2107326 (Refugee)

[2021] AATA 4589

2107326 (Refugee) [2021] AATA 4589 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107326

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Jane Marquard

DATE:30 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 August 2021 at 6:15am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – particular social group – homosexual or bisexual men – persons who cannot afford treatment – high risk of contracting COVID-19 – decline of medical infrastructure due to corruption – looting of donated resources – denial of access to basic services – potential statelessness – risk of blackmail and extortion by police – misplaced passport and birth certificate – impact of criminal record and lengthy absence on citizenship – third country protection – Southern African Development Community (SADC) – Common Market for Eastern and Southern Africa (COMESA) – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499, 501
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Appellant S396/2002 v MIMA (2003) 216 CLR 473
Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Suntharajah v MIMA [2001] FCA 1391
SZBQJ v MIAC [2005] FCA 143
SZLVZ v MIAC [2008] FCA 1816
SZTOX v MIBP [2015] FCAFC 77
WAGH v MIMIA (2003) 131 FCR 269

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old man from Zimbabwe. He applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act) on 27 April 2021. In his application to the Department he claimed that if he returns to Zimbabwe there is a real chance or a real risk that he will contract COVID-19 and there will not be adequate medical support due to corrupt appropriation of health funds by members of the government. He also claimed that he will be persecuted by denial of citizenship, and because he will be perceived as a wealthy returnee. A delegate of the Minister for Home Affairs refused to grant the visa on 31 May 2021. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The applicant has now added a new claim of fear of returning to Zimbabwe because of his sexual preferences.

   BACKGROUND

2. The applicant first arrived in Australia [in] May 2006 as a dependent on his mother’s [temporary] visa. He was later a dependent on his mother’s [second temporary] visa. He is a permanent resident of Australia. His mother is still living in Australia.

3. According to information on the Departmental file from the NSW Department of Corrective Services, as well as Sentencing Remarks of [Justice A] of [District Court 1], the applicant was convicted on [a date in] 2015 of a number of offences. These include [details deleted]. He was sentenced to [number] years imprisonment with a non-parole period of [number] years. He also had prior convictions or good behaviour bonds for [details deleted]. He was released from prison [in] 2021 and subsequently detained by Australian Border Force and transferred to immigration detention. The applicant is currently detained in [Detention Centre 1].

4. The applicant’s [visa] was cancelled by the Department of Home Affairs (the Department) on 11 October 2018 under s.501 of the Act. He applied for revocation of the cancellation, but a decision was made not to revoke the cancellation on 14 May 2020.

5. The applicant applied to the Department for a protection visa on 27 April 2021. On 31 May 2021 a delegate of the Department refused the application for a protection visa.

6. The applicant applied for review of that decision by the Administrative Appeals Tribunal (the Tribunal)[1] on 4 June 2021.

   [1] s.25, Administrative Appeals Tribunal Act 1975 (Cth)

7. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.

   FINDINGS

8. For the reasons set out below, the Tribunal has decided to remit the matter for reconsideration by the Department with the direction that the applicant satisfies s.36(2)(a) of the Act.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

9. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in the Attachment to this decision.

10. An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

11. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

12. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act.

13. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

14. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225 at 233 (Brennan CJ).

15. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the Attachment to this decision.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) of the Act.

17. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B) of the Act, which are extracted in the Attachment to this decision.

    The applicant must satisfy the statutory elements

18. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia(1999) 197 CLR 510 at [187]).

19. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act.

    Mandatory considerations

20. In accordance with Ministerial Direction No.84,[2] made under s.499 of the Act, the Tribunal must take account of the Refugee Law Guidelines[3] and Complementary Protection Guidelines[4] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency and transparency, Departmental policy is not binding on the Tribunal.[5]

    [2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.

    [3] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [4] Department of Home Affairs, Policy – Refugee and humanitarian – Complementary Protection Guidelines

    [5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

    President’s Direction

21. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[6]

    [6] Issued under s.18B of the Administrative Appeals Tribunal Act 1975 (Cth)

22. The Tribunal exercised its discretion to hold the hearing via video due to restrictions necessary because of the COVID-19 pandemic and the applicant’s location at [Detention Centre 1]. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant – most importantly that he is in detention such that in the interests of justice, the matter should be heard expeditiously. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[7] There may have been significant delay to the matter if the hearing was not to be conducted by video.

    [7] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)

23. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see, and the Tribunal was able to interact with the applicant and his representative, and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

    Special considerations relating to sexual orientation

24. The Tribunal acknowledges that claims relating to sexual orientation and gender identity require sensitivity in both the conduct of the hearing and the information contained in decisions. The Tribunal has taken into consideration the Departmental Guidelines on Assessing Claims Related to Sexual Orientation and Gender Identity.[8]

    [8] Department of Home Affairs, Policy – Departmental Guidelines on Assessing Claims Related to Sexual Orientation and Gender Identity

    EVIDENCE CONSIDERED IN THIS REVIEW

25. The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and independent sources about Zimbabwe.

    Summary of evidence in Department files

26. The applicant provided details of his claims in an application form to the Department, as well as supporting documents and submissions. He was not interviewed in person by the Department.

27. A summary of his evidence follows.

28. The applicant was born in [Town 1], Zimbabwe and is of Shona ethnicity. His mother and his half-brother were born in Zimbabwe but are now Australian citizens. An affidavit from his father in 2006 stated that he had no objection to the applicant’s mother securing permanent residence for the applicant in Australia. The applicant has [relatives] in Zimbabwe according to Departmental records for his mother. A note attached to a submission to the Department suggests that the applicant did not have much contact with his [relatives], and that [two] are living in [Country 1], one in [Country 2] and one in [Country 3]. One [relative] is in [Country 1], but elderly, disabled and unemployed. Two [relatives] live in Zimbabwe. They are single mothers and unemployed. His mother and brother reside in Australia. The applicant attended primary school in [Town 2] and then [named] School in Harare from [year] to [year]. He arrived in Australia in 2006 and entered Grade [number] at school. When he completed [high school] in [year] he began an apprenticeship at [TAFE], which he withdrew from after a year. He commenced, but withdrew from, a [Industry 1] course at TAFE in 2012.

29. During the time he was studying [the Industry 1 course], he had some work [in that sector]. He worked [in an unrelated field] from July 2013 to February 2014.

30. The applicant claims that if he returns to Zimbabwe he is at risk of contracting COVID-19. It was submitted that the ‘wilful and intentional destruction of health infrastructure through violent corruption so as to exclude proper or any care with respect to COVID pandemic and other related conditions. Current COVID pandemic situation in terms of treatment and infection are out of control. There is a significant likelihood of contracting the virus and not having any care options (currently only 30 public ICU beds in whole of Harare).’ He said that there had been ‘wilful and purposeful destruction of medical infrastructure as a result of overt and violence corruption’ which had destroyed citizens’ ability to receive treatment. The representative submitted that the ‘corruption is so entrenched that the allocation of the budget for the state for health has been systematically looted’, which has led to mass deaths. Politicians fly to other countries for health care. He said that donated pharmaceuticals have been sold on the black market and replaced with placebos. He said that the health care budget has been provided by a billionaire, Strive Masiyiwa, due to the theft of the budget. The representative referred the Tribunal to the arrest of the Health Minister in October 2020 charged with corruption in regard to the award of multimillion dollar contracts for COVID medical supplies.

31. The applicant also claimed that his mother may not be able to find his birth certificate. In a letter from his representative dated 11 May 2021 he said that his mother had misplaced his passport and birth certificate. He submitted that he is at risk of being unable to obtain his birth certificate from the Zimbabwean government, which may act as a catalyst to statelessness. He said that if he cannot establish that he is Zimbabwean, he will be barred from entry into Zimbabwe. He said that Section 14 of the Zimbabwe Immigration Act would prevent his entry due to his criminal record. He said that he may have lost his citizenship under Section 13 as a result of his absence since 2006. He said that he may be unable to access fundamental rights which accrue to citizens including state benefits.

32. He also claimed that he could be subject to intimidation or extortion as he would be perceived as wealthy due to his time in Australia.

33. He said that he would be vulnerable in Zimbabwe as he would be cast as an outsider and because he would lack cogent family support as his relatives are elderly, infirm and vulnerable.

    Sentencing Remarks of [Justice A], [District Court 1], [date] 2015 in relation to counts of [details of offences deleted]

34. Justice [A] accepted that the applicant was genuinely remorseful for his conduct.

35. The court commented on the applicant’s childhood. His parents separated at birth. He often lived with relatives as his mother was working. He hung out with street kids and often ran away from home. At times he lived on the streets, witnessing brutality including seeing people killed and cannibalism. When he was 13 to 15 years old, he lived with his father, who physically abused him. [Justice A] was satisfied that he had a dysfunctional upbringing.

36. He completed high school in Australia. He was at a private school where he claimed he was the victim of racial abuse. He was expelled from the school for dishonesty reasons. He then attended a public school. After leaving, he commenced an [apprenticeship] but left after 12 months and completed some vocational courses.

37. He said that he started using cannabis at a young age and has had a problem with abusing alcohol and methamphetamine. He had a prior history of criminal conduct dating from 2007, including dishonesty offences. [Justice A] was satisfied that he suffers from post-traumatic stress disorder (PTSD) that had not been treated. His Honour referred to a report of Dr [B] in which the doctor said that PTSD probably began at the age of 13, and it would be reasonable to assume that in the time leading up to the offences he would have had underlying and ongoing residual symptoms of PTSD.

    Summary of evidence before the Tribunal

38. Pre-hearing submissions dated 9 July 2021 were provided to the Tribunal by the applicant’s representative. The representative submitted that the applicant would suffer serious harm in the form of denial of access to basic services which would threaten his capacity to exist, for reasons of membership of a particular social group of persons who cannot afford treatment. Reference was made to the case of SZBQJ v MIAC [2005] FCA 143. It was also submitted that the applicant would suffer significant harm as a result of wilful and intentional looting by the government. The representative referred to looting of donated resources. It was submitted that ‘the crumbling destruction of a ravaged health system as a result of endemic and vile corruption by the political elite should overwhelmingly satisfy the intentional element’. It was submitted that ‘the situation is exacerbated by the refusal of the government to promptly issue birth certificates and documents to enable recognition of the returnees as being citizens of Zimbabwe, thus precluded from the pathetically limited “benefits” a citizen can receive’, as demonstrated by returning South Africans.

39. The applicant appeared before the Tribunal on 13 July 2021 by MS Teams video to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was represented by his lawyer, [named], who was also present by video.

1. The evidence before the Tribunal is referred to where relevant in the findings. A brief summary is set out below.

2. The applicant confirmed that he was born in [Town 1]. He lived during his childhood on his grandfather’s farm in a rural area near [Town 1], with his younger brother. His mother was away at work. He attended part of his primary school at [Town 1] near the farm, and after that attended primary school in [Town 2] where he lived until he came to Australia except for a brief period of time when he lived with his father in [city]. At that time he was about 12 years old. Before this he had no contact with his father. He said that at the time he had been asking about his father so a decision was made for him to live with him. His younger brother lived with his mother.

3. His mother worked as a [Occupation 1]. Her parents were farmers. She also had [number] brothers and [number] sisters living in the region as well as a number of cousins. Some are still living there but most have left for [Country 1], [Country 3] and [Country 2].

4. His father worked for [employer]. He is not in contact with him now although he was for a short time after he came to Australia. He said that they have an ‘estranged relationship’ as his father was ‘never in his life’. When the applicant first travelled to Australia with his mother they would telephone the relatives in Zimbabwe but he is currently not in contact with them.

5. His mother left for Australia first and later brought him and his brother to Australia in 2006. He was about [age] years old at the time.

6. He said that he does not have many relatives left in [Town 2]. The [specified relatives] fled to other southern African countries, the majority are in [Country 1] and some in [Country 2]. His grandmother is still at the farm, but his grandfather passed away before they left.

7. His mother, who is unmarried, works as a [Occupation 1] in Australia. Their only other relative in Australia is a cousin. The applicant went to high school in Australia and finished Year 10. He started an [apprenticeship] but did not complete it as he became interested in ‘other things’. He did [casual] work for a [Industry 1] company and tried to pursue [Industry 1] work, while doing a [related] course. He also worked on construction sites. He said that he was ‘still trying to work out what to do with his life’. Prior to going to prison he lived with his mother and brother. He is close to his mother and brother, who supported and visited him in prison.

8. The applicant said that he has had a history of abuse of alcohol and other substances which impacted on his criminality. He said that his criminality was also concerned with the group of people whom he befriended, although he takes responsibility for what he did. He said that he started a business course in prison but needs to complete the course. He also worked in prison, packaging and machine operating, and at the oval looking after equipment.

9. He said that since arriving in Australia in 2006 he has not been back to Zimbabwe although his mother has. Asked where he would live if he returned, he said that he had ‘no clue’. He said that he had not been there for so long and his relatives are scattered.

10. He was asked what he fears about returning to Zimbabwe. He said that he has ‘not been back there for so long; and fears being looked at ‘as different’, because of the way he is dressed, and because of the way he talks. He also fears he will be regarded as someone of wealth. He said that if he goes to a hospital and asks for treatment, he would have to pay for bandages or oxygen or otherwise would be kicked out onto the street. He fears that the situation would be worse because of the COVID-19 pandemic.

11. He said that he fears contracting COVID-19 as he has lost his passport and birth certificate and will be unable to access treatment. He said that he will be deported from Australia as a citizen of Zimbabwe, but when in the country will have to prove his citizenship. He said that without a birth certificate he will be unable to access treatment. He said that it will be difficult to apply for a birth certificate due to the collapse of bureaucracy.

12. He confirmed that he travelled to Australia with a birth certificate and passport. He said that his mother told him in March 2021 that she was ‘moving his stuff from the house to the garage’ when he was in prison, and she had misplaced the documents. The Tribunal asked him if his mother would provide evidence of the missing documents and the searches she had done, and he said that she would.

13. The applicant was asked if he had made any enquiries of the Zimbabwean embassy about obtaining new documents. He said that he had not.

14. He was asked if he had copies. He said that he did not, but the Department has copies.

15. The Tribunal asked him if he would feel more secure that he could obtain a birth certificate if he had copies of the documents, which could be provided to him by the Tribunal, and which he could show the officials. He said that it may make it easier, but there is difficulty in getting new documents issued. He said that there are delays and payment is required. He is concerned that he would be denied citizenship or services because of the length of time he has been away. He said that the registration office might require his parents to be present in order for the documents to be issued, and this will not happen as his mother is in Australia and he is not in touch with his father.

16. The applicant said that he is afraid that ‘just from the way I dress or from the way I speak’, Zimbabweans will know that he ‘is not from there’ and they will try and extort him. He said that he could be stopped at a checkpoint and forced to pay bribes.

17. He was asked if he could rely on family support in order to settle in the country, and for financial support. He said that his family members in Zimbabwe have their own families, and are ‘struggling as it is’. He said his mother may be able to help him but in a limited way. She is a single mother and has two mortgages to pay. He said that in Zimbabwe there is no work, particularly now due to the COVID-19 pandemic. He said that the economy is hyper-inflated and people cannot afford to buy a loaf of bread with the new $50 note. He said people have to pay for basic items such as painkillers in US dollars. He said that if you cannot pay, you are ‘pretty much on your own’. He said that if he was in a life-threatening situation then he would have to pay up front.

18. Asked if there was any further evidence he wished to provide, the applicant told the Tribunal that there is one thing that he wanted to add. He said that ‘I have not spoken to anyone about this’. He said that he could be identified as a member of ‘the particular social group, the LGBTQI community’. He said that he considers himself to be bisexual. He fears that he could face imprisonment, as members of this community are locked up in Zimbabwe. He provided further details which are discussed in the findings section below.

19. Following the hearing an email was received from the applicant’s mother. She said that she is an Australian citizen. She said ‘as I have been asked how I misplaced and lost (applicant’s) birth certificate. When (applicant) was in prison I was cleaning his room and packing his clothes and belongings to pack it for storage in the garage. Might have put it with the garbage as I threw some of the staff (sic) as gabbage (sic) hence could not find it. For him also to obtain a passport will need birth certificate otherwise will be not able to obtain a passport’.

20. The applicant also provided a Statutory Declaration after the hearing, in which he set out his claims to fear returning to Zimbabwe due to his sexual preferences, and the reasons he had not made these claims earlier. His representative also made submissions in this regard. The Statutory Declaration and submissions are discussed in the findings below.

    Independent country information

21. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

    DECISION OF THE DEPARTMENT

22. The delegate of the Department was not satisfied that the applicant feared persecution for any of the reasons set out in the legislation. The delegate found that the risks of contracting COVID-19 were risks faced by the population generally and not the applicant personally. The delegate found that the risk of not being able to obtain his birth certificate was remote and that as a citizen of Zimbabwe he is entitled to be issued with identity documents.

    FINDINGS AND REASONS OF THIS TRIBUNAL

    Key issues for determination

23. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·Whether the applicant is bisexual and would continue to have relationships with men in Zimbabwe, as claimed at the Tribunal hearing.

    ·If so, whether the applicant faces a real chance of serious harm for reasons of his sexual preferences, or a real risk of significant harm if he returned to Zimbabwe.

    ·Whether the applicant has misplaced his birth certificate and passport.

    ·Whether the applicant would be able to obtain a new birth certificate.

    ·If not, whether he would be denied services, including medical treatment, also because he would be regarded as wealthy.

    ·Whether contracting COVID-19 and lack of treatment facilities in Zimbabwe would amount to persecution or meet the complementary protection criteria.

    ·Whether the applicant would be unable to subsist because of denial of services and being treated as an outsider.

    ·Whether there is a real chance or a real risk that the applicant would be targeted as a returnee for crime including extortion by officials because he would be perceived as wealthy.

24. These issues and other threshold issues are discussed below.

    Receiving country

25. For the purposes of the refugee criteria, s.5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criteria, s.36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

26. The applicant provided to the Department a copy of the biographical page of his Zimbabwean passport issued in his stated identity, as well as a copy of his Zimbabwean birth certificate, both of which are before the Tribunal. His passport was issued in 2006 and expired in 2016.

27. In international law, nationality has been described, in general terms, as:

    … a specific relationship between individual and State conferring mutual rights and duties as distinct from the relationship of the alien to the State of sojourn.[9]

    Nationality is determined by the law of the relevant state and is to be recognised by other states in so far as it is consistent with international conventions, custom and principles of law generally recognised with regard to nationality.[10]

    [9] P Weis, Nationality and Statelessness in International Law (Hyperion Press, 2^nd edition, 1979), at 31.

    [10] Convention on Certain Questions Relating to the Conflict of Nationality Law, signed 13 April 1930, 179 LNTS 8 (entered into force 1 July 1937) (Hague Convention) art 1.

28. The December 2019 Department of Foreign Affairs and Trade Report on Zimbabwe indicates that ‘Article 35 of the Constitution states that persons are Zimbabwean citizens by birth, descent, or registration.’[11] The Tribunal is satisfied on the basis of his place of birth, the copy of his birth certificate and passport on the file, Departmental records for the applicant and his mother, and his testimony, that the applicant is a national of Zimbabwe on the basis of the law in Zimbabwe, and that Zimbabwe is the receiving country for the purposes of the legislation.

    [11] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

    Findings of fact

29. When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. In this case, the Tribunal must make findings as to whether the applicant is bisexual as claimed, has had relationships with men, and wishes to do so in the future if he returned to Zimbabwe.

30. The Tribunal recognises that assessment of credibility is an inherently difficult process, that there are special considerations in relation to asylum seekers and that assessment of credibility can be based on imperfect perceptions of truth.[12] This is particularly relevant in a case such as this where the applicant’s claims rely on personal issues and experiences which are not readily susceptible to objective verification. There are no witness statements or documentary evidence to corroborate his claims.

    [12] Fox v Percy (2003) 214 CLR 118

31. As assessment of credibility is a complex task, the Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[13] As a threshold principle, in the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [13] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

32. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[14] A similar approach is taken in the Department’s Refugee Law Guidelines[15] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook)[16], which provides useful guidance for this Tribunal.

    [14] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [15] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [16] UNHCR, re-issued February 2019 at [203]–[204].

33. As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[17] factors such as the applicant’s past experiences should be taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [17] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

    The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to nervousness and anxiety in a Tribunal environment, and in this case stress caused by separation from home and family as the applicant is in immigration detention. The Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[18] although no medical reports have been provided, given that prison and detention are clearly stressful environments. Furthermore, in the Sentencing Remarks of [Justice A] in [District Court 1] on [a date in] 2015, reference was made to a report of Dr [B] (which has not been provided to this Tribunal), which suggested that the applicant had suffered from PTSD since the age of 13 due to his dysfunctional childhood.

    [18] AAT, Guidelines on Vulnerable Persons, available on the AAT Website, >

    The Tribunal acknowledges that PTSD may impact on the presentation of evidence, and has made allowances for this in the assessment of the evidence. The Tribunal’s Guidelines on Vulnerable Persons[19] state that a person with PTSD may suppress aspects of a traumatic event or in rare occasions not remember what happened. Persons who have undergone trauma may have poor attention, concentration and distractibility, and there may be hesitancy to disclose due to shame, guilt or anger.[20] The Tribunal notes however that the applicant did not claim any memory loss and at all times was lucid and articulate.

    [19] AAT, Guidelines on Vulnerable Persons, available on the AAT Website, AAT, Guidelines on Vulnerable Persons, available on the AAT Website, >

    Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. In this case the applicant raised a new claim at the Tribunal hearing that he feared returning to Zimbabwe because of his bisexuality. He said that he did not raise this claim earlier because he has not told anyone about it, and has been unable to talk about it, due to his cultural and religious background. However he had decided to tell the Tribunal about it as it was relevant to his case and because he felt that the Tribunal was a safe place.

34. Whether the applicant’s explanation as to why the claim was not raised previously, is ‘reasonable’, is a difficult assessment to make. His claim to fear returning to Zimbabwe because of his sexual preferences was only raised at the Tribunal level, despite the applicant being legally represented and appearing to be intelligent and clear-minded such that it is likely he would have known that it would be a relevant factor to raise with his lawyer or the Department.

35. However, on balance, the Tribunal accepts that his explanation for introducing the claim at the Tribunal level was ‘reasonable’. The Tribunal accepts that it is reasonable to assume that a person from Zimbabwe may feel uncomfortable discussing his bisexuality given stigma about the subject in his community. Further, the Tribunal accepts that his belief that it was safe to talk about the matter to the Tribunal after hearing that the proceedings were confidential, was also reasonable, although it is not entirely clear why he did not feel that his discussions with the Department would not be confidential. In post-hearing submissions he said that he had not presented his claims earlier due to ‘strong levels of cultural and personal shame I feel. I believe that there are many laws in Zimbabwe that prohibit such behaviour. However, my worse fear is being discovered as bisexual by members of the community’. This does suggest that he has a strong fear that members of his community would find out about his bisexuality and that this may have prevented him from raising the matter until he felt that he absolutely had to do so. Country sources confirm that stigma against homosexuals is prevalent in Zimbabwe. An article in Newsday in 2019 states that 10% of Zimbabwe’s population are estimated to be gay or lesbian, but only a few dare to disclose their sexuality.[21] The study by the leading LGBTI advocacy organisation, Association of LGBTI People in Zimbabwe (GALZ) found that 64% of gay men had been disowned by the families.[22]

    [21] Newsday, ‘Zimbabwe no safe haven for homosexuals’, 21 November 2019

    [22] GALZ (Zimbabwe), ‘An analysis of human rights violations against LGBTI persons in Zimbabwe’, 1 January 2018

1. Considering these factors, the Tribunal is satisfied on balance that the applicant has a reasonable explanation as to why his claim was not put forward when the primary decision was made, and no adverse inference is drawn as to the evidence.

2. As discussed earlier, it is always a difficult task to assess whether a person has a particular sexual preference, as it is a private matter, particularly where there is no corroborative evidence from partners, medical practitioners or friends, as is the case here. The applicant had a girlfriend for three years prior to going to prison. No evidence has been provided from male sexual partners or friends who know of his sexual preferences. Asked if he had told any friends in Australia or any family members about his bisexuality, he said that he had not. Asked if he had seen a psychologist while in prison, he said that he had, but had not disclosed his sexual preferences to him or her. He said that he did not think that ‘it was relevant’. He was asked why he had not told any friends, given how tolerant Australia is to the LGBTQI community. He said that most of his school friends are Muslim as he lives in [location]. He said at school when people talked about gays there was a lot of ostracism.

3. It is difficult to understand why the applicant did not provide corroborative evidence from former partners, or why he has not told friends given the tolerance towards the LGBTI community in Australia, or why he did not tell the prison psychologist. Taking this into account as well as his evidence that he had a girlfriend for three years, the Tribunal has given serious consideration to the possibility that the applicant may have fabricated the claims so as to bolster a refugee claim, given that he may be desperate to remain in Australia as he is facing deportation to Zimbabwe, where he has not lived since 2006, and where he will be separated from his immediate family.

4. However on balance, the Tribunal is satisfied that the applicant is bisexual as claimed, and that he has had relationships with men, and would want to do so in the future. The Tribunal is satisfied that he engaged in this conduct for reasons other than bolstering his refugee claim[23]. The reasons for these findings are set out below.

   [23] See s. 5J(6) of the Act

5. Firstly, the Tribunal accepts that he may have not witnesses to support his claim as he has concealed the information from people around him due to his own shame and a fear of his family finding out about his sexual orientation. The Tribunal acknowledges that despite the tolerance of the Australian community towards bisexual people, there are sectors of the community that are hostile towards them. Within his own community, as described by him, there were adverse comments made about homosexuality, and he has been fearful of telling his own family.

6. Secondly, the Tribunal gives the applicant the benefit of the doubt in regard to his evidence about his sexual orientation, taking a reasonable approach to the assessment of evidence as outlined in a number of cases.[24] The Tribunal notes that the courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[25] In this case, the applicant has been convicted of dishonesty offences, which weighs against his general credibility. However the evidence given to this Tribunal has been generally credible in regards to issues other than his sexuality claims.

   [24] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437

   [25] SZLVZ v MIAC [2008] FCA 1816 at [25]

7. Thirdly, the applicant was able to describe, albeit without significant detail, the evolution of his attraction towards men, including feelings of confusion and denial. He told the Tribunal that he has had relationships with both men and women. He said that he first felt attracted to men when he was about 16 years old and this made him feel confused. He said that in Zimbabwe being gay was ‘not something regarded as normal’. He said that he still feels confused. He said that the fact that he has never spoken of it, demonstrates this. He said that he just ‘goes over and over it, even if I try to change it, it stays the same’. The Tribunal is persuaded that he did have repressed feelings of attraction towards men, given that he was able to express his sense of confusion and denial, for example that he tried to ‘change it’ but it ‘remained the same’.

8. Fourthly, his explanation about first recognising his bisexuality after being abused in a detention centre was persuasive. He told the Tribunal hearing that his first sexual encounter with a man was when he was 16 years old. He said it was ‘new’ to him and ‘the way it happened’ was that he was abused when he was in a juvenile centre. He said that ‘then I realised that this was what it was’. In a Statutory Declaration provided after the hearing the applicant said that the encounter took place at [Detention Centre 2]. He said that it was violent in prison and attempts were made to stand over him and he had to fight for himself or would have been bullied and brutalised. He said ‘I was sexually abused and forced to provide oral sex. I could not rely upon any warders for protection as I would be viewed as a dog, or informer. Unfortunately, such assault led to recognition of my bisexuality and a terrible level of shame and guilt. I tried everything to keep it a secret’.

9. While it may have been expected that such abuse would have deterred him from entering into further sexual relationships with men, his explanation that it led to recognition of his bisexuality provided a forthright and honest insight into the evolution of his acknowledgment that he was bisexual. Further his reference to a civil case afoot in relation to the abuse in the detention centre, provided some independent reference to the incident.

10. Fifthly, he testified that he had other consenting relationships with men after the incident of abuse, including a relationship with a man in prison for a few months (which he said was mainly sexual and not serious). He stated in a Statutory Declaration provided after the Tribunal hearing that when he was released from [Detention Centre 2], he had relationships with women but also sought out experiences and contacts with males, without forming a relationship. He said that this became a ‘regular pattern of behaviour’. He said that as an example, he would meet people in nightclubs and contact ‘would happen immediately whenever possible’ but ‘more than a few times a year’. He said that this continued when he was returned to prison. He had ‘random, opportunistic sexual encounters’. He said that these relationships were not serious. He said that he would not want to disclose the names of the partners as it was private and they have not told their families. He said that it is difficult for cultural and religious reasons to discuss these matters.

11. The Tribunal accepts on the basis of these factors considered cumulatively that the applicant was attracted to men as a young adult, but tried to conceal this due to the stigma in his community. However later he was abused by a man in a juvenile detention centre and this led to him recognising that he was bisexual and having a number of sexual encounters with men in the community and prison.

12. The Tribunal has also considered whether the applicant would seek out relationships with men if he returned to Zimbabwe, and on balance is satisfied that he would. He said that prior to going to prison, he had a girlfriend. He was with her for three years, but the relationship ended just before he went to prison. He said that this was a serious relationship but there were problems. He told the Tribunal at hearing that he could not have a serious relationship in the future with a male due to his mother’s cultural and religious beliefs. She and some of his close friends in Australia do not know about his bisexuality. He said that ‘because of his background’ he has not disclosed this information. He said that he would not want it ‘leaked out’ that he had relationships with men. He would not want to get into a serious relationship with a man because of his mother, although he said that he might in time, as she might end up understanding, because of ‘the country here’. Asked if he would like to have a serious relationship with a man or woman, he said that he would prefer it to be a woman, but he cannot ‘forget the other side of me that wants to have a relationship with a man’. He was asked if he wanted to have casual encounters with men if he returned to Zimbabwe, and he said that he would, because it ‘is who I am’.

13. While this evidence is somewhat contradictory, after considering his testimony carefully, the Tribunal is satisfied that although he may seek to marry a woman in order to abide by traditional norms and please his family, he would continue to seek out men for sexual encounters in Zimbabwe, as he feels that attraction to men is intrinsic to the person he is.

    The refugee criterion

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

14. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country.[26]

    [26] Section 5H(1) of the Act

15. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

16. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Is there a real chance of serious harm for reasons of membership of a particular social group of homosexual or bisexual men in Zimbabwe?

17. For a person’s fear of persecution to be well-founded, there must be a real chance that if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act provides an objective element to that concept;[27] not only must a person fear persecution, there must be a prospect of that fear being realised.

    [27] See comments in UNHCR – Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees , February 2019

18. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J of the Act.

19. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation.’

20. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[28]

    [28]Chan v MIEA (1989) 169 CLR 379 at 397.

21. The applicant has claimed that if he returns to Zimbabwe in the reasonably foreseeable future he would face violence, discrimination and possible arrest. He said it would destroy him to live underground.

22. The 2019 DFAT Country Information Report for Zimbabwe states that:

    Article 78(3) of the Constitution specifically prohibits persons of the same sex from marrying each other. The Constitution does not prohibit discrimination based on sexual orientation or gender identity. Section 73 of the CLCRA 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 to be an indecent act’. Sodomy is punishable by up to a year’s imprisonment, a fine of up to USD5,000, or both. Section 73 does not distinguish between consensual and non-consensual cases, meaning that the media occasionally misreports some cases of male-on-male or male-on-child rape as ‘homosexual sex’…The media regularly covers intersex issues, which authorities generally treat as medical rather than identity-related issues.[29]

    [29] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

100.   The DFAT Report states that while official rhetoric under the former Mugabe administration was strongly homophobic, particularly from Mugabe himself, actual prosecutions in relation to consensual same-sex sexual activities were very rare. In many cases where police did arrest LGBTI individuals, the charges were ‘usually unclear from the outset and, at most, police would charge individuals with low-level misdemeanours such as loitering, indecency, or public order statutes’.[30] The 2018 Bertelsmann Stiftung Transformation Index country report for Zimbabwe states that there is no de jure discrimination, however, same-sex marriages are illegal, and it was widely known that the police persecute homosexuals, while access to legal representation, education and health care for homosexuals is limited.[31]

[30] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[31] Bertelsmann Stiftung Transformation Index (January 2018), ‘BTI 2018 Country Report – Zimbabwe’, p.30

101.   The DFAT Report states that despite the lack of prosecutions there is ongoing frequent high-level official anti-LGBTI rhetoric and commentary from leaders and church leaders. There is also anti-LGBTI media reporting, and ‘general conservative social attitudes’. The Report suggests that this contributes to a ‘difficult social environment for LGBTI individuals’. Reference is made to human rights commentators who suggest that the criminality and social stigma of same-sex activity have led to homosexual men being vulnerable to blackmail, dismissal from employment or education, eviction from housing, and/or violence or harassment from families, neighbours, or the police.[32]

[32] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

102.   Reports suggest that gay men have been targeted for physical abuse.[33] Gay men have at times been vulnerable to assault in cases where they were in the presence of a crowd, which would depend on the strength of numbers to initiate an attack following a tip-off. In cases of mob attacks, this is ‘usually followed’ by property owners issuing eviction notices to the victims.[34] According to the report of the leading LGBTI advocacy organisation, Association of LGBTI People in Zimbabwe (GALZ), there were 170 violations (of all kinds) between 2012–17, with 50% of gay men being physically assaulted.[35] DFAT suggests that the stigma attached to LGBTI issues means this is likely to understate substantially the true number.[36] This under-reporting is confirmed by GALZ referring to a fear of detention, harassment, assault and stigmatisation which results in under-reporting.[37] GALZ suggests that 64% of LGTBI people have been disowned by their families.[38] ZimRights, a human rights group, suggested that in 2018 there were about 760 reports of attacks on homosexual university students in 2018.[39]

[33] Deutsche Welle, ‘Zimbabwe LGBTI community wants safe place to vote’, 17 July 2018

[34] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[35] GALZ (Zimbabwe), ‘An analysis of human rights violations against LGBTI persons in Zimbabwe’, 1 January 2018

[36] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[37] GALZ (Zimbabwe), ‘An analysis of human rights violations against LGBTI persons in Zimbabwe’, 1 January 2018

[38] GALZ (Zimbabwe), ‘An analysis of human rights violations against LGBTI persons in Zimbabwe’, 1 January 2018

[39] Newsday, ‘Zimbabwe no safe haven for homosexuals’, 21 November 2019

103.   Reports indicate that there has been a substantial decrease in the level of official hostility towards the LGBTI community under President Mnangagwa, particularly in relation to homophobic rhetoric from state officials.[40] The DFAT Report states that President Mnangagwa met with LGBTI advocates following his accession, and ZANU-PF officials also engaged for the first time ahead of the July 2018 elections. DFAT states that LGBTI advocates also report that they have been able to ‘commence a dialogue with police representatives in order to build a better understanding of the community and its needs, including through developing a field manual for policing marginalised communities.’ The Report states that LGBTI advocates are working with media towards more sensitive and objective reporting of LGBTI issues, rather than the sensationalism that was the norm under Mugabe.[41]

[40] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[41] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

104.   There are also other examples of a more open and tolerant approach towards the LGBTI community in recent years. In April 2018, the LGBTI community was for the first time granted permission to exhibit at the Zimbabwe International Trade Fair, and GALZ runs regular social events, education and outreach activities nationwide.[42] However, some events have been targeted by mobs.[43] There are also some reports of the ability of some gays to live more openly. A 24-year-old gay man, who chairs the Male Sex Workers’ Organisation said that he believed they are ‘slowly liberating themselves’.[44] A GALZ officer said in 2019 that there had been fewer violations against LGBTI people, less hate speech and anti-LGBTI government rhetoric in recent years.[45]

[42] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[43] GALZ (Zimbabwe), ‘An analysis of human rights violations against LGBTI persons in Zimbabwe’, 1 January 2018

[44] Gender Links, ‘Zimbabwe gays living openly despite homophobia’, 5 December 2019

[45] Gender Links, ‘Zimbabwe gays living openly despite homophobia’, 5 December 2019

105.   DFAT concludes that although there have been some positive developments towards a more open approach to LGBTI people, there is no suggestion that constitutional or legislative change is on the government’s agenda.[46] Furthermore, sources indicate that societal attitudes towards same-sex attraction and/or gender identity remain very conservative.[47]

[46] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

[47] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Zimbabwe’, 19 December 2019

136.   The Tribunal is not satisfied, given that the applicant does not have a current birth certificate or passport, and disruptions to local travel rights because of the COVID-19 pandemic, that the applicant has an existing right,[78] rather than a potential right or expectancy, to enter and reside in a third country.

[78] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001)

137.   The Tribunal finds that s.36(3) does not apply to the applicant with respect to any third country.

Findings in relation to the refugee criterion

138.   The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of homosexual or bisexual men in Zimbabwe.

Other claims

139.   As the Tribunal has found that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of homosexual or bisexual men in Zimbabwe, it is not necessary to consider his claims in relation to fear of returning because of the COVID-19 pandemic or harm arising from lack of documentation or as a returnee.

CONCLUDING PARAGRAPH

140. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

141. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jane Marquard
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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