1930482 (Refugee)

1930482 (Refugee) [2022] AATA 5191 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Victoria Eastwood (MARN: 1912072)
CASE NUMBER:  1930482
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Peter Katsambanis
DATE:30 November 2022
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 30 November 2022 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – ethnicity – African – religion – Christian – imputed political opinion – political activist – fear of persecution – active member and supporter of the Movement for Democratic Change (MDC) – physical violence and judicial harassment – deprivation of liberty – suffered harm in Zimbabwe – not be able to obtain effective protection in Zimbabwe – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 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 24 January 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 13 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
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 issues in this case are whether there is a real chance that if the applicant returns to Zimbabwe he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In his protection visa application, the applicant stated that he was born on [DOB deleted] in Harare, Zimbabwe. He stated that he was of African ethnicity and Christian religion. He was married [in] 2016. His wife, [name deleted], his daughter and his two sons were still living in Zimbabwe.
The applicant claimed that he had lived in [District 1], Chitungwiza, Harare from 1998 to 2005, in [Suburb 1], Harare from 2006 to 2013 and in [Suburb 2], Harare from February 2013 to January 2019.
The applicant stated that he completed high school in Zimbabwe in 1990 and had subsequently completed a vocational [course 1] in 1993 and two [course 2] courses, in 1997 and 2009 respectively. He stated that he was currently undertaking a [course 3] Diploma at [a college] based in [Country 1].
The applicant listed his extensive employment history in Zimbabwe from 1991 to 2019. He had originally commenced as a [driver] for a [company] before becoming a [different]driver from 1992 to 1995. He then became an [job title 1] for a [company] from January 1996 to January 2006. From January 2003 to September 2011, he was the [job title 2] for a trucking company and from September 2011 to December 2017 he was the [job title 2] in Zimbabwe for a [Country 2]-based [company].
The applicant stated that between March 2012 and January 2019 he was also the [job title 3] of his[own] company and from January 2017 to January 2019 he worked as a [job title 4][sourcing] work for a [company] based in [Country 2].
The applicant arrived in Australia on a valid visitor visa [in] January 2019. Prior to arriving in Australia, he had travelled on multiple occasions to [Country 2], [Country 3], [Country 4], [Country 5] and [Country 6] for business related purposes.
In his application for protection, the applicant claimed that he was seeking protection because he could not return to Zimbabwe. The applicant claimed that he was a political activist and [held position 1] for the opposition political party, the Movement for Democratic Change (MDC), which was fighting for human rights, social justice delivery, freedom of expression and good governance.
The applicant claimed that he had been targeted by arms of government, namely the Central Intelligence Office (CIO), the Army Intelligence Unit and police for organizing demonstrations against the repressive government and for holding MDC branch meetings at his house. He claimed he was a prime and credible witness of a fellow activist who was shot and killed by the army in the demonstrations [in mid] 2018 that were organised by the MDC. He feared that if he was caught, he would be silenced or just disappear as is the norm for the Zanu-PF government in dealing with members of the opposition. He claimed there were still court cases pending for the army and they will do everything in their power to silence him.
The applicant claimed that with recent developments in Zimbabwe, including demonstrations [in] January 2019, the army and police went to his house looking for him as the [position 1] for the MDC. He claimed that there was a country-wide crackdown on members of the opposition party, so he was lucky he was not there. He stated that he had left his country to seek refuge and safety as he was being sought by the authorities in his country and his life was at risk.
The applicant claimed that he had been detained in a camp where he was inhumanly treated, sodomised, tortured, assaulted, intimidated, harassed, victimised and physically suffered permanent scars on his right thigh due to continuous episodes of torture using burning plastic. The abuse was both physical and emotional as he lost a [Relative 1] due to the attacks on his family. The applicant claimed that his wife was sexually abused and raped, and later suffered a miscarriage as she was pregnant at the time. This had affected him and his family greatly.
The applicant claimed that his car was petrol bombed and he suffered irreparable damage, which really shook him to the core. He claimed that his house was broken into, and furniture burnt and destroyed beyond repair resulting in financial harm to his family. He stated that all this had really traumatized him and his family and had affected his ability to provide for his family and co-exist normally in society. He claimed that the people responsible for the harm were undoubtedly the Zanu-PF supporters and members of the Central Intelligence Organisation who report to the ruling party. The Zanu-PF youths were also responsible for this harm including their undercover agents who have followed the applicant and threatened him on numerous occasions. The applicant stated he was positive that members of the ruling party, Zanu-PF, were responsible for this harm as they seem fearless during attacks and directly express their displeasure towards opposition party members.
The applicant stated that he was harmed because he held a [senior role] in the opposition party and as such, all their meetings, rallies and protests are considered as a threat to the Zanu-PF rule. He claimed that he was attacked to silence the opposition and instil fear in the masses who are clearly fed up with the ruling party and the machinery that they use to silence people namely the army, the police, the youths and undercover central intelligence agents. He stated that he was harmed as a way to teach other opposition party members and leaders not to challenge the repressive government.
The applicant stated that he reported all the attacks on himself, his family and his property to the Zimbabwe Republic Police at various stations within the country. To date no arrests had been made, he had been told it was a national service and their hands were tired as the police were controlled by the army and the military government. He had never received any feedback on all reported cases nor any updates on pending investigations, despite follow ups directly and through his lawyers. Other case files were reported as missing and as such, he did not receive any assistance from the law enforcement agencies, despite laying numerous formal complaints. The only help provided was registering the reports and allocating a case number and nothing more from then on.
In his application form, the applicant stated that he was initially a resident of [Suburb 1], [Harare], when he became the MDC [position 1]. After the attack on his family which resulted in death of his[Relative A], and losing his car due to petrol bombing, he moved to [Suburb 2]where he thought it was safe. At one time the applicant claimed that he sought shelter at the MDC [senior offical’s] house. The attacks ensued and he had to relocate his family to his in-laws who reside outside Harare. During this period, he was not fully residing at his house. He sought refuge from close family within the country, however he posed a threat on their families as well because he was now on the run and if anyone provided him with accommodation, they risked losing their lives and property to the merciless youths of Zanu-PF.
The applicant claimed that if he returned to Zimbabwe, he would be imprisoned and tortured for supporting the MDC and what they stand for. He also feared he would suffer inhuman treatment that any living human being will not be able to endure. He would be tortured and forced to release information on other political activists. He also feared that he would face possible arrest for "treason" or abduction, which had happened to some of his fellow MDC members, such as Itai Dzamara who had not been located to this date, after submitting a petition against the government. The applicant felt that his life would be over upon his return to Zimbabwe.
The applicant claimed that if he returned to Zimbabwe, he would be put in a detention camp where they disregard the existence of human rights. He would be beaten to submission and be made to write an admission of guilt that will exonerate the perpetrators of violence (being the army, the police and the dreaded Central Intelligent Officers). He also feared he would be assaulted, imprisoned or disappear from the face of the earth with no trace. The ruling party will be responsible for the harm or mistreatment through the Central Intelligence Officers, the police, the army and the Zanu-PF youths. The arms of the militarized government would want to cover up for the violence they have perpetuated on the civilians that they are meant to be protecting. Hence silencing the credible witnesses and political activists is their norm as they do not want to be linked to any violence which has tainted the government. By them mistreating the applicant, this would set an example to would-be protesters not to challenge the repressive government as clearly demonstrated when the army fired and killed innocent civilians in August last year (2018) and the very recent demonstrations on 17 January 2019, where the army and police were unleashed on civilians. This would also instil fear in the public to not support the opposition party and never question the government, despite the gross abuse of human rights by the same government that is meant to be protecting the country.
The applicant claimed that the authorities in Zimbabwe have a long history of violating their own constitution, disregarding freedom of expression, equal opportunities, violating human rights and any person who expresses the basic fundamentals rights of a citizen will be regarded as a threat. The applicant claimed that it had been proven beyond reasonable doubt when the government was voted out, they still vowed not to go and still continued to silence the masses. The authorities report to the ruling party which forms the majority of government. They are controlled by Zanu-PF and are never held accountable for any wrongdoings or abuse of human rights. They work for the government and as such, they will not protect the applicant because they operate under strict orders. If he went back to Zimbabwe, the applicant claimed he would have made their job of getting rid of him easier.
In relation to relocation within Zimbabwe, the applicant stated that he does not feel safe, and he had tried to go in hiding, but security agencies managed to locate him. He claimed that institutions including the army and the police take instructions from the ruling party, so as a member of the opposition party he was at high risk and there was no institution to protect him. He had been reliably informed that they are looking for him. The applicant claimed that it was difficult for his relatives to accommodate him and his family as it would be a risk to their safety and livelihood. The ruling party was trying to make an example out of the opposition party members and leaders. The applicant claimed he was on the wanted list as he was the [position 1]for his constituency. Due to the current political situation, Zimbabwean citizens are protesting, and citizens are being attacked in their homes. Because he had been previously attacked at his house on more than three occasions, he was at risk and his safety was not guaranteed. Therefore, relocating within the country would be life threatening. Any political activist who had previously spoken against the government was being tortured, detained and charged with treason so his safety was compromised. The applicant claimed that he does not feel safe in any part of the country. Government officials are stationed throughout the country, and it was only a matter of time before they would apprehend him if he was able to relocate within the country.
The applicant provided the Department with various identity documents including his Zimbabwean passport, his birth certificate, his national ID card, a police clearance from the Zimbabwe Republic Police, his marriage certificate and birth certificates for his wife and children. The applicant also provided a Certificate of Incorporation for a private company, [name deleted], for which he is listed as one of the directors.
The applicant also provided the Department with the following documents that are relevant to his claims for protection:
·Email correspondence between the applicant and his wife in January 2019 and several text-type messages exchanged by the couple.
·A statement dated 29 January 2019 from [Dr 1] of [a]Medical Surgery in Harare confirming that the applicant’s wife was treated [in early] 2013 for a [trauma injuries to certain parts of her body] and lacerations to her vagina after a sexual assault. It was claimed in this statement that the injuries were caused as a result of a ‘mob attack’ and it was further claimed that the wife lost her pregnancy which was in the first trimester.
·A statement dated 29 January 2019 from [Dr 1] of [a] Medical Surgery in Harare confirming that the applicant was treated [in early] 2013 suffering ‘a broken [body part], open wound on [certain parts of his body] with permanent scar tissue sustained from second degree burns of burning plastic. The [information deleted] due to beatings from blunt object. We had him for a week treatment as the body was heavily swollen from mob beatings’.
·A letter dated 29 January 2019 on MDC-T letterhead signed by [Mr A], [position 2] . It was stated in this letter that the applicant was an active member of the MDC, a [position 1] and was currently working as a [title 1]. It was stated that the applicant had been involved in mass mobilisation, strategising and membership recruitment in [location 1]. It was further stated that the applicant had been a victim of harassment from police, state security agents, and Zanu-PF militia, which prompted him to consider relocating beyond Zimbabwe. It was claimed in the letter that the applicant’s safety could not be guaranteed in Zimbabwe considering the political instability, mass arrests and killings that have rocked Zimbabwe since the last presidential election. It was stated that the applicant was at risk and extremely vulnerable.
·A copy of an MDC-T membership card with a photograph of the applicant affixed to this card.
·Two photographs taken in what appear to be residential premises depicting damage to the contents of two different rooms. It is not possible from the photographs provided to conclusively determine whether the two rooms are in the same building or in separate buildings.
·Four photographs depicting evidence of harm on the body of what appears to be a male person. It is not possible from the photographs provided to conclusively determine whether the person in the photos is the applicant.
·Various news articles and photographs highlighting the political situation in Zimbabwe.
Further statement by applicant

In a written statement dated 20 January 2019, the applicant expanded on the claims he had made in his application for a protection visa and provided further details relating to these claims.
The applicant stated that he joined the MDC in July 2007, soon became involved in all party activities and was appointed as [position 1 and location 1] when he was living with his sister at her house in [Suburb 1].
The applicant outlined his primary responsibilities as a [position 1] and claimed that through his efforts the MDC finally won the parliamentary seat for this constituency in 2008. The applicant stated that both parliamentary and presidential elections were held simultaneously in 2008. However, although the parliamentary results were announced soon after the election, the presidential election results were deliberately withheld for more than a month because the ruling Zanu-PF Party could not accept that it had lost. During this period, Zanu-PF launched a nationwide campaign of violence against MDC members and several of the applicant’s colleagues were attacked in his area by Zanu-PF youth. The applicant claimed he went into hiding until the presidential election run-off.
The applicant claimed that the MDC invited senior office bearers to a meeting held on 14 May 2008 to determine ways to protect party members and supporters. The following day, some party members reported they had been followed by suspicious looking men in dark glasses. The applicant claimed that he, together with a friend he had given a lift to, had noticed the black Nissan Navarra double cab which was trailing them on their way home. He tried to evade this vehicle and ended up driving for over an hour so they could get tired and stop following him. However, at some point the other car drove fast, stopped in front of the applicant’s car and the applicant noticed that these people were in possession of weapons. The applicant was told by these people to stop wasting his time and that they would eventually get all the details of all the traitors who had attended the meeting and were planning to sell out the president of Zimbabwe. These people recorded the applicant’s car registration number and threatened that they were keeping a close eye on all leading MDC members.
The applicant claimed that after this incident nothing significant happened and in early 2009 a unity government was formed in Zimbabwe. Although they were not receiving any threats or harm at this point, he claimed that other party members continued to receive reports that suspicious people were following MDC members. On several occasions, the applicant personally felt that thuggish looking men were following him home, however political activity was minimal due to ongoing talks and the formation of a coalition government in Zimbabwe.
The applicant claimed that in November 2012 he woke up to a loud bang just outside his house, and when he went outside, he found that his car had been petrol bombed. He noticed a truck driving away really fast but could not obtain the registration number plate. He claimed that the men at the back of the truck were chanting and singing songs in support of Robert Mugabe. Although the applicant reported this incident to the MDC, the party could not do much to provide protection or control the situation. He claimed that this was mainly because a lot of people had been tortured and forced to join Zanu-PF even though they were really supporters of the MDC. The applicant claimed he reported this incident to the police who took a report but openly informed him that the police force belonged to Mugabe, and they would not do anything as they were afraid to lose their jobs or risk their safety.
The applicant claimed that the following night three houses belonging to some MDC members were attacked and torched, members were assaulted, and household property and homes were destroyed at the whim of unruly youths. The violence continued for three days with several youths, who belong to families that supported the MDC, being forced and marched into camps and night vigils for involuntary training as Zanu-PF militia under the guise of national service.
The applicant claimed that he was caught up in this melee and was taken to a makeshift camp or a base in the [small town]. The applicant claimed that his wife reported the kidnapping to the police but was told that it was a national program, and the police could not do anything as they stood for Mugabe. The [a legal organisation] took up the matter on behalf of the applicant, but the police simply ignored them.
The applicant claimed that at this camp he was labelled a traitor who deserved ‘special treatment and training’ and that ‘we would die like slaughtered cows through a long and painful journey over many years’. He has never been able to forget these words as he was subjected to all sorts of atrocities including torture, inhuman and degrading living conditions, indoctrination, rape and most of the men were sodomised because their opponents claimed the men were acting like ‘little women’ and were ‘sell-outs’. The applicant claimed that he was still traumatised to this day. Although he begged and pleaded with his Zanu-PF attackers, they would not hear of it, and he went four days without food or water. The applicant claimed that the camp was in a secluded area with poor security so along with six other members he managed to escape one night. The attackers chased the group, but they fortunately managed to make it to the main road where they kept running along the main road trying to stop any cars along the highway. One farmer stopped and provided a lift to the group. During the drive, the farmer explained that he had also been attacked by Zanu-PF members who had accused him of taking land from black Zimbabweans. The farmer dropped the group off at the MDC headquarters in Harare, where some members then tried to rescue the rest of the members who were left in the camp.
The applicant claimed that after this incident he returned to his home in [Suburb 1] where he and his family lived in fear, but nothing happened for some time. However, after a while, pro-government youths were going from door to door forcing people to attend their rallies as they were campaigning for the 2013 parliamentary and presidential elections.
The applicant claimed he had been warned that his attackers knew he had escaped from the base camp and were looking to apprehend him to make an example of him to others. Around this time, the applicant allowed the families of two other MDC members to seek refuge at his house after their homes had been destroyed. He claimed that this action was an unforgivable crime in the eyes of Zanu-PF and its youth movement.
The applicant claimed that a few days later a group attacked the house and set their household furniture on fire outside the house, whilst chanting Zanu-PF slogans. Although the applicant managed to escape, the group captured his [relative 1], , and severely assaulted him. The police arrived conveniently late and although they managed to rescue the [relative 1] whilst he was still alive, he was unfortunately pronounced dead on arrival at the hospital. The applicant claimed that he was advised to separate for security reasons, so his wife and children went back to her parents’ house and the applicant eventually relocated to a house he had just acquired in [Suburb 2], in Harare. The applicant claimed that the family could not stand the separation, so his wife and children joined him in [Suburb 2] in the beginning of 2013. He claimed that this move was out of desperation even though he felt that it was also cowardice and capitulation in the face of his enemies. He also stated that his business continued to be located in [Suburb 1].
The applicant claimed that he seriously underestimated his enemy’s propensity towards violence and in the following days many opposition party activists were subjected to violence, including death under unclear and suspicious circumstances. Although the family had relocated to [Suburb 2], they had not realised that very few towns were being spared the wrath of Zanu-PF youth because 2013 was an election year.
[In early] 2013 around 7:30 PM the applicant claimed that he was assaulted by a group of youths from the ruling party when he was returning home from the shops. This group demanded to see his Zanu-PF membership card and when he failed to produce one, they told him they already knew who he was, they knew he had escaped from the military training camp, and he was on their wanted list. They assaulted the applicant, then dragged him to his house where they destroyed and looted the remaining household property. They also assaulted and harassed his wife. They detained the couple at the house until the early hours of the morning during which time they were literally prisoners in their own home being subjected to all sorts of dehumanising experiences. The applicant claimed that this group turned his house into their base for the night, helping themselves to everything they wanted, making meals from the kitchen and even taking some chickens from their chicken run. It was utter chaos, and the police were nowhere to be seen even though the neighbours had informed the local police.
The applicant claimed that his wife was pregnant at the time and, at some point in the early hours of the morning, the group decided to leave the house taking the applicant with them. His wife had been sexually assaulted but she was eventually spared any more harm. She was later taken to hospital as she was bleeding continuously, and she suffered a miscarriage. The applicant claimed that his wife had not ever recovered from this trauma. After receiving treatment, his wife returned to her parents’ home with the children as she no longer felt comfortable staying at the family home.
The applicant claimed that he was dragged away almost unconscious and unable to stand on his own feet. He was taken to a nearby base where they continued to assault him and torture him with burning plastic to the extent that he suffered severe, deep and probably permanent scars on [his body part]. His assailants dumped him on the roadside, believing he was dead, and took all of his belongings to make it look like a robbery, which is what he heard them saying as they ran away. The applicant was assisted by some passers-by and taken to the hospital where he was discharged after about a week. While he was in hospital, he made a report to police but to date no one has been caught or held accountable for this attack.
Upon release from hospital, the applicant claimed he returned to [Suburb 2] because nobody else wanted to stay with him. His wife and children later joined him there. The ruling party youths were continuing their deliberate and systematic acts of violence against opposition party members with impunity. The applicant realised he was fighting a losing battle in an undemocratic environment, however he continued with his resolve to fight the evil Zanu-PF regime and started holding meetings at his house in [Suburb 2] . One of his colleagues, [Mr B] , organised a petition calling for the president of Zimbabwe to stand down and the group vowed to occupy the Africa Unity Square until this occurred. This was a difficult period where the group had to endure nasty running battles with the police and several people were beaten and tortured by the police.
The applicant claimed that [in] March 2015, [Mr B] , was abducted and has not been seen since. The applicant feared harm in the lead up to the 2018 presidential and parliamentary elections and considered escaping to other countries. However, he did not have any close relatives anywhere apart from [Country 2], where he knew that the government’s intelligence machinery had already spread its tentacles.
The applicant claimed that he and his allies celebrated the coup in Zimbabwe on 15 November 2017 but soon realised that the military junta who had taken over from Robert Mugabe were just as bad if not worse than he was. He claimed that this military junta then rigged elections on 30 July 2018 to steal victory from the MDC. [In] August 2018 the MDC staged a demonstration to protest the election outcome, however, the government responded militarily to the peaceful and unarmed civilian protesters. Several protesters were shot with a live ammunition and at least seven deaths and 15 injuries were recorded.
The applicant claimed that he lost a colleague, [Mr C], during this demonstration. This person had been shot by a member of the Army and was taken to hospital. Whilst others fled, the applicant claimed that he stood by his friend and gave him support until an ambulance came and took him to hospital. This person died from his injuries three days later and the applicant was petrified because it could very easily have been him. The applicant claimed that he has not come to terms with what happened on that day when a whole national army turned on its own civilians who it is supposed to serve and protect.
The applicant claimed that from that time on he had been targeted by the dreaded military intelligence unit. He claimed that he had given his details to the first responders who had looked after his friend who had been shot and these people later shared his information with the military intelligence unit, who consider the applicant is an opposition activist and the primary witness in a case in which the military had committed a heinous crime against innocent civilians. The applicant claimed that he found this out from his own party’s security and intelligence structures, so he left home and went into hiding. He claimed he was particularly targeted because he had witnessed a close colleague being slaughtered in cold blood by an army officer. He was a material witness with a strong interest, so he was therefore a threat to them, which was clear from the way they were trailing him and wanted him dead.
The applicant claimed that in the end he had no choice but to leave his country for a foreign country that was far away from Zimbabwe and had no close ties with his government. It was not easy to leave his family and belongings behind and it was his hope that the situation would improve in Zimbabwe. It was difficult for him to come to terms with the idea of leaving his wife and children behind, however he feared that he was exposing them to risk by continuing to stay with them.
The applicant claimed that the ruling Zanu-PF party in Zimbabwe continues to maintain its firm and ruthless grip on power and continues violence against members of the opposition despite the departure of Robert Mugabe.
The applicant claimed that he received an invitation to a family wedding in Australia, so he decided to attend the wedding and enjoy a temporary relief from his ordeal in Zimbabwe. He now feels safer here. Before his departure, his wife and children had to stay with his in-laws for their safety. He did not feel safe in Zimbabwe, and he did not see the situation getting better anytime soon.
Interview with Department
The applicant was interviewed in relation to his protection visa application by a delegate of the Department on 26 July 2019.
The delegate’s decision record notes that at this interview the applicant claimed that shortly after joining the MDC, he was elevated to the role of[position 1 and location 2]. The applicant stated [role and function of position deleted].
According to the decision record, the applicant claimed he was followed in the lead up to the 2008 Zimbabwe general elections by the CIO. He stated he knew they were CIO officers as they were carrying guns and driving new cars. The applicant stated that the CIO officers wrote down his name and car registration and told the applicant that they were keeping an eye on him. The applicant stated that the CIO also followed him to an MDC meeting. The applicant claimed that he was also followed in 2012, and again after the protests that occurred after the 2018 election in Zimbabwe. The applicant also stated that the CIO would watch him and see what kind of activities he was doing. He claimed that the reason he was followed was because he was an MDC member and a [position 1].
The applicant claimed that in the lead up to the Zimbabwe general election in 2012, his car was bombed as he was campaigning for the 2012 general election with around 50 other MDC members. The applicant stated that he reported the incident to the police who could not do anything for him, however, they registered his report of the bombing.
The decision record indicates that the applicant claimed he could not provide the police report because as an MDC member and [position 1] it would be difficult to obtain. The applicant also explained that shortly after the bombing he, along with other MDC members, were marched by the Zanu-PF to a camp. The applicant stated he was told they were being taken to a national service camp.
The decision record notes that the applicant stated that whilst at this camp he was tortured. He explained he was beaten, sexually abused, had a bar placed under his legs and was told he was a traitor due to being an MDC member. He stated that his wife went to the ‘ [organisation deleted]’ to engage lawyers to get the applicant out of the camp, however, before this happened, he escaped with six other men. He stated that the people running the camp knew he had escaped, attempted to find him and informed the Zanu-PF of his escape.
According to the decision record, at the interview the applicant claimed that when he was living in [Suburb 1] in 2013, Zanu-PF supporters were going door-to-door asking people to attend Zanu-PF rallies. The applicant stated that he did not attend any of these rallies and that on one occasion he also hid two other MDC members at his house who didn’t want to attend the Zanu-PF rallies. The applicant stated that a few days later the Zanu-PF Youth came looking for him as they knew he had hidden MDC members in his house. They told the applicant that they knew he had escaped from the training camp and wanted to take him back to the camp and torture him. The applicant, his wife and his [relatve 1] were at the house and the Zanu-PF Youth subsequently destroyed his house and attacked his [relative 1] who later died from his injuries. The applicant claimed that he and his wife escaped out the back of the house. The applicant stated that he and his wife then moved from [Suburb 1] to [Suburb 2], another suburb in Harare in February 2013, due to these threats from the Zanu-PF supporters.
The applicant stated whilst living in [Suburb 2], in May 2013, he was attacked by Zanu-PF supporters. The applicant stated that he was near his house when he was approached by Zanu-PF supporters who asked him to show his Zanu-PF membership card. He claims that the Zanu-PF knew who he was and that he had previously escaped from the training camp. After the applicant didn’t supply a Zanu-PF card, he was insulted and dragged back to his house where he was severely beaten. His wife, who was pregnant, was raped and also attacked. The applicant claimed that his wife later lost her baby due to the attack.
The decision record notes that during this interview the applicant stated he was not taken back to the training camp but that the Zanu-PF threatened to return him back to the camp.
According to the decision record, the applicant claimed to have taken part in a peaceful demonstration on the [in] August 2018 to show his displeasure with the election outcome. The applicant stated that the MDC District Coordinator approached him and asked him to join arms with everyone in a peaceful protest. The applicant stated that he went door-to-door to organise everyone to come and celebrate the election win and also held a meeting, as[position 1] , encouraging everyone to come to the election announcement. The applicant claimed he also helped people move through the streets during the protest.
The applicant claimed that since the [in] August 2018 protests, he is wanted by the authorities for witnessing the shooting of a fellow colleague and protester, [Mr C] , during the protest. This man later died in hospital. The applicant claimed that he would be killed by the authorities, in order for them to cover up their wrongdoing. He claimed he was a witness to this protester being killed in the streets and the government want to silence any witnesses. He also stated that he stayed with [Mr C] after he was shot, waited for the ambulance to arrive and also went to hospital with him.

The applicant stated he provided his name to the paramedics who he believes provided his name to the authorities. He stated the protest was chaotic, with people everywhere. According to the decision record, the applicant stated that the army did not knock on his door, however, the army went to the head MDC office looking for activists.
The applicant stated he continued to work and manage his [business], and also claimed that he went into hiding and that he knew the army was after him as he gave his name to the paramedics, and he believed his name was then shared with the CIO and the army.
According to the decision record, the applicant stated he was not involved as a witness in any impending court case as a result of witnessing the shooting [in] August 2018, however, he remained of the belief that there is a court case and therefore he may be required as a witness.
The delegate refused to grant the applicant a protection visa on 7 October 2019.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 28 October 2019.
The applicant provided the Tribunal with a copy of a letter dated 6 December 2019 on MDC-T letterhead, which was signed by [Mr D],[senior official]. The writer confirmed that the applicant had been an active member of the MDC in the [location deleted]. The writer highlighted incidents of violence perpetrated by Zanu-PF supporters against MDC members and expressed concerns about the safety of the applicant and his family at the hands of Zimbabwe police and security forces.
In a submission dated 6 October 2022, the applicant’s representative restated the applicant’s background and claims for protection, outlined the relevant law, provided arguments against the findings made in the delegate’s decision and highlighted relevant country information relating to the political situation in Zimbabwe.
The representative also provided the Tribunal with a declaration signed by the applicant on 6 October 2022 stating that the applicant had read the representative’s submission and confirming that the submission accurately and completely presents his claims.
Tribunal Hearing
The applicant’s representative attended the Tribunal hearing by video link.
At the hearing the applicant confirmed his date of birth and claimed that he had been born and raised in Harare. His father was deceased, and his mother was currently living with his sister in Harare.
The applicant stated that he had five brothers and five sisters. One sister had passed away in 2021, one of his sisters used to live in the [Country 1] but was now living in Sydney, Australia, one brother was living in [Country 2] and the rest of his siblings were still living in Zimbabwe.
The applicant stated that he had been married in a customary marriage around [years]ago and the couple had confirmed their marriage in court in [year deleted] . He claimed he had three children. His daughter was aged around [age deleted], one son was aged around [age deleted] and the other son was aged around [age deleted]. The applicant claimed that his wife and children were currently living with his in-laws in [location deleted] , which was about [distance] from Harare, but they would sometimes also travel to Harare to stay in the family home in the [Suburb 2] area. The applicant claimed that his wife was not currently working. She had previously worked as a secretary but had left this job around 2011 to study at the [a] University.
The applicant stated that in Zimbabwe he worked as an [job title 1] for a [company]. He also operated his own [company] that had been registered in 2012. He described this company is more of a side business which he undertook to assist him financially as the economic situation in Zimbabwe became progressively worse. He indicated that the three directors of this company were himself, [and two other relatives] . The applicant claimed that the company was not currently trading and that since he had come to Australia everything had halted. The applicant stated that this business had been operated from his home and he did not have an office or shopfront for this business.
The applicant agreed that his work history in Zimbabwe had been stable for many years. He indicated that he had undertaken significant business travel because the company he was working for was based in [Country 2]. He stated that he would also cross the border into [Country 2] on occasions to buy groceries because they were cheaper than the groceries available in Zimbabwe. He indicated that he had also travelled to [Country 3] and [Country 4] to collect[goods].
The applicant stated that he left Zimbabwe [in] January 2009 and travelled to Australia through [Country 2]. He arrived in Australia [in] January 2019 on a valid visitor visa to attend the wedding of his nephew. He stated that after his sister had left to go to the [County 1], the applicant had acted as custodian of her children and he was like a father figure to them, so they wanted him to be at the wedding that was held in [State 1]. The applicant confirmed that his nephew lived in [State 1] and stated that he had no other family living in [State 1].
The applicant stated that he was employed in Australia as a [job title 5] for [State 1] and that he was living with his nephew in the suburb of [Suburb 3].
The applicant claimed that when he first arrived in Australia it was his intention to simply visit and then go back to Zimbabwe. When asked why he did not return to Zimbabwe, the applicant stated that because of his political activism he got wind that guys from Zanu-PF and the CIO were looking for him. He claimed that there had been a series of events where these people had followed him. He stated that he had been attacked in his house by Zanu-PF youth and had also been taken to a camp where he had been tortured. As a [senior official] MDC member, the applicant claimed that he had been in the spotlight, so he felt that his life was in jeopardy.
When asked what led to his decision to apply for a protection visa, the applicant stated that before he left Zimbabwe he was thinking about where he could relocate so that he could feel safe. He had considered [Country 2] but was aware that the government of Zimbabwe had strong links with [Country 2]. When he came to Australia, he realised that it was better here because the Zimbabwe government did not have strong links here and could not reach him.
The applicant claimed that he first joined the MDC in [year deleted]. He stated that the reason he joined this party was because he believed the MDC was the party that could usher in a new dawn in Zimbabwe. He agreed with their policies to provide good governance, social change, freedom of speech and freedom of assembly. He did not think that the long-term Zanu-PF government was doing the right thing for the people of Zimbabwe.
When asked why he had not joined the MDC earlier, given that it had been founded some years before [year deleted], the applicant responded that the MDC had been founded by Morgan Tsvangirai in 1999 but as the years progressed there had been a split in 2005. The applicant explained that he observed what was happening in the Tsvangirai side and he recognised that this party had similar values to himself, so he chose to join the party. The applicant added that in his area, Zanu-PF were forcing people to buy party membership cards and he did not believe members should be forced to join a political party against their will, so he joined the MDC in [year deleted] .
The applicant claimed that he became the [position 1] for the MDC in his local area in [year deleted]. When asked why the party chose him to be the [position 1], the applicant stated that he had very strong convictions to spread the word and the values of the MDC, and people within the party saw potential in him so they elevated him to this position.
The applicant was asked if he had not been scared or concerned about retaliation from Zanu-PF as a result of him joining the MDC and taking on an official role within this party. The applicant responded that it did not scare him because for over 40 years Zanu-PF had not done much to help the people of Zimbabwe but had instead only supported their close associates and the corrupt elites. He stated that people felt left out, and he believed that all citizens needed to be included, so he decided to become active in the MDC. He added that when you want change, you have to put yourself ‘all in’. He also stated that it was his belief that the MDC would win the support of the majority of the community and would form government after the next elections.
The applicant stated that he was still a member of the MDC. However, he indicated that he had not paid his membership fees since he had come to Australia in 2019. When asked which group or faction within the MDC he currently supported, the applicant stated that the MDC faction that he supported was now known as the Coalition for Change and was under the leadership of Nelson Chamisa.
The applicant confirmed that he had been the [position 1] for the MDC in [location deleted]. The applicant was asked why it had been stated in one of the letters of support he had provided from the MDC that he was actually the[position 1] for[location 1] . He responded that he assumed it was a typo. When asked why he had not requested that the MDC correct this typo since he first received the letter in 2019, the applicant stated that the writer of the letter, [Mr A] , had now joined the other faction of the MDC.
The Tribunal pointed out to the applicant that since he had received this letter, he had provided the Tribunal with another support letter from the MDC that had been obtained after [Mr A] had written his original letter. On this basis, the applicant was asked why he had not asked the people who had provided the second letter to correct the typo and clarify which ward he had been responsible for. The applicant responded that communication to Zimbabwe was difficult for him due to the time difference and because sometimes there is a lack of electricity or phone access in Zimbabwe. He added that he managed to obtain another letter from the organising secretary of the MDC. The applicant stated that this person was named [Mr D], and he confirmed that apart from being the [position 2] for the MDC this person was also a member of Parliament. The applicant claimed that he had met [Mr D] on several occasions in the past but that he had never met [Mr A].
The applicant was asked to clarify how he had obtained the membership card that he had provided to the Tribunal. The applicant stated that he did not have this card with him when he first arrived in Australia, but he asked a friend, who was travelling to Zimbabwe, to get it for him. When asked who this friend obtained the card from, the applicant stated that the friend went to the branch of the MDC and obtained the card from there.
The applicant was then asked whether he had ever had the card that he presented to the Tribunal in his possession when he was still living in Zimbabwe. The applicant responded that this was the second card. When it was pointed out to the applicant that that was not what he had been asked, the applicant responded that he did have this card in his possession in Zimbabwe.
On this basis, the Tribunal asked the applicant how his friend could have obtained the card from the local branch if in fact the card had been in the applicant’s possession when he was still in Zimbabwe. At this point in the hearing the applicant stated that he had not understood the Tribunal’s questions clearly enough. He stated that he had received the card from the branch and his friend had then collected the card from the applicant’s wife in Zimbabwe to bring it back to the applicant.
The Tribunal expressed its concern that the applicant had changed the nature of his evidence during the Tribunal hearing. It was pointed out to the applicant that his answer to the original question relating to how his friend had obtained the card in Zimbabwe appeared to be very clear. The applicant apologised and stated that maybe he had not understood the question. He repeated that he had received the card from his local district and when his friend went to Zimbabwe, the applicant asked the friend to collect the card from the applicant’s wife.
The applicant was asked to provide the name of this friend. He indicated that the friend’s first name was [Mr E]. When asked to provide the surname of this friend, the applicant stated that he could not remember and added that the friend was actually a friend of his nephew.

100. The applicant was asked why he would ask somebody whose full name he did not know to undertake the sensitive task of collecting an MDC membership card from the applicant’s wife and bringing it back to Australia from Zimbabwe with him. The applicant responded that this person was his nephew’s friend.
101. The Tribunal pointed out to the applicant that he had provided two versions to the Tribunal of how his friend had obtained the card in Zimbabwe and he was unable to provide the full name of the person he had entrusted to undertake this task. On this basis, the Tribunal asked the applicant why it should accept that he is being truthful in his evidence to the Tribunal. In response, the applicant stated that he did not want to bring anything with him to Australia that would create a problem for him at the airport in Zimbabwe, which was why he did not bring the membership card with him. When it was pointed out to the applicant that he had not been responsive to the question asked by the Tribunal and the question was repeated to the applicant, he responded that he had got the first question wrong, but he had then told the Tribunal that the friend had collected the card from his wife.
102. The applicant was asked how he came to be in possession of the letters from the MDC that he had provided to the Tribunal, given that both letters were dated after his departure from Zimbabwe. The applicant stated that the second letter had been emailed to him, so he only had an email or electronic version of it.
103. The Tribunal then asked the applicant how he obtained the first letter from the MDC. In response, the applicant stated that it had been brought into Australia by his friend, [Mr E] , at the same time as he had brought the membership card to the applicant.
104. The Tribunal referred the applicant to country information which indicated that document fraud was very prevalent in Zimbabwe. The applicant agreed with this assessment that document fraud was prevalent in Zimbabwe. On this basis, the Tribunal asked the applicant why it should accept that the membership card and the letters from the MDC that he had provided over time were genuine documents. In response, the applicant stated the Tribunal could send the documents for verification if it wanted to do so. It was pointed out to the applicant that the Tribunal only had electronic copies of these documents in its possession, and it was not the job of the Tribunal to make the case for the applicant. The applicant responded that he would not know the best way to deal with it.
105. The applicant stated to the Tribunal that he did not have any photographs, videos or other documents to indicate that he had ever campaigned for the MDC in Zimbabwe in the past.
106. The applicant stated that his car had been firebombed by political opponents in 2012. When asked if he could provide the date or the month in which this incident occurred, the applicant stated that it was in [month deleted] 2012. He claimed that he reported the matter to the police who verbally heard his report but dismissed it as being part of political violence, the police also pointed out to him that he was an MDC member so they would not do anything about it. The applicant stated that the police were very dismissive of his report, did not record it and did not provide him with any copy of a police report. When asked if he had any photographs or other documents of this attack, the applicant responded that he did not take photographs and added that at the time he was heavily involved in MDC meetings and campaigning activities.
107. The applicant was asked on what date the incident occurred in which he had claimed his [ relative 1] had been fatally injured. After a long pause, the applicant stated that it was in 2012 and then added that it was shortly after his car had been firebombed. When asked to outline to the Tribunal what happened during this incident, the applicant stated that MDC youths (the Tribunal accepts that the applicant meant to say Zanu-PF youths) were campaigning for the 2013 election and had gone to his house because he was the[position 1] . These youths were trying to convince the applicant and his fellow party members to join their party and when they refused to do so, they were attacked. The applicant stated that the attackers were Zanu-PF youth members.
108. When asked how his brother-in-law died during this attack, the applicant stated that his [relative 1] had been assaulted and beaten in the head. He added that the police were running around but they came late, took the [relative 1] to the hospital and he later died at the hospital. When asked if he had a death certificate in relation to his [relative 1]’s death, the applicant stated that he did not, but added that his [relative 1] had been taken to a government hospital.
109. It was pointed out to the applicant that his evidence in relation to this incident was vague and general and that he had not provided any documents to indicate that his [relative 1] had died as claimed. On this basis, the Tribunal asked the applicant why it should accept his claims that this event occurred. In response, the applicant stated that the hospital was a government hospital so they would not record on any paperwork that his [relative 1] had been attacked due to political violence or had died as a result of this violence. When it was pointed out to the applicant that the Tribunal was simply asking whether the applicant had a copy of the death certificate of his [relative 1], and was not concerned about what cause of death was recorded on the certificate, the applicant responded that he did not have any such certificate. When asked if he could obtain such a certificate, the applicant stated that he would try to get hold of his sister to obtain the certificate.
110. The applicant claimed that his [relative 1] was named [name deleted] and this person was born around [year deleted]. His sister, [name deleted], had been born in [year deleted] and they had two children. The children were living in the [Country 1] and his sister was still living in Zimbabwe. The applicant stated that at the time of the attack, he and his wife had been living at this house with his sister and his brother-in-law in the Harare suburb of [Suburb 1] .
111. The applicant was asked what other problems he had experienced in Zimbabwe after this attack on his [relative 1]. The applicant responded that because of the situation his wife had gone to live with her parents, and he had moved to his home in [Suburb 2] around February 2013. The applicant claimed that he had bought this property in [Suburb 2] around 2005 when it was just a block of land, and he was building on it slowly. He pointed out that [Suburb 2] was a better area than [Suburb 1], although they were in close proximity to each other being around [km] apart.
112. The applicant claimed that after he moved to [Suburb 2] he continued with his MDC duties and he got attacked around [early] 2013. He claimed that he was attacked by Zanu-PF youths because he was unable to show them a Zanu-PF membership card. He claimed that these youths knew who he was because he had previously escaped from one of their camps. They insulted him and then took over his home where they beat him up, destroyed his furniture and attacked his wife.
113. At this point in the hearing, the applicant became distressed and very emotional and was unable to continue with his evidence for some time. Upon noticing the applicant’s distress, the Tribunal allowed the applicant to compose himself and indicated that it would ask the applicant questions about aspects of his claim that were not directly related to this attack in [early] 2013.

114. The applicant confirmed his claim that he had been taken by Zanu-PF supporters to one of their camps in 2012. When asked in which month of 2012 this occurred, after a long pause the applicant stated that it was around [month deleted] 2012. When asked if he was taken to this camp before or after the attack on his sister’s house, which he claimed had happened in the same month, the applicant responded that if he remembered correctly this incident happened before the attack on his sister’s house.
115. The applicant was asked how these Zanu-PF supporters had managed to take him to the camp. He responded that Zanu-PF youths took him and drove him to[location deleted] , where the camp was located. When asked how they found him to take him to this camp, the applicant stated that they came to his house and took him away. When asked why these people had chosen to come to his house in the first place, the applicant stated that during this period of time Zanu-PF supporters were attacking all the members of the opposition party.
116. The applicant was asked if these people had randomly come to his house and taken him away to a camp or whether they had specifically targeted him. He responded that during this period of time there was violence everywhere and Zanu-PF supporters knew the applicant was campaigning, so they came to his house and took him away.
117. The applicant was asked whether this incident where he had been taken by Zanu-PF supporters to a camp had occurred before or after the incident where his car had been firebombed. After a long pause, the applicant stated that this incident had occurred before his car had been firebombed.
118. The applicant confirmed his previous claims that he had sustained injuries to his body that had left scars on his body, particularly on [certain body parts]. It was pointed out to the applicant that the photographs of scars that he had provided to the Tribunal were extreme close-ups with no face visible. The applicant and his representative agreed to provide the Tribunal with photographs after the hearing that would enable easy identification of the scars being on the applicant’s body whilst maintaining the applicant’s dignity. It is noted that at the time of making this decision, no such photographs have been provided to the Tribunal.
119. It was pointed out to the applicant that in his written statement that he had provided to the Department he had claimed that he had been taken away to a camp by Zanu-PF supporters after the incident where his car had been firebombed. However, in his evidence to the Tribunal he had stated that the camp incident had occurred before the firebombing of his car. Given that he was reciting events that had occurred to him during his life, it was pointed out to the applicant that the Tribunal would expect that he could provide a consistent timeline of when these events occurred. On the basis of this inconsistent evidence over time, the Tribunal asked the applicant why it should accept that his claims in relation to these matters were true. In response, the applicant stated that he would leave it up to the Tribunal to look at the matter. He added that he may have made a mistake because he was trying to recollect.
120. It was again pointed out to the applicant that the Tribunal would expect him to be able to provide a consistent description over time of the timing of when these events had occurred, the applicant responded that he would not be coming to the Tribunal to say things that did not happen to him. He added that he was trying to recollect to the best of his ability.
121. On this basis, the applicant was asked which version of these events the Tribunal should accept as being correct. The applicant responded that the version in his statement to the Department was true. He claimed that during the hearing he was trying to recall events because those events had happened in close proximity to each other. When the Tribunal pointed out to the applicant that the close proximity of events would more likely enable him to remember in which order the events had occurred, the applicant stated that the question he had been asked earlier at the hearing about the events in his house in [early] 2013 had made him emotional so it may have been hard for him to recall.
122. It was pointed out to the applicant that after the Tribunal had stopped asking him questions about the [early] 2013 incident, it had asked him a number of questions to which he provided responsive answers before it asked him about the timing of the camp incident. The applicant responded that in his mind the loss of his baby during [in early] 2013 attack really affected him and it also caused problems with his wife because she held the applicant responsible for what happened. He added that perhaps he could have gone for counselling but that did not happen.
123. The applicant was asked why the Tribunal should accept that his move from [Suburb 1] to [Suburb 2] was motivated by any political problems he may have been having at the time given that he already owned the property at [Suburb 2], was building a new house on the property and his stable work history in Zimbabwe may indicate that this move was simply a well-planned attempt for the applicant and his family to move to a better area. The applicant responded that [Suburb 1] was very volatile when it came to politics and because he experienced constant threats when he was campaigning, with clashes all the time, he moved out of desperation. He believed that [Suburb 2] would be safer, but in the lead up to the 2013 elections he discovered that there was violence everywhere, including in [Suburb 2] . The applicant added that he wanted to stay in [Suburb 1] but because of the situation he had to move. He stated that his house in [Suburb 2] was not complete at the time that he moved, and he also needed to give notice to the tenants who were living in the property.
124. The Tribunal pointed out to the applicant that the fact he had tenants already living in the property in [Suburb 2] would indicate that even if the house was not fully complete it was in a habitable condition at the time he moved there. The applicant responded that these people were caretaking the house for the family, then they moved and started staying there. However, the applicant added that during the election period violence erupted everywhere. The applicant stated that his wife had moved to live with her parents in early 2013 but a few months after he moved to [Suburb 2] , she also moved in with him. He added that this was around March 2013.
125. The applicant was asked how he obtained the medical certificates relating to the [early] 2013 incident, which he had provided to the Department. The applicant responded that his wife went and got the reports. He stated that he had asked his wife to obtain the certificates in 2019 so that he could submit them to the Department. The applicant stated that the reports had been sent to him by email from his wife and added that he did not have a physical copy of the actual statements.
126. It was pointed out to the applicant that these medical letters had been written many years after the claimed events had occurred. On this basis, and on the basis of country information indicating that document fraud was a significant problem in Zimbabwe, the applicant was asked why the Tribunal should accept that these documents were genuine. The applicant responded that when he completed his application for protection, he knew that he needed evidence, so he asked his wife to get these documents. He confirmed that the writer of the letters, [Dr 1], was also the doctor who had treated him in 2013.
127. The applicant was asked if he had experienced any other problems in Zimbabwe after 2013. The applicant responded that there had been an election on 30 July 2018. Because of irregularities and delays with the results of the elections, MDC members organised a demonstration to express their displeasure. He claimed that the police and the army came to these protests, guns were fired, and his friend named [Mr C] was shot. This friend fell to the ground, was badly injured, an ambulance came to the scene, and he was taken to the hospital. The applicant stated that the paramedics who attended wrote down the details of both [Mr C] and the applicant. The applicant claimed that he travelled with [Mr C] to the hospital in the ambulance and then left him there.
128. The applicant confirmed that nobody had ever been arrested or charged for killing [Mr C]. He added that the president had appointed a commission which had recommended that the police and army had used excessive force during the demonstration and the perpetrators must be ‘brought to book’. The applicant stated that the army had never identified the individual who had killed [Mr C] but he hoped that pressure could be placed on them so this person could be disclosed.
129. The applicant was asked how he came to be next to this person who was shot. He responded that they were next to each other at the demonstration. When asked how he managed to survive when the person right next to him had been killed, the applicant stated that he had also got injured but not as much as his friend. He added that he fell to the ground to avoid injury from the gunshots that were going off around him.
130. The applicant was asked in what way he had been injured during this demonstration. He claimed that he received the bruises from falling onto the tarmac. The applicant confirmed that he had not mentioned that he had been injured in these demonstrations when he had made his claims to the Department. When asked why he had not mentioned these injuries in the past, the applicant dismissed the injuries as ’just bruises’. It was pointed out to the applicant that his initial evidence to the Tribunal was that he had been injured during this demonstration, but when asked why he had not mentioned these injuries previously, he appeared to have dismissed the injuries as ‘just bruises’. The applicant responded that he would describe them as just bruises. When again asked why he had not raised the fact that he had been injured or bruised during this demonstration in his claims to the Department, the applicant responded that they were not that serious, and they were just minor bruises.
131. The Tribunal expressed its concern that the applicant may be exaggerating his participation in the 2018 demonstration, including whether he had been with [Mr C] when this person was shot and killed. The applicant stated that he was not exaggerating, which was why he was saying that the injuries he had received were only bruises. The Tribunal also expressed its concern that the applicant may be exaggerating his role within the MDC more generally and asked the applicant to comment. The applicant did not respond.
132. The applicant confirmed to the Tribunal that the two photographs of damage to property, which he had provided to the Department, had been taken after the [early] 2013 attack ‘when guys came to my house’. It was pointed out to the applicant that from the photographs provided it was evident that the photographs reflected damage to property, but it was not possible from the photographs themselves to determine where they were taken, when they were taken or even if the two rooms in the photographs were located in the same property. In response, the applicant responded that it was up to the Tribunal to determine this matter.
133. The applicant was asked if he could ask family members to take contemporary photographs that may corroborate that the rooms in which the photographs were taken were inside the property owned by the applicant. The applicant responded that after the attack there had been so much damage that the family needed to repair the damage and they had changed the tiles. When it was pointed out to the applicant that the photographs he had provided to the Department did not depict any actual damage of the tiles themselves, the applicant stated there had been significant damage and it needed to be repaired after the attack.
134. The Tribunal asked the applicant if he had experienced any other harm in Zimbabwe that he had not discussed with the Tribunal. The applicant responded that he had problems with the guys who started following him after the incidents at the demonstration in 2018. He claimed that Zanu-PF youth were after him and so was the army and the CIO, because they were all linked to Zanu-PF. He stated the reason these people were after him was because he had witnessed his friend getting shot and they saw him as a potential problem in the future.
135. It was pointed out to the applicant that nobody had been charged or arrested for this incident and there were no current legal proceedings on foot. On this basis, the applicant was asked why anybody would have an interest in him as a witness to non-existent proceedings. The applicant responded that the interest in him arose because if the recommendations of the presidential commission were followed in the future, witnesses like the applicant could be called to give evidence.
136. The applicant indicated that he could not think of any other issues that he had experienced in Zimbabwe other than the ones that he had outlined in his claims over time.
137. The applicant confirmed his claim that political enemies wanted to punish and harm him for escaping from the Zanu-PF camp he had been taken to in 2012. It was pointed out to the applicant that he had lived and worked in Zimbabwe for more than six years after this incident occurred, he had operated his own company, he had maintained regular employment and on the basis of his own evidence he had experienced many confrontations during this time with Zanu-PF supporters. However, he had never been arrested, detained or punished in any way for reasons of having escaped from this camp. On this basis, the applicant was asked whether this would indicate that nobody in Zimbabwe had any interest in him in relation to having escaped from this camp, as claimed. In response, the applicant stated that these camps had been built by Zanu-PF and these structures still existed today. During campaign periods, Zanu-PF were able to abduct opposition supporters and take them to these camps where they would be tortured. The applicant stated that elections were coming up in 2023 and he feared that Zanu-PF youth and the army would target opposition members in the lead up to this election. He added that the camps had not been demolished so they can come and take people at any time.
138. The applicant indicated that he had nothing else he wanted to say to the Tribunal. The applicant’s representative indicated that she had nothing to add at the hearing but requested further time to make additional submissions. The Tribunal agreed to allow the applicant and the representative to make submissions by 4 November 2022.
139. At the time of making this decision, no such submission has been received by the Tribunal from either the applicant or the representative.
FINDINGS AND REASONS
140. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
141. There is no issue as to identity. The applicant arrived in Australia on a valid Zimbabwe passport and as the holder of a valid Australian visitor visa. The Tribunal therefore accepts that the applicant is a national of Zimbabwe and has assessed his claims accordingly.
142. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
143. The applicant claims that he has been an active member of the Movement for Democratic Change (MDC), which has been the main opposition party in Zimbabwe for many years. He claims that he has held the position of [position 1] within the MDC for his local constituency in the[location deleted] , through which he has become well-known to members of the ruling Zanu-PF party as being an active member and supporter of the MDC.
144. The applicant has claimed that he has suffered harm in the past in Zimbabwe from members and supporters of the ruling Zanu-PF party because of his active membership and support of the MDC and that he fears that if he returned to Zimbabwe, he would face further harm from Zanu-PF members and supporters because of his active membership and support of the MDC and its various factional offshoots. The applicant further fears that he will not be offered effective protection from this harm by the Zimbabwe authorities, including the police, because they are controlled by the ruling party, and he also claims that he could not relocate to any other part of the country because the risk to active members and supporters of the MDC is the same across the whole of Zimbabwe.
145. Over time, the applicant has provided cogent and coherent explanations as to why he joined the MDC and the structure and policies of the party. At the hearing, the applicant clearly articulated that he was aware of the formation of the MDC party in 1999 but that he did not join the party at that time. He articulated how over the period between 1999 and 2007 he observed the then-leader of the MDC, Morgan Tsvangirai, and became more convinced that this man was offering the right solutions for the nation and that the MDC had similar values as the applicant. At the same time, through his observations, the applicant was also becoming convinced that the ruling Zanu-PF party were not acting in the best interests of the nation. The applicant was able to articulate at both the interview with the delegate and at the hearing what his role and activities were [in position 1]. The applicant was also aware of the recent factional splits within the MDC, which have occurred since the applicant departed Zimbabwe, and he was able to articulate that he currently supports the major MDC faction that is led by Nelson Chamisa[1]. He was aware that one of the MDC leaders who had provided the applicant with letters of support had left the party after this letter had been provided to the Department. He was also aware that the writer of the other letter of support was a member of the Zimbabwe parliament as well as having an official role within the MDC organisation[2].
[1] DFAT Country Information Report Zimbabwe, 19 December 2019, pp 26-28
[information deleted]
146. These answers have been consistent, spontaneous and reflect the level of detail that would be expected of an active member and supporter of a political party as the applicant claims to be. The answers about the current factional situation within the MDC and the positioning of various personalities within those factions is also a strong indication that the applicant has an active ongoing interest in MDC internal operations. On this basis, when assessing whether the applicant is an MDC member, the Tribunal has given considerable weight to these details that the applicant has provided over time about his historic and current knowledge about the MDC, his pathway to becoming an MDC member, and his role and involvement within the MDC is his local area.
147. The applicant has provided a copy of an MDC membership as well as two letters of support from the MDC attesting to his membership of the organisation and supporting claims that he faces harm if he returned to Zimbabwe.
148. The scanned copy of the MDC membership card is undated but does bear the applicant’s name and photograph. The letter of support (the first MDC support letter) dated 29 January 2019 from [Mr A], who was then [in position 2] of the MDC and is now a member of a competing MDC factional group[3], attests that the applicant has been an active MDC member and supporter and that he has held the role of [position 1] for the party in the [location 1] constituency. However, the letter states that the applicant held this role in [location 1], which is inconsistent with the applicant’s claims that he held this role in [location 2] constituency.

[information deleted]
149. The applicant has submitted that the letter writer made a typographical error in writing [location 1] rather than [location 2]. Given that the letter correctly references the applicant’s Zimbabwe ID card number and is otherwise consistent with the applicant’s claims to have held a senior role in the MDC in the [constituency], the Tribunal is prepared to accept that the reference to [location 1] in this letter is a typographical error and therefore places no weight on this discrepancy when assessing the genuineness of this letter.
150. The evidence at the hearing as to how the applicant came to receive the membership card and the first MDC support letter is more problematic. The applicant did indicate that he had asked a friend of his nephew from [State 1] named [Mr E] to collect this card and letter for him when this friend visited Zimbabwe. However, he provided inconsistent evidence at the hearing about how this friend sourced the documents. At first the applicant stated that this friend collected the documents from the MDC offices. However, he then changed his evidence and stated that the friend collected the documents from the applicant’s wife who was already in possession of these documents. The applicant’s explanation for this inconsistent evidence was that he may not have understood the question asked of him and added that the correct version of events was that the friend collected the documents from the applicant’s wife when he was in Zimbabwe and gave them to the applicant upon return to Australia. The applicant also agreed with the Tribunal that country information highlighted that document fraud was prevalent in Zimbabwe[4], but suggested that if the Tribunal could send the documents for verification, they would be found to be genuine.
[4] DFAT Country Information Report Zimbabwe, 19 December 2019, pp 58-59
151. The Tribunal accepts that the applicant was extremely nervous when giving evidence at the hearing. Although the evidence relating to these documents was given before the point in the hearing where the applicant became distressed and emotional (when referring to an assault on his wife in 2013), the Tribunal is cognisant from the applicant’s nervous demeanour throughout the entire hearing that concerns about events in Zimbabwe were weighing on his mind prior to the time when he showed his distress and was unable to continue giving evidence for some time.
152. The Tribunal has weighed up the inconsistent evidence as to how the applicant obtained these the documents with the general consistency, apart from one typographical error, between the applicant’s own claims of his involvement in the MDC and the claims in the support letter. On balance, when weighing this evidence, the Tribunal is not able to make a definitive finding that the documents provided are fraudulent or non-genuine. Therefore, the Tribunal accepts that these documents are not fraudulent and that they provide support to the applicant’s claims to have been an active member and supporter of the MDC.
153. The Tribunal also accepts that the second letter of support dated 6 December 2019 from [Mr D], [position 2] of the MDC, is genuine. Although more general in nature than the first letter of support, the Tribunal accepts that this letter also provides support to the applicant’s claims to have been an active member and supporter of the MDC.
154. Given the considerable weight that the Tribunal has placed on the details that the applicant has provided over time about his historic and current knowledge about the MDC, his pathway to becoming an MDC member, and his role and involvement within the MDC is his local area and given the documents provided in support of these claims, the Tribunal finds that the applicant has been an active member and supporter of the MDC since 2007 as claimed and the Tribunal also finds that he has held the role of [position 1] for the MDC in his local area.
155. Based on these findings, the Tribunal finds that the applicant has an actual and imputed political opinion in Zimbabwe as being an active member and supporter of the MDC in Zimbabwe.
156. The Tribunal does have some concerns about the claims made by the applicant about the harm he has suffered in the past in Zimbabwe for reasons of his actual and imputed political opinion as an active member and supporter of the MDC.
157. As discussed with the applicant at the hearing, many of his claims of past harm in Zimbabwe, such as his arbitrary detention in a Zanu-PF camp, are inconsistent with his profile as a person with a stable work history who worked for a multi-national corporation whilst also running a side business to earn extra income and as a person who managed, through hard work, to move his family from a poor and high-density part of Harare to a more salubrious suburb.
158. The Tribunal accepts that as an active member and supporter of the MDC who was based in the Harare area the applicant attended the protests following the disputed 2018 Zimbabwe election including the protest where [Mr C] was killed[5]. However, on the evidence before it, the Tribunal is not satisfied that the applicant was a direct witness to the death of this man as claimed and the Tribunal finds that the applicant has exaggerated his own involvement in an event where details are available in the public realm so that he can enhance his claims for protection.
[information deleted]
159. However, when assessing both the claims of past harm of the applicant and his fears of harm if he returned to Zimbabwe, the Tribunal has considered country information about the treatment of opposition party member and supporters and in particular the treatment of MDC members and supporters in Zimbabwe.
160. The most recent DFAT Country Information report for Zimbabwe discusses the treatment of the MDC by the Zimbabwe government and their associates in the Zanu-PF party since the formation of the MDC and assesses the risk of harm and discrimination faced by MDC members and supporters, especially those involved in direct political activism. The report relevantly states as follows[6]:
[6] DFAT Country Information Report Zimbabwe, 19 December 2019, pp 27-28
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.
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.
…
While ever-present, the level of intensity and focus of official harassment against MDC members and supporters has varied according to circumstance. Overt politically motivated violence reportedly declined significantly in the years after 2008, which analysts have attributed to the politically stabilising GNU period and the weakened threat posed by the splintered MDC after its 2013 election defeat. During this period, harassment against the MDC still occurred but generally took more subtle forms aimed at establishing and consolidating political and electoral influence. While lower-level members were targeted through biased land and food distribution and housing destructions, for example, higher ranking officials and parliamentarians were more likely to be subjected to judicial harassment or intimidation, including occasional death threats.
The levels of overt violence against MDC Alliance candidates and supporters ahead of and during the 30 July 2018election (see Political System) was well below that of previous elections, particularly those of March 2008. The level of harassment against MDC members and supporters has reportedly increased considerably since the disputed 30 July 2018 election (see also Enforced or Involuntary Disappearances). Security authorities targeted MDC leaders and activists for arrest in the wake of both the 1 August 2018 post-election violence and the January 2019 fuel protests, (see Political Opinion (actual or imputed)), and a number of senior MDC figures face serious charges. Authorities have prevented the party from holding further demonstrations throughout 2019(see Political Opinion (actual or imputed)).
…
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.

161. The same DFAT report highlights how activists from the ruling Zanu-PF party continue to carry out acts of intimidation and politically motivated violence targeting political opponents in the MDC[7]. The same report states that in the lead up to the 30 July 2018 election, Zanu-PF activists threatened and intimidated the general population and monitored and reported on political opponents[8]. The report also states that these Zanu-PF activists often act with the support or acquiescence of state security forces and that they generally do not face legal sanction[9].
[7] DFAT Country Information Report Zimbabwe, 19 December 2019, p 51
[8] Ibid
[9] Ibid
162. Given the age of this DFAT report, the Tribunal has also considered the most recent report from the United States Department of State on human rights practices in Zimbabwe. This report highlights the ongoing discrimination during 2021 from the Zimbabwe government and Zanu-PF activists against political opponents in the various factions of the MDC. The report relevantly states[10]:
[10] US Department of State, Zimbabwe - United States Department of State, released on 12 April 2022, accessed on 29 November 2022
Members of the ruling party threatened violence against opposition officials in apparent efforts to coerce them to withdraw from politics or change party alliance. In May media reported the ruling party’s youth secretary for indigenization sponsored violent gangs in Makonde and Chinhoyi. A ruling party official complained a “gang of hooligans” had “rendered some districts ungovernable.” In June unknown perpetrators burned down the home of an opposition official in Chikomba. In October the MDC Alliance reported violent attacks from state intelligence and military officers during multiple visits to rural areas, and MDC Alliance published photographic and video evidence of those attacks. In November news reports indicated the ruling party used its youth structures to coordinate disruption campaigns against the MDC Alliance during visits to rural areas.
…
The MDC Alliance asserted ZANU-PF supporters attacked party president Nelson Chamisa on October 11 in Masvingo where he had planned to meet party supporters and other stakeholders. A progovernment newspaper suggested the attack was part of a rising trend in political violence. The opposition party stated Chamisa survived a live-fire attempt on his life during his travel to Manicaland on October 19.

163. Based on this country information and based on the applicant’s actual and imputed political opinion as an active member and supporter of the MDC, the Tribunal accepts as highly plausible that the applicant may have suffered harassment and harm from Zanu-PF activists in the past in Zimbabwe because of his actual and imputed political opinion. This includes his general claims of harassment over a long period of time by Zanu-PF activists, monitoring of his activities and the firebombing of his car.
164. On the evidence before it, including written statements from the doctor who treated the applicant and his wife at the time, the Tribunal also accepts that the applicant and his wife were attacked by a violent mob in their home in Zimbabwe in 2013 as claimed, and the Tribunal accepts that both suffered the harm claimed as a result of this attack. Although the evidence in relation to the motivation of the attackers is not definitive, the Tribunal accepts that based on the applicant’s political profile, there may have been some political motivation behind this attack on the applicant and his wife.
165. The applicant claims that if he returned to Zimbabwe now or in the reasonably foreseeable future, he fears serious harm from Zanu-PF activists and their government allies because of his actual and imputed political opinion as an active member and supporter of the MDC and its factional offshoots. He further claims that the authorities in Zimbabwe would not protect him from the serious harm he fears because they actively support the Zanu-PF government and turn a blind eye to the activities of Zanu-PF activists. He also claims that he cannot relocate to another part of Zimbabwe to escape the harm he fears because Zanu-PF activists are active in all parts of the country.
166. The Tribunal has already found that the applicant has an actual and imputed political opinion in Zimbabwe as an active member and supporter of the MDC. Although not accepting all of the applicant’s claims uncritically, the Tribunal has also found that he has suffered some harm in the past in Zimbabwe for this actual and imputed political opinion.
167. The country information from DFAT referred to above makes it clear that people with the actual or imputed political opinion of the applicant continue to face a moderate risk of official discrimination in Zimbabwe and that such discrimination would take the form of harassment, intimidation, threatened or actual violence and judicial harassment. The report also suggests that the risk of such harm is higher for members of the MDC and its offshoots who are involved in direct political activism, as the applicant has been in the past through his role as district youth coordinator.
168. In the applicant’s case, the Tribunal is satisfied that he holds the subjective fear of harm on the basis of his political opinion as required in s 5J(1)(a).
169. In relation to the objective standard in s 5J(1)(b), given the moderate risk identified in the DFAT report, and the higher risk faced by people such as the applicant who are involved in direct political activism, the Tribunal is satisfied that the chance of harm faced by the applicant is not remote or insubstantial or a far-fetched possibility, and therefore it is a ‘real chance’ for the purposes of s 5J(1)(b).
170. The harm the applicant fears includes physical violence and judicial harassment which may lead to deprivation of his liberty. Accordingly, the Tribunal is satisfied that the harm feared by the applicant meets the definition of serious harm in s 5J(5).
171. As the country information from DFAT highlights, the Zanu-PF activists operate across Zimbabwe and are even more active in rural areas than they are in the major cities. Therefore, the Tribunal is satisfied that relocation within Zimbabwe is not a viable option for the applicant and that in his case the real chance of persecution relates to all areas of the country for the purposes of s 5J(1)(c).
172. Accordingly, based on the evidence before it, the Tribunal finds that if the applicant returned to Zimbabwe now or in the reasonably foreseeable future there is a real chance that he will suffer serious harm for reasons of his actual and imputed political opinion as an active member and supporter of the MDC and its factional offshoots.
173. The country information from DFAT makes it clear that the Zanu-PF activists that the applicant fears would harm him often act with the support or acquiescence of state security forces and that they generally do not face legal sanction for their activities targeting political opponents. This information is also consistent with the applicant’s own claims and some of the country information he has provided over time that directly links Zanu-PF activists to state security forces, including the local police force. On the basis of this information, the Tribunal finds that the applicant would not be able to obtain effective protection in Zimbabwe for the purposes of s 5J(2).
174. For the applicant to avoid the serious harm he fears in Zimbabwe he would need to alter his political beliefs in support of the MDC and its offshoots and opposed to Zanu-PF or he would need to conceal these beliefs, which is a modification of behaviour not considered reasonable pursuant to s 5J(3)(c)(iii). Therefore, the applicant would not be able to avoid the harm he fears by taking reasonable steps to modify his behaviour as contemplated in s 5J(3).
175. Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion.
176. 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
177. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Katsambanis
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.
…

[2022] AATA 5191

30 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction