1714585 (Refugee)

The applicant, a Muslim man from Tanzania, sought review of a decision not to grant him a protection visa. The dispute centred on his claims of fearing harm in Tanzania due to his sexuality and his inter-religious relationship with an Australian citizen. The applicant had initially claimed to be homosexual and to have suffered persecution on this basis, including beatings and threats from a gang known as the Janjawidi, who he alleged had support within the authorities. He also claimed to have been forced into a marriage and to have experienced further assaults.

The legal issues before the Tribunal included determining the applicant's credibility, particularly in light of his withdrawal of claims based on sexuality and the inconsistencies in his evidence regarding past incidents. The Tribunal was required to assess whether, on the available evidence, there was a real chance the applicant would suffer significant harm if returned to Tanzania, considering the specific grounds he raised, including his religion and his relationship with a Christian partner. Furthermore, the Tribunal had to consider the application of section 36(2B) of the Act, which outlines circumstances where a real risk of significant harm is not taken to exist, such as where internal relocation is reasonable or where the risk is faced by the general population.

The Tribunal found that the applicant had resiled from his claim of being homosexual and therefore no longer feared harm on that basis. While acknowledging a claimed attack in 2007, the Tribunal considered it to be a random, one-off incident from many years prior, with no indication that the applicant was identified or had an ongoing adverse profile with the attackers. Regarding his concerns about his inter-religious relationship, the Tribunal noted that country information suggested mixed-religion relationships in Zanzibar had faced harm, but victims could relocate to the mainland. The applicant also conceded that his partner would not move to Tanzania with him, and the Tribunal noted Tanzania's constitutional guarantee of religious freedom and limited reporting of Islamic extremist activity. Consequently, the Tribunal was satisfied that there was no real chance of serious harm to the applicant should he return to Tanzania.

Despite affirming the decision not to grant a protection visa, the Tribunal referred the matter to the Department for consideration of Ministerial Intervention under section 417 of the Act. This referral was based on strong compassionate circumstances, including the applicant's ongoing relationship with an Australian citizen and the birth of their child. The Tribunal considered that these circumstances might warrant intervention due to potential serious, ongoing, and irreversible harm and hardship to an Australian citizen or family unit, and also to consider Australia's obligations under the Convention on the Rights of the Child, particularly the best interests of the child.