1723180 (Refugee)

The applicant, a Zimbabwean national, sought a protection visa in Australia, appealing the Minister's delegate's decision to refuse his application. The delegate's refusal was based solely on a lack of acceptance of the applicant's claim to be gay, which formed the foundation of his fear of persecution upon return to Zimbabwe. The applicant asserted that he had come out as gay since arriving in Australia and possessed a well-founded fear of persecution due to his sexual orientation.

The Tribunal was required to determine whether the applicant had established a well-founded fear of persecution for reasons of his membership in a particular social group, namely gay men in Zimbabwe. This involved assessing the credibility of the applicant's claims regarding his sexual orientation and the objective evidence concerning the treatment of homosexual individuals in Zimbabwe, including relevant laws and societal attitudes. The Tribunal also considered the adequacy of protection available to gay men in Zimbabwe.

The Tribunal considered the applicant's written statement and oral evidence, which were consistent with his claims. It also reviewed extensive background information provided by the applicant, including media reports detailing cultural stigma, physical assaults, and disownment of LGBTQ+ individuals in Zimbabwe, as well as the relevant Zimbabwean legislation that criminalises certain sexual acts and behaviours considered indecent. While acknowledging the Department of Foreign Affairs and Trade country information report for Zimbabwe, the Tribunal noted its limited information regarding the treatment of gay people, attributing this, in part, to the rarity of openly gay individuals in the applicant's region of Zimbabwe, which could lead to media attention when someone does come out. The Tribunal had regard to the constitutional prohibition of same-sex marriage and the absence of constitutional protection against discrimination based on sexual orientation or gender identity. The Tribunal ultimately found that the delegate had erred in not accepting the applicant's claim of being gay and that the matter should be remitted for reconsideration.