2006025 (Refugee)

2006025 (Refugee) [2024] AATA 4194 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Zachary Bright
CASE NUMBER: 2006025

COUNTRY OF REFERENCE: Zimbabwe
MEMBER:Alexander Reilly
DATE:9 September 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2024 at 3:15pm

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – Movement for Democratic Change (MDC) member – murder of the applicant’s husband – physical assault – fear of killing – attack on home – loss of domicile status – state protection – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 417, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Zimbabwe applied for the visa on 13 July 2017. The delegate refused to grant the visa on the basis that the delegate found that the applicant’s low level of involvement with the MDC and her personal circumstances meant that she did not face a real chance of persecution in Zimbabwe for reason of her political opinion.
The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The hearing was conducted in English. The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicant travelled to Australia on an apparently genuine Zimbabwean passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Zimbabwe and she has been assessed on that basis by the Department. The Tribunal finds the applicant is a citizen of Zimbabwe and has assessed her claims against Zimbabwe as her country of nationality and the receiving country.
The applicant’s personal background
The applicant was born in [Town 1], Zimbabwe, on [date]. She was married in [specified year] and lived with her husband in Harare from that time.
The applicant has [specified children] from her marriage. Two sons live in Australia. [One] son is an Australian citizen. [Another] son is [on] a permanent resident visa. Her [other child] lives in [Country 1] with [their family]. She has only irregular contact with this [child].
The applicant’s husband died from injuries sustained from an assault allegedly at the hands of government supporters in 2007. The applicant was also assaulted at this time. After her husband died, the applicant travelled to [Country 1] and lived there until sometime in 2009 when she returned to Zimbabwe. [In] October 2009, soon after returning to Zimbabwe, the applicant travelled to Australia to visit her son who was graduating from a degree at [a named] University.
The applicant returned to Zimbabwe in January 2010 and lived their until [July] 2016 when she again visited Australia. The applicant returned to Zimbabwe [in] October 2016 and lived their until she returned to Australia [in] May 2017 and applied for a Protection visa.
The applicant has no contact with family in Zimbabwe. Her parents and her [siblings] are deceased. She does not have contact with any other relatives or friends in Zimbabwe.
Applicants claims for protection
Claims in original application
A lawyer assisted the applicant to complete her original application which was lodged on 13 July 2017. She made the following claims:
The Applicant left Zimbabwe as she had received threats against her life and her home had been targeted for vandalism. The Applicant is a member of the Movement for Democratic Change (MDC) in Zimbabwe. The Applicant's husband died in 2007 as a result of injuries sustained during an attack by the Zimbabwean government party of ZANU PF, which is a rival political party to the MDC.
In October 2016 the applicant received threats of violence and death of her home and mobile phone voicemail. The content of these messages was that she was a traitor to Zimbabwe and that she would be harmed and killed as she was a traitor.
In May 2017 the Applicant returned home from an MDC to find her home vandalised. She had been advised that members of the ZANU PF had been targeting the homes of members of the MDC. The Applicant called the police, but no police came. The Applicant was fearful of the increases in violence in Zimbabwe, and that she would subject to further violence and possibly be killed.
The Applicant then immediately left her home city of Harare, and made arrangements to leave the country immediately. The Applicant only has one family member outside of Zimbabwe, her son [Son A], who lives in Melbourne, and as a result, the Applicant fled to Australia and to safety.
In her application, the Applicant stated that she was fearful that she will be injured or killed if she was returns to Zimbabwe. The applicant was concerned that, in the lead up to the 2018 elections in Zimbabwe, members of the Movement for Democratic Change (MDC) would be persecuted in order to keep the ZANU-PF in power. The applicant feared that she would be killed, as her husband was, if the ZANU-PF wanted to keep the MDC quiet.
The Applicant stated that the authorities could not protect her if she returned because the ruling party controlled the authorities. The Applicant called the police when her home was vandalised, and no police came. The Applicant believed that even if the police wanted to assist her and protect her, that they would not be able to act against ZANU-PF members who are persecuting MDC members.
Claims before the delegate
Before the delegate, the applicant repeated her claims, but with some variations. The applicant stated that in October 2016, members of ZANU-PF youth walked down the street shouting and screaming at her, calling out that they were ‘going to get her and she would be soon following her husband’. She also mentioned the that she had received threatening phone calls but could not remember how many phone calls or what was said. When asked how people could have obtained her telephone number she said to the delegate that she ‘didn’t know everyone who attended the MDC meetings therefore some of the attendees could have been ZANU-PF people pretending to be MDC.’
The applicant repeated her claim that her house was vandalised in May 2017 after she had attended an MDC rally in [Town 2]. She stated that the rally was going to be a ‘peaceful demonstration’ and she wanted to go along.
Claims before the Tribunal
Prior to the hearing, the applicant submitted a Statutory Declaration dated 26 August 2024. In the Statutory Declaration she stated that she became a member of the Movement for Democratic Change (MDC) in 2004, joining her husband who was already a member. Her husband was a significant member of the MDC. She attended meetings with her husband and would ‘usually just sit and listen and sometimes vote for positions like party secretaries, treasurers and other party leadership positions’. She attended rallies with her husband in the lead up to the 2008 election, and distributed flyers in voters’ letterboxes.
Late in 2007, the applicant and her husband were attacked in their home. They were both beaten. The applicant’s husband died [in] January 2008 of [specified] injuries. A Death Certificate with this information was sighted by an earlier Tribunal determining the Protection visa application of the applicant’s son. The applicant did not report the death of her husband to the police as village elders were responsible for the protocols around death.
A week after her husband passed away, the applicant [travelled] form Harare, Zimbabwe to [Country 1]. She lived there until the middle of 2009. She then returned to live in Zimbabwe which she described as being in a relative state of calm under a unity government. She lived in Zimbabwe peacefully until she travelled to Australia in October 2009 to attend her [son’s] university graduation.
The applicant returned to Zimbabwe in January 2010. She lived without incident from January 2010 to July 2016. She had a job during this time and lived in the family house in Harare (the same residence in which she and her husband were attacked in 2007). During this period, the applicant was not an active member of the MDC.
In late July 2016, the applicant visited Australia, returning to Zimbabwe [in] October 2016. The applicant said that soon after her return, she ‘started receiving threatening phone calls and voicemail messages’. These messages were sent to her mobile phone number. In her statement she said she ‘received these calls once or twice a day, and sometimes I would not receive calls for a couple of weeks before they would start again’. In her evidence at the hearing, the applicant said that she received about two calls a week for about two weeks.
The Tribunal asked the applicant whether she thought to record the threats on her mobile phone. The applicant said she lost the mobile phone she had at that time. She said it was stolen. She lost the phone in December 2016. Someone took it from a place where it was charging in a crowded location.
The Tribunal put to the applicant that she had made a claim to the delegate about youths making threats to her from the street. She said that was a mistake. She said the reference to the youths must have been related to when she was returning to her house after the rally in [Town 2].
The applicant went to the police after the applicant received three threatening phone calls. The police said to wait and see if they would call again. The applicant believed the police knew what was happening and would not assist her.
In about November 2016, soon after she began receiving the threatening phone calls, the applicant attended a meeting of the MDC in [Town 2] where they elected a treasurer and a secretary for this branch of the party. The applicant clarified that the ‘rally’ referred to in her statement was actually this meeting. In answer to direct questions from the Tribunal, the applicant provided the following further details: There were about 400 people at the meeting. The meeting was held in the hall of a building. All attendees were seated. The meeting was to arrange for the planning for the upcoming elections in 2018. They were voting for treasurer and secretary. They told people through announcements what they wanted to convey. No materials were handed out.
After the meeting, the applicant did not go back to her house. The applicant got into a commuter bus and travelled to her mother’s place in the village. She had only her handbag with her papers and identity documents. She did not go back to the house to collect her belongings.
The Tribunal asked why she had her passport with her. She said that she was planning to send a photocopy of her [Qualification 1] to a [prospective employer]. She had her passport with her as a form of identification. She said she would regularly carry her passport for purposes of identification.
The applicant’s mother went to the house that had been vandalised the following day to collect the applicant’s clothes and check on the house. The applicant’s mother found the house to be ‘upside down, everything was everywhere’. The applicant did not know what they were looking for. The applicant’s mother reported the ransacking of the applicant’s house to the police. She did not hear anything from the police.
The applicant stayed with her mother for about two weeks, and started looking for somewhere to rent because she did not want to go stay in her mother’s village. She did not have a stable home in this period. She travelled back and forth. She found a place to rent on the other side of Harare from the house that had been vandalised. The applicant moved to a second rental place before coming to Australia in May 2017. She did not want to stay in one place. She did not want them to know where she was.
The Tribunal asked the applicant why she did not travel to Australia immediately after her house had been vandalised. The applicant stated that at the time she thought maybe she could ‘find somewhere to rent, to settle there and stay in the country’.
The Tribunal put to the applicant that it seemed contradictory that on the one hand she was prepared to rent a place and try to settle in Harare, and did not think to simply travel to Australia, but on the other hand she needed to move to a second rental because she was scared that the people threatening to kill her would find her. The applicant responded that she planned to come to Australia using her valid visa, but she ‘wanted to see the situation’ before travelling to Australia.
The Tribunal asked the applicant why she attended the MDC meeting after she had received phone calls and voice messages with threats to kill her. The applicant said she was scared, but she did not know the calls would continue, and she did not know that they were monitoring her going to meetings or wearing her t-shirt for the party. She said that they also thought the country was OK. She said, ‘It was confusing.’ It was when the lady intercepted her on the way home from the meeting and said that there were people at her house that she became very scared and immediately travelled to her mother’s village.
The Tribunal asked if the applicant has been politically active since she arrived in Australia in May 2017. She replied that she has not. She has no online media presence. The Tribunal asked whether the applicant had received any threats from ZANU-PF since being in Australia. The applicant stated that she had not. She said that she cut off communication in order to start a new life in Australia.
The Tribunal asked the applicant why she thought ZANU-PF would still be interested in her after she had been in Australia for 7 years. The applicant stated that they could still recognise her. ‘You might bump into someone. And someone will tell someone. And they will end up knowing you. Especially when you are coming from overseas. They think you are influencing other people.’
The Tribunal asked who could possibly know who she was. She said it could be someone she knew from the past, who would pass on information.
The Tribunal asked why, even if she was recognised, ZANU-PF would still be interested in causing her harm given that she had had no involvement with MDC for over 7 years, and in fact had only limited involvement with MDC since 2007, at least 16 years earlier. The applicant said that they will still have an interest in you, especially when you have been away from Zimbabwe for a long time.
The Tribunal put to the applicant that there are millions of supporters of MDC, given it is the main opposition party, so why would they be interested in the applicant. The applicant said that in her local community there might be people who knew what you had been doing, and they will carry it forward. The applicant said that she feared they might attack her as they attacked her husband.
The Tribunal asked where the applicant would live in Zimbabwe if she was required to return to Zimbabwe. The applicant said she did not know where she would go. The Tribunal asked the applicant whether she could go back to her mother’s hometown, but the applicant said she has no connections there. The applicant knows a few areas to visit for holiday in Zimbabwe but has no other connection to places. The applicant said that it was just as dangerous to live in Zimbabwe as it was when she left. The MDC is now the CCC (Citizens Coalition for Change).
The Tribunal put to the applicant and the applicant’s representative that country information suggested that the political climate leading up to the 2018 elections was ‘markedly improved’ and also that those who faced threats and violence from ZANU-PF supporters were those who were actively involved in campaigning, and that for other supporters, there was only a ‘moderate risk of official discrimination’.
The applicant said that she is still scared from her past experiences. She thinks she will be confused if she goes back. She will not be settled. The applicant said that if they are threatening you, there is a risk. ‘They haven’t finished with you if they are threatening you’.
The applicant concluded her evidence by saying that she was an active member of the MDC, and that there were also active ZANU-PF members in her community. The applicant did not know the identity of the people who attacked her or her husband. She stated it was likely to be people from the local community and from elsewhere. The presence of the ZANU-PF members means she does not know where she could go back and be safe. ‘They will just do what they want.’
Submission of the applicant’s representative
The representative of the applicant emphasised that the applicant’s husband had a profile as a supporter of the opposition party to the ZANU-PF, and he lost his life at the hands of people from ZANU-PF, and some of them might have been locals. He submitted that if the Tribunal found that the events of 2016 and 2017 occurred, the applicant is still at genuine risk of serious harm.
The representative pointed to country information that indicates the ruling party still persecutes those in the opposition. Police still support ZANU-PF.
Finally, the representative submitted that the applicant cannot move to another part of Zimbabwe. She has no connections elsewhere in Zimbabwe and nowhere else to go.
Assessment of the applicant’s evidence
The Tribunal accepts that the applicant and her husband were members of the MDC. The Tribunal accepts that the applicant attended rallies with her husband up to the lead up of the 2008 election and that she distributed flyers to the letterboxes of voters. The Tribunal accepts that in late 2007 the applicant and her husband were assaulted by unknown people in their home who are likely to have been ZANU-PF supporters, and that the applicant’s husband died from his injuries as a result of that assault [in] January 2008. The only evidence of these events is the unsupported evidence of the applicant. However, the Tribunal notes that in the Protection visa application of the applicant’s son, the Tribunal accepted that the applicant’s husband had been assaulted as a result of his support for the MDC. The Tribunal notes that the Zimbabwe African National Union-Patriotic Front (ZANU-PF) is the dominant political party in Zimbabwe, and that the party has maintained a strong grip on power through suppression of political opposition.[1] Country information indicates that there was a high level of political unrest, including violent assaults on supporters of the main opposition party, the MDC, in 2007 and 2008.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Zimbabwe 19 December 2019, [2.45-2.46].
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Zimbabwe 19 December 2019, [2.49].

The Tribunal finds that the applicant left Zimbabwe to live in [Country 1] until the middle of 2009, when she returned to Zimbabwe because at that time things were quiet and people were happier. The Tribunal finds that the applicant travelled to Australia from [October] 2009 to [January] 2010, and that she then lived without incident in the family house, where she and her husband had been assaulted in 2007, from [January] 2010 until [July] 2016 when she again travelled to Australia. During this period, the applicant did not participate in MDC events or any other form of political activity. The Tribunal finds that the applicant then travelled to Australia between [July] 2016 and [October] 2016, and that she returned to live in the same family house in Harare on her return.
The Tribunal does not accept that the applicant received calls on her mobile phone from unidentified people threatening to kill her in October and November 2016. The Tribunal does not accept that the applicant attended an MDC meeting in November 2016. The Tribunal does not accept that the applicant was warned by a neighbour not to return to her house because it was being vandalised, and that she instead caught the bus to her mother’s home village of [Town 1].
There are several reasons why the Tribunal does not accept that these events occurred.
In relation to the threats on her telephone, the Tribunal considers that it is inherently implausible that the applicant should live peaceably in her family home from January 2010 to October 2016 without any incident, and that soon after she returned from Australia in October 2016, she would start receiving threats to her life that were related to her and her husband’s association with the MDC 9 years earlier in 2007.
The only explanation articulated for this renewed interest in the applicant as an MDC supporter is the fact that in late 2016, political parties were beginning to prepare for the elections which were to be held in July 2018. Even if there was a heightening of political action at this time, there seems no plausible reason why ZANU-PF supporters would want to target the applicant who, at that time, had not been actively involved in the MDC for over 9 years. Furthermore, the DFAT Country information Report Zimbabwe 2019 (DFAT Report) states that
There was a markedly improved pre-election climate [in 2018] in contrast to previous elections, with all parties generally able to campaign freely …. Actual pre-election violence was rare, although local NGOs did report some cases in which ZANU-PF youth members and war veterans threatened communities with violence if ZANU-PF candidates were defeated.
In relation to the rally, there were significant inconsistencies in the applicant’s account of when the rally/meeting in [Town 2] occurred. In her original application and before the delegate, the applicant described attending a rally in [Town 2] in May 2017, returning to find her home vandalised, and then immediately making arrangements to travel to Australia [in] May 2017. In her Statutory Declaration of 26 August 2024 and in her evidence to the Tribunal on 3 September 2024, the applicant described attending a meeting in [Town 2] in November 2016, returning from the meeting to be warned not to go home because her house was being vandalised, and catching the bus to her mother’s house. She gave evidence that she then lived in Harare in two rental properties over the next five or six months before travelling to Australia [in] May 2017.
In raising these inconsistencies, the Tribunal is aware that review applicants cannot be expected to be completely consistent in their recall of events given the passage of time since the events occurred, the foreign environment in which they are required to provide their evidence, and the stress they may experience in recalling traumatic events from the past.
The Tribunal nonetheless considers that the applicant is unlikely to be confused about when the meeting or rally occurred in [Town 2], in particular its proximity to the telephone threats she received before the meeting, and her decision to travel to Australia and seek protection after the meeting. The Tribunal concludes that the applicant’s lack of consistency on the timing of this key event suggests that the event did not occur.
In relation to the threats she received, in the interview with the delegate, the applicant stated that ZANU-PF youth walked down the street screaming at her, calling out that they were ‘going to get her and she would soon follow her husband’. In her Statutory Declaration she described receiving threatening phone calls and voice mail messages ‘sometimes once or twice a day, and sometimes I would not receive calls for a couple of weeks before they would start again’, and in evidence before the Tribunal, she stated that she received about two calls a week for about two weeks’. Given how significant the threats were in these calls, the Tribunal would expect the applicant to have a clearer memory of the nature and timing of the threats.
Other questions are raised by these events that reinforces the Tribunal’s conclusion that they did not occur. First, having received such serious threats by telephone, it is difficult to understand why the applicant nevertheless attended an MDC rally/meeting.
If the threatening phone calls and the vandalism of her house occurred simultaneously in October and November 2016 as the applicant claimed in her evidence to the Tribunal, it is difficult to understand why the applicant did not immediately leave the country and seek protection, rather than continue to live in Harare in rental accommodation.
When the Tribunal questioned the applicant on why she did not immediately travel to Australia and apply for a Protection visa following the threats and the ransacking of her house, she maintained that she was still wanting to see what it was like in Zimbabwe, stating ‘I thought maybe I could find somewhere to rent, to settle there and stay in the country’. For this reason, the applicant claims she rented a property on the other side of Harare. Given that the applicant had a valid visa to Australia, the Tribunal does not accept that the applicant would rent a place elsewhere in Harare and wait five months before travelling to Australia and seeking protection. The applicant did not articulate what it was, after five months, that led to her decision to leave. There were no further threats by phone, and there was no suggestion that she had been identified as an opposition supporter during that time.
Refugee Criteria
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The applicant’s fear of persecution for reason of her political opinion
Well-founded fear of persecution must be for a refugee reason. The applicant’s fear of persecution is for reason of her political opinion. The applicant is a member of the main opposition party, the Movement for Democratic Change (MDC) which is now called the Citizens Coalition for Change (CCC).[3] DFAT assesses that MDC members and supporters at all levels face a moderate risk of official discrimination, in that the government ‘continues to use state authorities to restrict their ability to operate freely in the political sphere’.[4] The Tribunal is satisfied that the applicants’ fear of persecution is for reason of her political opinion.
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Zimbabwe 19 December 2019, [3.29].
[4] Ibid, [3.37].
Real chance of serious harm in the reasonably foreseeable future. Section 5J(1)(a) contains a subjective requirement that the applicant fears being persecuted if she returns to Zimbabwe. The applicant indicated at the hearing that she was very scared to go back to Zimbabwe based on the passed trauma she experienced. Given that the Tribunal does not accept that the threatening phone calls and vandalism of the applicant’s house occurred, the Tribunal does not accept the applicant has a subjective fear of serious harm based on these events. However, the Tribunal accepts that the applicant’s husband was killed by people associated with the government in 2007 and accepts that the applicant would continue to experience trauma from these events, and that the applicant fears serious harm from Zimbabwe’s dominant political party, the Zimbabwe African National Union-Patriotic Front (ZANU-PF), or other people sympathetic to the government, based on her past experiences.
Section 5J(1)(b) imposes an objective standard. There must be a real chance the applicant will face serious harm if she returns to Zimbabwe. A real chance is a substantial chance, as distinct from a remote or far-fetched possibility.[5] The representative for the applicant submitted country information on the political situation in Zimbabwe in recent times. In bi-elections in March 2022, CCC supporters ‘faced harassment and attacks across the country’.[6] The report provides examples of violence against current members of Parliament and political activists who are campaigning for the CCC. The US State Department reported that there were on-going investigations into state-sponsored violence that resulted in the deaths of 17 civilians in 2019 and 7 civilians in 2018.
[5] Chan v MIEA (1989) 169 CLR 379.
[6] US Department of State, 2022 Country Reports on Human Rights Practices: Zimbabwe, 20 March 2023.
DFAT reports that:
the ability of Zimbabweans to criticise the government and express dissent publicly, either collectively or individually, is limited in practice. Authorities are likely to use broad interpretations of national security legislation to prevent political demonstrations from occurring where possible. Zimbabweans attempting to demonstrate without authorisation – and, to some extent, even with authorisation – face a high risk of violence from state authorities. Individuals who are perceived as being personally critical of Mnangagwa face a risk of both legal sanction and possible violence from state authorities.[7]
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Zimbabwe 19 December 2019, [3.28].
State authorities and ZANU-PF activists have carried out violent attacks targeting MDC activists and supporters, particularly around elections. State-sponsored violence affects ‘MDC members and supporters at all levels’.[8]
[8] Ibid, [3.31].
The DFAT Report indicates that levels of overt violence against MDC candidates and supporters in the lead up and during the 30 July 2018 election was ‘well below that of previous elections’, but that there has been an increase in violence since the 30 July 2018 election which was disputed.[9]
[9] Ibid [3.35].
Country information suggests that although there is a level of impunity in the use of violence, it is directed at those who are currently active in the opposition parties either as supporters or candidates, and usually occurs around the time of elections. The most recent election was in August 2023. Ahead of the election, the Human Rights Watch World Report 2024 gives examples of action taken against opposition politicians in the lead up to the election.[10]
[10] Human Rights Watch, World Report 2024, p736-737.
There is nothing in the country information to suggest that people who have been politically active in the past but have since ceased being politically active are targeted by government authorities or ZANU-PF. Given that the Tribunal has found that the applicant has not been politically active since 2007 when she and her husband were targeted by ZANU-PF, and given that the applicant lived without incident from January 2010 to July 2016in the house in which she was previously assaulted, and given that the applicant has indicated she has not been politically active for the last seven years that she has resided in Australia, there is only a remote risk that the applicant will experience political violence if she returns to Zimbabwe as a result of her and her husband’s past connection to the Movement for Democratic Change (MDC).
A question arises whether the reason for the applicant’s lack of political involvement since 2007 is because she has modified her behaviour due to fear of harm. There is evidence to suggest that this is not the case. First, in the applicant’s Statutory Declaration of 26 August 2024, the applicant stated:
I became a member of the Movement for Democratic Change (MDC) around the start of 2004. [My husband] was a member of the MDC before I joined. I followed my husband into the MDC. When your husband does something you end up doing the same.
In line with the applicant’s evidence, the Tribunal finds that the applicant’s motivation to join the MDC was connected to her husband’s involvement. After her husband’s death, the applicant was not involved with the MDC while in [Country 1] in 2008 and 2009. The applicant was not involved with the MDC from January 2010 to July 2016 at a time that, as the applicant put it, the country was in relatively calm under a unity government. The applicant’s lack of political activism during this period was not because she feared persecution. Likewise, the applicant has not been politically active since arriving in Australia in May 2017 to the present. During this time, she has also been safe from the possibility of persecution. Her lack of political activity is not due to a fear of harm. The only political activism that the applicant claims from the time of her husband’s death in 2007 to the present is attending the rally/meeting in [Town 2] in November 2016. As discussed above, the Tribunal does not accept that the applicant attended any such rally/meeting. The Tribunal is satisfied that the applicant’s lack of political involvement since 2007 is a deliberate decision not to be involved in politics, and this decision is not born of a need to modifying her behaviour due to a fear of harm.
A further question arises whether the applicant is likely to become active in the MDC if she returned to Zimbabwe. Given that the applicant has had no political involvement with the MDC since 2007, the Tribunal finds that the applicant is unlikely to become involved with the MDC or any other opposition political party in the reasonably foreseeable future. In the absence of active political engagement in the future, the Tribunal is satisfied that the applicant will not face mistreatment as a result of her historical connection to the MDC.
Other grounds for protection
Fear of harm as a failed asylum seeker In her evidence, the applicant claimed that as a returnee from oversees, people will ‘think you are influencing other people’. Although the applicant has historical connections to the MDC, the Tribunal is satisfied that this will not come to the attention of authorities if she returns to Zimbabwe, and even if it did, that it would not lead the authorities to take any action against the applicant. The DFAT Report states that ‘DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution or mistreatment on return.[11] The Tribunal is satisfied that there is no real chance that the applicant will face serious harm if she returns to Zimbabwe as a failed asylum seeker with historical connections to the MDC.
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report Zimbabwe 19 December 2019, [5.38].
In relation to the Refugee criteria, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the foreseeable future if she returns to Zimbabwe, and therefore, 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
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 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. The Courts have held that the ‘real risk’ element of the test in s.36(2)(aa) is the same as the ‘real chance’ test for protection s.36(2)(a).[12] Just as the Tribunal is not satisfied that there is a real chance of the applicant experiencing serious harm if she returns to Zimbabwe in the foreseeable future for reason or her political opinion or as a failed asylum seeker, so the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if she returned to Zimbabwe under the complementary protection criteria.
[12] MIAC v SZQRB [2013] FCAFC 33
There is a further reason the applicant might require protection. According to the DFAT Report ‘an individual may lose their “domicile” (lawful permanent resident) status in Zimbabwe if they voluntarily depart from and reside outside Zimbabwe with the intention of making their home there; or are absent from Zimbabwe for a continuous period of five years or longer.’ … Losing domicile status would generally preclude the individual from re-entering Zimbabwe without obtaining a new visa.’[13] The DFAT Report states that it is uncertain whether a Zimbabwean citizen who has lost their ‘domicile status’ would be considered a ‘prohibited person’.[14]
[13] Ibid, [5.34].
[14] Ibid [5.35].
Even if the applicant were considered a prohibited person because she has been a resident outside Zimbabwe for more than five years, there is no evidence to suggest that this would lead to harm to the applicant. In the absence of any such evidence, and noting that DFAT is unaware of returnees, including failed asylum seekers, having faced persecution on their return, the Tribunal concludes that the applicant would not face significant harm simply on the basis of being a prohibited person as a result of their residence outside of Zimbabwe for more than five years. Furthermore, the Tribunal notes that since 2018, President Mnangagwa has encouraged Zimbabweans to return home.[15] One research article suggests ‘There has been a change in the attitude of the staff in the Ministry of Agriculture and the Ministry of Industry and Commerce, who appear to be genuinely more helpful now’.[16]
[15] Natasha Venebles, ‘Finding Home in Uncertainty: Returnees, Reintegration, and Reconciliation: A Case Study of Refugees in Towns, Harare, Zimbabe, Fenstein International Center, Tufts University, March 2020.
[16]Ibid, 12.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Protection for a person in the same family unit

Under s 36(2)(b) and (c), a non-citizen in Australia who is a member of the same family unit as a non-citizen who holds a protection visa of the same class is eligible for a Protection visa. The applicant’s son was granted a protection visa when he was a non-citizen. However, under s 91WB (2), the Minister ‘must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph s 36(2)(b) and (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa’ (emphasis added). The applicant applied for a protection visa in 2017. Her son was granted a protection visa in 2009. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) and (c).
Referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister considers it to be in the public interest to do so.
Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in department policy ‘Ministerial guidelines on ministerial powers (s 345, s 351, s 417 and s 501)’, the Tribunal refers the matter to the Department.
The applicant’s circumstances comply with several of the factors considered in the Ministerial guidelines to be relevant to an assessment of whether a case involves unique or exceptional circumstances.
Factor 1
Persons who may have been refugees at time of departure from their country of origin, but due to changes in their country, are not now refuges, and it would be inhumane to return them to their country of origin because of their subjective fear. For example, a person who has experienced torture or trauma and who is likely to experience further trauma if returned to their county.
The applicant’s [son] was granted a protection visa in 2009 on the basis that the Zimbabwean government might impute the political opinion of this father and mother to the applicant’s son. If the applicant herself had applied for a Protection visa at that time, she would likely have been successful. The Tribunal accepts that the applicant was once active in the main opposition party the Movement for Democratic Change. However, as the applicant admitted, she has not been active in the party for at least seven years since arriving in Australia and had limited, if any, involvement for 9 years before that. The Tribunal was not satisfied that there is a real risk she will suffer serious harm if she returns to Zimbabwe in these circumstances. Nonetheless, the Tribunal accepts that the applicant has significant subject fear of returning to Zimbabwe because of the trauma she experienced in the past due to her political activism, namely the death of her husband in an assault in which she was a victim and a witness.
Factor 2
The length of time the person has been present in Australia and their level of integration into the Australia community.
As stated above, the applicant has lived in Australia since May 2017. She also visited her son on two previous occasions in 2009 and 2016. The applicant has lived in [Town 3] and worked in aged care in [regional] Australia since she arrived in Australia in May 2017. She submitted in evidence various certificates of [attainment] that form part of the [Qualification 2], showing a significant level of integration and commitment to Australia.
Factor 3
Compassionate circumstances regarding the age and/or health and/or psychological state of the person such that a failure to recognise them would result in irreparable harm and continuing hardship to the person.
The applicant is [age] years old. Her life is centred in Australia. She has two sons in Australia and [another child] who lives in [Country 1] with whom she has limited contact. The applicant has no contact with relatives or friends in Zimbabwe. Her parents and her [siblings] are deceased.
Factor 4
Strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident).
The applicant has two sons living in Australia, one is a citizen and the other a permanent resident. One son has a wife and [children]. The applicant stated that she has a close relationship with her sons.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alexander Reilly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4194

9 September 2024

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