2007730 (Refugee)

2007730 (Refugee) [2024] AATA 1526 (5 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Marg Le Sueur (MARN: 0108212)
CASE NUMBER:  2007730
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Bridget Cullen
DATE:5 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first-named Applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second and third-named Applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.

Statement made on 5 February 2024 at 1.26pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – member of opposition party – membership of particular social groups – women who have experienced family violence – returned failed asylum seeker – HIV positive people – work with specified people, gathering information about conditions in specified places – arrested, detained, assaulted, sexually abused and threatened – straightforward and credible evidence – country information – political instability and danger of actual or imputed lack of support for government – members of family unit children – exposure to violence, stress and trauma – son assaulted – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2020 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicants who claim to be Zimbabwe, applied for the visas on 29 November 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the Applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The Applicants appeared before the Tribunal on 8 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who is the first-named Applicants’ partner. The second-named Applicant is the son of the first named Applicant. The third-named Applicant is the daughter of the first-named Applicant (and sister of the second-named Applicant).
The Applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). 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).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In determining whether the Applicant meets the refugee or complementary protection criteria, the key issues in this matter are:
·Whether the first-named Applicant (“Applicant”) has a well-founded fear of persecution in Zimbabwe; and
·Whether there is a real risk of significant harm in Zimbabwe for the Applicant and her two dependents, [the second-named Applicant] and [the third-named Applicant].
Nationality and identity
On the basis of the identity evidence submitted to the Department, including copies of the passport of the Applicants, the Tribunal accepts that the Applicants are who they claim to be and are citizens of Zimbabwe. The Applicants’ claims will be assessed on this basis. There is no evidence before the Tribunal that the Applicants would be excluded from Australia’s protection obligations on the ground set out in s 36(3) of the Act.
APPLICANT’S BACKGROUND AND PROTECTION CLAIMS
Protection claims made to the Department
The Applicant submits that she meets the criteria for a protection visa because she faces a real risk of persecution and serious harm due to her:
·actual political opinion (as a Member/Supporter of the Movement for Democratic Change (MDC));
·imputed political opinion; and
·membership of the following particular social groups:
owomen who have experienced family/domestic violence at the hands of Zanu-PF family members;
oreturnees, including failed asylum seekers; and
oHIV positive people in Zimbabwe who are not Zanu-PF members.
The Applicant’s political opinion
The Applicant’s claims to the Department of Home Affairs regarding her affiliation with the Movement for Democratic Change (MDC) are summarised below:
·From 1999, the Applicant and her family have all been supporters and/or members of the MDC party.
·The Applicant has assisted the MDC party since 1999 in a number of election campaigns playing various roles.
·From 2011, the Applicant worked as [an Occupation 1] in Harare [doing job tasks with] prisoners, including MDC political prisoners.
·In 2002, the Applicant was arrested for attending a MDC women’s rally at [Location] and was held at the police station for four days where she was assaulted and sexually abused.
·Through the Applicant’s work as [an Occupation 1], she secretly gathered information about prison conditions and the MDC political prisoners circumstances and relayed this information to activists to raise public awareness and funds for the prisoner’s needs.
·In 2002, the Applicant accepted an arranged marriage to now ex-husband, [Mr B], thinking she would be safer living with him because he lived in the city and was a strong ZANU-PF supporter.
·After marriage, the Applicant used [Company] equipment to secretly produce marketing material for MDC for various affairs including elections, but no longer actively campaigned for them.
·In 2008, the Applicant became a youth activist again, and in January that year government agents broke into her home in Harare and assaulted her and her [son] while threatening to kill her if she continued to support MDC.
·The day after the assault in January 2008, the Applicant claims that she fled Harare with her son [the second applicant] to live with her nephew [in] Bulawayo.
·The Applicant claims that she gave birth to her daughter in March 2008 prematurely due to the assault in January 2008 and the stress experienced from that occasion.
·The Applicant claims she was tipped-off that she was no longer safe and fled Bulawayo with her two children to [Country].
·The Applicant claims she has experienced multiple incidents of harm due to her affiliation with the MDC and her contribution to their activist work, including:
odenial of medical aide and food;
ohouse invasions;
overbal threats of physical harm;
ounlawful arrest and detention; and
orape and physical abuse at the hands of the Zimbabwean authorities and/or agents of them.
The Applicant’s experience of domestic violence
The Applicant’s claims to the Department of Home Affairs regarding her experience of domestic violence from her marriage to [Mr B]:
·The Applicant accepted an arranged marriage to now ex-husband, [Mr B], in 2002 thinking to escape from [Location] and that she would be safer living with him in the city.
·The Applicant entered into a traditional marriage with [Mr B] in 2002, she was his third traditional wife and she did not know that he had other wives when she married him.
·The Applicant and [Mr B] formally married in the church in [2006].
·The Applicant and [Mr B] had two children together:
o[the second applicant] born in [Year]; and
o[the third applicant] born in 2008;
·The Applicant claimed the relationship was never a happy one and she suffered long term domestic abuse from [Mr B].
·The Applicant claimed she reported [Mr B] to the Zimbabwean authorities on a number of occasions but this made no difference.
·The Applicant claimed she separated from [Mr B] on a number of occasions, but returned to him finding it too difficult to live as a single mother in Zimbabwe.
·In 2012/2013 the Applicant’s relationship with [Mr B] significantly deteriorated.
·In 2014 the Applicant obtained a visitor visa to Australia, she intended to remain in Australia but [Mr B] convinced her their relationship would improve and to stay in Zimbabwe; the relationship did not improve.
·In 2015 [Mr B] married a fourth wife; a woman who was [an Occupation 2] from [Workplace] located near [Mr B’s] [farm].
·The Applicant claimed in 2015 she decided she could no longer tolerate the abuse and pretended to be a committed wife in order to secure another visitor visa to Australia in 2016.
·In 2016 the Applicant entered into a de facto relationship with [Mr D] which lasted up until she left for Australia.
·The Applicant claimed that since arriving in Australia she has had phone contact with [Mr B] to give updates on their children, he blamed her for his financial problems.
·In November 2016 the Applicant returned to Zimbabwe to sign paperwork for [Mr B] to independently access the [Company] bank accounts.
·In 2019, after the Applicant returned to Australia, she officially divorced [Mr B].
·The Applicant claimed both her children have suffered stress and trauma due to their exposure to violence in Zimbabwe.
·Now in Australia, [Mr B] does not financially support the children.
The Applicant’s also claimed that her son, [the second applicant], was assaulted in 2015 in Harare:
·The Applicant claimed that in 2015 people came to her home in the middle of the night looking for her. She was not home but her son was and that they beat him and injected him with chemicals and possibly sexually assaulted.
The Applicant’s HIV status
The Applicant’s health claims to the Department of Home Affairs:
·The Applicant claimed she was diagnosed with HIV in 2009.
·The Applicant claimed that [Mr B] refused to be tested for HIV which concerned her that he could infect her with a drug resistant HIV virus strain.
·From 2009 to 2013 the Applicant claimed she received free treatment from a government clinic for her condition.
·The Applicant claimed she can no longer receive free treatment for her Human Immunodeficiency Virus (HIV) due to the change of government and her role with the correctional facilities.
·The Applicant claimed because of Zimbabwe’s high inflation rate the HIV medication was too expensive to buy privately in Zimbabwe so she used her church contacts to source the medication from [Country].
·The Applicant claimed she has been receiving HIV treatment in Australia since 2017 and her HIV is well controlled using the current anti-retroviral medication, Biktarvy.
The Applicant’s [work]
The Applicant’s claims to the Department of Home Affairs of her involvement from 2012 to 2015 in [a Church] and Prison Human Rights Activism:
·In 2011 the Applicant trained to become [an Occupation] and undertook supervised [work] in Harare correctional centres between 2012 and 2013.
·In 2011 the Applicant became friends with a journalist [who] held shared the Applicant’s view to make a change.
·The Applicant claimed she provided information about the prisons to the journalist when the journalist was denied permission to visit the prisons, including:
oinmate stories;
odeaths that occurred;
otransfer of prisoners without their families knowledge; and
oone or two videos and photographs from inside the prison;
and this helped to raise public donations for prisoners.
·The Applicant claimed she provide support to all prisoners, including those who had been sentenced with political crimes relating to MDC.
·The Applicant claimed that there was no retribution for her work as [an Occupation] until the government lost power in 2013, she then begun to experience harassment.
·In 2014 to 2015 the Applicant commenced unsupervised casual correctional centre visits to [named] Maximum Security Prison, [female] prison and [Central] prison.
·The Applicant claimed she [details deleted].
·In 2014, on several occasions, the Applicant claimed she was harassed and threatened with death by members of the Secret Police and military.
·In 2015 the Applicant claimed she was arrested at the [named] Maximum Security prison whilst doing her [work] and taken to Central prison where she was detained and isolated for three months without charge.
·The Applicant claimed whilst detained in the Central prison for three months she was treated inhumanely and repeatedly sexually assaulted, her health deteriorated and she contracted shingles.
·The Applicant claimed she was released without charge because the authorities did not have a criminal case against her, it was more to scare her so she would stop her support of political prisoners and MDC activism.
·In 2016 the Applicant tried to continue her [work] but was denied access to the prisons.
·In Australia the Applicant began doing volunteer [work] at [named] women’s prison until she found paid work and was unable to continue.
The Applicant’s fear of serious harm
The Applicant’s claims to fear serious harm, if required to return to Zimbabwe:
·The Applicant and her children will be harmed and/or killed by the government of Zimbabwe through its police, military and intelligence officers because of her involvement with MDC party and her work as a human rights activist.
·The Applicant and her children will be harmed and/or killed by the Zimbabwe African National Union – Patriotic Front (ZANU-PF) activists because of her involvement with MDC party and her work as a human rights activist.
·The Applicant will be harmed by her well-connected ex-husband, [Mr B], because of the issues she has caused him.
·The Applicant will be denied access to free HIV medication through the Zimbabwean medical system because of her involvement with the MDC party.
·The Applicant will not be able to rely upon the Zimbabwe police to protect her.
·The Applicant could not safely relocate to another part of Zimbabwe to avoid harm.
Evidence provided to the Department and Tribunal
The Applicant provided the following evidence to support her claims to the Department and Tribunal:
·Certified copy of the Applicant’s passport.
·Certified copy of [the second applicant]’s passport.
·Certified copy of [the third applicant]’s passport.
·Certified copy of [Mr B’s] Zimbabwean’s passport.
·Certified copy of Applicant’s Birth Certificate.
·Certified copy of [the third applicant]’s Birth Certificate.
·Certified copy of [the second applicant]’s Birth Certificate.
·Applicant’s Zimbabwe Drivers Licence, dated [2015].
·[The second applicant’s] Queensland [Drivers Licence] expiry [2024].
·Applicant’s National Identity cards for Republic of Zimbabwe, issued [1999] and [2008].
·Applicant’s submissions dated 23 October 2019.
·Statutory Declaration of [Ms F] signed and dated 1 October 2019.
·Statutory Declaration of the Applicant signed and dated 21 October 2019.
·Statutory Declaration of [name deleted] signed and dated 4 October 2023.
·Statutory Declaration of [the second applicant] signed and dated 16 October 2023.
·Updated Statutory Declaration of the Applicant signed and dated 21 October 2023.
·Applicant’s photograph with shingles per her statutory declaration.
·Certified copy of the Applicant’s MDC membership card that expired in [2016].
·2012 paperwork relating [Mr B]’s acquisition of farming land in [Location] from the government.
·[Pharmacy 1] Statement of Account from 1 May 2018 to 31 May 2018.
·[Pharmacy 1] Eftpos Customer Receipt dated 6 July 2018.
·[Pharmacy 2] Tax Invoice, supply date 4 May 2018.
·Certified copy of Local Preachers Certificate [Church] Zimbabwe.
·Certified copy of a Recommendation letter [Church] Zimbabwe.
·Zimbabwe land hold grant (ex-husband).
·Zimbabwe Magistrate paperwork application for child maintenance.
·Divorce Order Family Court Australia.
·[Organisation 1] support letter ([the third applicant]).
·[Organisation 1] support letter ([the second applicant]).
·[Organisation 1] support letter (Applicant).
·[Newsletter] featuring article about Applicant, dated 30 October 2017.
·2006 signed Memorandum of Agreement between [two named persons] and [Company] presented by [Mr B] for a [Size]m2 vacant piece of land in the [District] in [Township] – purchase price $[Price].
·Certified copy of Zimbabwe Certificate of Incorporation for [Company].
·Certified copy of Form CR14 The Companies Act registering [Company].
·Certified copy of Form CR6 Companies Act registering the address of [Company] at [Address], Harare.
·[Qld Health] medical letter about the Applicant by [a] Sexual Health Physician, dated 31 October 2019.
·Undated pre-hearing Submissions to the Administrative Appeals Tribunal received 23 October 2023.
·Department of Home Affairs letter to [Ms F] granting a Protection (subclass 866) visa on 12 October 2020.
·Support Letter from Australian Red Cross dated [March] 2023.
COUNTRY INFORMATION

The Applicant claims to fear harm because of her actual or imputed political opinion as an MDC supporter. The Tribunal has considered the available county information in relation to the difficulties that MDC supporters (actual or perceived) may face in Zimbabwe.
The most recent DFAT Country Report for Zimbabwe, dated 19 December 2019, discusses the treatment of the MDC by the Zimbabwe government and assesses the risk of harm and discrimination faced by MDC members and supporters, particularly those involved in direct political activism. The report relevantly states as follows:
3.31       Since the MDC’s establishment, the government has responded to the threat the new party represented by restricting its ability to operate freely in the political sphere. In working to achieve this outcome, the government has utilised state authorities, including the intelligence services, judiciary, police, and military; and non-state actors, including ZANU-PF youth activists, government-backed militia and war veterans. Authorities have regularly subjected MDC leaders, members, and supporters to harassment (including physical violence), intimidation, arbitrary arrest, and judicial harassment; have used security-based legislation to prevent the MDC from holding public gatherings or political meetings; and have often violently dispersed such events when held (see Political System). Both state authorities and ZANU-PF activists have regularly carried out violent attacks targeting MDC activists and supporters, particularly around elections. Politically motivated violence has affected MDC members and supporters at all levels, including the senior leadership. In March 2007, for example, Tsvangirai was severely beaten while in detention after riot police broke up an unauthorised prayer meeting in Harare, fatally shooting one attendee.
3.32       Government discrimination against the MDC and its supporters has occurred in both rural and urban areas. In rural areas, particularly Mashonaland, human rights observers report that ZANU-PF has discouraged citizens from supporting the MDC by manipulating the distribution of government-funded food and agricultural products. In some cases, village chiefs have reportedly required recipients to possess ZANU-PF identity documents, while in other cases ZANU-PF officials have distributed goods at party meetings. The 2005 Operation Murambatsvina (see Demography), in which police forcibly displaced thousands of urban dwellers under the pretext of preventing the emergence of slums, disproportionately affected MDC supporters and is generally understood to have been motivated by a desire to dilute political opposition in high-density urban areas.
* * *
3.36       MDC members and supporters also increasingly face a risk of violence and harassment from within their own ranks in the form of intra-party violence (see Security situation). In-country sources have expressed concerns over the increasing role of a youth element known as the ‘Vanguard’, which reportedly acts as a private army in support of Chamisa. The Vanguard has reportedly been responsible for much of the MDC’s intra-party violence, including the attack on the female vice-president of a rival faction during Tsvangirai’s funeral in February 2018 (see Women). In March 2018, Chamisa supporters reportedly assaulted supporters of a rival MDC faction during a party meeting in Bulawayo, while supporters of two rival MDC Alliance candidates reportedly assaulted each other during a brawl in Harare in June 2018 ahead of the 30 July 2018 election.
3.37       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.
The DFAT “Smart Traveller” advice, updated on 22 November 2023 and still current as at 31 January 2024, indicates that travellers should exercise a high level of caution, and advises that, “Demonstrations and protests in Zimbabwe can be unpredictable and may turn violent quickly. Avoid activities that could be considered political, and stay away from protests and demonstrations”.
The U.S. Department of State’s 2022 Country Report on Human Rights Practices for Zimbabwe indicates that there remains considerable political instability, and that a perceived or actual lack of support for the ruling Zanu-PF party can be dangerous:
Political Parties and Political Participation: An unprecedented number of presidential candidates and political parties contested the 2018 elections. Elements within ZANU-PF and the security forces intimidated and committed abuses against other parties and their supporters and obstructed their activities. NGOs reported ZANU-PF youth members and so-called war veterans threatened communities with violence, telling them that the violence of the 2008 elections would return if ZANU-PF candidates lost.
Traditional leaders and government officials often distributed food aid based on perceived political affiliation, according to local NGOs. Through politicized food distribution, the government punished communities that elected opposition councilors by denying them assistance while rewarding communities that voted for ZANU-PF. In January, reports that officials distributed benefits from the president’s agricultural scheme on a partisan basis were widespread. For example, the ZANU-PF Zaka district chair required attendance at ZANU-PF meetings to receive assistance, and opposition supporters were removed from the list of beneficiaries at Manica Bridge Community Hall. In September, Chief Andrew Bvute reportedly instructed residents in Mberengwa to vote for ZANU-PF in the 2023 general election. In November, Agriculture Minister Anxious Masuka told villagers in Chipinge they must “remember” President Mnangagwa, who gave them agricultural inputs, and “return the favor” in the 2023 election.
Ahead of the March 26 by-elections, opposition supporters faced harassment and attacks across the country. On February 4, ZANU-PF supporters attacked the car of CCC Kwekwe Central candidate Judith Tobaiwa and assaulted her driver. On February 6, riot police reportedly arrested 12 supporters of recalled member of parliament Amos Chibaya in the Mkoba constituency near Gweru. On February 16, three CCC supporters reported ZANU-PF members attacked and tortured them in Harare East. On February 18, after police arrested 13 CCC supporters in Harare, a prominent human rights activist shared two videos described as footage of CCC arrests at Harare Central Police Station. One shows police beating screaming individuals in the dark. The other shows police forcing detained youths to crawl across pavement on their knees. On February 14, police detained CCC Vice President and former Finance Minister Tendai Biti without charge as he met with party members in his Harare East constituency, releasing him when his lawyer arrived. On March 2, four men armed with a gun, an axe, and machetes invaded Biti’s home in Harare and severely wounded a security guard (see also sections 1.a., 1.c., 1.d., and 1.e., Political Prisoners and Detainees).
The 2022 Human Rights Watch World Report for Zimbabwe indicates that there are significant human rights concerns that have not been addressed:
“The administration of President Emmerson Mnangagwa failed to take meaningful steps to uphold human rights and ensure justice for serious abuses primarily committed by security forces in 2021. There has been no accountability for abuses by security forces, including the August 2018 post-election violence, and killings and rape during the January 2019 protests. Abductions, torture, arbitrary arrests, and other abuses against opposition politicians and activists have not been meaningfully investigated.”
It is clear that since 2019, Zanu-PF party activists have carried out acts of politically motivated violence and acts of intimidation focussed on MDC supporters. The 2022 US Department of State Report and DFAT Smart Traveller advice indicate that there remains considerable political instability in Zimbabwe.
Findings in relation to political opinion
The Tribunal observes that the delegate accepted that the Applicant was an MDC Member, and further that she experienced harm in 2002 on account of her support of MDC. However, the delegate did not accept that she was politically active thereafter, or that she was a person of interest when she left Zimbabwe in 2016.
The Tribunal has taken a different view of the Applicant’s evidence in relation to her political activity as a Member of the MDC, and the duration of that activity. In particular, the Tribunal accepts that the Applicant had a long-standing level of activity in the MDC, campaigning for her [Relative], [Ms F]. [Ms F] claims to require protection, as a local MDC leader and close associate of MDC Leader Morgan Tsvangirai, were accepted by the Department of Home Affairs in October of 2020.
In her submissions filed in support of her Application in the Tribunal, the Applicant outlines the nexus between her [Relative]’s claim, and her own, as a visible and longstanding MDC supporter. She explains that her [Relative] was instrumental in the rise of MDC leader, Morgan Tsvangirai. Mr Tsvangirai is from the same area of Zimbabwe as the Applicant and her [Relative]. The Applicant has provided a copy of a Newsday.com.zw report indicating that “The MDC-T in Manicaland has unanimously endorsed party leader Morgan Tsvangirai as their presidential candidate for the upcoming party congress to be held in Bulawayo at the end of this month.” The Newsday.co.zw lists the MDC-T [executive members].
The Applicant has provided the Tribunal with a copy of her [Relative], [Ms F]’s Statutory Declaration, lodged with her Protection Visa Application, and dated 1 October 2019. The Tribunal accepts the evidence set out in that Statutory Declaration that (1) [Ms F] was a Provincial Leader for the MDC between [Year] and [Year], and that she was elected in [Year] to act as a Provincial [Office holder] to the MDC [Sub-group]. Further, the Tribunal accepts that in [Year], [Ms F] campaigned to be in the [National body] as a representative of the MDC.
The Applicant gave evidence at the hearing that she was involved in her [Relative]’s [National body] campaign, and highly visible in driving her [Relative] around as part of the campaigning process, to events. The Applicant was a credible and straightforward witness, whose account of her political involvement is supported by her [Relative]’s evidence, given to the Department in 2019 at the time of her own protection visa application.
The Tribunal therefore finds that the Applicant continued to support the MDC up until the time that she arrived in Australia in 2016. While the Tribunal has found that the Applicant fears future harm on the basis of her actual political opinion, the Tribunal also finds that the Applicant, as a close relative of her [Relative], fears future harm on the basis of imputed political opinion. Were the Applicant to return to Zimbabwe, the Tribunal thinks it entirely plausible that she would be associated with MDC leader Morgan Tsvangirai, given her familial connections and active involvement in her [Relative]’s political life.
The risk of harm for MDC/CCC activists is described by DFAT as moderate, which is more than remote. In relation to the type of harm that the Applicant may be exposed to upon return to Zimbabwe, the DFAT information is to the effect that torture is one of the forms of punishment used by security forces and their Zanu-PF associates against political opponents of the Zanu-PF government.
The Tribunal finds that the Applicant would face a real chance of persecution upon return to Zimbabwe, and that the real chance cannot be avoided by relocation within Zimbabwe, given that she fears harm from the elected Zanu-PF government.
The Tribunal is further satisfied that the Applicant’s actual and/or imputed political views as an MDC Member and supporter would be the essential and significant reason for the harm feared. Given the Tribunal’s findings that the Applicant is entitled to protection on the basis of her actual and/or imputed political views, it is not necessary for the Tribunal to assess the remainder of the Applicant’s claims.
It follows that the Tribunal finds that the Applicant has a well-founded fear of persecution in Zimbabwe for the reasons provided.
Member of the family unit
[The second-named Applicant] is the Applicant’s son, and was born on [Date]. [The third-named Applicant] is the Applicant’s daughter and was born on [date] March 2008.
Having regard to the evidence of both the Applicant, and second-named Applicant, at the hearing of this matter, the Tribunal accepts that the second and third-named Applicants are wholly or substantially reliant on their mother, the first-named Applicant, for their financial, psychological and physical support, and that they therefore satisfy the definition of ‘dependent child’. The second-named Applicant has had to delay his tertiary education due to his visa status and consequential inability to gain entry to programs. This has been distressing for him, as he has been unable to progress his educational pathway in the same way as his classmates. He intends to enrol in course work once he is able to do so. He has a part-time job that provides him with a small amount of personal spending money for social engagement, but is otherwise entirely dependent on his mother for food, healthcare, housing, and other supports. The third-named Applicant has not yet finished high school, and is a full-time student.
As dependents of the first-named Applicant as the family head, the second and third-named Applicants are therefore members of the same family unit for the purposes of s 36(2)(b) of the Act.
Conclusion
For the reasons given above the Tribunal is satisfied that the first named Applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other Applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second-named Applicant (son of the first-named Applicant) and third-named Applicant (daughter of the first-named Applicant) are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first named Applicant’s application. It follows that the second and third-named Applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first-named Applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second and third-named Applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.
Bridget Cullen
Senior Member

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

[2024] AATA 1526

5 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies