2007447 (Refugee)

[2024] AATA 4366

2007447 (Refugee) [2024] AATA 4366 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Danielle Munro

CASE NUMBER:  2007447

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Don Smyth

DATE:29 August 2024

PLACE OF DECISION:  Brisbane

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 29 August 2024 at 5:33pm

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – political opinion – Movement for Democratic Change (MDC) member – particular social group – people with HIV/AIDS – detention – torture – sexual assault – fear of killing – access to medication – employment – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

BACKGROUND

1. The applicant claims to be a citizen of Zimbabwe and has provided a copy of the bio data page of his Zimbabwean passport. I accept that he is a national of Zimbabwe.

2. The applicant applied for a protection visa on 28 August 2017. On 9 April 2020 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.

3. The applicant appeared before the Tribunal on 22 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Sister A].

4. The applicant was represented in relation to the review.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection Visa Application

5. According to information provided in the protection visa application, the applicant was born in [Village 1], [Town 1] in Buhera in [specified year].

6. The applicant indicated that he had lived at addresses in Harare between December 2012 and May 2017, as well as from January 2000 to March 2005. From March 2005 to December 2012, he lived in Chitungwiza. He lived in [Village 1] from his birth until January 1994 and then in Bulawayo from 1994 to December 1999. With regard to employment, the applicant indicated that he had [an occupation 1] position with [Employer 1] from 2002 to January 2007, a position as an [occupation 1] with [Agency 1] from 2007 to August 2013 and then a position as an [Occupation 1] with [Employer 3] from August 2013 to May 2017. The applicant indicated that he had attended school from [specified year] to [year] and that he had then completed a [Qualification 1] at [College 1] in Zimbabwe.

7. The applicant indicated that he had been in a de facto relationship since January 2013. He indicated that his partner and his son, born in [year], were resident in Zimbabwe at the time of the visa application and gave an address for them in Harare. He indicated that he had limited contact with his partner by email. The applicant listed his mother, [Mother A], and his sister, [Sister A], as contacts in Australia.

8. The applicant also provided details of a number of other family members. He indicated that his mother and [specified family members] were resident in Australia at the time of the visa application. He indicated that his father and [specified family members] were deceased. Another sister was resident in [Country 1] while a brother was in Zimbabwe. His brother-in-law and a number of nieces and [nephews] were Australian citizens and resident in Australia. Another nephew was a Zimbabwean citizen but also resident in Australia.

9. The applicant described his ethnic group as Shona and his religion as Methodist Christian. He indicated that he was able to speak, read and write both English and Shona.

10. The applicant indicated that he had departed Zimbabwe legally [in] May 2017, arriving in Australia [in] May 2017. He arrived on a Subclass 600 visitor visa issued on 24 April 2017.

11. The applicant made written claims in his protection visa application. He stated that he had left Zimbabwe because he was being persecuted by the government due to his membership and activism in the [Unit 1] of the Movement for Democratic Change-T (MDC-T) party. He also left because he was HIV positive and had issues with accessing medication for his condition. He claimed that there was significant stigma and discrimination against people living with HIV in Zimbabwe.

12. The applicant stated that he had been assaulted, arrested without warrant, tortured, raped, denied food for days and threatened with death in Zimbabwe. He had also become ill on occasion because he had trouble accessing medication for his condition. He had attempted to seek help from the police but they never helped because the violence, killings and abduction in Zimbabwe were actually perpetrated by the ruling party which was in control of the military and the police.

13. The applicant claimed that, during the 2013 election period, he had wanted to move to [Town 2], which was [distance] from Harare. However on his way he had discovered that it was not safe and there were road blocks along the way so he decided to change his plans.

14. The applicant claimed to fear being detained, arrested, physically harmed and even killed if he returned. He also feared that he would not be able to access his life-saving HIV medication. He feared that, without his medication, he would get too sick to work. Even if he were able to work, once his HIV status became known, no employer would hire him. If he had a job, he would be fired. Without being able to work, he would not be able to afford medication or support himself. He feared that his family would not support him because of his HIV condition and he would end up homeless and with no means to support himself. He feared that he would contract AIDS and die from an AIDS-related illness.

15. The applicant claimed to fear various forms of harm from agents of the Zimbabwean government because of his political affiliation with the opposition party and because he had left Zimbabwe and might report on the atrocities that were being committed by the Zimbabwean government. He also claimed to fear that he would be denied medical treatment for his HIV and subjected to stigma and discrimination that would threaten his capacity to subsist. The authorities could not protect him because it was the authorities he was seeking protection from. He would not be able to relocate because intelligence officers, police and soldiers were deployed through the country

16. In support of his application, the applicant made a statutory declaration dated 19 June 2018.

17. In the statutory declaration, the applicant set out details concerning his background. He indicated for instance, that he had been living with his partner, [Partner A], since January 2013, that he had a son from his previous customary marriage, that his son lived with his partner on weekends and school holidays, and that his partner lived in Harare with her parents. He stated that they had only been able to afford for one of them to come to Australia and that he had chosen to leave as his family was being targeted because of his political involvement.

18. The applicant made submissions concerning his membership of the MDC-T, formerly the Movement for Democratic Change (MDC). He made claims to the effect that he had been a member since the MDC’s formation. He described becoming involved with the MDC when studying at college. He described, for instance, attending a rally at [Location 1] in 2000 with a friend, [Friend A], and one of his sisters, and subsequently attending a gathering at the [Location 2] with his mother the following day. He indicated that he was nominated at the latter meeting as one of the 5 leaders of [Unit 1] for his village. He indicated that he had attended a meeting in [Town 3] along with other committee heads from his area and described his responsibilities and activities as a leader. The applicant stated that, since becoming a member of the MDC [Unit 1], he had always been openly opposed to the Zimbabwean government, and ZANU-PF.

19. The applicant described an incident in 2000 when he attended an MDC rally at [Town 4]. He described his activities at the rally.  He described ZANU-PF members disrupting the gathering and the police firing teargas and trying to arrest people. The applicant described trying to leave in a [vehicle 1] with other MDC members. He described the [vehicle 1] being attacked by ZANU-PF members and running away in fear for his life. He indicated that he went to the district chairman to inform them what had happened and was told that others were killed in the attack.

20. The applicant described an incident in 2008 when he went to Buhera to cast his vote. He indicated that he had been appointed as an MDC-T appointed election observer. He described political developments at that time, including the court ordering a re-run of the election, large scale violence and ZANU-PF attacking MDC-T members. The applicant stated that during the re-run of the elections he was hiding out at his aunt’s place, about 6 kilometres away from his rural home in Buhera. He made claims to the effect that some people from ZANU-PF had come to his house in Buhera and burned his family’s house to the ground. He claimed that his party helped him rebuild his house after the violence in the country had died down.

21. The applicant described an incident in 2013 at a rally at [Location 3] in Chitungwiza. He claimed to have been arrested in this incident, to have been taken to [a named] police station, to have been put in a cell for [number] days, and to have been interrogated, beaten and assaulted. The applicant also claimed that in June 2013 he was travelling on a bus from Harare to Buhera when it was stopped at a roadblock. He claimed that he was taken to a base and beaten. The applicant also described having been arrested at a demonstration at [Location 4] in August 2016. He made claims to the effect that he was detained for about 3 to 4 days and beaten. The applicant stated that, when he got back home, he found out that his partner had been assaulted and attacked by the police when they ransacked the house.

22. The applicant claimed that, in July 2013, he was stopped at a police road block and arrested while travelling from Harare to his rural home in Buhera. He claimed that he was detained at the Police [base] and placed in the custody of ZANU-PF youths who beat him and accused him of selling Zimbabwe to white people. He described his escape. He claimed that, following this, he attempted to flee to [Town 2], [distance] away but was again stopped at another police roadblock and detained. The applicant stated that, while information in his application might seem inconsistent with this account, he had only given a brief summary of the events in his application.

23. The applicant described being diagnosed with HIV in 2006. He stated that he initially chose to be open about his status. The applicant claimed that he told his mother and that her reaction was very emotional. He claimed that he was discriminated against by his family members. The applicant described speaking at length to members of his family and trying to educate them. He claimed that they still refused to support him as they associated the disease with promiscuity. He stated that he had struggled due to mandatory health testing for many jobs and feared he would struggle to find employment. He feared that, if his HIV status were to become known, employers would not be willing to hire him and that he would be refused jobs on health grounds. He claimed that, when he applied at [a business], he was told he had failed the medical examination. Sometimes employers would not even get in touch to let him know why he was not hired. The applicant claimed to have lost heart and motivation after being rejected so many times and that he decided to stay at his current [job]. He indicated that his partner was unemployed and only sold vegetables where she could. He indicated that he sent her money to support her and that she would also find it hard to gain employment as she was HIV positive.

24. The applicant described his treatment and referred to the importance of consistent access to anti-retroviral therapy (ART) medication. He described difficulty maintaining access to treatment in Zimbabwe due to the cost, corruption and also reduced income potential. He described being told by government distributors that they had run out because they were part of MDC-T. He claimed that those with ZANU-PF membership cards were given their medicine without question. The applicant stated that the only other way to access HIV medication was through private sellers who charged exorbitant prices. He claimed that he could not even be certain that what he was buying was HIV medicine. The applicant also described difficulties experienced by his partner in accessing medication. The applicant described getting very sick with [medical condition 1] in 2011 due to the inconsistent medication. The applicant stated that he also left Zimbabwe to escape the discrimination he experienced as a person living with HIV and to escape being ostracised from society. He stated that his political affiliations had made him a target. He had had to suffer arrests, deprivation of food, sexual assault, physical violence and death threats.

25. The applicant expressed fears related to his political affiliation and his HIV condition. He stated, for instance, that he feared that he would either suffer inhumane treatment and be killed as a result of his political views and affiliations, or would die from an inability to access HIV medication and treatment. He also expressed a fear of being unable to find employment and support himself due to discrimination. He expressed fear that his HIV status would become known. He also referred to his political views and affiliations making it unlikely he would find employment. He stated that his family would not support him as they had not in the past. He would be unable to manage his condition. He would end up homeless, without access to HIV medication and his condition would develop into AIDS. The applicant also addressed state protection and relocation.

26. The applicant’s representative provided written submissions on 20 January 2020. I have had regard to these submissions.

27. A number of documents were submitted in support of the application. These included the following:

    ·     A medical report, dated 5 July 2019, from [Doctor A] of [Hospital 1] in Brisbane. [Doctor A] indicated that the applicant had been diagnosed HIV positive in Zimbabwe in 2006. He provided a summary of the applicant’s medical history and the applicant’s medications. He stated that the applicant’s prognosis was excellent with continued current treatment. He stated that suboptimal care would be provided in Zimbabwe and that accessing medication in Zimbabwe had been a frequent problem for patients in the past. He expressed the view that the applicant would face stigma and discrimination in accessing health care, employment and other services in Zimbabwe. He noted that the applicant had expressed fears of abandonment from family and associates once his status became known in the community. He expressed the view that it was essential that the applicant receive reliable and consistent care. Failure to provide this care would compromise his physical and mental health.

    ·     A scanned copy of the applicant’s birth certificate.

    ·     A copy of the bio data page of a passport in the name of [Partner A].

    ·     A copy of a birth certificate for [Child A], born on [date]. The mother is named as [Ms A].

    ·     A copy of an MDC-T membership card in the applicant’s name.

    ·     A copy of the applicant’s passport, issued [in] 2016.

    ·     A copy of a letter, dated 14 July 2016, confirming that the applicant was employed as an [Occupation 1] with [Employer 3] effective from 1 September 2013.

    ·     A payslip from [Employer 3] dated in June 2016.

28. The applicant attended an interview with an officer of the Department on 21 January 2020. This interview lasted for approximately 3 hours. I have had regard to all of the applicant’s evidence at the interview.

29. Following the hearing, the Department was provided with a further written submission from the applicant’s representative, as well as a further statutory declaration from the applicant, dated 4 February 2020. I have had regard to all of this material.

    Delegate’s Decision

30. On 9 April 2020, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate’s decision set out aspects of the applicant’s migration history, including that he arrived in Australia on a Subclass 600 visa [in] May 2017, that the visa expired [in] August 2017 and that he applied for a protection visa on 29 August 2017. The delegate accepted details provided by the applicant as to his family composition and location.

31. The delegate accepted that the applicant was a member of the MDC from 2000 to 2017, that he had been involved in the MDC community and that he had attended a number of MDC election rallies. The delegate accepted that he actively participated in promoting the MDC during the 2002, 2008 and 2012 elections, and that he attended a number of pre-election MDC meetings. The delegate accepted that he was one of [number] youths elected in 2000 to represent the [Village 1] and that on at least one occasion he attended a Provincial MDC meeting in [Town 3]. The delegate did not accept that the applicant was an MDC [Unit 1] leader when he left Zimbabwe in 2017.

32. The delegate accepted the applicant’s claims about a number of the incidents described in his statutory declaration and at interview, but did not accept other aspects of his claims. For instance, the delegate did not accept that the applicant was present at the petrol bomb attack at [Town 4] in 2000. With regard to the claimed events of 2008, the delegate noted that the applicant was living and working in Harare and considered that the applicant exaggerated the extent of his family’s property damage and theft and the personal effect this had on him. The delegate considered that the property damage was more likely a result of his family being known MDC supporters than a specific targeting because of the applicant. The delegate did not accept that ZANU-PF members were looking for the applicant after the 2008 election, noting that he continued to live with his aunt for 2 weeks at a nearby property and his family were well known in the area. The delegate addressed a claim by the applicant that he had been stopped while travelling by bus from Harare to Buhera and detained at the Police [base]. The delegate was of the view that there had been inconsistency in the claimed date of this incident. The delegate also considered details of this claim to be farfetched. The delegate did not accept this claim. Nor did the delegate accept the claim that the applicant had planned to go and live with his aunt in Mvumba but had to change his plans after being stopped at another road block en route.

33. The delegate found that the applicant had provided a reasonably credible account of being arrested in 2013 and accepted that he was arrested without charge while attending a rally, detained, beaten and assaulted. The delegate found that they did not have enough information to make a finding on the claim about the applicant’s assault at a road block in June 2013. With regard to his claimed August 2016 arrest and detention, the delegate found details given by the applicant about the nature of the protest to be at odds with details found in media reports on the demonstrations. The delegate did not accept that the applicant was detained for a number of days in Harare for participating in a protest [specified]. The delegate also dismissed the claim that the applicant’s house was ransacked by police and his partner was assaulted.

1. With regard to the applicant’s HIV status, the delegate accepted that the applicant was diagnosed as HIV positive and commenced medication in Zimbabwe, that he began to experience public supply issues with his medication, that his partner was HIV positive and had difficulty accessing her medication, that he had been refused a job in a [business] sometime between 2007 and 2013, that he had experienced low level stigma and discrimination in his family, and that his treatment regime in Australia was keeping his HIV well controlled. The delegate did not accept that the applicant experienced ongoing personal discrimination when accessing his HIV medication because of his allegiance to the MDC or that his HIV status made him unemployable.

2. With regard to his political opinion, the delegate did not consider the applicant to be a high profile supporter or activist. Nor did the delegate accept that the applicant had been involved in recent high-profile activities in support of the MDC that would make him a target for authorities. The delegate considered that the applicant’s recent involvement had been more low level and found that he did not face a real chance of persecution for reason of his political opinion as ‘a non-supporter of the ZANU-PF’ or a supporter of the MDC. The delegate did not accept that the applicant faced a real chance of persecution for reason of his HIV positive status. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Zimbabwe, there was a real risk that he would suffer significant harm.

   Review Application

3. A copy of the delegate’s decision was provided with the review application.

4. Further submissions were made in support of the review application. These included a statutory declaration from the applicant dated 15 August 2024. The applicant addressed a number of matters in the statutory declaration.

5. The applicant gave evidence to the effect that he had lost contact with [Partner A] and that she had fled to [Country 1] around 2020 or 2021. He indicated that he had sent her money and had no way of getting in contact. He expressed the view that she had moved on and did not want to wait for him. He indicated also that she had stopped communicating with his son. He indicated that [Child 1] was turning [age] and lived with his mother in Chitungwiza. He referred to [Child A's] circumstances, including violence and risk of attacks in his area. He referred to an attack in the area and to [Child A] having issues with his stepfather and step siblings. He indicated that he had a partner in Australia, that they had been living together for almost a year and that they had plans to get married. He indicated that he was working [in] Brisbane.

6. The applicant addressed various findings of the delegate and made further submissions, as summarised below:

   ·     With regard to the age limit of the [Unit 1], he stated that he was an adviser to the MDC [Unit 1] at the time he came to Australia in 2017. He said there was no age limit to the [Unit 1]. He had been a member and then an adviser around 2014. He made submissions to the effect that he had no official documentation relating to his role in the MDC and gave reasons for this.

   ·     With regard to the delegate’s finding in relation to the 2000 incident of petrol bombing of a car, he stated that the delegate had not taken into account that there were bush tracks that they used. He stated that there was a large group of MDC supporters and a few [vehicle 1s] going in different directions. He jumped onto the back of the [vehicle 1] because it was the one going to the Central District near his village. That [vehicle 1] was targeted because [two named persons] were in it. He was in the back of the [vehicle 1] with other supporters. He saw the road block and was able to get out and run. The people who were killed were in the front of the [vehicle 1].

   ·     With regard to violence surrounding the 2008 elections, the applicant stated that he stayed at his aunt’s house for 2 weeks because he had no means to travel safely and made submissions to the effect that there was not much happening in the village where his aunt lived because that area had a majority of supporters from the ruling party. He said he felt safer there than at his village. During the post-election violence, the ruling party had a list of names of opposition supporters and his name was on the list, as was his mother’s, leading to their home being targeted. The ruling party would go around damaging houses and taking what they wanted. The police and government were on their side. It was a time of lawlessness. They did not have photos or records.

   ·     With regard to the claimed 2016 demonstration, the applicant noted that the delegate had been unable to find a media report with respect to [Location 4]. The applicant made submissions to the effect that the protests would go throughout the city and that there was not one precise location of the start or end of the protest. The location was not published in order to avoid being targeted. These events occurred prior to the time of social media and multiple news outlets. He referred to one-sided reporting of the events.

   ·     The applicant made submissions concerning his family in Australia. He indicated that his mother came to Australia in 2016 and was granted protection. She was now an Australian citizen and was visiting his sister in [Country 1]. He stated that [other siblings] had been granted protection. [Sister B] had arrived in around 2000 and had been granted protection. [Sister A] had arrived in 2016 with his mother and was granted protection after attending the Administrative Appeals Tribunal in early 2024. The applicant stated that his mother and sister made claims for protection based on political involvement and fears as supporters of the opposition party.

   ·     The applicant stated that he continued to fear returning to Zimbabwe due to being a supporter of the opposition MDC. He noted that there had been many divisions and factions within the MDC. He stated that he aligned to the original views of the MDC and would continue to support the opposition party if he returned to Zimbabwe. The applicant stated that, if he had known he would one day need documents, he would have collected them. He described it as a time of chaos and said he would also try to forget some things that had happened. He described it as traumatic. He described feeling safe in Australia.

   ·     The applicant addressed his claims related to being HIV positive. He stated that the situation in accessing medication for HIV was the same or even worse than when he left. There were some NGOs trying to help but people still needed to pay bribes to get access. He referred to the stigma faced by people with HIV. He referred to being discriminated against by his family and treated differently at the time he was diagnosed. He stated that he was the first person in his family to openly say that they had been diagnosed as HIV positive. He described his mother being worried. He said they did not disown him but he could see they were afraid. He said that, for example, they would bleach the bathroom after he used it. He said his sister, [Sister A], was diagnosed a few years after he was and told him when she was diagnosed. He lived with her when he first came to Australia but she could not support him financially. He referred to emotional stress in the house and said that he left and stayed in a crisis centre.

   ·     The applicant gave evidence to the effect that his doctor had suggested counselling and that he had seen a counsellor in 2021/22 to help with his depressed mood. He described being upset at the thought of his son growing up without him. He said he would not have had the opportunity for counselling in Zimbabwe and that he did not think he would have lasted if he had not received the care. In December 2022, he was admitted to hospital for tuberculosis (TB) and spent 6 weeks in hospital. He had finished the treatment but needed review checks every 6 months. He stated that he had to switch anti-retrovirals for a time when on medication for TB but was now back to taking Biktarvy. He stated that he would not have survived in Zimbabwe if he had stayed there. He would not have had the tests and medical treatment for TB. He referred to [medical condition 2] and to being told by a doctor that it was post-trauma [damage]. He said he did not comprehend the extent of the injury at the time. He described his priority when he arrived in Australia as seeing a doctor. He stated that he saw a doctor who helped him get medication straight away. He referred to going to [Hospital 1] and having blood tests every 6 months. He referred also to the doctors in Australia addressing any issues. The applicant referred to being very worried for his health and stated that he thought if he went a year or 2 without the health care he received in Australia it would be a death sentence.

   ·     The applicant stated that he had no means to support himself in Zimbabwe. He would not be able to obtain a job. He made claims to the effect that he would not be hired by the government because of discrimination and that the unemployment rate was high. He also referred to his HIV status as a barrier to employment. He stated that he had one brother in Zimbabwe but he relied on the applicant for financial support. He could not support the applicant. He was [an occupation 2] on a salary and could not afford the school fees for his children.

7. The applicant’s representative also made further submissions dated 17 August 2024. I have had regard to these written submissions. I note that these submissions made reference to the decision of the Tribunal (differently constituted) with respect to the applicant’s sister’s protection visa application (case number 2007730), made in February 2024

   Tribunal Hearing

8. The applicant attended a Tribunal hearing on 22 August 2024. I have had regard to all of the applicant’s evidence at the hearing, although it is not necessary to set this out in full.

9. In summary, the applicant indicated that he was born in [Village 1], that he lived there until January 1994, that he lived in Bulawayo from January 1994 to December 1999 and that he subsequently lived at various addresses in Harare. He provided details of the various addresses he had lived at in Zimbabwe. He indicated that his father had passed away in 2008. He referred to having completed [an occupation 2] training program at [a named] College [between specified years]. He indicated that he qualified as [an occupation 2] but could not get a job as [an occupation 2]. The applicant provided details of his employment, indicating that he worked for [Employer 3] in an administrative role from August 2013 to May 2017, that he did contract / casual work for [Agency 1] from January 2007 to August 2013, and that he had worked for [Employer 1] from July 2002 to January 2007.

10. The applicant confirmed that he had one child, [Child A], who was born in [year]. He indicated that he had been in a customary marriage with [Child A’s] mother, [Ms A], but that he was no longer in a relationship with her. He indicated that he was in contact with his son and sent him money. He gave evidence to the effect that he had lost contact with his former partner, [Partner A]. He described being in a relationship with a person in Australia. He said that they had known each other for about a year and had been living together for about 7 months. He gave evidence to the effect that they planned to get married in the future. The applicant described his and his partner’s employment in Australia.

11. The applicant gave evidence about his siblings. He gave evidence to the effect that he had a [brother] who lived in Buhera in Zimbabwe as well as [specified family members], all of whom lived in Australia. I discussed with the applicant the status of his [siblings] in Australia. He indicated that [Sister B] and [Sister A] had been granted protection visas on grounds related to political opinion. With regard to [Sister A], the applicant stated that she was a religious person but also had a political affiliation. He said she was in support of the opposition movement and that the whole family supported the movement. His mother, [Mother A], had also been granted protection. He described her as a member and leader in the MDC. He gave evidence to the effect that she had been [an Official 1] and campaigned to be in [parliament]. He said that she was not safe at all.

12. The applicant gave evidence in relation to his arrival in Australia and previous visitor visa applications.

13. When asked why he was afraid to return to Zimbabwe, the applicant said he had a lot of issues. He referred to the political situation and said that it was now worse. He claimed to fear for his life. He also claimed to face discrimination and expressed concern for his health if he had to return to Zimbabwe.

14. The applicant gave evidence about his membership and involvement in the MDC. He claimed that he joined in 2000 and described how he joined the party and came to be on the [Unit 1]. He described his role in the [Unit 1], referring for instance to spreading information and mobilising people. The applicant described what impressed him about the MDC manifesto, referring for instance to the promise of equality amongst the people and the creation of more jobs. He referred to attending meetings and indicated that he was responsible for [an area] in Buhera. The applicant claimed to have been involved in the MDC right up until the time when he left Zimbabwe. When asked about the nature of his involvement at the time he left, he referred to giving advice to other young people who were part of the generation eager to see change happening and sometimes distributing information about upcoming events. He referred to advising the young leaders.

15. When asked whether he would want to be involved if he were to return to Zimbabwe, the applicant said he would be involved one way or another because there was still a need for change. He would be advocating for change again. I raised with the applicant that the MDC had splintered and asked the applicant which group he supported. The applicant described aspects of the MDC’s history. He said that it was the first opposition party and that he still supported the original ideologies of the MDC being carried now by Nelson Chamisa. He said they were carrying on what Tsvangirai left and the ideology.

16. I discussed with the applicant the various incidents he claimed had affected him in Zimbabwe. He gave evidence in relation to the claimed incident in 2000. He described his role in the 2008 elections, indicating that he was mobilising people and distributing election campaign material and acting as an election agent for his party. He said that a lot of violent things were happening. He described events associated with the re-run of the election, indicating that he stayed with his aunt for a week or more and that people came to the family’s house in that period. The applicant described the rally at [Location 3] in Chitungwiza in 2013. He described being arrested and detained for [number] days. The applicant also gave evidence about the protests in 2016 with respect to use of bond notes. He gave evidence to the effect that they came at night and rounded up people suspected to be part of the protest. He said the protest was around the whole city, not at a designated venue. He described [Location 4] as an MDC gathering place and said people started marching to the city. With regard to the incident in which he claimed to have been taken to the [base], he claimed that this had happened in 2012, prior to the 2013 elections. The applicant also gave evidence about the claimed event in June 2013 when he was stopped at a roadblock.

17. When asked why his political opinion would be a problem if he went back, the applicant stated that he would definitely fight again. All his life had been taken away by misgovernance. He would not be part of the ruling party. Going against it would be putting his life in danger but he could not help it. He stated that he wanted nothing to do with the regime and that it was against what he believed in.

18. I discussed with the applicant his claims in relation to his HIV positive status.

19. I also took evidence from [Sister A], who gave evidence about her relationship with the applicant and about his political beliefs and involvement. She said that they came from the [identified village]. She also gave evidence to the effect that she had been politically active. She referred to matters such as the family being attacked and the house being vandalised. She described the applicant as working with [Unit 1].

20. The applicant’s representative indicated that the applicant’s mother was currently overseas in [Country 1]. She offered to provide a statement from the applicant’s mother. She referred to [Sister A's] case as having gone through the Tribunal earlier in 2024 and noted that she had provided the file number. In all the circumstances, I did not consider it necessary to await a statement from the applicant’s mother.

    CRITERIA FOR A PROTECTION VISA

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

22. 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.

23. 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).

24. 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.

25. 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

26. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant has given extensive evidence across his statutory declarations and his appearances at the Departmental interview and the Tribunal hearing. He has provided a convincing and broadly consistent account of his family and his general background in Zimbabwe. I found his evidence in this regard to be credible in nature.

2. With regard to his political involvement, the applicant has claimed to have been involved in the MDC since 2000. He has claimed also that other family members, in particular his mother and sisters, have been politically active.

3. With regard to his own claimed political involvement, the applicant has provided a broadly consistent account of how he came to join the MDC in 2000 and how he became a leader of the [Unit 1] for his village at that time. He has been able to describe in some detail the various activities he was involved in, including mobilising the youth, disseminating information, and attending meetings and rallies. His level of political knowledge showed a degree of sophistication, consistent with his claimed involvement in political activities with the MDC over an extended period of time. For instance, he displayed knowledge of the history of the MDC and its various factions. He was able to provide a convincing account of the MDC’s manifesto and of what attracted him to the MDC manifesto. The applicant produced an MDC membership card. I accept that the applicant joined the MDC in 2000, that he was elected as a leader in [Unit 1] at that time and that he was subsequently involved in a range of activities for the MDC, including mobilising youth, disseminating information, and attending meetings and events.

4. With regard to the profile of his [Sister A] and his mother, [Mother A], the applicant’s representative has referred to the decision of the Tribunal (differently constituted) in 2007730. I have had regard to this and accept that the applicant’s sister, [Sister A], was found to be a person in respect of whom Australia has protection obligations on the basis of political involvement in the MDC. While I am not bound by the decision of the Tribunal in relation to [Sister A], I have also taken evidence about her political involvement from the applicant and [Sister A] herself. I accept that [Sister A] is a supporter of the MDC, that she was actively involved in the MDC and that she has been recognised as a person in respect of whom Australia has protection obligations on this basis. It has been claimed, in both this and [Sister A’s] application, that the applicant’s mother, [Mother A], was a member and leader in the MDC. This claim is supported by independent information. For instance, an April 2011 report referred to [Mother A] as [being in an official role].[1] I accept that the applicant’s mother, [Mother A], was a member and leader in the MDC. On the evidence available to me, I accept that she has been granted a protection visa in Australia. I consider that the applicant comes from a family of MDC supporters and accept that the family has a profile of some significance as MDC supporters.

   [1] [Source deleted.]

5. I note that the applicant claims to have been involved in activities with the [Unit 1] up until the time of his departure from Zimbabwe in 2017. At the time of his departure he was [age] years of age. It would appear from the Constitution of the MDC that membership of [this unit] is open to party members between the [specified ages].[2] I have some doubt that the applicant could have continued in an elected role in [Unit 1] until his departure in 2017. However, it is not at all implausible that the applicant might have continued to be involved with [Unit 1] until the time of his departure. In his evidence to the Tribunal he has claimed that he was an [adviser]. As discussed above, the applicant comes from a family with a significant MDC profile. He himself displays a level of sophistication in his understanding of political issues and has provided a generally consistent account in relation to his membership of, and involvement in, the MDC. In all the circumstances, I accept that he continued to be actively involved in the MDC until the time of his departure and that he continued to involve himself in issues related [this group].

   [2] [Source deleted.]

6. The applicant has described in some detail events that he claimed affected him as a result of his political profile and involvement. As discussed above, his evidence was lengthy and given across the course of a number of statements as well as his appearances at the interview and the hearing. Some of the events are now relatively remote in time and involve a level of complexity. They are also traumatic in nature. Having regard to all of these factors, I consider it significant that the applicant provided a broadly consistent account of a number of key events in a matter that generally accorded with independent information. I accept that the applicant has suffered harm in the past for reason of his political opinion and involvement. While his family’s profile may have been a factor in at least some of the harm, I accept that the applicant has also been targeted as an individual. In making my findings, I have had regard to the applicant’s migration history as set out in the delegate’s decision. While I note that he arrived in Australia [in] May 2017 and applied for the visa on 29 August 2017, I accept that he was focused on his health on his arrival in Australia and do not consider that there was any significant delay in applying for the visa.

7. I note, for instance, that the applicant has given evidence about the family’s home having been attacked around the time of the re-run of the 2008 Zimbabwean elections. I note that, in its 2008 country report on human rights, the US Department of State observed that the months leading up to the run-off election that year were ‘marred by widespread violence and intimidation perpetuated by the ZANU-PF government and its supporters’ and that violence throughout the run-off period ‘left more than 150 dead, thousands injured, and tens of thousands displaced’.[3] I consider it plausible that the applicant chose not to travel to Harare due to the violence and that he hid at his aunt’s house which was away from his village. I accept also that the applicant played a role in the 2008 elections as an agent for the MDC. Consistent evidence has been provided with regard to the attack on the family’s house and I accept that this occurred as claimed. While it is possible that the attack was motivated by the profile of the family as a whole, I accept that the applicant’s own activities formed a significant part of this profile and that those activities placed him at risk at that time, particularly having regard to the very high level of violence during that period.

   [3] US Department of State, 2008 Country Reports on Human Rights Practices: Zimbabwe (25 February 2009)

8. The applicant has provided a consistent and credible account of having attended a rally in Chitungwiza in 2013, of having been detained for a number of days and of having been assaulted and abused in that period. The applicant also described an event in June 2013 in which he was stopped at a roadblock and beaten. While the US State Department reported that elections in 2013 were free of the widespread violence of the 2008 elections, it nevertheless observed that the most significant human rights problems included ‘the government’s targeting for torture, abuse, arrest, and harassment members of non-ZANU-PF parties and civil society activists’ and that there were credible reports of politically motivated abductions and killings. The State Department reported that ZANU-PF party supporters abducted and tortured MDC-T and Movement for Democratic Change-Ncube members, civil society members, and student leaders as part of an effort to intimidate them.[4] In all the circumstances, I accept the applicant’s claims about being detained and abused after attending a rally, and being beaten when he was stopped at a roadblock. I accept as credible his evidence in this regard.

   [4] US Department of State, Zimbabwe 2013 Human Rights Report

9. The applicant also referred to being detained after attending a demonstration in 2016 in relation to the introduction of bond notes. I note that it was reported that, in August 2016, Zimbabwean police violently dispersed protesters in Harare who were rallying against a plan to introduce bond notes. It was reported that hundreds of government critics gathered in a public square and that protesters tried to march peacefully on the capital.[5] It was reported that police had fired teargas and warning shots during a demonstration in Harare in July 2016.[6] I note that the delegate drew attention to the fact that, while the applicant claimed that he attended a demonstration at the [Location 4] and that police shot at the feet of people attempting to run, there were no reports of a gathering at the [Location 4] or of protesters’ feet being shot at. However, I find plausible the applicant’s explanation that MDC supporters gathered at the [location] and marched from there. I accept that the evidence indicates that the protests were not static in nature. In circumstances where authorities appear to have used a degree of force to contain the protests, I do not find implausible the suggestion that police may have fired shots notwithstanding that this was not specifically referred to in the available reporting on the particular protest. I note also that the applicant has indicated in his oral evidence that he was released after his detention by being dropped off in a [vehicle 1] while he indicated in his initial statutory declaration that he left the police station as soon as possible. The applicant did not provide detail in his initial statutory declaration as to how this occurred. He has otherwise provided a credible and consistent account of these events. Particularly having regard to the passage of time, I consider any inconsistency to be very minor in nature. The applicant’s claimed participation in a demonstration at this time is consistent with his profile as an active member of the MDC. I accept that the applicant attended a demonstration in Harare in 2016, and that he was subsequently detained and beaten. I accept also his claims that police came to his home and assaulted his partner while he was detained.

   [5] ‘Tensions rise in Harare over cash crunch’, Deutsche Welle, accessed 23/8/2024

   [6] ‘Zimbabwe shuts down in protest over ‘economic collapse’’, Al Jazeera (7 July 2016), >

   In all the circumstances, I accept that there were a number of incidents in which the applicant was targeted and mistreated as a result of his MDC membership and activities. Such incidents are consistent with reporting in relation to the treatment of MDC members and supporters. I note that the applicant has made claims about an incident in which he was stopped at a roadblock and taken to a police [base]. He has variously given evidence that this occurred in July 2013, 2008 and 2012. Notwithstanding the passage of time, I have some doubts in relation to this claimed event as there does appear to be a lack of clarity as to when it occurred. However, I do not consider that this undermines the general credibility of the applicant’s claims. He has provided a largely consistent and convincing account of his MDC involvement and difficulties he has suffered as a result. Having regard to the complexity of the claims and the period of time they cover, I consider any difficulties with the evidence to be relatively minor.

10. There was a further claim in relation to an incident in the [Town 4] area in 2000. As noted by the delegate, the applicant described coming to a roadblock as they turned a corner ‘coming from Harare to [Town 5]’. Even having regard to the map provided by the applicant’s representative in the submission of 17 August 2024 (at page 8), it is somewhat difficult to conceive of how a vehicle fleeing a rally in [Town 4] would be turning a corner coming from Harare to [Town 5]. However, these events are now many years in the past. Having regard to the generally credible nature of the applicant’s evidence covering a period of many years, I am willing to give the benefit of the doubt in relation to this incident. In any event, I do not consider that this claimed incident, almost 25 years ago, is of particular significance. Regardless of whether the applicant was present at these claimed events in 2000 as claimed, I consider that he has provided a credible and convincing account of having been targeted and harmed in a number of incidents as a result of his political involvement.

11. I accept that the applicant has been active in the MDC in the past. I accept that he remains strongly opposed to ZANU-PF and the Zimbabwean government and would wish to be involved in political activity in opposition to the government if he were to return to Zimbabwe. In its Country Information Report for Zimbabwe dated 19 December 2019, DFAT provided the following observations in relation to the position for MDC members and supporters:

    DFAT assesses that MDC members and supporters at all levels face a moderate risk of official discrimination, in that the government continues to use state authorities to restrict their ability to operate freely in the political sphere. The level and intensity of discrimination will vary according to location, and is likely to be higher in rural areas in which ZANU-PF is in the political ascendency. The discrimination may include harassment, intimidation, threatened or actual violence, and judicial harassment. The risk is likely to be higher for those involved in direct political activism, including through organising (or attempting to organise) and/or participate in street protests.[7]

    [7] DFAT, Country Information Report: Zimbabwe (19 December 2019) at p.28

12. I note that there has been some splintering of the MDC since the time of the DFAT report. For instance, a February 2022 report referred to the creation of a new opposition party, the Citizens Coalition for Change (CCC), led by Nelson Chamisa, formerly of the MDC Alliance. The report observed that the MDC had witnessed numerous spin-offs. It quoted an analyst as saying that the MDC brand had simply worn itself out and another observer as saying that the CCC would take on the role of the old MDC.[8] I accept the applicant’s evidence to the effect that he supported Chamisa as carrying forward the legacy of the MDC. I accept that the applicant continues to oppose ZANU-PF and the Zimbabwean government notwithstanding the fracturing of the opposition groupings.

    [8] D. Ehl, ‘A new hope for Zimbabwe's opposition’, Deutsche Welle (4 April 2022), accessed 23/8/2024

13. More recent information indicates that those opposed to Zimbabwe’s government continue to face targeting and abuse. I note, for instance, that in its Freedom in the World Report 2024, Freedom House reported that opposition groups continued to organise meetings but their efforts were routinely frustrated by authorities, and their campaign rallies were often denied authorisation or violently disrupted. The Zimbabwe Peace Project had reported widespread event disruption, harassment, and intimidation efforts targeting opposition groups and leaders in 2023.[9] Amnesty International has also referred to a crackdown on opposition and civil society members ahead of the Southern African Development Community (SADC) summit in Harare, noting that more than 160 people had been arrested, including opposition members.[10] In its 2023 Country Reports on Human Rights Practices, the US Department of State reported that the government regularly used arbitrary arrest and detention as tools of intimidation and harassment, especially against opposition party members, political activists, civil society members, journalists, attorneys, and ordinary citizens asserting their rights. Security forces frequently arrested individuals during and following meetings and rallies organised by the opposition political party.[11]

    [9] Freedom House, Freedom in the World 2024: Zimbabwe

    [10] Amnesty International, Zimbabwe: Authorities must end massive crackdown on dissent before SADC summit (9 August 2024)

    [11] US Department of State, 2023 Country Reports on Human Rights Practices: Zimbabwe (22 April 2024)

14. In all the circumstances, I find that there is a real chance that the applicant would suffer serious harm, including significant physical harassment and significant physical ill-treatment, for reason of his political opinion in opposition to ZANU-PF and Zimbabwe’s government. Noting that he faces harm from the ZANU-PF government, I find that the real chance relates to all areas of Zimbabwe and that effective protection measures are not available to him in Zimbabwe. I find that his political opinion is the essential and significant reason for the persecution, and that the persecution involves systematic and discriminatory conduct. In light of my findings in relation to the applicant’s political opinion, it is not necessary to assess the remainder of the claims. I would note, however, that the available evidence supports the applicant’s claim to be HIV positive and I consider that this is a factor that further increases his vulnerability to harm.

15. In all the circumstances, I am satisfied that the applicant has a well-founded fear of persecution in Zimbabwe for reason of his political opinion. I am satisfied that he meets the definition of refugee in s 5H(1)(a).

16. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

17. On the available evidence, there is no suggestion that the applicant would have a right to enter and reside in any third country such that s 36(3) would apply.

    DECISION

18. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Don Smyth
    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.

    …