1825153 (Refugee)

[2019] AATA 5266

1825153 (Refugee) [2019] AATA 5266 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825153

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:David McCulloch

DATE:21 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 November 2019 at 9:21am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – membership and activity in faction of governing party – threats by father’s political enemies – circumstances in Australia – gambling, criminal conviction and imprisonment – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Luu v Renevier (1989) 91 ALR 39

MIEA v Guo (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa on 18 November 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 1 October 2019 and 24 October 2019. In the first Tribunal hearing the Tribunal took evidence from Ms [A], the applicant’s partner, and Mr [B], who both attended in person. In the second hearing the Tribunal took evidence by telephone from [Country 1] from the applicant’s father, Mr [C], and the applicant’s sister, [Ms D].

4. The applicant communicated with the Tribunal in English. In the second hearing, the Tribunal was assisted by the use of an interpreter in the Shona language, who interpreted for the applicant’s father and the applicant’s sister.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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 s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

9. 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – Zimbabwe, 11 April 2016, a copy of which was provided to the applicant at the first hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The following is apparent from the decision of the delegate, a copy of which was provided by the applicant to the Tribunal.

13. The applicant applied for a [student] visa [in] January 2015, which was granted [later in] January 2015. The applicant arrived in Australia [in] May 2015. The applicant departed Australia [in] January 2016 and returned [in] February 2016. The applicant was arrested [in] July 2016 for three counts of dishonestly obtaining a financial advantage by deception. The applicant was convicted. [In] June 2018, the applicant was sentenced to imprisonment until [October] 2019, and became eligible for parole [in] February 2019. The applicant applied for a protection visa on 18 November 2016. The applicant’s [temporary] visa was cancelled on 21 November 2016 under s.116 of the Act.

14. The following is apparent from the application forms for the protection visa.

15. Prior to coming to Australia, the applicant went to [Country 1] from [February] 2010 until [March] 2010 for his student visa application. The applicant then went to [Country 2] from [March] 2010 until [November] 2014 in order to study.

16. The applicant was born on [date] in Harare, Zimbabwe. The applicant is a Roman Catholic of Shona ethnicity, who speaks, reads and writes both Shona and English. The applicant did not tick any boxes in the application form regarding his relationship status. The applicant lists no family, but states that he is in contact with family via [Social media] messages and calls. The applicant lists a friend in Sydney as a contact. The applicant lists one address in [Town], Zimbabwe from birth until March 2010, and then one address in [Country 2] from March 2010 until November 2014. The applicant then lived at a different address in [Town], Zimbabwe from November 2014 until May 2015.

17. The applicant completed high school at [High School] in November 2009. The applicant then studied a [Qualification] in [Subject] at [University in Country 2] from March 2010 until July 2014. The applicant studied a [Qualification 2] of [Subject 2] at [University in Australia] from May 2015 until he withdrew in July 2016. The applicant worked as [an Occupation 1] for an [Employer 1] in [Country 2] from January 2014 until November 2014, and then as [an Occupation 2] at an [Employer 2] in Sydney from August 2016.

18. The applicant claims that he left Zimbabwe in February 2016 because his father’s political enemy made specific and direct threats against the applicant’s life. The applicant fears that if he returns to Zimbabwe, he will be abducted and killed by his father’s enemy. The applicant states that he received a threatening text message, and stated that he made a report to the police. The applicant heard nothing and followed up about it, and was informed that there was no record of the report. The applicant states that he did not attempt relocating as his father’s political enemies have networks across the country. The applicant states that his father’s enemies are members of ZANU-PF with links to the Central Intelligence Organisation. The applicant claims that the police ‘lost’ the report, and are influenced by ZANU-PF and the Central Intelligence Organisation, which are his father’s enemies. The applicant states that he cannot relocate due to the wide influence of ZANU-PF and the Central Intelligence Organisation.

19. The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):

    I am a Zimbabwean national but I have not lived permanently in Zimbabwe since 2009.

    I came to Australia in July 2015 on a student visa. I was enrolled at the [University].

    I went back to Zimbabwe in January 2016 on a one-way ticket with Emirates airlines. It was my intention to stay there.

    My father is [Mr C]. He is a former army officer who took part in Robert Mugabe's intervention in the Democratic Republic of the Congo in 1998-2002. He is a member of ZANU-PF and he contested elections as a ZANU-PF candidate in 2008. He was also active in ZANU-PF's preparations for the election in 2008 which included violently coercing people to support ZANU-PF.

    He has many enemies because of his involvement with the army and ZANU-PF. Nonetheless, particularly because of his association with the military, he enjoys a level of personal protection in Zimbabwe. That protection does not extend to me.

    While I was at home in January 2016, there was a confrontation between my father and a war veteran from another faction who made threats against me. He specifically said that, as I was the only son in our family, he would ensure that I disappeared without trace as he was well connected. I received a text message on February 2016 stating that I could say my final goodbyes. I communicated this to my father, who warned me that, as long as I was in the country, my life was under threat as he knew how these guys operated. This has happened to our family before. My father's brother, [Mr E], disappeared without trace and up until now we have not been able to have a funeral for him as we have not received closure by knowing what happened to him.

    I filed a police report but that was of no help as I was told there was no record of my report when I made a follow up enquiry. It was then that I realised I had to flee the country, and the only visa I had was my Australian [visa]. My mother obtained a loan and bought a one-way ticket to Australia for me.

    So, after only three weeks at home, I left Zimbabwe in fear of my life. I returned to Australia because I still had a valid [visa].

20. In the interview with the delegate, the applicant indicates that his father is a member of a group in ZANU-PF who has broken ranks with the party and is part of a faction opposing Robert Mugabe. The applicant’s father therefore is with the group that has broken away from ZANU-PF. The applicant claims that his father is a member of Gamatox and a follower of Joice Mujuru.

21. The applicant provided a detailed submission to the Tribunal dated 25 September 2019 together with attachments and links to various pieces of internet information. The Tribunal has taken this information into account.

22. The Tribunal notes the following as particularly relevant from this evidence provided.

23. The applicant indicates that he came to Australia in May 2015 to study for the degree of [Qualification] of [Subject] at the [University]. The applicant returned to Zimbabwe in January 2016 without having completed his studies. The applicant had no intention to return to Australia after leaving for Zimbabwe. He considered that his chances of finishing his [Qualification] degree were dim and he realised that gambling in Australia was a problem. The applicant had made arrangements to return to Zimbabwe from October 2015 but his father advised him not to return stating that it would not be safe for the applicant due to political reasons.

24. The applicant refers to his delay in seeking the protection visa from his arrival back in Australia [in] February 2016. The applicant indicates that he did not give any thought to seeking protection as he held a valid student visa. This situation changed when the applicant met Mr [B], a retired academic, who is actively involved in Zimbabwean politics. Mr [B] assisted the applicant and provided advice causing the applicant to seek protection.

25. The applicant had fallen in love with a girl in Australia, [Ms A], from June 2015, and in November 2016 he proposed marriage to her. This marriage would ordinarily have been undertaken with traditional rites in Zimbabwe but the applicant was not able to return to Zimbabwe because of his fears. The applicant ended up negotiating with his partner’s family to allow the marriage to take place in absentia according to Zimbabwe customary law. They agreed, and in February 2017, [Ms A] travelled to Zimbabwe and the applicant’s extended family paid ‘lobola’ as is the tradition. Upon her return they have lived as husband and wife.

26. The applicant refers to difficulties in finding a job and that he made the mistake of relapsing into gambling. In March 2018 the applicant was charged with ‘Obtaining Financial Advantage By Deception’. The applicant was sentenced to a non-parole period of imprisonment of eight months.

27. The applicant refers to difficult circumstances surrounding his telephone interview with the delegate of the Minister in relation to the protection visa application.

28. The applicant refers to his return visit to Zimbabwe in January 2016. He indicates that the situation at home upon his arrival was extremely tense. The applicant was advised by his father to stay indoors as much as he could. The applicant was told that this would only last for a couple of months as ‘they’ were on the verge of victory.

29. The applicant’s father was not at home for extended periods. The applicant was never provided with details from his father as to where he went.

30. On one occasion three men were knocking on the gate of the home. The applicant approached them as he was the only male in the house at the time. These men were asking to see the applicant’s father. The applicant indicated that his father was not home. The men berated the applicant for being rude in not opening the gate. This resulted in a verbal altercation. The men ended up stating that the applicant would end up dead. The applicant reported this to his father who dismissed it as saying that they were war veterans and ‘youths without credentials’. The applicant was badly frightened and feared for his life.

31. The last straw for the applicant was receiving a text message in Shona which translated as ‘say your goodbyes, and enjoy your last days’. When the applicant reported this to his father his father panicked and said that immediate arrangements had to be made for the applicant’s safety. The applicant’s father stated that, although the matter would probably not be investigated, it was wise to lodge a report at [Location 1] Police Post which was done the next day.

32. Although the applicant had suggested that he go to Victoria Falls to escape harm the applicant’s father insisted that the applicant had to accept the gravity of the situation and leave the country.

33. The applicant refers to independent information which describes how, at this period, there were factional fights within ZANU-PF, the ruling party, resulting in open violence, with elements of the military, party youth groups, and militias targeting civilian supporters of competing factions.

34. Despite the applicant’s original intention not to return to Australia the applicant determined it necessary, in light of his father’s advice, to return. Australia was the only country to which he had a visa.

35. From Australia, the applicant asked his father if he had heard anything from the police and the applicant’s father responded that the report they had made could not be located and the relevant officer was now on leave.

36. The applicant arrived in Australia on 6 February 2016. At that point the applicant’s desire was to try to complete his degree. The applicant was faced with the same issues that had caused him to decide to leave. The applicant was severely depressed and his gambling became compulsive. The applicant’s thinking was irrational. If the applicant had had his rationality he would have discussed options with the University.

37. The applicant gave no thought to applying for a protection visa. The applicant did not see himself as running from ZANU-PF as his father was also a member of this party. The applicant thought that asylum was meant for people who are running from war-torn countries or in political opposition or had social issues that were stigmatised, such as homosexuals. This thought process changed in July 2016 when the applicant met with Mr [B].

38. The applicant obtained some advice in October 2016 from some immigration lawyers.

39. The applicant provides details as to his father’s background. The applicant’s father fought as a guerrilla in the liberation struggle. After independence he joined the Zimbabwe National Army in 1982. The applicant’s father became aligned in the army with General Solomon Mujuru. The applicant’s father served in the army for [number] years and rose to the rank of [rank]. He was discharged in 2007, accused of being part of an attempt to stage a coup. The applicant’s father was a member of ZANU-PF and, by the time of the 2008 General Election, he had been elevated to become [office bearer] of the [Location 1] District Committee because of his links to Solomon Mujuru.

40. In 2008 the applicant’s father participated in the elections as a candidate for the [Location 1] Ward. The applicant’s father was also heavily involved in organising support for the president, Robert Mugabe. The applicant’s father lost the election in his ward. Due to closeness to Solomon Mujuru the applicant’s father was accused of being part of a plot to remove Robert Mugabe from power. The applicant’s house was attacked by being pelted with stones and windows were smashed. The applicant’s father downplayed this incident as an act by misguided youths and remained in the party, although he subsequently lost the [Location 1] chairmanship.

41. The applicant’s father told the applicant that he would never bow down to traitors to the ZANU-PF. On the other hand, the applicant’s father was being labelled as a sell-out to the party and the applicant as the son of a sell-out.

42. Solomon Mujuru, who was regarded as a powerbroker, died in 2011 in suspicious circumstances. The level of protection that the applicant’s father had enjoyed subsequently dwindled. However, he remains a member of the ruling party and continues to engage in factional wars. At present, he has left Zimbabwe and lives in [Country 1]. He has told the applicant in a phone call that he will go back when the traitors (the current president and vice president of Zimbabwe) are removed. He believes that one day ZANU-PF will achieve the aims of the liberation struggle.

43. Solomon Mujuru’s wife Joice Mujuru served as vice president of Zimbabwe from 2004 to 2014. She was kicked out of government in 2014 following allegations that she was plotting against Mugabe. The applicant’s father was accused after these events in 2014 of being a sympathiser to Joice Mujuru’s breakaway Zimbabwe People First party. The applicant’s father denies this and insists that he remains with ZANU-PF. The applicant heard from his mother that at this time the applicant’s father was taken to army barracks and detained without medication for his [medical condition]. The applicant’s father refused to confirm this to the applicant but did not deny it. He is a hardliner and does not divulge information.

1. The applicant indicates that the desire to harm him is because this would bring the most pain to his father. The applicant himself has studiously avoided becoming involved in politics. His lack of involvement with the ruling party cost him a scholarship to [Country 1]. The applicant was under suspicion in the period after he left school in 2009 of being too closely aligned with an [Country 3] woman from an NGO who facilitated the applicant teaching orphaned children. As a result of this the applicant stopped teaching these children. The applicant had been suspected of selling sensitive information to this ‘white lady’.

2. The applicant’s father paid for him to study at the [University in Country 2]. It is indicated that after Solomon Mujuru’s death in 2011, the applicant was told by his father that his father was interrogated as to why General Mujuru was sponsoring the applicant to be a spy and work against the government. This resulted in the applicant’s father insisting that he not return home from [Country 2] even for school holidays.

3. The applicant graduated in 2014 and was homesick and wished to see his family. Without his father’s knowledge, the applicant returned home. At this point the applicant had plans to undertake postgraduate study in Australia. The applicant was told by his father that his father did not have sufficient mechanisms to protect the applicant as he had had before.

4. The applicant refers to his [relative], who was close to his father, disappearing from the applicant’s family home without a trace. He has been missing for three years. His disappearance was suspected to have been politically motivated. The uncle’s son was jailed for [number] years on trumped up charges of stock theft. At this point, the applicant realised that the situation for him was not safe.

5. On return to Zimbabwe from [Country 2] the applicant kept a low profile and applied to study in Australia. The applicant’s father would meet at his home with associates who he would call ‘comrades’, which is usual for members of ZANU-PF. When the applicant would ask his father about the meetings his father would indicate that they were preparing the country for ‘us’. His father indicated that he had not wanted the applicant to return home because of the risks associated with the kind of operation that they were involved with.

6. The applicant indicates that due to his father’s association with Solomon Mujuru, his father has always been linked to wanting to topple President Mugabe. After his father lost the election he was accused of not doing enough to help Robert Mugabe, leading to his dismissal from the chairmanship. After the death of Solomon Mujuru the applicant’s father remained with Joice Mujuru who was battling with Emmerson Mnangagwa who wanted her vice presidency position. Although his father was involved mainly at a grassroots level he was still highly regarded in [Location 1].

7. After Joice Mujuru’s fall in 2014 it was Emmerson Mnangagwa who prevailed, and with the intervention of the military, became president in 2017.

8. The applicant refers to independent information of instances of internal party politics leading to attacks not only on the politician but his family.

9. The applicant refers to difficulties facing members of his family. The applicant refers to the disappearance of his uncle from the applicant’s family home without a trace. This event happened while the applicant was studying in [Country 2]. The applicant refers to his uncle’s son being falsely accused and convicted of a crime that he did not commit.

10. In November 2017 ZANU-PF members demolished the home of the applicant’s family at their resettled farm in [Location 2]. This was in the days after the military took over. Everything was trashed and the applicant’s [siblings] were beaten. Reference is made to the family being a ‘sell-out’. The beatings were severe.

11. In March 2019 the applicant’s sister was hit by a car that specifically targeted her and swerved across the road to hit her before speeding off. Medical evidence is provided of the injury to the lower leg, which is described as being of ‘moderate’ severity. The possibility of permanent injury is unlikely. The patient was prescribed pethidine and bedrest. After filing a police report the alleged car was identified and the driver apprehended. However, the driver was released without charge and the police case closed. This was the final straw that led the applicant’s family to leave Zimbabwe for [Country 1] in April 2019.

12. The applicant refers to the lack of capability of Zimbabwean authorities to protect the applicant and his family. There is reference to a lack of media coverage in Zimbabwe of attacks and abductions. Evidence is provided as supporting the contention that the current government in Zimbabwe use abduction as a way of scoring political goals as well as suppressing people.

13. The applicant indicates that he is suffering from mental health issues linked to PTSD as diagnosed by a Dr [F]. The applicant also refers to a psychologist he has been consulting as stating that his gambling problems have likely stemmed from PTSD. The applicant also refers to having attended sessions with a psychologist.

14. Following the second Tribunal hearing the applicant provided a Psychological Assessment Report of the applicant from a clinical psychologist at the [Organisation] dated [September] 2019. The report concludes that the applicant experiences symptoms suggestive of PTSD as well as comorbid dysthymia. The applicant reports to the psychologist difficulties in Zimbabwe as a result of his father’s political activities.

15. After the first Tribunal hearing but before the second hearing the applicant provided a newspaper article which describes opposing factions within ZANU-PF. The applicant also provided a November 2017 academic thesis dealing with political conflict in Zimbabwe and its representation in the media and dealing with intraparty disputes.

16. The Departmental file also contained the following documents:

    ·A copy of a birth certificate for the applicant, [dated];

    ·A copy of the applicant’s driver’s licence;

    ·A copy of the applicant’s passport;

    ·Copies of the Court Attendance Notice and Police Facts Sheet in regards to the applicant’s convictions of dishonestly obtaining financial advantage; and

    ·A copy of the applicant’s conviction history.

17. The applicant also provided the following documents to the Tribunal (as set out by the applicant):

    ·Email records showing changes to airline ticket reservations;

    ·Photograph of "This Flag" rally participants, Hyde Park Sydney, 24 July 2016;

    ·Letters from the ATO regarding employment by [Mr G];

    ·Tax invoice and receipt for consultation with [Lawyers];

    ·US Embassy tweet of 16 September 2019 referring to abductions in Zimbabwe;

    ·Hospital records for the attack on his sister;

    ·Police report record for the attack on his sister;

    ·Photo of his sister's  swollen leg after the attack;

    ·Photo of his sister when she was admitted into hospital after the attack;

    ·Letter from [Mr H] with diagnosis of PTSD;

    ·Letter from Department of Home Affairs in response to the applicant’s complaint about the protection visa interview.

18. The Tribunal has taken into account all of these documents.

    Independent information

19. DFAT Country Information Report – Zimbabwe, 11 April 2016 provides as follows:

    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.[1]

    …

    In September 2015, the former ZANU-PF member and Vice President, Joice Mujuru, released the manifesto (called the ‘Blueprint to Unlock Investment and Leverage for Development’) for a new opposition party – People First. The party itself would largely be comprised of former-ZANU-PF members, including many purged from the party during 2014 and 2015. Joice Mujuru established People First on 11 February 2016.

    ZANU-PF supporters allegedly abducted and violently assaulted six People First supporters in Chitungwiza in December 2015. DFAT assesses that supporters of People First face a moderate risk of violence from ZANU-PF supporters and a moderate level of official discrimination because of the party’s potentially wide support base.[2]

    [1] DFAT, Country Information Report – Zimbabwe, 11 April 2016, pp. 10–11, paras [3.25], (accessed 13 August 2019).

    [2] DFAT, Country Information Report – Zimbabwe, 11 April 2016, pp. 11, paras [3.30]–[3.31], (accessed 13 August 2019).

20. The following is taken from the Zimbabwe entry in the Political Handbook of the World 2016–2017:

    On December 9, 2014, Mujuru and her supporters in the cabinet were forced to resign by Mugabe, who accused them of plotting to overthrow his regime. Mujuru and her loyalists were purged from the party in April 2015. Reports indicated Mujuru was working to create anew political party, People First (PF).[3]

    [3] Political Handbook of the World 2016–2017, Ed. Tom Lansford, Vol. 2, Thousand Oaks, CA: CQ Press, 2017, p.1715.

    Hearings, credibility, findings and assessment

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

22. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

23. The Tribunal is satisfied that the applicant is a citizen of Zimbabwe and accordingly his claims will be assessed against Zimbabwe.

24. The Tribunal notes the following evidence of relevance given by the applicant in the first Tribunal hearing. The applicant indicated that he has three [siblings]. One of his [sibling] is studying in [Country 2] and the other lives in [Country 4]. The third [sibling], [Ms D], is in [Country 1], living in [City], with the applicant’s parents. [Ms D] was the sister involved in the car accident in March 2019.

25. The applicant indicated that his parents and [Ms D] went to [Country 5] in June 2019 and then to [Country 1] in August 2019. This was because the situation in Zimbabwe, after the car incident involving [Ms D], had gotten ‘too hot’. These events resulted in the family deciding that [Ms D] needed to leave Zimbabwe where she had been studying [Subject]. The family are making arrangements for [Ms D] to study [Subject] in [Country 1] after which the applicant’s parents will return to Zimbabwe.

26. The Tribunal has the following numerous credibility concerns with the applicant’s claims, as well as key corroborating evidence of [Mr C] and [Mr D].

27. Firstly, the applicant has been inconsistent as to instances of threats and harm that occurred on his return trip to Zimbabwe in January 2016.

28. The applicant’s original written claim provided as part of his protection visa application in November 2016 states that on his return to Zimbabwe in January 2016 there was a confrontation between his father and a war veteran from another faction who made threats against the applicant. The applicant indicated that this person said that the applicant was the only son in the family and that he would ensure that the applicant therefore disappeared without trace as he was well connected.

29. However, this incident is not referred to in the applicant’s detailed written statement provided in advance of the first Tribunal hearing nor was it indicated by the applicant as having occurred in the first Tribunal hearing in its detailed exploration with the applicant as to difficulties that had occurred on his return to Zimbabwe in January 2016.

30. The written submission and applicant’s evidence in the first Tribunal hearing is that the harm and threats comprised a verbal altercation where three men arrived at the gate of the applicant’s family home looking for the applicant’s father when he was out. These men threatened the applicant when he would not open the gate to let them in. In the first Tribunal hearing the applicant indicated that about two days later he received a threatening text message from an identified telephone number. The applicant indicated that he discussed with his father this message causing the applicant’s father to indicate that the applicant needed to leave the country. The applicant indicated that his father did not indicate that he knew the identity of the person who had sent the message (from the number) but that he could have known but been reluctant to reveal this.

31. The applicant then gave evidence that the following day he and his father went to a small local police post (being located in a [location] with two officers). The applicant indicated that his father did the talking. His father indicated to the police that they were making the report in the event that anything happened to the applicant. The applicant’s father was asked by the police officer if he knew the identity of the person who had sent the message, based on the recorded telephone number, but the applicant’s father indicated that he did not know. The applicant speculated that his father might have known the identity but was guarded in providing this information to the police.

32. The Tribunal asked the applicant whether there were any other events or incidents of note during his time in Zimbabwe from January 2016 and the applicant indicated that there were not.

33. Later in the first Tribunal hearing the Tribunal put to the applicant his evidence in the written statement lodged as part of the protection visa application indicating that on his return to Zimbabwe in January 2016 there was a confrontation between his father and a war veteran in which the applicant was specifically threatened. The Tribunal noted to the applicant that this incident had not been referred to in either his detailed written submission or in the comprehensive exploration of issues that had occurred in Zimbabwe from January 2016 in the first Tribunal hearing.

34. In response, the applicant indicated that there was indeed a confrontation between his father and a war veteran during his return visit home in which the applicant was threatened. In response to why this evidence had not previously been articulated in the detailed written submission or previously in the first Tribunal hearing, the applicant indicated that he was only providing the detail of events that had occurred to him personally.

35. The Tribunal is not satisfied as to this explanation. The original written claims create an impression that the applicant was present during the confrontation between his father and a war veteran given the level of detail as to what the war veteran stated in making threats against the applicant. Even if the applicant had not been present, the fact of this confrontation and detailed threats against the applicant would be a highly relevant occurrence and crucial to the claims that the applicant faces harm in Zimbabwe. In the first Tribunal hearing the Tribunal asked the applicant whether there were any other incidents ‘of note’ in addition to the confrontation with the men at the gate and the receipt of the threatening text message. The applicant said that there were not.

36. This open-ended question by the Tribunal does not limit the applicant to events in which he was specifically present. In any event, the Tribunal is not persuaded that, if there had been a specific confrontation between his father and a war veteran in which direct threats had been made against the applicant, this would not have been referred to in the applicant’s detailed written submission made to the Tribunal or in the first Tribunal hearing when the Tribunal explored with the applicant in detail difficulties that he faced on his return to Zimbabwe from January 2016.

37. The applicant’s focus in his detailed written submission and in the first Tribunal hearing that the core concern for his safety was a threatening text message from an identified phone number does not make sense if there had been a specific threat by a known individual in a confrontation between this individual and the applicant’s father. If that were true it would be considered that the focus of the police complaint and the desire of the applicant to leave the country would have been because of the threat to kill the applicant from this known individual.

38. The inconsistency on this quite central event is undermining of the applicant’s credibility, particularly in terms of what he claims happened on his return visit to Zimbabwe in January 2016.

39. Secondly, the applicant’s father, [Mr C], failed in the second hearing to corroborate the applicant’s claims of the applicant having had an adverse encounter with men at the gate of the home being the precursor to the receipt of the threatening text message or of the applicant’s father having had an encounter with a war veteran from another faction who specifically threatened harm to the applicant.

40. The Tribunal in the second hearing sought to explore with the applicant’s father all of the adverse events that occurred impacting him or the applicant on the applicant’s return to Zimbabwe in January 2016. The Tribunal asked multiple questions seeking to elucidate all incidents of harm or threat, in particular during the period that the applicant returned to Zimbabwe from January 2016. In response, in relation to this period, the applicant’s father only referred to his son receiving the threatening text message without providing any indication of other events, including the men arriving at the gate or the applicant’s father specifically being confronted by a war veteran from another faction who threatened the applicant.

41. The applicant’s explanation for this inconsistency and the Tribunal’s view in relation to the explanation is dealt with in the credibility issue below. The Tribunal does not accept the applicant’s explanation for the reasons discussed below.

42. Thirdly, there are additional numerous and not insignificant inconsistencies between the evidence provided by the applicant and his father in the second Tribunal hearing. These inconsistencies were put to the applicant at the end of the second hearing. The Tribunal put to the applicant that the applicant’s father had indicated that he had attended the police station alone after his son received the threatening text message. In contrast, the applicant had given evidence in the first hearing that he had attended with his father. (The Tribunal also noted to the applicant the failure by the applicant’s father to make any mention of men threatening the applicant at the gate of the family home or the applicant’s father having had his son threatened in an encounter with a war veteran from another faction, all of which took place when the applicant had returned to Zimbabwe in January 2016.)

1. The Tribunal also noted to the applicant that his father had indicated that there were no problems facing his son when the applicant was studying in [Country 2], and the reason that he did not return from holidays was because the family wished him to complete his studies. The applicant’s father indicated that he was fully aware that the applicant was to return to Zimbabwe at the end of his studies. This is in contrast to the applicant’s evidence that it was too dangerous for him to return to Zimbabwe for holidays during his time of study in [Country 2] and that his father did not know the applicant’s plans of, and had warned against, the applicant returning to Zimbabwe at the end of his studies.

2. The Tribunal also noted to the applicant that the applicant’s father had given evidence that his daughter [Ms D] had not been physically injured during the attack on the farming property in November 2017. This is in contrast to the applicant’s initial written evidence that [Ms D] had been severely harmed and his evidence in the first Tribunal hearing that she had been hit on the hand with a stick.

3. The Tribunal also noted to the applicant that his father had given evidence in the second Tribunal hearing that his understanding was that the applicant had returned to Zimbabwe in January 2016 to take a rest from his studies, with the intention of returning to Australia. This is in contrast to the applicant’s evidence that he had returned to Zimbabwe at this time with no intention of returning to Australia to continue his studies.

4. The applicant responded to all of these inconsistencies put to him in the second hearing by indicating that it is possible that his father was not in a coherent frame of mind at the second hearing. The applicant referred to the possibility that his father had been drinking. The applicant referred to instances where his father did not respond to the substance of questions asked by the Tribunal but referred to other matters as demonstrating his potential confusion.

5. The applicant referred in the first hearing to an interpreter problem as explaining the first occasion in which his father gave evidence to the Tribunal that his father had an understanding that the applicant had intended to return to Australia. The applicant indicated that his father had in reality given a contradictory impression. However, the applicant acknowledged that when the Tribunal asked this question again later in the hearing his father did indicate that he believed that his son was planning to return to Australia and had only been in Zimbabwe in January 2016 for a break.  Therefore, even if there had been an interpreter problem in relation to the first occasion in the hearing in which the applicant’s father gave evidence that he knew that his son planned to return to Australia, the applicant’s father confirmed this evidence on a second occasion. On that basis, the Tribunal is not satisfied that the applicant’s father’s evidence on this issue is compromised by problems with the interpreter.

6. Shortly (a matter of hours) after the second Tribunal hearing the applicant provided to the Tribunal screenshots of text messages between the applicant and his sister [Ms D] undertaken just following the second hearing. [Ms D] makes reference to her father having been drinking. The applicant in the text message correspondence questions how his father could do this to him. The applicant in the attached email to the Tribunal requests that the Tribunal schedule another hearing with the applicant’s mother. This request is dealt with later in this decision.

7. Because of adverse information which could be contrary to the applicant’s claims for protection not being put to the applicant in the second hearing pursuant to correct procedural requirements, after the second hearing the Tribunal wrote to the applicant in accordance with the procedural requirements of s.424A of the Act putting the above mentioned information again to the applicant and giving him the opportunity to respond in writing. Information discussed in credibility issue eight was also put to the applicant.

8. The applicant did not respond to the Tribunal.

9. The Tribunal has taken note of the applicant’s claim at the end of the second hearing that the applicant’s father was drunk and the indication also of this in the text message sent by  [Ms D] to the applicant shortly after the second hearing. The Tribunal is not satisfied that the tone and demeanour of the applicant’s father in the second Tribunal hearing suggested that the applicant’s father was significantly drunk/impaired or otherwise suffering from any significant mental impairment. On the whole, the applicant’s father was reasonably responsive to the various questions put by the Tribunal. In relation to the evidence of the applicant’s father in providing these components of his evidence, he was not hesitant, confused or equivocal in providing these various inconsistencies in his evidence.

10. The Tribunal, further, does not consider that if the applicant’s father had indeed been drunk that this would generally result in the provision of multiple pieces of factual information that were contrary to the truth of the situation. The Tribunal can accept that drunkenness could cause confusion or misstatement but not multiple instances of reasonably clearly given pieces of factual information that were not the truth. In this respect, the Tribunal also notes that it is claimed that the applicant’s father has the best interests of the applicant at heart. (In this respect the Tribunal notes that it was the applicant’s father who insisted that the applicant must leave Zimbabwe for his safety as a result of the threats on his return visit in 2016.) That being the case, the Tribunal would consider that the applicant’s father in the Tribunal hearing would be erring on the side of providing evidence consistent with that of the applicant and supportive of his claims.

11. In any event, the Tribunal is not satisfied that the applicant’s father was drunk or otherwise mentally impaired in the second Tribunal hearing.

12. The various inconsistencies in evidence between the applicant and his father are numerous and cover a broad spectrum of the applicant’s claims both directly relevant to his claims as well as relating to not unimportant contextual matters. 

13. The Tribunal considers that the various inconsistencies are significantly undermining of the applicant’s overall credibility and his key claims for protection. The only factual matter that the Tribunal considers may be explainable relates to the applicant’s father’s evidence that his daughter [Ms D] was not physically injured during the attack on the farming property. As discussed further below, the Tribunal accepts that [Ms D] was subject to a mild physical attack. The Tribunal accepts the applicant’s account that his father did not characterise [Ms D] as having suffered physical injuries because of the relatively mild nature of the physical attack. However, leaving that matter aside, the Tribunal considers that the numerous inconsistencies are undermining of the truth of the various factual matters claimed by the applicant.

14. Fourthly, the applicant has been inconsistent in terms of him being the person who followed up the complaint that had been made to the police concerning the threatening text message. In the applicant’s initial written claims he said he made a follow-up enquiry and was told that there was no record of the report. This is in contrast to the applicant’s evidence in the first Tribunal hearing and his father’s evidence in the second Tribunal hearing that it was his father who followed up with the police as to progress of the investigation.

15. In response to this inconsistency put to the applicant in the second Tribunal hearing, the applicant indicated that what he meant in his original written claims was that he had made an enquiry of his father about the progress of the complaint and it was his father who advised that there was no record of the report. This is not what the original written claims suggest. They reasonably clearly suggest that it was the applicant who made the enquiry of the police.

16. Whilst this is not an inconsistency on a pivotal or central matter to the applicant’s claims it is nevertheless a not unimportant contextual matter which buttresses other credibility concerns identified by the Tribunal.

17. Fifthly, it lacks plausibility that individual(s) who had a serious intention to kill or harm the applicant would have made a threat to the applicant by text message in a manner that would reveal to the applicant the telephone number of the sender of the message. Doing so would provide the ready ability of authorities, in the event that serious harm befell the applicant, to trace and identify the likely culprits.

18. In response to this issue, in the second Tribunal hearing the applicant indicated that in the culture of Zimbabwe it is not unusual that those in authority would make threats which would ultimately identify them.

19. The Tribunal is not persuaded that individuals wishing to harm the applicant, however influential their positions, would not take the simple step of blocking caller ID on their phone before threatening a person with their life.

20. Sixthly, the Tribunal has credibility concerns in relation to the means by which those who had sent the claimed threatening text message would so readily have had access to the applicant’s only recently acquired mobile phone number. The applicant provided evidence in the first hearing that the SIM card and corresponding mobile number had only been acquired when the applicant returned to Zimbabwe in January 2016. In response in the second hearing to the Tribunal’s concern as to how the individuals who had threatened him would have obtained this mobile number, the applicant speculated that his friend who had picked him up from the airport and was connected in the ZANU-PF may have passed the mobile phone number along to others. The applicant also speculated that those influential individuals who wish to harm him may have access to communication systems which would have revealed the mobile phone number.

21. Whilst the Tribunal accepts the fact that if something is unlikely or implausible it does not mean that it did not happen, the Tribunal does have some concerns in relation to the plausibility of what has been suggested by the applicant in terms of enemies of his father being able to readily and quickly obtain the mobile phone number. This is not a significant adverse credibility issue but is considered cumulatively together with other more significant matters.

22. Seventhly, there is an inconsistency as to those members of the applicant’s family specifically involved when the resettled farm of the applicant’s father was vandalised by members of the ZANU-PF in November 2017. The applicant has also been inconsistent as to the severity of the injuries suffered by his sister [Ms D]. Further, media reports provide a contradictory account to that provided by the applicant for the motivation of the attack.

23. In the applicant’s detailed written submission provided to the Tribunal he indicated that the property was vandalised and his ‘sisters’ and cousins were beaten. It is stated that the beatings were ‘severe’. In contrast, in the first Tribunal hearing the applicant indicated that only one of his sisters, [Ms D], was present. When the detail of physical harm was explored by the Tribunal, the applicant indicated that neither his sister nor cousins had suffered obvious physical harm. He indicated that they were required to hold out their hands and were hit on the hand with a rod.

24. The Tribunal does note that the applicant has provided a media report which makes reference to a house being demolished as part of an eviction by farm villagers on 23 November 2017. In the media report appears a photograph of a person who is identified by the name [Mr I] who the applicant indicated in the first hearing is a cousin. The media article indicates that the eviction was in order to make way for the expansion of former First Lady Grace Mugabe’s business empire. This explained rationale for the attack is different from the indication by the applicant in the first Tribunal hearing that this attack was directly aimed at harming the applicant’s father who was the owner of the property.

25. In response to this issue in the second Tribunal hearing the applicant indicated that the reason for the attack as presented by the media would itself have only been speculation.

26. The rationale for the attack provided in the media report is at odds with the applicant’s claim that the farm attack was specifically directed because of the politics of the applicant’s father and a desire to get at the father. This, together with the other inconsistencies identified, create concerns that the applicant has embellished claims as to the circumstances of the attack, the extent of family members involved and the motivation for the attack.

27. Eighthly, the applicant’s father did not corroborate evidence provided by [Ms D] and the applicant that she had been run down by a car in March 2019 because individuals wanted to harm her due to her father’s political issues, and that this was the cause of the family leaving Zimbabwe.

28. The Tribunal notes evidence given by [Ms D] in the second Tribunal hearing as to the incident in which she was hit by a car. [Ms D] indicated that the car stopped and its occupants asked [Ms D] for directions but that [Ms D] could not provide the directions. [Ms D] then walked away and the car subsequently hit [Ms D]. [Ms D] reported the matter to the police and she had managed to obtain the car registration details. This resulted in the driver being apprehended.

29. [Ms D] attended police premises to identify the culprit. [Ms D] was subsequently asked to attend police premises again to undertake another identification process but she was unable to do this because of injuries that she had suffered. [Ms D] told the Tribunal that as a result police had released the alleged culprit because they were not legally able to detain him for more than 24 hours.

30. When the Tribunal asked [Ms D] as to her speculation as to the motivation for being hit, she indicated that it was because of her father’s politics that she was being targeted.

31. However, when the Tribunal explored with the applicant’s father in the second hearing problems that [Ms D] had suffered as a result of the applicant’s father’s politics, the applicant’s father only made reference to the incident at the farm. When the Tribunal asked if there were any further instances of harm, the applicant’s father only indicated that there were emotional difficulties caused by people saying bad things about the family. Tellingly, the applicant’s father did not provide evidence that his daughter had been recently (in March 2019) run down by a car as a means of getting at the applicant’s father because of his politics and that this was the catalyst for the family leaving for [Country 1].

32. The failure by the applicant’s father to provide evidence consistent with the applicant and [Ms D] of this claimed recent and significant event is undermining of the applicant’s claims that the incident in which [Ms D] was hit by a car in March 2019 was as a result of a motivation of individuals to get at the applicant’s father and the catalyst for leaving for [Country 1].

33. For reasons already provided, the Tribunal is not satisfied the omission by the applicant’s father is a product of him being drunk.

34. Ninthly, the Tribunal has further credibility concerns that if there was a reasonable degree of protection for the applicant’s father, then this would not extend to his children. On the applicant’s evidence, confirmed by the applicant’s father in his evidence, the applicant’s father has not suffered any significant issue or harm as a result of his political involvement in recent years.

35. The applicant indicated in the first Tribunal hearing that the sole basis on which he fears harm on returning to Zimbabwe is because individuals want to harm his father by harming his children.

36. The Tribunal noted to the applicant in the first hearing that, it might be expected, that the applicant’s father himself would have been harmed rather than attempts being made to harm his children without harming the applicant’s father himself. In response, the applicant referred to the applicant’s father being detained by authorities in 2014 and denied [medication] surrounding the events involving Joice Mujuru and ZANU-PF. The Tribunal noted to the applicant that nothing appeared to have happened to his father following the events in January 2016 until the applicant’s father left Zimbabwe in 2019 (apart from the November 2017 farm attack). In response, the applicant indicated that his father was guarded in what he would tell the applicant and it is possible that he might have suffered difficulties and harm without the applicant knowing.

37. The applicant also referred to the applicant’s father surrounding himself with influential individuals which would lessen the prospect of his father being harmed in contrast to the potential for his children to be harmed.

38. The Tribunal explored with the applicant’s father in the second hearing specific issues, threats and harm that he himself had faced as a result of his political involvement. The applicant referred to having been suspected of being involved in a coup in 2007. The applicant’s father also referred to an incident in 2008 when his vehicle had been tampered with, supposedly in an attempt to harm him. In response to multiple questions by the Tribunal the applicant’s father referred to no instances of harm being suffered by him since. Tellingly, the applicant’s father made no mention of being detained by authorities in 2014.

39. When the Tribunal asked as to why the applicant’s father himself had not suffered harm yet it is claimed that his children face harm, the applicant’s father indicated that he specifically would not be harmed because he is a war veteran but his children might be.

40. The Tribunal has some concerns as to the rationality of the proposition that the applicant’s father is immune from harm but that his children are at risk. The Tribunal is inclined to consider that if the applicant’s father is immune, this protection would reasonably extend to his children. The Tribunal considers it undermining of the applicant’s claim to face harm in Zimbabwe based on an adverse interest in relation to his father because of his father’s political involvement, the fact that the applicant’s father has not himself suffered any direct serious or significant harm in recent years.

41. These are the various credibility concerns identified by the Tribunal. Prior to considering the cumulative impact of these credibility concerns the Tribunal notes the following.

42. The two witnesses who gave evidence in the first Tribunal hearing on behalf of the applicant, Ms [A], the applicant’s partner, and Mr [B], have no direct knowledge, other than what they have been told by the applicant, as to the applicant’s circumstances in Zimbabwe.   While the Tribunal accepts that these witnesses have provided some evidence of events in Zimbabwe consistent with the applicant’s claims, that information has only been provided on the basis of what the witnesses have told the applicant, and not based on first-hand information. Therefore, the evidence of these witnesses only provides a limited degree of probative evidence in support of the applicant’s claims.

43. The Tribunal notes evidence in the second Tribunal hearing by both the applicant’s sister and his father which is consistent with the applicant’s claims. [Ms D] did indicate that the rationale for the attack on the family farming property was by individuals looking for the applicant’s father. She also indicated that she was run down by the car in the incident in 2019 by individuals who wish to harm her as a result of her father’s political involvement.

44. The applicant’s father did indicate that the applicant faces harm in Zimbabwe because of his father’s political activity. The applicant’s father did indicate in the hearing that his farm property was vandalised because of individuals seeking to get at him as a result of his political involvement (albeit not referring to any other instances of harm since 2008).

1. The Tribunal has assessed these nine credibility concerns. Cumulatively considered, the credibility concerns are very significantly undermining as to the applicant’s credibility, as well as key corroborating evidence of [Ms D] and [Mr C]. The credibility concerns range from central to tangential matters. They cover a significant spectrum of the applicant’s claims. They cause the Tribunal to not be satisfied as to key substantive factual claims by the applicant.

2. The Tribunal is not satisfied that after the applicant left school in 2009 he was suspected of selling sensitive information to a ‘white lady’. The Tribunal is not satisfied that the applicant was at risk of harm during the period from 2010 until 2014 when he studied in [Country 2] as a result of his father’s political activities. The Tribunal is not satisfied that the applicant’s father insisted that the applicant not return to Zimbabwe for holidays from study because of the fear of harm or that the applicant had to return to Zimbabwe at the end of his period of study against the knowledge or wishes of the applicant’s father. The Tribunal is not satisfied that the applicant returned to Zimbabwe in January 2016 with no intention of returning to Australia. The Tribunal considers that the trip was a break over the Australian summer holiday period with the applicant having an intention to return to Australia. The Tribunal is not satisfied as to any of the key events that the applicant claims happened on his return to Zimbabwe. The Tribunal is not satisfied that the applicant had an adverse encounter with men at the gate of the family property resulting in a threatening text message being received by the applicant several days later threatening his life. The Tribunal is not satisfied that the applicant’s father had a confrontation with a war veteran in which the war veteran threatened the applicant’s life. The Tribunal is not satisfied that the applicant or his father complained to police about a threatening text message. The Tribunal is not satisfied that the applicant’s father insisted as a result of these events that the applicant’s life was in danger and that he needed to leave the country. The Tribunal is not satisfied that the applicant returned to Australia for these reasons. The Tribunal considers that the applicant had always planned to return to Australia.

3. The Tribunal accepts that the applicant’s father was involved in ZANU-PF and involved in factions over time linked to Solomon and Joice Mujuru, which were opposed to factions in support of Robert Mugabe and the current president of Zimbabwe. The Tribunal is not satisfied, on the applicant’s own claims, that the applicant’s father joined the People First party. Therefore the Tribunal is not satisfied that there is any real risk of serious or significant harm to the applicant’s father or by extension to the applicant by reason of the applicant’s father being a member of People First. The Tribunal does accept independent information, the DFAT report, which indicates that there can be intra-party violence within ZANU-PF.  However, the Tribunal does not have independent information before it which would indicate that intraparty violence would extend to sustained and concerted attempts to harm children of relevant party members.

4. The Tribunal does accept that there may have been some confronting interactions suffered by the applicant’s father as a result of his factional positions within ZANU-PF and that individuals from other factions may have said negative things about the applicant’s father and his family, including the applicant. However, the Tribunal is not satisfied that any such matters would create a real chance of the applicant facing serious or significant harm.

5. The Tribunal is prepared to accept, for the purpose of this decision only, that the applicant’s father faced a situation when his car was tampered with in 2008, which the applicant’s father believes was because of individuals seeking to harm him because of his political activities. On the evidence of the applicant’s father there has been no other direct harm to him since as a result of his political activities. As indicated, the applicant’s father indicates that he has not been harmed because he is a war veteran. The Tribunal therefore does not accept claims that the applicant’s family home was attacked with stones and windows smashed in around 2008 or that the applicant’s father was detained as a result of his political involvement in 2014.

6. The Tribunal is not satisfied that the applicant’s uncle and nephew disappeared or were subject to false criminal charges as a result of the applicant’s father’s political activities suggestive of the applicant himself suffering similar or other harm as a result of his father’s political activities.

7. The Tribunal is satisfied that there was an incident on farming property linked to the applicant’s family in which youths trashed the property. The Tribunal is satisfied that the applicant’s sister [Ms D] suffered some relatively minor physical impact during this incident. The Tribunal is not satisfied that beatings were ‘severe’.  The Tribunal is not satisfied that those instigating the attack were looking for the applicant’s father to harm him, and finding instead the applicant’s father’s daughter, decided to inflict harm on her. The Tribunal considers, particularly on the basis of the media report referred to, that the attack was perpetrated by individuals seeking to acquire property for the expansion of Grace Mugabe’s business interests The Tribunal is not satisfied that the attack results in any ongoing risk to the applicant.

8. The Tribunal is not satisfied with the truth of claims to the contrary by either the applicant, his father or sister.

9. The Tribunal also notes that in respect of this particular issue the claimed fact of individuals looking for the applicant’s father seeking to harm him is inconsistent with the evidence of the applicant’s father that no one will hurt him because he is a war veteran.

10. The Tribunal accepts that there was an incident in which [Ms D] was hit by a car in March 2019 but the Tribunal is not satisfied the motivation for the attack was a desire by individuals to get at the applicant’s father by harming one of his children. The Tribunal does accept that [Ms D] was hit by the car and the driver drove off without stopping, however, the Tribunal considers that the impact was either accidental or a product of a specific confrontation following the driver of the vehicle asking for directions from [Ms D]. The Tribunal is not satisfied that the applicant’s parents and [Ms D] left Zimbabwe because of this attack or more broadly because of a fear of harm to all of the family as a result of the applicant’s father’s political activities. The Tribunal considers that the move is for other reasons, particularly to facilitate better education for [Ms D].

11. The Tribunal is not satisfied that there are individuals from any faction of ZANU-PF or elsewhere who have a desire to harm the applicant should he return to Zimbabwe based on having an adverse interest in the applicant’s father as a result of his father’s political involvement and activities.

12. In assessing the applicant’s credibility, the Tribunal has taken into account the psychological assessment of the applicant by [Organisation]. The Tribunal has taken into account that during that assessment the applicant referred to suffering discrimination and threats to his safety in Zimbabwe due to his father’s political involvement. The fact of the applicant making this claim to the psychologist does not overcome the cumulative impact of the credibility concerns identified in this decision.

13. The Tribunal notes that at the commencement of the first hearing the applicant indicated that there were no issues in terms of his ability to appear before the Tribunal and answer its questions. The Tribunal does not consider therefore that the applicant was affected by any medical condition affecting his evidence in the hearings.

14. Given the Tribunal’s findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

15. The Tribunal notes in the applicant’s detailed written submission provided in advance of the first Tribunal hearing, the applicant claimed that in 2011 the applicant’s father indicated that he was interrogated about why the applicant was being sponsored by General Mujuru to be a spy. The applicant indicated in the first Tribunal hearing that this was just informal questioning by colleagues not an official interrogation. The applicant indicates that he has no fear now of being targeted on return to Zimbabwe based on being suspected as a spy. On that basis, the Tribunal does not consider that the applicant faces a real chance of serious or significant harm on return to Zimbabwe based on suspicion that he is a spy.

16. The Tribunal has considered the applicant’s request made shortly following the second Tribunal hearing that the Tribunal hold another hearing at which his mother appear as a witness. The Tribunal determined not to conduct such a further hearing. As indicated, the Tribunal is not satisfied that the multiple inconsistencies between the evidence of the applicant and his father are explained by mental impairment of the applicant’s father caused by alcohol or other factors. The applicant is claiming that the risk to him is because of the political activities of his father making his father’s evidence key, as opposed to his mother’s.

17. The applicant had not previously proposed that his mother give evidence on his behalf and this request has only been made at the point of numerous and significant inconsistencies in the evidence provided by his father. Further, the Tribunal takes into account the potential for the applicant and his mother to confer in advance of the evidence that she might give to the Tribunal leading to the extent to which the Tribunal would give weight to the evidence of the applicant’s mother. Further, the various credibility concerns, including leaving aside the evidence of the applicant’s father, are numerous and significant in themselves, which would provide very considerable barriers to the Tribunal being satisfied as to the applicant’s key factual claims even if the applicant’s mother was to corroborate every claim by the applicant himself.

18. In all of these circumstances the Tribunal has determined not to conduct a third hearing to hear evidence from the applicant’s mother.

19. 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).

20. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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 the criteria in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David McCulloch
    Member

    
    

    ATTACHMENT – Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)   significant physical harassment of the person;

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

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

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

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

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

    5K Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L Membership of a particular social group other than family

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

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

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

    (c)    any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

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

    ..

    36 Protection 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.

    …