1700966 (Refugee)

[2021] AATA 3194

1700966 (Refugee) [2021] AATA 3194 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700966

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Paul Noonan

DATE:9 June 2021

PLACE OF DECISION:  Melbourne

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

(i) that the applicant satisfies s 36(2)(aa) of the Migration Act1958 (Cth) (the Act); and

(ii)   that the other applicants satisfy s 36(2)(c)(i) of the Act, on the basis of membership of the same family unit as the applicant.

Statement made on 09 June 2021 at 04:57pm

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – political opinion – Zimbabwe Congress of Trade Unions (ZCTU) – Movement for Democratic Change (MDC) – credibility – parent’s status and other relatives’ close association with ruling party – other relatives’ ongoing support of applicant – no application for protection made in other countries and delay in applying in Australia – application made the day before student visa due to expire – voluntary returns to home country – complementary protection – new government’s crackdown against members and associates of former government – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 91S

Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Zimbabwe applied for the visas on 12 September 2014 and the delegate refused to grant the visas on 5 January 2017.

3. [The first applicant] appeared before the Tribunal on 31 March 2021 to give evidence and present arguments. The second and third named applicants did not appear before the Tribunal and made no claims of their own in this matter.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act, as in force at the time, qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

19. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

20. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include the applicant’s husband and children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason or, if not, whether there is a real risk she will suffer significant harm if returned from Australia to Zimbabwe. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity and nationality

22. To the Department the applicant provided her Zimbabwe passport. The delegate was satisfied that the applicant’s biodata matched her passport identity and accepted that she is a citizen of Zimbabwe. On the information before me the Tribunal accepts that the applicant is a national of Zimbabwe, her receiving country. The Tribunal accepts that the applicant is who she claims to be.

    Claims

23. The applicant claims to fear being raped, abducted, killed or otherwise seriously harmed by the Zimbabwean authorities. She claims to fear the authorities because of her and her immediate family history of support for the Zimbabwe Congress of Trade Unions (ZCTU) and the Movement for Democratic Change (MDC). The applicant claims to have suffered a politically motivated gang rape of herself and her mother in [Year 1] and the beating of her father and that her father was killed in a targeted attack soon afterwards and her mother committed suicide by self-immolation. Further she and her brothers were beaten again in a politically motivated attack in [Year 5]. In a submission dated 15 November 2019 the applicant’s former representative also particularised the feared harm on the basis that the applicant also claims to fear harm from society and the authorities because of her long-term residence in a Western country that will make her a target for persecution due to her liberal views.

24. After the hearing the applicant’s current representative provided a post-hearing submission detailing the applicant’s education history in [subject].

    Political opinion

25. There are a number of troubling aspects to this case with respect to the applicant’s past actions and her relatives’ verified connections with the ZANU-PF ruling party that cause the Tribunal to have serious doubts about the credibility of the applicant’s claims of past harm due to her and her family’s political opinion.

26. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

27. The Tribunal also accepts that ‘if the applicant’s account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

28. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

29. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

30. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

31. The Tribunal accepts that the applicant’s parents have passed away. The Tribunal is prepared to accept the applicant’s evidence as reasonable as to why her parents decided to support the ZCTU and the MDC due to their opposition to the 1998 land reform policies of the Mugabe regime. The Tribunal also notes that support and membership of MDC was a common occurrence in Zimbabwe at that time. However, the Tribunal rejects as not credible that the applicant, her parents and her brothers suffered serious harm in the form of rape and beatings for this reason for the following reasons.

32. The applicant’s family had verified close links to the ruling ZANU-PF party when it was led by Robert Mugabe. The applicant’s [Relative 1], [Ms A], was a [Public official 1] (as reflected by [Ms A]’s [letter] of support contained on the applicant’s student file), her [Relative 2], [Mr B], was a [Public official 2] in the Mugabe regime and her [Relative 3] was a high-profile fighter and supporter of Robert Mugabe when he fought for power (as noted to have been independently verified by the Department in the decision under review). Her father was [an Occupation 1] and her mother worked for [Employer 1] indicating they held some status in society. None of these facts were disputed by the applicant when they were put to her. As noted by the Tribunal during the hearing that to ward off claimed politically motivated attacks it is implausible that neither she nor her family would not invoke her relationships with the ruling party at that time to force the cessation of such attacks or that such claimed attacks would be perpetrated at all. When this was put to the applicant she simply implied that this was not possible as she believed her [Relative 2] was attacking her, however, this claim is severely undermined by the fact that high ranking members of her family in the government have clearly supported the applicant in facilitating her travel outside Zimbabwe.

33. The applicant sought to argue that there was no ongoing connection and support with these ZANU-PF aligned family members. However, it is clear that the applicant has enjoyed the ongoing and sustained support of these family members in arranging her various overseas stays, including that of her [Relative 2]. This includes residing in [Country 1] from 2001 to 2009 which was arranged by her [Public official 1] [Relative 1] and her residence in [Country 2] from 2009 to 2012 and her [Relative 1] also formally supported her Student visa application to Australia. She also spent a month in [Country 3] in May 2009. None of this is disputed by the applicant. As put to the applicant it may be considered implausible that such senior members of the government would risk their careers to assist a person who has an adverse profile with the government. The Tribunal rejects the applicant’s assertion that they did so only after extensive talks with family members and due to unspecified corruption considerations. If the applicant was known adversely to the authorities, and her family had been targeted for systematic persecution by the authorities for reason of their support of the MDC, it is highly implausible that she would have received such extensive and ongoing support from high profile and powerful representatives of those same authorities to facilitate extended stays in various overseas countries.

34. The Tribunal also gives considerable weight to the evidence with respect to the applicant’s extended stays overseas. During these extended periods overseas the applicant did not apply for protection and also did not do so for some time after arriving in Australia. When this was put to the applicant, she submitted that she had been young and naïve and did not understand her protection options. The Tribunal simply does not accept this as reasonably plausible. Protection options are well publicised in [Country 1] as they are in Australia. The Tribunal finds that this failure to apply for protection in [Country 1] and delay in applying in Australia, despite residing in these Western countries for many years, with the last few in [Country 1] being illegally, with the commensurate threat of deportation at any moment, seriously undermines the credibility of the applicant’s claim to fear harm for reason of her political opinion. If the applicant had suffered past harm as claimed, including rape of herself and mother, the beating of her father and his assassination and the related suicide of her mother, all for reason of their political opinion, the Tribunal would expect the applicant would be highly motivated to seek protection at the earliest possible moment. Further, after arriving in Australia in March 2012 she did not apply for protection until September 2014, which is a delay that further undermines the credibility of her claim to fear harm for reason of her political opinion. She only applied for protection on the day prior to her Student visa expiring and when she was at imminent risk of becoming unlawful in Australia. The Tribunal does not accept the applicant’s submission that she was advised to wait for her Student visa in Australia to expire before applying for protection as reasonably plausible for the reasons outlined above. Further, the Tribunal notes that the applicant had also previously extended her Student visa rather than apply for protection.   

1. It is also highly implausible the applicant willingly returned to Zimbabwe on two further occasions after residing in [Country 1] and travelling briefly to [Country 3] (where she informed the Tribunal it had simply not occurred to her to apply for protection). She returned from [Country 1] in 2009 after what DFAT indicates coincided with a deeply flawed and highly violent election process contested by Robert Mugabe’s ZANU-PF and Morgan Tsvangarai’s MDC.[1] When this concern was put to the applicant, she submitted that she had gone because she did not think she would be recognised by the authorities and was motivated to return and see her brothers. Given the applicant’s claims that her family had suffered persecution in the past the Tribunal simply does not accept this explanation as reasonably plausible. Further, as put to the applicant her brothers had continued to reside in Zimbabwe unharmed for the entire time she was in [Country 1]. The applicant then claimed they had been indirectly targeted when they had participated in MDC protests. When considering this evidence the Tribunal considers that it is far more plausible that the applicant simply returned to visit her brothers in 2009 with no fear of harm because the claimed politically motivated past harm had not actually occurred.

   [1] DFAT Country Information Report, Zimbabwe, 19 December 2019, section 2.3.

2. Further, as discussed at hearing, there is very little evidence to indicate that the applicant may have a current adverse profile with the authorities for reason of her claimed support of MDC. She has been out of the country for many years and has not participated in any active campaigning. She submitted that she had marched in a rally in Melbourne, but submitted no evidence of having done so, and had joined MDC in 2004 while in [Country 1]. She had no membership card, which she claimed was taken from her when she went back to Zimbabwe. She did submit a letter, dated 31 August 2014, stating that she had joined MDC in 2000, however, this letter’s signature is different to a further letter from MDC dated 1 September 2014 from the same purported author. When the Tribunal put to the applicant this may indicate the letters are fake the applicant simply responded that MDC has a lot of factions and different opinions and that she would want to represent her support for MDC given the opportunity. The Tribunal considers her evidence of past support of MDC to be vague and the origin of the purported letters evidencing her past membership to be suspect. These issues raise further doubts about the credibility of her claim to have been a past active member and supporter of MDC.

3. For the reasons outlined above, the Tribunal finds that the applicant has concocted her claims that her father, mother, herself and her brothers have suffered harm for reason of their support of MDC and that the applicant has been and is an active member and supporter of MDC. Accordingly, the Tribunal finds that the applicant will be of no adverse interest to the authorities for reason of her political opinion as an MDC supporter should she return to Zimbabwe. Accordingly, the Tribunal is satisfied that there is not a real chance that the applicant will be persecuted for reason of her political opinion or because she is a member of a particular social group comprising her family who are or were MDC activists.

   A returnee from the West

4. As put to the applicant at the hearing, DFAT notes that the International Organization for Migration runs a voluntary assisted return and reintegration program aimed at assisting migrants who wish to return voluntarily to Zimbabwe, including failed asylum seekers. DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution or mistreatment on return.[2] The applicant submitted that it is a generally dangerous situation in Zimbabwe.

   [2] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.56.

5. The Tribunal notes that the applicant has returned in the past unimpeded to Zimbabwe. The Tribunal accepts the country information that there are no documented cases of failed asylum seekers having faced persecution or mistreatment upon their return. On this basis the Tribunal finds that the applicant would not face a real chance of suffering persecution involving serious harm if returned to Zimbabwe on the basis of being a member of a social group comprising failed asylum seekers from a Western country.

   Complementary protection

6. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

7. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Zimbabwe, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the refugee criterion.[3]

   [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

8. As noted above ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

9. As with the refugee criterion, the assessment of the complementary protection criterion is not restricted to events occurring in the applicant’s country of reference before their arrival in Australia. A risk of harm may arise as a result of actions or events which have occurred while an applicant is in Australia. This may be due to changing circumstances in the receiving country, or the applicant’s own actions, or those of a third party.

10. When the Tribunal put to the applicant that her family government connections may be considered to provide her with ongoing security and support should she return to Zimbabwe the applicant refuted that this would be the case. She stated that she has no personal connection with any family there and her immediate family are scattered across the world.

11. The Tribunal has carefully considered the current political situation in Zimbabwe given the applicant’s verified family political connections. In this context the situation of the applicant, should she be required to return to Zimbabwe, is of some concern to the Tribunal. The Tribunal notes that the applicant did not raise this issue as a claim with respect to fearing harm. There are reports that the current regime has enacted a crackdown against former ZANU-PF members aligned with Grace Mugabe, the widow of the late president Robert Mugabe.[4] There are also credible reports that the applicant’s [Relative 2], [Mr B], lost his position in the new government of President Emmerson Mnangagwa and was subsequently arrested and charged with corruption.[5] This suggests he has been caught up in this politically motivated targeting.

    [4] Zimbabwe – United States Department of State – 2020 Country Reports on Human Rights Practices: Zimbabwe ‘Section 1. Respect for the Integrity of Person’.

    [5] [Reference deleted] (voazimbabwe.com) (accessed 8 April 2021).

12. In its latest report the United States Department of State reports that:

    ·In 2020 the Zimbabwe Republic Police maintain internal security. The Department of Immigration and police, both under the Ministry of Home Affairs, are primarily responsible for migration and border enforcement. Although police are officially under the authority of the Ministry of Home Affairs, the Office of the President directed some police roles and missions in response to civil unrest. The military is responsible for external security but also has some domestic security responsibilities. The Zimbabwe National Army and Air Force constitute the Zimbabwe Defense Forces and report to the minister of defense. The Central Intelligence Organization, under the Office of the President, engages in both internal and external security matters. Civilian authorities at times did not maintain effective control over the security forces. Members of the security forces committed numerous abuses.

    ·Significant human rights issues included: unlawful or arbitrary killings of civilians by security forces; torture and arbitrary detention by security forces; cases of cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening prison conditions; political prisoners or detainees; arbitrary or unlawful interference with privacy; serious problems with the independence of the judiciary; serious government restrictions on free expression, press, and the internet, including violence, threats of violence, or unjustified arrests or prosecutions against journalists, censorship, site blocking, and the existence of criminal libel laws; substantial interference with the rights of peaceful assembly and freedom of association; restrictions on freedom of movement; restrictions on political participation; widespread acts of corruption; lack of investigation of and accountability for violence against women; crimes involving violence or threats of violence targeting women and girls, and the existence of laws criminalizing consensual same-sex sexual conduct between adults, although not enforced.

    ·Impunity remained a problem. The government took very few steps to identify or investigate officials who committed human rights abuses, and there were no reported arrests or prosecutions of such persons.[6]

    [6] Zimbabwe – United States Department of State – 2020 Country Reports on Human Rights Practices: Zimbabwe ‘Executive Summary’.

13. Should the applicant return to Zimbabwe, she will do so as a family member of [Mr B] and of a family with former close links to Robert Mugabe whom the current leader ousted in a coup.[7] The Tribunal considers there is a risk, that is not insignificant, that she will be targeted by the current regime for reason of these personal family connections given the above country information. The latest country information reflects that the new regime is engaging in widespread and significant human rights abuses.

    [7] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.9.

14. Given the above considerations and country information the Tribunal has concluded that there is a real risk that the applicant will suffer significant harm in the form of torture and arbitrary killing by the authorities for reason of her family history and her [Relative 2]’s loss of power in a politically motivated crackdown.

15. The Tribunal notes that the applicant did not raise this issue as a claim with respect to fearing harm. Accordingly, the Tribunal is not satisfied that the applicant holds the requisite Convention based subjective fear in relation to state harm due to her family connections and so has not considered this issue under the refugee criterion.

16. As noted above there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

17. The Tribunal considers that relocation is not an option as the authorities are the agents of harm.

18. Given the country information about the current level of abuses perpetrated by the State and the authorities, the endemic corruption and the fact that the potential agent of harm is the authorities for reason of the applicant’s family profile, the Tribunal is satisfied that she could not obtain protection such that there would not be a real risk that the applicant will suffer significant harm.

19. Finally, the harm is one specific to the applicant’s circumstances being her family connections and history. Accordingly, she is not excluded from the complementary protection criterion by any of the provisos set out in s 36(2B).

    Conclusion

20. For the reasons set out above, the Tribunal is 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 serious harm, including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

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

22. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are the husband and child of the applicant (as per the Australian Birth Certificate on the Department file, dated [Date 1], and the Australian Certificate of Marriage on the Department file, dated [Date 2]). As such they are of the same family unit as the applicant for the purposes of s 36(2)(c)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a Protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.

    DECISION

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

    (i)that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act); and

    (ii)that the other applicants satisfy s 36(2)(c)(i) of the Act, on the basis of membership of the same family unit as the applicant.

    Paul Noonan
    Member