1905956 (Refugee)

[2023] AATA 2266

1905956 (Refugee) [2023] AATA 2266 (15 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mrs Daniela Ion (MARN: 1792307)

CASE NUMBER:  1905956

OUNTRY OF REFERENCE:  Zimbabwe

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 March 2023 at 12:16 pm (WA time)

DATE OF WRITTEN RECORD:                15 June 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decisions under review with the following directions:

i.the first named applicant satisfies section 36(2)(a) of the Migration Act,

ii.the second named applicant satisfies section 36(2)(b)(i) of the Migration Act to the extent of membership of the same family unit.

Statement made on 15 June 2023 at 3:13pm

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – particular social group – women – victims of domestic violence – children rejected by their father – coercive control – post-natal depression – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 18 February 2019 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 15 March 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of the decision made by a delegate of the Minister for Home Affairs on 18 February 2019 to refuse to grant the applicants’ protection visas under section 65 of the Migration Act.

4. The applicants who are citizens of Zimbabwe, applied for the visas on 21 September 2016.  The delegate refused to grant the visas on the basis that she did not consider that the first applicant would be at risk if she returned to Zimbabwe.  Domestic violence was not specifically raised as an issue before the delegate.  He did not deal with it as an issue, notwithstanding the factual matrix that clearly invited enquiry. 

5. The first applicant appeared before the Tribunal today to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of a male interpreter in the Shona and English languages, although the applicant only depended on him for short parts of the hearing and seems to have a very reasonable command of English.  The applicants were represented in relation to the review by Daniella Ion whose submissions were of assistance to the Tribunal.

   Criteria

6. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in section 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 criterium, or on other complementary protection grounds or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterium for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of 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 themselves of the protection of their country.  Under section 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 will be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

   Mandatory considerations

8. There are mandatory considerations which I have had regard to, although it may not be apparent from the wording of these reasons.  I have taken account of the issues raised in the Refugee Law guidelines and the Complimentary Protection Guidelines prepared by the Department of Home Affairs, and as will be apparent from these reasons I have had regard to country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes. 

   Evidence

9. The Tribunal has had the benefit of listening to the applicant’s interview with the Department and of asking follow-up questions about the matters contained therein.  The Tribunal has also had the benefit of the applicant’s evidence today.

10. The applicant presents to the Tribunal as an honest and forthright person.  She has, in the manner of her evidence, given a clear demonstration of her exhaustion and her grace and she presents as a person who is still suffering some post-natal depression and who is perhaps suffering from post-traumatic stress disorder.  Her story has been very consistent from the date at which it was first recorded by the Department to the date of the decision on 18 February 2019.  Her evidence to the Tribunal about the matters prior to February 2019 has also been consistent.

11. Although the applicant didn’t specifically press a domestic violence case in her original application, the Tribunal notes that the applicant’s statement dated 20 September 2017 sets out in considerable detail behaviour that should at that time have been recognised as indicia of coercive control.  The Tribunal notes in particular the following extract from that witness statement.

    My husband sometimes called me a child of a witch.  In my culture, this is very bad and even more so as I am a devout Christian.  His children did not respect me, they would shout at me.  There was no physical violence, there was just abuse and control.  He would not allow me to wear make-up, or have my hair braided.  When I became pregnant he would not believe that I was experiencing sickness in my pregnancy, that I was tired, and would accuse me of lying to him.  When my husband came back to Perth he would go out and come home very late and he would not tell me where he had been and if I asked him he would say, ‘I am the man of the house and I can go out whenever I want to.’  About two to three months before [name redacted] was born, he told me it would be better if I packed my bags and went back to my parents.  I was afraid and I did not say anything.  I did not know what to do.  In our culture, my parents would not look after me.  I would be a disgrace because my marriage ended in failure.  For the last few months of my pregnancy, my husband was abusive to me.  He would change internet passwords so I could not access my email or WhatsApp.  I was trying to tell his family what I was going through and seeking assistance from his sister-in-law [name redacted].  I have no idea why he was making it difficult for me to contact other people.  At one time I went to hospital for three days as I had high blood pressure.  My husband didn’t take me to the hospital, I walked there.  For the first 24 hours, he did not visit me at the hospital, even though he was at home.  My sister-in-law [name redacted] who is his brother’s wife contacted him and told him to visit me.  It was only after that he came to see me in the hospital on the second and third days of my hospital admission.

12. That evidence contained in the 2017 witness statement has continued consistently to the applicant’s evidence to the Tribunal today.  If anything, she has expanded on the details of what is clearly coercive controlling behaviour by her former husband.  I say ‘former husband’ advisedly because they are in fact still married.  There has been no formal divorce, but the applicant refers to him as her ex, and they haven’t lived together since he left Australia in 2016.

13. The Tribunal notes that the evidence of coercive control and behaviour by the husband is borne out by his two interactions with the Department about the applicant and the Tribunal has had the benefit of the decision that was made by this Tribunal with the respect to the applicant’s husband’s work visa and its cancellation in 2016.  The applicant in these proceedings was the second applicant in those proceedings as a dependant of the first applicant.  The decision in respect of that matter records that the applicant’s husband sought the cancellation of his sponsorship of his wife in August 2015 - a mere five months after she had arrived in Australia.

14. According to the Tribunal’s decision in that matter, during the Tribunal hearing he explained to the member that the reason he sought to cancel the sponsorship of his wife in August 2015 is because she was not treating his children well.  He said she would lock them out of the house, break things and threaten the children.  As a result, the children could not concentrate at school.  It is clear from that decision that he is referring to his children by a previous wife, the stepchildren of the current applicant.  Those matters were put to the applicant during the hearing today and the Tribunal is satisfied that none of them is true.  The behaviour of the applicant’s former husband in contacting the Department about things that he never raised as concerns with her are compelling evidence of the coercive controlling relationship in which he attempted to remove her from the country rather than dealing with whatever problems had arisen between them.

15. The Tribunal has also given weight to:

    a.the medical evidence that’s been provided that the applicant has been treated with post-natal depression and grief disorders arising from the loss of her second child in [year]; and

    b.to the evidence, both medical and from domestic violence support providers that the applicant is recovering from a domestic violence relationship of a non-physical violent nature, as she has clearly satisfied experts in this field that she has a history of neglect, a history of coercive control in her relationships, a history of financial control over her.  That’s probably enough said on that point. 

16. The applicant has given evidence to the Tribunal about what has happened since her husband left Australia in 2016, at which time she thought he had permanently abandoned her. The Tribunal has specifically asked the applicant about the fact that since then they have had two children that he is named the father of on the birth certificates.  The applicant has explained that her husband, on his return to Australia did make contact with her and she encouraged contact because it was good for her daughter.  She has said that:

    a.there were occasions on which she gave in to an impulse to be intimate with him, notwithstanding their history;

    b.they never discussed moving back in together; and

    c.her former husband has expressed no interest in having her back on any sort of live-in arrangement

    and the Tribunal notes that these are all consistent with the aftermath of a coercive controlling relationship in which there are shared children.  The Tribunal doesn’t draw any adverse inference from the applicant having had sexual relations with her husband since he returned to Australia, given that there is no indication that there is any intimacy in the relationship or any consistent contact between them, other than that which arises from contact between the children and their father.

17. The evidence is that her former husband was present at the funeral of their child, but it does not appear to the Tribunal that he provided any form of appropriate support at that time. 

18. The Tribunal is satisfied that the applicant is a member of a relevant social group for the purpose of the Refugee Legislation, being women from Zimbabwe who have been victims of non-physical domestic violence at the hands of their husbands and who share children with those husbands. 

19. The Tribunal considers that there is a real chance that if the applicant returns to Zimbabwe, she will be harmed by her husband.  The conduct of her husband appears to the Tribunal to be a classic case of a man who doesn’t want her but doesn’t want to let her go and is willing to take advantage of the contact he has with her through their children for the purpose of sexual gratification on a sporadic basis.  Whilst that is likely to cause her harm in Australia, it is extremely dangerous if she was to return to the patriarchal state of Zimbabwe, which the Tribunal understands that the husband still visits and which it is likely that he will return to in the future, given that he has family that he is close to there.

20. The Tribunal notes that in Zimbabwe the husband also holds over the applicant the risk that arises from the threat of rejection of their children.  The Tribunal is aware of country information consistent with the applicant’s evidence during the hearing that children who are rejected by their father in Zimbabwe have no status, perhaps best described as ‘outcast’.  It is a low-status position that the applicant’s children find themselves in.  It is something that the applicant can be held to ransom with by her husband. 

21. The Tribunal finds that the applicant is likely to be a victim of severe emotional and non-violent abuse at the hands of her husband if she returns to Zimbabwe and that in Zimbabwe she lacks either the support or the resilience to protect herself and her children from that harm.

22. The harm does rise to the level of serious and relocation is unlikely to assist, indeed relocating away from her parents, if indeed the parents are prepared to assist her, would only put her at greater risk of harm as being then an isolated person in Zimbabwe. 

23. The harm that the applicant would be at risk of in Zimbabwe is directed at her from her husband.  On the country information about Zimbabwe, the Tribunal finds that the harm from her husband would be state sanctioned in practice if not on paper.  The Tribunal notes in particular paragraph 3.85 of the most recent DFAT report, in 2019, for Zimbabwe which reads:

    The Domestic Violence Act 2006 criminalises domestic violence which is punishable by a fine and a maximum prison sentence of 10 years.  Authorities generally consider domestic violence to be a private matter, however, and prosecutions are rare.  Human rights observers report that there is a deeply engrained societal acceptance of the use of violence within relationships as a show of both power and love.  Domestic violence rates have reportedly increased in line with Zimbabwe’s ongoing economic decline. Government agencies and Women’s Rights Groups have undertaken public awareness campaigns against domestic violence including through working with law enforcement agencies, but these campaigns have been largely ineffective in reducing its prevalence.  NGOs report that most urban police stations have trained officers to deal with victims of domestic violence, but that stations have a limited ability to respond in the evening and on weekends, a limited number of NGO-run women’s shelters, also offer counselling to victims of domestic violence but these are insufficient to meet demand.

24. The Tribunal notes that throughout the DFAT report and indeed the other country information that has been provided to the Tribunal, the references to violence appear to be more in relation to physical violence than coercive control.  Coercive control in relationships is still poorly understood in first-world countries that devote very significant resources to unpicking and educating about this phenomenon.  The Tribunal takes it as read that a country that was still dealing to the extent Zimbabwe is with meeting the needs of physical domestic violence, is unlikely to be able to meet the applicant’s needs when it comes to non-physical, indeed largely invisible, signs of domestic abuse.

25. It is relevant to the Tribunal’s consideration that the applicant has a history of having been, ‘passed around’ as a child between adults who should have cared for her but who on at least one occasion failed to do so to the extent of putting her life at risk.  The applicant has told the Tribunal about an incident where she approached death through the neglect of a grandparent and that she was relocated to her other set of grandparents as a result.  She is unable to recall (having been only approximately five years old at the time) why it was that she was not living with her parents.

26. The circumstances of the applicant’s meeting with her husband also render her vulnerable.  She met him in her early thirties online, at which time she had not had a sexual or long-standing relationship with men.  She considered meeting him as a possible last chance to get married and have children, something that she wanted but had been unable to achieve.  The Tribunal has no difficulty accepting, as the delegate did, that the applicant entered into the marriage with good intentions and in the hope that she had found love and was taken advantage of by a man who was 11 years her senior.  The Tribunal accepts the applicant’s account of her husband asking her to give up her work as a housemaid when they married, and moving in with his parents whilst he sorted out her visa.  The Tribunal considers it likely that the year and nine months it took to sort out her visa was artificially long and that the husband was taking advantage of her as a carer for his parents during that time.

27. It is clear to the Tribunal that the first applicant is a person in respect of whom Australia has protection obligations. The second applicant is an infant who is dependent on and residing with the first applicant, who is her biological mother. She is also a person in respect of whom Australia has protection obligations. The two named applicants in this decision satisfy the criterion set out in section 36(2)(a) and section 36(2)(b)(i) of the Migration Act respectively.

28. The first applicant has a second child, a very cute infant who has been present with the applicant in the Tribunal hearing.  The Tribunal does not have jurisdiction to consider whether that infant child meets the requirements of a protection visa.  There is no reviewable decision in respect of that child from which jurisdiction could be derived.  The Tribunal is satisfied that the infant is a dependent child of the first applicant.  Whilst without jurisdiction, the Tribunal nevertheless makes this observation in the hope that it is of assistance to the Department when the mother makes an application for the youngest child’s protection visa.

    DECISION

29. The Tribunal remits the decisions under review with the following directions:

    a.the first named applicant satisfies section 36(2)(a) of the Migration Act,

    b.the second named applicant satisfies section 36(2)(b)(i) of the Migration Act to the extent of membership of the same family unit.

    Jessica Henderson
    Member