2007476 (Refugee)

[2024] AATA 4374

2007476 (Refugee) [2024] AATA 4374 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sastha Ariyasinghe (MARN: 0640268)

CASE NUMBER:  2007476

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 6:31pm

CATCHWORDS
REFUGEE – protection – Zimbabwe – political opinion – trade union activist imputed as ant-government – workplace representative associated with national council – abducted, interrogated and tortured – family harassed and assaulted and house broken into while applicant in Australia – work, training and community activities in Australia – employer’s plan to sponsor – consistent claims and evidence, and supporting statements – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), 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 the applicant is a national of Zimbabwe.

2. The applicant applied for a protection visa on 18 August 2019. On 6 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 23 August 2024 to give evidence and present arguments.

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 Harare in [Year].

6. The applicant indicated that he had lived at an address in [Neighbourhood, Suburb], Harare from [Year] to [July] 2019, and that he had previously lived in [District], Masvingo from [Birth] to [Year]. He indicated that he had been employed as [an occupation 1] with [Employer 1] from [Date] to [August 2019].

7. With regard to his education, the applicant indicated that he had completed a Bachelor of [Subject 1] at [University 1] between [Year] and [Year], and that he had completed [a] Program at [University 2] in [Year] and [a Certificate] in [Subject 2], as well as [a Certificate in Subject 3], at the same institution in [Year]. He indicated that he had completed high school at [High School] in [Year], having commenced his schooling in Masvingo in [Year].

8. The applicant indicated that he was married and named his spouse as [Ms A], born in [Town]  in [Year]. He indicated that he married on [Date]. He gave contact details for his wife at an address in [Neighbourhood]. The applicant indicated that he had 3 children namely a son, [Master B] (born in [Year]), another son, [Master C] (born in [Year]) and a daughter, [Ms D] (born in [Year]). The applicant indicated that he was in contact with his wife and children by phone 3 times a week.

9. The applicant also named a number of family members, including his mother, a sister, [Ms E] (born in [Year]) who was an Australian citizen and residing in Australia, another sister, [Ms F] (born in [Year]) who was a Zimbabwean citizen residing in Australia, a brother, [Mr G] (born in [Year]) and a sister, [Mr H] (born in [Year]).

10. The applicant indicated that he was able to speak, read and write English and Shona. He described his ethnicity as Shona and his religion as Christian.

11. The applicant indicated that he had departed Zimbabwe legally [in] July 2019.

12. The applicant made written claims in his application. In summary, he claimed to have suffered persecution, victimisation and abuse from Zimbabwean authorities because of his trade union activism. He claimed to have been abducted, interrogated and tortured ‘on various occasions’. He claimed that he was first abducted [in] January 2019 when the government reacted violently to protests organised by labour unions over the increase in fuel prices and the cost of living. He stated that he had been accused of being one of the organisers of the protests. He referred to the government spying on social media platforms like [Social media]. He claimed to have taken an active role in organising the protests of 14 to 16 January 2019 with a specific role of gathering and distributing information to their membership. The government reacted to the protests with ‘militarized violence, social media clampdown and abductions and torture of many perceived "enemies of the state"’. The applicant claimed that he was tortured to force him into implicating some union leaders and being state witness in treason and subversion charges against them. He referred to the government engaging in arbitrary victimisation, abduction and torture of trade union leaders in various sectors of the economy since the protests of January 2019. The applicant provided links to reports which he said related to the protests they organised and their aftermath.

13. The applicant claimed to have been abducted on the evening of [Date] January in view of his wife and children, to have been taken to an undisclosed location and to have been interrogated. He described being mistreated. He stated that this was followed by ‘further unannounced night visits and abductions on various dates’. He stated that the ZCTU leaders were on remand and their cases were ongoing. He described the impact of this experience on himself and his children. He provided links to a number of additional reports.

14. The applicant stated that there was nowhere in Zimbabwe to run to if the state had targeted you. He described the police, army and judiciary as complicit in the systematic violence. He stated that there was nowhere to report and get help. He claimed that his abductors made clear that any attempt to engage any form of help would result in death and harm to his family. He referred to the fate of other activists. The applicant referred to a lack of judicial independence such that perpetrators of violence remained free. The applicant provided links to reports of other cases.

15. The applicant stated that the whole country was unsafe and that it was not possible to hide anywhere. He stated that even the rural areas were infested with state security personnel. The Zimbabwe African National Union – Patriotic Front (ZANU-PF) used the police, soldiers, central intelligence organisation, war veterans, village heads, the youth militia and chiefs to go after their targeted victims. The applicant provided a link to a report from Human Rights Watch which he said explained how the ZANU-PF government operated.

16. The applicant claimed that his abductors were aware of his absence and had trailed his wife. He claimed that they had also visited his house and engaged in sabotage. He described these as intimidatory tactics meant to drive him back home. He claimed to fear being abducted on arrival at the airport in Zimbabwe. He stated that the government used this tactic for those perceived state enemies who had travelled to other countries.

17. The applicant claimed to fear continued persecution and harm if he returned to Zimbabwe. He referred to the government reacting violently to a Movement for Democratic Change (MDC) Alliance arranged demonstration in August 2019. He claimed that he had made his situation worse by travelling to a first world country which they viewed as a threat. He stated that more abductions had been reported and provided further links. With regard to state protection, he described the government as a ‘tyrannical cabal’ that did not believe in democratic reforms and the ZANU-PF as being obsessed with maintaining power at all costs. He stated that the government had failed to fulfil basic human rights obligations and turned against anyone who exercised their right to claim basic human rights. He stated that he was convinced that the government had plans to silence or get rid of people like him who reminded them of the international human rights and labour conventions that they had signed. He stated that they would rather have a population in a perpetual state of submission even as their basic human rights were abused and that this was why more than 3 million Zimbabweans had fled the country. He referred to having been abducted and tortured previously.

18. The applicant also made submissions addressing relocation. He made submissions to the effect that there were no safe places and referred to people having fled into exile. He provided links to a number of reports in this regard.

19. The applicant provided a statutory declaration dated 24 August 2019 which set out further detail of his claims. I have had careful regard to the information in this statement.

20. The applicant submitted a number of documents in support of the protection visa application, including the following:

    ·     A copy of a Zimbabwe Drivers Licence.

    ·     A copy of a payslip from [Employer 1], apparently issued on 30 June 2017. This appears to record a date of engagement of 1 September 2004. It includes a deduction of 15.60 for ‘[Work sector union]’.

    ·     A bank statement for the applicant’s [Bank] account, issued on 7 August 2017.

    ·     A further bank statement for a [Bank] account issued on 4 June 2019.

    ·     A ‘Proof of Employment’ letter from [Employer 1] which recorded that the applicant had been within the group since 2003 and was handling [a] portfolio. The letter is dated 7 August 2017.

    ·     A further ‘Proof of Employment’ letter issued by [Employer 1] on 4 June 2019.

    ·     A copy of the applicant’s birth certificate.

    ·     Birth certificates for the applicant’s children.

    ·     A document of 15 April 2019 headed ‘A1 Land Offer’. This recorded that the allocation of a plot on a farm in Goromonzi District in Mashonaland East Province.

    ·     A copy of the applicant’s National Registration card.

    ·     A copy of a Vehicle Registration Book for a vehicle registered in the applicant’s name.

    ·     A copy of the bio data page from the applicant’s passport issued [in] 2010, as well as a full copy of his passport. This records the applicant’s profession as [occupation 1].

    ·     A personal particulars for character assessment form. This included details of past addresses, employment and education for the applicant. It also referred to past visa refusals in 2010 and 2011. It included information about his wife, children and parents, as well as his siblings (two sisters in Australia and a sister and brother who were deceased).

    ·     A copy of the applicant’s marriage certificate recording his marriage in Harare on [Date].

    ·     A copy of his mother’s marriage certificate and her death certificate (recording her death in May 2013).

    ·     A copy of a Zimbabwe Association of Pension Funds training certificate from 2011.

    ·     A document provided by the applicant at the interview that purports to include [Social media] screenshots recording harassment and intimidation of his family after he left Zimbabwe. The document also addressed a range of matters including the government response to the January 2019 protests, use of force against protesters, convictions related to the January protests, a January 2019 Amnesty International report, the detention of a number of activists, various cases of abduction and other mistreatment, crackdowns on activists, a 2019 UN report on Zimbabwe and reports of incidents in 2020.

    ·     A letter of 26 March 2020 from the Secretary General of the [Employer 1] Workers Committee. This referred to the applicant’s involvement in worker issues in the [work sector] and in various labour activities at national level through affiliation to the ZCTU. It referred also to threats to the applicant’s life and family.

    ·     A letter from [Employer 1], dated 19 August 2019, which accepted the applicant’s resignation.

21. The applicant attended an interview with an officer of the Department on 26 March 2020. The applicant’s representative was also present at the interview. The interview lasted for approximately 3 hours. I have listened to a recording of the interview and have had careful regard to all of the evidence provided by the applicant at the interview.

22. Following the interview, the applicant was given 7 days to provide any documents.

    Delegate’s Decision

23. On 6 April 2020 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate accepted that the applicant had worked for [Employer 1]. The delegate did not accept that the applicant had been imputed with an anti-government political opinion by the Zimbabwean authorities because of his ideological alignment. It was noted that the [Union] was listed as being affiliated to the ZCTU. The delegate accepted that the applicant was an elected representative of the [Employer 1] Pension Fund Board of Trustees from 2008 to 2013. The delegate noted that the applicant indicated in his statutory declaration that he had been re-elected to a second term on the [Employer 1] Workers’ Committee from October 2019 to November 2023. The delegate accepted that the applicant was the Organising Secretary for the [Employer 1] Workers’ Committee from August 2013 to September 2017, but did not accept that he had served in this role after September 2017 and found that the applicant had fabricated this aspect of his claims to strengthen his claims. The delegate did not accept that the applicant was a member of ZCTU and [Union] but accepted that, whilst he was on the [Employer 1] Workers Committee, he might have been imputed to be a member of both unions. The delegate had concerns about the applicant’s claimed participation with respect to the ‘Stay Away’ protests in January 2019, noting that they had found that the applicant was no longer a member of the [Employer 1] Workers Committee at this time and that the fuel protests took place from 14 to 16 January 2019, while the applicant stated that he had participated in a protest on 18 January 2019. The delegate did not accept that the applicant attended the Stay Away protest. The delegate accepted that it was possible that the applicant might have had his house raided and been taken for questioning about the protest event but found implausible his claim that he was released to take some time to think about a request for him to become a state witness. The delegate found that the applicant was released because the authorities had finished questioning him and he was of no further interest. The delegate found to be vague the applicant’s evidence about issues experienced by him and his family from 19 January 2019 to August 2019. The delegate did not accept that he and his family were intimidated, followed and threatened between 19 January and August 2019 on account of his trade union activities and connections.

24. The delegate referred to previous visa applications by the applicant. The delegate found that the applicant was not a person of interest to the Zimbabwean authorities when he departed Zimbabwe in July 2019. The delegate found that the applicant was primarily motivated to stay in Australia for economic reasons. The delegate found that the applicant did not face a real chance of persecution due to an actual or imputed anti-government political opinion. The delegate also addressed the applicant’s position as a returnee from a Western country. The delegate did not accept that the applicant had been imputed to have an anti-government political opinion as a result of having spent time in Australia or that he would be interrogated at the airport if he were to be returned. The delegate did not accept that the applicant faced a real chance of persecution in Zimbabwe because he had spent time living in a western country. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. Nor was the delegate 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

25. The applicant submitted a copy of the delegate’s decision with the review application.

26. In support of the review application, the applicant made a statutory declaration dated 2 August 2024. In the statutory declaration, the applicant made reference to the interview with the Department. He described the interview process and referred to being upset, scared and distressed. The applicant referred to findings made by the delegate. He made claims to the effect that he had a well-founded fear of persecution.

27. The applicant made claims to the effect that his family had continued to see suspicious people and cars around their house since his departure. He stated that unknown assailants had broken into his house in May 2023 and assaulted his family. He stated that his wife had been sexually assaulted. This had been dismissed by the police as a burglary but the assailants did not take anything except his wife’s laptop and mobile phone. He stated that a police report was  made but no investigations were carried out. Reference was made to a report from Amnesty International. It was submitted that Amnesty had found that individuals who spoke out or organised protests often faced persecution, and relatives had been targeted and harassed in some cases. The abduction of human rights defenders and activists had also been on the rise. The applicant stated that colleagues he had worked with in [Union] and ZCTU were still under surveillance and harassment from state security agents. In this regard reference was made to an article from [News source] entitled “[Title]”. The article, dated [June] 2021, referred to the abduction of a [Union] employee.

28. The applicant stated that the circumstances had changed for him as he had been living in Australia for more than 5 years. He referred to feeling very safe and relaxed. He referred to being worried about his family back in Zimbabwe and stated that they were still suffering due to his involvement with the protests organised by the unions. He stated that he was also a member of [Organisation] since 2021. He referred to other activities in Australia, including volunteering with [City] Family Support Service & Neighbourhood Service Centre Inc., his employment in Australia and engagement in training activities. He stated that his employer was planning to sponsor him after he completed these courses. He stated that he had been a person of good character and had paid his taxes on time. He stated that this was why his employer wanted him to be a skilled, educated employee for his company and was investing a lot of money in his training. The applicant asked that the Tribunal consider his case on compelling and compassionate grounds.

29. The submissions also addressed the complementary protection criterion. The applicant referred to matters such as high unemployment rates, disrupted services and a severe food shortage. The submission cited an extract from a report of the US Department of State. The applicant referred to an earlier Tribunal decision.

30. The applicant also provided a document headed ‘Zimbabwe Country Information Report – 20 July 2024’ which appears to be a compilation of information produced by the applicant himself. The introduction to the document referred to human rights violations and referenced a number of reports, including a report from Amnesty International entitled Human Rights Under Attack: A review of Zimbabwe’s human rights record in the period 2018 – 2023, a December 2019 report from DFAT and a 2022 report from the US Department of State. The document addressed matters such as the political environment, crackdown on trade unions, weaponisation of the law, enforced disappearances, crackdown on opposition and activists, election-related violence and intimidation, institutional failures and impunity and targeting of ‘non-influential activists’, state sponsored surveillance and intimidation, and infiltration of opposition movements. The document also addressed the economic environment, the mining sector, corruption and illicit financial flows, failed economy and social agitation, unemployment and the informal sector, and health. The document referred to a number of sources, although the sources of information set out in the document are not always clear. The submission referred to matters such as restrictions on fundamental civil rights, ongoing political repression, economic instability, and human rights violations.

1. The applicant provided additional documentation in support of the review application. This included the following:

   ·     A letter to the applicant from [Organisation] dated 23 September 2021. This thanks the applicant for his decision to become a [Category member].

   ·     A further undated letter from [Organisation] thanking the applicant for his financial support.

   ·     A financial year 2023/24 tax receipt recording the applicant’s donations to [Organisation].

   ·     A letter of 12 June 2023 from [Mr I], [Union] National Organising Secretary General. [Mr I] stated that he had worked solely with the applicant in workers’ rights activities for close to a decade. He referred to the applicant’s roles, including as Organising Secretary for [Employer 1] Workers Committee. He referred to the applicant’s desire to fight for social justice and democracy as well as against inequalities and oppression. He referred to the applicant’s personal and professional traits. [Mr I] described various activities engaged in by the applicant, including organising activities for the industry labour union. [Mr I] referred to human rights violations in Zimbabwe. He stated that the applicant and other union leaders had been specifically targeted for arrest and intimidation by the government in January 2019 due to the roles they had played in organising the 14 January 2019 mass protests. He stated that the applicant had been forced to flee the country in July 2019 due to safety concerns. He stated that the applicant had been instrumental in decision making through the consultations that they carried out on actions to take. He indicated that they continued to consult him.

   ·     A statement from the Zimbabwe Catholic Bishops’ Conference dated 9 August 2024. The document is headed ‘A Statement on the Current Situation’. The statement refers to matters such as ‘the wanton arrests of citizens under frivolous charges’.

   ·     A letter of 10 May 2023 from [Hospital]. The letter relates to [Ms A]. It refers to her having been assaulted and indicates that she was admitted on 9 May 2023 and discharged on 15 May 2023. It states that she is receiving counselling and therapy, and that she needs close monitoring.

   ·     An affidavit of 9 May 2023 which refers to an assault on [Ms A]. It refers to injuries and describes them as very serious.

   ·     Receipts from [an Institute] for an Advanced Diploma of [Subject 4] course.

   ·     A letter of 22 July 2024 from [Mr J] who describes himself as a supervisor at [Employer 2]. The letter refers to the applicant’s employment, and to his qualities, capabilities and attributes. It also refers to matters such as the applicant’s uncertain visa status, his separation from his family and his motivation to build a secure life for himself and his family. [Mr J] expresses the view that grant of a permanent visa will allow the applicant to contribute positively to the business and the community.

   ·     A letter of offer from [Employer 2] dated 26 February 2021. This refers to the applicant being offered a position in the [Work section].

   ·     Letters from [Employer 2], dated 13 January 2023 and 25 July 2024, referring to a grade change to the applicant’s position and to professional development proposed for the applicant.

   ·     A letter from [Mr K], a manager at [Employer 2]. This describes the applicant’s employment and addresses matters such as his skill, professionalism, dedication, proficiency and other attributes. [Mr K] expresses confidence that the applicant will continue to excel and bring great value to the organisation.

   ·     A letter of 11 July 2024 from [Mr L] who describes himself as a member of the [City] African community and indicates that he has known the applicant since November 2019. [Mr L] refers to matters such as the applicant’s contributions to the community and qualities. He also describes the applicant’s resilience and determination. [Mr L] expresses the view that the applicant’s ongoing presence contributes to the social and cultural fabric of Australia.

   ·     A letter of 15 July 2024 from [Mr M] who indicates that he has known the applicant for over 4 years.  He refers to matters such as the applicant’s qualities, attributes and contributions. He expresses the view that Australia will greatly benefit from having the applicant as a permanent resident.

   ·     A letter of 26 July 2024 from [Ms E] who describes herself as the applicant’s sibling. She expresses the view that granting the applicant asylum will be mutually beneficial for the applicant and Australia. She refers to matters such as the applicant’s qualities, attributes and contributions. She also describes the applicant’s contribution to the family.

   ·     A letter of 24 April 2020 from [Ms N], Manager of [City] Family Support Service & Neighbourhood Centre Inc. [Ms N] describes the nature of her connection with the applicant. She describes the applicant’s qualities and attributes. She states that she finds the applicant’s story of persecution at the hands of the Zimbabwean authorities for participating in union activities very believable. She refers to the applicant having made some honest mistakes when preparing his claim for protection and to the pressures the applicant has been under. She expresses the view that the applicant will prove himself to be a valuable member of the community.

   ·     A letter of 14 July 2024 from [Ms O] who describes herself as a close friend of the applicant and attests to his genuine need for protection and his character. She refers to matters such as the applicant’s reasons for leaving Zimbabwe, his attributes and his contributions. She expresses support for the applicant’s application for asylum.

   ·     Various taxation documents relating to the applicant.

   ·     A Vocational Education and Training transcript for the applicant.

   ·     A copy of the applicant’s Curriculum Vitae. This includes reference to his employment with [Employer 1] and his academic qualifications.

   ·     A letter of 30 April 2020 recording the issue of a Blue Card to the applicant.

   Tribunal Hearing

2. The applicant attended a Tribunal hearing on 23 August 2024. I have had regard to all of the applicant’s oral evidence at hearing, although it is not necessary to set this out in full. Aspects of this evidence are summarised below and referenced also in the consideration of the claims and evidence.

3. At the hearing, the applicant confirmed details of his history and background in a manner that was generally consistent with information he had provided in his written and oral evidence to the Department. In summary, he indicated that he was born in Harare, that he grew up in Masvingo Province, that he completed his A Levels in Harare and that he lived in Harare from [Year]. He confirmed details of his address in [Neighbourhood, Suburb] in Harare. He indicated that the property there had been owned by his mother who passed away in May 2013. He gave evidence that he did not know his father. He had lived at the address in [Neighbourhood] with his wife and 3 children. He indicated that his wife, [Ms A], had worked as [an occupation 3] for [Employer 1] until she was retrenched in 2023. They married in [Year]. Her family came from [Town] in Mashonaland East Province. The applicant indicated that he was still in contact with his wife and that she was still living in the same home in Harare. He confirmed the details of his 3 children. The applicant indicated that he had 2 surviving sisters, both of whom were now citizens in Australia. The applicant outlined his sisters’ history in Australia and confirmed that he was in contact with his 2 sisters. The applicant indicated that there were still members of his extended family living in [the] District where he grew up. With regard to his education, the applicant gave evidence that he had received a Bachelors degree in [Subject 1] in 2016 and that he had paid for this study himself. The applicant gave evidence about his earlier visa applications.

4. The applicant gave evidence about his work at [Employer 1] and his engagement with employee issues there. He indicated that he had commenced with the [employer] in 2003 (although it operated under a different name at that time) and described the nature of his work. He gave evidence to the effect that he had been a trustee on the board of the [Employer 1] Pension Fund from 2008 to 2013, that he was Organising Secretary for the workers committee from 2013 to 2017 and that he was elected again from 2017 to 2021. The applicant gave evidence about how he came to be elected to the [Employer 1] Pension Fund and about the nature of that role. He gave evidence to the effect that there was some overlap between that role and trade union activity, saying that the mandate was to manage the pension fund but it became a worker grievance issue.

5. When asked about whether he had been a member of a union, the applicant gave evidence to the effect that he had been a member of [Union]. He indicated that, when he had filled out his initial employment forms at [Employer 1], he had ticked a box to be a union member. He indicated that union fees were deducted by the employer. While his evidence was that union membership was optional, the applicant gave evidence to the effect that the majority of workers in his workplace were union members. The applicant confirmed that he had been re-elected to the workers committee from 2017 to 2021. When asked about why his statutory declaration stated that he had been re-elected for another 4-year term in October 2019, the applicant described this as an error on his part and described being in a state of confusion and fear when he completed the statutory declaration.

6. The applicant described how he had come to be a member of the [Employer 1] Workers Committee, giving evidence to the effect that he had been approached by workers to perform this role. He described his role as organising secretary, referring for instance to involvement in organising events, recruitment and liaising with police in relation to picketing activities. When asked about how often he participated in protest and picketing activities, the applicant stated that it was dependent on the situation. He referred to being part of [Union] and said if another [employer] was mistreating workers they would picket on their behalf. When asked about involvement in negotiation with management, he referred to meeting with management almost every month as well as liaising when there was collective bargaining. He said if someone was dismissed he would have to be there as well. The applicant described the relationship between the workers committee and [Union], and between [Union] and the ZCTU. When asked about an example of an issue he had been involved with, the applicant referred to the protests on 14 January 2019. He also described issues around 2016 involving [Company 1] and matters involving [Company 2]. He referred to being involved in activities such as picketing, engagement and dissemination of information.

7. The applicant was able to describe also what motivated him to be involved in union activities. When asked about the claim in his statutory declaration that he subscribed to the workers protection agenda, the applicant stated that the party that had managed to make a significant impact was the MDC. He said that it was formed out of the unions and the ZCTU in particular. He described trade unionism and workers rights as a big issue in Zimbabwe, and said that this was why the government was going against trade unions. He stated that he was not a member of the MDC but shared the same vision. The MDC emanated from the labour movement he was a part of. He said their views on workers’ rights were the same.

8. The applicant gave evidence to the effect that he had stayed in touch with colleagues in [Union] since he had been in Australia, although he said his participation had been limited by the fact he had family in Zimbabwe. He referred, for instance, to having contact with the Organising Secretary, [Mr I]. When asked why he had not provided the Department with a letter or documentation from [Union], the applicant referred to the delegate asking about a joining form for [Union] and noted also that he had been given 7 days to get relevant information which he described as a short time. The applicant described how he knew [Mr I], indicating that they had previously worked together at [Employer 1] and that [Mr I] had been a member of the workers committee.

9. The applicant described his role in relation to the January 2019 protest. In summary, he gave evidence to the effect that he was doing information gathering and that he also had an organisational role. He described the background to the protests. He gave evidence to the effect that the protest was intended to be a ‘stay away’ and said that as a union they wanted to find out who was continuing to operate. He referred to people being agitated and to this resulting in a fully fledged national protest. The applicant described being present at the protests and gave evidence about what happened on 14 January 2019. He described how he was able to escape by jumping into a car and how he shared information with other [Union] members via [Social media]. When asked whether he was chased during the protest, he stated that there were police and soldiers coming in his direction and that he ended up running. When asked why the people in the car picked him up, he said he was waving and appealing for help. They stopped and he jumped in. The applicant gave evidence about being dropped off in the [Location] area and walking home from there.

10. When asked about whether he had had any problems with the authorities on 14 January, the applicant replied in the negative. He went on to give evidence to the effect that they had come to his home at 7.00pm on [Date] January. He described being held overnight and being dropped at [a] Shopping Centre the next day. The applicant described being mistreated and interrogated during his detention. He described being asked, for instance, about the organisation of the protests and about ZCTU leaders. He gave evidence to the effect that he was asked to sign a statement.

11. The applicant also gave evidence about having been harassed after his release. For instance, he described being followed on numerous occasions. He described a number of incidents, including an incident in a fuel queue in which people opened the doors of his car and asked about planned protests and an incident in which he was followed while going to his aunt’s place. He described people turning up out of nowhere. The applicant gave evidence about continuous surveillance and about people coming to the house in August 2019 when he had already left and tampering with property. When asked about his employment up until the time he left Zimbabwe, the applicant stated that he had no option but to keep working, and that he had been threatened about talking about it. He indicated that he was not charged with any offence. The applicant confirmed that he left Zimbabwe legally. He said that his visa had a timeframe for his return. He indicated that the ZCTU leaders had been acquitted but said they were not free persons. He claimed that people were still being arrested or charged for the protests that happened in 2019. He made claims to the effect that there was a database of people who organised the protest and expressed concern that he would be on the database. He referred to his house being near a training facility for the Central Intelligence Organisation.

12. The applicant gave evidence to the effect that he would be involved in union activities if he were to return to Zimbabwe and described himself as a human rights defender and activist. He referred to his involvement in [Organisation] in Australia.

13. I discussed with the applicant other aspects of his claims, including his claim that he would be held at the airport in Zimbabwe and aspects of the independent country information. With regard to his claimed involvement with [Organisation], I also discussed with the applicant the effect of s 5J(6). The applicant referred to wanting to help others and said it was not to support his case. I discussed with the applicant aspects of the documentary evidence he had provided, including medical reports referring to his wife having been assaulted. He gave evidence to the effect that his wife had been assaulted in 2023, and that a laptop and phone were stolen. He made claims to the effect that this was related to his case.

14. I discussed with the applicant other aspects of his claims, including claims related to the economy, health services and corruption in Zimbabwe. The applicant also gave evidence about having received counselling in Australia in around 2021.

    CRITERIA FOR A PROTECTION VISA

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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

21. The applicant has given evidence at some length over the course of his written statements and his appearances at the Departmental interview and Tribunal hearing. The applicant’s claims have been largely consistent over time. In my view, the applicant has provided a credible and convincing account of his involvement in the [Employer 1] workers committee. For reasons discussed further below, I accept also that the applicant was a member of [Union] and that he was actively involved with the union.

1. I note that the applicant provided a detailed account at interview with respect to how he came to be involved firstly with the [Employer 1] Pension Fund Board of Trustees and then with the [Employer 1] workers committee. He also provided detail about the nature of his role and activities. He was able, for instance, to provide a convincing description of how he was elected to these roles and of particular activities that he was involved in such as engaging in collective bargaining, representing a staff member who had been implicated in fraud and negotiating cushioning allowances. His evidence about these matters at hearing was consistent with the information he had provided to the Department. He displayed a level of sophistication in his knowledge of the financial services sector in Zimbabwe and of the particular issues affecting workers in that sector. He provided the Department with a letter from the Secretary General of the [Employer 1] workers committee. In all the circumstances, I find credible and convincing the applicant’s evidence about having been involved in both the board of trustees of the pension fund and the workers committee. I accept that he was a member of the pension fund board of trustees from 2008 to 2013 and that he represented workers in this capacity. I accept that he was then elected to the [Employer 1] workers committee in 2013 and that he represented workers by engaging in activities such as negotiating with management and representing other staff members in relation to industrial issues.

2. I note that the delegate did not accept that the applicant continued to be a member of the workers committee after 2017 and found that the applicant had fabricated this aspect of his claims. As noted by the delegate, the applicant’s statutory declaration of 24 August 2019 stated that the applicant had been elected to the workers committee for a 4-year term from August 2013 to September 2017, and that he had been re-elected for another 4-year term in October 2019. The applicant has claimed that the reference to October 2019 was an error. Noting that the relevant statutory declaration was prepared prior to October 2019 and that the applicant has otherwise provided a credible and consistent account of his involvement in the workers committee, I accept that the reference to having been re-elected in October 2019 was simply an error. I accept that the applicant is claiming that he was elected to another 4-year term after the expiry of his initial term in September 2017. In all the circumstances, I accept that the applicant was elected to a further 4-year term in October 2017 following the expiry of the initial term in September 2017 and that the applicant continued his activities in the workers committee until the time of his departure from Zimbabwe.

3. The question of whether the applicant was a member of [Union] was also an issue of some significance in the delegate’s decision. Based on the available independent evidence, I accept that workers committee members may also be members of the relevant industry union. Indeed, s 23(1b) of Zimbabwe’s Labour Act provides that, if a trade union is registered to represent the interests of not less than 50 per cent of the employees at the workplace where a workers committee is to be established, every member of the workers committee shall be a member of the trade union concerned.[1] The applicant’s evidence at the hearing was to the effect that he had joined the union at the time when he was first employed with [Employer 1] and that his employer took deductions to pay for his union fees. In this regard, I note that the applicant has provided the Tribunal with a copy of a pay slip in relation to his employment at [Employer 1] and that this pay slip records a deduction from his wages of 15.60 with respect to ‘[Union]’. While the pay slip was submitted as evidence of the applicant’s employment rather than his union membership, it does in fact provide strong corroboration for his claim that he was a member of [Union] and paid membership fees. I find that the pay slip shows a deduction for fees to [Union] and that this is consistent with his being a [Union] member. The applicant has also provided the Tribunal with a letter which purports to be from [Mr I] of [Union] and describes the nature of the applicant’s relationship with [Mr I]. I note that there are independent reports referring to [Mr I] as a national organiser with [Union].[2] In considering the letter, I am conscious that the applicant did not provide the Department with any documentation directly from [Union]. However, having listened to the recording of the Departmental interview, I accept that the applicant was provided with 7 days after the interview to provide additional documentation. Even having regard to modern telecommunications methods, I consider that this a relatively short period to obtain documentation from an organisation in a country overseas such as Zimbabwe and that this provides a reasonable explanation for not producing such documentation to the Department. I attach some weight to this document.

   [1] Labour Act [Chapter 28:01], accessed on 23/8/2024; see also See, for instance, International Trade Union Confederation, Zimbabwe - ZIBAWU leaders tried for criminal nuisance (undated), accessed 26/8/2024

As noted above, the applicant’s membership of [Union] is in any event evidenced by the pay slip provided to the Department. In his oral evidence, the applicant displayed a sophisticated understanding of industrial issues in the financial services sector. He has provided a credible and generally consistent account of his claimed membership and involvement in [Union]. I attach some weight to the letter from [Mr I]. In all the circumstances, I accept as credible the applicant’s evidence about his membership of, and involvement in, [Union]. I accept that he was a member of the union from the time he joined [Employer 1] in 2003 and that, particularly after he became a member of the workers committee, he was involved in activities with [Union] such as organising events, recruiting members and distributing information. The applicant displayed less knowledge of specific industrial issues extending beyond the [work] sector, and I find that his activities were predominantly focused on that sector. Nevertheless, independent evidence indicates that [Union] is affiliated to the ZCTU,[3] and I accept that the applicant’s activities led him to be associated with the ZCTU.

[3] ZCTU, Affiliates (2021), accessed 26/6/2024

The applicant has consistently claimed that he was involved in a protest in January 2019 and that he was arrested in the wake of that protest. I accept that his evidence is to the effect that he participated in a protest on 14 January 2019 and that he was subsequently arrested on 18 January 2019. Independent reports refer to security forces having arrested hundreds of suspects in January 2019 following a national ‘stay-at-home’ protest called by unions after a massive increase in the price of fuel. Reports indicated that the protest commenced on Monday, 14 January 2019.[4] Reports referred to mass protests in Harare and other places on 14 January 2019.[5]

[4] See J. Burke, ‘Zimbabwean activists on run as protests crackdown raises spectre of Mugabe era’, The Guardian (19 January 2019)

[5] Zimbabwe Human Rights NGO Forum, On the Days of Darkness in Zimbabwe (6 February 2019)

I note that, in its Country Information Report of 19 December 2019, DFAT provided the following information in relation to the January 2019 unrest:

In addition to the 1 August 2018 post-election violence, security forces reportedly killed at least 17 demonstrators in mid-January 2019 during nationwide protests (‘the fuel protests’) against the government’s announcement of a forthcoming 150 per cent fuel price increase. Fourteen of those killed were shot dead reportedly by security forces using live ammunition. Two died from injuries sustained following severe beatings, while in another case an army truck ran over and killed a 54-year old woman in unclear circumstances. Most of the 14 men and three women killed were from the Harare area. The Zimbabwe Association of Doctors for Human Rights reportedly provided emergency medical services to 81 people with gunshot injuries in various locations nationwide in the period between 14-21 January 2019.[6]

[6] DFAT, Country Information Report Zimbabwe (19 December 2019) at p.25

DFAT reported also that security authorities were suspicious of the motivations of civil society organisations and saw their activities as a threat to national stability, particularly in the wake of the January 2019 fuel protests.[7] Human rights observers reported numerous cases of alleged torture in relation to security crackdowns following the 1 August 2018 post-election demonstrations and the January 2019 fuel protests.[8] DFAT also reported on large numbers of people being arrested following the January 2019 protests, stating:

Civil society groups reported that security forces indiscriminately rounded up and detained hundreds of people for allegedly participating in the January 2019 fuel protests. Police and army personnel reportedly carried out seemingly indiscriminate door-to-door raids in a number of Harare suburbs, forcibly entering homes by breaking doors and windows. Many of those arrested were quickly convicted on charges of public violence and criminal nuisance, in trials criticised by observers as unfair and lacking due process. DFAT understands that a number of senior MDC party officials and ZCTU leaders arrested in connection with the protests remain in custody, while others have been released on bail but remain subject to legal proceedings. Human rights observers also reported a number of cases of arbitrary arrest and detention during and following the 1 August 2018 post-election demonstrations.[9]

[7] DFAT, Country Information Report Zimbabwe (19 December 2019) at p.30

[8] Ibid. at p.46

[9] Ibid. at p.47

The applicant’s evidence about his involvement in a stay away protest on 14 January 2019 is consistent with independent reporting about events at that time. For reasons set out above, I accept that he was an active member of [Union] at that time and it is entirely plausible that, as an active member of a union affiliated with the ZCTU, the applicant was involved in the organisation of the stay away protest. He has maintained a generally consistent account with regard to the nature of his involvement. He has highlighted his role in gathering information and monitoring the implementation of the protest as well as in disseminating information. The applicant has maintained a generally consistent account of his own experiences on 14 January 2019, describing how the protests expanded beyond what had been anticipated, how he was then involved in those protests, how he fled and was able to escape in a vehicle, and how he then shared information with other union members on social media. There were some small discrepancies between his evidence at interview and his evidence at the hearing in relation to matters such as the precise number of people in the vehicle in which he fled and the time it took him to walk home. However, having regard to the passage of time and the traumatic and chaotic nature of the claimed events, I do not consider these discrepancies significant. As to whether the applicant was personally chased during the protest, I do not consider that there is a discrepancy of any significance between his written evidence in his statutory declaration and his oral evidence at interview and hearing. The gist of his evidence at the hearing was that there were soldiers and police coming in his direction and that he ended up running. I consider it entirely plausible in the circumstances of a violent protest that a person might consider that they were being chased even if this was not directed at them personally but rather at the broader group of protesters. In all the circumstances, I accept that the applicant participated in the protest in Harare on 14 January 2019 and that he also participated in the planning and organisation of the protest as a member of a union affiliated to the ZCTU.

The applicant has consistently claimed to have been picked up from his house on 18 January 2019 and to have been detained overnight and interrogated. He has provided a generally consistent account of this event over time. I have some difficulty accepting that the applicant was asked to sign a statement implicating the leadership of the ZCTU, that he was then released without in fact signing such a statement and that people subsequently came to his house to remind him about the unfinished business. However, while I consider that there may have been some embellishment in this regard, I find that this does not fundamentally undermine the broader credibility of his claim to have been detained on 18 January 2019, to have been held overnight and to have been released. While it may be that the applicant was released without charge, I do not consider that this indicates that he was of no ongoing interest to authorities. The independent evidence indicates that Zimbabwean authorities went to some lengths to target and intimidate those involved in the January 2019 protests, including union leaders and members. In these circumstances, the applicant’s profile was one that placed him at ongoing risk. I do not consider that an ability to depart Zimbabwe legally is necessarily at odds with a person having a profile that might place them at risk of future harm. In this regard, I note that DFAT has reported that Zimbabwean immigration and border authorities are significantly underfunded and face significant capacity restraints that can affect their ability to enforce travel restrictions.[10] I have accepted that the applicant was not charged but consider nevertheless that his profile was one that place him at ongoing risk.

[10] Ibid. at p.56

Having regard to the nature of his involvement and to the independent evidence, I accept as credible that the applicant and his family suffered further harassment and intimidation from authorities in the wake of his release in January 2019. He has provided a consistent account of instances such as an incident in which someone jumped into his car when he was queueing for fuel and asked about union matters, and an incident in which he was followed to his aunt’s house. While it may be that there was an incident at his house after his departure in which the electricity supply box was damaged, it is less clear whether this was connected to the applicant and his activities. Similarly, while I accept on the available evidence that the applicant’s wife was assaulted in May 2023 and that this was a very traumatic event, I have some doubt that this incident, almost 4 years after the applicant’s departure, was linked to the applicant and his past activities. Nevertheless, even putting to one side these claimed events subsequent to his departure, I accept that the applicant did attract some attention after his release in January 2019 in the form of harassment and intimidation. This is consistent with information in DFAT’s Country Information Report of December 2019 to the effect that civil society activists working in areas perceived by the government as political faced a high risk of official discrimination, including harassment and intimidation.[11]

[11] Ibid. at p.30

In summary, I accept that the applicant was a member of the workers committee at [Employer 1] from 2013 until the time of his departure from Zimbabwe. I accept that he was a member of the [Union] and that he was actively involved in that union, including with respect to the January 2019 stay away protest. I accept that he was detained on 18 January 2019, and that he was interrogated and mistreated. I accept that he subsequently experienced harassment and intimidation from the authorities. At the hearing, the applicant spoke with some force about his views in opposition to Zimbabwean authorities. I accept that his membership of, and involvement in, [Organisation] reflect a genuine concern about human rights, and that he has engaged in these activities in Australia otherwise than for the purpose of strengthening his refugee claims. While his involvement in [Organisation] has been at a low level, I accept that, if he were to return to Zimbabwe, he would involve himself in the activities of civil society in opposition to the ZANU-PF government as he has in the past. I accept that he has a profile already on the basis of his past activities. I accept that the applicant in fact has a political opinion in opposition to ZANU-PF and the government, that his union activities reflect this and that they would be seen in this way by ZANU-PF and the government.

In its December 2019 Country Information Report, DFAT assessed that civil society activists who work in areas perceived by the government as being political, including those connected to human rights, face a high risk of official discrimination, which may include harassment, intimidation, monitoring, arrest, and judicial harassment.[12] It assessed that trade unionists affiliated with the ZCTU faced a moderate risk of discrimination in the form of monitoring, intimidation, arrest, and threatened or actual violence, particularly during periods of labour unrest, and that this risk was higher for those in leadership roles.[13]

[12] Ibid. at p.30

[13] Ibid. at p.35

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 (ZPP) had reported widespread event disruption, harassment, and intimidation efforts targeting opposition groups and leaders in 2023. Human Rights Watch noted that union leaders were often charged with subversion.[14] 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.[15]  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. The State Department reported that opposition members, unions, civil society activists, and street vendors often faced arrests, and in some cases police violence.[16]

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

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

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

In all the circumstances, I find that there is a real chance that the applicant would suffer serious harm, including physical harassment and 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.

1. 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).

2. 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).

3. 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

4. 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.

   …