2108863 (Refugee)

The applicant, a male from Zimbabwe, sought a protection visa. The dispute concerned whether he faced a real risk of persecution or significant harm upon return to Zimbabwe, based on his alleged support for the Movement for Democratic Change (MDC) and subsequent harassment by government intelligence. The matter came before the Federal Circuit Court after the Administrative Appeals Tribunal (AAT) had previously made a decision.

The court was required to determine two primary issues. Firstly, whether the applicant had a well-founded fear of persecution for reasons of political opinion under section 36(2)(a) of the Migration Act 1958 (Cth). Secondly, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Zimbabwe, he faced a real risk of suffering significant harm under section 36(2)(aa) of the Act. Additionally, the court considered whether section 36(3) of the Act, concerning the availability of protection in another country, applied to the applicant.

The court found that the Tribunal, as previously constituted, had failed to consider material directly relevant to the applicant's claims, leading to jurisdictional error. The court reasoned that the applicant's alleged activism against the Zimbabwean government and meetings with opposition figures, such as Nelson Chamisa, were central to his claims of a real risk of harm. The court also noted that the Tribunal had previously found that the applicant had not taken all possible steps to avail himself of a right to enter and reside in Uganda, based on regional agreements, but that no other evidence supported the applicability of section 36(3) to the applicant.

Consequently, the court remitted the matter to the Tribunal, differently constituted, for rehearing. The directions for reconsideration included that the applicant satisfies section 36(2)(aa) of the Migration Act and that section 36(3) does not apply to him.