1728413 (Refugee)

1728413 (Refugee) [2018] AATA 4665 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1728413
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:Susan Hoffman
DATE:18 October 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 18 October 2018 at 9:42am

CATCHWORDS
REFUGEE – Protection visa – Zimbabwe – particular social group – family of SADC member – people with disabilities – sons of Liberation war veterans holding a high rank position – failed asylum seeker – participant in junior parliament – political opinion – opposed ZANU-PF party – interested by police – fear of ZANU-PF associated organisations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA< 36, 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 on 20 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Zimbabwe applied for the visa on 31 December 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for protection.
The applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. He did not require an interpreter. He was represented in relation to his review by his migration agent who attended the hearing.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The main issues in this case are whether there the applicant faces a real chance of persecution because of his political opinion or a real risk he will suffer significant harm should he be removed to Zimbabwe. After the delegate made her decision, the applicant was seriously assaulted in Australia and submits he is confined to a wheelchair, having been diagnosed with [a medical condition] (also known as [medical condition]). He submitted corroborating medical evidence. The Tribunal also considers this in relation to the protection claim.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, protection claims and the delegate’s decision

Departmental records show that the applicant arrived in Australia on a student visa [on] July 2011. He returned to Zimbabwe for short periods between [date] December 2012 and [date] January 2013, and between [date] January 2014 and [date] January 2014. On 12 November 2015 he was refused a further [student] visa. The applicant lodged his application for a protection visa on 8 January 2016.
The applicant has provided various identity documents including his Zimbabwean passport and driver’s licence, and his [Australian] driver’s licence. The delegate was satisfied as to the applicant’s identity as is the Tribunal.
The applicant claimed he could not return to Zimbabwe for the following reasons:

He believed that the current Zimbabwean government had killed his father and made it look like a suicide because his father chose to work for the South African Development Community (SADC) and the United Nations (UN) rather than work in the army after serving in [Country 1].
The applicant chose to travel to Australia to study rather than serve in the same army that killed his father, and he made his feelings clear about this on social media.
The applicant cut his visit to Zimbabwe in 2014 short as he received multiple threats regarding his social media posts and his stance against the ruling party.
Someone rammed the car he was driving while he was in Zimbabwe.
The applicant’s sister who travelled to Australia immediately after the applicant, also on a student visa, identifies as a lesbian and this has caused problems for the family in Zimbabwe, with their family home almost being burnt down.

At the delegate’s interview on 30 June 2017 the applicant made the following claims about what happened to him when he was in Zimbabwe in January 2014.

Several threatening letters warning the applicant to stop talking about the “ruling party” were left in his mother’s letter box. The letters have been discarded.
The applicant attended a [march]. He claimed he had photographic evidence. The delegate noted that the applicant was asked to provide that photographic evidence but failed to do so.
Police spoke to the applicant at the march and was told to disperse. He returned to the march and was present when tear gas was used on the estimated 100-strong crowd.
The applicant attended the march with a close friend, [who] is [a member] of the “resign and go” movement.

The applicant provided the Department with various documents including his father’s death certificate which recorded that he died [in] July 2004. The applicant said that to avoid joining the army he travelled to Australia which did not make the authorities happy.
The delegate recorded that he put it to the applicant that he was able to get a police clearance from Zimbabwe; he was not detained on departure and therefore it was difficult to believe the authorities had any issues with him or that he had an adverse profile. The delegate recorded that the applicant did not respond to these points.
The delegate also recorded that she put it to the applicant it was difficult to see why working for the SADC raised any kind of adverse profile for his father, and there was no evidence found that SADC workers were targeted. Again the delegate noted that the applicant did not respond.
The delegate recorded in relation to the circumstances surrounding his father’s death that she did not accept that the applicant had been truthful in his claims as to why he feared returning to Zimbabwe.
With regard to his claims of social media postings, the applicant claimed he did this between 2011 and 2013. By this time he was in Australia. The applicant claimed that the posts, which were about political violence, were made to his [social media] account but that account no longer existed as his mother made him delete it. The delegate put it to the applicant that she could find no record of him having a political profile and he agreed that was the case.
Asked if anything else happened when he was in Zimbabwe in January 2014, the applicant claimed he had intended to stay for four weeks but left after two weeks as he was receiving threats.
He claimed letters were dropped into his mother’s letterbox and people were hanging around the house. Asked about the content of the letters, he said his mother destroyed them and “they just said to stop talking about the ruling party”.
The applicant claimed that he attended a few movements with high school friends and when they got into trouble, he left Zimbabwe earlier than he had intended as it was not safe.
As noted, the applicant claimed that he attended a demonstration while in Zimbabwe in January 2014. He said that when the police dispersed the group he was in, they told him he would be charged if they did it again. He said that they went back to the march and tear gas was thrown at them but they did not need medical treatment. The delegate did not accept that the claims about attending the protest, police interest and threat letters were credible and found they were made to embellish his claim for protection.
The delegate recorded that the only studies completed by the applicant was a [course] for which he studied between July 2012 and July 2013. Asked why he lodged his protection visa application on 8 January 2016 when he last returned from Zimbabwe in January 2014, the applicant said that he wanted to complete his studies but did not have that option.
The delegate recorded that the applicant failed to mention his sister and that he had claimed to have been run off the road, although these were mentioned in his application for a protection visa and he was given plenty of opportunity to raise them, as he was asked about other reasons he had for seeking asylum. The delegate decided that these omissions were indicative of a fabricated claim that the applicant could not recall in its entirety.
The delegate concluded that the applicant’s claims were not genuine and had been fabricated for the purpose of his protection claim.

Pre-hearing submissions

The delegate’s interview was held on 13 June 2017. In December 2017, the applicant was seriously assaulted in Australia. He was hospitalised until June 2018 and is now confined to a wheelchair and requires ongoing care. He lives with his sister, [and] her partner.
A discharge summary from [a] Hospital dated [in] January 2018 records that the applicant has a complete spinal cord injury and was transferred to [a different] Hospital. The registrar at the spinal rehabilitation ward, [in] a letter dated [in] February 2018, wrote that the applicant would be unable to work for at least six months.
In a letter dated [in] March 2018, [a] social worker at [the] Hospital, wrote that the applicant was undergoing intensive multidisciplinary rehabilitation with an estimated discharge date of mid-May.
In an email to the AAT registry dated 19 April 2018, the applicant claimed that he was now a [quadriplegic]. He claimed he needs help with a lot of everyday activities and is unable to go to the toilet on his own. He claimed he needed additional surgery which he cannot get in Zimbabwe.
In a submission dated 21 August 2018, it was claimed that the applicant feared he would face a real chance or a real risk of serious and significant harm if forcibly returned to Zimbabwe on the following basis:
·     his political opinion, as a person who is opposed to the ZANU-PF party;
·     his perceived political opinion, as someone whose opposition to ZANU-PF may be construed as support for Zimbabwean opposition parties;
·     his membership of a particular social group, being people with disabilities (PWDs) in Zimbabwe, people with visible disabilities in Zimbabwe, PWDs with ongoing healthcare requirements in Zimbabwe and/or people confined to wheelchairs in Zimbabwe;
·     his membership of a particular social group, being sons of Liberation War veterans holding a high rank in the ZNA and involved in training youth militias who refuse to enter military service and/or are critical of ZANU-PF;
·     his membership of a particular social group, being failed asylum seekers who are involuntarily returned to Zimbabwe who do not support ZANU-PF, and/or failed asylum seekers who are the sons of Liberation War veterans holding high rank in the ZNA and closely associated with the Youth Militias and ZNLWVA who are involuntarily returned to Zimbabwe and/or who do not support ZANU-PF; and/or
·     a combination of the above factors.
It was also claimed as follows:
·     From sometime in or around 1988, the applicant’s father was deployed by the ZNA to serve in [Country 1].
·     The applicant’s father held the rank of [position] when serving in [Country 1].
·     Sometime in or around 2000, the applicant’s father returned to Zimbabwe.
·     In or around 2001, the father was assigned to provide military training to youths in the National Youth Service (NYS) [programme]. At these times the father lived on the barracks during the week and spent weekends at a farm owned by his [family].
·     The applicant would on occasion visit his father at the [farm], and meet trainees, many of whom later formed part of the Youth Brigades or Green Bombers; the youth militia which enforce support for the ZANU-PF.
·     The applicant’s father’s status as a prominent veteran of the Liberation War and his role in ZNA meant that he was known to many veterans who either were or would become prominent in the ZANU-PF party apparatus. The applicant’s family would socialise and attend the same events as many of those connected to the ZNA and ZANU-PF party.
·     In exchange for support and patronage provided to the applicant and his family by the ZANU-PF government, the applicant was expected to enlist to serve in the NYS programme or the ZNA when he finished high school.
·     The applicant was frequently reminded of what his country and the ZANU-PF party had done for him and his family, and asked about his plans to ‘give back’ through armed service.
·     In or around 2003 the applicant’s parents split up. The applicant’s father resigned from the ZNA and went to work for the SADC. Many of his friends and colleagues from ZNA and ZNLWVA were moving into prominent roles in the ZANU-PF political structure and the applicant’s father was uncomfortable following this path. The applicant’s father’s relationship with the ZNLWVA, ZNA and ZNA-PF, and with many of his veteran friends, soured because of his decision to resign and work elsewhere.
·     The applicant’s father died [in] July 2004, in what appeared to be a suicide but foul play was suspected. The applicant and his family believe the father was killed because he had tried to end his relationship with ZANU-PF and the Zimbabwean authorities.
·     Between 2005 and 2010, when the applicant was at high school, he became critical of policies pursued by ZANU-PF. He participated in his school’s Junior Parliament where he expressed these views in debate which attracted negative attention from his family’s associates in the ZNLWV and his mother was forced to intervene to prevent further consequences.
·     Although the NYS programme was not active at this time, the applicant was expected to serve his country by entering the military or joining a youth militia. When he came into contact with anyone who knew or his father through the ZNLWVA. The ZNA or BGNTC, he would be questioned as to why he had not yet undertaken military training.
·     The applicant visited Zimbabwe, arriving [in] December 2012, because of a family problem between his mother and his sister. His personal belongings were rummaged during what he believed was a break in. His mother was concerned for his safety and he left Zimbabwe for Australia [in] January 2013, a week earlier than planned.
·     The applicant travelled to Zimbabwe [in] January 2014. His mother told him that the family was not being subjected to any negative attention from the ZANU-PF at this time so she believed it would be safe for him to return.
·     He attended a protest with a friend [about] university fees and political interference. He was exposed to tear gas, and with his friend was detained by police along with other protestors and released later that day.
·     He met and started speaking to two people he knew from school. They told him he had upset people by what he had posted online while he was out of the country. Two other men joined them whom he did not know and started arguing with the applicant about politics.
·     When he was driving out of the shopping mall, a car without plates crossed into his lane and rammed the passenger side of his car. Because of these incidents he left Zimbabwe earlier than he had planned.

Findings and reasons

In order to make its determination as to whether or not the applicant meets the criteria for a protection visa, the Tribunal considered the evidence before it, including the sworn evidence given by the applicant.
The Tribunal acknowledges the difficulties faced by applicants in giving evidence at a formal hearing and recalling events of some years ago. The Tribunal is required to critically evaluate the evidence given at hearing as even when an applicant is broadly credible, it is possible that they embellish details to strengthen their claim.
The applicant attended the hearing in a wheelchair. The Tribunal had been advised before the hearing that he is only able to speak for ten to fifteen minutes at a time. The questions asked by the Tribunal did not require the applicant to talk for that length of time without a break. The Tribunal advised the applicant to ask for a break or a rest at any time if he needed one. There was no indication that the applicant’s disability had an adverse effect on his ability to give evidence.
For the record, the applicant gave evidence in relation to his disability and the circumstances which led to it. According to a police incident report from the [police], the applicant was assaulted by another man who also racially and verbally abused him. The applicant and his assailant knew each other as the applicant had been working [at] a [workplace] and in that capacity, after an argument between them, told the assailant he could not stay there (although that was later overridden by the [owner]). There was no sense from the incident report that the applicant was at fault in relation to the events that led up to him being assaulted. His representative confirmed no charges had been laid against the applicant. She said that the criminal court proceedings in relation to the man who assaulted the applicant were ongoing, with a committal hearing scheduled for [September] 2018.

The Tribunal was satisfied that the applicant was truthful in giving his evidence including with regard to his experiences in Zimbabwe when he was last there in 2014. The applicant has been consistent in giving his evidence and when asked for more information or clarification about a claim, he responded promptly in a credible fashion.
With regard to the political situation in Zimbabwe and how the ZANU-PF operated when he lived there, the applicant’s evidence was consistent with country information relevant to that period. His evidence and submissions about how people with a disability are currently viewed and treated in Zimbabwe are consistent with country infomation.

Claims based on the applicant’s political opinion

Asked what harm he feared if he returned to Zimbabwe, the applicant said it was from ZANU-PF and associated organisations, such as the War Veterans Association, the Youth League and the militia linked to both.
Asked why he still feared harm when he had not lived in Zimbabwe for seven years and had not visited there for four, the applicant said not much had changed politically since he was last there and may have got worse.
Asked if he had a political profile, the applicant said to a certain extent yes. He said it came from his father and his (the applicant’s) participation in a mock parliament associated with school which he also referred to as a junior council and junior parliament. The applicant said that this was an extra-curricular activity, which he chose to be involved with. To be part of it, a person had to make an application and was interviewed by outgoing members. He said boys from different schools participated in the mock parliament. They debated different things including politics. He said a member from each school would be at the parliament. Of the membership, about 75% was made up of wealthier kids.
According to its website, the junior parliament operates under the auspices of the Zimbabwe Youth Council, which is a body established by an Act of the Zimbabwean parliament. The purpose of the Youth Council is to advise government on the needs of youth.[1] The 24^th session of the junior parliament was opened on 27 June 2016, which suggests the junior parliament has been operating for some years.[2]
[1] Zimbabwe Youth Council (2018) About Us, accessed 18 September 2018 Zimbabwe Youth Council (2016) Speech by Child President of the Republic of Zimbabwe Hons Tinaye Mbavari at the Official Opening of the 24th Session of the Junior Parliament, accessed 18 September 2018 at >
The applicant said that he was known to be critical of ZANU-PF. When he said something critical of them at the junior parliament, it would make its way back to his mother who would mention it to him. She would say to him “Do you think saying things like that in public is a good idea?” and ask him to stop talking like that.
The applicant said that when they went to functions where war veterans were present, people would say things to them. He said he was at one function with his mother, and one of the War Association Veterans asked the applicant what he thought about politics, and the applicant responded that he did not think that highly of ZANU-PF politicians, and this person responded that he had heard about the debates. The applicant said nothing further happened in relation to that incident and he continued as before.
The context in which these things occurred is relevant. The DFAT report sets out that for the last fifty years, Zimbabwe has been characterised by political repression and economic instability.[3] The two largest political parties, Zimbabwe African National Union (ZANU) and the Zimbabwe African People’s Union (ZAPU) which had opposed to each other ceased hostilities in 1987. They merged that year to form the Zimbabwe Africa National Union-Patriotic Front (ZANU-PF.)
[3] DFAT Country Information Report, dated 11 April 2016.
From 1997 to 2008, Zimbabwe experienced political turmoil and severe economic decline. In 2008 the main opposition party secured a parliamentary majority in national elections, sparking a wave of violence. A power-sharing agreement between different groups helped temporarily stabilise the situation, and reduce the level of open political violence. A new constitution came into force in May 2013 which was largely supported by voters. At the July 2013 presidential elections, President Mugabe, who had governed since 1980, and the ZANU-PF claimed a landslide victory. Although less violent than the 2008 elections, the 2013 elections were judged by international observers to be neither fair nor credible.
According to the DFAT report, the political environment in Zimbabwe remains repressive even though the country is generally calm, with the calm being largely attributable to the pervasive threat of the state security apparatus which continues to harass and intimidate civil society organisations, activists and opposition party members. Politically motivated violence in Zimbabwe has declined significantly since 2008 but it fluctuates and appears to have increased in 2015. The state-sponsored security apparatus has shifted its focus from overt physical violence to more subtle forms of intimidation which includes intimidating civil society activists. Inter-party harassment and intimidation was targeting low-profile opposition party members. Physical violence and the threat thereof remains a feature of the political landscape in Zimbabwe. The state-sponsored Zimbabwe National Liberation War Veterans Association (ZNLWVA) and the youth brigades (Green Bombers) were the country’s main militia groups, with about 30,000 active members and ten to fifteen thousand non-active members of the ZNLWVA and about 15,000 Green Bombers. These organisations remained intact and continued to form key elements of the state’s control over the population. The Zimbabwe Republic Police (ZRP) is highly partisan, with top police commanders appointed by and expected to support ZANU-PF. There are regular and credible reports of ZRP using excessive force when making arrests.
Since the DFAT report of April 2016, there has been a further election in Zimbabwe. President Mugabe was removed from office in November 2017. The election for his successor was held in July 2018. The result was contested with a challenge being made by the opposition party to Zimbabwe’s highest court; however the legal challenge was unsuccessful. The new President, Emmerson Mnangagwa, was Mugabe’s vice president. According to one article, since the election, “the government has ruthlessly cracked down on opposition”. Human rights groups reported widespread voter intimidation.[4]
[4] Feldstein, S. (2018) Zimbabwe’s coup did not create democracy from dictatorship, accessed 23 August 2018 at >
Speaking about when he was in Zimbabwe, the applicant claimed his mother worried for his safety on his behalf. He said that he now thinks she kept things from him. He referred to pressure put on him and his mother for him to join the military at a time when young men were forcibly recruited into youth militias. It was submitted this was the situation when the applicant was at high school.
The applicant said that at party functions and other events, there were people who had worked with his father who would ask the applicant, “How are you doing at school?” and ask his mother when he would join the army or the youth militia. He said such people would visit his mother and asked the same questions. The applicant said at the time he thought these were friendly visits and his mother played them down, but he now sees they were not so friendly and they were attempts to pressure his mother to pressure him.
The UK Home Office, in a 2009 report, stated that while many youths joined the military voluntarily, according to the Solidarity Peace Trust report, it appeared a sizeable number were coerced into joining the militia, and of those coerced, some were kidnapped whilst others were told their families would suffer if they did not join up.[5] In 2012, the UK Home Office referenced an article dated November 2010 titled ‘Students forced to register for ANU-PF militia training’.[6]
[5] UK Home Office (2009), Country of Origin Report – Zimbabwe, 25 March 2009
[6] UK Home Office (2012), Country of Origin Report – Zimbabwe, 13 July 2012
The Tribunal understood from the applicant’s evidence that while some of the incidents of which he spoke, such as the pressure put on him to join to the military, might not seem enough to amount to a well-founded fear of persecution, they needed to be considered against a backdrop of young men forced to join up against their will, people disappearing, and political killings. He claimed that looking back to when he was in Zimbabwe, there was a possibility he could have been coerced into joining the Youth League militia, which included kidnapping him but his mother sheltered him somewhat from what might happen.
The applicant claimed that his family’s links to the ZANU-PF made his criticism of them more likely to attract adverse attention. The applicant said his mother had belonged to the ZANU-PF women’s league. He said it was hard for her to remain in the party after the death of his father, and her involvement with it since then had fluctuated. He said that in Zimbabwe it was not easy to not be in a political party and that was so for his mother as ZANU-PF had supported the family financially. He said that his mother belonging to the women’s league meant she could access their resources to help other people, such as with funding.
The applicant said that his mother successfully sought protection in [Country 2] where she now lives. This was after people tried to burn down the family home, mainly because of [the sister] who was in a same-sex relationship and to a lesser extent because of the applicant who was not behaving as expected; this in reference to his political views.
The applicant said two of his sisters have been in [Country 3] since before he left Zimbabwe for Australia, and they went there with their partners. As his third sister, who cares for the applicant, lives in Australia, he has no immediate family in Zimbabwe.
About the incident where his belongings were rummaged through, the applicant claimed this occurred around the time a party was held at the family home. The wing of the house where his mother’s, sisters’ and his bedrooms were located had been locked. After the party he went off and slept at a friend’s house. When he came home someone had been through his stuff. He knew that as his laptop had been in a drawer and was on his bed, and other things were upside down from where they had been. He said that an external hard drive and a flash drive had been taken but there was nothing of interest on them, mainly [study]-related documents. He said one of his sister’s rooms had also been disturbed.
The applicant said that his mother was concerned by what he had posted to [social media] while he was in Australia between 2011 and 2014. He had commented on the violence that took place in an area close to where they lived.
As referred to above, according to his statutory declaration, the applicant’s mother told him that at this time, the family was not being subjected to any negative attention from the ZANU-PF so she believed it would be safe for him to return. This suggests that the family had been previously subjected to negative attention or might be in the future. The Tribunal asked the applicant, if they had been subjected to negative attention from the ZANU-PF in the past, what that was. The applicant said that he thought things had happened which his mother did not tell him about. He said his older sister told him that he had said things which caused problems for his mother and she was stressed about that.
The applicant said his mother was not happy with his actions, telling him she was scared for him as he could have disappeared or been disappeared; in Zimbabwe there was always the possibility of repercussions.
The applicant claimed that the negative attention to which his mother alluded was also to do with her losing status and support from the women’s league, which was to do with him.
Asked why that would put the applicant at risk if he returned to Zimbabwe, he said the change in his mother’s status made it harder for her to get protection for both herself and the applicant. He said that the comments he had made would look like he was opposed to ZANU-PF.
The applicant said that ZANU-PF did not take kindly to people leaving the party. If people left the party, they would be physically harmed, killed, disappeared, their home burned down, and they would lose their business.
Asked about the letters in his mother’s letterbox when he was in Zimbabwe, the applicant said he did not see them but his mother told him about them after he had left the country and returned to Australia. He said the letters essentially were critical of his mother because of him and his sister.
Asked about the incident to do with protest at the University and him being released, the applicant said his mother was not happy about that. He said that he had a surname that was well recognised as it was the same name as a former [government official] although there was no relation between them. And because his father was with the War Veterans Association people would recognise his surname as it was his father’s surname also. Although he and his friend were released by the police, his involvement in the protest will be known.
About the applicant’s surname, the Tribunal notes that [name deleted] is a former [government official] who has been described as [deleted]. [Details deleted].[7]
[7] [Source deleted].
About the other incident when he went back in 2014, the applicant said he had been posting on social media about violence close to where he used to live. He met with school friends who said they had seen it and they were discussing it. He said that the men that came over to them, interrupted the conversation and started to argue with him.
The applicant said people do discuss politics in Zimbabwe and that was not unusual. But to pick him out from a crowd of people as these men did, and to come and interrupt a conversation between other people, that was not usual. The applicant said it seemed as if they knew about him as they commented on what he had posted on [social media]. He said that they were talking in Shona which did not translate exactly into English, but they said something along the lines of “All well and good you are not living in Zimbabwe. Always watch your back and what you say to people.” He said that they spoke in an aggressive and threatening tone.
The Tribunal observed this was the first time the applicant had given specific details of the conversation. The applicant said that at the delegate’s interview he did not give out much information. At the end of the Tribunal’s hearing, his representative submitted that the applicant had not been represented when he made his original protection visa application and it comprised one brief paragraph. She submitted that having listened to the recording of the delegate’s interview, the applicant was not given the opportunity to elaborate. About the delegate’s interview, the applicant said he was nervous, there was no representative there, and he did not do well under questioning.
The applicant said it was after these men interrupted the conversation he was having with his friends that his car was rammed. It was the same afternoon as he was leaving the shopping precinct. He said the other car did not have a numberplate which was unusual for cars in Zimbabwe; cars that do not have plates are usually undercover cars.
The applicant said the accident occurred as he was making a right turn and the other car driver went across two or three lanes to ram him. The applicant said his car was caught at the back passenger door which was busted in and the boot took most of the impact. He was able to drive away. He said the other car was a [certain model] car and he thinks the purpose of ramming his car was to send him a message.
The Tribunal asked if the applicant had any proof of him cutting short his trip to Zimbabwe following the incident with his car being rammed. The applicant said that he took in a flight itinerary to the Department to show that he had changed his flights, leaving Zimbabwe earlier than was originally planned. However there is no record of such in the departmental file. The applicant was adamant that he took relevant information into the Department’s offices.
Asked if anything had happened since that time that would suggest he might be targeted if he returned to Zimbabwe, the applicant said nothing like that had happened to him but that quite a lot of activists had gone missing since then in Zimbabwe. Asked what he thought the situation was in Zimbabwe now that Mugabe was no longer there, the applicant said he thought it had got worse now. There was some discussion around the fact that it was unclear what the situation is in Zimbabwe as the recent election result had been contested.
The applicant claimed that the political environment in Zimbabwe has not changed. His representative said that ZANU-PF remains in power and if the challenge that has been made to the recent election result was successful, there could well be more violence; it was hard to imagine a party that has held power for so long will just walk away peacefully from it. The applicant said that although the court in Zimbabwe is examining the election process, the courts there are under the control of the government and the outcome of the court process will not make any difference.
The Tribunal notes an editorial by the Washington Post dated 31 August 2018.[8] It observed that while the political and economic situation in Zimbabwe seemed hopeful after the new president, Emmerson Mnangagwa, took power from Mugabe in November 2017, the violence that occurred after the election held on 30 July 2018 did not bode well. During protests, security forces killed six people and wounded hundreds of others. The editorial quoted, and appeared to endorse the view of, the defeated opposition leader Nelson Chamisa. “There is freedom of expression, but there is no freedom after expression. There is freedom to vote, but there is no freedom after a vote. In the rural areas, people’s houses get burned, destroyed, on account of expressing themselves.” This suggests that political repression is continuing in Zimbabwe.
[8] The Washington Post (2018) How Zimbabwe Missed Its Chance for Change accessed 6 September 2018 at >
A more recent article, from September 2018, was written by a journalist who left Zimbabwe in 2003, in fear for his life, having been arrested on what he described as a trumped up charge, endured a six month trial and was then acquitted, only for the harassment to continue. He stated that arrest warrants had been issued in his absence. On returning to Zimbabwe in September 2018, for the first time since 2003, he feared what might happen to him, but nothing did. He observed what he described as the obvious hardships experienced daily in Zimbabwe, “such as having to queue for long hours to draw cash from banks, living without clean water, lack of services like regular rubbish collection and reliable electricity”. He also wrote as follows:[9]
A welcome development was the noticeable absence of fear among the people I spoke to.
The last time I was in Zimbabwe, people were reluctant to discuss politics with strangers and those that did spoke in hushed tones and looked over their shoulders for the secret police, real or imagined.
[9] Mbanga, W. (2018) Letter from Africa: Zimbabwe's 'enemy of the people' returns home, accessed 16 October 2018 at

Asked why he thought he would be targeted if he went back now, the applicant said it was because he had spoken against ZANU-PF and sought asylum because of them. They had paid for his education but he rejected them.
Based on country information referred to above, it is apparent that ZANU-PF still maintains power in Zimbabwe. The Tribunal accepts that the applicant was threatened while he was in Zimbabwe and that pressure was put on his mother to, in turn, pressure him to accede to the wishes of ZANU-PF party members. The Tribunal accepts his submission that because his parents had been party members and his education was paid for by ZANU-PF, there was an expectation that he would support the party and demonstrate that by joining the youth militia.
The Tribunal also accepts his submission that looking back, he now believes his mother was trying to hide from him what was happening, to protect him. It also accepts that he left Zimbabwe sooner than planned in 2014 because he was threatened and his car was rammed.
However the Tribunal is not satisfied that the applicant would be at risk of serious or significant harm should he be returned to Zimbabwe now because of his real or imputed political opinions because of the change in the country since he was last there and since the July 2018 election. In particular the Tribunal had regard to the account from the journalist who had returned to Zimbabwe after many years away, and observed an absence of fear, and a contrast with how it used to be when people were wary of discussing politics with strangers. The Tribunal was unable to locate any recent reports suggesting that persons who had opposed the governing regime in years past were now at risk because of that opposition.
For the same reasons, the Tribunal is also not satisfied that the applicant would be at risk of serious or significant harm should he be returned to Zimbabwe now because his membership of the following particular social groups:
· sons of Liberation War veterans holding a high rank in the ZNA and involved in training youth militias who refuse to enter military service and/or are critical of ZANU-PF;
· failed asylum seekers who are involuntarily returned to Zimbabwe who do not support ZANU-PF, and/or failed asylum seekers who are the sons of Liberation War veterans holding high rank in the ZNA and closely associated with the Youth Militias and ZNLWVA who are involuntarily returned to Zimbabwe and/or who do not support ZANU-PF

Claims based on the applicant’s disability

The Tribunal then considered if the applicant would be at risk of serious or significant harm because of his physical disability. The Tribunal accepts the submission that the applicant is a member of the particular social group made up of persons with a disability, as he is wheelchair-bound. It is a characteristic shared by other people with a disability who are confined to wheelchairs which he cannot change; it is immutable (s.5L).
The applicant said that he struggles with his lower body. He needs help dressing. Using his wheelchair, he is reasonably mobile. He needs care in the morning and at night time to get in and out of bed safely. He needs assistance with toileting. He cannot lean forward and keep his balance because he has got too few working muscles in the core. He has restricted sensation in his [body] and therefore difficulty [doing certain tasks]. He said he can use an adaptive computer but cannot use a normal keyboard, because his dexterity is poor, and he needs a soft touch keyboard. This is consistent with the medical information before the Tribunal which recorded that the applicant was required to take seven medications each day, some a number of times a day, plus two medications on alternate days. It was unclear whether the applicant would be required to take this quantity of medication into the future.
According to the submission of 21 August 2018, the applicant relies on his sister for many of his day to day needs, including feeding him as he cannot reach surfaces to cook or prepare food in a standard kitchen. He needs assistance with cleaning and dressing himself. He cannot self-propel his wheelchair up steep surfaces.
The standard of health services in Zimbabwe is poor. At 2.17 and 2.18, the DFAT 2016 report stated as follows:
· Article 76 of the constitution establishes a right to basic health-care services for all citizens and permanent residents. The public health system is the largest provider of health care services in Zimbabwe, although mission hospitals and non-government organisations (NGOs) also provide these services. Budget cuts and poor governance have reduced overall health care services, resulting in resource, personnel, medication and equipment shortages. Major disease outbreaks – such as the cholera and measles epidemics between 2008 and 2010 – place additional burdens on the health care system. The health care system is also severely tested by the HIV/AIDS crisis, which affects approximately 1.6 million Zimbabweans.
· In 2011, the government introduced user fees for health care services. Varying from provider to provider, these fees act as a barrier to basic health services for many poor Zimbabweans. It costs between USD 3 and USD 50 to give birth in a government or municipal health facility, for example.
The Zimbabwe Independent reported that 2017 had been a nightmare for the country’s healthcare system, which continued on a downward spiral. As with 2016, 2017 saw massive drug shortages, strikes by doctors and nurses, inadequate funding and ill-equipped hospitals.[10] Similar issues continued into 2018.[11]
[10] Zhangazha, W. (2017) Health care reels from underfunding, Zimbabwe Independent, accessed 16 October 2018 at
[11] Bulawayo24 News (2018) Zimbabwe leaders must simply fix health care system accessed 16 October 2018 at
A media report dated 15 October 2018 refers to two senior politicians leaving Zimbabwe for South Africa for treatment because Zimbabwe’s “crippled health sector is facing a critical shortage of medicine.” From the same report:
….the plight of ordinary citizens in need of healthcare has taken a turn for the worse in Zimbabwe. Drugs for treating chronic diseases such as cancer and diabetes have disappeared from pharmacies. Some pharmacies have closed while most of those open are refusing to accept the local bond note currency.
The country's minister of health and child care, Dr Obediah Moyo, confirmed the crisis, saying the government had managed to secure only $7m of the $29m required for importation of drugs…
Zimbabwe's high-ranking officials are known for seeking treatment abroad and Mugabe was notorious for regularly flying to Singapore for basic health services because the country's hospitals are in a dilapidated state.
The applicant said that in Zimbabwe, having a disability is viewed as an unnatural occurrence, as if it was a curse or similar He said that because of his disability, he would be marginalised as people in Zimbabwe fear and are disgusted by disabilities.
According to a 2017 media report, Africans view disability as a spiritual curse despite medical explanations proffered. It also stated as follows:[12]
Beside the traditional beliefs that disabled persons could have committed abominable sins, some healing and deliverance churches have joined the band wagon, added to the psychological. They cast aspersions towards the disabled and view disabled as lacking in faith when they are not healed after being prayed for…
Disabled persons face economic deprivation. Due to their disability status they cannot compete equally with able bodied persons in the income generating activities. The majority of these were not even afforded equal opportunities to pursue education. The society has looked down on the disabled. Thereby they are absent in the formal employment sector. For those who fortunate enough to acquire some education the usually do not advance in higher positions due to discrimination against the disabled.
[12] Masarira, L. (2017) Challenges faced by Disabled persons and how the Government can intervene, accessed 6 September 2018
Disability activist Tapiwa Mutizamhepo wrote in May 2017:
Some key infrastructure, both government and private-owned, are still inaccessible to some people for impairments, for example, Harare City’s townhouse is inaccessible to wheelchair uses, making services provided at them the Townhouse out of reach to them.
The public transport system has also been a nightmare for people with disabilities, particularly those that use wheelchairs. Often times commuter omnibus operators are reluctant to take them on board as their wheelchairs are regarded as excess baggage…[13]
[13] Mutizamhepo, T. (2017) Disabled people suffer ….. as government drags to implement UNCRPD commitment,
Mutizamhepo referred to the Zimbabwean government signing the United Nations’ Convention on the Rights of Disabled (UNCRD) in September 2013 and the hope that the government would “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promote respect for their inherent dignity.” However, according to Mutizamhepo no action has been taken and there have been no improvements in the daily lives of people with disabilities.
Country information indicates that despite Zimbabwe signing up to the UNCRD, Zimbabwe’s health system continues to fail to provide access to services for people with disabilities. The United Nations Educational, Scientific and Cultural Organisation, Regional Office for South Africa reported that people with disabilities was “one of Zimbabwe’s most marginalised demographic”.[14] There are also reports of hostility and verbal abuse from health workers to people with disabilities.[15]
[14] UNESCO (2017) Disabled Persons Organizations Meet with UN Agencies in Zimbabwe, accessed 11 September 2018 at Kwenda, S. (2010) Africa’s disabled will not be forgotten, accessed 11 September 2018 >
According to a US Department of State Report on human rights practices in Zimbabwe, government institutions were often uninformed about disability and provided poor service delivery to PWDs.[16]
The constitution and law prohibit discrimination against persons with disabilities in employment, access to public places, and the provision of services, including education and health care…Government institutions often were uninformed and did not implement the law. The law stipulates that government buildings be accessible to persons with disabilities, but implementation was slow…
Although two senators were elected to represent persons with disabilities, parliament rarely addressed problems especially affecting persons with disabilities. Parliament does not provide specific line items for persons with disabilities in the various social service ministry budgets.
Most persons holding traditional beliefs viewed persons with disabilities as bewitched, and in extreme cases families hid children with disabilities from visitors. According to NASCOH, the public considered persons with disabilities to be objects of pity rather than persons with rights…
[16] US Department of State (2018) Country Reports on Human Rights Practices for 2017 Zimbabwe accessed 16 October 2018 at >
The applicant said he is still getting regular ongoing medical support to stop his physical limitations getting worse. He said such services are not available in Zimbabwe; there are no rehabilitation services such as physiotherapy in Zimbabwe for someone in his position as disability is seen as a curse. He said he currently attends physiotherapy once a week and also sees an occupational therapist.
Given the country information regarding the state of health system in Zimbabwe, the Tribunal is satisfied that it is highly unlikely the applicant will be able to access the treatment he needs there.
The applicant said that using a wheelchair in Zimbabwe is barely practical as streets are potholed and wheelchair access to buildings and are places are not available.
The applicant said that if he went back to Zimbabwe, his mother would probably arrange for him to live in the family home. He said he would have to try and reconnect with relatives to care for him, such as his mother’s second cousins. He does not know if his mother’s second cousins would be willing to care for him as that subject has not been broached with them. He said if they cared for him because of his disability, they would carry the same stigma as him and it would be perceived that they also were cursed.
The Tribunal is not satisfied that there would be someone prepared to care for the applicant if he was returned to Zimbabwe as he has no immediate family there. It would be a significant commitment for anyone to take on. In addition, the stigma and discrimination directed towards PWDs would make it difficult to find someone to care for him; why would they want to care for a person who may be bewitched or was being punished for behaving badly or lacking in faith. Further it is possible a potential carer’s reputation would be tarnished because they cared for a PWD, making it harder to find someone to care for him. Without a carer, the applicant would be at risk of serious harm, given his physical limitations and his requirement for daily care with regards to toileting and transferring him from his bed to his wheelchair, amongst other things.
At paragraph 89, the Tribunal quoted country information which referred to the absence of PWDs in the formal employment sector. The nature of the applicant’s disability is such that it is difficult to envisage how he could earn a living in Zimbabwe apart from begging.
Zimbabwe’s Chronicle reported in July 2015 that many people in Zimbabwe had taken to begging in order to access food, with snap surveys revealing that for every ten beggars in the streets of Bulawayo and Harare, eight were people with disabilities. It also recorded that most people with disabilities who were registered to receive a $20 monthly assistance package under the Department of Social Services had not received that payment for the last three years.[17]
[17] Moyana, F. (2015) Social exclusion worsens disabled children’s plight, Chronicle accessed 16 October 2018 at >
The Tribunal is satisfied that if returned to Zimbabwe, there is a real chance the applicant would be subject to serious harm because of his disability. He would experience significant economic hardship that would threaten his capacity to subsist. Given societal attitudes to PWDs in Zimbabwe, there is also a real chance he would be subjected to harassment and discrimination that together with the difficulty for him to earn a living constitutes serious harm.
The applicant has no immediate family in Zimbabwe and it is far from certain that if he was removed to Zimbabwe, there would be anyone there to provide the daily care he needs. The Tribunal was unable to locate any reference to facilities in Zimbabwe that would provide the applicant with the care he needs to survive day to day.
The Tribunal is satisfied that he would face the same risk of serious harm wherever he was in Zimbabwe as the attitudes towards PWDs and difficulty obtaining employment for PWDs exist across the country. Further he would not able to access the health care he needs wherever he was in Zimbabwe.

CONCLUDING PARAGRAPHS

The Tribunal concludes that the applicant has a well-founded fear of persecution because of his membership of the particular social group comprising people with a disability, and that there is a real chance of persecution in all areas of Zimbabwe.
The Tribunal is not satisfied that state protection would be available to the applicant given the widespread attitudes in Zimbabwe to people with a disability and that government institutions were often uninformed about the laws to do people with disability, did not implement them, and parliament rarely addressed problems affecting PWDs (see paragraph 93).
The Tribunal is also satisfied that the applicant’s fear of persecution is because of his membership of the particular social group of persons with a disability, and that his membership of that particular social group is the essential and significant reason for the persecution. It also finds that the persecution feared is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of his disability. The Tribunal is satisfied that the persecution feared by the applicant involves serious harm as it would be a threat to his life, liberty or significant physical harassment or ill treatment.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).

DECISION

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

Susan Hoffman
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

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.
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.
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.
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.
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.
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

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.
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.
…

Another article discussing post-election Zimbabwe can be found here: Moore, D. (2018) Zimbabwe: a future finely balanced between democracy & militarisation, accessed 6 September 2018 at

[2018] AATA 4665

18 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction