consistently raised concerns that civilian authorities have at times not maintained effective control over security forces, and that impunity for abuse by security forces remains the norm.[14] Having regard to this information the Tribunal is not satisfied that state protection is available to him in Zimbabwe.
[14] DFAT, Country Information Report, Zimbabwe, 19 December 2019
The Tribunal is also not satisfied that the third named applicant can safely relocate to another part of Zimbabwe to avoid the harm he fears as the agents of harm are state authorities or aligned with and authorised by the state, who exist nationally.
For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(a) of the Act.
The Tribunal is satisfied that the other applicants are members of the same family unit as the third named applicant for the purposes of s.36(2)(b)(i) of the Act. Therefore the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the third named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.
Tania Flood
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – 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; or
(b)     in a case where the person does not have a nationality – 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 it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 650

8 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction