1702142 (Refugee)

[2019] AATA 171

1702142 (Refugee) [2019] AATA 171 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702142

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Christopher Smolicz

DATE:18 January 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 18 January 2019 at 9:05am

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – particular social group – single women in Zimbabwe – victim of sexual violence – government employee as perpetrator – prevalence of gender-based violence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 12 May 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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 Country Information Report Zimbabwe 11 April 2016) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue

9. The issue raised by the applicant in this matter is whether she meets the refugee criterion or comes within Australia’s complementary protection obligations because:

   ·she fears harassment, rape and being murdered as a “single women in Zimbabwe” and as a “women in Zimbabwe”

   ·she has been raped by [an employee of Government Agency 1] and fears harm from the [man] and/or his associates if she returns to Zimbabwe.

   The applicant’s factual claims and the Tribunal’s findings

10. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, her statements of claim and her agent’s submissions dated 29 September 2018.

11. The applicant presented in a manner the Tribunal perceived to be truthful and credible, and her evidence was consistent with the country information applicable to her particular circumstance, which is detailed below. The Tribunal has decided to wholly accept the applicant’s evidence.

12. The applicant is a [age]-year-old single woman born in [Town 1], Zimbabwe. She has [number] sisters and [number] brothers. Her parents are deceased. One sister is living in [Australian State 1] and is an Australian citizen.

13. She completed a [specified qualification] in Zimbabwe. She arrived in Australia [in] March 2016 as the holder of a tourist visa which was valid until 12 June 2016. Since arriving in Australia the applicant has completed a [different qualification] and is currently working in [Industry 1]. She has not applied for any other substantive visa since arriving in Australia.

14. The applicant declared that she left Zimbabwe to come to Australia to visit her sister. She wanted to leave Zimbabwe permanently because she was sick and tired of being sexually assaulted and molested by men. 

15. She provided a detailed account of how in 2015 she was lured by a man offering her work in [Industry 2]. The man had no intentions of helping and raped her at [a named location] in Harare. He told her that worked for [Government Agency 1]. She did not tell anyone about the incident in fear that she may be HIV positive. She did not report the incident to the police in fear of being raped by the police and the fact that the man worked for [Government Agency 1].

16. She fears that as a young woman she will be unable to find work without connections in Zimbabwe. She fears that if she returns to Zimbabwe she will be raped and sexually assaulted and she will not have access to state protection. She also fears the [man] who raped her will kill her.

    Does the applicant have a well-founded fear of persecution for a convention reason?

17. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above and the country information applicable to the applicant’s situation.

18. The Tribunal is satisfied that single women in Zimbabwe constitute a particular social group for the purposes of the refugee criterion.

19. The Tribunal accepts that the applicant is a victim of a rape that occurred in 2015 and the perpetrator was [an employee of Government Agency 1]. The Tribunal accepts that the applicant is known to the [employee of Government Agency 1]. The Tribunal finds that the applicant did not report the incident to the police due to a fear of social stigma and reprisal by the police. The Tribunal accepts that the applicant has a genuine subjective fear of returning to Zimbabwe because of what has happened to her in the recent past. The Tribunal also accepts that as a young women growing up in Zimbabwe the applicant has regularly encountered sexual harassment and assault from males who act with impunity.

20. The Tribunal finds that the applicant’s experiences are consistent with the country information regarding sexual assault in Zimbabwe. In particular, the most recent United States Department of State (USDOS) Human Rights report confirms that while the law in Zimbabwe criminalises sexual offences, including rape, these crimes remain a widespread problem and social stigma and societal perception that rape was a “fact of life” continue to inhibit reporting of rape.[1]

    [1]United States Department of State Country Reports on Human Rights Practices for 2017 Zimbabwe p.33.

21. In 2013 the Research and Advocacy Unit reported that:

    Violence against women and children is a common phenomenon in Zimbabwe. It occurs, both in the private and public spheres, catalysed by a number of factors that stem from the way in which society is structured. These factors include culture, tradition, religion, politics, and the economy. These factors contribute to shaping societal perceptions of why violence against women occurs, how society perceives the victim and the perpetrator, and how society responds to address cases of violence against women. Amidst all the other forms of violence against women such as wife battering and ritual killings, rape is becoming an increasing social ill in Zimbabwean society.

    According to the Zimbabwe National Statistics Agency (ZimStat), ‘Quarterly Digest of Statistics,’ there has been incremental rising in the number of reported incidences of rape. The total increased from 3,481 in 2009 to 4,450 in 2010, 5,446 in 2011, and an alarming 2,195 cases between January and May of 2012 only. 470 of these cases were recorded in May 2012 alone. Fifteen (15) women are raped in Zimbabwe every day - one in every 90 minutes.[2]

    [2] Research and Advocacy Unity “She probably asked for it!” A preliminary study into Zimbabwean Societal Perceptions of Rape” April 2013 >

    DFAT’s Country Information Report provides the following information about gender based violence:

    3.50 Although the CLCRA and the Domestic Violence Act criminalise rape and domestic violence, societal discrimination and domestic violence persist, and sexual abuse is widespread. A 2013 Gender Links survey found that 33 per cent of Zimbabwean women have experienced physical intimate partner violence (IPV) and 22 per cent sexual IPV. Over 1,000 women registered domestic violence cases at a single women’s rights centre in Harare every month from January – November 2015.

    3.51 Prominent women’s rights organisations attribute a rise in the level of domestic violence throughout the country to Zimbabwe’s ongoing economic decline. Other causal factors include dowry payments, which give men a sense of ownership over their wives; cultural factors, including broad societal acceptance of domestic violence; and neglect by authorities, which treat domestic violence as a ‘private matter’ and are often ‘bought off’ by the perpetrators. Many women who experience domestic violence remain in abusive relationships because they are financially dependent on their husbands. Single and divorced women are also stigmatised. Single female MPs have been told to sit down in Parliament because of their marital status, or mocked as recipients of Constitution-based positive discrimination.

    3.52 A 2012 report by the Msasa Project found that one in three girls in Zimbabwe are raped before they reach the age of 18. In a public statement, the then Minister for Women’s Affairs, Oppah Muchinguri, said there were 4,379 reports of rape from June to October 2014. The number of rapes reportedly increases during elections, although there have been no reports of politically motivated rape of women since national elections in 2008. Despite media coverage of high profile rape cases, prosecutions and convictions are rare. Although under-resourced, two adult rape clinics in Harare and Mutare receive referrals from police and non-government organisations; administer HIV tests; and provide medication to prevent infection, diseases and pregnancy.

    3.53 There is no evidence to indicate gender-based violence (GBV) in Zimbabwe is racialised. DFAT understands that before the 2013 elections, women who were politically active or related to men who were politically active were subjected to higher levels of GBV. This was most prominent in Manicaland and Masvingo provinces.

    …

    3.57 DFAT assesses that women face a moderate level of official discrimination given their limited access to senior bureaucratic and other official posts, and the ineffectiveness of state protection for women subjected to IPV and GBV. Women face a moderate level of societal discrimination because of broad societal tolerance of sexual and other violence against women.[3]

    [3] DFAT Country Information Report Zimbabwe 11 April 2016 [3.57].

22. Regarding internal relocation, DFAT’s Report states:

    5.17 Women’s rights organisations have told DFAT that women in Zimbabwe are generally less able to relocate internally than men. This is because they have less access to financial resources, which impacts their ability to find shelter and food. They are also bound by cultural expectations that they will look after their children.

23. In relation to state protection, DFAT reports that “political manipulation and corruption operate to constrain the rule of law in Zimbabwe. Although citizens have been able to enforce some constitutional rights, victims of abuse have few avenues for effective recourse against state perpetrators.” [4]

    [4] DAFT Country Information Report Zimbabwe 11 April 2016 [5.1].

24. [An independent source] reports that [Government Agency 1 employees may have access to information about] involuntary returnees because of their actions in lodging protection claims overseas, although [the source] is aware of third country returns who have not been subjected to adverse attention by Zimbabwean authorities. [The source states] that only high profile involuntary returnees would bear this [risk].

25. The Tribunal accepts that [Government Agency 1] is [an instrument] of the ZANU government in Zimbabwe and that the [agency assists the government] to maintain a regime that has continued to suppress its citizens through human rights abuse. Although the applicant does not have a political profile in Zimbabwe, the Tribunal finds she may again come to the attention of the [government] on her return to Zimbabwe as an involuntary returnee.

26. The Tribunal finds that the applicant has experienced severe and traumatic gender-based violence in the past in Zimbabwe.

27. The Tribunal accepts on the basis of the country information referred to above, that gender-based violence is significant and prevalent in Zimbabwe and there are limited facilities and services for victims of rape. Information before the Tribunal also indicates that women in Zimbabwe have been vulnerable to politically motivated harassment and violence, and sexual violence is, and remains, a major issue. 

28. Having found that the applicant experienced sexual assault and rape in the past and is psychologically vulnerable, and in light of the prevalence of sexual violence in Zimbabwe, the Tribunal cannot be confident she will not be vulnerable to further gender-based harm in future. 

29. On this basis it is satisfied that there is a real chance she may face gender-based violence which amounts to serious harm in future in Zimbabwe. The Tribunal considers that country information about the nature, scale and extent of gender based violence and current instability and volatility given recent events and the upcoming election[5] is capable of supporting a conclusion that the chance of harm, in the form of gender-based violence, for the applicant is a real chance, as distinct from one that is far-fetched or remote. 

    [5] CXC90406618297: "Zimbabwe activists fear post-Mugabe human rights crackdown", Guardian, The, 27 November 2017, >

    For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

30. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

    Christopher Smolicz
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …