2203185 (Refugee)

[2022] AATA 4060

2203185 (Refugee) [2022] AATA 4060 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Anna Copeland

CASE NUMBER:  2203185

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 July 2022 at 1:14 pm (WA time)

DATE OF WRITTEN RECORD:                19 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 19 September 2022 at 10.39am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – imputed political opinion – membership of Movement for Democratic Change (MDC) – opposition to Zimbabwe African National Union - Patriotic Front (ZANU–PF) – particular social group – close relatives of prominent MDC members that have disappeared or been persecuted – avoidance of compulsory military service – established history of violence and extra judicial killings in the lead up to elections – culture of State sanctioned violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5LA, 36

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2022 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 12 July 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The Tribunal received submissions and a statutory declaration from the applicant on 19 May 2022 and the matter was first listed for hearing on 26 May 2022.  At that hearing the Tribunal took substantial evidence from the applicant.  That hearing was adjourned to enable further written evidence and further submissions.  On 24 June 2022 the Tribunal received updated submissions attaching further evidence, which I will refer to again shortly.

4. With respect to the applicant's identity, I have had the benefit of a copy of his Zimbabwean birth certificate, which was also cited by the delegate at his protection visa interview.  I have had the benefit of his Australian driver's licence.  There is no evidence before me indicating that any of these documents are bogus documents as defined and I accept that the applicant is who he purports to be.

5. The law relevant to this application for review is that which applies to applications made at the date of the applicant's original application as understood to apply at the date of the decision.  The Tribunal discussed the current criteria for a protection visa with the applicant at the previous hearing of this matter and is satisfied that the applicant understands the law and the criteria that he needs to satisfy.

6. I note that the Tribunal has had regard to the Guidelines in making this decision. 

7. The applicant's claims have been broadly consistent from the commencement of his application to the Department. 

   a.The applicant says that, if he were to be removed to Zimbabwe, he would face a real risk of harm due to his imputed political opinion, his long absence in a country considered sympathetic to the national opposition, and his return as a criminal deportee. 

   b.He says that he is at particular risk because of the lead up to the election in Zimbabwe in which the opposition is well placed to unseat the ruling ZANU‑PF party. The latter has held power since the country first achieved independence in 1980 and the applicant says that they are well known for using violence and intimidation to hold onto power. 

   c.He says that he is the [relative] of known members of the MDC (Movement for Democratic Change) and that his [Relative A] lost his life in the course of his work for the MDC.

8. At the hearing on 26 May the applicant gave evidence to the effect that he left his country at a time when he had military service obligations to the Green Bombers, the National Youth Program, the avoidance of which obligations formed part of his reason for departure from Zimbabwe.

9. In the view of the Tribunal that gives rise to a further claim or at least a further aspect of the existing claims.  It is clear, however, that the applicant did not appreciate this effect of his evidence and the Tribunal is satisfied that he could not reasonably raise at an earlier date that which he has still not completely appreciated the significance of.

10. The Tribunal asked the applicant many questions about each matter arising from his claims during the 26 May hearing.  The Tribunal found the applicant's account of his [Relative A]'s involvement with the MDC to be convincing and plausible.  His recollections are consistent with his [Relative A] having a pre‑eminent role with the MDC, being connected with very significant founding members of the MDC, and with the death of his [Relative A] being a likely result of his role with the MDC.

11. I will not revisit the detail of the applicant's evidence because it may give rise to a situation in which he might be identified by an informed reader of the transcript of these reasons.

12. After the May hearing the applicant provided two letters written on what appears to be authentic MDC letterhead.  The letterhead bears the correct address for MDC headquarters, including the recent update to the name of the building in which the MDC is located.  Each is signed by a person who appears to be authentically a member of the MDC and is stamped with the [date].  The letters are written in English and have been notarised in Zimbabwe.

13. The first is with respect to the applicant's [Relative A], the other with respect to his [Relative B].  I will not repeat the content of those letters because they contain identifying features that might inform a knowledgeable reader of the transcript of these reasons of the identity of the applicant.  I do, however, have some observations to make about them.

14. Neither letter is dispassionate, both are filled with pro-MDC rhetoric.  However, I accept that they accurately reflect the MDC records of the events and circumstances that they describe.  On that basis they comprise compelling evidence that the applicant's [Relative A] was a close friend of a founding member of the MDC and was himself an early and important member of the MDC.  I accept the MDC records reflect that he was killed by the ZANU-PF in the course of his support for an MDC candidate in the lead up to the 2008 election and that his [relative], the applicant's [Relative B], has been persecuted for attempting to ascertain what became of him. 

15. There is no evidence before the Tribunal to contradict the applicant's recollections or the content of the letters.

16. The applicant has also provided an MDC membership card and subscription schedule showing his membership since 2011, at which time he was already in Australia.  The applicant's evidence to the Tribunal is that he joined the MDC in December of 2008.  He is unable to explain why the schedule does not show his membership from December 2008.  The Tribunal accepts that the schedule has been provided retrospectively by the MDC and that records may not have been kept at an earlier date.

17. Subject to section 5J(6) of the Act a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia.  Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted unless the person satisfies the decision maker that he or she engaged in a conduct otherwise then for the purpose of strengthening the claim to be a refugee.

18. The timing of the applicant's enrolment in the MDC in 2008 (being shortly after his [Relative A]'s death) appears to the Tribunal to be a reasonable and predictable response to the loss of his [Relative A].  It does not suggest to the Tribunal a lack of authenticity on the part of the applicant with regards to his personal commitment to the MDC.  The Tribunal is, therefore, satisfied that joining the MDC was not for the purpose of strengthening a refugee claim.

19. At the May hearing of this matter the Tribunal asked the applicant questions about what he would do if he returned to Zimbabwe.  He said that he had an obligation to find out what had happened to his [Relative A] and would need to make inquiries if he returned to Zimbabwe.  He further indicated that he would like to become more actively involved in the MDC and that he had a need to honour his [Relative A]'s memory.

20. In the view of the Tribunal the applicant gave a convincing and detailed account of his history and he presented as a credible and authentic historian.  Where the applicant's account appears credible he should unless there are good reasons to the contrary be given the benefit of the doubt by the Tribunal.  The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility.  The applicant's statements must be coherent and plausible and must not run counter to generally known facts.  The Tribunal is so satisfied in this case.

21. The Tribunal accepts the applicant's evidence and makes the following findings of fact. 

    a.The applicant is a Zimbabwe citizen.  His [Relative A] was a prominent member of the MDC connected with founding members of the MDC and killed in the course of his campaigning for the 2008 election likely by ZANU-PF or supporters of same. 

    b.The applicant's [Relative B] has been persecuted by the ZANU-PF or its supporters due to his involvement with the MDC and his inquiries the death of the applicant's [Relative A].

    c.The applicant left Zimbabwe at a time when he owed military service obligations to the ZANU-PF National Youth Service or believed that he did and he left partly in order to avoid those obligations. 

    d.The applicant has been a member of the MDC himself since December 2008.

    e.If the applicant were to return to Zimbabwe then he would make inquiries about the death of his [Relative A] and press for an explanation of what had happened to him.  He would also become actively involved with the MDC.  Both of these activities are in the Tribunal's view fundamental to the applicant's conscience.

22. The Tribunal finds that close relatives of prominent MDC members that have disappeared or been persecuted are a social group for the purpose of the legislation.  The Tribunal also finds that the applicant has strong pro-MDC political opinions, which are likely to be imputed to him even if he does not publicly declare them because of his family affiliations and his time in Australia.

23. The Tribunal considers that there is a real chance that the applicant will publicly declare his anti-ZANU-PF affiliations in the course of investigating his [Relative A]'s disappearance and in honouring his [Relative A]'s memory in the event that he returns to Zimbabwe.  He is likely to be identified by the national security as a potential future problem for the ZANU-PF because of his family involvement and connections and because of his residence in Australia and his avoidance of military service.

24. The Tribunal has had regard to the limited country information discussed in the delegate's record of decision and finds it to be both out of date and selectively applied.  The Tribunal notes that in addition to the limited quotation made by the delegate the 2019 DFAT report also states clearly that the authorities in Zimbabwe routinely subject MDC members and supporters to various forms of harassment and physical violence.  It states:

    Security forces and ZANU-PF activists continue to use torture as a form of intimidation and punishment, particularly against political opponents. Those arrested during political protests face a high risk of torture in custody, while those subjected to enforced disappearance face a high risk of physical and psychological mistreatment that may amount to torture. 

25. The Tribunal further notes that the ZANU-PF has an established history of using threats, violence and extra judicial killings in the lead up to elections.  The Tribunal relies on country information to this effect produced by both Amnesty and Human Rights Watch as well as the peer reviewed 2020 study by Raleigh titled "Chapter violence in politics in Zimbabwe from 2008-2018" published by Oxford University Press appearing in the Oxford Handbook of Zimbabwean Politics.

26. Raleigh noted the increase in political violence at election time noting that violence marred each election between January 2008 and August 2018.  The Tribunal notes that the timing of the 2008 election is consistent with the disappearance of the applicant's [Relative A], which may have been the direct result of 2008 election violence.

27. The Tribunal considers it unfortunate that DFAT has not published a report since 2019.  The Tribunal considers that 2019 is not sufficiently recent to accurately reflect the present risk factors.  In light of that the Tribunal thanks the applicant's solicitor for the thorough survey of international country information of more recent date.

28. The Tribunal notes in particular the UK Home Office has specifically identified as a risk category:

29. Those seen to be active in association with human rights or civil society organisations where evidence suggests that the particular organisation has been identified by the authorities as a critic or opponent of the Zimbabwean regime.

30. The UK Home Office has also suggested that the process of screening returning passengers is an intelligence led process and that the CIO will generally have identified from the passenger manifest in advance based on their intelligence those passengers in whom there is any possible interest.

31. On 7 June this year the US Department of State's Overseas Security Advisory Council updated its Zimbabwe country security report to include that there is now quite considerable risk of political violence in Harare, particularly considering Zimbabwe's deteriorating economic conditions.

32. Otherwise the significant human rights issues identified in the report relevantly include credible reports of unlawful or arbitrary killings of civilians by security forces, torture and cases of cruel, inhuman or degrading treatment or punishment, harsh and life threatening prison conditions, arbitrary detention by security forces, political prisoners or detainees, arbitrary or unlawful interference with privacy, substantial interference with the rights of peaceful assembly and freedom of association, restrictions on freedom of movement, restrictions on political participation, and widespread active corruption.

33. The applicant has been in Australia for nearly 20 years.  The Tribunal accepts that Australia is a country which routinely presents in the international media as being politically aligned to the critics of the ZANU-PF Government of Zimbabwe.  The 2019 DFAT report for Zimbabwe says that DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution on return. However, the Tribunal reiterates the report is three years old and it appears from the country information produced by the UK and the US that the situation in Zimbabwe is significantly changed and deteriorating due to the election in 2023.

34. With regard to the applicant's claim to have avoided compulsory military service the Tribunal notes that the ZANU-PF established the National Youth Service in 2000 and in practice it became a training ground for ZANU-PF youth militia, including the so called Green Bombers.  Country information states that the National Youth Service ended in 2009 and that the Green Bombers appear to have been disbanded in January 2018.

35. The Tribunal is not entirely satisfied with those dates; they do not appear to be established with any particular certainty.  It is also not clear from the country information whether compulsory service was enforced.  But the Tribunal accepts that the applicant's lack of a service record and the timing of his departure from Zimbabwe may comprise a red flag for the CIO.

36. In all of those circumstances, the Tribunal must accept that there is a real chance and a real risk that the applicant will be questioned by the CIO on his return to Zimbabwe and that such questioning will discover his relationship with his [Relative A] and his [Relative B] and the fates of his [Relative A] and his [Relative B].  The Tribunal accepts that his avoidance of the National Youth Service in that context at best will appear sinister.

37. In the context of a lead up to an election the Tribunal considers that there is a real chance that the applicant will be detained in conditions that expose him to a real chance of physical harassment and ill treatment resulting in both mental and physical harm to the applicant.

38. The Tribunal, therefore, finds that the applicant is genuinely afraid of physical and mental harm at the hands of the CIO, if returned to Zimbabwe, and that the fear is well-founded.  There is a real chance that the level of harm rises to the level of serious harm.

39. For the purposes of section 5LA the Tribunal finds that effective measures are not available to the applicant.  Country information produced by the OSAC suggests that civil authorities routinely lose control of the security forces in Zimbabwe and both the UK and the US country information suggests that there is a culture of State sanctioned violence in Zimbabwe.

40. There is no information before the Tribunal to suggest the applicant has a right to enter and reside in another country and the Tribunal positively finds that the applicant does not have a current right to enter and reside in another country other than Zimbabwe.  Accordingly, section 36(3) of the Act does not apply.

41. For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

    DECISION

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

    Jessica Henderson
    Member