2007162 (Refugee) - [2024] AATA 4404

2007162 (Refugee) [2024] AATA 4404 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  2007162
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Paul Noonan
DATE:19 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 19 September 2024 at 10:12am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – imputed political opinion – father and brothers refused to join government party and imputed as supporters of opposition party – assault during return visit claimed to be politically motivated – membership of particular social group – separated woman with no family or social support network or work skills or history – Australian citizen child and shared custody arrangement – mental health if separated from child – applied for protection visa after student visa ceased – country information – gender-based discrimination, harassment and violence, with weak state protection – treaty right to enter and reside in neighbouring countries uncertain in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5L, 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391
1700730 (Refugee) AATA, 12 July 2022
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 25 May 2015. The delegate refused to grant the visa on the basis that the applicant would not be at risk of harm for political opinion reasons or because of her gender.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2007162 (Refugee)

Details

AGLC: 2007162 (Refugee) [2024] AATA 4404
Case: [2024] AATA 4404
Decision Date: 19 September 2024

CaseChat Overview and Summary

This case concerned an application for a protection visa by a woman from Zimbabwe. The applicant claimed she feared harm due to being imputed as a supporter of the Zimbabwean political opposition and also feared gender-based harm. The Tribunal considered the applicant's claims in light of the 'refugee' criterion and 'complementary protection' grounds.

The primary legal issue before the Tribunal was whether the applicant qualified for protection under Australian law, either as a refugee or on complementary protection grounds, or as a family member of such a person. While the Tribunal considered the applicant's claims regarding imputed political opinion, it ultimately found her entitled to protection based on her membership in a particular social group.

The Tribunal accepted that the applicant had been sexually assaulted in Zimbabwe in 2012, as claimed, although it did not accept that the assault was politically motivated. However, the Tribunal found the applicant to have significant vulnerabilities, including the risk of mental health deterioration if separated from her Australian citizen child. The Tribunal also noted her lack of family support, work skills, and financial resources in Zimbabwe, which would render her particularly vulnerable to further sexual assault and unable to support herself. The Tribunal concluded that these factors meant Australia had protection obligations towards the applicant.

The Tribunal remitted the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The delegate was satisfied that the applicant’s country of nationality is Zimbabwe, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to her Zimbabwe passport, a copy of which is retained on the Department’s systems and file and which expired [in] 2021, and accordingly has assessed her claims with respect to Zimbabwe as the country of reference or receiving country for the purposes of this appeal.The applicant’s personal background The applicant was granted a student visa to study in Australia on 15 May 2009. She arrived in Australia [in] July 2009. She returned to Zimbabwe between [June] 2010 and [July] 2010. She again returned to Zimbabwe between [January] 2012 and [February] 2012. Her student visa ceased on 1 September 2014. It is accepted that the applicant’s father was a [work position] in the Zimbabwean [employer]. She grew up on [work accommodation] in Bulawayo and in her teenage years lived in a family house in the town of [Town], Zimbabwe. She also attended boarding school. All of her siblings now reside outside of Zimbabwe. Two brothers live in [Country 1] and another in [Country 2]. Her father passed away in 2014 and her elderly mother lives in [Town] with her sister. The applicant is of mixed ethnicity with some Shona and [Country 3] ancestry. Her religion is Christian. She does not have a partner currently. She has [an age]-year-old Australian citizen child who lives with her as a part of a shared custody arrangement with the Australian citizen father. Since being in Australia she has worked as [an occupation]. Department interview and decision The delegate conducted an interview with the applicant. The Tribunal has listened to that interview. The applicant supplied the Tribunal with a copy of the Department’s decision when she appealed it to the Tribunal. CLAIMS FOR PROTECTION In her written protection claim the applicant stated (in summary) that she left Zimbabwe because she feared harm due to being imputed as a supporter of the Zimbabwean political opposition group commonly known as MDC. She also stated that she feared gender-based harm. ISSUE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The Tribunal extensively considered the applicant’s political opinion claims, however, there is no need to detail findings in regard to this claim because it has found the applicant is entitled to protection for reason of her membership of the particular social group as set out below. CONSIDERATION OF CLAIMS AND EVIDENCE The applicant submits that in her last visit to Zimbabwe in 2012 she was sexually assaulted on the street by a group of men. She contends that she believes this was politically motivated. She contends that her family has an adverse profile with the ruling ZANU-PF political party because her father and siblings all refused to join ZANU-PF. She contends as a result they were imputed to be supporters of the opposition MDC party. She contends that she will be any easy target for further sexual assault in Zimbabwe and she greatly fears this should she be required to return there.

Evidence

Evidence Before The Court

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The Tribunal extensively considered the applicant’s political opinion claims, however, there is no need to detail findings in regard to this claim because it has found the applicant is entitled to protection for reason of her membership of the particular social group as set out below. CONSIDERATION OF CLAIMS AND EVIDENCE The applicant submits that in her last visit to Zimbabwe in 2012 she was sexually assaulted on the street by a group of men. She contends that she believes this was politically motivated. She contends that her family has an adverse profile with the ruling ZANU-PF political party because her father and siblings all refused to join ZANU-PF. She contends as a result they were imputed to be supporters of the opposition MDC party. She contends that she will be any easy target for further sexual assault in Zimbabwe and she greatly fears this should she be required to return there. The delegate questioned the applicant extensively about this claimed assault. After taking extensive evidence the delegate accepted that the applicant was sexually assaulted as claimed by a group of men on the street in 2012 in [Town], Zimbabwe. The delegate did not accept that the attack was motivated by the imputed political opinion of the applicant. As noted, the Tribunal has listened to the delegate’s interview and the evidence given by the applicant with respect to this assault. The Tribunal also accepts as credible that the applicant was sexually assaulted on the street by a group of men as claimed in 2012 in Zimbabwe. The Tribunal considered that the applicant presented at hearing with significant residual and intrinsic vulnerabilities. She has a young [child] who is an Australian citizen and the Tribunal accepts as reasonably plausible her contention that her mental health may deteriorate due to any period of forced separation from her child while a relevant visa application is processed. While the applicant’s mother lives in Zimbabwe she submitted that she is very old and unwell and lives in a small place with her sibling and she lives off her husband’s deceased person’s pension. The applicant submitted that she does not think any meaningful support or accommodation would be afforded to her from this source and she has no other immediate family residing in Zimbabwe. She submitted that she has no work history in Zimbabwe and no readily employable skills there and, as a woman, she would be discriminated against in applying for work. She fears she would not be able to support herself and would have limited to no family support there. She also fears further sexual assault as she would be without meaningful family support and have limited financial resources at her disposal and as such she would be particularly vulnerable.

Decision

Reasons for decision

The applicant is of mixed ethnicity with some Shona and [Country 3] ancestry. Her religion is Christian. She does not have a partner currently. She has [an age]-year-old Australian citizen child who lives with her as a part of a shared custody arrangement with the Australian citizen father. Since being in Australia she has worked as [an occupation]. Department interview and decision The delegate conducted an interview with the applicant. The Tribunal has listened to that interview. The applicant supplied the Tribunal with a copy of the Department’s decision when she appealed it to the Tribunal. CLAIMS FOR PROTECTION In her written protection claim the applicant stated (in summary) that she left Zimbabwe because she feared harm due to being imputed as a supporter of the Zimbabwean political opposition group commonly known as MDC. She also stated that she feared gender-based harm. ISSUE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The Tribunal extensively considered the applicant’s political opinion claims, however, there is no need to detail findings in regard to this claim because it has found the applicant is entitled to protection for reason of her membership of the particular social group as set out below. CONSIDERATION OF CLAIMS AND EVIDENCE The applicant submits that in her last visit to Zimbabwe in 2012 she was sexually assaulted on the street by a group of men. She contends that she believes this was politically motivated. She contends that her family has an adverse profile with the ruling ZANU-PF political party because her father and siblings all refused to join ZANU-PF. She contends as a result they were imputed to be supporters of the opposition MDC party. She contends that she will be any easy target for further sexual assault in Zimbabwe and she greatly fears this should she be required to return there. The delegate questioned the applicant extensively about this claimed assault. After taking extensive evidence the delegate accepted that the applicant was sexually assaulted as claimed by a group of men on the street in 2012 in [Town], Zimbabwe. The delegate did not accept that the attack was motivated by the imputed political opinion of the applicant. As noted, the Tribunal has listened to the delegate’s interview and the evidence given by the applicant with respect to this assault. The Tribunal also accepts as credible that the applicant was sexually assaulted on the street by a group of men as claimed in 2012 in Zimbabwe. The Tribunal considered that the applicant presented at hearing with significant residual and intrinsic vulnerabilities. She has a young [child] who is an Australian citizen and the Tribunal accepts as reasonably plausible her contention that her mental health may deteriorate due to any period of forced separation from her child while a relevant visa application is processed.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Country of nationality The delegate was satisfied that the applicant’s country of nationality is Zimbabwe, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to her Zimbabwe passport, a copy of which is retained on the Department’s systems and file and which expired [in] 2021, and accordingly has assessed her claims with respect to Zimbabwe as the country of reference or receiving country for the purposes of this appeal.The applicant’s personal background The applicant was granted a student visa to study in Australia on 15 May 2009. She arrived in Australia [in] July 2009. She returned to Zimbabwe between [June] 2010 and [July] 2010. She again returned to Zimbabwe between [January] 2012 and [February] 2012. Her student visa ceased on 1 September 2014. It is accepted that the applicant’s father was a [work position] in the Zimbabwean [employer]. She grew up on [work accommodation] in Bulawayo and in her teenage years lived in a family house in the town of [Town], Zimbabwe. She also attended boarding school. All of her siblings now reside outside of Zimbabwe. Two brothers live in [Country 1] and another in [Country 2]. Her father passed away in 2014 and her elderly mother lives in [Town] with her sister. The applicant is of mixed ethnicity with some Shona and [Country 3] ancestry. Her religion is Christian. She does not have a partner currently. She has [an age]-year-old Australian citizen child who lives with her as a part of a shared custody arrangement with the Australian citizen father. Since being in Australia she has worked as [an occupation]. Department interview and decision The delegate conducted an interview with the applicant. The Tribunal has listened to that interview. The applicant supplied the Tribunal with a copy of the Department’s decision when she appealed it to the Tribunal. CLAIMS FOR PROTECTION