1931553 (Refugee)

[2023] AATA 454

1931553 (Refugee) [2023] AATA 454 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nabeel Lang (MARN: 0601921)

CASE NUMBER:  1931553

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Peter Katsambanis

DATE:4 January 2023

PLACE OF DECISION:  Perth

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

Statement made on 04 January 2023 at 2:17pm

CATCHWORDS

REFUGEE – Protection visa – Zimbabwe –member of the opposition Movement for Democratic Change (MDC) party – family’s actual and imputed political opinion as members and supporters of the MDC – applicant had provided conflicting, inconsistent and contradictory information over time – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, r 1.12, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 2 October 2018. 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.

3. The applicant appeared before the Tribunal on 11 October 2022 to give evidence and present arguments. The Tribunal also attempted to receive oral evidence from [Mr A], who is based in Zimbabwe, however multiple attempts to contact this witness failed. The intended witness subsequently provided the Tribunal with a written statement in support of the applicant.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

9. 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.

10. 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].

11. 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).

12. 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

13. 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

14. The issues in this case are whether there is a real chance that if the applicant returns to Zimbabwe she 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 she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

    Protection Visa Application

15. In her protection visa application, the applicant stated that she had been born on [date] in Harare, Zimbabwe. She listed her ethnic group as African, her religion as Christian and her occupation as [Occupation 1]. She listed her marital status as ‘separated’ and indicated that the date of separation was [date] September 2016. She stated that her maiden surname was [Name].

16. The applicant stated that she last departed Zimbabwe from Harare on [date] July 2018 and arrived in Australia on [date] July 2018 on a valid Australian visitor visa. She indicated that she had applied for a visa to [Country 1] in April 2016 to enable her to [work]. The applicant listed extensive work-related travel from 2016 to 2018 to [various countries]. She also stated that she had visited [a country] and [Country 2] in 2018. In relation to [Country 2], she indicated that she had been in that country from [date] May 2018 to [date] July 2018 and indicated that the reason was ‘visiting’.

17. The applicant claimed that she had lived at the same address [from] birth until April 2018 and had then lived in [Country 2] from April 2018 until she came to Australia in July 2018.

18. The applicant stated that she had completed high school in Zimbabwe and then completed a  [course] in [Country 2]. She listed her only employment as a [Occupation 1] [in] [Country 1] from July 2016 to April 2018.

19. The applicant stated that she was seeking protection in Australia because she could not return to Zimbabwe. She claimed that she had left Zimbabwe to come to Australia for a vacation and added that she was a card-carrying member of the opposition Movement for Democratic Change (MDC) party. The applicant claimed that during the July elections, violence from the ruling ZANU-PF party and security forces had affected, tortured and displaced her family as they were strong opposition supporters. She claimed she could not return to Zimbabwe as it was not safe for her to do so.

20. The applicant stated that her family had been targeted, beaten, tortured and some were missing or unaccounted for since the July 2018 elections. She claimed that they had been targeted because of their allegiance to the MDC. She stated that she was a known financial supporter of the MDC and upon return to Zimbabwe she would be in danger, would probably go through some torture, beating or disappearance as her family did.

21. The applicant claimed that since the MDC was formed in 1999 the family had been supporters and they had experienced violence and hatred against them, but according to reports following July 2018 the level of violence against her family had escalated. She claimed that her family sought help from police and security forces, but no help was offered. She added that some of her family members were still unaccounted for, and others had fled to [Country 2]. She claimed that the family filed a missing persons report but nothing had happened yet. She stated that her brother and sister had fled to [Country 2] after the July 30 elections where they are illegal immigrants and are trying to apply for a protection visa.

22. The applicant claimed that if she returned to Zimbabwe she would be tortured, beaten and would probably go missing or be unaccounted for. She stated that the authorities had failed to protect her in the past when the family had reported harassment. She added that she could not relocate to any other part of the country to escape the harm she feared.

    Interview with Department

23. The applicant was interviewed by a delegate from the Department on 18 July 2019. The delegate’s decision record states that at this interview the applicant claimed that she had been a member of the MDC since 1999, along with her family. She claimed that when she had become a member she was not required to pay for her membership and stated that once you join the MDC you are given a membership card. The applicant stated that she supported the MDC because she wanted to see the economy improve, including better health care, education and improvements to the agricultural sector.

24. The decision record notes that during this interview the applicant stated that the MDC wanted to improve the economy including better health care, education and improving the agricultural sector. The decision record further notes that the applicant stated at the interview that she did not hold any position in the MDC, however she would attend large rallies held by the party. She claimed that she would sometimes wear MDC T-shirts that were provided at the rallies and added that some people would also put stickers on their cars to show support, however she claimed she did not do this. The decision record indicates that the applicant also stated that she would give the MDC small amounts of money of around $10 ‘here and there’ but stated that she did not have receipts for these donations.

25. As noted in the decision record, the applicant stated that since her arrival in Australia on [date] July 2018 the situation in Zimbabwe had become so severe, she could not return. She claimed that following the Zimbabwe general election that occurred on 30 July 2018 her family had been targeted by the governing party, ZANU-PF, for being MDC supporters. She claimed that her brother [Mr B] and her sister [Ms C] were abducted by ZANU-PF supporters and her other siblings, [Mr D] and [Ms E], had fled to [Country 2] to avoid being abducted. The applicant further claimed that she knew that her siblings had been abducted because her brother, [Mr D], had told her in an email. She added that her brother had also told her in an email not to return to Zimbabwe due to the unstable political environment.

26. The decision record notes that the applicant also claimed at the interview that she had received a [social media] message from a friend in Zimbabwe named [Name 1] who told her that ZANU-PF supporters had been going from house to house looking for MDC members, that there were lots of people being taken away and that it was really bad in Zimbabwe after the election. The applicant stated it was well known that ZANU-PF members will abduct and torture supporters of the MDC.

27. It is noted in the decision record that at the interview the applicant claimed that her family had been tortured after being abducted and she knew this because it was well known that other MDC supporters who had been taken had also been tortured. She believed the same thing had happened to her brother and sister. The applicant claimed that whilst living in Zimbabwe she had never been targeted by ZANU-PF supporters for her support of the MDC, however she claimed that she had to be careful to avoid harm. She also stated that after the elections so many people were killed, the situation was really bad and up to 80% of the people were MDC supporters.

    Documents provided to Department

28. The applicant provided the Department with copies of her Zimbabwe passport and her Zimbabwe national registration card. Both documents listed her birthplace as [Area 1] and the registration card listed her village of origin as [Village 1].

29. The applicant provided the Department with a copy of a membership card from MDC-T. This card was numbered ‘ID: [number]’ but no member details or dates were recorded on the card.

30. The applicant also provided the Department with two undated screenshots that she claimed were a [social media] discussion between the applicant and a person called [Name 1]. In this discussion [Name 1] stated that she was sorry about what happened to the applicant’s family, that the situation was not good, that the applicant’s house was ‘burnt’, that the applicant’s mother and father managed to escape, that [Name 1] had given the applicant’s brother and sister $150 for bus fare and they were now in [Country 2], and that the applicant should not return to Zimbabwe. [Name 1] added in subsequent messages that it was not good for the applicant to return now because they would kill her, that even [Name 1] was scared and that the applicant should extend her visa until the situation was better. In the message exchange, the applicant expressed concern that if she could not get to [Country 3], she would lose her job.

31. The applicant provided the Department with a series of emails she had received from [Mr D], who she claimed was her brother. In an email on 24 September 2018 the brother stated that the applicant should not return home and added that it was not safe for him, so he and his sister [Ms E] were trying to get protection visas in [Country 2]. In an email dated 29 September 2018 the brother stated that he was worried about what was happening to their family in Zimbabwe and claimed they were awaiting the outcome of their protection visa application in [Country 2]. In an email dated 8 November 2018 the brother stated that he had applied for a job in [Country 2] and had gone for an interview the previous day. He added that he was hearing bad things happening in Zimbabwe every day.

32. On 8 August 2019 the applicant provided the Department with a series of documents relating to her employment as a [Occupation 1], including confirmation that on 25 April 2018 she had accepted a job offer to [work] in [Country 3] on [date] August 2018.

33. The delegate refused to grant the applicant a protection visa on 11 October 2019.

    Application for Review

34. The applicant applied to the Tribunal for a review of the delegate’s decision on 6 November 2019. Together with her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and a copy of the accompanying notification letter from the Department.

35. The applicant’s representative provided the Tribunal with a submission on behalf of the applicant on 23 September 2022.

36. The representative outlined the applicant’s claims, as previously provided to the Department, and stated that after joining the MDC in 1999 the applicant took an active part in supporting the party in fundraising and canvassing for support for MDC candidates who were standing for election. It was claimed that the applicant was a member of the family which had been active in support of the MDC. It was stated that her brothers, [Mr B] and [Mr D], and her sisters, [Ms C] and [Ms E], were all active members and supporters of the MDC. It was submitted that the context of their support for the MDC should be understood within the political, economic and social circumstances in Zimbabwe, which had been autocratically ruled by ZANU-PF since independence in April 1980.

37. The representative then outlined the history of the formation of the MDC and the support it had received across Zimbabwe since its formation. The representative stated that the possession of an MDC membership card or being known as an MDC supporter could, and in many instances did, lead to being either killed or seriously injured. It was submitted that the applicant, like many people in Zimbabwe, supported the MDC to the best of their ability by buying a membership card and contributing whatever relatively small amounts of cash they could spare from time to time.

38. The representative claimed that the applicant had personally experienced persecution in Zimbabwe, having lived in the family home in [Harare] and suffering threats against her and other members of her family. She also suffered incidents when gangs of people would, under cover of darkness, come to the house and try to force their way in through locked doors. It was claimed that the applicant believed that if the people had been able to break into the house, she and her family would have been killed or seriously injured.

39. The representative claimed that the applicant also suffered incidents where cars would come at night and park in front of the house. This was frightening because the applicant never knew whether the people in the car would attack the house, fire gunshots into the house or attempt to firebomb the house. It was claimed that the applicant and other members of the MDC was sometimes prevented from attending rallies through the presence of gangs of ZANU-PF supporters issuing threats and attacking and beating MDC supporters or through officially sanctioned actions like the police refusing to allow an MDC rally to take place. It was stated that the applicant had experience the violence of MDC supporters being attacked at MDC rallies and she had been personally threatened by ZANU-PF supporters who lived in her area in [Area 1].

40. The representative claimed that in 2015, when the applicant was returning from an MDC rally, she and approximately nine other MDC supporters were confronted by a Zanu-PF mob who told them they were being ‘arrested’. The applicant and others were forced to go to the [police] station where they were locked into a small office and were illegally detained in the police station from before lunchtime until after dark without being given any food or water. It was claimed that periodically, the mob would come to the room and threatened the MDC supporters with being assaulted to teach them that they should not support the MDC. They were also warned that in future if they were seen to be supporting the MDC they would be shot. It was claimed that the threats of violence and of being shot had a traumatic effect on the applicant and others, especially as they were aware that MDC members had been savagely beaten and killed by Zanu-PF mobs and others had been shot. The fact that this ordeal was taking place in a police station with the knowledge of the police made their situation even worse and confirmed their knowledge that the police would not protect MDC supporters against Zanu-PF persecution.

1. The representative claimed in the submission that in February 2013 the applicant and her family had received threats from Zanu-PF supporters and as a consequence of those threats had moved out of the house and sought refuge with friends because they believed it was too dangerous to remain in the house. It was claimed that towards the end of February 2013, while the applicant and her family were out of their home, the house was set on fire by a mob of Zanu-PF supporters. The representative referred to an attached police report in confirmation of this incident.

2. In the submission, it was claimed that after the general election of July 2018 the applicant’s brother, [Mr B], and sister, [Ms C], were abducted by Zanu-PF supporters. It was claimed that the applicant’s other brother, [Mr D] and her sister, [Ms E], fled Zimbabwe to avoid being persecuted.

3. The representative stated that the significance of the attempt to burn down the family home in February 2013 is that for most people in Zimbabwe their house is the single most important asset they may own, often requiring massive sacrifice through more than one generation to pay it off. The damage or destruction of the family home has devastating consequences as a family is rendered homeless, their most valuable asset is either devalued or rendered worthless and in the context of politically motivated violence, without a residential address, the person or persons may be unable to vote in an election. It was submitted that this was the fate of farmworkers driven off commercial farms.

4. The representative stated that if the applicant was forced to return to Zimbabwe, she would face homelessness and would be quickly identified by the Zanu-PF members in the neighbourhood if she returned to her family home. She would then face persecution as a member and supporter of the MDC.

5. The representative argued that even though the president of Zimbabwe had changed, hopes of a less autocratic and depressing political environment had failed to be realised. It was stated that the MDC party had been infiltrated by agents of Zanu-PF and that the courts in Zimbabwe had recognised the government influenced faction, which was called MDC-T as being the ‘legitimate’ MDC. It was claimed that the bulk of the original members and supporters of the MDC, under the leadership of Nelson Chamisa, had formed the Citizens Coalition for Change (CCC), which enjoyed widespread support in Zimbabwe and had overwhelming success in recent by-elections.

6. The representative argued that the Zanu-PF government had been compromised and was now under the effective control of the Zimbabwe Defence Forces (ZDF). The representative stated that the ZDF had been active in committing acts of politically motivated violence against the MDC and the CCC, as well as other actual or perceived opponents of Zanu-PF. It was claimed that the persecution the applicant fears is sanctioned by the government and therefore has an official quality to it. The representative argued that the security forces and the rank-and-file Zanu-PF supporters who engage in politically motivated acts of violence against MDC supporters do so in an environment of impunity and referenced the case of the murder of a high-profile MDC activist, Talent Mbika.

7. The representative stated that the applicant was unable to safely relocate within Zimbabwe because the Zanu-PF government controls the whole of Zimbabwe and maintains an effective and efficient system, through the ZDF, of information about the location of people who are perceived to be political opponents of the government.

8. It was claimed that [Mr B], the older brother of the applicant, had passed away since the applicant had lodged her application for protection and the applicant had no family or social support network in Zimbabwe.

9. It was claimed that since lodging her application for protection, the applicant had given birth to a child in Australia and that this child was an Australian citizen by virtue of her father being an Australian citizen. It was stated that the father’s rights to live with his partner and child would be infringed if his partner and child were forced to depart Australia to live in Zimbabwe. It was stated that it would not be in the best interests of an Australian citizen to send the child to Zimbabwe with her mother in circumstances where the mother faced the real chance of being killed or suffering serious harm.

10. It was stated that the applicant had qualified in Australia in [a] [field] and had been working in this field for two years. She was also enrolled in a course to study to become an [occupation] and was intending to then study further to qualify as a [occupation].

11. The representative concluded that the applicant faced death or serious harm if she returned to Zimbabwe and that the Zimbabwe government and security forces, as the actual perpetrators of persecution, were both unwilling and unable to effectively protect her. Accordingly, the applicant sought protection from Australia against the persecution she would suffer if she was forced to return to Zimbabwe.

12. Together with the submission, the representative provided the Tribunal with the following documents:

    ·a copy of an MDC membership card (numbered [number]) in the name of [applicant’s name], indicating that membership dues had been paid for 2009, 2010, 2011, 2012 and 2013.

    ·a printout from a mobile phone dated 12 March 2020 indicating that the sum of $30 had been transferred to the Movement for Democratic Change. There was no indication on this document of who had made this transfer.

    ·An undated letter on MDC letterhead titled ‘from the office of the President’ and written by [Mr F], who was described as [a position] for the MDC. The writer stated that the applicant had been a bona fides member of the MDC since 2008. It was claimed that the applicant joined the party through her family who had been members of the party since its formation in 1999. It was claimed that her family members had been very active in [a] constituency, had become targets for Zanu-PF militia and state security agents, had been tortured and had been displaced from their house due to their allegiance to the party. It was claimed that the family were well-known as activists who had suffered victimisation several times because of their active role in the party, including having to relocate to their rural home after receiving death threats from state security agents. It was claimed that as the 2018 elections approached, in July 2018 the applicant fled to [Country 2] after she received death threats from Zanu-PF youths. It was stated that her two brothers were also not spared as they also had to flee to [Country 2] after the August shootout by the army at a peaceful protest. It was stated that at some point the applicant had been arrested, tortured and detained with other party members under inhuman conditions which traumatised her. It was claimed that state security agents had been constantly visiting her place of residence wanting to know her whereabouts. The letter writer claimed that the applicant’s safety was not guaranteed if she returned to Zimbabwe given that she faces arbitrary arrest and harassment as the Zimbabwean government had been turned into a military state targeting MDC members and their families.

    ·A police report issued [in] March 2020 by the officer in charge of [a] police station referring to a report made by the applicant to police [in] March 2013. A hand-written statement on this report states ‘the matter is not yet been finalised because of the political nature of the case – the accused being members of the ruling party’. The report does not state what matter is being referred to in this statement.

    ·An article dated 6 August 2018 from the Financial Times titled ‘Zimbabwe intensifies crackdown on opposition’.

    ·An article dated 7 August 2018 from Human Rights Watch titled ‘Zimbabwe: intensified crackdown on opposition’.

    ·A birth certificate for a female child named [Miss G] born in Western Australia on [date]. The mother of this child is listed as the applicant. Both the mother’s surname and the mother’s maiden surname on this birth certificate are recorded as ‘[name]’.

    ·Documents evidencing the applicant’s studies, employment and payment of income tax in Australia.

    ·Profile details for [Mr A], a partner in a law firm in Zimbabwe, who the representative indicated was willing to give witness evidence on behalf of the applicant at the Tribunal hearing. Also included was the transcript of a court case in which this witness was involved as a plaintiff.

    Tribunal Hearing

13. The applicant’s representative attended the Tribunal hearing held on 11 October 2022.

14. At the Tribunal hearing, the applicant confirmed that she was born in Harare and grew up in [Area 1], which she described as being like a suburb ‘under Harare’. She confirmed that she had lived in the family home in that area before she came to Australia. Her father had worked for [a] company and her mother was a housewife who would also do some business from time to time buying and selling vegetables. Her parents were now retired and had moved to the village of [Village 1], which was also in the [Area 1] area.

15. The applicant stated that she was one of [number]siblings, with [boys and girls] in the family. She claimed that her brother, [Mr B], had passed away last year aged around [age]. When asked how he died, the applicant stated that she did not really understand what happened because he had been sick for three days and then passed away on [date] August 2021. She claimed that she had been speaking to him the day before he passed away. She stated that this brother had been married with [children] and was living in the rural area of [Area 1] when he died.

16. The applicant stated that she did not know where her eldest sister was living, and she had no contact with her. She claimed that her brother, [Mr D], and her sister, [Ms E], were living in [Country 2]. She stated that they were not really working, but they would occasionally do piecework and life was hard for them. She added that another brother was living in [a country].

17. The applicant stated that she completed her secondary school education in Zimbabwe and had also studied a [course]. She claimed that she studied this [course] in [Country 2] in 2016 for around a year. However, the applicant was not able to recall which months in 2016 she had undertaken this course. The applicant added that she had been living in [Country 2] for around six months before she commenced this course.

18. The applicant indicated that she had finished high school around 2001 or 2002. She had then been married on [date] September 2005 and had moved to live with her husband in the city of Gweru. She claimed that the couple separated in 2013 and after the separation she returned to live in [Area 1], before going to [Country 2]. The applicant stated that she was now divorced from her previous husband and confirmed that the surname on her passport was her husband’s family surname. She indicated that her own family or maiden name was [Name 1], but she had not changed her documentation back to that name after her separation and divorce.

19. The applicant claimed that when she was married and living in Gweru, she and her husband were operating a [business]. After her separation in 2013 she returned to [Area 1]. When asked what work she had undertaken between 2013 and 2016 when she had gone to [Country 2], the applicant responded that she did nothing and just stayed at home.

20. The applicant confirmed that she had not undertaken any studies between the time she finished secondary school around 2001 or 2002 and when she undertook her [course] studies in [Country 2] in 2016. She claimed that she went to [Country 2] in 2015 but was not sure in which month she had gone there. She stated that she went to [Country 2] because she wanted to study [and], whilst studying there, she lived with a friend called [Name 1]. The applicant stated that this friend had been living in [Country 2], but she had heard that she had now moved back to [Zimbabwe] where she was from. She claimed that she did not catch up with this person much and had been told by another friend that [Name 1] had moved back to Zimbabwe.

21. The applicant stated that she worked part-time [in] order to help fund the fees for her [course] in [Country 2]. She claimed that after she finished the course, she applied to work [at a workplace]. She claimed that whilst waiting to obtain a job [she] was living in [Country 2] but whenever she had time she would go back to Zimbabwe.

22. The applicant stated that she began working as a [Occupation 1] [around] the end of 2016, but she was not sure of the date and claimed she would need to check her records. She confirmed that she finished working [in] April 2018. She claimed that whilst working [she] would almost always be[working] on six-month or nine-month contracts at a time.

23. The applicant was asked what she did after she finished working [around] April 2018. She responded that she was living in Zimbabwe, but she did not feel safe, so she applied for a tourist visa to Australia. She confirmed her claim that from April 2018 until she came to Australia in July 2018 she was living in Zimbabwe. She claimed that she was living in the rural area of [Area 1] with her parents, but it was not safe to stay there so she would not stay there all the time. When asked to confirm whether she lived with her parents during this period of time or not, the applicant stated that it was not safe to stay in the village, so she did not stay in one place for too long.

24. The applicant was asked why it was unsafe for her to remain in Zimbabwe at the time. She responded that it was because of politics that it was unsafe for her. She claimed that her family supported the opposition party, and it was not safe. She could see that it was not safe for her.

25. The applicant was asked when she left Zimbabwe to come to Australia. She responded that she left Zimbabwe on [date] July 2018 to go to [Country 2] where she stayed for a few days before she departed from Australia on around [date] July 2018.

26. The applicant confirmed that she did not have any children in Zimbabwe and her daughter, [Miss G], who was born in Australia was her only child.

27. The applicant stated that she arrived in Australia on a tourist or visitor visa. When asked why she had come to Australia in July 2018, the applicant responded that she had tried to stay in [Country 2] but she didn’t settle there, and she felt safer in Australia so she came here.

28. When asked if she had come to Australia because she felt she needed to flee from Zimbabwe, the applicant agreed that this was the case and stated that it was not safe for her in Zimbabwe. She added that she felt safer in Australia than she did in Zimbabwe.

29. The applicant was asked if it was her intention at the time she came to Australia in July 2018 to find a way to stay here on a permanent visa. The applicant agreed that this was the case.

30. It was pointed out to the applicant that a document she had provided to the Department indicated that she had a contract to commence work [at a workplace] out of [Country 3] on [date] August 2018. On this basis, she was asked why she did not take up this [job]. The applicant responded that she wanted to go to work but she did not want to go back to Zimbabwe. The applicant also clarified that it would have been possible for her to go straight from Australia to [Country 3] to commence the job but after her contract ended, she would need to go back to Zimbabwe where it was not safe for her to return.

31. The applicant indicated that she was not married in Australia but stated that she had a partner, with whom she had a daughter named [Miss G]. When asked if this was a permanent relationship, the applicant laughed and then stated that the couple had a baby together. She then confirmed that they were living together as a family, but her partner worked [in a certain industry] and was often at work.

32. The applicant stated that her partner was an Australian citizen but indicated that she had not applied for a partner visa because she did not want to rely on him and instead wanted to obtain a protection visa.

33. The applicant was asked to state to the Tribunal in her own words what problem she had experienced in Zimbabwe in the past before she came to Australia. The applicant responded that she supported the opposition MDC party and, in the area where she lived, there were not so many active members of the party. She claimed she would attend rallies of the MDC, but the ruling party did not want people to support the MDC.

34. The applicant stated that in 2015 the ruling party did not want them to attend rallies and then claimed that in 2015 the police and Zanu-PF supporters stopped a rally that she had been attending, arrested her, took her and other people to the police station and threatened them. She claimed that she was kept in a small room and was told not to support the MDC and not to attend rallies. She claimed that this was a scary experience.

35. The applicant then stated sometimes people would come to knock on the door of her home and some people had told the family that their home in the city would be set on fire. She stated that this was when her parents moved from the city to the village, and her brother and sister had run away to [Country 2] because her area does not have many active MDC members.

36. The applicant stated that she was arrested in 2015 around the month of September.

37. When asked if the threats to burn down her family home had eventuated, the applicant stated that her family home was burnt down in 2013. When asked if she could recall the month or the date when this happened, the applicant responded that she had a lot of things in her head and she could not remember the month that it happened. When asked if she was present when the family home had been burnt down, the applicant stated that she was not because the family had to run away from the house around one month or four weeks before the incident happened. She stated that people in the area gave the family a tip that the house would be burnt down and added that these people were members of the MDC. When asked why members of the MDC would be aware of what members from Zanu-PF were planning to do, the applicant stated that sometimes Zanu-PF would tell people and then the message would spread.

38. The applicant confirmed her claim that she was a member of the MDC and stated that she had joined this party in 1999. She claimed that she would pay membership fees to the MDC but when asked to provide details of how much she would pay and how often, the applicant stated that in Zimbabwe people would just contribute when the party wanted money and sometimes they paid for the membership card so she could not say how much she had paid. She added that she had even made contributions whilst living in Australia. The applicant claims that whilst in Australia she had paid either $20 or $30 in 2020 and claimed that she had also made payments in cash. She claimed that altogether she would have contributed around $50 to the MDC since she came to Australia. When asked if she had receipts for these payments, the applicant stated she did not get any receipts for the cash payment, but she had a receipt for the amount of $30 that she paid on her card in 2020.

39. The applicant was asked to clarify which faction of the MDC she belonged to. The applicant responded that there were now two groups within the MDC, but she supported the one that was headed by Nelson Chamisa. She claimed this group was now called CC. However, when asked to outline what CC stood for, the applicant asked her representative for assistance then claimed she would need to double check. She added that this group had formed in the last year when she was already in Australia.

40. The applicant claimed that she joined the MDC because of the things that were happening in Zimbabwe under the Zanu-PF government. She stated that she wanted change in Zimbabwe, so she supported the MDC. The leader at the time had been Morgan Tsvangirai, but he had now passed away.

1. The applicant was asked if she had suffered any other harm in the past in Zimbabwe. She responded that they were threatening her and when her house was burnt down, the family lost many things which disappointed them.

2. The applicant confirmed that she was already in Australia when the 2018 elections in Zimbabwe took place.

3. When asked if her family members had experienced any problems in the lead up to, during or in the aftermath of the 2018 elections in Zimbabwe, the applicant stated that her family had not experienced any problems at that time, but many things had happened to other MDC members. When again asked if her family had experienced any problems associated with the elections in Zimbabwe in 2018, the applicant stated that they had not experienced any such problems, but other MDC members had experienced bad things. The applicant then confirmed to the Tribunal that it was her evidence that her family members had not experienced any problems related to the 2018 elections in Zimbabwe.

4. The applicant was asked what she feared would happen to her if she returned to Zimbabwe now or in the reasonably foreseeable future. She responded that she would be killed, harmed and abused. When asked who she feared would do these things to her, the applicant stated that it was Zanu-PF members and supporters. When asked why they would harm her, the applicant stated that they knew her as an active member of the MDC. She claimed that she could not seek protection from the police because the police would not do anything. She added that the police worked together with Zanu-PF and the police would even attack MDC members at rallies, so they would not do anything to protect her.

5. The applicant was asked if she had anything else she wanted to tell the Tribunal about her claims for protection. The applicant responded that she was stressing because she did not want to go back to Zimbabwe. She claimed that her brother had passed away and she feared that Zanu-PF may have done something to him. She added that it was not safe for her to go back and with elections due next year in Zimbabwe, Zanu-PF have already started threatening, attacking and abusing people. She claimed that her brother used to drive people to MDC rallies and would put MDC stickers on his car, but now he was killed.

6. The Tribunal asked the applicant what evidence she had to support her claim that her brother had been killed. The applicant responded that her brother just got sick and after three days he passed away. She added that people could talk but there was no evidence that he had been killed.

7. The applicant’s representative stated to the Tribunal that he believed all of the issues relating to the applicant’s claims had been covered in her evidence.

8. The Tribunal pointed out to the applicant that in her protection visa application and at her interview with the Department she had not raised any specific claims of harm in the past in Zimbabwe and in particular she had not claimed that she had been detained and threatened in 2015 after an MDC rally and she did not claim that her family home had been burnt down in 2013 by Zanu-PF supporters.

9. However, the Tribunal pointed out to the applicant that in submissions made on her behalf to the Tribunal on 23 September 2022 and in her evidence at the hearing there had been a series of claims made that gangs of people would try to break into her family home, that cars would park at night in front of her family home, that she was sometimes prevented from attending MDC rallies by Zanu-PF supporters, that in 2015 she had been arrested and detained for many hours in a police station by police and Zanu-PF supporters where she had been threatened and denied food and water, and that in February 2013 she and her family had to move out of the family home after threats from Zanu-PF supporters and subsequently the family home was set on fire by Zanu-PF supporters.

10. The applicant was asked why she did not mention any of these incidents to the Department at any stage before the delegate refused to grant her a visa on 11 October 2019. The applicant responded that when she went for an interview with the Department, she replied to what they asked her. When it was pointed out to her that at the interview, she would have been asked what had happened to her when she was living in Zimbabwe, she agreed that this was the case but added that they were asking her if she held any positions in the MDC. However, she agreed that she had the opportunity to state her case at this interview.

11. It was pointed out to the applicant that she also had the opportunity to make claims that had been made before the Tribunal in her protection visa application form, but she had not made any such claims. The applicant responded that she believed that on the application she said she did not want to go back to Zimbabwe because she was not safe there. When it was pointed out to her that she had specifically not stated on this form that she had been arrested following a rally in Zimbabwe or that her family home had been burnt down, the applicant stated that she thought she had done so.

12. The Tribunal pointed out to the applicant that pursuant to s423A of the Act, the Tribunal was to draw an inference unfavourable to the credibility of her claims if it was satisfied that she did not have a reasonable explanation why the claim was not raised before the Department delegate made a decision in her case. On this basis, the applicant was asked to provide an explanation as to why she had not done so. The applicant responded that at the interview they asked her questions and she answered them and added that maybe they did not ask her about those things. However, she added that in relation to being arrested and in relation to her family home being burnt down she thought she had put them on the application form. When it was pointed out to the applicant that no such claims had been made on the application form, she expressed surprise.

13. It was pointed out to the applicant that her passport issued in Zimbabwe in 2013, which she had provided to the Department and the Tribunal, listed her occupation as a student. However, in her evidence at the hearing she had clearly stated she had not undertaken any studies between the time she finished secondary school around 2001 or 2002 until 2016 when she studied her [course] in [Country 2]. On this basis, the Tribunal asked the applicant to provide an explanation as to why her occupation would be listed a student on her passport issued in 2013. The applicant responded that when she separated from her husband, she wanted to study but she did not have any money, so she did not undertake studies at the time. When it was pointed out to the applicant that this response clearly indicated she was not a student in 2013, the applicant responded that she wanted to do a course, but she did not have money for fees. She confirmed that she had never been enrolled as a student in 2013 but added that she wanted to do a course and had completed some of the paperwork, but she did not have money to pay the fees. When asked which course she was intending to study at the time, the applicant stated that she was intending to study the [course] she had later completed in [Country 2].

14. It was pointed out to the applicant that on the birth certificate for her daughter, [Miss G], who had been born in Western Australia the applicant’s maiden surname was listed as [another name], which was the same surname as on her passport. However, at the hearing the applicant had stated to the Tribunal that this was actually her married name and that her maiden name was [Name 1]. The applicant was asked to explain why she would list her maiden name as [ the other name] on her child’s Australian birth certificate if her maiden name was actually [Name 1]. The applicant responded that she put the name that was on her passport on the birth certificate because she had yet to change her name back to her maiden name.

15. The Tribunal pointed out to the applicant that the birth certificate clearly had a separate place for her current surname and another separate place for her maiden surname. This would give the applicant the opportunity to list both names separately on the certificate. The applicant pointed out that she did not know that this was the case, so she only put what was on her passport.

16. It was pointed out to the applicant that her passport does not contain any mention of a maiden name, which would raise credibility concerns about her claim that she simply copied this maiden name from her passport to the birth certificate application form. In response, the applicant stated she was already married when she got her passport, so when she filled out [Miss G]’s birth certificate, she just put on it what was on the passport.

17. The applicant was asked to clarify who the person called [Name 1] was who appeared in the [social media] messages the applicant had previously provided to the Department. The applicant stated that this person was her friend and she had known her since 2007 when she had met her through her auntie. She claimed that this was a different person to the person named [Name 1] she mentioned earlier in the hearing. The applicant claimed that the person she had exchanged [social media] messages with was called [Name 1, different surname].

18. When asked to clarify when these messages had been exchanged between the applicant and this person, the applicant responded that she did not remember the date, but she recalled that the messages were telling her not to go back to Zimbabwe because she would not be safe there.

19. It was pointed out to the applicant that there were no dates apparent on these messages. On this basis, the Tribunal asked the applicant why it should accept that the messages were sent around the time the applicant was claiming that they were sent, which coincided with the aftermath of the 2018 elections in Zimbabwe. In response the applicant stated that she did not remember if she had sent them to the Department without dates. She then added that she had now changed telephones so the messages would only be on the other phone that she was using at that time. When asked if there was any way she could obtain these messages and provide them to the Tribunal with an indication of the date on which they were sent, the applicant stated that she did not have them on her phone.

100.   The applicant stated that this person named [Name 1, different surname] had been living in [Area 1] but was now living in Canberra where she was undertaking studies. The applicant clarified that this person had been living in the city area of [Area 1] and not in a village.

101.   The applicant was asked when she had obtained the MDC membership cards that she had provided over time to the Department and the Tribunal. The applicant responded that she would always renew her membership cards after two or three years, but she was not sure about the dates. When asked if she could recall when these cards had been issued to her, she stated that one of those cards was when she was still in Zimbabwe. She added that when she joined in 1999, she got a card and renewed this card every two or three years.

102.   The applicant confirmed that the two membership cards were in her possession in Australia but stated that she did not bring them with her when she first arrived in Australia in 2018. She indicated that she received them through the MDC head office. She claimed that the cards had been given to her in Zimbabwe. When asked how the cards managed to get to Australia, if they did not arrive with the applicant in 2018, the applicant did not initially respond but then stated that she had asked her sister to send the cards to her. When asked how her sister knew where these cards were, the applicant stated they were with her marriage certificate and her sister had sent her the marriage certificate and the cards. However, the applicant then stated that her sister had sent her a scanned copy of the marriage certificate by email, which she indicated that she may have on her telephone.

103.   The applicant was asked to clarify why her sister would send her a document such as a marriage certificate by scan only but would send the MDC membership card physically to her. The applicant stated that she wanted the card and the letter from the MDC, so her sister had to post them to her.

104.   At this point in the hearing the applicant’s representative handed the Tribunal the MDC membership card which indicated that the applicant had paid subscriptions for 2009, 2010, 2011, 2012 and 2013.

105.   After examining the card, the Tribunal pointed out to the applicant that although the card provided for membership fees to be recorded on a monthly basis over five years, it appeared that all of the entries on the card appeared to have been completed in the same pen and possibly on the same day. On this basis, the Tribunal asked the applicant why it should accept that this was a genuine membership card evidencing her actual membership of the MDC. The applicant responded that she did not know why it had been filled out with only one pen. The Tribunal pointed out to the applicant that this was also the concern of the Tribunal, however, the applicant chose not to make any further comment on this issue.

106.   The Tribunal pointed out to the applicant that in her evidence at the hearing she had clearly stated that after she finished working [around] April 2018 she had returned to Zimbabwe where she stayed until she came to Australia. The applicant confirmed that this was the case but added that she had gone to [Country 2] to take a flight from there, [to] come to Australia. It was pointed out to the applicant that in her protection visa application form which she submitted to the Department she had stated that she had been living at an address in [Country 2] from April 2018 until she came to Australia. On this basis, the Tribunal asked the applicant which version of events around that time it should accept as being correct. In response the applicant stated that she was in and out of [Country 2] and Zimbabwe at the time because it was not safe for her in Zimbabwe. She added that she went to [Country 2] to wait for her Australian visa.

107.   The applicant was asked why she had not mentioned that she had been travelling between [Country 2] and Zimbabwe at this time earlier in the hearing. The applicant responded that she was in and out. She stated that she had said earlier that she had gone to Zimbabwe after the [job] had finished but she was not safe in the village and was scared so she was moving around a lot.

108.   It was pointed out to the applicant that although she may have mentioned that she was not staying at her family home she had made no mention that she had been forced to move to another country during this period of time. The applicant responded that she had told the Tribunal that she stayed three or four nights in [Country 2] before she came to Australia.

109.   It was pointed out to the applicant that rather than just claiming to have stayed in [Country 2] for three or four nights, in her protection visa application form she had mentioned that she had been living in [Country 2] for a number of months before she came to Australia. The applicant responded the correct version was that she was travelling in and out of the country at that time.

110.   The applicant agreed with the Tribunal that this answer provided a third version of where she had been living for the same period of time. On this basis, the applicant was asked why the Tribunal should accept that she was being truthful about where she was living during this period of time. The applicant responded that she was waiting for an Australian visa, and she did not know how long it would take so she was travelling between [Country 2] and Zimbabwe until she came to Australia. When asked why she had not stated this in her evidence earlier at the hearing, the applicant responded that she did not stay there every time because she was scared to stay there. When asked why she would state in her application form that she had been living in [Country 2] from April 2018 to July 2018 if this was not correct, the applicant responded that she got her visa when she was in [Country 2]. She added that when she left the [job], she went to Zimbabwe, but she was not safe there, so she was going to [Country 2]. She then got her visa in [Country 2] and came to Australia. She added that she was not in [Country 2] at that time.

111.   The Tribunal pointed out to the applicant that in her application form she had clearly stated that she had come to Australia to visit, and she had only decided to apply for protection after she had found out about events that had happened to her family during and in the aftermath of the 2018 elections in Zimbabwe, which took place after the applicant arrived in Australia. However, at the hearing she had told the Tribunal that she was already in fear of her life in Zimbabwe before she arrived in Australia, she came here seeking safety and it was her intention upon arrival in Australia to apply for protection. Given the contradiction in these claims over time, the applicant was asked why the Tribunal should accept that she was being truthful in relation to her fears about returning to Zimbabwe. The applicant responded that in 2015 she had been taken by Zanu-PF and she had been threatened by them. She claimed that this fear was still there when she came to Australia.

112.   The Tribunal pointed out to the applicant that in her application form lodged with the Department, at her interview with a delegate from the Department and in the submission recently submitted to the Tribunal on her behalf by her representative it was claimed that in the period around the 2018 elections in Zimbabwe a number of things had occurred to her family and as a result two of her siblings had disappeared and two others of her siblings had fled to [Country 2]. However, in her evidence to the Tribunal the applicant had clearly stated that around the 2018 election period in Zimbabwe things had occurred to other MDC members, but nothing had happened to any of her family members at this time. In particular, it was pointed out to the applicant that in her evidence to the Tribunal at the hearing she had made no mention at all of her siblings either disappearing or having to flee to [Country 2] during or in the aftermath of the 2018 election. Given these contradictory claims over time, the applicant was asked why the Tribunal should accept her claims. In response, the applicant stated that when she filled out her application form and at the interview, she had said that [Mr D] and [Ms E], two of her siblings, had gone to [Country 2] because it was not safe in Zimbabwe.

113.   On the basis of this answer, the applicant was asked why she had not mentioned this event in her earlier evidence to the Tribunal and why she had stated that nothing had happened to her family around the 2018 election period. In response, the applicant expressed alarm that she had not made these claims. She added that she thought she had said it but so many things happened during the 2018 election period.

114.   The applicant was asked to clarify when her family house had burnt down as claimed, given that the [social media] message exchange with [Name 1] seem to suggest that this event happened during or in the aftermath of the 2018 elections in Zimbabwe. The applicant responded that this event happened in 2013 and that is what [Name 1] was referring to in the messages. She added that this was the reason her parents had moved to the village.

115.   The applicant was asked why the letter she had provided from the MDC in support of her claims to being a member of this organisation was undated. The applicant responded that she did not check this letter. On this basis, the applicant was asked if it was possible that she had obtained this letter and the MDC membership card she had provided to the Tribunal after she had come to Australia in order to assist her claims for protection. The applicant responded that she had to ask the MDC to send this letter to her and added that she did not have it when she went for the Department interview. When again asked if it was possible that she had only applied for this documentation in order to support her claims for protection and that she was not a genuine MDC member as claimed, the applicant responded that she was an MDC member otherwise they would not give her a letter.

116.   The applicant stated that [Mr A], who had indicated that he wished to give evidence at the hearing on behalf of the applicant, was not personally known to her and she had never met him. The applicant indicated she was not sure if he knew her family, but he would know that her family had been active members of the MDC. She stated that this witness could clarify that she was an MDC member and that things had happened to her because of her membership of the MDC. When asked how this man would know what happened to the applicant if he had never met her, the applicant stated that he knew her name, but they had never met.

117.   The applicant’s representative clarified that the witness could verify what was happening in Zimbabwe from his experience but agreed that the witness would not be able to provide any specific information about this particular applicant.

118.   At this point, the hearing was adjourned for a brief period of time until the time that had been agreed to ring the witness in Zimbabwe.

119.   When the hearing resumed, the Tribunal attempted to contact the witness on the telephone number that had been provided on a number of occasions. The applicant and the representative also attempted to contact the witness on their telephones. However, all attempts to contact the witness were unsuccessful and on a number of occasions a recorded message indicated that there may be a fault on the line.

120.   On this basis, the Tribunal agreed to allow the applicant and the representative to obtain a statement from the witness after the hearing.

121.   The Tribunal pointed out to the applicant that earlier at the hearing she had stated that in 2013 she and her family had left their home in the city area of [Area 1] and had moved to their home in a village near [Area 1] after receiving threats from Zanu-PF supporters that the home would be burnt down. The applicant had also stated to the Tribunal that after the family had moved to the village, their home in the city area had been burnt down. The applicant agreed that she had made these claims.

122.   It was pointed out to the applicant that in her application form she had provided to the Department she had stated that she had been living at the same address in [Area 1] from [year], when she was born, until April 2018. A copy of the application form was provided to the applicant, and she agreed that this address was the address of her family’s city home in [Area 1]. It was further pointed out to the applicant that in this application form she had made no mention that she had lived in the village at all after 2013. On the basis of these contradictory claims over time, the applicant was asked which version of her claims the Tribunal should accept as being correct in relation to this matter.

123.   In response, the applicant stated that there were rural and city parts in [Area 1], and she had not distinguished between the rural and city parts on her form.

124.   The Tribunal pointed out to the applicant that on the form the only address she had listed in Zimbabwe was the address she had told the Tribunal was her city address in [Area 1]. On this basis, the applicant was asked why the Tribunal should accept that she and her family had ever been forced to move from this address to the village. The applicant responded that this was the city address. She stated that after her separation she had moved from Gweru back to the family home in the city of [Area 1], but then they had to move to the village.

125.   When it was again pointed out to the applicant that she had not listed any address in the village on her application form, the applicant responded that she did not write it on the form because there was no actual address in the village. She added that maybe she made a mistake. It was pointed out to the applicant that the form allowed her to simply list that she had lived in a village named [Village 1], as claimed, but she had not done so which raised credibility concerns about her claim. The applicant responded that she did not list this address.

126.   The applicant was asked if there was anything else she wanted to tell the Tribunal about her claims for protection. The applicant responded that it was not safe for her to go back to Zimbabwe. She added that next year there would be an election and if she returned, Zanu-PF supporters would notice that she was there so she would be killed, harmed or abused. She added that she felt safe in Australia where she was working and studying nursing. She added that it would be very dangerous if she went back with her baby.

127.   The applicant’s representative sought to clarify whether the applicant had listed any address in Gweru, where she had claimed to live with her former husband, on her application form. The Tribunal and the representative examined the form and noted that no mention of the applicant having lived in Gweru was made on the form. When asked why she had not listed this period of her life in Gweru on her application form, the applicant responded that she had forgotten ‘about that one’.

128.   The Tribunal agreed with the applicant and the representative that it would allow them until 25 October 2022 to provide the Tribunal with a statement from the intended witness and any other submissions on behalf of the applicant.

Post Hearing Submissions

129.   In a submission emailed to the Tribunal on 25 October 2022, the applicant’s representative restated the applicant’s claims for protection, provided a summary of his own interpretation of the applicant’s evidence at the Tribunal hearing and provided arguments in support of the applicant’s claims. He also attached court documents related to a case that the witness, [Mr A], was involved with in Zimbabwe. There is no indication that this court case has any direct association with the applicant or her claims.

130.   The representative also argued that if the applicant was forced to return to Zimbabwe it would breach the rights of her infant daughter, who is an Australian citizen. 

131.   The representative stated in this submission that the applicant had now provided her marriage certificate for her previous marriage in Zimbabwe. However, a perusal of Tribunal files indicates that no such marriage certificate has been provided.

132.   The witness, [Mr A], provided a written statement to the Tribunal dated 24 October 2022. [Mr A] indicated that he may not have been contactable on the day of the hearing because of telephone issues experienced by himself and his office. He made it clear that he had never represented the applicant and ‘in fact she is not known to me’. He only became aware of applicant’s claims for protection from her representative, who [Mr A] had known since 1982. He further claimed he had been asked to provide what he termed expert evidence in relation to the persecution of members of the MDC, the opposition party in Zimbabwe.

133.   [Mr A] outlined his extensive experience defending people who had been persecuted in Zimbabwe for their political beliefs. He stated that he had read the applicant’s claims and believed that they were entirely plausible and consistent with independent reports about the treatment of MDC members in Zimbabwe. He also stated that he believed that the letter provided to the Tribunal by [Mr F] is genuine.

134.   The witness also provided copies of various court documents relating to matter where had taken legal action against the authorities in Zimbabwe after he had been wrongfully arrested.

FINDINGS AND REASONS

135.   For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

136.   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 her claims accordingly.

137.   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.

138.   The applicant has claimed that she and her family have been long-term members of the Movement for Democratic Change (MDC), which has been the most prominent opposition party in Zimbabwe since the 1990s. She has claimed that due to their membership of the MDC, she and her family have experienced harm in the past in Zimbabwe from political opponents who are members of the governing Zanu-PF political party and from the authorities in Zimbabwe, who are closely aligned with the governing party. The applicant has claimed that if she returned to Zimbabwe now or in the reasonably foreseeable future, she fears harm from both Zanu-PF party members and from the authorities in Zimbabwe for her and her family’s actual and imputed political opinion as members and supporters of the MDC or any of its factional offshoots.

139.   When considering the applicant’s claims, the Tribunal is aware that the MDC has split into rival factions over recent years[1], however the Tribunal considers that members or supporters of these rival faction would be viewed equally by both Zanu-PF supporters and the authorities in Zimbabwe as holding a political opinion opposed to the current Zanu-PF government in Zimbabwe[2].

[1] DFAT Country Information Report Zimbabwe, 19 December 2019, pp 26-28.

[2] Ibid, p 28.

140.   Over time, the applicant has provided inconsistent and contradictory evidence in relation to many aspects of her life in Zimbabwe, her membership of the MDC and the harm that she and her family have experienced as a result of their claimed association with the MDC.

Harm to family members arising from the 2018 Zimbabwe elections

141.   In her protection visa application form and at an interview with the delegate on 18 July 2019, the applicant clearly stated that around the period of the July 2018 election in Zimbabwe, which occurred just after she had arrived in Australia, her family members had been targeted by Zanu-PF supporters because of their support for the MDC, that two of her siblings had been abducted by Zanu-PF forces or had gone unaccountably missing and that two of her other siblings had fled to [Country 2] in fear of their lives. The applicant further suggested that the events that occurred to her family members around the time of the July 2018 election were prime motivating factors that led her to apply for protection in Australia.

142.   However, at the Tribunal hearing on 11 October 2022, the applicant clearly stated on three separate occasions that none of her family members had experienced any problems whatsoever in the lead up to, during or in the aftermath of the 2018 election in Zimbabwe. She further indicated that other MDC members, who were not related to her, had experienced problems at the time.

143.   When the applicant was asked at the hearing to explain the contradictory nature of this evidence over time about any harm experienced by her family members around the time of the 2018 election, she responded that she had claimed on her form that two of her siblings had gone to [Country 2] because it was not safe in Zimbabwe. But when asked why she had not mentioned this claim earlier in the hearing but had instead claimed that her family had experienced no problems around the time of the 2018 election, the applicant expressed alarm and then stated that she thought she had mentioned these issues as so many things had happened during the 2018 election period.

144.   The Tribunal does not consider that these responses by the applicant at the hearing provide an adequate explanation as to the why she made such contradictory claims over time about her family’s experiences around the time of 2018 election. The applicant was provided with three opportunities at the hearing to outline any problems that her family may have suffered around the time of this election and on each occasion, she clearly stated that they had not suffered any problems. She raised no claims about any problems that any of her siblings may have had despite having the opportunity to do so.

145.   Given the contradictory nature of her claims over time about what problems her family members had suffered around the period of the 2018 election in Zimbabwe, the Tribunal finds that the applicant has not been a witness of truth in relation to these claims and that her evidence in this regard lacks credibility.

146.   The Tribunal has considered whether the applicant’s family members were harmed in the period around the 2018 elections on the basis of the third-party documents provided to the Tribunal.

147.   An undated [social media] message exchange between the applicant and [Name 1, different surname] expresses [her] sorrow at what happened to the applicant’s family and warns the applicant not to return to Zimbabwe. However, it is not stated in the message what actually happened to the applicant’s family, when it happened, who may have caused harm to the family, the reasons why such harm may have been inflicted or why it is unsafe for the applicant to return to Zimbabwe. Accordingly, the Tribunal has placed no weight on this message exchange when considering whether the applicant’s family members were harmed in the period around the 2018 elections.

148.   The emails from the applicant’s brother to the applicant in September 2018 similarly warn the applicant not to return home, express safety fears for the applicant’s siblings, express concerns for the family in Zimbabwe, indicate that the applicant’s siblings are seeking protection and employment in [Country 2] and also state that they hear bad things about Zimbabwe every day. However, these emails do not indicate why they are concerned for their safety and do not make any reference to the 2018 elections or any political motivations behind the fears of the email writer. Accordingly, the Tribunal has placed no weight on these emails when considering whether the applicant’s family members were harmed in the period around the 2018 elections.

149.   The undated letter from [Mr F] states that two of the applicant’s brothers had to flee to [Country 2] in August 2018 as a result of post-election violence in Zimbabwe. However, the writer does not state how he knows that this is the case and in addition, his claim that two brothers had to flee to [Country 2] is inconsistent with the applicant’s own claims in her application form that it was her sister and her brother who had fled to [Country 2]. Accordingly, the Tribunal has placed no weight on this letter when considering whether the applicant’s family members were harmed in the period around the 2018 elections

150.   Accordingly, based on the finding that the applicant was not a witness of truth in this matter and given that the Tribunal has not placed any weight on these third-party documents submitted by the applicant, the Tribunal finds that the applicant’s family members did not suffer any problems or issues whatsoever around the period of the 2018 election in Zimbabwe. This includes any claims that some of her siblings were abducted or went missing and any claims that some of her siblings were forced to flee to [Country 2].

Intentions of applicant when arriving in Australia

151.   In her application for protection the applicant claimed that she had come to Australia for a vacation but had been motivated to apply for protection after her family members had experienced problems around the time of the 2018 election in Zimbabwe. However, at the Tribunal hearing the applicant clearly stated that she had already suffered problems in the past in Zimbabwe, that she felt unsafe when she returned to Zimbabwe around April 2018 after she had completed work [and] that it was her intention upon arrival in Australia to find a way to remain here on a permanent visa.

152.   The Tribunal has considered the applicant’s response at the hearing when asked to explain the inconsistency between these two claims over time, which was that she had been abducted and threatened by Zanu-PF supporters and that fear was with her when she came to Australia. However, the Tribunal does not consider that this is an adequate explanation for the inconsistency because if this was the case, as claimed, then the applicant was in a position to state this in her application form but did not do so.

153.   Based on the inconsistencies over time about her intentions when arriving in Australia, the Tribunal finds that the applicant has not been a witness of truth in relation to these claims and that her evidence in this regard lacks credibility. On the basis of this finding, the Tribunal also finds that the applicant did not fear harm from political opponents when she arrived in Australia.

Where applicant was residing before she came to Australia

154.   The applicant has provided inconsistent and contradictory evidence over time about where she was living in the period between the last time she [worked], around April 2018, and her arrival in Australia. In her application form, where asked to list all countries she had travelled to over the past 30 years, the applicant stated that she had visited [Country 2] from [ May] 2018 to [July] 2018 and stated that the reason for the visit was ‘visiting’. In another section of the form, where she was asked to list all residential addresses where she had lived in the last 20 years, the applicant stated that she had lived at an address in [Country 2] from April 2018 until July 2018. In both responses, she clearly indicated that she had been living in [Country 2] for several months prior to coming to Australia.

155.   However, at the Tribunal hearing, the applicant stated that she had lived in Zimbabwe from the time she had completed her work [around] April 2018 until just before departing to come to Australia in July 2018. She claimed that she was living with her parents in the rural part of [Area 1] but did not feel safe so she would not stay in one place for too long. She stated that she departed Zimbabwe on 20 July 2018 to go to [Country 2], where she collected her Australian visa and then departed for Australia on 23 or 24 July. Later in the hearing, the applicant again confirmed that she had lived in Zimbabwe from April 2018 until July 2018, when she went to [Country 2] so that she could travel from there to Australia.

156.   When asked at the hearing to explain the inconsistent and contradictory evidence over time about where she had lived from April 2018 to July 2018, the applicant offered a third version of her circumstances at the time by stating that she had travelled between Zimbabwe and [Country 2] in those months because she felt unsafe in Zimbabwe and added that she was ‘in and out’ of the two countries. The Tribunal does not accept this explanation for the inconsistent and contradictory evidence about where she was living during this period of time because as was pointed out to the applicant at the hearing, it was open to the applicant to provide this response when first asked at the hearing where she had been living at the time. The Tribunal would expect that the applicant would be able to provide consistent evidence about the basic fact circumstances of her life, including whether she had lived in Zimbabwe or in [Country 2] or if she had travelled between the two countries at the time.

157.   Based on the inconsistent and contradictory evidence from the applicant over time about where she had lived between April 2018 and July 2018, the Tribunal finds that the applicant has not been a witness of truth in relation to these claims and that her evidence in this regard lacks credibility. On the basis of this finding, the Tribunal also finds that the applicant did not feel unsafe or threatened by political opponents when she returned to Zimbabwe in April 2018 and that she did not move from place to place or between [Country 2] and Zimbabwe at that time because of any fear of harm from political opponents.

New claims pursuant to s 423A of the Act

158.   In a submission made to the Tribunal on 23 September 2022 by the representative on behalf of the applicant there were a series of claims that the applicant and her family had experienced ongoing harassment from Zanu-PF members and supporters over the years in Zimbabwe because of their support for the MDC. Specifically, it was claimed in this submission that the applicant’s family home in the urban area of [Area 1], outside Harare, had been burnt down by Zanu-PF supporters around 2013 and that the applicant had been arrested and detained by Zanu-PF supporters and local police in 2015 along with other MDC activists after they had attended an MDC rally. The applicant confirmed and expanded on these claims at the Tribunal hearing.

159.   However, the applicant did not make any such claims about her family home being burnt down by Zanu-PF supporters around 2013 or that she had been arrested and detained by Zanu-PF supporters and local police in 2015 in her application for protection, in the interview with the delegate on 18 July 2019 or at any time before the delegate made a decision to refuse to grant her a protection visa on 11 September 2019.

160.   Although the applicant did provide the Department with a copy of a [social media] message from a friend called [Name 1] stating that the applicant’s house has been ‘burnt’, the message was provided in the context of the applicant’s claims about what had occurred to her family in the aftermath of the 2018 elections in Zimbabwe and the message did not indicate when the house was allegedly ‘burnt’. Moreover, the applicant herself did not advance any claim that her house had been burnt down prior to the delegate’s decision dated 11 September 2019 and specifically did not make any claim that this house had been burnt down in 2013. Accordingly, the Tribunal does not accept that the [social media] message provided to the Department enlivened any claim at that time that the applicant’s family home had been burnt down in 2013 and the Tribunal finds that no such claim was made at any time prior to the delegate’s decision dated 11 September 2019.

161.   As was pointed out to the applicant at the hearing, because she had not made these claims about her family home allegedly been burnt down in 2013 or about her alleged arrest and detention in 2015 prior to the delegate making a decision in her matter, the Tribunal was bound pursuant to s 423A of the Act to draw an inference adverse to the credibility of her claims if it was satisfied that she did not have a reasonable explanation for failing to raise these claims before the delegate made a decision in her case.

162.   The explanation offered by the applicant for failure to raise these claims at any time before they were first raised in the submission made on 23 September 2022 was that she had not been directly asked about these matters by the delegate at the interview. However, the applicant agreed with the Tribunal that she had the opportunity to raise these matters herself at the interview. She also stated to the Tribunal that she believed she had stated these incidents in her protection visa application form and when it was pointed out to her that she had not done so, she expressed surprise but offered no other explanation.

163.   The Tribunal does not consider that the explanations offered are reasonable in the circumstances. It is not up to a delegate or the Tribunal to make the applicant’s case for them and the applicant had every opportunity to state her case fully, including raising these particular issues, in both her application form and at the interview. It was her choice not to do so. Accordingly, the Tribunal finds that it is satisfied that the applicant does not have a reasonable explanation for not raising these issues at any time before the delegate made a decision in her matter.

164.   Before proceeding to make any finding relating to the credibility of the applicant’s evidence on these incidents that have been claimed to have occurred around 2013 and 2015, the Tribunal has considered third party documents and statements that may support the claims that these incidents did occur as claimed.

165.   The undated letter from [Mr F] claims that the applicant’s family had been displaced from their home due to their support for the MDC and had relocated to their rural home due to death threats from security agents. However, the letter writer does not state how he knows these facts to be true, does not state when these events occurred and does not state that the family home was burnt down as claimed by the applicant. The claim in the letter that the family relocated to their rural home due to death threats from security agents is inconsistent with the applicant’s own claim at the hearing that the family relocated because they were warned by fellow MDC members that Zanu-PF members had threatened to burn their house down. In addition, the letter makes a vague reference to the claimed arrest and detention of the applicant but does not state when this event took place, where it took place or how the writer has personal knowledge that the event took place as claimed. Accordingly, the Tribunal has placed no weight on the contents of this letter when making findings on the claimed incidents that were not raised prior to the delegate’s decision in this matter.

166.   The police report about an incident that occurred [in] March 2013 states that the matter is not yet finalised because of the political nature of the case and adds that the accused are members of the ruling party. The report does not mention the nature of the matter that was reported at the time and, despite suggesting that the accused are members of the ruling party, it makes no reference whatsoever to any political affiliation or link of any of the victims, including the applicant. Accordingly, the Tribunal has placed no weight on the contents of this report when making findings on the claimed incidents that were not raised prior to the delegate’s decision in this matter.

167.   The undated screenshots of a [social media] message exchange between the applicant and [Name 1, different surname] include a comment from [Name 1, different surname] that the applicant’s parents’ home had been burnt down. However, [Name 1, different surname] does not state how she knows this information to be correct or when this incident took place and as discussed with the applicant at the hearing, it is unclear from the message exchange whether [this person] is referring to historical events or events around the time of the 2018 elections. Accordingly, the Tribunal has placed no weight on the contents of this message exchange when making findings on the claimed incidents that were not raised prior to the delegate’s decision in this matter.

168.   Based on all of the above, and having been satisfied that the applicant does not have a reasonable explanation for not raising these issues at any time before the delegate made a decision in her matter, the Tribunal finds that the applicant has not been a witness of truth in relation to the series of claims that the applicant and her family had experienced ongoing harassment from Zanu-PF members and supporters over the years in Zimbabwe because of their support for the MDC, that the family home in the urban area of [Area 1], outside Harare, had been burnt down by Zanu-PF supporters around 2013 and that the applicant had been arrested and detained by Zanu-PF supporters and local police in 2015 along with other MDC activists after they had attended an MDC rally. The Tribunal further finds that the applicant’s evidence in relation to these claims lacks credibility and that these events did not occur as claimed.

Membership of the Movement for Democratic Change

169.   The applicant has claimed that she, and her other family members, have been members of the MDC since 1999 and have been active since that time in supporting the MDC in fundraising and canvassing support for MDC candidates in Zimbabwe.

170.   At both the interview with the delegate and at the Tribunal hearing, the applicant provided some background about the MDC, its formation, its policies and why she chose to join this party. She was also able to identify that the MDC had split into various factions and although she did not know the full name of the faction she claimed to be supporting, she was able to identify the faction by its initials and by reference to the name of the leader of the faction. The Tribunal has placed some weight on this information in favour of the applicant’s claims when assessing whether the applicant and her family are members and supporters of the MDC.

171.   The applicant has stated that she had provided financial support to the MDC, including since she has been in Australia. However, at the hearing, she provided vague and undetailed evidence about the level and extent of this financial support indicating variously that she had either paid $20 or $30 in 2020 and had also made some cash donations. She also claimed that she had paid around $50 in total, including cash payments but offered no explanation as to how she could make cash donations in Australia to a political party in Zimbabwe. She later stated that she had a receipt for a $30 donation in 2020 but had no receipts for any cash payments. The Tribunal would expect that the applicant would have some detailed knowledge about the donations she had made to the MDC given that she made these donations in Australia and made them after she had claimed protection in Australia on the basis of her membership of the MDC. Given the vague and largely undetailed nature of this evidence about the donations to the MDC in these circumstances, the Tribunal has placed no weight on these claimed donations when assessing whether the applicant and her family are members and supporters of the MDC.

172.   The Tribunal has considered the receipt from a mobile phone dated 12 March 2020 indicating a $30 payment being transferred from Australia to the MDC. The receipt does not indicate who made this transfer and there is no evidence before the Tribunal to indicate that this transfer was made by the applicant. Accordingly, the Tribunal has placed no weight on this document when considering whether the applicant and her family are members and supporters of the MDC.

173.   The Tribunal has considered the MDC membership card numbered ID: [number]. This card is undated and does not bear any name of any member on it. Apart from providing the card, the applicant has provided no details as to how it came into her possession or how it can be used to identify her as the holder of this card. Accordingly, given there is no member name on this card, the Tribunal has placed no weight on it when considering whether the applicant and her family are members and supporters of the MDC.

174.   The Tribunal has considered the undated letter from [Mr F], which has previously been considered above. There are a number of significant inconsistencies between the claims made in the letter and the claims made over time by the applicant. The letter claims that the applicant has been a member of the MDC since 2008, which is inconsistent with the claims of the applicant who has stated that she has been an active member of the MDC since 1999. The letter states that the applicant’s family had to relocate to their rural home after receiving death threats from state security forces, which is inconsistent with the applicant’s own claims that her family relocated after being warned by fellow MDC members that their home would be attacked and burnt by Zanu-PF members. The letter claims that two of the applicant’s brothers had to flee to [Country 2] due to issues arising from the 2018 Zimbabwe election, which is inconsistent with the applicant’s own claims in her protection visa application where she claimed that it was her brother and her sister who had to relocate as a result of these issues.

175.   In this context, the Tribunal has considered the opinion expressed by [Mr A] in his written submission that the letter from [Mr F] is genuine. However, the Tribunal considers that the inconsistencies between the contents of [Mr F]’s letter and the applicant’s own claims far outweigh the opinion offered by [Mr A].

176.   The Tribunal would expect that if the writer, [Mr F], was providing a factual account of the applicant’s life story and claims for protection that this account would be consistent with the claims made by the applicant herself. Given these inconsistencies between the claims made by the letter writer and the claims made over time by the applicant herself, the Tribunal has given no weight to this letter when considering whether the applicant and her family are members and supporters of the MDC.

177.   The Tribunal has also considered the fact that the applicant chose to provide the Tribunal with a letter from [Mr F] that contained statements that were inconsistent in the ways outlined above with the applicant’s own claims. The Tribunal would expect that the applicant would check the claims made by any third party before she presented their letter to the Tribunal and would either ensure the claims were consistent with her claims or would provide some explanation as for the inconsistencies. Given that the applicant chose to provide this letter to the Tribunal despite these inconsistencies without any such explanation, the Tribunal finds that the provision of this letter further undermines the credibility of the applicant’s claims.

178.   The Tribunal has also considered the MDC membership card provided to the Tribunal bearing the applicant’s name. As discussed with the applicant at the hearing, the card provides room on it for a person’s payment of membership fees to be recorded on a monthly basis over a number of consecutive years. In the case of the card provided, it shows payment of monthly fees for 2009, 2010, 2011, 2012 and 2013. However, although not conclusively determined, it does appear that these payments may have been recorded on the same day using the same pen. The Tribunal accepts there may be good reasons why this may have occurred, including the fact that a person may choose to pay their membership fees in advance for long periods of time. The Tribunal has therefore not placed any adverse weight on the appearance that the membership fee payments may have been recorded in this way.

179.   The Tribunal does however have significant concerns with the inconsistent explanation that the applicant provided at the hearing as to how she came to be in possession of this membership card after her arrival in Australia. At the hearing, the applicant initially did not respond when asked how she managed to obtain a physical copy of the membership card after she came to Australia. She then stated that her sister had sent her this card together with a copy of the applicant’s marriage certificate. This clear statement indicated that both the membership card and the marriage certificate had been mailed to the applicant in one transaction. However, when asked why she had not produced this marriage certificate to the Tribunal, the applicant changed her evidence and stated that the marriage certificate had only been scanned and emailed to her, with the membership card and a letter from the MDC being mailed to her separately. She then added that she wanted the membership card and the letter from the MDC, so she asked her sister to mail it to her.

180.   The Tribunal would expect the applicant to be able to provide a clear and consistent explanation as to how she had received this card after her arrival in Australia from her own personal knowledge of this event. Therefore, the Tribunal finds the inconsistent explanation provided by the applicant to be unconvincing and lacking in credibility given that she at first provided no answer, then suggested the card was mailed to her by her sister together with her marriage certificate but then changed her evidence to suggest that the card was mailed to her separately from the marriage certificate. In particular, the Tribunal finds that the statement that the card was sent to her by her sister, which was given after the applicant had provided no initial explanation, was concocted by the applicant on the spot at the hearing to cover up her inability to initially provide an explanation and the later statement about receiving the card separately from the marriage certificate was an attempt to cover up the obvious failings in the previous statement given that she did not actually have a physical copy of this marriage certificate (which has never been provided to the Tribunal).

181.   The Tribunal accepts that the card provided is of the nature and type that may have been produced over time by the MDC and provided to members. However, given the inconsistent explanation from the applicant as to how she came into possession of the membership card after her arrival in Australia, on the evidence before it, the Tribunal does not accept that this card genuinely evidences that the applicant was ever a member of the MDC as claimed. The Tribunal therefore has placed no weight on this card when considering whether the applicant and her family are members of the MDC as claimed.

182.   In assessing the applicant’s claims to be an MDC member and supporter the Tribunal has also considered the opinion expressed by [Mr A] in his written submission that the applicant’s claims are entirely plausible and consistent with independent reports about the treatment of MDC members in Zimbabwe. However, [Mr A] also clearly stated in his submission that he did not know the applicant personally and was not personally aware of her individual claims or circumstances. Given his history in defending MDC members, the Tribunal has placed some weight on this opinion from [Mr A].

183.   On balance, having considered the evidence before it, the Tribunal finds the fact that the applicant was prepared to provide the Tribunal with a document (being the letter from  [Mr F]) which made claims inconsistent with the applicant’s own claims over time without explanation for these inconsistencies far outweighs the evidence the applicant provided over time as to her knowledge about the MDC and the opinion of [Mr A] that the applicant’s claims and plausible and consistent with reports about the treatment of MDC members in Zimbabwe. Accordingly, the Tribunal finds that the applicant and her family have never been members or supporters of the MDC or any of its factional offshoots as claimed and that they never attended any rallies or other events in support of the MDC as claimed.

Findings on Refugee grounds

184.   The Tribunal has found that the applicant and her family have never been members or supporters of the MDC or any of its factional offshoots as claimed, that they never attended any rallies or other events in support of the MDC as claimed, that her family members did not suffer any problems or issues arising from the 2018 election in Zimbabwe, that she did not fear harm from political opponents when she arrived in Australia, that she applicant did not feel unsafe or threatened by political opponents when she returned to Zimbabwe in April 2018 and that she did not move from place to place or between [Country 2] and Zimbabwe at that time because of any fear of harm from political opponents. The Tribunal has also found that the applicant and her family never suffered any of the claimed ongoing harassment and harm from political opponents including general claims of ongoing harassment and threats, and more specific claims about the family home being burnt by political opponents in 2013 and that the applicant was arrested and detained following an MDC rally in 2015.

185.   Based on these findings, and on the evidence before it, the Tribunal finds that the applicant never suffered any harm in the past in Zimbabwe because of her membership and support of the MDC or any of its factional offshoots, or because of her family’s membership and support of the MDC or any of its factional offshoots as claimed.

186.   The applicant has claimed that if she returns to Zimbabwe now or in the reasonably foreseeable future, she fears harm from political opponents in the ruling Zanu-PF party and from local authorities who are affiliated and aligned with the ruling party because she and her family are known members and supporters of the opposition MDC party and its factional offshoots.

187.   However, the Tribunal has found that the applicant and her family have never been members or supporters of the MDC or any of its factional offshoots and that the applicant has never suffered any harm in the past in Zimbabwe for this reason. Accordingly, the Tribunal is not satisfied that if applicant returned to Zimbabwe now or in the reasonably foreseeable future there is a real chance that she would face any harm for reasons of her or her family’s claimed membership and support of the MDC or any of its factional offshoots.

188.   The applicant has also made a vague claim that the mere possession of an MDC membership card could cause her problems in Zimbabwe. The Tribunal accepts that the applicant is in possession of such card in Australia, However, having found that the applicant is not and has not been a member of the MDC as claimed, the Tribunal further finds that the applicant can discard this card prior to her return to Zimbabwe and therefore avoid any consequences that may arise from possession of such card.

189.   Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

190.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary Protection

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

192.   The Tribunal has already found that the applicant would not face any harm on return to Zimbabwe for reasons of her or her family’s claimed membership and support of the MDC or any of its factional offshoots.

193.   The applicant has made a vague claim that as her older brother, [Mr B], has passed away since she departed Zimbabwe she would have no family or social network if she returned to Zimbabwe. However, she provided clear evidence at the Tribunal hearing that her parents were still alive and living in Zimbabwe. Accordingly, on the evidence before it, the Tribunal finds that the death of the applicant’s older brother would not deny her the existence of a family or social network in Zimbabwe.

194.   The applicant has not made any other claims of fearing any harm on return to Zimbabwe for any other reason and no other claims arise from the facts before the Tribunal.

195.   Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if she were to return to Zimbabwe. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Conclusion

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

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

198.   Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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