1805875 (Refugee)

1805875 (Refugee) [2019] AATA 5956 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805875
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Irene O'Connell
DATE:24 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2019 at 2:58pm

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – Federal Circuit Court remittal – political opinion – membership and activity in opposition party – attacks and threats by government supporters – community activity in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 February 2014 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Zimbabwe, arrived in Australia [in] September 2012 on a [temporary] [visa]. He travelled to Australia from South Africa where he resided from 2009. On 12 December 2012 he lodged an application for a protection visa. The delegate refused the grant of the visa and the applicant sought review of this decision on 28 February 2014.
On 9 October 2014 the Tribunal affirmed the delegate’s decision. The applicant then sought judicial review of the Tribunal’s decision and [in] December 2017 the Federal Circuit Court remitted the matter, by consent. The matter is now before the Tribunal (differently constituted) for a second time.
The applicant lodged his protection visa application on the basis of his political opinion. He also claimed to fear harm by reason of his Ndebele ethnicity. He claims to have been a member of the MDC-N and to have suffered violence at the hands of ZANU-PF in the election of 2008. He also claims that since then several incidents involving himself and members of his family lead him to believe that he is of ongoing adverse interest to the ZANU-PF and government agencies in Zimbabwe. He also fears returning to Zimbabwe because of its poor human rights record.
For the reasons that follow, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.
RELEVANT LAW
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
CLAIMS AND EVIDENCE
The Tribunal has before it Department file ([number]). Also before the is the Tribunal file 1403847 in respect to the first review and Tribunal file 1805875 in respect to this review.
Department file
The Department file contains the applicant’s protection visa application, the delegate’s decision record and an audio recording of the applicant’s interview with the delegate. In addition the file contains a statutory declaration from the applicant and documentation in support of his application.
In his protection visa application the applicant states that he was born in Bulawayo on 24 November 1984. He speaks, reads and writes English, Ndebele and Shona. He lists his ethnic group as Ndebele and his religion as Christian.
In his statutory declaration (dated 22 January 2013) the applicant sets out the following:
o He was born in Bulawayo, Matabeleland, Zimbabwe and has no right to reside in any other country.
o He has a Zimbabwe passport valid until [2021]. He has lost his previous and now expired passport.
o He has six years of primary education having attended [School 1] Matabele South, Zimbabwe and five years of secondary education having attended [School 2] and [School 3] in Matabele South, Zimbabwe. He has also completed tertiary education at [College 1], Matare, Zimbabwe and [College 2]. The applicant has also completed some tertiary studies at [a university in] South Africa.
o He worked as [job titles, employers in Zimbabwe and South Africa, dates].
o He was [job titles, employers in South Africa, dates].
o He is from the Ndebele ethnic group and is a practising Christian. He is also an active member of the MDC political party.
o Whilst working for the party during one of the outreach programs in rural [Town] in December 2008, he was in a vehicle with three others. They were stopped by a road block set up by ZANU-PF youth. His colleagues managed to escape but he was held, beaten and interrogated.
o During the attack his life was threatened and he heard one of the attackers say ‘today we are going to kill this Ndebele’. He sustained injuries to his [eye], [knee] and lost a tooth as a result of this attack and was left by the side of the road.
o He was found by his friends and they took him to a medical practitioner’s house in Bulawayo where he was nursed for at least two weeks. He feared he would be caught by government security which prevented him from attending a government hospital. His uncle helped him leave to seek refuge and medical attention in South Africa.
o He fears he will be tortured or killed if he is to return to Zimbabwe by the government security apparatus including the Central Intelligence Organisation, the military, the police, prisons and ZANU-PF youth militia and supporters.
o He is from the minority Ndebele tribe and will be targeted by ZANU-PF supporters.
o As he has lived away for a significant period of time, he would stand out among the rest of the people and will not belong.
The applicant provided to the Department several documents in support of his application. These included a copy of his Zimbabwean passport, his [university] academic records and fees printout; an employment reference letter from [Employer 1] (dated [January] 2012) and various printouts of internet articles containing country information.
He also provided a copy of a MDC Membership Card, a letter from the South African Provincial Chairperson of the MDC (dated [January] 2013) and a letter from the organiser of the MDC Harare head office (dated [January] 2013).
The MDC card is issued in the applicant’s name and at his address in Bulawayo in Zimbabwe. The card indicates that subscriptions were made in 2012 and that he joined [in] January 2010 (Folio 26-27 Department file).
The letter from the South African Provincial Chairperson of the MDC states that the applicant has been an active member of the South African chapter of the party assisting in community activities since 2009 after arriving in the country to seek medical attention and to run away from persecution in Zimbabwe.
It also states that his home is monitored by ‘suspicious individuals … which our Security Department deems to be Zimbabwean security agents’.
The letter from the organiser of the MDC Harare head office confirms the applicant has been a member of the party since 2006 and involved in the education of new members. The letter further states that the applicant suffered injuries to his [eye] and knee during an attack by ZANU-PF youth and security personnel whilst carrying out his duties.
The Department file also includes the applicant’s request for Ministerial Intervention, including various character references, a letter in support from [an Australian official] and a letter and academic transcript from [a University in] Australia.
Before the first Tribunal
The applicant provided to the Tribunal a copy of the delegate’s decision record and a summary of his response to this decision. The applicant appeared before the first Tribunal at a hearing conducted on 1 October 2014. The Tribunal has listened to a recording of this hearing.
The applicant’s representative made written submission to the first Tribunal (dated 18 June 2014). Attached was a statement made by the applicant dated 17 April 2014. In this statement the applicant sets out what he believes to be the shortcomings in the delegate’s decision. In particular he states that the assumed low level of his political profile does not protect him from adverse interest of ZANU-PF, as low level members of the MDC more so than high profile members are targeted. He also addresses the issue of his ability to return to Zimbabwe from South Africa to collect a new passport.
He provided a further submission (dated 1 October 2014) in respect to the Zimbabwe 2013 election results and ongoing political violence against MDC supporters by ZANU-PF.
Before the current Tribunal
The applicant’s representative made written submissions to the Tribunal (dated 19 February 2019). The representative submits that the applicant fears persecution by reason of his political opinion; that is his support and involvement with the MDC-N and his opposition to the ruling ZANU-PF party. The submission includes reference to country information sourced from Human Rights Watch, Amnesty International and the International Crisis Group as well as news reports from the BBC and ABC. This country information is provided as evidence that people opposing the current regime are at risk of harm. Country information is also provided as to the treatment of the applicant’s ethnic group, the Ndebele people.
Provided with the submissions is a statutory declaration from the applicant, a witness statement from the applicant’s uncle who resides in [Australia] and an audio voice recording (dated 4 July 2018).
In his statutory declaration the applicant sets out issues in respect to the first Tribunal’s findings and then addresses his reasons for fearing harm on returning to Zimbabwe. He claims that he was attacked and beaten in 2008 and since then three incidents in particular indicate that he is of ongoing adverse interest to ZANU-PF and would face harm if he returned to Zimbabwe.
These particular incidents are that the applicant claims to have received a threatening voicemail message on his mobile phone on 4 July 2018 in which the following was stated:
…we know where you are and we can find you where you are … take this as a clear warning for you and yourself and your family to leave politics and leave the politics for the politicians
The applicant states that he is unaware of what prompted the threat but that, at the time, he gave $100 to a friend who was campaigning for the Zimbabwe African People’s Union (ZAPU).
A second incident involved the death of a stepbrother in a car accident. The applicant claims that the car was registered in his name and belonged to him. It is believed that the accident was a result of faulty brakes which the applicant believes had been tampered with and that the applicant was the intended victim.
A third incident involved his paternal grandmother who was harassed by ZANU-PF and/or government agents and had to relocate.
In the witness statement, the applicant’s uncle indicates that he has known the applicant for the greater part of his life. He states that he knew from other people in Zimbabwe that the applicant was involved in the MDC in 2007/2008. He also states that after the 2008 elections many people opposed to the government were rounded up and the applicant fled to South Africa. He also states that the situation in Zimbabwe at the moment is dangerous for ordinary Zimbabweans ‘but even worse for those involved in political parties’. He states that because of the current situation in Zimbabwe and because of the applicant’s past involvement in the MDC the applicant cannot return to Zimbabwe safely.
The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The applicant’s legal representative [from] [named] Lawyers, was also present at the hearing. The hearing was conducted in the English Language.
The applicant provided the following oral evidence in respect to his family. His immediate family in Zimbabwe consists of his mother and several stepsiblings. He was born out of wedlock and since his birth his mother has married twice. The first marriage resulted in a divorce and his stepfather by the second marriage is recently deceased. He has [a number of stepsiblings] [details deleted]. He has an aunt on his mother’s side of the family who lives in [Australia], is an Australian citizen and has returned to Zimbabwe a couple of times without difficulty.
The applicant stated that he is in a relationship with a [Country 1] citizen who resides in Australia on a [temporary] visa. She has been in Australia for two years. He stated that they are expecting a child in May 2019. They have not discussed her intentions of returning to [Country 1] after [her visa ends]. Prior to this relationship the applicant was in a relationship with an Australian citizen.
The applicant stated that he currently works at [at a workplace] having completed a degree at [an Australian University] in 2017. In terms of his past education he stated that he studied for one year at [College 1] and another year at [College 2]. He also studied at [a university in] South [Africa].
The Tribunal asked the applicant to elaborate on the issue regarding the death of his stepbrother whilst driving that applicant’s car. The applicant stated that he had bought a car in 2010. In 2015 he gave the car to his stepbrother for his use, although the car continued to be registered in the applicant’s name. His stepbrother died in a car accident whilst driving the car. The applicant was informed by relatives that the brakes of the car appeared to have been be tampered with. The applicant believes that he was the intended target of the tampering of the brakes. The Tribunal put to the applicant that this seemed a ‘long bow’ and hypothetical. The applicant stated that ZANU-PF behaves in this fashion.

In terms of other incidents which the applicant believes are indicators that he faces harm in the future he stated that he resumed relations via [Social media] with his half-sister on his father’s side. She informed him that in 2009 his paternal grandmother was forced to relocate to the south as she was harassed and threatened and was told that they were looking for the applicant.
The applicant stated that he also received an anonymous phone call on his mobile phone [in] July 2018 and a message was left on his phone which the applicant recorded. He also received text messages when he was in South Africa and people appeared to be asking about him; thus, for example, he lived in a gated community in South Africa and was told someone was outside of the gates waiting for him. The applicant stated that these incidents were actions to intimidate him because of his political activities.
The Tribunal asked the applicant about his political activities. He stated that his current activities are limited. He has been involved in setting up [details deleted] for Zimbabweans living in South [Africa]. He stated that he was working on the scheme with others. The Tribunal asked the applicant how this scheme could be seen to be political. The applicant stated that the people who are running it have different views from ZANU-PF. He stated that most business activities in Zimbabwe are now run by ZANU-PF and that ZANU-PF controls everything. He stated that the scheme was sabotaged. Asked if he was still involved he stated that he provides professional financial advice.
The applicant stated that he is involved in [Organisation] in Australia and [an office bearer] of [a certain] Chapter. He said this group is involved in [events]. He described it as a community group with Zimbabweans from all political groups and different ethnic groups. When asked about other activities he has had involvement with he stated that on one occasion he donated money to a candidate of Zimbabwe African Peoples Party.
The Tribunal asked the applicant about his past political activities. He stated that he was active in the Students’ Union in 2006 to 2007 at [College 1]. He said that he with others advocated for student rights in terms of free education instead of fees. He was asked how he did this and he stated that they had meeting with the Principal and wrote to him. When meeting with the Principal he raised issues about the quality of the food on the campus, student welfare and sporting activities. He was also involved in fundraising for students. He said that he was forced out of [College 1] because of his activism. He stated that when at [College 2] he was called into the Principal’s office and warned against involving himself in student activities.
In terms of his involvement in the MDC he stated that he became a card carrying member of the MDC in 2007/2008. When asked why he had a card of the MDC and not of the MDC-N, he said that they did not make a distinction at that time. The Tribunal noted that the card he had provided, a copy of which was on the Department file, was issued in 2012. The applicant stated that his card of 2008 was full and for this reason he was issued with a new card in 2012. He was residing in South Africa at the time and said that there was a chapter of the MDC in South Africa to which he belonged. The Tribunal noted that the MDC card gives his address and district as [Suburb], Bulawayo, Zimbabwe. The applicant stated that this is because that is where he votes.
The applicant stated when he signed up with the MDC he helped organise rallies, distributed T-shirts and tried to get a sense of people’s voting sentiments and helped select candidates. The applicant was working full time so his political activities were confined to weekends. His stepfather was working in Harare as [a position in an organisation] and retired.
In 2008 on a Friday, he and some others were travelling south when they came across a road block. When they stopped he was pulled out of the car. He was interrogated for some hours and assaulted. He was left there and he was picked up by his friends who returned for him and they took him to a medical clinic. He then went to South Africa and received medical treatment there for a knee injury. The Tribunal asked about the medical certificate issued in South Africa from a GP stating that the applicant was unfit for work. The applicant stated the certificate was intended for his workplace.
The applicant stated that in South Africa he worked with [Employer] in [City] and he became involved in the MDC chapter in South Africa. Asked if he was involved in politics in South Africa the applicant stated that he just tried to keep people informed as to what was happening in Zimbabwe.
The Tribunal noted that one of the letters of support states that he was involved in MDC in 2006 but he stated that he joined the MDC in 2008.The applicant stated that the letter of support assumed that his student activities were in support of the MDC. He stated that he asked for the letter of support.
In terms of his ethnicity the applicant stated there has been a lot of discrimination against the Ndebele. He said his family in the past were mistreated and he referred to his grandfather. He stated that the ethnicity part is always there but does not play a part in his fear of harm now.
The applicant was asked what he feared on returning to Zimbabwe. He responded that he fears he will be deprived of basic rights. He fears he will be killed and that the government would do anything and that there are many political prisoners and people killed when they express their views. The applicant stated that the government will repress anyone that opposes them and that a lot of low ranking members of the MDC are being abducted.
The Tribunal discussed the country information and in particular the Department of Foreign Affairs and Trade (DFAT) Report. The Tribunal also discussed the issue of third country protection in respect to [Country 1].
Post hearing submission
On 12 March 2019 the applicant’s representative provided a submission in respect to whether the applicant would have a right to enter and reside in [Country12] stating that the applicant has no present rights to reside in [Country 1]. The applicant’s representative emphasised that whether the applicant may be entitled to a [Country 1] visa through his partner is not a relevant consideration.
Country information
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the DFAT expressly for protection status determination purposes.
The DFAT Country Information Report, Zimbabwe, dated 1 March 2019, provides the following information relevant to the applicant’s claims:
Race/Nationality
3.1 Article 56 of the Constitution prohibits discrimination based on nationality, race, colour, tribe, place of birth, ethnic or social origin, custom or culture. Article 63 provides that ‘Every person has the right to use the language of their choice, and to participate in the cultural life of their choice.’ Despite these protections, however, ethnicity is a potential source of tension in Zimbabwe and an important aspect of political life. The country continues to suffer from the legacy of the colonial period, which affects relations between white and black Zimbabweans; voting patterns continue to reflect ethnic and racial affiliation; and there is evidence of inter-ethnic favouritism and marginalisation.
Ndebele
3.2 The Ndebele are a Bantu-speaking ethnic group dispersed across southern Africa. There are approximately 1.82 million Ndebele in Zimbabwe, mostly in the Matabeleland and Midlands provinces. Bulawayo is also majority Ndebele. The Ndebele migrated to these areas from South Africa in the mid-18th century. Although the Ndebele are not physically different from Shona-speaking Zimbabweans, they are distinguishable because of their linguistic differences and use of Ndebele names.
3.3 The Shona people and the Ndebele have a long history of animosity, with records of inter-ethnic violence pre-dating the colonial period. This violence peaked in 1982-1987 (see ‘Security Situation’ above). The cessation of hostilities in 1987 brought an end to this open violence, with ZANU and ZAPU forming a political alliance under ZANU-PF.
3.4 The Ndebele are represented at all levels of society in Zimbabwe. Prominent Ndebele figures have included several Vice Presidents, Ministers and key opposition figures. There is generally a substantial degree of close contact between the Ndebele and Shona, and intermarriages are relatively common.
3.5 However, credible human rights organisations and prominent Ndebele leaders have told DFAT that Shona-speakers from Mashonaland occupy most senior political appointments in the Matabaleland provinces and Bulawayo; that these political appointees demonstrate bias in their selection of service providers from Mashonaland for infrastructure projects within Matabeleland; and that there are proportionately fewer ethnic Ndebele than native Shona speakers in the Zimbabwe Republic Police (ZRP). DFAT understands the concentration of development in Harare and continuing impunity of those responsible for the Gukurahundi massacres are ongoing sources of resentment for the Ndebele community.
3.6 Overall, DFAT assesses there is a moderate level of official discrimination against the Ndebele in Matabeleland and minimal official and societal discrimination against the Ndebele elsewhere in Zimbabwe.
Political Opinion (Actual or Imputed)
3.15 The political environment in Zimbabwe remains repressive despite the country experiencing a period of relative calm since general elections in July 2013. This calm is largely attributable to the pervasive threat of the state security apparatus, and to the lack of strong political opposition because key opposition groups have splintered. However, the state-sponsored security apparatus remains intact and continues to harass and intimidate civil society organisations, activists and opposition party members.
Politically motivated violence
3.19 The level of politically motivated violence in Zimbabwe has declined significantly since 2008 as a result of the stabilising effect of the GNU; a deliberate change in tactics by ZANU-PF; and the MDC-T’s loss in the 2013 elections, which fractured and severely weakened the country’s main opposition party. But levels of politically motivated violence fluctuate and appear to have increased in 2015.
3.20 The MDC-T has splintered twice since 2005 and boycotted every by-election in 2015. In this context, the state-sponsored security apparatus has shifted its focus from overt physical violence to more subtle forms of intimidation. These new tactics include manipulating courts; vote rigging; intimidating journalists and civil society activists; manipulating the distribution of food and agricultural products in rural areas; and using land distribution and housing destructions to establish political and electoral influence.
3.21 According to the Zimbabwe Human Rights NGO Forum, there were 1,606 cases of harassment and intimidation in 2015, with more incidents in the lead-up to by-elections in June and September. The perpetrators were mostly ZANU-PF supporters targeting white farmers, MDC-T and MDC-N members, and ZANU-PF members perceived to be aligned with former Vice President Joice Mujuru. On 9 June 2015, ZANU-PF supporters threatened to kill and forcibly displace a 36 year old man in Karoi for supporting former ZANU-PF member, Themba Mliswa; on 13 July 2015, the Harare City Council demolished 11 ‘illegal’ houses belonging to MDC-T supporters in Glen Norah, Harare; and on 15 September 2015, seven MDC-T Members of Parliament received death threats on their mobile phones warning them not to ‘heckle’ President Mugabe. This has continued in 2016, with 140 reported cases of harassment and intimidation in January alone.
3.22 Credible sources have told DFAT that inter-party harassment and intimidation currently largely targets low-profile opposition party members and supporters and is most prominent in Mashonaland province. In rural areas, ZANU-PF uses its patronage network of village chiefs to manipulate the distribution of government-funded food and agricultural products. There are regular and credible reports of ZANU-PF distributing these goods at party meetings or requiring recipients to possess ZANU-PF identity cards. This has occurred throughout Zimbabwe, particularly in Mashvingo province and areas where there is perceived support for opposition parties, including Matabeleland and Midlands provinces. On 21 November 2015, village leaders and a ZANU-PF ward chairperson in Bindura North distributed fertilizer exclusively to those who attended ZANU-PF meetings. This form of harassment reportedly increases during election periods.
3.23 In urban and peri-urban areas, government authorities have demolished so-called ‘illegal’ households in order to dilute political opposition in high density suburbs. This constitutes a significant form of harassment of ‘ordinary’ people in Zimbabwe, and is most prominent in Mashonaland Central and high density areas in Harare (see also ‘Zimbabwe Republic Police’ below).
3.24 Despite this change in tactics, physical violence – and the threat thereof - remains a feature of the political landscape in Zimbabwe. Inter-party violence is most common during election periods and political rallies – particularly those perceived to be contrary to ZANU-PF interests. On 1 November 2015, MDC-T supporters and ZANU-PF youths clashed in Hopley, South Harare, destroying a number of homes and businesses in the area despite the reported presence of ZRP personnel. Official rhetoric also highlights the on-going threat of violence from the state-sponsored security apparatus. On 29 September 2015, Zimbabwe’s National Army Director for Civil-Military Relations, Colonel Charles Matema, publically announced that the Zimbabwe Defence Force (ZDF) was prepared to ‘eliminate’ insurgent threats, highlighting the 2007 ‘attempt by the MDC to topple’ President Mugabe as an example of such a threat.
3.25 Intra-party violence affects ZANU-PF and the MDC-T, which have both suffered from heightened levels of infighting and factionalism since the 2013 elections. On 15 February 2014, MDC-T party youths assaulted then MDC-T Secretary-General, Tendai Biti, and Deputy Treasurer-General, Elton Mangoma, for challenging the leadership of MDC-T President, Morgan Tsvangirai; on 14 November 2015, two ZANU-PF officials died in a politically-motivated axe attack in Chitungwiza, Harare; and on 30 January 2016, ZANU-PF members clashed during a party meeting in Glen View, Harare.
Movement for Democratic Change – Ncube (MDC-N)
3.35 The MDC-N is one of two parties to emerge from the Movement for Democratic Change (MDC) following the MDC’s split in 2005 (the other party was the Movement for Democratic Change-Tsvangirai). Led by Welshman Ncube, the MDC-N’s power base is in Bulawayo. The MDC-N has become a fractured and marginalised political force since the July 2013 elections, where it gained one parliamentary seat based on proportional representation of women and its leader, Welshman Ncube, received only 2.68 per cent of the Presidential vote.
3.36 Credible sources have told DFAT that Zimbabwean authorities occasionally arrest MDC-N members but generally regard the MDC-N as a defeated political force. DFAT assesses that MDC-N members are subject to a low level of official discrimination because because they do not presently pose a significant threat to ZANU-PF.
In respect to the current situation in Zimbabwe, in an article by the Associated Press, titled ‘1 year after Mugabe fall, Zimbabwe asks what has changed?’ (12 November 2018) the following is set out:
A year later Zimbabwe's economic problems have worsened and restrictions on basic freedoms remain, bringing some Zimbabweans to ask 'What has changed?' and 'Are things better?'
The euphoria at Mugabe's fall has evaporated. Mnangagwa promised Zimbabwe "a new dawn" but to many the country looks depressingly familiar with long lines at the banks to withdraw paltry amounts of cash and shortages of basic goods have led to the rationing of cooking oil, bottled water and beer.
MacDonald Dzirutwe, in an article for Reuters titled ‘The cash crunch behind Zimbabwe’s violent protests’ (24 January 2019), states:
The crisis will not be easy to fix. There is a severe shortage of dollars, fuel and medicines, while inflation hit 42 percent in December, the highest in a decade…
Everyday life has been getting harder as the price of basic goods spirals. In the past two months, the country has suffered acute shortages of imported goods, including medicines, food and fuel.
…
On Jan. 12, Mnangagwa announced to reporters that the price of petrol had increased to $3.31 per litre from $1.32 from midnight, but there would be no increase for foreign embassies and tourists paying in cash U.S. dollars.
It was the final straw for some Zimbabweans, and violent protests broke out two days after his announcement.
A Bloomberg article titled ‘Desperation Erodes Fear: Protesters Brave Zimbabwe Crackdown’, (29 January 2019) by Brian Latham and Antony Sguazzin further states:
Crowds showed little fear as they poured onto the streets of the capital, Harare, and other major cities such as Bulawayo when the main labor federation called a three-day stay-away this month after fuel prices were more than doubled to the highest in the world. The army’s response to the worst rioting since 1995 claimed the lives of at least a dozen people, and gunshot wounds accounted for 78 of the about 360 injuries.
FINDINGS AND REASONS
Country of reference
On the basis of the applicant’s passport presented at the hearing (a photocopy of which is located at Folio 24 of the Tribunal file) the Tribunal is satisfied that the applicant is a national of Zimbabwe. Accordingly, the Tribunal finds that Zimbabwe is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.
Does the applicant have a well-founded fear of persecution on return to Zimbabwe?
The applicant claims to fear harm on return to Zimbabwe by reason of his political opinion and his ethnicity and because of the general disregard for human rights in Zimbabwe.
In respect to the applicant’s ethnicity the Tribunal accepts that the applicant belongs to the Ndebele ethnic group. As set out in the country information in the DFAT Report of 2019 there is a history of conflict and animosity between the Shona majority and Ndebele minority. The Tribunal notes and accepts the applicant’s oral evidence that his grandparents and parents (as children) were caught in up in racial violence. The Tribunal notes and accepts the applicant’s oral evidence that he does not at this particular point in time fear harm on his return to Zimbabwe for reason of his ethnicity (see paragraph 56). The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution by reason of his ethnicity on return to Zimbabwe.
The applicant does however claim to fear harm from ZANU-PF and government agencies on his return to Zimbabwe by reason of his political opinion and profile. The applicant claims to have been an active member of the MDC-N and that, although a low ranking member, he has experienced harm in the past and fears future harm.
The Tribunal does not accept that the applicant has a political profile even as a low level ranking member of the MDC. Nor does the Tribunal accept that the applicant has been politically active other than his involvement in the elections of 2008. As set out below the Tribunal considers the applicant’s claims about his membership and participation on the MDC-N and political activities are embellished and not supported by the documentary evidence he has provided to the Tribunal.

The Tribunal accepts that the applicant had some involvement in student activities in 2006 and 2007 when he attended [College 1] and in Bulawayo. The Tribunal does not accept that this student activity was of a political nature. At the hearing when asked about his student activities the applicant described these activities as meeting with the Principal and discussing student concerns about fees and student welfare, such as the quality of the food (see paragraph 49 above).
In terms of his political activities post 2008, the applicant claimed to have remained active with an MDC chapter in South Africa, but when asked about this at the hearing the applicant described his involvement as keeping people informed on events in Zimbabwe. The Tribunal considers this to be minimal and unconvincing. He also referred to his involvement in setting up [details deleted] for Zimbabweans living in South Africa as a type of political activity. The Tribunal does not accept that this was the case and is not persuaded by the applicant’s suggestion that because the people running the scheme have different ideas from ZANU PF and ZANU PF control all the business in Zimbabwe the [group] was of a political nature.
In terms of the documentary evidence that the applicant has provided in support of his claimed political activity with the MDC the Tribunal finds as follows. The Tribunal notes the letter of support from [an] Organiser of the MDC in Bulawayo, which is dated [January] 2013, suggested that the applicant was a member of the MDC from 2006 when the applicant’s own evidence was that he joined the MDC in 2008. At the hearing when this was put to the applicant he responded that the author of the letter had wrongly confused his student activities with his involvement with the MDC, which he said commenced in 2008.
The letter of support from the South African chapter of the MDC suggests that the applicant has had involvement in South Africa in community projects and claims that suspicious individuals thought to be Zimbabwean security agents have monitored his home.
The Tribunal places minimal weight on these two letters of support because of the factual error in the first and because the Tribunal considers them to be self-serving in nature.
The Tribunal also places limited weight on the MDC card. Details in the card are inconsistent with the applicant’s evidence. Thus, for example, the card states that the applicant joined the MDC in 2010 and the subscription to the MDC is paid for the year 2012, that is, the year the applicant lodged his protection visa application. The applicant claims that he joined the MDC in 2008. He contends that he had an earlier card which was full and he required a second card and it is this card he provided to the Department. This however does not explain why it would state that the applicant joined in 2010. Further when it was noted that the card lists his address as in Zimbabwe, when in fact he was residing in South Africa. The applicant claimed that they entered the address related to his electorate in Zimbabwe.
In terms of the harm both past and future, which the applicant claims to have experienced and/or fears, the Tribunal finds as follows. The Tribunal accepts that the applicant was caught up in political violence while campaigning in the 2008 elections in the manner he has so described. That is, that he was stopped at a road block and interrogated and assaulted. The applicant’s account accords with the country information which indicates that there were high levels of political violence in the lead up to and post the general elections of 2008.
The Tribunal notes that the manner in which the political violence occurred was random, in that the applicant along with others was stopped at a road block and interrogated. He was not specifically sought after.
The Tribunal does not accept that the applicant’s moving to South Africa in 2009 was in the manner of a flight of fear for his life or need for medical attention. The applicant’s academic and employment record indicates a smooth transition from Zimbabwe to South Africa, not a person in flight for fear of his safety. The applicant’s employment record indicates that he ceased working as [a position] in Bulawayo in December 2008 and commenced working as [a position] at [Employer] in [City] in January 2009. The medical certificate he has provided as evidence that he required medical attention in South Africa simply states that the applicant was unfit for work from the 9 January 2009 to the 13 January 2009.This would indicate that the applicant was already in employment in South Africa and had not just arrived.
The Tribunal does not accept that the applicant was or is of any ongoing interest to political opponents of government agencies. The applicant has identified three incidents which he claims are attempts to intimidate him and indicate that he is of ongoing adverse interest to the ZANU-PF and the government. In respect to two of these, the death of his stepbrother in a car accident and threats made to his paternal grandmother, the Tribunal considers it to mere conjecture that the applicant was the intended victim of the car accident in which his stepbrother died, and the Tribunal also considers it to be conjecture that his paternal grandmother was pursued by reason of the applicant. As such the Tribunal does not accept that these two incidents are relevant to the applicant.
In respect to the third incident, a threatening voicemail message on the applicant’s mobile phone, the applicant claims that the voicemail was left on his phone [in] July 2018 and demands that the applicant ‘leave politics’ and ‘leave politics for the politicians’. Given that the applicant, on his own evidence, was not involved in any political activities at this time but only claimed to have provided a small amount of cash for the Zimbabwe African People’s Union (ZAPU) the Tribunal finds this claimed threat to be incongruent and meaningless. In any event, as any person can leave any message on any mobile phone with a message service and that such evidence can be manufactured, the Tribunal places no weight on the existence of such a message.
The applicant has also referred to been monitored in South Africa referring to person/s waiting for him at the entrance to his gated community. The letter of support from the South African Provincial chairperson states that “there have been a number of suspicious individuals who have been monitoring his home which our Security Department deems to be Zimbabwean security agents.” The Tribunal considers this to far- fetched and does not accept that the applicant has been monitored by Zimbabwean security in South Africa.
In sum, the Tribunal accepts that the applicant was involved in campaigning for the MDC during the 2008 elections and was caught up in electoral violence at this time. However for the reasons set out above and considered collectively the Tribunal finds that the applicant’s political activity was confined to the elections of 2008 and that apart from the one incident in 2008 he was not and is not of adverse interest to either ZANU-PF or government agencies.
At the hearing the applicant was asked about any political activities here in Australia. The applicant referred to his involvement in the [Organisation 1] in Australia but when asked about the activities he has been involved with, the applicant described involvement in social activities not activities of a political nature. The Tribunal also notes and accepts the applicant’s oral evidence that this association involved Zimbabweans of diverse ethnic backgrounds and political persuasions.
The Tribunal does not accept that the applicant has any ongoing interest in the MDC and would seek to re-engage in political activities on return to Zimbabwe. The Tribunal makes this finding on the basis that the applicant has not sought to involve himself in any political movements here in Australia relevant to Zimbabwe. The applicant has however involved himself with [Organisation 1] in Australia which involves a cross section of Zimbabweans.
The applicant claims that he will be deprived of basic human rights if he returns to Zimbabwe. The Tribunal accepts the country information set out above which indicates that despite expectations after the July 2018 elections, Zimbabwe remains a country in dire economic circumstances and when people who took to the streets to protest against the worsening economic circumstances they were treated harshly by the Zimbabwean authorities.
The Tribunal accepts that the applicant on return to Zimbabwe may have difficulty in securing his livelihood, this difficulty would not, however, be a result of persecutory conduct towards the applicant by reason of his political opinion, race, religion, nationality or membership of a particular social group, but rather a result of the general economic circumstances of Zimbabwe.
The Tribunal also notes that the applicant in his statutory declaration to the Department of January 2013 stated that his long absence from Zimbabwe would mean that ‘he would stand out among the rest of the people and will not belong’. Before the Tribunal the applicant did not raise this concern. The Tribunal does not accept that any adjustment required of the applicant in returning to Zimbabwe would not amount to serious or significant harm.
For the sake of completion the Tribunal notes that at the hearing the applicant made a passing reference to one of his step-fathers having at a point of time worked as [a Position in an Organisation]. He did not suggest that his step-father’s previous employment played any part in his fear of harm on returning to Zimbabwe.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Is there a real risk that the applicant will suffer significant harm on returning to Zimbabwe?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that being whether on the evidence there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Zimbabwe.
As set out above at paragraph 18 ‘significant harm’ is exhaustively defined in s.36(2A) of the Act. For the reasons that are articulated above the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Zimbabwe.
The Tribunal notes and accepts the applicant’s concern that he will face hardship returning to Zimbabwe because of his long absence, the poor economic circumstances of Zimbabwe and the general disregard for human rights. However the Tribunal finds that these circumstances are circumstances faced by the population of the country generally and not faced by the applicant personally. As such, in accordance with s.36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm on his return to Zimbabwe.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy a criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Irene O'Connell
Deputy Division Head

[2019] AATA 5956

24 June 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction