1723180 (Refugee)

[2022] AATA 3779

1723180 (Refugee) [2022] AATA 3779 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1723180

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 August 2022 at 10:09 am (WA time)

DATE OF WRITTEN RECORD:                17 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 17 October 2022 at 1:20pm

CATCHWORDS

REFUGEE – protection visa – Zimbabwe – particular social group – homosexual – prohibition of homosexuality in Zimbabwe – physical assault – homophobic and transphobic attacks – effective protection – lengthy period of unlawful residence – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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.

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 on 11 September 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 24 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is [an age]-year-old Zimbabwean who was born into a Catholic family.  His mother was a practising Catholic and he attended Catholic schools in his childhood.  He is before the Tribunal appealing the decision of a delegate of the Minister to refuse his application for a protection visa.  The only basis on which the delegate refused his application was that the delegate did not accept that the applicant was gay, which is fundamental to the claims that he makes for protection in Australia.

4. The applicant says that he has come out as being gay since arriving in Australia and that he has a well-founded fear of persecution on return to Zimbabwe because he is gay. 

5. The applicant has provided the Tribunal with a written statement which is substantially consistent with the evidence that he has given to the Tribunal today.  The applicant has also provided the Tribunal with a raft of background information about the treatment of gay people in Zimbabwe.  The Tribunal notes an article dated 1 August 2019 by Grace Badza titled, “I Have No Place in Society,” which deals with the cultural stigma on LGTB people in Zimbabwe.

6. The applicant has also provided media reports indicating that 50 per cent of gay men in Zimbabwe have been assaulted and 64 per cent disowned, and has provided a copy of the relevant law in Zimbabwe which is consistent with the country information before the Tribunal that there are various ways in which being homosexual is outlawed in Zimbabwe by reference to specific acts of sexuality as well as a more general reference to what is considered by society to be unacceptable behaviour.

7. The Tribunal has had regard to the Department of Foreign Affairs and Trade country information report for Zimbabwe dated 19 December 2019.  The Tribunal notes that the Department does not appear to have had a lot of information to go from in respect of the treatment of gay people.  The applicant gave evidence to the Tribunal today to the effect that being gay, openly gay, in his part of Zimbabwe is so uncommon that it is the subject of local media when somebody actually comes out and says that they are gay which explains to a significant extent why DFAT may have had difficulty gathering evidence about the treatment of gay people.

8. The DFAT country information report deals with sexual orientation and gender identity from paragraph 3.88. It includes reference to article78(3) of the Constitution which specifically prohibits persons of the same sex from marrying each other and does not prohibit discrimination based on sexual orientation or gender identity. It refers to the same legislation that the applicant has provided, noting that it criminalises as sodomy anal sexual intercourse between male persons or:

   any act involving physical contact other than anal sexual intercourse that would be regarded by a reasonable person as an indecent act.

9. The Tribunal pauses to note that the definition of a reasonable person would be within the context of a culture that appears to be openly anti-homosexual and would not have the same meaning as reasonable person in Australia.

10. Although the DFAT report notes that there are perhaps some positive signs for improvement in Zimbabwe, it also states at paragraph 3.91 that there is no indication the Constitution or legislative change on LGBTI issues is on the government agenda and that in-country sources advise that societal attitudes towards same-sex attraction and/or gender identity remain very conservative.

11. It indicates that homophobic and transphobic attacks appear to be justified by reference to misunderstandings of the criminal law that appears to be common in Zimbabwe.  Human rights violations against LGBTI individuals continue to occur including blackmail and extortion from police, discrimination in employment and education, threats of violence in colleges and universities, and intimate partner and family violence.  DFAT assesses at paragraph 3.95 that:

    Gay men face a moderate risk of official discrimination in that the existence of legislation prohibiting male homosexual acts can be used as a means of harassment even if prosecution or legal punishments are not generally pursued.

12. DFAT further 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.

13. The risk is likely to be higher for those residing in more conservative and/or rural areas and the Tribunal infers that the risk will be higher for those who come from conservative Catholic families. 

14. The applicant has given evidence to the Tribunal today about his initial relationships and his foray into gay dating.  He has described moving to Western Australia in order to give himself a fresh start with a new circle of friends.  The Tribunal has asked him questions about how he identifies men who might be attracted to him as a man.  His response was not only credible but he gave no sign of discomfort.  Indeed, there was warmth in his face, suggesting that he was recalling pleasant experiences when talking about dating other men.

15. The Tribunal asked him if he had a type of men that he was attracted to.  Again, there was no sign of discomfort.  He indicated that he does not like taller men but that he prefers men of his own height.  Again, the Tribunal noted only that he seemed to be recalling pleasant experiences.

16. The applicant has described the hope with which he told his parents that he was gay and the disappointment that they were not able to come to terms with him being gay.  He appears to have had some sensible conversation at least with his mother on the subject who sadly died in 2017.  The applicant’s evidence is that his father has indicated that he does not want to speak to him again and the applicant did not attend his mother’s funeral and considers that his dad would not have wanted him there. He has managed to re-establish some relationship with [a sibling] but it is clear from his evidence that his family are deeply uncomfortable with him being gay and the Tribunal accepts that his family would not support him in any way in a gay lifestyle were he to return to Zimbabwe.

17. The Tribunal finds the applicant a compelling and credible witness and there is no evidence to indicate that he is not being truthful with the Tribunal.  The Tribunal accepts that the applicant is subjectively and objectively afraid of returning to Zimbabwe.  The Tribunal accepts that there is a real chance of serious harm for the essential and significant reason that the applicant is gay, should he return to Zimbabwe.

18. The Tribunal accepts that being a gay person in Zimbabwe is a particular social group for the purposes of the refugee legislation.  The harm that the Tribunal considers there is a real chance of may come from the government or it may be perpetrated by others but with a discriminatory withholding of State protection because the applicant is gay. 

19. There do not appear to be any effective protection measures and it is well-established that asking gay people to hide that they are gay is not reasonable modification of behaviour.  The Tribunal accepts that the applicant is genuinely interested in dating gay men, has genuinely “come out”, and through his natural inclination would now be openly gay.  Therefore, the only reason why he would hide his sexuality in Zimbabwe is an unacceptable modification of behaviour to avoid harm. 

20. The Tribunal has considered whether the applicant has become gay whilst in Australia in order to further a refugee claim and the Tribunal considers that an absurd proposition.  People born in the circumstances of the applicant into serious Catholic families in countries that are strongly anti-gay do not, in the Tribunal’s experience, casually pretend to be gay for the sake of furthering protection visa applications or for any other reason. The Tribunal is of the view that the applicant would show some discomfort pretending to be gay even in these circumstances if he were not genuinely gay and if he had not had a significant period of time to come to terms with that.  

21. The Tribunal has considered that the applicant was an illegal non-citizen in Australia for 10 years before he sought protection as a gay person and, again, the Tribunal does not consider this to be an unreasonable period of time for someone of the applicant’s background to come to terms with being gay to the point where he was able to articulate that to authority figures.

22. There is no evidence before the Tribunal to suggest that the applicant has any right to reside in a third country that needs to be explored. 

    DECISION

23. The Tribunal remits the decision under review with the direction that the applicant satisfies section 36(2)(a).

    Jessica Henderson
    Member