2002567 (Refugee)

The applicant, a South African citizen born and raised in Zimbabwe, sought a protection visa. The applicant claimed he would face persecution if returned to Zimbabwe due to his ethnicity, sexual orientation, and political opinion, asserting he was a member of a particular social group. He had lived in Zimbabwe since birth, holding a Zimbabwean ID, but was not eligible for citizenship as his parents were not Zimbabwean. He had made numerous short visits to South Africa to see family and friends, and his mother and siblings resided in Australia.

The court was required to determine whether the applicant would face a real risk of significant harm if returned to Zimbabwe, specifically considering whether any such risk was faced by the population generally, and thus not by the applicant personally, under section 36(2B)(c) of the Migration Act 1958 (Cth). The court also had to assess the applicant's claims regarding membership of a particular social group, encompassing his identity as a homosexual man, and consider the impact of criminalisation and social attitudes in Zimbabwe, alongside his ethnicity and any perceived political opinion.

The court applied the principles established in cases such as *BBK15 v MIBP* and *SZSPT v MIBP*, which clarify that section 36(2B)(c) applies when a real risk faced by an individual applicant is the same as that faced by the general population. The court considered country information regarding South Africa's legal environment for LGBT+ individuals, noting constitutional protections against discrimination and the legalisation of same-sex marriage. However, it also acknowledged reports of violence, particularly against lesbians and transgender individuals, and anti-LGBTQI+ attitudes in certain communities and among police, as detailed in a US Department of State report. Despite these concerns, the court found that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act.