1904644 (Refugee)

[2021] AATA 4668

1904644 (Refugee) [2021] AATA 4668 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904644

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Paul Noonan

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 September 2021 at 09:57am

CATCHWORDS

REFUGEE – Protection visa – Zimbabwe – political opinion – member of the Movement for Democratic Change – fears harm from local ZANU-PF supporter thugs – returnee from the West – a low level and somewhat reluctant supporter of MDC – poor economic circumstances of Zimbabwe – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

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 and Border Protection on 23 March 2012 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Zimbabwe, arrived in Australia [in] March 2010 on a Provisional Partner visa UF309. He travelled to Australia from Zimbabwe. On 1 November 2011 he lodged an application for a protection visa. The delegate refused to grant the visa on 23 March 2012. The applicant sought review of this decision with the Refugee Review Tribunal.

3. On 11 December 2013 the Tribunal affirmed the delegate’s decision. The applicant then sought judicial review of the Tribunal’s decision and [in] February 2019 the Federal Circuit Court remitted the matter with the following orders:

   The first respondent concedes that the second respondent denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:

   a. a delegate of the first respondent issued a certificate pursuant to section 438 of the Migration Act 1958 (Cth) on 26 February 2013 and the existence of the certificate was not disclosed to the applicant in the course of the review by the second respondent; and

   b.  at least some of the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the second respondent

4. The matter is now before the Tribunal (differently constituted) for a second time. The Tribunal held a hearing into the matter on 8 September 2021 by video teleconference. The applicant gave evidence on affirmation. The Tribunal also spoke to the applicant’s witness Ms [A] from [Organisation 1]. The hearing was conducted in English.

5. The applicant is represented in this matter by his registered migration agent. The applicant’s agent did not participate in the hearing.

6. The applicant lodged his protection visa application on the basis of his political opinion. He claims to have been a member of the Movement for Democratic Change (MDC) and to have suffered violence at the hands of ZANU-PF supporters during an MDC rally in 2005. He also fears returning to Zimbabwe because of its generally poor security and economic situation.

7. For the reasons that follow, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

   RELEVANT LAW

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

19. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

22. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The Tribunal has before it Department [file], the Tribunal file 1204898 in respect to the first review and Tribunal file 1904644 in respect to this review.

24. The Tribunal has the following evidence before it:

Documents Lodged by Applicant	Dated	Dept Page No
[Country 1] Police Service Clearance Certificate	26 September 2014	7
Application for Ministerial Intervention and Supporting Documents Including: ·     Submissions made by [a named migration agent]; ·     Letters of support from [a named organisaation]; ·     Immunisation records of applicant’s daughter [Miss B] ·     Hand written submissions from the applicant	Various	9-49
Submissions by [a named migration agent]	7 March 2012	157-163
Australian Police Report with an offence listed on [date] December 2019	20 December 2011	214
Scanned copy of Zimbabwe [passport]	Issued [2005]	217
Form 866C Protection Visa Application	23 September 2011	231-245
Protection Visa Application Statement (attachment to Form 866C)	23 September 2011	227-230
Form 866B Persons Included in Application	23 September 2011	246-255
Form 80 Personal Particulars for Character Assessment	23 September 2011	256-253
Form 956 – Migration Agent Form	23 September 2011	264-269
Scan of applicant’s passport with Class UF Provisional Visa visible	18 February 2010 issued	270-271
Department’s Files	Dated	Dept Page No
Administrative Appeals Tribunal Decision by [Member]	11 December 2013	56-96
Department’s Decision	23 March 2012	127-140
Department’s Correspondence regarding non-disclosure certificate and attached information.	24 September 2011	168-171
Department’s Correspondence with applicant while applicant in [Country 1] Internal Department’s notes	Various, 2010	172-206
Invitation to Interview Letter by Department	14 February 2012	209-212

Administrative Appeals Tribunal – Review Application Number 1904644
Documents lodged by applicant	Dated	Doc ID
Acknowledgement of Court Remittal	1 March 2019	5339325
424A Incoming Extension of Time Request	27 August 2021	8759792
Letter of support by [Organisation 1]	30 August 2021	8793339

1. Prior to the hearing the Tribunal sent the following correspondence to the applicant’s representative:

   “18 August 2021

   Dear [applicant]

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [applicant’s name deleted]

   I am writing on instruction from the Member conducting your review, in relation to the

   application for review made by you in respect of a decision to refuse to grant a

   Protection visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to

   comment on or respond to certain information which we consider would, subject to

   your comments or response, be the reason, or a part of the reason, for affirming the

   decision under review.

   Please note, however, that we have not made up our mind about the information.

   The Tribunal notes that on 11 December 2013 the Tribunal affirmed the delegate’s

   decision dated 23 March 2012, and that the Tribunal’s decision dated 11 December

   2013 was remitted by consent by the Federal Circuit Court on [date] February 2019 on

   the basis that the applicant was denied procedural fairness and that this constituted a

   jurisdictional error of the kind found in Minister for Immigration and Border Protection v

   Singh [2016] FCAFC 183 in circumstances where the Minister’s delegate issued a

   certificate pursuant to s.438(1)(b) of the Act on 26 February 2013 and that the

   existence of this certificate was not disclosed to the applicant in the course of the

   review by the Tribunal and at least some of the information covered by the certificate

   was relevant, or potentially relevant, to the issues arising on the review by the

   Tribunal.

   The Tribunal has considered the certificate issued by the Minister’s delegate, [pursuant] to s 438(1)(b) of the Act on 26 February 2013. The certificate

   states:

   “I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958

   applies to the information in attached folios 1-7 of file [number]. This

   information was given an officer of the Department of Immigration and Citizenship in

   confidence.

   In my view, this information should not be disclosed to the applicant or the applicant’s

   representative because the information was provided in confidence.

   The Refugee Review Tribunal’s use and disclosure of this information is subject to the

   provisions of subsections 438 (3) and (4) of the Migration Act 1958.

   Accordingly, the Tribunal has now disclosed the existence of this certificate to the

   applicant and invites comment (if any) as to the validity of the certificate or otherwise

   either in writing prior to the hearing or verbally at the hearing.”

   In the Tribunal’s view the certificate is valid but the information to which the certificate

   applies is not relevant to the applicant’s review. This is because the information is

   about the applicant’s fathering of a child in Australia and has no relevance at all in

   respect of any of the applicant’s claims for protection. The Tribunal invites comment (if

   any) as to the Tribunal’s conclusion with respect to this information either in writing

   prior to the hearing or verbally at the hearing.

2. A written response was not received from the applicant prior to the hearing in response to the Tribunal’s correspondence of 18 August 2021 with respect to the non-disclosure certificate. The Tribunal finds that the information subject to the s 438 certificate is not relevant to the issues upon which the Tribunal has to decide as it relates to a dispute over the parentage of a child whom the applicant has previously claimed is his child. The Tribunal finds that this issue has no bearing on the outcome of the applicant’s protection claims with respect to Zimbabwe and gives it no weight.

3. In his protection visa application the applicant stated that he was born in Harare, Zimbabwe on [date] and that he speaks English and Shona and that his religion is Christian.

4. In his written claim for protection the applicant stated, in response to the question why did he leave Zimbabwe, the following:

   In 2003, my older brother, [Mr C] joined the Movement for Democratic Change (MDC). [Mr C] was the first member of our family to join the MDC. [Mr C] was an active member of this party and when I finished high school in late 2004, [Mr C] was the youth leader of the party within our community in [Suburb 1], Haraare. During this time, [Mr C] and I were both still living within our family home.

   Whilst I was in high school, [Mr C] asked me to join the NDC. I did not join as I was scared of doing so and as I did not understand enough about the MDC and politics. I was scared to join because of the violence that I was aware of, including killings, between different parties, including between the MDC and ZANU-PF parties.

   Whilst I was at school, young men who worked for and supported ZANU-PDF, accused me of supporting the MDC, because of my brother’s involvement in the MDC and my relationship with him. I was threatened with harm because of this.

   When I finished school in late 2004, I worked for a couple of months [in] Harare.

   In early 2005 when I ceased work, I began spending more time with [Mr C].

   In around early 2005, whilst I was going to the shops to buy bread one morning, two young men, who I knew from our local community and who were supporters of ZANU-PF, approached me. They threatened to kill me if I kept moving around with [Mr C]. I went home and told [Mr C] about this. [Mr C] told me to stay with him.

   In 2005, I became a supporter and member of the MDC. I joined to obtain protection and safety, because of the threats made to me and because I was not happy with the government in Zimbabwe.

   I attended gatherings in our community, with other members and supporters of the MDC.

   In around March 2005, ZANU-PF supporters from our community attended and threw stones at people attending the rally. There was conflict between the members of the parties.

   [Mr C] and I ran from the rally. We were stopped by a group who were members of ZANU-PF, including the young men that threatened me previously, (whilst I was going to buy bread at the shops).

   The ZANU-PF supporters attacked [Mr C] and I. One of the young men cut me across my stomach, using a knife. [Mr C] was stabbed multiple times.

   Police attended and fired tear gas, causing people to run. [Mr C] and I were separated as we ran from the rally.

   I left [Suburb 1] the same day as the rally and I went to the home of an uncle in [a town], which is in a farming and rural area. I lived with my uncle until around November 2005.

   In around November 2005, I moved back to Harare, but I did not return to my family home in [Suburb 1], because of my fear of being harmed. I lived with an uncle in [Suburb 2], another area of Harare, which was safer for me, although I was still afraid of being harmed by members of ZANU-PF.

   Whilst I was in Harare, I met my future wife, [Ms D], who was born in Zimbabwe but is an Australian citizen.

   My recollection is that my wife left Zimbabwe and returned to Australia in late March 2006. After my wife left to return to Australia, I moved to [Town 2], which is near the border with [Country 1].

   On around [date] April 2006, I left Zimbabwe and went to [Country 1]. I met a truck driver in [Town 2] who was driving to [City 1] and I arranged to travel with him.

   I left Zimbabwe and went to [Country 1], because of my fear of being killed or seriously harmed by Members of ZANU-PF, because of my support and membership of the MDC and my association with [Mr C], who had a stronger association with the party.

   I lived in [City 1], [Country 1] from April 2006 until around [December] 2009. I did not return to Zimbabwe during this period of time.

   After I entered [Country 1], I applied for a Visitor visa for three months. I then applied for asylum in [Country 1] and I was granted temporary asylum. I was granted permission to stay in [Country 1] for three month periods at a time. I had to go to the [Country 1] immigration office every three months to get a stamp to continue to stay in the country. I did not have the right to permanently stay in [Country 1].

   When I was in [City 1], I came into contact with a person that I knew in [Suburb 1], named [Mr E]. [Mr E] told me that [Mr C] was living in [a town], around [a few] hours by car from [City 1]. I then went and met [Mr C]. [Mr C] is still in [Country 1] and has not returned to Zimbabwe. In early December 2009, I returned to Zimbabwe to marry my wife. We married on [date] December 2009. I stayed in [Suburb 2] whilst I was in Harare. The reason I left [Country 1] and returned to Zimbabwe, was to marry, even though there was still a risk to my safety.

   [Ms D] sponsored me for a Partner visa, which I applied for in December 2009 and which was granted to me in February 2010.

   I remained in Harare until I left Zimbabwe to travel to Australia in early March 2010. During the period, I returned to [Country 1] in around January 2010 to attend an interview at the Australian High Commission in Pretoria, in relation to my application for a Partner visa.

   [In] March 2010, I entered Australia as the holder of a temporary Partner visa. [Ms D] and I have a baby daughter, [Miss B], who was born on [date]. [Miss B] is an Australian citizen. [Ms D] and I separated earlier in 2011.

   My application for a permanent Partner visa was refused on 31 May 2011, although I was not aware of this until 7 September, when I attended the Sydney office of DIAC to ask about my visa status. As I do not have a visa permitted me to live in Australia and as I am unable to and unwilling to return to Zimbabwe, I am applying for a Protection visa.

   The hearing

1. The Tribunal first spoke to Ms [A]. She told the Tribunal that she is an assistant to a psychologist at [Organisation 1]. She first talked to the applicant over the phone a week prior to the hearing. She noticed that he appeared very stressed and fearful and has feelings of helplessness. She has since assisted him in dealing with his emotions and calming him down. She submitted he has expressed anxiety about his asylum claims and whether they will be successful. Ms [A] had nothing further to submit.

2. The Tribunal asked the applicant if he was on any medication for his mental health or was receiving any medical treatment. The applicant confirmed that he was not however he had received some counselling in the past. The Tribunal noted that the applicant was appearing from his workplace and the applicant confirmed he works full time in [an industry]. The Tribunal was satisfied that throughout the hearing the applicant was able to give evidence and respond to the Tribunal’s questions in an entirely lucid manner and the Tribunal considered at all times he was capable of understanding and participating in a meaningful manner in the hearing.

3. The Tribunal asked the applicant if he wished to comment on the validity of the certificate issued by the Minister’s delegate, [pursuant] to s 438(1)(b) of the Act on 26 February 2013 and the Tribunal’s proposed course of action that the information attached to the certificate is not to be given any weight as it is not relevant to the issues upon which it has to decide. The applicant stated that he did not wish to make a submission and that he was aware of the issue to which the certificate relates.

4. The applicant informed the Tribunal that he is generally worried about having to return to Zimbabwe as it is in a mess. It is poor and there is a lot of general violence there.

5. The applicant stated that since he has been in Australia he has not taken any interest in Zimbabwean politics. He has just disconnected from Zimbabwe.

6. The applicant stated that he joined MDC due to his brother being a member of MDC. He had an MDC membership card but lost it in [Country 1]. He joined straight after finishing school when he was [age]. He did not really want to be part of MDC but his brother insisted. Soon after he was at an MDC rally with his brother when the rally was attacked by ZANU-PF supporters. These people attacked the rally with stones. In the chaos he was attacked by some thugs and he was stabbed in the stomach. He agreed the attack could be seen as random however he submitted that his attackers also knew him. After being injured he travelled several hours to his uncle’s house by public bus. He did not receive any treatment for his wound apart from some herbal medicines at his uncle’s house.

7. The applicant stated that afterwards he moved to [Country 1] and lived with his brother there. His brother has subsequently moved there after the rally attack. He submitted that he had temporary asylum residency rights in [Country 1]. The applicant agreed that in the latter half of 2009 and the start of 2010 he had resumed living in Zimbabwe in order to arrange his papers and affairs prior to travelling to Australia. He submitted that he had taken a risk to do this. He agreed that he had numerous interactions with the Zimbabwean authorities during this time while arranging his affairs. He agreed that he did not fear harm from the Zimbabwean authorities.  It is the local ZANU-PF supporter thugs that he fears harm from. If he goes back it will be to the slums. There he will be recognised and subjected to extortion and political persecution. The Tribunal clarified that his fear of extortion was related to him being recognised as a returnee from the West. The Tribunal noted that the letter of support from the [Organisation 1] stated that the applicant has become very westernised and that life in Africa would be difficult for him. The letter made out no other claims on behalf of the applicant.

8. The applicant submitted that every election brings with it violence. The Tribunal put to the applicant that it has been many years since either he or his brother lived in Zimbabwe and his evidence reflects that he was a young low-level supporter of MDC. Further he has not received any threats of harm since then, he was able to safely live in the country again and depart unharmed and it appears that the past harm he experienced was largely random in nature and not targeted. The Tribunal noted that these factors may lead it to conclude that there is not a real chance he will be persecuted for reason of his political opinion.  The applicant responded that he will be forced to join MDC again and this will make him susceptible to more politically motivated violence given the instability in the country.

9. The Tribunal discussed the country information and in particular the Department of Foreign Affairs and Trade (DFAT) Report.

10. The Tribunal had regard to the following country information:

    ·The UK Home Office assesses that it is unlikely that a person will be at risk on return to Zimbabwe purely for having taken part in demonstrations. However, those organising a demonstration may be at risk if the government perceives them to be political agitators. This will depend on their profile, activities and past experiences with the authorities, with each case needing to be considered on its own facts.[1]

    ·DFAT assesses that MDC members and supporters at all levels face a moderate risk of official discrimination, in that the government continues to use state authorities to restrict their ability to operate freely in the political sphere. The level and intensity of discrimination will vary according to location, and is likely to be higher in rural areas in which ZANU-PF is in the political ascendency. The discrimination may include harassment, intimidation, threatened or actual violence, and judicial harassment. The risk is likely to be higher for those involved in direct political activism, including through organising (or attempting to organise) and/or participate in street protests.[2]

    ·DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution or mistreatment on return.[3]

    • DFAT assesses that poor economic and employment opportunities act as a significant ‘push factor’ for emigration from Zimbabwe.[4]

    [1] UK Home Office – Country Policy and Information Note – Zimbabwe: Opposition to the government, February 2019, p.10

    [2] DFAT Country Information Report – Zimbabwe, 19 December 2019, p. 28

    [3] DFAT Country Information Report – Zimbabwe, 19 December 2019, p. 56

    [4] DFAT Country Information Report – Zimbabwe, 19 December 2019, p. 11

    FINDINGS AND REASONS

    Country of reference

11. On the basis of the applicant’s passport contained on the Department’s file the Tribunal is satisfied that the applicant is a national of Zimbabwe. Accordingly, the Tribunal finds that Zimbabwe is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.

    Does the applicant have a well-founded fear of persecution on return to Zimbabwe?

12. The applicant claims to fear harm on return to Zimbabwe by reason of his political opinion and because of the general violence in Zimbabwe and as a returnee from the West.

13. The Tribunal does not accept that the applicant has a political profile even as a low-level ranking member of the MDC in Zimbabwe after many years outside the country. Nor does the Tribunal accept that the applicant has been politically active other than his involvement in the rally in 2005 when he was just out of school. The applicant did not claim to have any official roles with MDC. While his brother was a local youth activist organiser, that was many years ago. Neither the applicant nor his brother have engaged in Zimbabwean politics in any way for well over a decade.

14. In terms of past harm the Tribunal accepts that the applicant was lightly injured in an MDC rally in 2005, with his injury not requiring immediate conventional medical treatment. The Tribunal accepts that the applicant received a superficial wound to his stomach. The Tribunal finds that the wound was superficial as the applicant did not require medical treatment and proceeded after the event to catch public transport for several hours to journey to his uncle’s house. The Tribunal would expect that, if the wound had been serious, the applicant would have required formal medical treatment and would not have been able to simply catch public transport for several hours after the incident.

15. At the hearing the applicant was asked about any political activities here in Australia. The applicant stated that he has not engaged in any political activity with respect to Zimbabwe since being in Australia and in fact he has no interest in developments in Zimbabwe. The Tribunal does not accept that the applicant has any ongoing interest in the MDC and would seek to re-engage in political activities on return to Zimbabwe. The Tribunal does not accept that the applicant will be forced to rejoin MDC upon his return as it does not accept he would have any profile whatsoever with current MDC supporters. The Tribunal makes this finding on the basis that the applicant has not sought to involve himself in any political movements here in Australia relevant to Zimbabwe and has no involvement in politics other than a very low level association some 16 years ago.

16. The Tribunal does not accept that the applicant’s moving to [Country 1] was in the manner of a flight of fear for his life. He subsequently freely moved between [Country 1] and Zimbabwe and interacted extensively with Zimbabwean authorities and gave evidence that he does not fear harm from the authorities. The Tribunal acknowledges that he gave evidence that he took a risk moving back to facilitate his marriage and papers however he resided in Harare for several months without harm and the Tribunal does not accept that there was a risk to the applicant in doing so that is more than extremely remote. This is because the Tribunal does not accept that the applicant was, or is, of any ongoing interest to political opponents, government agencies or current MDC supporters. The applicant has only identified one incident of past harm and this incident occurred within the context of a mass rally attack many years ago. At most the evidence indicates that the applicant suffered a minor wound in this attack. The Tribunal accepts that this harm was perpetrated by people who knew of his identity as the brother of [Mr C]. However the Tribunal does not accept that there is more than an extremely remote possibility (such that it is not real and there is not a real chance of serious harm) that some 16 years after the incident such persons would still seek to target the applicant for persecution especially when the applicant would not be actively involved with or associated with MDC.

17. In sum, the Tribunal accepts that the applicant was involved in an MDC demonstration during 2005 and was caught up in random demonstration violence at this time. However for the reasons set out above, and considered collectively, the Tribunal finds that the applicant’s political activity, and that of his brother, was confined to 2005 and earlier, that he was a low level and somewhat reluctant supporter of MDC and that, apart from the one incident in 2005, he was not and is not of adverse interest to either ZANU-PF or government agencies. The Tribunal finds that there is not a real chance of serious harm to the applicant for reason of his political opinion.

18. The Tribunal also does not accept that the applicant will be targeted for reason of having spent time in a Western country or to have been culturally westernised. Country information does not reflect that returnees (including from the West) are targeted for harm and as such the Tribunal does not accept that any adopted cultural tendencies will result in a real chance of serious harm to the applicant or that he will be subject to extortion. Further, any adjustments required of the applicant in returning and resettling in a non-western country would not amount to serious or significant harm.

19. The Tribunal accepts that there is some level of generalised violence and crime in Zimbabwe and that it is an economically challenged country. However any difficulties the applicant may experience in this regard would not, however, be a result of persecutory conduct towards the applicant for reason of his political opinion, race, religion, nationality or membership of a particular social group, but rather a result of the general economic and security circumstances of Zimbabwe.

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

    Is there a real risk that the applicant will suffer significant harm on returning to Zimbabwe?

21. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa), that being whether on the evidence there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Zimbabwe.

22. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Zimbabwe for the reason of the applicant’s political opinion or as a returnee from the West and who is Westernised, the Tribunal notes that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.8

    8 MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

23. Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Zimbabwe, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), for the reasons of the applicant’s political opinion or as a returnee from the West and who is Westernised.

24. The Tribunal notes and accepts the applicant’s concern that he will face hardship returning to Zimbabwe because of the poor economic circumstances of Zimbabwe and general crime related violence. However, the Tribunal finds that these circumstances are circumstances faced by the population of the country generally and not faced by the applicant personally. As such, in accordance with s 36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm on his return to Zimbabwe.

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

26. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy a criterion in s 36(2).

    DECISION

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

    Paul Noonan
    Member