1713796 (Refugee)

1713796 (Refugee) [2021] AATA 43 (7 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713796
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Tania Flood
DATE:7 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first and fourth named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 January 2021 at 10:28am
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – particular social group – women who support and sympathise with LGBTI persons – family members of brother who is homosexual – fear of gender-based violence and female genital mutilation – harassment and threats by family members, including ex-husband – prevalence of domestic violence – country information on government, church and societal attitudes to homosexuality, and women’s rights – consistent, credible and compelling evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (b)(i), 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 June 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Zimbabwe applied for the visas on 24 March 2016. The delegate refused to grant the visas as the delegate was not satisfied that there is a real chance or a real risk that the applicants will suffer serious or significant harm on return to Zimbabwe, on the basis of their claims to be family members of someone who is homosexual.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Zimbabwe for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Zimbabwe there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
According to information contained in her application for a protection visa, the first named applicant is a [age]-year-old citizen of Zimbabwe. She was born in Harare, Zimbabwe. She resided at two separate addresses in Harare. Between 2001 to 2006, she lived in [Country 1]. Her husband and her brother reside in Zimbabwe. She has one brother residing in Australia. She completed primary school and high school in Zimbabwe. She was enrolled in [a] course in [Country 1] from January 2002 to June 2006, but did not complete the course. Before coming to Australia, she was employed as [Occupation 1] at a [business] in Zimbabwe.
The second and third named applicants are the daughter and son of the first named applicant. They are relying on their membership of the same family unit as the first named applicant and have not raised their own protection claims.
The fourth named applicant is the sister of the first named applicant. She was born in Harare, Zimbabwe. She lived at two separate addresses in Harare. She lived in [Country 2] from January 2014 to July 2015. She completed primary school, high school, and a [tertiary qualification] in Zimbabwe. She completed a [higher qualification] at a university in [Country 2].
The first, second, and third named applicants arrived in Australia [in] March 2016 as holders of [temporary visas]. The fourth named applicant first arrived in Australia [in] December 2012 as the holder of a [temporary visa]. She was also granted [two student visas]. She has departed and re-entered Australia multiple times, and most recently arrived [in] December 2019.
The applicants lodged an application for protection on 24 March 2016. On 22 June 2017 a delegate of the Minister refused the protection visa application.
The first named applicant made the following claims on her protection visa application form:
She left Zimbabwe to attend a wedding and cannot return due to being the family member of a homosexual. She claims her brother has ‘come out’, that the safety of his family members is at risk, and that she and her two children would be subjected to ‘shame’ and ‘ridicule’. She claims that she will be shunned by her family, her church, and community, and could be arrested by ‘state security agents’ as her brother was a member of [Organisation 1]. She would also be dismissed from her job. The police cannot assist her and her family as they are ‘anti-gay’ and the president is against homosexuality.
On her protection visa application form, the fourth named applicant stated that she is making the same protection claims as the first named applicant, in relation to her brother’s homosexuality.
Submissions to the Department
The following documents were also submitted to the Department:
A letter of support by the first and fourth named applicant’s brother, [Mr A] (undated). In the letter, [Mr A] provided the following information:
·He is engaged to [Mr B] and did not come out to his family for over 20 years. His parents are deceased, and his aunts have been trying to force him into marriage. His sister was sent to discuss this with him. He then decided to tell his immediate family the truth about his sexuality.
·Zimbabwe has the ‘worst view’ on homosexuality. Being gay or having a gay family member is an ‘embarrassment’ and ‘shameful’ to society.
·His niece and nephew will be shunned because their uncle does not conform to the norms and values of Zimbabwe.
·He has been a member of [Organisation 1] since he was [age] and attended his first counselling session. The organisation has all his details and there are always threats that the lists would be released, which would lead to great embarrassment for his siblings.
·He is under pressure as he turned [age] and his aunts would want to control him and his siblings and force him into marriage.
Copy of a visa grant notice indicating that [Mr A] was granted a [permanent] visa on 3 July 2015.
Copies of Australian passports for [Mr A] and [Mr B].
Copy of a residential tenancy agreement made [in] March 2016, under the names [Mr A] and [Mr B].
Copy of a ‘tenant trust ledger report’ dated [in] May 2015 under the names [Mr A] and [Mr B].
Copy of the first and fourth named applicants’ birth certificates.
Copies of birth registration certificates for the first, second and third named applicants.
An affidavit by the first named applicant’s husband, [Mr C] dated 2 June 2017. In his affidavit, he stated that he is aware of his wife and children’s application for a protection visa in Australia. He stated that he has been threatened and shunned by his wife’s family, and their house was destroyed.
Copy of a document titled ‘Outcome of Report [number]’ issued by the Zimbabwe Republic Police [dated in] 2016. The document states that on [date] 2016, ‘the house was put on fire as a result of petrol bombs. The house was burnt to ashes. However, ‘prosecuting was declined due to insufficient evidence’.
A letter dated [in] April 2016 and written by [Pastor D] from [Church 1] Harare. The letter is addressed to [the fourth named applicant] and states that her position as [an office bearer] and member of the church has been revoked as ‘the church is not willing to be associated with [her] current standing and family issues’.
A letter dated [in] April 2016 and written by [Mr E], the Chief Executive Officer of [employer]. The letter is addressed to the first named applicant and states that she has been relieved of her services as [Occupation 1] with the company as they are ‘not willing to be associated’ with her.
Copy of a quote from [a wedding services provider] sent by email [in] January 2017. The quote refers to a booking for a wedding package under the [given names of Mr A and Mr B].
Copy of a news article titled ‘Hear the word: ‘Homosexuality is unholy, not productive’ – AFM President’, published online by Tinzwei (undated).
Copy of a news article titled ‘Zimbabwe says No to homosexuality’, published online by News24 (undated).
Copy of a news article titled ‘Robert Mugabe, Zimbabwe dictator, renounces gay rights in UN speech’, dated 30 September 2015 and published online by Newsmax.
Protection visa interview
The applicants declined an interview with the Department, as the first and fourth named applicants stated that they found it difficult to discuss their brother’s homosexuality openly.
As the applicants waived the right to a Departmental interview, they were issued a natural justice letter by the Department. In the response to the letter, the first named applicant provided the following information:
Her husband continues to live in Zimbabwe and has been shunned by her relatives. He was self-employed but closed his business as he relied on referrals from the first named applicant’s relatives. His house was attacked when he was not home. He had to move to [town], which is a remote location, to live in hiding after receiving ‘degrading’ calls from relatives and church members. He was told that he was not welcome at the church. Her husband is aware of the protection visa application and advised her not to return as he is worried about the safety of their children.
Her family holds strong views against homosexuality, which is illegal in Zimbabwe. She would not be safe if it is known that she is related to a homosexual person.
Her brother had travelled to Zimbabwe with his partner on two occasions, however, they were not a couple at the time. They also travelled with a group of friends and no one suspected their relationship.
Her brother supressed his sexual preferences for years in order to protect his life and the reputation of his family. Although he was a member of [Organisation 1] since he was [age] years old, he went to the organisation discreetly. He filled out a membership form but did not go back for years. He tried to pull out of his membership after the organisation was raided multiple times by the State. The first named applicant claims that she did not know about her brother’s homosexuality until she came to Australia on her last trip.
She comes from a deeply religious family and her late grandfather belonged to a family of priests. The head of the family is [a prominent member] of one of the biggest churches in Zimbabwe. Her mother’s sisters organised for her brother to get married to a girl and talked to him about marriage on his last visit to Zimbabwe.
People in Zimbabwe are now aware of her brother’s homosexuality, after the first named applicant spoke to her aunt in confidence. She has received messages from relatives no longer wishing to be associated with her and her kids and has been asked not to return to the church.
She was working full time before coming to Australia but was let go due to her brother’s homosexuality. She cannot return to Zimbabwe as she will not be able to provide for her two children or send her children to school. She cannot disown her brother, and fears for her mental health as well as that of her brother. She claims that people will talk behind their backs and they will be excluded from society.
Submissions to the Tribunal
The applicants’ representative submitted the following documents to the Tribunal:
A Statutory Declaration by the first named applicant dated 30 November 2020. In her Statutory Declaration, she repeated her claims made to the Department and provided the following information:
·Her family belongs to the Pentecostal faith and some of her relatives are in high positions. One of her uncles [is Pastor F] of [Church 2] in Zimbabwe. Another uncle, [Mr G], is a police officer.
·They also belong to a powerful clan called [name], which has political connections in Zimbabwe.
·She came to Australia in March 2016 on a [temporary] visa to attend the wedding of a family friend. Her sister came on a student visa. Before she left Zimbabwe, her aunt, [Ms H], advised her to speak to her brother about marriage. She spoke to her brother once she came to Australia and found out that he is gay. As she was shocked and confused, she told her aunt about this. Afterwards, she received phone calls from angry relatives who said that they have ‘insulted the religion’, that they were ‘promoting gays’ and should not be allowed to stay in the country.
·Her brother told her that he was discreet about his sexuality in Zimbabwe. He visited a Gay organisation for counselling but was too afraid to attend the counselling services.
·Her brother’s sexuality became a talking point amongst relatives, the community, and her church, who had issued a statement against them.
·She separated from her husband in 2017, but he is still in contact with their children. Their relationship worsened after her husband faced severe harassment, bullying and social ostracism. He tried to convince the applicant not to support her brother. He stopped talking to her, claiming that she had ruined his ‘life and reputation in Zimbabwe’. He is demanding that their children be returned to him, and that if she returns to Zimbabwe he will ‘teach [her] a lesson’ and remove their children from her. She claims he has political connections as he is a relative of [Mr I] and [Mr J]. She claims he ‘can do anything in Zimbabwe’, as there is no rule of law.
·Her other brother in Zimbabwe faced ‘wrath and anger’ from society and the church. As a result, he applied for a student visa and went to live in [Country 3] in 2018. He fears that he will face serious issues if he returns to Zimbabwe.
·She fears that she will be seriously targeted and harmed by relatives, religious people, and her husband, as she is the family member of a gay man and would be perceived as a person who supports and promotes LGBT activities. She would also be perceived as someone who ‘challenges the male chauvinist behaviour’ as she had defied her husband’s orders. She claims she would face family violence. She would also face sexual assault and harassment in Zimbabwe as a woman with no male protection.
·The authorities will not protect her due to her gender, their homophobic mentality, and the fact that her husband’s relatives are in powerful positions.
A Statutory Declaration by [the fourth applicant], dated 30 November 2020, and providing the following information:
·She came to Australia in February 2016 to study a [course] and graduated in May 2018.
·She was informed of her brother’s sexuality by her sister. Her family were upset with how she and her sister handled the situation as they did not pressure or force their brother to end his relationship and accept the arranged marriage. Her aunt sent angry messages to her, threatening her and her family for accepting their brother.
·She has depression and attended counselling in 2017. She was not able to pursue her career as [an Occupation 2] as she had not completely healed from the verbal abuse. Her depression worsened in 2018 and she continues to attend counselling.
·She also fears for her life as her aunt has threatened that she will be forced to undergo genital mutilation to make sure she does not come out as a lesbian.
·She fears that she will be subjected to violence by her brother in law, who called her and her sister ‘witches and evil’. He is related to a former [member of the government, Mr I], and the current [Public Office Holder 1], [Mr J]. She would not be able to obtain state protection as the current [Public Office Holder 1] has a strong hold in the army.
A Statutory Declaration by [Mr A] dated 30 November 2020. [Mr A] confirmed that he is in a same sex relationship with his partner. He stated that his family is deeply religious and he fears for the repercussions faced by his sisters, nephew, and niece, as they embraced his sexuality and have been branded as supporting gays. He also fears for the life of the first named applicant due to the threats from her ex-husband, and for the second named applicant who could be targeted by relatives for FMG. He further stated that both his sisters have attended counselling.

Copy of a document featuring the name, photograph, and background information on [Pastor F] of [Church 2] in Zimbabwe.
Copy of a news article titled ‘No space for opposition in Uzumba: Zanu PF MP’ dated 25 May 2017 and published online by Newsday.
Copy of an extract from a Wikipedia article on ‘[Mr J].
The applicants’ representative made a submission to the Tribunal dated 30 November 2020, providing information on genital mutilation and family violence in Zimbabwe. The representative submitted that the applicants have a well-founded fear of persecution on the basis of their membership of the particular social groups of women in Zimbabwe, people who are perceived as transgressing traditional norms of Zimbabwean society, and members of a family unit of LGBTs.
The representative stated that country information published by DFAT shows that women in Zimbabwe face a moderate risk of societal discrimination including gender-based violence and other sexually based harassment. He referred to recent articles published by the Journal of Humanities and Social Sciences Studies, and the London School of Economics, which indicate that there is an increase of gender-based violence in Zimbabwe.
The representative also submitted that female genital mutilation is still a big problem in some of Zimbabwe’s rural communities and referred to a media article published in 2019.
The representative further submitted extracts from Australian and international court decisions and academic sources on the subject of assessing credibility in refugee claims. He stated that the Tribunal should take into consideration, the overall credibility of the applicants and the supporting documents provided to the Tribunal regarding the applicants’ fear of harm. He submitted that the applicants are credible witnesses and that independent country information supports their claims.
In addition, the representative stated that the persecutors perceive that the applicants have ‘gone against’ or condoned and accepted homosexuality which is against the traditional norms and values of Zimbabwean society and culture. Their relatives and the church community believe that they have ‘defamed them’ and dishonoured the cultural and religious values of Zimbabwe. He stated that Zimbabwe remains a deeply conservative society and that the applicants would be targeted throughout the country on the basis of their adverse profile.
The following documents were attached to the submission:
·An extract from a DFAT Country Information Report on Zimbabwe, published on 19 December 2019, in relation to the situation of women in Zimbabwe.
·An extract from an article titled ‘Factors underlying the increase in domestic violence cases in Zimbabwe cases in Zimbabwe despite the existence of the anti-domestic violence’, dated 21 June 2020 and published in the Journal of Humanities and Social Sciences Studies.
·An extract from a blog post published online by the London School of Economics, on the subject of gender-based violence in Zimbabwe.
·Copy of an article titled ‘Female genital mutilation still a big problem in some of Zimbabwe’s rural communities’ dated 5 February 2019 and published online by Amakhosikazi Media.
On 16 December 2020 the Tribunal received statutory declarations made by the first and fourth named applicants. The content of the statutory declarations has been taken into account by the Tribunal in arriving at the following conclusions.
FINDINGS AND REASONS
The first and fourth named applicants appeared before the Tribunal on 9 December 2020. During the hearing the Tribunal discussed with the applicants their backgrounds in Zimbabwe, their fears of returning to Zimbabwe and the reasons why they fear returning. They spoke openly and honestly and in some detail about their experiences and the Tribunal did not form any significant concerns in relation to the reliability of their evidence about core elements of their claims. The Tribunal also found their evidence to be generally consistent with available country information. The Tribunal heard testimony from the applicants’ brother and also found his evidence credible and compelling.
Based on the available evidence, the Tribunal accepts the following findings of fact:
-The applicants are religious people as are their extended families.
-The first and fourth named applicants’ brother is homosexual.
-The applicants only learnt their brother was homosexual after the first named applicant came to Australia in 2016.
-The first named applicant informed her aunty in Zimbabwe of this fact and her aunty has subsequently shared the news beyond the immediate family.
-The first and fourth named applicants’ younger brother has relocated to [Country 3] following harassment from family members over his brother’s homosexuality.
-All four applicants reside together with the brother and his husband in Australia.
-The first named applicant separated from her husband in Zimbabwe in 2017.
-The first named applicant previously experienced verbal and physical abuse at the hands of her husband in Zimbabwe.
Fear of harm from the first named applicant’s husband
During the hearing the Tribunal questioned why the first named applicant’s husband is now hostile toward them when it appears, based on the affidavit he provided earlier, that he was initially supportive of her situation following her brother’s revelation of his homosexuality. The first named applicant explained that at first her husband expressed some understanding of her situation but when he began to personally experience humiliation, harassment and ostracism at the hands of her family members his attitude changed and he began to insist she return to Zimbabwe with the children. The applicants said that he began to rigorously oppose their public support for their brother and even chased their younger brother out of his home where he had been living. He also increasingly accused the first named applicant of exposing his children to immoral behaviour and corrupting their young minds. She said he has threatened to seek revenge on her by physically harming her and seeking to have their two children removed from her care if she returns to Zimbabwe.
The fourth named applicant states in her post-hearing statutory declaration that when her mother died her older sister assumed the role of mother. She states that she is regarded as a member of her sister’s immediate family and that her sister’s husband regards himself as a father figure to her as well. She also said that her brother-in-law had previously threatened her over the phone.
The applicant’s brother testified during the hearing that he had tried to intervene in the situation to reassure his brother-in-law that his lifestyle does not impact upon his children but he said his brother-in-law has refused all his attempts at communication.
According to the latest DFAT country information report[1] Article 78(3) of the Constitution prohibits persons of the same sex from marrying each other. The Constitution does not prohibit discrimination based on sexual orientation or gender identity. Section 73 of the CLCRA criminalises as ‘sodomy’ anal sexual intercourse between male persons, or ‘any act involving physical contact other than anal sexual intercourse though would be regarded by a reasonable person to be an indecent act’. While official rhetoric under the Mugabe administration was strongly homophobic, particularly from Mugabe himself, actual prosecutions in relation to consensual same-sex activities were very rare…. Despite the lack of prosecutions, however, the ongoing high-level official rhetoric, frequent homophobic commentary from church leaders and media reporting, and general conservative social attitudes all contributed to a difficult social environment for LGBTI individuals. Human rights observers reported that the criminality and social stigma of same-sex activity left homosexual men in particular vulnerable to blackmail, dismissal from employment or education, eviction from housing, and/or violence or harassment from families, neighbours, or the police.
[1] DFAT Country Information Report, Zimbabwe, 19 December 2019
DFAT reports that there has been a substantial decrease in the level of official hostility towards the LGBTI community under Mnangagwa but despite this there is no indication that constitutional or legislative change on LGBTI issues is on the government’s agenda. In-country sources advise that societal attitudes towards same-sex attraction and/or gender identity remain very conservative….. Human rights violations against LGBTI individuals have continued to occur including intimate partner and family violence. DFAT assesses that gay men, lesbians and transgender individuals face a high risk of societal discrimination due to long-standing traditional views about sexuality and gender that limit their full participation in the community and workforce. Such risks may include intimidation, threatened or actual violence from both families and the general public, blackmail, extortion or discrimination in employment or education.
Similarly, the US Department of State[2] reports that members of [Organisation 1] experienced harassment and discrimination and [Organisation 2], another active LGBTI group, reported their members believed they were unsafe and unwelcome in churches due to deeply held religious views and social stigmas in society. LGBTI persons were vulnerable to blackmail because of the criminality and stigma of same-sex activity. LGBTI advocacy organisations reported blackmail and being “outed” as two of the most common forms of repression of LGBTI persons. It was common for blackmailers to threaten to reveal one’s sexual identity to police, the church, employers, or family if the victim refused to render payment.
[2] US Department of State, [source deleted]
The US Department of State report also highlights the widespread nature of rape and domestic violence. Almost a quarter of married women who had experienced domestic violence reported sexual violence, while approximately 8 percent reported both physical and sexual violence. Although conviction of sexual offenses is punishable by lengthy prison sentences, women’s organisations stated that sentences were inconsistent and rape victims were not consistently afforded protection in court. Social stigma and societal perceptions that rape was a “fact of life” continued to inhibit reporting of rape. In the case of spousal rape, reporting was even lower due to women’s fear of losing economic support or of reprisal, lack of awareness that spousal rape is a crime, police reluctance to be involved in domestic disputes, and bureaucratic hurdles. Similarly, despite the enactment of the Domestic Violence Act in 2006, domestic violence remained a serious problem, especially intimate partner violence perpetrated by men against women. Although conviction of domestic violence is punishable by a fine and a maximum sentence of 10 years’ imprisonment, authorities generally considered it a private matter, and prosecution was rare.
DFAT’s report states that human rights observers report that there is a deeply ingrained societal acceptance of the use of violence within relationships as a show of both power and love. Domestic violence rates have reportedly increased in line with Zimbabwe’s ongoing economic decline. Government and women’s rights groups public awareness campaigns have been largely ineffective in reducing the prevalence of domestic violence. DFAT assesses that despite constitutional and legislative protections, women in Zimbabwe face a moderate risk of societal discrimination due to a number of significant disadvantages that include the threat of gender-based violence and other sexually-based harassment (including from state authorities), and long-standing traditional values and gender roles that limit their full participation in the workplace and community.
In view of this information the Tribunal accepts that long-standing traditional values regarding sexuality and the role of women in society continue to prevail in Zimbabwe. Given the social stigma attached to homosexuality and the reported harassment and violence towards members of the LGBTI community, from family, community and even the police, the Tribunal finds it plausible the applicants’ husband shares a similar view and is opposed to his children being raised in the household of a homosexual male. The Tribunal accepts he has been violent toward the first named applicant in the past and that he has threatened to harm the first and fourth named applicants if they return to Zimbabwe due to their support for their homosexual brother and his opposition to the exposure of his children to a homosexual lifestyle.
The Tribunal accepts that if the applicants return to Harare the first named applicant’s husband, who lives in a nearby location, will learn they have returned. During the hearing the first named applicant advised that her husband maintains contact with the children and the Tribunal considers that this contact will alert him to the fact they have returned. In the circumstances, the Tribunal accepts there is a real chance that the first and fourth named applicants will suffer serious harm at the hands of the first named applicant’s husband. The Tribunal finds the harm will be directed at them for reason of their membership of particular social groups, namely them being women and/or women who support and sympathise with LGBTI persons.
The Tribunal has also considered whether the real chance of serious harm relates to all areas of the country. As noted above the Tribunal accepts that if the applicants were to return to Harare the first named applicant’s husband would become aware of this fact. The Tribunal considers there is also a chance that he would learn of the applicants whereabouts elsewhere in Zimbabwe through ongoing communication with his children. Also, on the available evidence the Tribunal cannot rule out the possibility in these circumstances that he will initiate legal proceedings in respect of the custody of the children. In such circumstances, the Tribunal considers there is a chance, which is not remote, that he would be able to locate the applicants wherever they may settle in Zimbabwe. Therefore, the Tribunal is satisfied that the real chance of serious harm relates to all areas of the country.
Based on the above country information, the Tribunal is satisfied that domestic and other forms of violence against women in Zimbabwe is widespread and that long-standing traditional attitudes and values perpetuate a culture of discrimination and violence against women. The Tribunal also considers that such attitudes contribute to a level of impunity for crimes of domestic and other gender-based violence against women and also impact on the willingness of the police to provide adequate protection to victims. Domestic and other violence against women continues to go unreported and where it is reported there is a risk that it will not be treated with the seriousness it deserves. Accordingly, the Tribunal is of the opinion that the first and fourth named applicants will be unable or unwilling to access state protection against the harm they fear from the first named applicant’s husband.
For all the above reasons, the Tribunal is satisfied that the first and fourth named applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. There is no information before the Tribunal that the applicants have a right to enter and reside in any other country.
Regarding the other applicants, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) of the Act. It therefore follows that the second and third named applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first and fourth named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 43

7 January 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Jurisdiction