1807055 (Refugee) - [2020] AATA 6035

1807055 (Refugee) [2020] AATA 6035 (8 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807055
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         8 July 2020 at 10:30 am (WA time)
DATE OF WRITTEN RECORD:                15 February 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.

Statement made on 15 February 2021 at 2:36pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – particular social group – women in Zimbabwe without resources, support or protection with particular vulnerabilities – gender-based violence – domestic violence at the hands of first husband – right to enter and reside in third countries – burden of providing primary care to a dependant child – state protection – behaviour modification and relocation – third country protection in New Zealand based on child’s citizenship entitlement – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Iyer v MIMA [2000] FCA 52
SZFDV v Minister for Immigration & Citizenship [2007] HCA 41
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 February 2018 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 8 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.
DECISION
The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.
Dr Colin Huntly
Member

Corrected Transcript
ORAL DECISION OF MEMBER HUNTLY [09.55 am]
BACKGROUND
The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994 (the Regulations). An applicant, to meet the requirements of the visa, must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.
Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs (DFAT), as is required by Ministerial Direction No.84.
The applicant, who claims to be a citizen of Zimbabwe, applied for the Protection visa on 8 December 2016. On 19 February 2018 a delegate of the Minister refused to grant a visa on the basis that they did not accept the applicant’s claimed political persecution in that country for the purposes of s.5J(1)(a) of the Act (as these relate to s.36(2)(a) of the Act). It is unclear to me from the delegate’s decision record on what basis the delegate did not subsequently find that the applicant engaged Australia’s protection obligations by reference to the alternative criteria at s.36(2)(aa) of the Act. It may be that this finding was inferred by the delegate from the credibility finding they had previously made relating to the previous refugee assessment.
The applicant was represented throughout the review by a registered migration agent. The applicant applies to this tribunal for a review of that decision.
I also note that, with respect to refugee protection, that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is subjectively held.
The applicant appeared at hearing with the Tribunal on three occasions to give evidence and present arguments. The first two hearings were in person in the Perth registry of the Tribunal on 12 August 2019 at which time the applicant was in an advanced stage of pregnancy. Following the safe delivery by the applicant of a [child] on [date] – which child is not an applicant for protection under the present review – the second hearing was held on 6 April 2020. The final hearing was held on 8 July 2020 via video conference due to the COVID-19 pandemic restrictions.
PRESIDENT’S DIRECTION
I have had regard to the President’s Direction COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020. I have also had regard to the President’s Direction Conducting Migration and Refugee Reviews 1 August 2018. In particular:
· That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and
· That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2]
[1]Consistent with the AAT Act 1975, s.33(1)(b) at [2.1].
[2]At [8.1].
COVID-19 RELATED ISSUES
It is acknowledged that the international public health crisis arising from the COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. However, I note that this decision is not a decision on removal. I am also mindful that decisions on Protection visas have the potential to give rise to such a decision in relevant cases. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Zimbabwe generally in response to the present COVID-19 crisis, do not in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.
CREDIBILITY
Before looking at my findings I note that on questions of credit a decision maker needs to give the benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that a decision maker must hold a positive state of disbelief before making adverse assessments.
Consistent with the various decisions commencing with those in the matter of Iyer,[3] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution, there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.
[3]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].
In this respect, I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides:[4]
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.
[4] At [8].
I also note that the same source provides that:[5]
In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.
[5] At [13].
Further, at [17]–[19] of the Guidelines it cautions that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal. A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.
With respect to contradictions, inconsistencies and omissions, [27]–[28] states:
Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal. The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
Identity and receiving country
As to identity, according the applicant’s movement record she arrived in Australia [in] November 2016, travelling on [a] Visitor visa. The applicant lodged her protection visa application the following month.
The applicant provided a copy of her passport to the Department with her application. There is nothing before me that would suggest that this passport is false. I therefore find that the applicant is a citizen of Zimbabwe, which is the receiving country for the purposes of the refugee and complementary assessments.
In light of the findings made below, it has not been necessary to make extensive findings pursuant to s.36(3) of the Act relating to third country protection. As discussed below, I am mindful of the statutory exception to Australia’s protection obligations at s.36(3) of the Act, which is as follows:
Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
I also note the restriction that applies to this exception, provided at s.36(5) of the Act, which is as follows:
Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded that (a) the country will return the non‑citizen to another country; and (b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
SUMMARY OF DECISION
The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason that she is a member of a particular social group, namely women in Zimbabwe without resources, support or protection and having particular vulnerabilities. For the reasons I will explain further below, I find that the matter should be remitted for reconsideration. I note that the applicant’s original claims for protection appear to have been accurately summarised in Part 4 of the delegate’s record of decision. These are as follows:
·     The applicant is a target of ZANU-PF, the police and central intelligence organisation.
·     The applicant was assaulted by ZANU-PF supporters in January 2005, losing four teeth.
·     In October 2016 ZANU-PF supporters attended the applicant’s home in order to harm her.
·     The ZANU-PF supporters did not find the applicant at home and assaulted her housemate, saying they planned to burn down the house with the applicant and children inside.
At interview with the delegate, the applicant offered the following claims in contradiction to her written claims:
·     The applicant had been a supporter of the MDC since 2005.
·     The applicant was assaulted by ZANU-PF supporters in January 2005, losing three teeth.
·     In May 2016, the police attended the applicant’s home in order to find her brother.
·     The police did not find the applicant at home, assaulted her housemate, telling her to tell the applicant to notify the police immediately of her brother’s whereabouts or they would burn her house down.
It is known to both the applicant and the Tribunal that the applicant’s brother (referred to in the foregoing extract of the delegate’s decision) travelled to Australia on the same Sponsored Visitor visa on which the applicant arrived in Australia. The applicant’s sibling was separately an applicant for protection who was also initially refused protection on refugee grounds in Australia but who, on review by the Tribunal as presently constituted, was subsequently found to be owed protection.[6]
[6] Tribunal Ref: 1702773.
At the first hearing with the Tribunal the applicant addressed a number of factual inconsistencies in her application documentation but otherwise confirmed the content of her protection visa application, in addition to the accuracy and fairness of the foregoing summary of her initial claims for protection.
The applicant then provided information about the circumstances of her pregnancy. During her time in Australia the applicant – who is a widow with two children (both of whom remain in Zimbabwe in care of a cousin in Bulawayo) – met and befriended an older man in the local ethnic Zimbabwe community who had himself recently become a widower.
On leaving Zimbabwe, on a sponsored work visa to New Zealand, the applicant’s recent partner had separately applied for and been granted, firstly permanent residency and then, citizenship in New Zealand. In time, he had relocated to Perth. This man was the father of two teenage children in his family unit from his prior relationship. In time, the applicant formed a relationship of mutual affection with this person. Their relationship eventually resulted in their marriage on 12 June 2018. The applicant fell pregnant with their child early in 2019. They had plans to seek a Partnership visa through the New Zealand immigration system once the relevant genuine-relationship qualifying periods had been observed. However, sadly, in March 2019 the applicant’s husband suffered a serious unforeseen medical emergency. Following a series of complications, he died [in] April 2019.
SIGNIFICANT CHANGES IN CIRCUMSTANCES
Accordingly, as a result of these significant circumstantial changes in your life, it has become necessary to take a fresh look at the underlining basis of your claims for protection in Australia. For reasons which will become apparent, it has become unnecessary for me to consider your original claims that form the basis of the delegate’s refusal decision in any depth.
Past experience of harm by an applicant may be relevant to a decision relating to an application for protection because occasions of past harm may be instructive about factual circumstances. However, past experiences of harm are not necessarily determinative when applying the forward-looking test that I must apply under the law – namely regarding the refugee criterion, whether, on return in the recently foreseeable future an applicant faces a real chance of serious harm for one or more of the reasons in s.5H(1)(a) of the Act.
Where significant changes occur in an applicant’s circumstances following a lodgement of an application for protection – such as changes in the circumstances applicable to an applicant’s country of origin; the genesis of relevant sur-place claims; or material changes that may impact on the innate or immutable characteristics of an applicant, the circumstances facing an applicant now and in the reasonably foreseeable future need to be considered in their entirety with fresh eyes and free of pre-conception. I find that yours is one such case.
RELEVANT LAW
The specific legal issues and relevant country information relevant to the reasons for my decision are addressed in the remainder of my reasons. A more expansive discourse on relevant law is not necessary here in order to articulate my reasons for decision in the context of an oral decision with reasons.
APPLICANT CLAIMS
During the course of my hearings with you and by means of written submissions you have given evidence of your personal experience of gender-based violence in Zimbabwe.
I note that your original application for protection, which was prepared on your behalf by your older brother, refers in general terms to violence you experienced in the context of your support for the MDC in Zimbabwe during periods of election-related violence. However, as these claims were framed from the perspective of your older brother – they necessarily lacked your own first-person perspective. Rather than viewing this as undermining the veracity of your principal claims for protection as assessed by me, I have formed the view that they highlight the fact you have particular vulnerabilities and cultural conditioning which places you in a position of dependence on male figures. This is the result of complex social and economic circumstances endemic to Zimbabwe that will be addressed in some detail below.
In addition, you have expressed an awareness of the endemic nature of gender-based violence in Zimbabwe aimed towards women in general and vulnerable, unprotected women in particular. I note your evidence to me that men in Zimbabwe are not held to account for their violence against women – whether this be sexual, physical or psychological in nature. Your evidence to me today, in fact, was that men have the upper hand with respect to women, particularly single, unprotected women and they are not taught are to respect women – rather to treat them as being less-than men and existing for their service.
Regrettably, your awareness of gender-based violence is not theoretical. From a young age you were deprived of the protection and support of your mother, who herself had to flee to [Country 2] to escape political persecution. Your father was also absent from your life from a young age after he returned to his traditional lands. I note your evidence that you are no longer in contact with him. You and your siblings formed a support network of sorts and this support network is now no longer viable for you in Zimbabwe, given that your two older brothers are currently resident in Australia.
You are a survivor of domestic violence at the hands of your first husband to whom you were traditionally married in 2005. I accept your evidence that, in the course of this relationship, you endured repeated violent sexual assaults within the context of an abusive marital relationship.
I note also that you have two children from your previous marriage who are currently residing in Zimbabwe as mentioned before. These children appear to have some protection and support from their extended family in Bulawayo – a region which is noted to be somewhat protective of MDC supporters.
Furthermore, my assessment of relevant country information relating to those countries neighbouring Zimbabwe, to which you might ordinarily be expected to consider seeking third-country protection, does not adequately account for the endemic nature of gender-based violence against women in those countries. The available country information for those countries makes it clear to me that the state in those countries is either unwilling or unable to afford protection to women at a level one would expect in civilised nations held to appropriate international standards.

Accordingly, while there may be a theoretical right for you to enter and reside in third countries under the relevant agreements that apply for the freedom of movement of persons in the sub-Saharan African region this would not – on a reasonable assessment – reduce the chance of serious harm to you in those countries for the essential and significant reasons of your membership of the particular social group – women in Zimbabwe without resources, support or protection with particular vulnerabilities to a level that would make it less than a real chance.
Accordingly, I find that for all relevant purposes you would face a real chance of serious harm for that essential and significant reason now and in the reasonably foreseeable future if you were returned to Zimbabwe and you would also face such a real chance in neighbouring countries. This is not diminished merely by the fact that you have, in common with other residents of Zimbabwe, crossed border checkpoints in the past in order to obtain the necessities of life when these have been unavailable in Zimbabwe. In this respect, I note that you have been required to do what is necessary to ensure the survival of your two dependent children, born in your previous relationship with your first, now deceased husband. This highlights the particular vulnerabilities that you would face on return to Zimbabwe.
With respect to Zimbabwe in particular, I have reviewed the country information available relating to Zimbabwe and I note the most current DFAT Country Information report for Zimbabwe, dated 19 December 2019, is consistent with previous advisories I have reviewed over time, indicating the reported incidences of sexual assault against women in Zimbabwe is consistently around one in three.[7] Accordingly, gender-based violence against women in Zimbabwe must be regarded as being endemic.
[7] At [3.73] and [3.87].
I also note that this assessment is supported by the UK Home Office Country Information Note Zimbabwe, ‘Women Facing Gender-Based Harm or Violence’ from October 2018, paragraphs.[8] Women in Zimbabwe constitute a particular social group within the meaning of the refugee convention because they share a common characteristic that cannot be changed – their gender. Based on my assessment of the country information they have a distinct identity in Zimbabwe which is perceived as being different within that society.
[8] At [2.3.1]-[2.3.2].
Although women in Zimbabwe arguably form a PSG, this does not mean that establishing such membership is sufficient to make out a case for recognition as a refugee. The question to be addressed in each case will be whether the particular person faces a real risk of persecution for the essential and significant reason of membership of such a group.
The DFAT Country Information report for Zimbabwe, dated 19 December 2019 at [2.4.4] states that whilst the law criminalises rape, including spousal rape, it remains widespread. Almost a quarter of married women who had experienced domestic violence reported sexual violence. Sexual abuse also remains a widespread problem among girls. It is possible to continue this appalling and disturbing recitation of available country information on this point as the literature is relatively readily available. For present purposes, however, I note the helpful summary of relevant country information provided in the submissions made on the applicant’s behalf by her representative, dated 13 March 2020 – particularly at pp.18–20.
Notwithstanding that the reported extent of all forms of violence against women is unacceptable and represents a real chance of serious harm to any woman in Zimbabwe, it should be stressed that this is only the reported level of assault. It is reasonable to assume that the actual incidence is much higher. Given that the applicant’s family and the applicant herself have experienced adverse treatment in Zimbabwe for the essential and significant reason of their actual and imputed political views it is an open question (and one that is not necessary for me to answer in the circumstances at present) as to whether or not she would be willing (or indeed able) to access effective state protection sufficient to reduce her chance of serious harm to an acceptable level for the purposes of the refugee criterion.
Nevertheless, on the basis of the foregoing credible country information, I find that effective protection measures are not available to members of the particular social group women in Zimbabwe without resources, support or protection and having particular vulnerabilities, being innate or immutable characteristics of the group which are also shared by the applicant. This is because adequate state protection against persecution cannot be provided to members of this particular social group by the Zimbabwean state and credible country information raises doubts about whether the Zimbabwean State is willing and able to offer such protection as relevant to s.5LA of the Act.
I also note that there are two additional aggravating factors with respect to the availability of state protection relating to you. One is that you are a single mother with the added responsibility of a child of tender years to care for and this would increase your vulnerability to harm in Zimbabwe should you be returned.
It is also open to me on the evidence to find that you would be without effective means of protection and support within your immediate extended family support network in Zimbabwe now for the reasonably foreseeable future. While your [child] is not an applicant for protection in this matter, you yourself do bear the sole responsibility of care and protection for that child. Given the fact that you would be vulnerable to serious harm for the essential and significant reason of membership of a particular social group, bearing the additional burden of providing primary care to a dependant child in such circumstances has the potential to increase those vulnerabilities.
In these circumstances, it’s likely that you would be forced to find some form of protection for yourself and your [child] which may or may not exacerbate your chances of exposure to the precise forms of serious harm in that country to which I have referred.
Having noted that the primary unknown element in the foregoing statistical consideration of the incidence of violence towards women generally in Zimbabwe is the extent of under-reporting, I do note a number of relevant sources of credible country information referred to this as being highly probable. Those statistics, however, relate to women generally in Zimbabwe. I find that the incidence of significant physical harassment to, and significant physical treatment of, women in Zimbabwe who additionally have particular vulnerabilities – is likely to be materially higher.
FINDINGS
Accordingly, for the purposes of s.5J(5) of the Act, on the basis of credible country information, I find the applicant faces a real chance of significant physical harassment and significant physical ill-treatment in Zimbabwe now and for the reasonably foreseeable future for the essential and significant reason that she is a member of a particular social group – women in Zimbabwe without resources, support or protection, having particular vulnerabilities being innate or immutable characteristics of the particular social group which are shared by the applicant.
STATE PROTECTION
I note that harm from non-state agents may amount to persecution for the purposes of the Act where the motivation of the non-state agents relates to one or more of the reasons contained in s.5J(1)(a) of the Act and the state is unable to provide adequate protection against the harm where the state is complicit in the sense that it encourages, condones or tolerates the harm.
The attitude of the state in such circumstances is consistent with the possibility there is persecution where the state is willing but not able to provide protection. The fact that the authorities, including the police and the courts, may not be able to provide assurance of safety so as to remove any reasonable basis for fear does not justify an unwillingness to seek their protection. In such cases, a person would not be a victim of persecution unless it is concluded that the person would not, or could not, provide citizens in the position of the applicant with the level of protection which they are entitled to expect according to international standards.
BEHAVIOUR MODIFICATION AND RELOCATION
Section 5J(3) of the Act states that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to a person’s identity or conscience or that would conceal an innate or immutable characteristic or to a modification that would require the person to alter their religious beliefs – including a religious conversion concealing their true religious beliefs – cease to be involved in the practice of their faith, conceal their true race, ethnicity, nationality or country of origin, alter their political beliefs, conceal their true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which the person is opposed or accept the forced marriage of a child, alter their sexual orientation or gender identity, or conceal their true sexual orientation, gender identity or intersex status.
In the context of what is reasonable, the Tribunal notes that a well-founded fear of persecution should not properly be regarded as being restricted to a single part of the receiving country if relocating carries with it the need to avoid persecution by living discreetly or as the applicant might have put it, being invisible. Dealing with the previous statutory definition of a well-founded fear, in the case of SZFDV v Minister for Immigration & Citizenship, the High Court emphasised that:
It would not be a reasonable adaptation of the behaviour of an applicant to expect the applicant to return to the country of nationality, to abdicate or repudiate a fundamental right of the kind included in the Refugees Convention-related grounds of persecution.
As McHugh and Kirby JJ explained in the context of the previous statutory definition in appellant S395/2002 v MIMA:
The Refugee Convention from which the present statutory definition is derived would give no protection from persecution for reasons of religion or political opinion. For example, if it was a condition of protection that the person affected must take steps, reasonable or otherwise, to avoid offending the wishes of persecutors.
THIRD COUNTRY PROTECTION IN NEW ZEALAND
I raised with your representative the question of the possibility that you could assess third country protection in New Zealand derivatively, based on the presumptive New Zealand citizenship entitlement of your newborn [child]. I note the comprehensive and thoughtful submission of your representative dated 5 May 2020 on this point. Without wishing to summarise that submission to any extent, I have read, and agree with its essential conclusion that effective protection is not available to you derivatively.
The circumstances may have been different had your second husband been a New Zealand citizen by birth with an extensive extended family network in that country. This might have facilitated some sort of sponsorship – and may have entitled you to obtain contributory parenting status for the purposes of New Zealand law, either through the relevant statutory provisions presumptively or on the basis of exceptional circumstance applications.
However, given the fact that there is no extended family network of relevance, and also the fact that your relationship with your now deceased second husband would have been unlikely to meet the relevant statutory time periods in the country for those purposes, I am not satisfied on the evidence before me, in light of the relevant legal considerations outlined in your representative submission, that there is a viable alternative third-country protection available to you derivatively in New Zealand for the purposes of s.36(3) of the Act.
CONCLUSION
I have considered each of the integers of your claims for protection arising reasonably and naturally from your application for protection, both individually and cumulatively. On the basis of the foregoing findings, which I have gone into for your benefit at some length, and taken together with the relevant credible country information referred to in this discussion, I find your evidence in connection with the integers of your claims to have been credible and consistent and also consistent with relevant country information.
On the basis of the foregoing – which I note were either not known to the delegate in the first instance or inadequately considered – I find that you are a member of a particular social group, women in Zimbabwe without resources, support or protection having particular vulnerabilities, being innate or immutable characteristics of the group that you also share.
Taking these findings together with credible country information I find that you have a well-founded fear of persecution in Zimbabwe now and in the reasonably foreseeable future. I further find that this fear is for the essential and significant reason of grounds articulated in s.5J(1)(a) of the Act.
I am satisfied that there is a real chance of significant physical harassment and significant physical ill-treatment which is systematic and discriminatory for the purposes of the Act and that the real chance of persecution relates to all areas of Zimbabwe. Further, I find that this real chance of persecution also extends to the neighbouring countries to the extent that this might be relevant to any assessment under s.36(3) of the Act.
I also find that, pursuant to s.5J(3)(b) of the Act, it would not be reasonable (or even possible), to require you to be invisible – to use a phrase that might be employed – in order to reduce your real chance of significant physical harassment and significant physical ill-treatment due to your membership of a particular social group mentioned above.
Based on the credible country information to which I have referred, I further find that you would not be able to secure effective state protection for the purposes of s.5LA of the Act.
For these reasons I am satisfied that you are a person in respect of whom Australia owes protection obligations and therefore, on that basis, I find that you satisfy the criterion set out at s.36(2)(a) of the Act.
DECISION
The tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
END OF ORAL DECISION [10.30 am]