1906722 (Refugee)

1906722 (Refugee) [2024] AATA 4367 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1906722

COUNTRY OF REFERENCE: Zimbabwe
MEMBER:Amanda Goodier
DATE:27 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 August 2024 at 3:38pm

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – family association with the Movement for Democratic Change (MDC) – particular social group – women – politically motivated gender-based violence – sexual assault – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 6 October 2016. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
The applicant was invited to appear before the Tribunal on 15 August 2024 to give evidence and present arguments. The applicant advised the Tribunal in writing on 8 August 2024 that she will not be attending the hearing. She indicated that she had waited for this day for so long and does not think she could relive and detail the event. She has lodged an application for a partner visa with her partner and they have a son together.
In these circumstances, the Tribunal considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act. This matter has therefore been determined on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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 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).
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 ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of nationality
The applicant travelled to Australia on a genuine Zimbabwe passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Zimbabwe, and she has been assessed on that basis by the Department. The Tribunal finds she is a Zimbabwe citizen and has assessed her claims against Zimbabwe as the country of nationality and the receiving country.
The applicant’s personal background
The applicant was born in [specified year] in Zimbabwe, residing in [City 1] to around 2008 before moving to [Village 1] in Mwenezi District. She resided in Harare for a short period before departing Zimbabwe for Australia. She belongs to the Shona ethnic group and her religion is Christian. Her parents and siblings remain living in Zimbabwe. She arrived in Australia in March 2013 as the holder of a student visa that was eventually cancelled in October 2016. The applicant has been employed in Australia in various positions, primary [in occupation 1]. The applicant completed her secondary schooling in Zimbabwe before travelling to Australia to study, completing a [qualification] in [occupation 1].
The applicant claims her mother is an activist for MDC, becoming [an Official 1] of the [specified branch] in 2007 and regularly attending party gatherings, campaigns and distributing flyers. Her father as a civil servant, as unable to participate in MDC activities. Her [Relative A] was also an activist for MDC who was detained and later died from his injuries. His funeral was attended by Morgan Tsvangirai. Her brother is also involved with the MDC and has been assaulted due to his involvement.
In July 2008 the applicant was sexually assaulted by a ZANU-PF member after accepting a lift with the son of their neighbours. The sexual assault was reported to the [City 1] police but at the time the police made no attempt to find and arrest him. He was eventually arrested, charged and released on bail. He would walk past the family home, intimidating her. He then fled to [Country 1], returning to Zimbabwe after she had left for Australia.
She commenced her studies however, due to the economy in Zimbabwe, her father was not paid, and they eventually could not afford the fees. Eventually her student visa was cancelled. She found out she could apply for protection so lodged this application.
She is fearful of returning to Zimbabwe as she will seek to have the man who sexually assaulted her prosecuted. She fears she will be targeted as a result by other ZANU-PF members. The police will not protect her as the ZANU-PF control the police force. She is unable to relocate elsewhere in Zimbabwe.
The applicant provided documentation in support of her claims as well as various articles.
The applicant attended an interview with the delegate and expanded on her claims.
The delegate accepted the applicant had been a victim on sexual assault while in Zimbabwe. The delegate did not accept the applicant’s mother was a high-profile MDC supporter but accepted that her family were MDC supporters and as such she would be imputed to support the MDC. The delegate was not satisfied the applicant’s assailant was a member of ZANU-PF and targeted the applicant due to her mother’s prominence with MDC. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia.
Further documentation was provided to the Tribunal in support of the applicant’s claims for protection.
Country Information
The most recent DFAT Country Report for Zimbabwe, dated 19 December 2019, discusses the treatment of the MDC by the Zimbabwe government and assesses the risk of harm and discrimination faced by MDC members and supporters, particularly those involved in direct political activism. The report relevantly states as follows:
3.31       Since the MDC’s establishment, the government has responded to the threat the new party represented by restricting its ability to operate freely in the political sphere. In working to achieve this outcome, the government has utilised state authorities, including the intelligence services, judiciary, police, and military; and non-state actors, including ZANU-PF youth activists, government-backed militia and war veterans. Authorities have regularly subjected MDC leaders, members, and supporters to harassment (including physical violence), intimidation, arbitrary arrest, and judicial harassment; have used security-based legislation to prevent the MDC from holding public gatherings or political meetings; and have often violently dispersed such events when held (see Political System). Both state authorities and ZANU-PF activists have regularly carried out violent attacks targeting MDC activists and supporters, particularly around elections. Politically motivated violence has affected MDC members and supporters at all levels, including the senior leadership. In March 2007, for example, Tsvangirai was severely beaten while in detention after riot police broke up an unauthorised prayer meeting in Harare, fatally shooting one attendee.
3.32       Government discrimination against the MDC and its supporters has occurred in both rural and urban areas. In rural areas, particularly Mashonaland, human rights observers report that ZANU-PF has discouraged citizens from supporting the MDC by manipulating the distribution of government-funded food and agricultural products. In some cases, village chiefs have reportedly required recipients to possess ZANU-PF identity documents, while in other cases ZANU-PF officials have distributed goods at party meetings. The 2005 Operation Murambatsvina (see Demography), in which police forcibly displaced thousands of urban dwellers under the pretext of preventing the emergence of slums, disproportionately affected MDC supporters and is generally understood to have been motivated by a desire to dilute political opposition in high-density urban areas.
* * *
3.36       MDC members and supporters also increasingly face a risk of violence and harassment from within their own ranks in the form of intra-party violence (see Security situation). In-country sources have expressed concerns over the increasing role of a youth element known as the ‘Vanguard’, which reportedly acts as a private army in support of Chamisa. The Vanguard has reportedly been responsible for much of the MDC’s intra-party violence, including the attack on the female vice-president of a rival faction during Tsvangirai’s funeral in February 2018 (see Women). In March 2018, Chamisa supporters reportedly assaulted supporters of a rival MDC faction during a party meeting in Bulawayo, while supporters of two rival MDC Alliance candidates reportedly assaulted each other during a brawl in Harare in June 2018 ahead of the 30 July 2018 election.
3.37       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.
The DFAT “Smart Traveller” advice, updated on 21 August 2024 and still current as of 28 August 2024, indicates that travellers should exercise a high level of caution, and advises that, “Demonstrations and protests in Zimbabwe can be unpredictable and may turn violent quickly. Avoid activities that could be considered political and stay away from protests and demonstrations”.
The U.S. Department of State’s 2022 Country Report on Human Rights Practices for Zimbabwe indicates that there remains considerable political instability, and that a perceived or actual lack of support for the ruling ZANU-PF party can be dangerous:
Political Parties and Political Participation: An unprecedented number of presidential candidates and political parties contested the 2018 elections. Elements within ZANU-PF and the security forces intimidated and committed abuses against other parties and their supporters and obstructed their activities. NGOs reported ZANU-PF youth members and so-called war veterans threatened communities with violence, telling them that the violence of the 2008 elections would return if ZANU-PF candidates lost.
Traditional leaders and government officials often distributed food aid based on perceived political affiliation, according to local NGOs. Through politicized food distribution, the government punished communities that elected opposition councilors by denying them assistance while rewarding communities that voted for ZANU-PF. In January, reports that officials distributed benefits from the president’s agricultural scheme on a partisan basis were widespread. For example, the ZANU-PF Zaka district chair required attendance at ZANU-PF meetings to receive assistance, and opposition supporters were removed from the list of beneficiaries at Manica Bridge Community Hall. In September, Chief Andrew Bvute reportedly instructed residents in Mberengwa to vote for ZANU-PF in the 2023 general election. In November, Agriculture Minister Anxious Masuka told villagers in Chipinge they must “remember” President Mnangagwa, who gave them agricultural inputs, and “return the favor” in the 2023 election.
Ahead of the March 26 by-elections, opposition supporters faced harassment and attacks across the country. On February 4, ZANU-PF supporters attacked the car of CCC Kwekwe Central candidate Judith Tobaiwa and assaulted her driver. On February 6, riot police reportedly arrested 12 supporters of recalled member of parliament Amos Chibaya in the Mkoba constituency near Gweru. On February 16, three CCC supporters reported ZANU-PF members attacked and tortured them in Harare East. On February 18, after police arrested 13 CCC supporters in Harare, a prominent human rights activist shared two videos described as footage of CCC arrests at Harare Central Police Station. One shows police beating screaming individuals in the dark. The other shows police forcing detained youths to crawl across pavement on their knees. On February 14, police detained CCC Vice President and former Finance Minister Tendai Biti without charge as he met with party members in his Harare East constituency, releasing him when his lawyer arrived. On March 2, four men armed with a gun, an axe, and machetes invaded Biti’s home in Harare and severely wounded a security guard (see also sections 1.a., 1.c., 1.d., and 1.e., Political Prisoners and Detainees).
The 2022 Human Rights Watch World Report for Zimbabwe indicates that there are significant human rights concerns that have not been addressed:
“The administration of President Emmerson Mnangagwa failed to take meaningful steps to uphold human rights and ensure justice for serious abuses primarily committed by security forces in 2021. There has been no accountability for abuses by security forces, including the August 2018 post-election violence, and killings and rape during the January 2019 protests. Abductions, torture, arbitrary arrests, and other abuses against opposition politicians and activists have not been meaningfully investigated.”
It is clear that since 2019, ZANU-PF party activists have carried out acts of politically motivated violence and acts of intimidation focussed on MDC supporters. The 2022 US Department of State Report and current DFAT Smart Traveller advice indicate that there remains considerable political instability in Zimbabwe.
Gender based violence
A large body of information exists regarding politically motivated violence against women in Zimbabwe. A Research and Advocacy Unit (RAU) survey cited by the UK Border Agency revealed out of a sample of 2,200 women, over 50 per cent reported experiences of political violence, 2 per cent reported political rape, and 14 per cent knew someone who had been raped for political reasons.[1] US-based AIDS advocacy group AIDS-Free World published report in 2008 which alleges female MDC supporters were targeted in a systematic rape campaign led by the ZANU-PF. The report, based on 70 sworn affidavits of survivors and witnesses, alleges that that “every victim…was involved in organizing for or supporting the Movement for Democratic Change”. Some had positions as officers of the party, but most were merely ‘active’ members who volunteered for the party, attended rallies, distributed MDC pamphlets, or wore MDC t-shirts in their communities. Sixty-seven of the women reported that the perpetrators made political statements during the rapes. The report argued that the rapes were part of a campaign “against MDC female members and supporters calculated to intimidate, humiliate, and punish them – and by extension, their families – for their political affiliation”. The attacks were seemingly condoned by authorities with “consistent refusal by police to investigate the attacks, as well as a lack of legal action by NGOs to address the rapes”.[2]
[1] UK Border Agency, 2010, Report of Fact Finding Mission to Zimbabwe Harare 9 – 17 August 2010, 21 September, p. 66.
[2] AIDS-Free World 2009, Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe, AIDS-Free World website, December, pp.13-14, 26-27 – Accessed 4 January 2009.
Several other reports found evidence of endemic politically motivated violence against women opposition supporters including rape. A December 2009 UK Home Office report adds that during the 2008 elections, rape was used as a “political weapon against opposition supporters”.11 This view was echoed by Freedom House in its 2009 annual report and again in 2014.[3] An article in the Zimbabwean suggests human rights groups estimate that between May and July 2008, 2000 women were raped at militia camps. The article also referred to a 2009 RAU study which told the stories of four women who were tortured for their political activities.[4]
[3] Freedom House 2009, ‘Freedom in the World Country Report: Zimbabwe’, 16 July; see also Freedom House, Freedom in the World 2014 - Zimbabwe, 22 August 2014
[4] ‘Politically Motivated Violence against Zimbabwean Women’ 2009, The Zimbabwean, 7 May.

Human rights observers have consistently reported the use of rape and sexual violence as a political weapon, including by security forces. Following the nationwide protests in January 2019, at least eight women in Harare told Human Rights Watch (HRW) in separate interviews that multiple uniformed and armed soldiers and police had raped them, some while concealing their identities with masks. One woman said that before they took turns to rape her without using condoms, two soldiers had said she should be raped to ‘make her tell the truth’ about her husband’s possible involvement in opposition politics. Another woman reported that police at her local station had refused to record her complaint, telling her that ‘these things are happening all over the country’. The government responded to the allegations by stating its commitment to accountability and justice for victims and encouraging women to come forward and report the cases. Several similar cases reportedly occurred following the 31 July 2018 national election and around previous elections.[5]
[5] 'DFAT Country Information Report Zimbabwe ', Department of Foreign Affairs and Trade, 19 December 2019, p.38.
The United States State Department ‘Country Reports on Human Rights Practices for 2023’, stated:
While the law criminalized sexual offenses, including rape and spousal rape of women, these crimes remained widespread. The 2019 Multiple Indicator Cluster Survey conducted by the Zimbabwe National Statistics Agency reported nearly 40 percent of never-married adolescent girls and women ages 15-49 had experienced physical or sexual violence by their existing or former partners. The 2020 SADC Gender Protocol Barometer reported 68 percent of women in the country experienced gender-based violence from partners or caregivers over their lifetime. Women were sexually assaulted while seeking treatment in public hospitals, collecting water from communal boreholes, in religious settings, and riding in public transportation. Violent gender-based offenses were often committed in private and without any witnesses.
Police and hospitals did not have sufficient training or facilities to collect and store physical evidence of gender-based violence. The country also lacked the laboratory capacity to analyze rape kits. The lack of evidence hampered the effectiveness of the justice system and demotivated survivors to report these cases. Justice for survivors of violence and particularly gender-based violence remained elusive. The Criminal Law Amendment Act of 2023 set minimum sentences for rape and aggravated rape.
Although sexual offenses were punishable by lengthy prison sentences, women’s organizations stated that convictions were rare and sentences were inconsistent. Rape survivors were not consistently afforded protection in court. Women’s rights activists declared the country’s self-defense law was too weak to protect women because the courts could decide whether harm was intended. Women political leaders and human rights activists were targeted physically and online through threats and intimidation via social media. Domestic violence was punishable by a modest fine, a maximum sentence of 10 years’ imprisonment, or both. Authorities, however, generally considered it a private matter and rarely prosecuted.
Rape and sexual violence were generally underreported. Social stigma and societal perceptions that rape was a “fact of life” continued to inhibit reporting of rape. Women were less likely to report spousal rape, due to fear of losing economic support or of reprisal, lack of awareness that spousal rape was a crime, police reluctance to engage with domestic disputes, and bureaucratic hurdles.
While no specific law criminalized all forms of sexual harassment, amendments to the Labor Act in July broadened definitions of and protection of employees against sexual harassment and gender-based violence, instituted criminal penalties for violence and harassment, and extended the scope of coverage to the world of work that included violence that occurred beyond the physical workplace. Prior to these amendments, labor law had prohibited the practice in the workplace. The government, however, did not effectively enforce the law.
A 2019 survey by Transparency International Zimbabwe found 57 percent of the women surveyed reported that they had needed to offer sexual favors in exchange for jobs, medical care, and even when seeking placements at schools for their children. Media reported that sexual harassment was prevalent in universities, workplaces, and parliament.
In July 2022, the Public Service Commission introduced a Public Service Sexual Harassment Policy. On March 23, Information and Publicity Minister Monica Mutsvangwa reported that women journalists had been sexually harassed and sometimes raped by their male bosses. A January 2022 report from the NGO Women in News stated that 40 percent of women media professionals in the country had faced workplace sexual harassment and violence.[6]
[6]"Country Report on Human Rights Practices 2023 – Zimbabwe", US Department of State, 26 June 2024, 20240704111653.
A number of other reports also comment on the prevalence of gender-based violence in Zimbabwe. A 2019 Freedom House report says that domestic abuse towards women is a problem, while sexual abuse is widespread, especially against girls.[7] An October 2017 International Federation of Red Cross and Red Crescent Societies report says that gender-based violence in Zimbabwe ‘arises from social, cultural and religious practices that subordinate women’. It says that gender-based violence is ‘facilitated by patriarchal (male controlled) social hierarchies, by acceptance of violence as a mode of social interaction and political interface, and by socioeconomic inequality and a breakdown in norms and social structures’. In Zimbabwe, gender-based violence is seen particularly in acts of domestic violence related to gender roles, and spousal abuse is its most common form.[8]
[7] ‘Freedom in the World 2019 – Zimbabwe’, Freedom House, 2019, 20200122164456.
[8] Zimbabwe Country Case Study: Effective law and policy on gender equality and protection from sexual and gender-based violence in disasters’, International Federation of Red Cross and Red Crescent Societies, 2017, p.13, 20200122164700.
The DFAT Report says that women in Zimbabwe face a ‘moderate risk of societal discrimination due to a number of disadvantages that include the threat of gender-based violence and other sexually based harassment’.[9]
[9] 'DFAT Country Information Report Zimbabwe ', Department of Foreign Affairs and Trade, 19 December 2019, p.38.
Regarding internal relocation, DFAT’s Report states:
5.30 that internal relocation is generally easier for single men and family groups than for women, who will generally have less access to financial resources and who are bound by cultural expectations that they will look after their children. Single women are less likely to have access to sufficient support services and may face societal discrimination, particularly in rural areas.
DFAT report the ZRP is a highly politicised organisation with top police commanders appointed and expected to support ZANU-PF; political affiliation can impact on the effectiveness of police investigations, particularly in cases involving criminal and political violence; and ZRP personnel regularly use the POSA to restrict freedom of assembly and expression in support of ZANU-PF interests. The report also noted, ‘There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests …There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests.[10]
[10] DFAT Country Information Report – Zimbabwe, 19 December 2019, page 50.
The 2015 US State Department report stated that In contravention of the law, active members of the police…openly campaigned for and ran as ZANU-PF candidates in the elections.[11]
[11] United States State Department, ‘Country Report on Human Rights Practices for 2015’, 13 April 2016, Zimbabwe, section 3,
Findings and reasons
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or his. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has considered the applicant’s claims for protection together with the evidence submitted as well as country information from various sources.
The applicant fears returning to Zimbabwe as she will be imputed as being a supporter for the MDC. She also fears returning to Zimbabwe as a victim of sexual violence during the 2008 election campaign.
The Tribunal accepts on the evidence provided that the applicant was a victim of sexual assault when she was aged about 14 years of age. The Tribunal accepts that the assault was reported to the police and the assailant charged, appeared in Court where the applicant gave evidence, before being granted bail and leaving Zimbabwe. The Tribunal accepts that the assailant has subsequently returned to Zimbabwe but has not been fully prosecuted. The Tribunal accepts that should the applicant return to Zimbabwe, she will follow up with the authorities on the prosecution of her attacker.
The Tribunal is not satisfied on the limited evidence provided that the applicant’s mother would be considered to be an activist with the MDC. Of concern is the evidence that the applicant’s father was employed by Zimbabwe civil service which would have required him to be a member of the ZANU-PF to maintain his position and at a time when any association with the MDC would have resulted in him being dismissed.[12] [City 1] is regarded as a ZANU-PF stronghold[13] and the Tribunal does not accept that the applicant’s mother would have such a high profile with the MDC such that she would be targeted by ZANU-PF thugs yet her husband would be able to maintain his employment in the civil service.
[12] United States State Department ‘Country Report on Human Rights Practices for 2011” 2009-2017.state.gov/documents/organization/186469.
[13] [Source deleted.]
The Tribunal has considered the reference from the MDC Alliance Youth [official] but is not satisfied that the reference accurately reflects the applicant’s mother’s involvement with the MDC in 2007. I have also considered the statement by [Person A] which states he is aware of the applicant’s parents who are key and active members of the MDC in his constituency but do not consider that this reflects that the applicant’s mother had a high profile with the MDC. The letters from the applicant’s mother and father merely state that the applicant’s mother was active with the MDC but do not expand on her role with the MDC. The Tribunal is prepared to accept that the applicant’s mother supports the MDC but does not accept she was or is a high-profile member of the MDC.
The Tribunal has regards to the UK Home Office Country Policy and Information Note[14] indicating a person with no ZANU-PF connections who returned after a significant period away to a rural area of Zimbabwe and is unable to demonstrate loyalty to ZANU-PF may attract adverse attention from the ZANU-PF or the security forces which may amount to persecution. [City 1] is regarded as a ZANU-PF stronghold having returned significantly more votes for the ZANU-PF than MDC Alliance in past elections.[15] The Tribunal accepts that should the applicant return to Zimbabwe, she will return to live with her parents in [City 1].
[14] UK Country Policy and Information Note: Opposition to Government, Zimbabwe, September 2021. assets.publishing.service.gov.uk/media/6144a639e90e070441639f97/ZWE_CPIN_Opposition_to_the_government.pdf.
[15] [Source deleted.]
The Tribunal accepts on the basis of the country information referred to above, that gender-based violence is significant and prevalent in Zimbabwe and there are limited facilities and services for victims of rape. Independent information also indicates that women in Zimbabwe have been vulnerable to politically motivated harassment and violence, and sexual violence is, and remains, a major issue.
The Tribunal accepts the applicant’s evidence that she is not a member or supporter of the ZANU-PF. The Tribunal accepts that she would be returning to an area in Zimbabwe where the ZANU-PF are in ascendency and where her mother is a supporter of the MDC. The Tribunal accepts that the applicant will be imputed as a supporter/member of the MDC given her absence from the country, her lack of connection to the ZANU-PF and her family’s support for the MDC, on her return. The Tribunal also accepts that as a victim of sexual violence, the applicant’s vulnerability is increased.
The risk of harm for MDC supporters at all levels is described by DFAT as moderate, which is more than remote, and the level and intensity of that discrimination is likely to be higher in areas in which ZANU-PF is in ascendancy such as [City 1]. In relation to the type of harm that the applicant may be exposed to upon return to Zimbabwe, the DFAT information is to the effect that the discrimination may include harassment, intimidation, threatened or actual violence, and judicial harassment. The Tribunal finds on the basis of the evidence before it, there is a real chance the applicant will face serious harm as envisaged by s5J(5) on return to Zimbabwe.
The Tribunal finds that the applicant would face a real chance of persecution upon return to Zimbabwe, and that the real chance cannot be avoided by relocation within Zimbabwe, given that the harm she fears is from the elected ZANU-PF government. The Tribunal also finds that she will be unable to avail herself of state protection given that the harm she fears is from the elected ZANU-PF government and its agencies.
The Tribunal is further satisfied that the applicant’s imputed political views as an MDC supporter would be the essential and significant reason for the harm feared.
It follows that the Tribunal finds that the applicant has a well-founded fear of persecution in Zimbabwe for the reasons provided.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Amanda Goodier
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2024] AATA 4367

27 August 2024

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