1807055 (Refugee)

The Administrative Appeals Tribunal (AAT) reviewed a decision to refuse a protection visa to an applicant from Zimbabwe. The applicant had applied for the visa in December 2016, and a delegate of the Minister refused the application in February 2018, finding that the applicant did not meet the criteria for refugee protection under section 36(2)(a) of the Migration Act 1958 (Cth). The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa under section 36(2)(a) of the Act, which concerns Australia's protection obligations under refugee law. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group. The Tribunal also considered whether the delegate had adequately addressed the alternative criteria for complementary protection under section 36(2)(aa) of the Act.

Member Colin Huntly reasoned that the applicant did satisfy the criteria for a protection visa under section 36(2)(a) of the Act. While the delegate had not accepted the applicant's claimed political persecution, the Tribunal found that the applicant belonged to a particular social group: women in Zimbabwe without resources, support, or protection, who face particular vulnerabilities, including gender-based violence and domestic violence. The Tribunal considered the applicant's circumstances, including her need to provide primary care to a dependant child and the lack of effective state protection in Zimbabwe, which might involve behaviour modification and relocation. The Tribunal also noted the possibility of third-country protection in New Zealand based on the child's citizenship entitlement.

The Tribunal remitted the decision under review with a direction that the applicant satisfies section 36(2)(a) of the Act.