2108863 (Refugee) - [2023] AATA 2334

2108863 (Refugee) [2023] AATA 2334 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2108863
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Peter Katsambanis
DATE: 29 March 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the directions that:
(i)the applicant satisfies s 36(2)(aa) of the Migration Act and;
(ii)s 36(3) of the Migration Act does not apply to the applicant.

Statement made on 29 March 2023 at 3:56pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – imputed political opinion – in support of the Movement for Democratic Change (MDC) – high-profile activism against the Zimbabwe government whilst in Australia – real risk of significant harm from the ruling Zanu-PF party – no effective protection available in Zimbabwe – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
CUH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1309
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 Immigration and Border Protection on 23 January 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 26 May 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The Tribunal, differently constituted, affirmed the delegate’s decision on 19 May 2020. That decision was set aside by the Federal Circuit Court on 10 June 2021. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal, as currently constituted, on 15 March 2023 to give evidence and present arguments.
For clarity and convenience, the Tribunal will refer to the hearing held on 15 March 2023 as ‘the most recent hearing’. Any reference to the multiple hearings held when the matter was previously constituted (prior to the order of the Federal Circuit Court) will be referred to as ‘the previous hearings’.
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.
Issues
The issues in this case are whether there is a real chance that if the applicant returns to Zimbabwe he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether 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 for the purposes of s 36(2)(aa) of the Act.
Both the delegate and the previously constituted Tribunal found that pursuant to s 36(3) of the Act the applicant had not taken all possible steps to avail himself of a right to enter and reside in Uganda. In both decisions, it was found that the applicant’s right to enter and reside in Uganda through the rights conveyed on citizens of Zimbabwe pursuant to the multi-nation agreements of the Southern African Development Community (SADC)[1] and the Common Market for Eastern and Southern Africa (COMESA)[2].
[1] Southern African Development Community, Home | SADC, accessed 29 March 2023
[2] Common Market for Eastern and Southern Africa (COMESA), accessed 29 March 2023
Findings of the Federal Circuit Court
The Court found that the Tribunal, as previously constituted, had failed to consider material directly relevant to the applicant’s claims and had, accordingly, fallen into jurisdictional error. The Court therefore remitted the matter to the Tribunal, differently constituted, for rehearing[3].
[3] CUH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1309
Background of Applicant
The applicant is a [age deleted] male who was born on [DOB removed] in Harare, Zimbabwe. He was of Christian religion and listed his occupation as a student. He has never been married and has no children.
The applicant’s father is a retired former [occupation deleted] who resides in a home which he owns in the Harare suburb of[Suburb 1]. His mother died in [year deleted]. The applicant is one of 5 siblings, with 3 brothers and 1 sister who are all adults and are all currently residing in Zimbabwe.
The applicant completed high school in Zimbabwe around [year deleted] and then worked on his [relative’s] [farm] until he came to Australia. The applicant lived in his family home in [Suburb 1] before he came to Australia.
The applicant first arrived in Australia in 2008 as the holder of a valid Australian student visa. Since that time, he has returned to Zimbabwe on 4 separate occasions and has also travelled to [Country 1], for a brief holiday.
In Australia, the applicant withdrew from a [Course 1] at [TAFE] in 2010 and then completed a university entry course at [a]University from February 2010 to December 2013. In January 2014 he commenced a Bachelor of [Course 2] at [a]University but withdrew soon afterwards. He was enrolled in a diploma course at [a] TAFE [location deleted] from July 2014 to May 2016.
The applicant last arrived in Australia on 30 July 2014 on a Zimbabwe passport and as the holder of a valid Australian student visa. He provided a copy of his Zimbabwe passport and various other Zimbabwe identity documents to the Department.
The applicant was refused a student visa on 28 October 2015. He claimed in his protection visa application form that he was refused this visa because his father did not have enough funds to support his application.
Applicant’s claims for protection
The applicant’s claims for protection over time are based on his claimed actual and imputed political opinion in support of the Movement for Democratic Change (MDC), which has been the main opposition party in Zimbabwe, and its successor party, the Coalition of Citizens for Change (CCC).
Over time, the applicant has variously claimed that he was either a supporter or a member of the MDC whilst living in Zimbabwe prior to coming to Australia for the first time in 2008. He has claimed that he experienced harm from the government affiliated Zanu-PF youth in the lead up to and the aftermath of the 2008 election in Zimbabwe.
The applicant has further claimed that during his return visits to Zimbabwe between 2010 and 2014 he had a number of meetings with Mr Nelson Chamisa. Mr Chamisa was previously a leading figure in the MDC, including serving as a minister in a unity government, and is currently the leader of the CCC. As a result of these meetings, the applicant has claimed he was followed and harassed by members of Zimbabwe’s Central Intelligence Office (CIO) in 2014.
At the recent hearing, the applicant produced and showed to the Tribunal a photograph appearing on the applicant’s Instagram account showing the applicant photographed with Mr Chamisa and another man who the applicant claimed was his friend [Mr A], who initially introduced the applicant to Mr Chamisa. From the Tribunal’s observation, this photograph was posted to the Instagram account in January 2014. The applicant stated to the Tribunal that the photograph had been taken at some earlier date than the date on which it was posted, but he did not provide any definitive details as to the date this photograph was taken. After the hearing, the applicant provided the Tribunal with a copy of this photograph.
The applicant has claimed that he has been active in Australia in expressing strong opposition to the government in Zimbabwe. In support of these claims, he has provided copies or screenshots of a number of social media posts in his name and a copy of a newspaper article titled ‘ [title deleted]’, which appeared in [a]newspaper in [State 1] on [date deleted] and is also available online at the [State 1] Now website[4]. All of the documents the applicant has provided over time to support his claims that he has been an anti-Zimbabwe government activist in Australia are from the period between 2016 and 2020.
[information deleted]
The applicant claims that if he returned to Zimbabwe now or in the reasonably foreseeable future, he fears that he would be harmed by government security officers and paramilitary groups such as the Zanu-PF youth because of his high-profile activism in support of the MDC and in opposition to the government in Zimbabwe.
Consideration of Refugee Claims
There is no issue as to identity. The applicant arrived in Australia on a valid Zimbabwe passport and as the holder of a valid Australian student visa. The Tribunal therefore accepts that the applicant is a national of Zimbabwe and has assessed his claims accordingly.
On the basis of the evidence the applicant has provided over time, including the evidence at the recent Tribunal hearing, the Tribunal accepts that the applicant has been a supporter of the MDC in the past and that he has met and been photographed with Mr Nelson Chamisa[5], the current leader of the CCC, which is the successor party to the MDC.
[information deleted]
However, as discussed with the applicant at the recent hearing, the Tribunal has significant concerns about the level of the applicant’s involvement in the MDC. Prior to the recent Tribunal hearing, the applicant had previously maintained that he had never actually been a member of the MDC but had been a supporter of this party and had been involved in some low-level campaigning for this party in the lead up to the 2008 Zimbabwe elections. At the recent hearing, the applicant stated that he had been a member of the MDC before he came to Australia and that he had an MDC membership card when he was still living in Zimbabwe.
On the basis of the inconsistent evidence the applicant has provided over time about whether he was a member of the MDC or was only a supporter of the MDC, the Tribunal finds that the applicant has not been a witness of truth in relation to his claims about his level of involvement with the MDC while still living in Zimbabwe and that his evidence in this regard lacks credibility.
The Tribunal also has significant concerns about the evidence the applicant has provided over time relating to any harm he suffered in the lead up to, during and in the aftermath of the 2008 Zimbabwe election campaign. At the recent hearing, the applicant was vague and general when asked to describe what harm he had suffered from his political opponents in the period associated with the 2008 election campaign. The applicant stated on several occasions to the Tribunal that he had been dehumanised by Zanu-PF youth and that he had been tortured by these Zanu-PF youth. However, he was vague about when these incidents occurred and despite being asked on several occasions to articulate the actual harm caused to him, the applicant repeated the terms ‘dehumanised’ and ‘torture’ without providing any details of the actual acts or harm that he had been inflicted on him that may be described as leading to dehumanisation or torture. After the Tribunal expressed concern that he did not appear to be describing actual events, the applicant eventually indicated that he had been forcibly taken by Zanu-PF from his home, forced to strip naked in the bush, forced to chant Zanu-PF songs and to recant his support for the MDC. However, this evidence was only provided after the Tribunal had indicated to the applicant that it may take an adverse inference from his inability to provide specific details about the nature of the dehumanisation and torture he had suffered.
On the basis of this vague and general evidence at the recent hearing, the Tribunal does not accept that the applicant was ever involved in campaigning for the MDC during the 2008 election and the Tribunal further does not accept that the applicant was ever harmed in any way by Zanu-PF youth in the past in Zimbabwe.
Based on the photographic evidence provided by the applicant, the Tribunal accepts that the applicant met and was photographed with Mr Nelson Chamisa on one of his return visits to Zimbabwe. Although it is unclear when this meeting took place, based on the fact that the photograph was posted by the applicant on Instagram [in] 2014, the Tribunal is prepared to accept that this meeting took place either on the applicant’s visit to Zimbabwe between [late] 2013 and [early] 2014, or on a previous visit.
In relation to the applicant’s claims that he drew the adverse attention of the CIO because of his meeting with Mr Chamisa, as was discussed with the applicant at the recent hearing, he was able to return to Zimbabwe [in]July 2014 and depart from Zimbabwe [in]July 2014 without attracting any adverse interest from Zimbabwe authorities upon entry to or departure from the country. The Tribunal accepts the applicant’s evidence that he did draw some adverse interest from Zimbabwe authorities when he was involved in a motor vehicle accident on one of his visits to Zimbabwe. However, based on the applicant’s own evidence at the recent hearing, upon investigation of this motor vehicle accident the Zimbabwe police eventually cleared the applicant of any liability and had no further interest in the applicant.
Given the applicant’s ability to freely enter and then leave Zimbabwe in July 2014 without drawing the adverse interest of Zimbabwe authorities, the Tribunal finds that the applicant did not draw any adverse interest from the CIO or any other Zimbabwe authorities due to his meeting with Mr Chamisa or from the subsequent Instagram post evidencing that this meeting took place.
The Tribunal accepts that the applicant was active between 2016 and 2020 in Australia expressing his strong opposition to the government of Zimbabwe and his support of the opposition parties in Zimbabwe that were actively working to bring change to the political landscape of that country.
However, as discussed with the applicant at the recent hearing, all documents produced over time by the applicant to evidence his activism in Australia opposing the Zimbabwe government and supporting the opposition in Zimbabwe indicate that such activism took place between 2016, around the time that the applicant lodged his application for protection with the Department, and May 2020, which was the time when the previously constituted Tribunal made its decision in his matter. The applicant has not made any claims and provided no documentation to evidence that he engaged in any activism in Australia in the eight years he lived in Australia prior to 2016 or after May 2020.
At the recent hearing, the applicant did state that he ‘toned down’ or stopped his activism in Australia after the previous Tribunal decision because of concerns that he may never obtain a visa to stay in Australia. On this basis, he decided to limit his activism against the Zimbabwe government as a way of protecting himself in case he needed to return to Zimbabwe.
The Tribunal accepts the explanation offered by the applicant in relation to his lack of activism after May 2020. However, this does not offer any explanation for why he did not engage in any political activism in Australia between 2008 and 2016 especially given the applicant’s claims that he had been a political activist in Zimbabwe prior to his initial arrival in Australia. Given that the applicant commenced his political activism in Australia in 2016, around the time he applied for protection in Australia, the Tribunal finds that the applicant engaged in his political activism in Australia for the sole purpose of enhancing his claims to be a refugee. Accordingly, pursuant to s 5(J)(6) of the Act, the Tribunal must disregard any political activism engaged in by the applicant in Australia when determining his claims pursuant to s 36(a) of the Act.
Given that the Tribunal must disregard the applicant’s political activism in Australia and having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
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).

Consideration of Complementary Protection Claims
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The provisions of s 5(J)(6) of the Act do not apply to s 36(2)(aa). Therefore, the Tribunal must consider how the applicant’s activism in Australia in opposition to the Zimbabwe government will impact on him if he was to return to Zimbabwe.
Through his activism in Australia, the applicant has established a significant online footprint identifying him as an organiser and active participant in protests against the Zimbabwe government. Apart from the newspaper article from the [name deleted] referred to above, there are interviews[6] and news stories[7] that have appeared on the websites of the [name deleted] quoting the applicant making strong political comments opposed to the longstanding Zanu-PF government in Zimbabwe. At least one of these articles has been reproduced by an online newspaper in Zimbabwe[8] and is easily accessible online.
[Information deleted]
[Information deleted]
[Information deleted]
These articles and news stories do not merely present the applicant as a mere passive participant but as a main organiser, spokesperson and leader of people of a Zimbabwe background in Australia who are opposed to the Zanu-PF government in Zimbabwe.
Although the Tribunal has found that the applicant’s Instagram post of the meeting he had with Nelson Chamisa did not on its own cause the applicant any harm in the past, the Tribunal accepts that when this photograph is viewed in conjunction with, or cumulatively with, the anti-Zimbabwe activism of the applicant in Australia that this meeting and the associated photograph of this meeting may be given additional significance by Zimbabwe authorities.
Given the applicant’s high-profile activism against the Zimbabwe government whilst in Australia and given his meeting and photograph in the past with Nelson Chamisa, the Tribunal accepts that the applicant would have a profile in Zimbabwe as an actual and imputed high-profile opponent of the current Zimbabwe government and as an actual and imputed high-profile supporter of the MDC and/or its successor party led by Mr Chamisa, the CCC.
For completeness, given that the CCC is the largest successor party arising from the factional splits in the old MDC, the Tribunal accepts that the treatment of people with an actual or imputed political opinion in support of the CCC would be treated in the same way in Zimbabwe as people with an actual or imputed political opinion in support of the MDC and would be viewed by political opponents as holding the same anti-Zimbabwe government views.
The Tribunal has therefore considered country information about how people with the applicant’s profile may be treated if they returned to Zimbabwe.
In its most recent country information report for Zimbabwe, the Department of Foreign Affairs and Trade discusses the treatment of the MDC by the Zimbabwe government and their associates in the Zanu-PF party since the formation of the MDC and assesses the risk of harm and discrimination faced by MDC members and supporters, especially those involved in direct political activism. The report relevantly states as follows[9]:
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.
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.
…
While ever-present, the level of intensity and focus of official harassment against MDC members and supporters has varied according to circumstance. Overt politically motivated violence reportedly declined significantly in the years after 2008, which analysts have attributed to the politically stabilising GNU period and the weakened threat posed by the splintered MDC after its 2013 election defeat. During this period, harassment against the MDC still occurred but generally took more subtle forms aimed at establishing and consolidating political and electoral influence. While lower-level members were targeted through biased land and food distribution and housing destructions, for example, higher ranking officials and parliamentarians were more likely to be subjected to judicial harassment or intimidation, including occasional death threats.
The levels of overt violence against MDC Alliance candidates and supporters ahead of and during the 30 July 2018election (see Political System) was well below that of previous elections, particularly those of March 2008. The level of harassment against MDC members and supporters has reportedly increased considerably since the disputed 30 July 2018 election (see also Enforced or Involuntary Disappearances). Security authorities targeted MDC leaders and activists for arrest in the wake of both the 1 August 2018 post-election violence and the January 2019 fuel protests, (see Political Opinion (actual or imputed)), and a number of senior MDC figures face serious charges. Authorities have prevented the party from holding further demonstrations throughout 2019(see Political Opinion (actual or imputed)).
…
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.
[9] DFAT Country Information Report Zimbabwe, 19 December 2019, pp 27-28
The same DFAT report highlights how activists from the ruling Zanu-PF party continue to carry out acts of intimidation and politically motivated violence targeting political opponents in the MDC[10]. The same report states that in the lead up to the 30 July 2018 election, Zanu-PF activists threatened and intimidated the general population and monitored and reported on political opponents[11]. The report also states that these Zanu-PF activists often act with the support or acquiescence of state security forces and that they generally do not face legal sanction[12].
[10] DFAT Country Information Report Zimbabwe, 19 December 2019, p 51
[11] Ibid
[12] Ibid
Given the age of this DFAT report, the Tribunal has also considered the most recent report from the United States Department of State on human rights practices in Zimbabwe. This report highlights the ongoing discrimination during 2021 from the Zimbabwe government and Zanu-PF activists against political opponents in the various factions of the MDC. The report relevantly states[13]:
Members of the ruling party threatened violence against opposition officials in apparent efforts to coerce them to withdraw from politics or change party alliance. In May media reported the ruling party’s youth secretary for indigenization sponsored violent gangs in Makonde and Chinhoyi. A ruling party official complained a “gang of hooligans” had “rendered some districts ungovernable.” In June unknown perpetrators burned down the home of an opposition official in Chikomba. In October the MDC Alliance reported violent attacks from state intelligence and military officers during multiple visits to rural areas, and MDC Alliance published photographic and video evidence of those attacks. In November news reports indicated the ruling party used its youth structures to coordinate disruption campaigns against the MDC Alliance during visits to rural areas.
…
The MDC Alliance asserted ZANU-PF supporters attacked party president Nelson Chamisa on October 11 in Masvingo where he had planned to meet party supporters and other stakeholders. A progovernment newspaper suggested the attack was part of a rising trend in political violence. The opposition party stated Chamisa survived a live-fire attempt on his life during his travel to Manicaland on October 19.
[13] US Department of State, Zimbabwe - United States Department of State, released on 12 April 2022, accessed on 29 November 2022
In relation to the type of harm that MDC or CCC activists may face in Zimbabwe, the DFAT report states as follows:
DFAT assesses that security authorities and ZANU-PF activists continue to use torture as a means of intimidation and punishment, particularly against political opponents. Those arrested during political protests face a high risk of being tortured in custody, while those subjected to enforced disappearance face a high risk of experiencing physical and psychological mistreatment that may amount to torture. Individuals who have been subjected to torture at the hand of state authorities or ZANU-PF activists are highly unlikely to receive redress through official channels. DFAT notes that reports of politically related violence are not confined to ZANU-PF.
Based on this country information and based on the applicant’s profile as an actual and imputed high-profile opponent of the current Zimbabwe government and a high-profile supporter of the MDC and the CCC, the Tribunal finds that if the applicant returned to Zimbabwe, he would be subject to a risk of harm from either the authorities in Zimbabwe or from people in the Zanu-PF political party who are closely associated to these authorities. From the country information referred to above, the risk of harm for MDC/CCC activists is described by DFAT as moderate, which is more than remote. Accordingly, the Tribunal finds that the risk of harm to the applicant upon return to Zimbabwe meets the standard of real risk for the purposes of s 36(2)(aa).
In relation to the type of harm that the applicant may be exposed to upon return to Zimbabwe, the DFAT information outlined above indicates 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 such as the applicant. Torture is one of the types of significant harm as exhaustively defined in s 36(2A). Accordingly, the Tribunal finds that the type of harm the applicant would face upon return to Zimbabwe, being torture, meets the standard of significant harm for the purposes of s 36(2)(aa).
Based on these findings that the applicant would face a real risk of torture upon return to Zimbabwe, the Tribunal is 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.
Given that the security forces of Zimbabwe and their Zanu-PF allies are located across the entirety of Zimbabwe, the Tribunal finds that relocation as contemplated in s 36(2B)(a) is not an option in the applicant’s circumstances to avoid the real risk of significant harm that he faces.
The real risk of significant harm would be directed at the applicant from the authorities in Zimbabwe and from their associates in the ruling Zanu-PF party. Therefore, the Tribunal finds that the applicant would not be able to obtain protection from the real risk of significant harm from the authorities in Zimbabwe as contemplated in s 36(2B)(b).
The real risk is one directed personally at the applicant because of his personal actual and imputed political profile. It is therefore not a risk faced by the population of Zimbabwe generally for the purposes of s 36(2B)(c).
Accordingly, based on all of these findings, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Does the applicant have the right to enter and reside in any other country?
Having found that the applicant meets the criteria in s 36(2)(aa), the Tribunal must consider whether, pursuant to s 36(3), the applicant has taken all possible steps to available himself or any right to enter or reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia.
As noted above, both the delegate and the Tribunal as previously constituted found that pursuant to s 36(3) of the Act the applicant had not taken all possible steps to avail himself of a right to enter and reside in Uganda.
The Tribunal notes that some considerable time has elapsed since these decisions were made. The Tribunal also notes that, since those decisions were made, international travel and visa requirements have been impacted by requirements that have been introduced to deal with the Covid-19 pandemic.
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
The Tribunal accepts that the SADC and COMESA (as referenced above) create an aspirational framework for countries in eastern and southern Africa to work towards a more open framework of laws, rules and regulations that promote business, investment and movement between these countries that are signatories to these agreements. Zimbabwe and Uganda are both signatories to these agreements.
However, in assessing a person’s right to enter and reside in a particular country, it is necessary to examine the laws, rules and regulations of that particular country rather than the aspirational goals contained in multi-lateral international agreements.
The official website of the Ugandan government’s Ministry of Internal Affairs, Directorate of Citizenship and Immigration Control listed Zimbabwe as one of the nations for which a visa is not required for entry into Uganda. Instructively, the wording on this website is as follows[14]:
If your nationality is one of the list, you don't need to apply for a Visa for entering in Uganda:
·Angola
·…
·Zimbabwe
·…
[14] Visa Exempt Countries | DCIC (immigration.go.ug), accessed 29 March 2023.
The Tribunal notes that the word used on this web page is ‘entering’. The words ‘reside’ or ‘residing’ are not mentioned on this website.
A further web page from the same Ministry of Internal Affairs, Directorate of Citizenship and Immigration Control purports to provide information relating to people described as ‘all visa prone travellers to Uganda’. However, this web page[15] provides the following further information for people it describes as ‘Visa fee exempt countries’:
On top of the standing COVID 19 SOPs for travelers to Uganda, nationals from visa fee exempt countries, are required to have an invitation or conference letter, valid passport for at least six months, yellow fever vaccination which they will present at the point of entry where the border control officers will allow entry. A list of countries whose citizens do not require visas to enter Uganda is here below enumerated;
[15] MANDATORY ONLINE VISA APPLICATIONS FOR ALL VISA PRONE TRAVELLERS TO UGANDA | DCIC (immigration.go.ug), accessed 29 March 2023.

Zimbabwe is one of the countries enumerated in the table below this statement[16]. The statement referred to above makes it clear that people who do not require a visa to enter Uganda, such as Zimbabwe nationals, need to provide (amongst other things) some form of invitation or conference letter to be permitted entry. This appears to be a restriction that does not permit automatic entry to Uganda upon arrival at an airport or other point of entry. Instead, it requires a person to obtain an invitation or conference letter before entry is permitted.
[16] MANDATORY ONLINE VISA APPLICATIONS FOR ALL VISA PRONE TRAVELLERS TO UGANDA | DCIC (immigration.go.ug), accessed 29 March 2023.
In addition, the Tribunal has considered the information provided Timbu, a third-party website that provides advice to prospective travellers about international travel and visa requirements. This website sets out a list of entry requirements that apply to Zimbabwean nationals intending to enter Uganda[17]. Amongst the listed requirements are the following:
Zimbabwe passport holders can visit Uganda for a duration of 90 days without a visa.
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Zimbabwe citizens travelling to Uganda must provide proof of a confirmed means of accommodation for their entire stay in Uganda. This could be in the form of a hotel reservation or a sponsor letter from a host living in the country.
A return ticket to Zimbabwe or onward destination is needed as well.
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[17] How to get Uganda Visa from Zimbabwe - Timbu.com, accessed 29 March 2023.
This website makes it clear that Zimbabwe nationals visiting Uganda need to provide proof of accommodation for ‘their entire stay’ and a return ticket that would enable them to depart Uganda at the conclusion of their stay. The Tribunal considers that these requirements, when read together, require a Zimbabwe national to nominate a finite period of time for which they would stay in Uganda with an expectation that they would depart at the conclusion of that finite period. The Tribunal considers that this type of requirement in analogous to a typical tourist or short-stay business visa rather than some liberty, permission or privilege to enter and reside in Uganda.
Having cumulatively considered the requirements for Zimbabwe nationals seeking entry to Uganda that are contained on the official Ugandan government websites and on the Timbu website, the Tribunal is not satisfied that the visa-free travel permitted by Uganda for Zimbabwe nationals amounts to a right to enter and reside in Uganda, whether temporarily or permanently, for the purposes of s 36(3). Accordingly, the Tribunal finds that s 36(3) does not apply to the applicant with respect to Uganda.
Apart from the rights relating to Uganda that have already been considered, there is no evidence before the Tribunal that the applicant has any right to enter and reside in any other country for the purposes of s 36(3). Accordingly, the Tribunal finds that s 36(3) does not apply to the applicant.
DECISION
The Tribunal remits the matter for reconsideration with the directions that:
(i)the applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)s 36(3) does not apply to the applicant.
Peter Katsambanis
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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