1605362 (Refugee)

[2017] AATA 3018

1605362 (Refugee) [2017] AATA 3018 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605362

COUNTRY OF REFERENCE:                  Zimbabwe

MEMBER:Nicole Burns

DATE:19 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 19 December 2017 at 3:46pm

CATCHWORDS

Refugee – Protection visa – Zimbabwe – Political opinion – Imputed political opinion – Social group – Lesbian in Zimbabwe – Victim of verbal harassment – Fear of societal and governmental discrimination – Credible witness – Limited State Protection

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 499

Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] March 2016.

3. The applicant appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Shona and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. She attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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

10. The applicant arrived in Australia [in] January 2014 as the holder of a [temporary] visa and has provided her original Zimbabwean passport to the Department.  On this basis, and given the delegate had no issues with her claimed identity and nationality, the Tribunal finds the applicant is a national of Zimbabwe for the purpose of assessing her protection claims.

11. The applicant, [age] year old woman from Bulawayo in Zimbabwe, claims to fear serious harm from the community and the authorities on return to Zimbabwe on the basis of her sexuality as a lesbian and on imputed (anti-government) political opinion grounds as [Occupation 1], among other things.  The applicant fears she will not be able to live openly as a lesbian, and if her sexual orientation is known, she fears severe societal and governmental discrimination, restrictions and possibly violence including rape.   

12. The Tribunal accepts the applicant is a lesbian.  Her oral evidence about her past relationship with a woman ([Ms B]) in Zimbabwe and her current relationship with [Ms A] in Australia was spontaneous, detailed and consistent with her evidence before the Department and corroborated by [Ms A’s] oral evidence to the Tribunal.  Evidence of the applicant’s long-term relationship with [Ms A] has been submitted to the Tribunal and includes a copy of their relationship declaration certificate, joint tenancy agreement, joint bank account and photographs of the couple together.  The applicant also provided a statutory declaration from [Ms B] to the Department confirming their relationship in Zimbabwe and set out the problems they experienced as a result.  The applicant’s claims to have had to keep her sexual orientation largely secret in Zimbabwe, including her long-term relationship with [Ms B] is supported by country information indicating social and familial condemnation of homosexuals in Zimbabwe. 

13. Specifically the Tribunal accepts the applicant’s claims – as articulated and expanded upon at hearing - that she had her first sexual encounter with a woman [in] 1991 and a long term relationship with [Ms B] in Zimbabwe from 2006 until she left Zimbabwe in January 2014.  She met [Ms B] – a fellow [colleague] – when they were [working] at the same [workplace] ([Workplace 1]) in [District 1], a rural area in Matabeland north, around [a distance] from her home area of Bulawayo.  The Tribunal accepts they lived in the same cottage attached to [their workplace] they worked at from late 2006 to [a time] in 2007 when the applicant was transferred to another [workplace] – [Workplace 2] – also in [District 1].  [Ms B] moved to [Country 1] around this time, returning to Zimbabwe in 2009 when she began work at [Workplace 3].  The applicant transferred to [Workplace 3] at the beginning of 2011 until she obtained a job at a [workplace] in Bulawayo at the start of 2013.  At [Workplace 3] the applicant and [Ms B] lived together in the same cottage: they used one room as their bedroom and the other as their kitchen.  When they were apart (when [Ms B] was at [Workplace 3] and the applicant at [Workplace 2] located about [a distance] away) they met regularly in Bulawayo city: at parks, and sometimes they rented a lodge. The met at the same spots after the applicant moved to Bulawayo in early 2013, given she moved back in with her parents and they wanted to keep their relationship secret.  The applicant said during this time [Ms B’s] attempts to transfer to a [workplace] in Bulawayo to be near her was not successful.

14. The Tribunal also accepts the applicant has a son, now [age].  Her son is currently studying [in] [Country 2] and was brought up primarily by her parents.  The applicant gave evidence that she has never had a heterosexual relationship, which the Tribunal accepts. 

15. The Tribunal notes the delegate had concerns about the applicant’s credibility and did not accept she was a lesbian or had experienced problems in Zimbabwe for this reason. For instance the delegate found the applicant’s description of her relationship with [Ms B] lacked detail and spontaneity.  However after hearing the applicant’s oral evidence at length at the Tribunal hearing, the Tribunal does not share this view and considers any reticence on the applicant’s part was due largely to the private nature of the conversation rather than an attempt to be evasive.  The delegate also found it implausible that if the applicant was living as a lesbian and the community came to know as claimed, that her family did not.  However on review the applicant has explained that her family lived [distance] away (in Bulawayo) from [District 1] where she was [working] when rumours were spread about her sexuality, which is why her family did not find out.  The Tribunal accepts this explanation as plausible. Furthermore, the delegate found it implausible that the applicant and [Ms B] were able to stay working as [Occupation 1] and living together at the [workplace] once it became known that they were lesbians.  At the Tribunal hearing the applicant explained that they lived together in [cottage], sometimes with others, as was the norm and most thought they were friends.  They tried to be discreet however over time there were rumours about their relationship but no proof.  This was enough however for them to be harassed and at one [workplace] for the [senior official] to ask the applicant to leave (discussed in more detail below).  The Tribunal found the applicant credible and accepts her evidence in this regard.  

16. As the Tribunal is satisfied that the applicant is a lesbian it has gone on to consider whether lesbians can constitute a particular social group for the purposes of the Convention.  The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S, Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

17. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country.  However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reasons of the person’s membership of the particular social group. 

18. The independent evidence before the Tribunal indicates that homosexuals, including lesbians, in Zimbabwe possess common characteristics and attributes that make them distinguishable from the rest of society – i.e. their sexual orientation – and these are not the shared fear of persecution.  Based on prevailing social, cultural and religious norms in Zimbabwe the Tribunal finds that they constitute a particular social group within the Convention meaning.  The Tribunal accepts, therefore, that lesbians constitute a particular social group in Zimbabwe for purposes of the Convention. 

19. Having accepted that the applicant is a lesbian, and that lesbians in Zimbabwe constitute a particular social group for the purposes of the Convention, the Tribunal has gone on to consider if there is a real chance that the applicant would be persecuted on return to Zimbabwe for belonging to this particular social group. 

20. The applicant told the Tribunal that she and [Ms B] never lived openly as a couple in Zimbabwe and they had tried to keep their relationship secret, however it must have become known in the community.  She said they used to kiss sometimes when out [together], thinking they were alone however they have may have been seen.

21. The applicant claims to have experienced harassment and threats by community members in the past because of her relationship with [Ms B] in Zimbabwe.  Specifically she told the Tribunal that sometime in 2007 two young men came to their cottage attached to the [workplace] ([Workplace 1]) and asked to speak to them outside the [workplace] gate.  There the men threatened to rape or kill them if they did not stop their relationship, noting that the  community did not allow it.  Neither the applicant nor [Ms B] recognised the two men and the applicant said they could have been youth militia who were active in that area at that time, or plainclothes police, or community members.   Not long afterwards the head of the [workplace] asked the applicant to transfer [workplaces].  The applicant said she lodged numerous transfer [applications] but was not successful until the end of 2007 when she transferred to another [workplace] located about [a distance] away but still in the [District 1] area. 

22. The applicant said during her time at [Workplace 1] she and [Ms B] were also called names and threatened to stop their relationship by community members whilst walking on the streets on occasion.  As a result they did not go out together as often (and not for long distances), and would take different buses to go to the city for example, and never at night, because they were afraid of being harmed.

23. The applicant said around the time she transferred to [Workplace 2] in 2007 [Ms B] moved to [Country 1], largely due to the stress around the situation they had found themselves in.  [Ms B] returned to Zimbabwe in 2009 and not long after obtained a job at [Workplace 3] where the applicant also secured a job at the beginning of 2011, until the end of 2012.  She said that whilst at [Workplace 3] a [colleague] commented on them as they walked past along the lines of two lesbians showing off.  They also experienced problems with the community during this time.  For example once whilst going for a walk a man approached them, said he knew they were lesbians, and told them to stop it or they would be killed.

24. The applicant also described her concerns about being monitored whilst at [Workplace 2].  That is she said sometime in 2008, after returning to [the workplace] from a weekend home in Bulawayo, some [colleagues] told her a man had been looking for her and said she had a parcel from [Country 2] which they had dropped off at the shops: yet there was no parcel.  Another time whilst at [work] [a person] told her someone was looking for her at the gate however when the applicant told [them] to get him, he was gone.  The third time another [person] told the applicant that someone was at the [workplace] asking about her.  When the applicant went [there] a young man asked her name, gave her a letter and told her some parcels had been delivered from [Country 2] [nearby].  The letter was from a woman in [Country 2] who said she had sent the applicant some money, groceries and a blanket and provided an address in  Bulawayo for the applicant to go to if she did not receive the goods.  The applicant never went to the address, scared that people who were against her relationship – possibly some community youth – were planning something.

25. Because of these problems she had been experiencing as a result of rumours about her sexuality the applicant thought it would be better to move to Bulawayo, thinking the situation might be better in a big city, far away.  Her transfer was ‘unofficial’ in the sense that she did not go through the [government office] and paid someone to make the arrangements.  However even in Bulawayo people were looking for her.  Specifically once a man came to her family home, and asked her son where she was whilst she was at work.

26. The applicant said when she came to Australia in early 2014 she planned on visiting her sister here only (she was still in a relationship with [Ms B]).  However not long after she arrived (in February 2014) he mother told her over the phone that two men from [District 1] had come to their house looking for her.  This news, combined with the past harassment and threats she had experienced because of rumours about her homosexuality, caused the applicant to decide to stay in Australia and seek protection. 

27. The Tribunal accepts the applicant’s claims about being verbally harassed and threatened by community members in the past in Zimbabwe on account of her sexuality.  It accepts that she was ‘encouraged’ to leave her job and seek a transfer by the [senior officer] at one of the [workplaces] who was pandering to community expectations, and that other [colleagues] called her (and her girlfriend) names as well as members of the community.  It accepts that as a result the applicant modified her behaviour to a certain extent, for example by moving [workplaces] away from areas where rumours had spread about her sexual orientation, by limiting accompanying her partner in public, and by changing travel routes at times to avoid being vulnerable to physical attack as threatened.

28. The Tribunal notes in [Ms B’s] written statement provided to the Department, it is stated that they have both been subject to harassment, verbal and physical abuse by the police and government and youth militia.  However the applicant made no mention of being physically abused or assaulted in her statutory declaration provided to the Department or initially at hearing when recounting the harassment and threats she had experienced in the past as a lesbian (or suspected as such).  (She did talk about being physically assaulted by police in 2008 after the elections result, discussed separately below.) When this discrepancy was pointed out at hearing, the applicant said that she and [Ms B] were beaten by the two young men outside the [workplace] in 2007, when they were threatening them to stop their relationship.  She said they were kicked and beaten but not for long and were not injured.  Because the applicant failed to mention this fact when she described this incident initially at hearing and in her statutory declaration provided to the Department, the Tribunal is of the view that she exaggerated this aspect of her claims.  Therefore whilst it accepts that the applicant and her then girlfriend were threatened with serious harm by these two men – possibly youth militia as claimed – who came to their [workplace] in 2007, it does not accept that they were physically harmed at the time. 

29. The Tribunal also notes the applicant’s claims in her statutory declaration provided to the Department that [in] March 2014 the applicant received a message from [Ms B] that there were many raids; that the authorities had indicated they were looking for the applicant; and that [Ms B] had been detained and interrogated about the applicant’s whereabouts.  However the applicant made no mention of these alleged incidents in her oral evidence to the Tribunal, including when she was asked specifically if anything happened to [Ms B] in Zimbabwe after she left.  For these reasons the Tribunal does not accept that the authorities were looking for the applicant after she left Zimbabwe or that [Ms B] was detained and interrogated about the applicant’s whereabouts as claimed in that statutory declaration.

1. Despite these concerns with aspects of the applicant’s evidence, including exaggeration of claims of past harm, the Tribunal otherwise found the applicant to be a credible witness and accepts her claims to be a lesbian, to have been in a long term relationship with a woman in Zimbabwe, to have been harassed and threatened (with serious harm) by community members as a result, and to have had to change jobs and modify her behaviour because of the threats, intimidation and resultant fear. 

2. The Tribunal also accepts the applicant’s claims that some strangers continued to seek her whereabouts on occasions in [District 1] and after she had moved to Bulawayo.  It is unclear to the Tribunal – and the applicant – if this sporadic and somewhat odd continued interest in her had anything to do with her sexuality.  At hearing the applicant gave evidence about being arrested, beaten and detained for two days following the general election in 2008, accused of swaying voters (along with others) in her role as a [Occupation 2].  The Tribunal accepts her claims in this regard, noting country information indicates this was not uncommon for [Occupation 2] (and [Occupation 1]) to have been imputed with an anti-government political opinion at the time and interrogated and harmed.  At hearing the applicant speculated that the ongoing interest in her could have been related to this incident, but she feared it was community members keen to find ‘proof’ of her homosexuality and punish her.  Although the motivation for people pursuing the applicant is unclear, the Tribunal accepts it happened and accepts that because of past harassment and threats by community members and colleagues the applicant was unable to live openly as a lesbian in Zimbabwe in the past, consistent with country information that many gay and lesbian people in Zimbabwe hide their sexuality.[1] 

   [1] DFAT Country Information Report Zimbabwe 11 April 2016 at 3.61 and UK Home Office, Country Policy and Information Note, Zimbabwe: Sexual orientation and gender identity, Version 2.0 November 2016 at 2.3.10.

3. The applicant told her sister in Australia about her sexuality and the problems she had in Zimbabwe after her mother told her about the men from [District 1] looking for her.   Her sister was angry, said she did not want to hear about it, and claimed the applicant was an embarrassment.  The applicant then moved out of her house. After her sister told her parents and siblings in Zimbabwe her father and sisters stopped talking to her.  Her mother, initially “lashed out” because as a Christian she did not want the applicant to embarrass her.  (The applicant said her relationship with her brothers did not change.)

4. In terms of her current relationship with her family members, the applicant said she speaks to her mother over the phone regularly however they avoid talking about her sexuality or what happened: she said that she cannot be open with her. The Tribunal accepts the applicant’s evidence in this regard and notes her family disapproval which has been expressed verbally in the past and would likely be in the future if the applicant returns to Zimbabwe, as would a level of familial ostracism.  However verbal disapproval and ostracism do not constitute serious harm and the Tribunal finds remote the chance the applicant would be seriously harmed by any of her family members on return to Zimbabwe in the foreseeable future on account of being a lesbian.

5. In considering whether the applicant would face a real chance of persecution as a lesbian on return to Zimbabwe in the reasonably foreseeable future from the authorities and/or the broader community, the Tribunal has had regard to the following independent country information about the situation for homosexuals and lesbians, as well as the representative’s written submission on this issue. 

6. DFAT, in their most recent county information report on Zimbabwe, state the following with respect to sexual orientation and gender identity in Zimbabwe:

   While the Constitution guarantees rights to non-discrimination, privacy, and freedom of expression, thought and association, ZANU-PF firmly opposed the inclusion of constitutional rights for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons. The Constitution specifically prohibits same sex marriage. Section 73 of the Criminal Law Act criminalises homosexuality, which the Act refers to as ‘sodomy.’ Those found guilty of sodomy are liable to a fine, imprisonment for up to one year, or both.

   In practice, prosecutions of consensual same-sex sexual conduct are rare. The authorities more commonly harass LGBTI persons using loitering, indecency and public order statutes, although violations are under-reported because of the stigma attached to the LGBTI community. In 2014, Gays and Lesbians Zimbabwe (GALZ) reported 41 cases of arbitrary arrest, violence, harassment, unfair dismissal and forcible displacement involving LGBTI persons.

   Official rhetoric on homosexuality is strongly homophobic.

   ...

   This official rhetoric limits people’s ability to openly express their homosexuality. LGBTI persons generally do not openly express their sexuality or identity in their workplaces, or within their families. DFAT understands that more privileged LGBTI persons are possibly able to be more open about their sexual orientation and identities, but still only within their like-minded social circles. Deeply embedded, traditional cultural (and religious) factors also inhibit the free expression of sexuality in any form, whether an individual identifies as homosexual, heterosexual or otherwise. The authorities are more sympathetic towards intersex persons; intersex issues have been covered in the media and are generally treated as medical rather than identity issues.

   DFAT assesses that there is a high level of official discrimination and a moderate degree of societal discrimination against LGBTI persons in Zimbabwe. Reported cases of violence against LGBTI persons are infrequent and do not appear to follow a set pattern of victimisation.[2]

   [2] DFAT Country Information Report Zimbabwe 11 April 2016 at 3.58 – 3.62

7. The policy summary in the United Kingdom’s Home Office’s Country Policy and Information Note on Sexual orientation and gender identity includes as follows:

   Although same-sex sexual relations between men are illegal in Zimbabwe, prosecutions are rare. However, there are no specific laws criminalising same-sex relationships between women or legislating on gender identity.

   Although LGBT persons may face discrimination and harassment by the state and societal hostility there is little reported violence against LGBT persons in Zimbabwe. Caselaw has found that that there is no general risk to LGBT persons.

   Personal circumstances do however place some gay men and lesbians at risk and, although not decisive on its own, being openly gay may increase the risk.

   Lesbians, living on their own or together, may face greater difficulties than gay men.

   A person who has a positive HIV/AIDS diagnosis may also face an increased risk.

   Gay rights activists and other persons who openly campaign for gay rights in Zimbabwe are at risk of arbitrary arrest and harassment which may amount to persecution.[3]

   [3] UK Home Office, Country Policy and Information Note, Zimbabwe: Sexual orientation and gender identity, Version 2.0 November 2016 at 3.1.1 – 3.1.6.

8. In terms of societal treatment of gays and lesbians in Zimbabwe, the same UK Home Office report states:

   Government and religious rhetoric limits people’s ability to openly express their homosexuality or bisexuality.  LGBT persons generally do not openly express their sexuality or gender identity in their workplaces, or within their families.  Zimbabwe is deeply religious and traditional, and sexuality generally (homo – or hetero-sexual) is inhibited and unlikely to be publicly expressed.  LGBT persons experience a climate of intimidation, stigma and discrimination which may exclude them from society, public services and job opportunities. They may also find it difficult to access information about and treatment for HIV.  However, reported cases of violence against LBGT persons are infrequent and do not appear to follow a set pattern of victimisation.[4] 

   [4] UK Home Office, Country Policy and Information Note, Zimbabwe: Sexual orientation and gender identity, Version 2.0 November 2016 at 2.3.10.

9. The most recent US State Department report on human rights practices in Zimbabwe relevantly states:

   President Mugabe and ZANU-PF leaders publicly criticized the LGBTI community, rejecting the promotion of LGBTI rights as contrary to the country’s values, norms, traditions, and beliefs.

   The police reportedly detained and held persons suspected of being gay for up to 48 hours before releasing them. LGBTI advocacy groups also reported police used extortion and threats to intimidate persons based on their sexual orientation. Members of Gays and Lesbians of Zimbabwe, the primary organization dedicated to advancing the rights of LGBTI persons, experienced harassment and discrimination.

   Religious leaders in this traditionally conservative and Christian society encouraged discrimination against LGBTI persons. For example, Walter Magaya, leader of the Healing and Deliverance Ministries, continued to host shows on television and radio during which he “healed” members of the LGBTI community.

   LGBTI persons reported widespread societal discrimination based on sexual orientation. In response to social pressure, some families subjected their LGBTI members to “corrective” rape and forced marriages to encourage heterosexual conduct. Women in particular were subjected to rape by male family members. Victims rarely reported such crimes to police.[5]

   [5] US Department of State 2017, 2016 Country Reports on Human Rights Practice - Zimbabwe, 3 March, s6, Discrimination, Societal Abuses and Trafficking in Persons,

10. As submitted by the representative, findings of a survey of laws impacting the rights of lesbian, gay, bisexual and transgender persons in selected southern African states, including Zimbabwe by OutRight Action International includes as follows:

    Homosexuality and transgenderism are highly sensitive issues in Zimbabwe where homosexuality is politicised and publicly criticised by both religious leaders and government authorities and homosexual acts between men, including hand holding, hugging and kissing are criminal offences.  As a result of the harsh laws and public denunciation, particularly by President Robert Mugabe, members of the LGBT community are routinely stigmatized, discriminated against, denied access to services and benefits and subjected to assault and harassment.  President Mugabe has even gone so far as to threaten to behead gay citizens, denouncing tolerance for homosexuality as “unnatural” and criticising LGBT individuals as “worse than pigs, goats and birds”.[6]

    [6] OutRight Action International, A Survey of Laws Impacting the Human Rights of Lesbian, Gay , Bisexual and Transgender Persons in Selected Southern African Countries, section E: Zimbabwe, published on 1 April 2016, footnotes omitted.

11. Such country information indicates that lesbians, gay, bisexual and transgender people (LGBT) people are subjected to discrimination, and sometimes intimidation and harassment by the government and society in Zimbabwe.  DFAT and the UK Home Office, among others, report that physical harm is infrequent and the UK Home office assesses that there is not a general risk for LGBT persons.  Nonetheless, as set out above, the UK Home Office also indicate that personal circumstances may place people at risk, including those who are openly gay, and that lesbians may be at greater risk.  In the applicant’s case she told the Tribunal that she would want to live as a lesbian on return to Zimbabwe and if not, it would be because of fear of persecution.  The Tribunal accepts her claims in this regard.  The Tribunal has accepted the applicant’s claims of experiencing harassment and threats – including of serious harm such as rape and murder – by men in the community upset that she was in a relationship with a woman, against community mores.   Whilst physical violence against lesbians is infrequent, it does occur, and country information indicates that lesbian, bisexual and transgender were particularly at risk of sexual violence in the form of “corrective” or “curative” rape by family members.[7]

    [7] US Department of State 2017, 2016 Country Reports on Human Rights Practice - Zimbabwe, 3 March, and The UN Human Rights Council Stakeholder submissions for the forthcoming November 2016 Universal Periodic Review, 23 August 2016,

12. Given such country information and what it accepts of the applicant’s past experiences and profile, the Tribunal is of the view that the applicant would face a range of problems if she were to seek to live openly as a lesbian in Zimbabwe. The Tribunal accepts based on the independent information that there is a very high degree of social disapproval towards lesbians in Zimbabwe. It considers that, while same-sex relationships between women are not criminalised, there is still very limited acceptance of homosexuality in Zimbabwe and the environment for lesbians remains generally hostile. This is evident in the strongly homophobic official rhetoric by the country’s leadership.  The Tribunal finds that, if the applicant were to seek to live openly as a lesbian in a relationship with another woman, she would face an extremely high degree of disapproval.

13. In addition, the Tribunal accepts that, if the applicant were to conceal her sexuality in Zimbabwe she would be doing so due to the threat of serious harm. In this regard, the Tribunal notes the observations of Justices McHugh and Kirby in Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43]:

    In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

14. Their Honours also stated (at [40]):

    The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

15. The Tribunal therefore finds in the context of Zimbabwe that if the threat of harm were to prevent the applicant from living openly as a lesbian this would in itself amount to persecution. 

16. The Tribunal is satisfied that, particularly taken in combination, the various forms of harm the applicant would face as a lesbian in Zimbabwe would amount to persecution. It is satisfied that there is more than a remote chance that the applicant would, for reason of her sexuality, suffer harm in Zimbabwe amounting to persecution.

17. Having had careful regard to the independent information, the Tribunal is not satisfied that a lesbian is able to access adequate and effective state protection from the Zimbabwe authorities.  Information indicates that the availability of state protection for homosexuals is limited.  Zimbabwean law does not provide LGBT people any protection against discrimination and reports indicate that police are often perpetrators of violence and other forms of mistreatment against LGBT people.[8] A 2015 Human Rights Watch report noted a Zimbabwe Human Rights Commission report published in July showing continued hostility and systematic discrimination by police and politicians against LGBT people, driving many underground. The same report noted that police did not conduct serious investigations or arrest any suspects in the December 2014 attack at a Christmas party organised by the activists group Gays and Lesbians of Zimbabwe (GALZ) where 12 armed men invaded the party and seriously injured 35 people with chains, sjamboks and long sticks.[9]

    [8] US Department of State 2017, 2016 Country Reports on Human Rights Practice - Zimbabwe, 3 March,

    [9] Human Rights Watch, World Report 2016 – Zimbabwe, 27 January 2016,

18. On this basis the Tribunal is also of the view that lack of awareness and negative attitudes on the part of the authorities result in discrimination and hostility towards gay and lesbian people. It accepts that there is a real chance that this would result in a discriminatory denial of protection for a lesbian victim.

19. The Tribunal finds that the applicant would not be able to avoid the harm she fears by relocating within Zimbabwe.  Whilst country information indicates that the situation is often worse in rural areas, such information indicates that similar conditions and attitudes persist anywhere in the country, including in urban settings.  The Tribunal also notes the applicant’s claims – which it accepts - that even when she moved back to Bulawayo from a rural area (where she experienced threats and intimidation because of her sexuality) it appears that men from those areas tried to find her.  On this basis the Tribunal is satisfied that, regardless of where the applicant went in Zimbabwe she would face a real chance of persecution for reason of being a lesbian. 

20. For the reasons set out above, the Tribunal finds that the applicant has a well-founded fear of being persecuted for reason of her membership of the particular social group constituted by “lesbians in Zimbabwe” if she returns to her country of nationality. The Tribunal accepts that the applicant is unwilling, owing to her fear of persecution, to avail herself of the protection of the government of Zimbabwe. The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any third country and that the applicant is not excluded from Australia’s protection by s.36(3).

    CONCLUSION

21. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Nicole Burns
    Member