2107324 (Refugee)

2107324 (Refugee) [2021] AATA 3959 (8 August 2021)
DECISION RECORD
DIVISION-Migration & Refugee Division
CASE NUMBER:  2107324
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Tania Flood
DATE:8 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2021 at 11:40am
CATCHWORDS
REFUGEE – Protection visa – Zimbabwe – applicant is concerned about contracting COVID-19 – inability to access health care – fear of harm due to high unemployment – healthy, affluent looking appearance – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZSMQ v MIBP (2013) FCCA 1768
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 dependant.
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 31 May 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 28 April 2021. The delegate refused to grant the visa on the basis that he does not have a well-founded fear of persecution for any reason under s. 5J(1)(a) of the Act. The delegate was not satisfied that there is a real risk that the applicant would suffer significant harm on return to Zimbabwe as the risks associated with COVID-19 would be risks faced by the population of Zimbabwe generally and are not faced by the applicant personally.
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 (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
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Zimbabwe for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Zimbabwe there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his protection visa application, the applicant is a [age]-year-old citizen of Zimbabwe. He was born in [Village 1], Mashonaland Central. Before arriving in Australia, he resided in Harare, Mashonaland Central but has not provided any residential details for the years prior to January 2001. He is Christian. He is divorced. His ex-wife was born in Zimbabwe and is now an Australian citizen who resides in Australia. He has five children; his two sons reside in Mutare, Zimbabwe and his three daughters reside in Australia. He studied the trade qualification [in] [City 1], Zimbabwe between 2007 and 2011. He did voluntary work while studying and has not listed any previous work history.
The applicant first arrived in Australia on [date] September 2013 on a temporary skilled work visa (Subclass 457). He was granted a Skilled Nominated Visa (subclass190) on 23 January 2014. He departed Australia on [date] February 2016 and re-entered Australia on the subclass 190 visa on [date] March 2016. On 10 October 2016, his subclass 190 visa was cancelled under s 109 of the Act and the decision was affirmed on review by the Tribunal (differently constituted). On 5 October 2018, the applicant applied for a Combined Partner visa (UK 820/BS 801). The visa was refused on 3 January 2020 and the decision was affirmed on review by the Tribunal (differently constituted). He lodged an application to the Federal Court for judicial review but subsequently withdrew the application.
On [date] April 2021 the applicant was detained at [a] Immigration Detention Centre. He lodged an application for a Protection visa on 28 April 2021. On 31 May 2021, a delegate of the Minister refused the application.
On [date] May 2020, he was convicted of the offence of occasioning bodily harm and received a 7-month suspended sentence.
On his protection visa application form, in response to the questions relating to his reasons for claiming protection, the applicant provided ‘yes’ and ‘no’ responses. The responses indicate that the applicant claims to have experienced harm in Zimbabwe and did not seek help. He did not attempt to move to another part of the country to seek safety. The applicant believes that he will be harmed and mistreated if he returns to Zimbabwe and the authorities will not be able to protect him. He does not believe he will be able to relocate to another area of the country to avoid harm. The applicant stated that ‘more detailed information to be provided within 4 weeks’.
Submissions to the Department
On 2 May 2021 in an email from the applicant’s representative, Mr [A] provided an outline of the claims that will be made on the applicant’s behalf. He stated that the Government of Zimbabwe has wilfully and intentionally stripped the health sector of resources in a manner that can be regarded as ‘dishonest and wilful’. In recent years (certainly since 2019) such corruption has led to what effectively amounts to the collapse of the medical infrastructure. If he is obliged to return to Zimbabwe, the applicant will face ‘an exploding COVID-19 pandemic scenario’.
On 13 May 2021, in response to a s 56 letter from the Department, Mr [A] made an additional submission providing the following details about the applicant’s claims:
There is a high probability that the applicant will contract COVID-19 if obliged to return to Zimbabwe. The applicant will also be denied effective medical assistance from the public sector.
The Zimbabwean Government has undertaken ‘protracted, intentional and wilful deprivation and destruction of medical resources on a systematic basis’. An example of such behaviour is the recent arrest of the Zimbabwean Health minister, Obadiah Moyo, in October 2020, charged with corruption in connection with the award of multi-million-dollar contracts for COVID-19 medical supplies.
There have been protracted strikes by doctors and nurses in response to the looting of Treasury by corrupt politicians. This depletion of funds has diminished the capacity for the government to build and provide medical services and infrastructure. Were it not for the generous funding from a wealthy expat, Strive Masiyiwa, there would be virtually no medical infrastructure in Zimbabwe at all.
Reliance cannot be placed upon the integrity of Zimbabwean President Mnangagwa as he effectively utilises the State Army to preserve power and suppress dissent.
The very few medical specialists who remain in Zimbabwe are dismayed by the unnecessary deaths. Doctors attribute growing numbers of the dying, including high rates of infant mortality, to the looting of the system, to the absence of medicine in hospitals, and to an absence of PPE throughout the COVID-19 pandemic. This pattern of behaviour is not constrained to the existence of the Pandemic.
The facts and figures surrounding COVID-19 cases in Zimbabwe are significantly under-reported and do not reflect the dire economic impact the pandemic is having on the townships.
More than one third of the country’s children suffer from chronic malnutrition, there is a high rate of infant mortality seeing children die from preventable diseases. And hindering access to medical treatment is the introduction of user fees as a result of the collapse of the financial support from the State.
Major forms of corruption in Zimbabwe include bribery, nepotism, embezzlement, theft, mismanagement, and absenteeism. The level of corruption is only worsening. Protests are extremely dangerous, given the threat of arbitrary murder of protesters by the army. And army members in civilian clothing are also used to abduct, intimidate, assault and murder.
For years, the health budget has been diverted to support the lavish lifestyles of the political and army elite.
Many of the large-scale atrocities inflicted by the army and the police at the direction of the Zimbabwean Government generally do not appear in DFAT’s reports.
It is submitted that wilful/intentional deprivation of medical resources by the Government of Zimbabwe may properly fall within the ambit of Complementary Protection. The key issue is whether the harm generated by the destruction of the medical infrastructure has been intentionally inflicted. It is submitted that the harm should certainly be capable of invoking at least the concept of significant harm in the Complementary Protection context.
A list of country information resources including links to online news articles on the topics of ‘corruption in health care services’, ‘the destruction of health care in Zimbabwe’ and strikes by doctors and nurses in Zimbabwe is included in the submission.
On 9 July the applicant’s representative provided additional links to articles which it is submitted support the previous claims that the Zimbabwe Health System was intentionally destroyed by the government; that the Delta variant is quickly spreading in Zimbabwe and there is no government support for people in lockdown.
Protection visa interview
The applicant was not invited to an interview with the Department.
Submissions to the Tribunal
On 3 June 2021 the Tribunal received an email from the applicant’s representative stating that he will supplement the application for review with information that will ‘establish the prerequisite level of intent with respect to complementary protection within s36(2)(aa)’.
On 5 July 2021 the Tribunal received additional information from the applicant’s representative in support of his claims. It is stated that a central issue in the complementary protection context is how can the position of the applicant be distinguished from hardship experienced by the general population. It is submitted that the available country information establishes two distinct groups within Zimbabwe. The first group are the vast majority of the population who cannot afford any treatment as a result of the wilful and intentional looting by the government which has resulted in a “user pay” system. The other minority group of which the applicant may be a member is that of people capable of making some payments but who cannot fully pay. The charges attached to treatment are based upon hospital spaces, which are wretchedly small and are at a premium. At any time, unless there is the continuous payment (preferably made in US dollars) the patient will be ejected.
The applicant’s representative requests that consideration be given to included country information regarding the “African third wave” of the pandemic in recent weeks. Currently the Delta variant is exploding in the townships of South Africa forcing thousands of citizens of Zimbabwe to return home. It can be fairly assumed significant numbers are infected.
The situation is so grave that claims of persecution may also be considered beyond complementary protection. Reference is made to serious harm in accordance with Section 91R(2) and (1)(b) viz “denial of access to basic services where denial threatens the persons capacity to subsist”. It is submitted that a threat to subsistence is at a level that challenges the ability to continue to exist. It is submitted that there are sufficient, innate characteristics so as to recognise the applicant may be part of a particular social group distinct from the general population.
On 6 July 2021 the applicant’s representative emailed the Tribunal attaching correspondence from the applicant reporting the death of his mother from COVID the day before. It is submitted that this information amplifies the grave consequence of the “third wave” particularly in South Africa emanating to Zimbabwe by virtue of the volume of returnees.
Oral evidence to the Tribunal
The applicant is in detention and he and his representative appeared before the Tribunal via MS Teams video. The Tribunal discussed with the applicant his background in Zimbabwe, his current circumstances and the reasons why he fears returning there. His testimony and responses to issues raised with him by the Tribunal are summarised as follows:
He was born in [Village 1] in Zimbabwe but lived for the majority of his life in Harare where his parents own a house. That house was sold when his father passed away.
He completed his primary education in the rural area, his O level’s at a boarding school and his college education in Harare.
His visa was cancelled in 2020 and he unsuccessfully applied for a Partner visa. He subsequently applied for a Protection visa.
He was charged with aggravated burglary in Australia when he broke down his own front door. He spent sixteen months on remand without bail and when the matter went to court he was acquitted of the charge.
His former partner is an Australian citizen and he has two children with her. [He] is no longer in a relationship with the mother of his Australian born children.
His mother recently passed away with COVID and his father died in 2016. He has two children in Zimbabwe [who] live with their mother in Mutare, Zimbabwe.
He has [sisters] in Zimbabwe. They are all married in live in different parts of the country.
He is a [Occupation 1] by profession and has experience as a fly in fly out worker in [specified field] in Australia. In Zimbabwe he worked for eighteen months in [a workplace] after completing his apprenticeship.
He fears returning to Zimbabwe because he may contract COVID and there is no medical equipment and people are dying. He would be required to pay for medical care in US dollars and even then there are no services to be provided. The government is looting those services for personal use and only the rich, who can afford to access health care outside of the country, can survive.
As to the reason why he would be denied medical services, as is claimed, the applicant’s representative submitted that the health service has been contaminated by virtue of the wilful stripping of assets by the government. He stated that it is not asserted that the applicant is part of the general population because by virtue of his background he will be able to access a hospital. However, payment for services must be made in US dollars and if he should run short of funds he will be ejected from the hospital.
The applicant’s representative referred to case law which indicates that a health service contingent upon cash payments can invoke sufficient characteristics to place the applicant in a particular social group. He is part of a social group where he is able, due to having some financial means, to get to hospital, but where there is no certainty given the character of the COVID Delta variant that he will receive life-saving treatment. He said this group is distinct from the vast majority of the population who have no opportunity to access health care.
The applicant stated that he is a member of the social group of people who can access a hospital. He said this is because of his financial background and because he has been working since he came to Australia. However, he said that now he does not have money anymore and his bank account is empty because he has children and has not worked for a long time. He said that if he returns to Zimbabwe he will be one of those people who will not be able to pay hospital bills.
Noting the above, the Tribunal asked the applicant why he would be treated any differently to other Zimbabweans without financial reserves. He then again said he would be able to access a hospital whereas most people cannot. The Tribunal pointed out that on the one hand he claims he is a member of a social group who can afford to access a hospital while on the other hand he claims he will be just like the majority who have no money and chance of finding employment and therefore unable to pay for health care. The applicant’s represented submitted that his uncle will likely assist the applicant as to date he has been paying his fees on behalf of the applicant. When asked about his uncle’s employment status the applicant referred to him as a businessman but said that now that vending is closed down due to the pandemic traders are struggling.
The Tribunal put it to the applicant that he has skills and experience relevant to a resource rich country with a well-established [specified] industry which could increase his chances of finding employment on return to Zimbabwe. The applicant’s representative interjected claiming that increasingly resources are owned by the Chinese lowering employment opportunities for Zimbabweans. He added that Doctors reportedly only earn $25 per week. The applicant stated that it will be hard to find employment in [a specified field]. He said that he has looked for vacancies online and there are few. He said that many of the people he worked with previously have been out of work for years.

The Tribunal put it to the applicant that country information provided in his submissions indicates that the rural areas of Zimbabwe are currently the worst hit areas in terms of COVID-19 infections. Furthermore, the Tribunal pointed out that the news articles referenced in submissions indicate that while slow, a vaccination campaign is underway in Zimbabwe. The applicant agreed that a small proportion of people have received a vaccine dose but due to misappropriation of available supplies by government officials, not everyone will be fortunate enough to be offered a vaccine in Zimbabwe. The applicant’s representative stated that the vaccination campaign is collapsing because of the reliance on the Sputnik vaccine which does not work against the Delta variant. As to the chance of the applicant contracting the virus he referred to reports of large numbers of Zimbabweans being forced to return home from South Africa where infections are high and thereby increasing the risk of greater spread of the virus. He said that mass deaths are going unreported in rural areas and argued that there is a distinct chance the applicant will catch the virus.
As to the harm feared under the complementary protection provisions the applicant’s representative indicated that he fears being arbitrarily deprived of life and/or being subjected to inhumane and degrading treatment. The Tribunal put it to the applicant that in Australia arbitrary deprivation of life is considered to concern such things as extra-judicial killings and the excessive use of police force and not the consequences of scarce medical resources. Furthermore, the Tribunal pointed out that Australian law requires that there be an intention to inflict inhumane or degrading treatment or punishment. The Tribunal stated that it finds it difficult to accept any corruption, negligence and/or poor economic policy which exists in Zimbabwe is motivated by an intention to destroy the countries health system. The Tribunal put it to the applicant that these actions appear more likely motivated by personal gain or plain ineptitude. The applicant’s representative interjected and submitted that prior to the COVID-19 pandemic the army was called upon to beat nurses and doctors who were striking over wages. He submitted that this transcends corruption and represents the systematic destruction of resources.
The Tribunal also discussed with the applicant its opinion that certain of the links to country information provided in his submissions indicate that actions are being taken to counter corruption in the control of COVID-19. For instance, the Tribunal noted the arrest of the health minister over a corrupt procurement deal and the President’s intervention in cancelling the deal which was brokered. Further, the Tribunal noted information which indicates that Zimbabwe’s anti-corruption commission is probing several cases of corruption in connection with the procurement of protective equipment and other materials. The Tribunal suggested that these actions, even if not perfect, seem to be taken with a view to protecting, rather than wilfully destroying the system. The applicant responded that there is media bias in Zimbabwe. The applicant’s representative added that the government is trying to restore its international reputation through these actions. He noted that the health minister is currently out on bail and nothing has happened to him.
The Tribunal discussed with the applicant the fact that under Australian law there is taken not to be a real risk of significant harm if the harm which is feared is a risk faced by the general population. The Tribunal put it to the applicant that his earlier evidence suggests he would be included in the majority grouping of people who lack the financial resources to access adequate health care. He responded that he is in a different grouping of people. He said that people who live in the country know and understand how best to live with the situation. He said that he has been living in Australia and understands the reasons for and need for quarantine. He said that there is insufficient information available to Zimbabweans about the COVID-19 virus and many people still think it is a scam. He said that many people disregard the rules because they need to put food on the table. He said he would not be able to survive in that environment.
The applicant was asked if he fears returning to Zimbabwe for any other reason and he replied he is only concerned about contracting COVID-19. He added that the unemployment rate in Zimbabwe is very high.
The applicant representative introduced a late claim based on the applicant’s physical appearance. He submitted that the applicant’s physical appearance identifies him as a rich person and that will invite him being attacked or subjected to extortion because of the pressure of mass starvation in the country. The Tribunal asked if he is aware of any country information to support this claim and he replied not immediately. He added that video footage of Zimbabweans returning home from South Africa show people poorly dressed and in ill-health whereas the applicant looks fit and well. The Tribunal put it to the applicant that many residents of the capital Harare might not appear any different to him. He agreed but said that those people are the children of the political elite.
The applicant’s representative undertook to provide examples of case law in respect of fee for payment health care amounting to persecution.
Post-hearing submission
On 15 July 2021 the applicant’s representative provided a copy of the death certificate of the applicant’s mother and advised that as of the previous day COVID-19 vaccinations in Harare are not available to the general public in any form. He submitted that the ruling in case SZSMQ v MIBP (2013) FCCA 1768 (113-120) is a relevant consideration in this matter.
FINDINGS AND REASONS
Country of reference
Attached to the Department file is a copy of the applicant’s Republic of Zimbabwe passport which verifies his claimed identity and nationality. In the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Zimbabwe.
Claims in respect of COVID-19
The applicant claims that if he returns to Zimbabwe there is a high likelihood that he will contract COVID-19 and he will be denied access to lifesaving treatment and could die. He claims that his inability to access health care will be due to the wilful and intentional destruction of the health system by corrupt government officials.
While the Tribunal acknowledges COVID-19 infections are rising in many countries, including in Zimbabwe[1], due to the spread of the Delta variant of the virus it is nevertheless of the view that it remains speculative as to whether the applicant will himself contract the virus on return to Zimbabwe and/or suffer any serious health consequences. Relevantly, the Tribunal notes country information provided in submissions currently points to a higher incidence in rural areas whereas the applicant lived much of his life in Harare. In any event, during the hearing the Tribunal discussed with the applicant its observation that the harm he fears appears to be of a type which affects the population in general rather than him personally. He disagreed and stated that he will suffer harm because of his membership of a distinct grouping of people who have some resources to enable access to health services but ultimately insufficient financial resources to ensure continuity of care. He said that there is no medical equipment and no services to be provided in the event he gets sick and only the rich have access to medical care and COVID-19 vaccinations.
[1] COVID-19 Map - Johns Hopkins Coronavirus Resource Center (jhu.edu)
The Tribunal accepts, based on the country information provided in submissions, that the health system in Zimbabwe is in an extremely poor state for a variety of reasons including corruption on the part of government officials. The Tribunal accepts the applicant would not have access to a level of medical care for the prevention and treatment of COVID-19 in Zimbabwe comparable to that which he could enjoy in Australia if so required. However, the Tribunal is not persuaded that any harm the applicant might encounter as a result of this situation would entail systematic and discriminatory treatment for reasons of his membership of the claimed particular social group. There is no information before the Tribunal to support that members of that particular social group, assuming it exists for the purposes of this review, are being denied access to medical treatment for that reason. If the applicant is unable to avail himself of health care in Zimbabwe in the event he contracts COVID-19 and requires medical help the Tribunal considers this would be because health services aren’t available generally and not due to him being personally denied health care because of his membership of the claimed particular social group.
The applicant’s representative also submitted that the very act of requiring payment for health care can enliven a finding of persecution. He submitted that persecution arises where a person who is unable to afford health care suffers ill-health to such a point as they are unable to subsist. In this regard the Tribunal finds it significant that the applicant simultaneously claimed throughout the hearing that he would, and would not, have the means to access a degree of health care in Zimbabwe. Notwithstanding his shifting views about this, as discussed with him during the hearing the applicant is a qualified [Occupation 1] with work experience in [certain area] in both Zimbabwe and Australia which the Tribunal considers will be beneficial in his search for [employment][2]. It also transpired from the applicant’s oral evidence that at the very least he has an uncle in Zimbabwe who is assisting him with the cost of representation in the review proceedings despite the applicant indicating that his uncle’s business has been negatively impacted by restrictions imposed by the government in a bid to contain the spread of COVID-19. Given his uncles willingness and ability to assist the applicant financially in Australia, the Tribunal considers it reasonable to assume he would also be willing to provide similar support in the event it is needed if the applicant is required to return to Zimbabwe.
[2] DFAT Country Information Report, Zimbabwe, 19 December 2019
The Tribunal accepts that if the applicant returns to Zimbabwe and requires medical treatment for a COVID-19 infection or any other reason he may be required to pay a fee for service. The Tribunal accepts that any financial reserves amassed by the applicant in Australia have likely been depleted providing support for his children in the time that he has spent in prison and immigration detention in Australia. While the Tribunal agrees that finding employment in Zimbabwe will not be an easy matter, given the reportedly high levels of unemployment and the weakened state of the economy[3], it is not persuaded that it will be impossible in the applicant’s case. In addition, the Tribunal considers the available evidence indicates the applicant will also have some family support to draw upon on return to Zimbabwe. In the circumstances the Tribunal is not persuaded that the applicant in this case will find himself in a destitute situation and unable to subsist as a result of an inability to pay for medical treatment. The Tribunal is satisfied the applicant will have the capacity, either through employment or familial support, to access basic health care services in Zimbabwe, to the extent that they are available.
[3] [Source deleted]
The applicant’s representative referred the Tribunal to the judgement in SZSMQ v MIBP (2013) FCCA 1768 and argued that this case provides precedent for a finding that a requirement to pay fees for health services can amount to persecution. The Tribunal has reviewed the case and notes that the judgement found the assessor erred by relying on her serious harm finding that payment for health care does not enliven persecution in relation to the refugee criterion to conclude that any harm the applicant would suffer did not amount to significant harm. On its reading of the judgement the Tribunal is not persuaded that it supports the proposition that state denial or failure to provide adequate medical assistance amounts to serious or significant harm.
For the above reasons the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Zimbabwe for reasons associated with the COVID-19 pandemic.
The Tribunal next considered the submission that the situation surrounding the COVID-19 pandemic in Zimbabwe ought to afford the applicant complementary protection. As discussed with him during the hearing for there to be a finding of significant harm, in the form of inhumane treatment or punishment or degrading treatment or punishment it is necessary to establish that the harm faced by an applicant is intentionally inflicted. The Tribunal notes the lengthy submissions and country information provided in support of the claim that the Zimbabwean health system has been wilfully and intentionally degraded due to the actions of corrupt government officials but is not persuaded this is the case. As noted above the Tribunal accepts, based on country information provided in submissions, that the health system is in disarray and that in part this can be attributed to the actions of corrupt public officials. However, as discussed with the applicant the Tribunal does not accept that the questionable behaviour of government officials or even poor government policy is the result of an intention to wilfully degrade the health system. While the Tribunal accepts that corrupt government officials may intentionally set about using government funds for personal gain it does not accept the proposition that those actions were designed to intentionally degrade or even destroy the public health system.
During the hearing the applicant’s representative also maintained that he will face arbitrary deprivation of life in Zimbabwe as a result of being denied adequate medical treatment for the treatment of COVID-19. In support of this argument the applicant has produced a copy of the death certificate of his mother who recently died after contracting COVID-19 and the Tribunal accepts this to be true. However, as discussed with the applicant, in Australia arbitrary deprivation of life is generally considered to include such things as extra-judicial killings and the excessive use of police force and not the consequences of scarce medical resources.
Furthermore, under s.36(2B)(c) of the Act, there is also taken not to be a real risk that a non-citizen will suffer significant harm in a country if the risk is not faced by the non-citizen personally but is faced by the population of the country generally. The Tribunal has considered the applicant’s evidence and submissions but is not persuaded that his circumstances mean that he will face a greater risk of contracting the COVID-19 virus than other members of the population in Zimbabwe. Indeed during the hearing the applicant indicated that his experience in Australia means he has a greater awareness of the risks of contracting the virus and the measures needed to avoid exposure than the average Zimbabwean citizen. The Tribunal acknowledges that corruption could result in a minority of elites accessing with greater ease, prevention and treatment options for COVID-19 in and outside Zimbabwe. However, the Tribunal remains of the view that the risks faced by the applicant in respect of accessing preventative or curative treatment for COVID-19 would be risks faced by the general population of Zimbabwe.
For the above reasons, the Tribunal finds the applicant does not face a real risk of significant harm in Zimbabwe for the reasons claimed in association with the COVID-19 pandemic.
Fear of harm due to high unemployment
The applicant claimed he also fears serious harm in Zimbabwe due to the high unemployment rate in the country. According to DFAT[4] very little primary data exists on employment in Zimbabwe. Different sources place the unemployment rate as low as 4 per cent and as high as 95 per cent. It is clear, however, that the majority of the labour force that participates economically does so in the informal economy. A January 2018 IMF study found that the informal Zimbabwean economy averaged 60.6 per cent of the total economy between 1991 and 2015, accounting for 44 per cent of Gross Domestic Product (GDP), and that Zimbabwe had the third largest informal sector in the world, behind only Georgia and Bolivia. Human rights observers report that conditions for workers in the formal sector are generally poor, regardless of the specific sector. Inadequate monitoring systems and staffing shortages mean that authorities are unable to enforce minimum wage and work hour laws, and wage theft is common across sectors. Minimum wages, when they are paid, seldom exceed the poverty line. The very high inflation rates significantly erode incomes.
[4] DFAT Country Information Report, Zimbabwe, 19 December 2019
The Tribunal accepts that Zimbabwe is a country in dire economic circumstances and that as submitted, protestors against worsening economic circumstances have been treated harshly by the Zimbabwean authorities. There is no suggestion that the applicant will engage in any protest activity and the Tribunal considers he is better placed than many other Zimbabweans to find employment given his qualifications and experience. Nevertheless, the Tribunal accepts the applicant may still encounter difficulty securing his livelihood but considers this would not be a result of persecutory conduct towards the applicant by reason of his race, religion, nationality, membership of a particular social group or political opinion. Nor does the Tribunal consider that any significant harm he may encounter would be intentionally inflicted on him. Rather the Tribunal considers it would be the result of the general economic circumstances of Zimbabwe.
The Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Zimbabwe for reason of there being a high rate of unemployment in the country.
Physical appearance
The Tribunal has also considered the submission raised by the applicant’s representative at the end of the Tribunal hearing in respect of the applicant’s physical appearance. That is, that his healthy, affluent looking appearance would put him at risk of extortion and/or attack. Relevantly, the applicant did not raise this concern himself and no independent evidence to support this claim has been provided to the Tribunal.
The Tribunal observed that the applicant presented at hearing as a healthy-looking, yet casually attired young man. The Tribunal put it to the applicant that it could be assumed that segments of the population in Harare, where he is likely to return to, would arguably look no different to him. He responded that those people would be from the wealthy elite and the Tribunal accepts this could be the case in some instances. The Tribunal is prepared to accept that some of the Zimbabwean returnees fleeing difficult circumstances in South Africa may be in poor health and that their clothing could be suggestive of low-economic status as submitted by the applicant’s representative. However, there is nothing before the Tribunal to satisfy it that the applicant’s physical appearance will place him at risk of serious or significant harm. Indeed, the Tribunal is not persuaded that the applicant genuinely fears harm in Zimbabwe for this reason.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the reasons articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe there is a real risk that he will suffer significant harm. Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2021] AATA 3959

8 August 2021

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