1700739 (Refugee)

[2022] AATA 490

1700739 (Refugee) [2022] AATA 490 (21 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1700739

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Paul Noonan

DATE:21 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2022 at 12:09pm

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – political opinion – opponent of Zimbabwean Government – Movement for Democratic Change (MDC) member – particular social group – bisexual – returnees from a Western country – long term heterosexual marriage – forced participation in ZANU-PF rally – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Zimbabwe, applied for the visa on 29 August 2014 and the delegate refused to grant the visa on 21 December 2016. The applicant first arrived in Australia [in] October 2012.

3. The applicant appeared before the Tribunal by videoconference on 15 October 2021 and again on 1 December 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Shona and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

4. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by videoconference. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. In addition, both the applicant and his representative were in favour of conducting the hearing by this method. The Tribunal is satisfied that at all times all participants in the hearing were able to clearly communicate with each other.

   RELEVANT LAW

5. 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, 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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well‑founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far‑fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality, or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

19. 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.

    Country of nationality

20. It is not in dispute that the applicant is a Zimbabwean national. He has travelled into and out of Australia on an apparently genuine Zimbabwean passport, a copy of which is contained on the Departmental file. His claimed travel into and out of Australia is consistent with the visas and stamps in that passport and the delegate noted there is no evidence he is a citizen of any other country.

21. The Tribunal finds that the applicant is a citizen of Zimbabwe and has assessed his claims against that country.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether there is a real chance of serious harm or a real risk of significant harm to the applicant because of his sexuality, because of his political opinion or for reason of having lived in a Western country. A copy of the delegate’s decision was supplied to the Tribunal by the applicant prior to the hearing. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

23. The applicant set out in his claims for protection that he is bisexual, and he has been targeted for persecution because of this. He is also a supporter of the Movement for Democratic Change (MDC) and he fears persecution from the ruling political party Zimbabwe African National Union-Patriotic Front (ZANU‑PF) because of this.

24. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well‑founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

25. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

    … care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

26. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    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.

27. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

28. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

29. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

    Claim – the applicant’s sexuality

30. The applicant confirmed that he has been married for many years to a woman in Australia and has [an age]-year-old son with his wife who is a Zimbabwean citizen. She is making her own separate claims for protection. She is still waiting for a decision from the delegate.

31. The Tribunal has significant concerns with respect to the applicant’s evidence about his claimed sexuality. This is for the following reasons.

32. The applicant confirmed that he still identifies as bisexual. He fears he will be harmed by the authorities and by ordinary citizens in Zimbabwe because of this. He stated that he had engaged in repeated sexual encounters with a man in Australia at his workplace. His wife is not aware of this. These encounters first took place last year but have not been ongoing. The Tribunal asked the applicant why he had not submitted any evidence of this relationship such as texts, witness statements, photos or other correspondence. The applicant stated that the man had refused to assist him with his appeal. This is the only sexual encounter with a male he has had since being married. He stated he did have other sexual encounters with men prior to being married. The Tribunal noted that this differs from his prior evidence to the delegate that he had not had such encounters in Australia. The applicant stated that in fact his wife was his girlfriend at that time and he wasn’t prepared to divulge such details to the delegate. The Tribunal is unconvinced by the applicant’s evidence with respect to past sexual encounters with men in Australia. He has supplied no corroborating evidence or third party statements and has supplied contradictory evidence about his sexual history to the delegate and later to the Tribunal. His explanation that he wasn’t prepared to divulge such details to the delegate because his wife was his girlfriend at the time is also wholly unconvincing as an explanation. This is because his girlfriend and now wife is not a party to his application and has no way of finding out details related to his claims for protection unless he told her. Further, the applicant did not advance any plausible reasons for why he might hold this concern and choose not to impart key evidence in support of his claims for protection to the delegate. Nevertheless, the Tribunal has considered if he may have concerns about the confidentiality of the application process but notes that he had no issue in telling the Tribunal about his sexuality and made no such argument to the Tribunal which leads the Tribunal to conclude he is not and was not plausibly concerned with the confidentiality of the protection process in Australia. The Tribunal would expect clear and consistent evidence with respect to the applicant’s history of sexual encounters with men and relationships since he entered Australia in October 2012 and this has simply not been the case. The only clear consistency in the applicant’s evidence about his sexual history in Australia is that he has been in a long-term relationship with a woman, with whom he has a child. These factors cause the Tribunal to doubt the credibility of the applicant’s claim to have had sexual relations with a man or men in Australia.

33. The Tribunal noted that the applicant had stated in his written application that he was familiar with the fact that Australia was a suitable place to enable him to live his life freely. However, despite this stated knowledge, the Tribunal noted that the applicant had significantly delayed applying for protection for some two years after arriving in Australia and the student visa he was on gave him no right of residency. The applicant provided contradictory evidence, which was noted by the Tribunal at hearing, that he had been investigating whether Australia was a suitable place for him. The applicant stated he had a plan to finish his studies and get a skilled worker visa and he was focused on that and not on obtaining a protection visa. He felt this would be a better result for him. The Tribunal finds the applicant’s evidence as to the delay in applying for protection to be implausible, vague and contradictory. He variously stated that he was aware Australia was a suitable country for him to live free from the fear of harm due to his claimed sexuality prior to coming here and then that he spent several years delaying applying for protection while he made further investigations as to Australia’s suitability. It appears that the applicant was simply in no hurry to apply for protection and only did so when his other immigration options were exhausted. The Tribunal acknowledges that a person can have valid claims and choose to pick a different migration pathway however the applicant only applied for protection the day prior to his student visa being due to expire. The Tribunal finds against the applicant as the timing of his application reflects a last‑ditch effort to remain in Australia when he was well aware of the protection option and claims to fear serious harm should he be required to return to Zimbabwe. The Tribunal would expect the applicant to have progressed his protection claims in a far timelier manner if his fear of harm was genuinely held. The fact that he did not do so counts against the overall credibility of his claim.

34. The applicant informed the Tribunal that he had come to realise his bisexual orientation when he was about [age range]. He was shocked at himself. However, he learned to embrace his identity over time. The applicant stated that he had not experienced discrimination in Zimbabwe but felt at risk due to the general environment there. The Tribunal noted that the applicant claimed a relationship with a male at boarding school. When asked for specifics, the applicant claimed he slept with the fellow student at night when the lights went out. The applicant agreed that while at school he had a girlfriend but he did this to cover up his bisexual activities. The Tribunal noted he has given contradictory evidence, as highlighted by the delegate, that he was kicked out of home by his parents for reason of their suspicions about his sexuality and that he had not disclosed to them that he had a girlfriend. The Tribunal put to the applicant that this appears like contradictory and illogical evidence and that it would have been a simple matter to disclose his girlfriend’s existence to allay his parents’ claimed anger. The applicant gave a highly vague response that he was hoping for another family member to step in and tell them about his girlfriend, without stating whom that was, and that he did not disclose this heterosexual relationship to his parents as he was not ready to marry. The Tribunal finds the applicant’s evidence with respect to his sexuality as a young man to be vague, illogical and inconsistent. The Tribunal does not accept that the applicant was kicked out of home for reason of his sexuality as he has given evidence that he was in a heterosexual relationship at that time. The Tribunal does not accept that he did not disclose this heterosexual relationship to his parents as he was not ready to marry or was waiting for another unspecified family member to tell them as being reasonably plausible in circumstances where he was being kicked out of home for reason of his claimed sexuality.

1. In addition to the above concerns, the Tribunal noted that the applicant gave evidence to the delegate that he had undertaken three months’ counselling with respect to his sexual attraction to men and he had asked them how to be straight and that this was why he had not had a relationship or encounter with a man in the nine years since being in Australia, however this evidence contradicted a letter obtained by the delegate from his counsellor.

2. The Tribunal put this letter with respect to the applicant’s claimed counselling session with [Agency 1] to the applicant in writing after the first hearing as follows, pursuant to s 424A, including a copy of the letter from the counsellor, which the applicant’s representative indicated they had not received.

   The particulars of the information are:

    Letter from [Counsellor A], Manager at [named counselling program].

   This information is relevant to the review because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. During the first hearing you indicated you had not received a copy of this letter. The contents of this letter may lead the Tribunal to not accept that you received ongoing counselling with respect to your sexuality as claimed as the letter from [Counsellor A] does not mention this and only refers to a single session conducted with respect to drug and alcohol counselling.

   This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. If we rely on this information in making our decision, we may not accept that you have a well-founded fear of persecution if you return to Zimbabwe or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Zimbabwe.

   You are invited to give comments (noting a second hearing is scheduled for 1 December 2021) on or respond to the above information in writing.

   In addition, as discussed during the first hearing the Tribunal attaches a letter from [Mr A] to the Department regarding your sexuality which you gave evidence you had also not received. The Tribunal notes this letter was referred to in the Delegate’s decision and that it was noted by the Delegate lacked compelling detail and was unsigned.

   You are invited to give comments (noting a second hearing is scheduled for 1 December 2021) on or respond to the above information in writing.

3. The applicant contradicted his evidence to the delegate by telling the Tribunal that in fact he had gone there to try and help him with his relationship with his parents with respect to his sexuality. However, the Tribunal noted that the subsequent letter from his counsellor stated that he had one appointment only and that this was in respect to counselling and drug and alcohol concerns. The Tribunal notes that there is no evidence before it to suggest that the applicant has HIV or that he is advancing concerns with respect to his health as a reason to fear harm. The Tribunal noted the delegate’s concerns with respect to this and also noted it held the same concerns. The applicant stated that he was surprised by this letter from the counsellor and had not gone there for drug counselling but rather for counselling about his sexuality. The applicant then claimed that the counsellor had advised him to have repeated exposure to a female and this would help him. The Tribunal finds this evidence about claimed advice from the counsellor, who appears to be a reputable counsellor, being [Counsellor A], Manager [at named counselling program] for [Agency 1], to be highly implausible.

4. As put to the applicant, the Tribunal simply does not accept as reasonably plausible that a counsellor from [Agency 1] would advise a client (who was asking for advice about how to stay straight) to simply go and sleep with women. Such simplistic evidence, with no attempt to corroborate the advice with [Agency 1], is, in the Tribunal’s view, much more likely to reflect that such advice was never sought in the first place. The applicant then changed his evidence to suggest that he had made this suggestion to the counsellor and asked if it would help if he married a woman. The Tribunal finds that the applicant has given contradictory and confused evidence about his interactions with the counsellor and the outcomes he was seeking to achieve. The Tribunal has considered if the applicant misinterpreted the counsellor’s advice in the first instance and then corrected his evidence however he clearly stated that the advice was given to him by the counsellor and offered no other evidence with respect to the actual advice given to him on this purported topic of counselling. The Tribunal would expect consistent and clear evidence as to what advice was actually given by the counsellor and it considers this contradictory and vague evidence undermines the credibility of the applicant’s claims to have sought counselling with respect to his claimed sexuality. The Tribunal considers it is far more likely that the applicant has sought out a counselling session with [Agency 1] to falsely attempt to strengthen his claim.

5. In a subsequent response to the Tribunal’s s424A letter, the applicant wrote to the Tribunal, via his representative on 29 November 2021, that the counsellor has mischaracterised the consultation he had sought. He did not consider the counselling to be restricted to drug and alcohol addiction. He is [an occupation 1] and would not be able to do such work if suffering from such a problem. In response to concerns raised about his brother’s letter to the delegate, the applicant submitted his brother did not know much about his sexuality and had only found out in later conversation with their mother. As such, he did not have much detail to provide. The Tribunal accepts that the applicant’s brother has little direct knowledge of the applicant’s sexual history and places no weight on this evidence.

6. The Tribunal is prepared to accept that the applicant held one session with respect to his sexuality however it must weigh this against the evidence with respect to the amount of counselling received. As put to the applicant, he clearly told the delegate that he had received three months’ ongoing counselling with respect to his sexuality and that the evidence on this point appeared contradictory. The Tribunal noted that the organisation has stated that their records reflect that they only had the one counselling session with him. The applicant stated that he has asked his representative to follow up with the counsellor for clarification. However, the Tribunal notes that the applicant’s representative has subsequently made further submissions but not provided anything further from the counsellor and in subsequent communication with the Tribunal on 18 January 2022 merely asked for a decision to be made and did not flag an intention to make any further submissions. The Tribunal cannot delay this matter indefinitely given the apparent inaction on the part of the applicant on this point of evidence.

7. The Tribunal finds the evidence with respect to the applicant’s counselling to be contradictory. He has clearly claimed a level of counselling, being at least two months, which the letter obtained by the delegate from [Agency 1] does not reflect. This letter clearly states he had one session only. The Tribunal is unconvinced by the applicant’s attempted explanations and refuting of this and notes that he has not sought further clarification from [Agency 1] for this significant contradiction in this evidence before the Tribunal. The Tribunal considers that the applicant has sought out a single session of counselling from [Agency 1] and sought to significantly embellish the amount of counselling received for the purposes of strengthening his refugee claim. This also significantly undermines the applicant’s credibility with respect to his claimed sexuality.

8. The Tribunal noted the delegate, on questioning as to why the applicant believed he was of adverse interest to the authorities with respect to his sexuality, had found the applicant’s evidence that he had told the authorities about his sexuality in Zimbabwe when asked by them as implausible, especially as he claimed to have not told anyone in Australia about his sexuality. The applicant stated to the Tribunal that the authorities had visited his house while investigating his sister’s political activities for ZANU-PF. They had asked him unexpectedly if he was straight and he had told them he was not, probably through shock; further, he had a visa to leave Zimbabwe at that time. The Tribunal finds it highly implausible that he would tell the authorities in such circumstances, when homosexuality is illegal in Zimbabwe.

9. Further, the Tribunal noted that the applicant had written in his claim that ZANU‑PF protestors had been protesting outside his house and shouting anti-gay slogans and pushing through his front gate but that he had told the delegate these same ZANU-PF protestors had actually been trying to recruit him to ZANU-PF. The Tribunal notes this appears to be contradictory evidence with respect to his interactions with ZANU-PF protestors. The applicant then gave somewhat vague evidence that because he was [under age] at the time, he was under pressure from ZANU-PF to join them. He did not agree with ZANU-PF, including their views on homosexuality or his sister’s decision to join them.

10. Overall, the Tribunal considers that the applicant has given contradictory, vague, confused and implausible evidence with respect to his claim to fear harm due to his sexuality. He has sought to embellish and has also fabricated his evidence with respect to this claim. These factors have been variously set out in these reasons above and when considered in total cause the Tribunal to reject completely the applicant’s claim to be bisexual and/or homosexual as a fabrication undertaken for the sole purpose of achieving a migration outcome to Australia.

11. Finally, the Tribunal has also considered if the applicant may be part of a group of persons that are perceived to be bisexual and/or homosexual in Zimbabwe. The Tribunal has found that the applicant’s evidence with respect to his sexuality is not credible and that he has fabricated his claims with respect to his sexuality. Further, the applicant has a long history of living in open heterosexual relationships both in Australia and in Zimbabwe and is in a long‑term heterosexual marriage. In such circumstances, the Tribunal is satisfied that there is no real chance of serious harm or real risk of significant harm to the applicant for reason of him being perceived to be bisexual or homosexual should he return to Zimbabwe.

12. It follows that there is no real chance of serious harm to the applicant for reason of his sexuality should he return to Zimbabwe either now or in the reasonably foreseeable future.

    Claim – political opinion

13. The applicant claimed he has been a member of the MDC since 2008. The applicant submitted that despite this, he was forced to march in political rallies at that time in support of ZANU‑PF. While doing this, he was struck on his head by a brick. There were a lot of things being thrown at that rally. The Tribunal noted that this appeared to be a random event and that he was not targeted personally. The applicant stated that he had to participate in the rally to avoid being accused of being an MDC supporter. The applicant also clarified that he had done some MDC rallies but he was very young and had no official roles with the MDC. The Tribunal noted that he was able to travel freely to [two countries] in 2012 and also leave for Australia unhindered and this may suggest he was in no danger and was of no adverse interest to the authorities. The applicant noted that he had a visa to Australia at the time of his travel and so did not need to apply for protection in those countries. He also said that the MDC was in power at that time and so he was in no danger. It is only since 2013 when ZANU‑PF regained power that he feels in danger.

14. The Tribunal also raised with the applicant that he gave evidence to the delegate that his MDC membership card was issued in 2016 and that his sister had retained his old card. The delegate considered the new card had been obtained to strengthen his claim for protection. The applicant stated he had asked his sister for the card but she had not sent it to him so he asked for a new card to be issued from the MDC. The Tribunal also noted that the applicant supplied a criminal statement from the Zimbabwean authorities stating that he had not been convicted of any crimes. The Tribunal noted that as he had been able to obtain such a certificate, this may suggest that he is of no adverse interest to the authorities. The applicant simply stated that he does not have a criminal record in Zimbabwe.

15. The Tribunal put to the applicant that DFAT assesses that only high-profile critics of the government may be of adverse interest to the authorities upon re-entry.[2] The Tribunal put to the applicant that there is nothing in the evidence to suggest that the applicant has any adverse profile or any form of political profile in Zimbabwe associated with the MDC at all and, as such, he would be of no adverse interest to the authorities or anyone else in Zimbabwe for reason of his political opinion should he return there. The applicant then somewhat vaguely suggested that old school mates would know he is not a ZANU‑PF supporter. The applicant also suggested that expatriates in Australia are raising money for the opposition leader however he did not provide any evidence that he was directly associated with this or has any adverse profile with the authorities for this reason.

    [2] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.56

16. The Tribunal has carefully considered the applicant’s evidence with regard to his political opinion. It accepts that he was involved in some street demonstrations in 2008 and was hit by a randomly thrown brick. It accepts that this was at a ZANU-PF rally. However, there is nothing in the evidence before the Tribunal to suggest that the applicant has any adverse profile or any profile whatsoever as a supporter of the MDC. The Tribunal accepts he was a member of the MDC on the basis of his membership card and supporting letter from the [MDC] dated [in] November 2016. However, this in itself is not an unusual fact and currently there are some 1.5 million registered members of the MDC in Zimbabwe.[3] While the Tribunal accepts the applicant’s evidence that he did participate in some rallies by his own evidence, he was a youth at the time and had no official roles in such rallies. Overall, there is nothing in the applicant’s evidence to suggest he held any formal roles in the MDC such that he would have garnered any form of profile. When this was put to the applicant, he agreed that this may be the case as he was only young at the time however he then suggested that old school mates may be adversely interested in his political opinion or that the activities of some expatriates in Australia on behalf of the MDC would raise his profile adversely. The Tribunal finds this evidence to be highly speculative and unconvincing and only provided when the Tribunal’s concerns about the applicant’s negligible political profile were put to him. Overall, the Tribunal is satisfied that, should the applicant be required to return to Zimbabwe, he would be of no adverse interest to the authorities, ZANU‑PF or anyone else for reason of his political opinion. As such, the Tribunal finds that there is no real chance of serious harm to the applicant should he return to Zimbabwe for reason of his political opinion either now or in the reasonably foreseeable future.

    Claim – returnee from a Western country

    [3] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.36

17. The Tribunal put to the applicant that DFAT states that it is not aware of returnees, including failed asylum seekers, being persecuted for that reason in Zimbabwe.[4] The Tribunal noted that this may indicate there is no real chance of serious harm to the applicant for reason of him being a returnee from the West. The applicant submitted that he may be robbed when he returns and the authorities may set this up because they may want to know what he said to the government here. The Tribunal considers the applicant’s submission about being set up by the authorities to be speculative and without any substantive basis. Further, the Tribunal noted that the applicant’s sister is a member of ZANU-PF and involved in government. The applicant merely stated that he is not in regular contact with her. In this instance, the Tribunal prefers the DFAT country information that returnees are not at risk of persecution for that reason. The Tribunal considers the applicant’s fears in this regard to be speculative and, given his negligible to non-existent political profile and the fact he has a direct family member in ZANU-PF, finds that there is no real chance of serious harm to the applicant should he return to Zimbabwe for reason of him being a returnee from the West either now or in the reasonably foreseeable future.

    Refugee claims – conclusions

    [4] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.56

18. The Tribunal has found there is no real chance of serious harm to the applicant for reason of his sexuality, his political opinion or because he is a failed asylum seeker returnee from a Western country and finds that this is the case both now and in the reasonably foreseeable future, and, as such, it follows that he does not satisfy the criterion set out in s 36(2)(a).

    Complementary protection

19. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it 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 will suffer significant harm.

20. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Zimbabwe. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk that the applicant will suffer significant harm.

    Overall conclusions

21. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

22. 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 Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

23. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Noonan
    Member