2107326 (Refugee)

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by a delegate of the Minister for Home Affairs to refuse a protection visa to a male applicant from Zimbabwe. The applicant, who had been a permanent resident of Australia since 2006, applied for the visa after his own visa was cancelled and he was placed in immigration detention. His initial claims to the Department focused on the risk of contracting COVID-19 due to the collapse of Zimbabwe's medical infrastructure, perceived persecution as a wealthy returnee, and potential statelessness due to misplaced identity documents. During the Tribunal review, the applicant also raised a new claim concerning his fear of returning to Zimbabwe due to his sexual preferences.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically whether he had a well-founded fear of persecution for reasons of membership in a particular social group (homosexual or bisexual men) or for other reasons, or whether there were substantial grounds for believing that his removal would result in a real risk of significant harm. Key issues included the applicant's bisexuality and his ability to maintain relationships in Zimbabwe, the risk of serious harm based on his sexual preferences, the impact of misplaced identity documents on his ability to access services including medical treatment, and whether the general risk of contracting COVID-19 and the state of healthcare in Zimbabwe constituted persecution or significant harm. The Tribunal also considered the risk of being targeted for extortion by officials due to a perception of wealth.

The Tribunal found that the applicant had been afforded a fair opportunity to present his case. While acknowledging the sensitivity required for claims relating to sexual orientation, the Tribunal considered evidence from the applicant, Departmental records, and independent sources regarding Zimbabwe. The Tribunal ultimately decided to remit the matter for reconsideration by the Department with a direction that the applicant satisfies section 36(2)(a) of the Act, indicating that the applicant met the criteria for complementary protection.