1714768 (Refugee)

[2022] AATA 2611

1714768 (Refugee) [2022] AATA 2611 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Manera (MARN: 1460731)

CASE NUMBER:  1714768

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 May 2022 at 11:34 am (WA time)

DATE OF WRITTEN RECORD:                25 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies section 36(2)(a) of the Act.

Statement made on 25 July 2022 at 9:28am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – membership of particular social group – young single white woman with particular vulnerabilities – chronic medical condition – relatively minor incidents to applicant and assault of mother in home – no support network, limited opportunities for work and likely economic hardship – consistent and credible claims and evidence – country information – inadequate medical services, gender-based violence and police inaction – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(5), 36(2)(a)
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 dependants.

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 on 28 June 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 18 May 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations. An applicant to meet the requirements for the visa must seem to be a person in respect of whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds.

4. Where relevant I have taken into account the policy guidelines prepared by the Department relating to refugee and complimentary protection together with relevant country information prepared by the Department of Foreign Affairs (DFAT) as required by Ministerial Direction number 84.

5. The applicant who claims to be a citizen of Zimbabwe applied for the protection visa on 17 August 2015.  On 28 June 2017 a delegate of the Minister refused to grant a visa on the basis that they did not accept that the applicant would face a real chance of persecution because they were a white Zimbabwean, a returnee from Australia or a single white woman in Zimbabwe.  The delegate further found that there was no real risk of significant harm to the applicant if she were returned to Zimbabwe as defined in section 36(2)(aa).

6. The applicant applies to this Tribunal for a review of that decision and is represented by Tang Legal.  Helpfully Tang Legal filed submissions on 11 May 2022 attaching a statutory declaration prepared and signed by the applicant on 11 May 2022 and witness statements prepared and signed by the applicant's parents both dated 10 May 2022.  The Tribunal subsequently received the witness statement of [Ms A].

7. I have had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

   Claims and evidence

8. The issue in this case is whether the applicant engages Australia's protection obligations for the essential and significant reason that she is a member of a particular social group, namely women in Zimbabwe without resources, support or protection who have particular vulnerabilities.

9. For the following reasons the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

10. In her submissions dated 11 May 2022 filed by Tang Legal the applicant set out her claim in the following way.  She is outside her home country Zimbabwe.  She fears persecution in the form of serious harm and mistreatment as a member of the particular social group women in Zimbabwe without resources, support or protection with particular vulnerabilities.  She fears possessing the particular vulnerabilities associated with being a single young white woman with a chronic medical condition (type 1 diabetes) and that she will be subject to a higher risk of gender-based persecution and discrimination in Zimbabwe.

11. The applicant says that her fears are well-founded based on documented country information of gender-based discrimination and inadequate medical treatment services in Zimbabwe, that the real chance of persecution under the circumstances is not remote or insubstantial or a farfetched possibility, and that she cannot avail herself of the protection of the Zimbabwean authorities because they cannot or will not provide reasonable protection from harm.

12. Having heard from the applicant at some length today I am satisfied that she is the product of a male dominated society and that she was genuinely dependent on her father for a longer period of time than a comparable Australian citizen would have been.  I am satisfied that she is telling the truth about her identity and her background experiences and I accept every aspect of the evidence that she has given to the Tribunal today.

13. The applicant described a number of what she appears to consider relatively minor incidents of break-ins and thefts of jewellery on the street, that affected her family and people that she knew.  And she described her experience of finding out that her mother had been attacked inside their own home notwithstanding the significant efforts that had been made to secure their home.

14. The applicant also described the disinterest of the local police, their inability to attend the scene without help, and their lack of communications moving forwards. 

15. On inquiry from the Tribunal the applicant described growing up in an environment where it was stressed that she must not be alone at night, where taking taxis and Ubers was not a normal thing to do, and where single women were dependent on contacts to protect them going out after dark.

16. The Tribunal is persuaded not only by what the applicant has said about all that but by the understated nature of the applicant's reporting, which appears to indicate a normalisation of conditions that pose a real risk of harm to young women who are unattached and unable to call on a secure network of friends and family.

17. The Tribunal accepts that the applicant is a fiercely independent woman who through preference lives alone rather than with family members, who has not entered into a relationship merely for the sake of doing so, and who has invested in her workplace in order to find meaningful connections in her life.  She has a very strong work ethic, she works long hours and in doing so commits to transiting at times and working in conditions that the Tribunal accepts would be unsafe in Zimbabwe.

18. Whilst the applicant has had a very successful career as [an Occupation] in Australia, she has no qualification to recommend her to any employer in Zimbabwe.  The Tribunal accepts her evidence that she has made inquiries and would struggle to find work in Zimbabwe to support herself.  The Tribunal accepts that on return to Zimbabwe she is likely to experience economic hardship that may rise to the level of significant harm and that this is particularly so in light of her insulin dependency as a result of her type 1 diabetes.

19. The Tribunal also accepts the applicant's evidence that she is dependent on her co-workers for support and the Tribunal notes that this is often a feature of independent women appearing before the Tribunal who have invested in their workplace to find meaning in their lives; that they do become dependent on co‑workers to an extent that could expose them to risk, if their co-workers are not respectful of the law and respectful of their female co-workers.

20. The Tribunal accepts the applicant’s evidence that Zimbabwe is a place where there is little risk of retribution for co-workers who do not display respect for the law and respect for their female co-workers and that there is a real risk that the applicant's co‑workers in Zimbabwe may take advantage of situations that the applicant necessarily finds herself in and cause her physical harm.

21. The Tribunal also accepts that there is a real risk that the applicant will travel at times of day where again there is a real risk that she will suffer significant physical harm.

22. The delegate's finding that there is a presumption that the applicant will find herself a solid support network on her return to Zimbabwe because of her childhood there is not consistent with the evidence before the Tribunal.  The applicant gave the Tribunal a credible account of asking her old friends, including her childhood friend who is the daughter of her godparents, for their evidence in these proceedings and the Tribunal found very genuine her emotion when she described their refusal.  The Tribunal accepts that the applicant is baffled about the reason for their refusal, and in light of that evidence the Tribunal must accept that there is a real chance that the applicant will not have a reliable support network on her return to Zimbabwe and might find herself alone and without help when she needed it.

23. The Tribunal also accepts as genuine the applicant's consideration of how she might make returning to Zimbabwe work.  The applicant had clearly given meaningful thought to what she might do if she had no choice but to return to Zimbabwe.  She has logically progressed through what she would have to do to secure employment.  She has, accurately in the Tribunal's view, assessed the likelihood that such employment would not even pay for a secure rental accommodation in a month much less her unique medical needs.  On the basis of that analysis the Tribunal finds that there is a real chance that she would suffer severe economic harm notwithstanding her father's evidence that he would support her for as long as he was able to do so.

24. The applicant's description of the risks posed by her type 1 diabetes appears to the Tribunal to be, if anything, slightly understated.  The margin of error available to her with her insulin dependency is so small that there is undoubtedly a real risk that a very minor economic setback might result in her suffering serious physical harm, if not death.

25. There are problems with her stock-piling insulin to protect against finding herself in a situation where she is unable to access it and the Tribunal accepts her evidence that her dependency on insulin is complicated by suffering some insulin resistance and requiring a specialist ultrafast insulin.

26. The Tribunal has had the benefit of her father's evidence with respect to the incident in which her mother was assaulted and the Tribunal accepts that Zimbabwe is a place where a single white woman could take significant steps to protect herself and still fail to do so successfully. The steps that the father has described taking to protect his wife likely transcend the steps that will be economically viable for the applicant and the Tribunal finds that she is unlikely to be able to protect herself even to that extent.  On that basis the Tribunal finds that there is a real chance that the applicant will suffer significant physical harm.

27. The nexus between the risk to the applicant and her membership of the particular social group that has been identified is very clear.  The Tribunal notes in particular the father's evidence that, while she was being assaulted, the applicant's mother was told that she was “a white pig”, that she was “a waste of space”, and that they were going to kill her.  Collectively the Tribunal considers there was a racial dynamic or a cultural dynamic to the violence against her mother.

28. The father's evidence of having tried to get people that they know to give evidence only to be met with refusal (and indeed anger) consolidates the Tribunal's view that there is no network available to the applicant, if she were to return to Zimbabwe.

    Country information

29. I have reviewed the country information available relating to Zimbabwe and I note the most current DFAT country information report indicates clearly not only instances of violence against women of a sexual and non-sexual nature but that such violence against women is not taken seriously by the authorities.  I also note that previous decisions of this Tribunal that I was referred to by the applicant's solicitor in her submissions accepted that gender based violence against women in Zimbabwe must be regarded as being endemic and that this was particularly so for the social group that is identified in this case.  Although the aggravating circumstances in this case are not the same they are no less material in the Tribunal's view.

    Conclusion

30. Accordingly, for the purposes of section 5J(5) of the Act on the basis of credible country information I find the applicant faces a real chance of significant physical harassment, and significant physical ill treatment in Zimbabwe now and for the reasonably foreseeable future for the essential and significant reason that she is a member of a particular social group comprising women in Zimbabwe without resources, support or protection with particular vulnerabilities.

31. It is not clear to me on the evidence and the country information how much of the harm that the applicant may face arises from non-State agents but I trust it is clear from the reasons that I have given that I consider that the State is unable and unwilling to provide adequate protection against the harm.  And that it is, in fact, potentially complicit in the sense that it encourages, condones or tolerates the harm.

32. I cannot see that there is any behaviour modification or relocation that would assist to protect the applicant from harm; certainly not any behaviour modification that would be reasonable in the circumstances.  I have considered the possibility of third country protection for the applicant in [Country 1] and I accept the father's evidence that he has made appropriate inquiries and been told that the applicant is not entitled to [Country 1 citizenship or protection].

33. I am satisfied that you the applicant is a person in respect of whom Australia owes protection obligations and, therefore, on that basis I find that she satisfies the criteria set out at section 36(2)(a) of the Act.

    DECISION

34. The Tribunal remits the decision under review with the direction that the applicant satisfies section 36(2)(a) of the Act.

    Jessica Henderson
    Member