1508989 (Refugee)

[2018] AATA 2116

1508989 (Refugee) [2018] AATA 2116 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508989

COUNTRY OF REFERENCE:                  Zambia

MEMBER:Jane Marquard

DATE:17 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2018 at 11:12am

CATCHWORDS
Refugee – Protection visa – Zambia – Particular social group – People with HIV – Political opinion – United Party for National Development – Murders of family members – Sexual abuse – Availability of medication – Political violence – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
Guo Wei Rong v Minister for Immigration and Ethnic Affairs& Anor (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33

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 woman born in [year] in Lusaka, Zambia.

2. She first arrived in Australia on 8 December 2006 on a [temporary visa].

3. She became unlawful on 8 March 2007 and she continued to reside in Australia unlawfully until November 2013, when she applied for a bridging visa.

4. She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 7 January 2014.

5. On 4 June 2015 a delegate of the Minister for Immigration (the Department) refused to grant the visa.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Evidence before the Department

7. In her Department application the applicant stated that she attended [number] years of school in Lusaka. She then obtained certificates as [an Occupation 1] and in [another subject]. She has two sisters who are still living in Zambia. She said that she left Zambia for the following reasons: ‘poverty, unemployment, not safe (politically)’.

8. When asked what harm she had experienced she said that she was ‘sexually abused when I lived with my uncle when he was killed’. She said that if she returned she feared that she would be harmed due to politics. She said that this happened to her brother and uncle and she used to stay with them. She said that she feared harm from politicians, cadres and the government because her brother and uncles were brutally murdered. She stayed with them and she and her brother were always at meetings and functions.

9. In an interview with the Department she elaborated on these claims and added additional information:

   ·Her father had been involved with United Party for National Development (UPND) prior to his death from natural causes in 2013, and attended many meetings. He stopped when he became ill;

   ·He also suffered problems due to his employment [with] [Agency 1]. He was threatened and his office burnt down several years prior to his death;

   ·Her uncle was murdered in 2000 but she did not know the circumstances of the death;

   ·She thought that her brother began attending UPND meetings after her father became ill. He received death threats for his political involvement and was murdered in 2009. She acknowledged this may have been a random incident of violence. She became fearful after his death in 2009;

   ·She has not been involved in politics;

   ·Her sisters have remained in Zambia but are fearful and relocate frequently. They have received threats of violence but she is not sure who from;

   ·She and her cousin were victims of sexual assaults in 2000; and

   ·She has been diagnosed as HIV positive, and will be unable to receive adequate treatment in Zambia.

10. No medical evidence was provided to the Department but the Department file contains results of a test conducted for the purposes of the protection visa application which indicated that she tested positive for HIV.

    Evidence before this Tribunal (differently constituted)

11. The applicant appeared before the Tribunal differently constituted on 5 May 2017 to give evidence and present arguments. She gave the following additional evidence:

    ·She is from the Tonga tribe, usually recognised by people in Zambia as UPND supporters. She feared being targeted on the basis of her father’s and brother’s involvement. It was suspected that her brother was murdered because of his involvement. He left the country twice because of his involvement with the party. The second time, when he returned, he was murdered. No-one was charged. There were a few others murdered then, and they have not convicted anyone. The parties were fighting at the time, and he was not involved in arguments with anyone else. This is why she thinks he was killed because of his involvement with UPND. His wife would have told her if he had conflict with anyone. He was coming from a campaign rally and came home.  Her father was [in a certain role]. He had wanted to be a candidate but had a [medical condition]. His office was burnt down after he had [this condition]. It was at the time when the government was targeting various buildings where UPND members were located;

    ·She attended a few rallies when her father was [in a certain role]. She attended elections every year but had no other involvement;

    ·She fears for her sisters. One is married and living in Livingstone. The other sister is in Lusaka and she worries about her. Her sister was recently attacked but she has not spoken to her about the details yet;

    ·She would be attacked after she went back home to Lusaka. She would not be attacked in the airport;

    ·An uncle she lived with when she was young, called [name], was also murdered. She did not think this was related to politics;

    ·She and her cousin were victims of sexual assault by burglars in 2000, but this was not related to politics. It was reported to the police;

    ·She had a child in Zambia. She was not married. Her child passed away, after being sick for a few years;

    ·She remained unlawful for over six years in Australia as she got married in 2010. She gave herself some time to see if the marriage would work, and in the meantime she got the paperwork for her spouse visa. But then she and her husband separated in 2013 and she went to [Town 1]. She was then referred to [Agency 2] to get help to go back to Zambia. An agent then suggested to her that she apply for a protection visa, and this was the first time she had heard about this. She remained unlawful as she did not have money for applications. She was working some of the time, while unlawful;

    ·She learnt that she was HIV positive in 2008 while in [Town 2]. She found out after finding a swelling. She was put on anti-retroviral (ARV) drugs, which she has been on since. She started on kalitra, which is a first-line drug. She is now on strivild, which is also a first-line drug, which she does not think is available in Zambia. She is on one a day, plus Vitamin D and iron. When she told her aunt, her aunt said that she would have to start on third-line drugs in Zambia. She could only get first-line drugs if she was dying;

    ·The Tribunal put to her that in the Department’s decision record it was indicated that in an interview with the Department in 2014 when she had agreed to return to Zambia, she had not raised any issues relating to protection claims. She said that she called [Agency 2] after referral from the Department. [Agency 2] officials told her that they would pay for her to go back to Zambia. She said that she would call them back because she had no other option. She did not know she could apply for a protection visa otherwise she would have applied earlier. Asked why in the interview she did not tell the Department about her fears about returning, she said that she had spoken to one officer whom she told about it, but then she was referred to another officer who said that she could not apply for a visa. So she did not say anything. It was only after she had spoken to the agent that she heard about protection visas. However she did not stay in Australia for economic reasons;

    ·There is general violence in Lusaka at the moment. The Tribunal put to her that fear of generalised violence and harm is not fear of persecution for one of the reasons set out in the Convention (as set out in Attachment A). The applicant said that she and her family are always targeted. Now it is for reasons of being Tonga too, anyone who is Tonga is ‘not a human being’. They are being attacked by the ruling party;

    ·Asked about the country information in the delegate’s decision record, in particular unemployment in Zambia, and the availability of free HIV medication in Zambia (first, second and third-line), she had no comments;

    ·She was given a month to provide documents. In a letter after the hearing she said that she was unable to obtain police documents relating to her rape case as computers were not widely used then. She said that she would not be able to be on ‘stribild in Zambia, as Zambia does not have this drug, and it is a first-line drug only accessed by terminally ill patients. If she returned to the use of third-line drugs, this would adversely affect her immune system. She only found out about protection visas just before putting in the application. She was in a rush when she submitted it. She also fears war in Zambia;

    ·She provided printouts of articles referring to the death of Senior Chief Muchindu of the Lala people of Serenje District who was shot dead at his palace, by unknown assailants. The article reported that ‘Zambia is becoming a violent, unsafe place due to the hatred promoted at national level by Edgar Lungu and his thugs.’ Another article reported that Patriotic Front (PF) had made threats to chiefs who had demanded the release of Hakainde Hichilema.

    Evidence before this Tribunal

12. The applicant was scheduled to appear before this Tribunal on 6 October 2017. Just prior to the hearing she requested an adjournment due to a death in the family. The adjournment was granted. The applicant then appeared before the Tribunal on 26 February 2018 for the rescheduled hearing. The Tribunal expressed condolences for the death of the applicant’s sister, who died [in] 2017.

13. The applicant confirmed that she did not want to change or add anything to the evidence she had given to the Department and Tribunal differently constituted.

14. She also provided the following evidence (in summary):

    ·Her mother passed away in 2007. Her father died in 2013 from natural causes. One of her brothers has also passed away. She has a half-brother and he lives in [another country]. Her father had two wives. She has one sister and she is living between Lusaka and Livingstone. This sister has just completed a [course], and she is not sure where she will live. The applicant has no grandparents. On her mother’s side she has an uncle and an aunt, and a few cousins. On her father’s side she has some cousins. Mostly, her family live in two villages;

    ·Her sister who recently passed away, had been living in Livingstone, working as a [a related Occupation 1]. She was married and has [children]. She has been told that her sister was murdered. The police are still looking into it. She was asked what her surviving sister has told her about what happened. She said that she was told [in] October 2017 about what happened, that her sister’s body was found, and it looked like she had been stabbed. Her surviving sister identified the body. Her sister’s body was found near [Location 1], in a bushy area. Asked who found her, she said that she did not know. Asked if she had been missing prior to being found, she said that she was just coming from work. She could not say that she was missing. Asked what the police have told her family, she said that there were a couple of murders around the time so they are looking into it. Asked if there were reports of her murder in the newspapers she said that she has not asked for that information. She could get a death certificate. She was asked if this was a random crime and she said that it could have been but she does not know;

    ·Her family grew up in Lusaka. She completed her schooling in Livingstone. She then obtained a certificate as [an Occupation 1] and in [another subject] in Lusaka. She did not really find employment, although she worked a bit for her father, at [Agency 1]. Her mother was [an occupation]. Her late brother [was a different occupation].  Her other brother has [specified employment];

    ·Asked why she came to Australia, she said that her application to [another country] was declined. She wanted to come to Australia to be in a safer place. She came to Australia on a visa which she applied for in [another country]. She did not apply for a [specified temporary] visa, she just applied for a visa. The Tribunal put to her that she would have had to sign a form for the [specified temporary] visa. She said it just stated ‘[deleted]’. She said it was handed to her over the counter. When she came to Australia she did not want to just visit, she wanted to be safe and stay permanently. She did not make enquiries about permanent visas. When she got to Australia she did make enquiries about how she could stay longer on a visa, but she did not find out much. She went [to Town 1] for one year, then to [Town 2], then she got married, and she thought that she was a resident because she was married. Only later she found out in the hospital that she had to formally apply, but she and her husband did not have money for a visa or an agent so they ‘left it’;

    ·She and her husband then separated and she went back to [Town 1] then back to [another city]. From 2006 to 2013 she did [two specified occupations];

    ·She left Zambia to be safe from the violence, it was just ‘too much’. Asked what violence she was referring to, she said that it was crime;

    ·She was asked what she currently fears about returning to Zambia. She said that she has two main concerns, the murders and her health. She said that by murders, she means crime. In regards to her health, while she is not very sick, her medications would not be available;

    ·Although in her original application to the Department she said that she was claiming protection on the basis of unemployment and poverty, these factors were no longer a major issue but she was concerned about political insecurity;

    ·Asked what she fears if she returns in regards to politics, she said that her father was involved with the opposition, and they think her brother was murdered because of this. When her father got sick with a [medical condition], her brother took over her father’s involvement in UPND. Their whole family supported UPND. Anyone who supports UPND can get targeted in Zambia, it does not matter if you are active or not. It happens anywhere – the ruling party members carry machetes and attack UPND people randomly;

    ·She attended meetings with her father in Lusaka where political strategy was discussed. There were also rallies in the showgrounds and conference centres. She had no other involvement in UPND;

    ·Asked why the ruling party would have interest in her in 2018 as her family’s involvement was prior to 2013 and she had left in 2006, she said that they would know she would be back. She said that her sisters had to move frequently. Since she left one of her sisters has been involved in UPND as a supporter. There was a time when they got attacked randomly, and they would have to move. At the time of her last hearing one of her sisters had been attacked randomly in Lusaka and there was a photograph of her bleeding. She was at home and three people came in the house and attacked her. Asked if they were criminals she said she did not think so because they did not take anything. There was only this one time when there was an attack. When asked how much they moved, she said that they moved not much the last year but the year before they moved. Her sisters were living together – it was just the two of them. After marriage the other sister remained on her own with the children;

    ·She was asked why the ruling party would be interested in her or her sisters long after her father died. She said it was just spite, and no other reason;

    ·Her father’s office was burnt down but his job at [Agency 1] was not a reason for the attacks on him. It was because he supported UPND. Some time ago he was beaten up and spent a night in gaol;

    ·The ruling party are PF and from the east. If you are Tonga you are associated with coming from the south, like she is, and being UPND;

    ·Her brother was murdered in 2009. He wanted to be [an occupation] and his involvement with UPND was strong.  His wife said that he was coming from a meeting and was attacked. There would have been media reports about his death but she does not have them;

    ·She has been in Australia since 2006 but applied for a protection visa in 2014. The Tribunal put to her that this does suggest that she did not have a genuine fear of returning. If she had a genuine fear then she would have applied for protection early in her stay in Australia, particularly as she knew she wanted to stay longer and be safe, and had spoken to people about this. Asked to comment she said that when she was married, she thought that this meant that she was able to stay lawfully. She did not know about protection visas until 2013. When she was caught by the immigration officers she asked what visa she could apply for, and she was told that she could not apply for any. She then called an agent and he told her about protection visas. The Tribunal put to her that she was educated, can speak English and had spoken to some people about visas, plus there are frequent media reports about refugees. She responded that she was given the wrong information about partner visas, and she thought she could just stay. She was in [Town 1] where there was little information;

    ·She found out that she was HIV positive in 2008. She was asked if she had brought a current medical report as requested by the Tribunal in a letter dated 9 February 2018. She said that she did not get the letter requesting this. The Tribunal noted that this letter had been sent to the same email address as the letter containing the hearing invitation, which she had received. The Tribunal asked her to provide the medical report, death certificate for her sister and media reports of her sister’s death by 12 March 2018;

    ·She has recently changed to treatment with a new drug called genovya. Her health has been stable, and she has viral suppression. She is not suffering from any impact from being HIV positive. She goes in for checks every four months to [a named] Hospital and has an appointment on 1 March 2018. The doctors have told her that it is all going well. They said she had a bit of liver swelling and are checking this. She takes her medication once a day;

    ·She has told her ex-husband and close friends that she is HIV positive. She has been offered counselling, but has not taken this up. She has consulted with social workers at the hospital. She has told her sisters and her auntie in Zambia and they have been supportive. She has also told one of her close friends in Zambia;

    ·Asked what she fears about returning to Zambia being HIV positive, she said that first-line drugs are only given to people who are terminally ill. She could not return to a lower grade drug as her body would not respond. If someone is ambulant and fine they give them second or third-line drugs. She was told this by her late sister who was [an occupation]. If she could find information about this she would provide it to the Tribunal by 12 March 2018;

    ·Asked if there was anything else she wished to say she said she would put it in writing by 12 March 2018.

1. On 15 March 2018 she provided a report from [Doctor A], [specialty and hospital section], dated 1 March 2018. The report stated that the applicant had been diagnosed with HIV in 2008. She had had a good response to HIV therapy with ongoing undetectable viral load results and stable CD4 T cell counts. She had had no evidence of coexisting illness related to HIV infection. She was compliant with treatment and attended the clinic 3 to 4 times a year. Her prognosis was excellent and she should have a normal life expectancy if she remained on HIV therapy which was a daily one pill regimen, genvoya.

2. On 16 March 2018 the applicant wrote to the Tribunal stating that she could not get in touch with her sister’s husband to get the death certificate. She attached photographs which she said were of her late sister. The photographs were disturbing photographs of a woman who had been stabbed and mutilated.

3. On 30 April 2018 she wrote to the Tribunal attaching photographs which she said were of her uncle who was killed 12 days prior. She said that her remaining sister was living with him when this happened. The photographs were of a man lying down with blood on him.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. In coming to a decision the Tribunal has taken into account evidence on the Department file and evidence before the Tribunal, as well as independent country information about Zambia.

5. A summary of the relevant law is set out in Attachment A.

6. The issue in this case is whether the applicant meets the refugee criteria, and if not whether she is entitled to complementary protection.

   Nationality

7. The applicant provided a copy of her passport and gave evidence that she was a citizen of and born in Zambia. It was clear that she was familiar with the culture, history and geography of Zambia, and the Tribunal accepts on the evidence before it including her personal particulars, that she is a citizen of Zambia, and that Zambia is the receiving country for the purposes of the complementary protection provisions.

   Findings of fact

8. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, anxiety about the outcome, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[1]

   [1] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, >

   The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs& Anor (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.    

9. The Tribunal also accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

10. The Tribunal is satisfied on the applicant’s evidence that she and her cousin were sexually assaulted by burglars while living with an uncle in 2000 and that they reported this to police.  Her evidence about this was related in a forthright and compelling manner. The Tribunal is satisfied that she has a genuine fear of crime based on this incident and other criminal incidents affecting her family.

11. The Tribunal is also satisfied, on the basis of the applicant’s written and oral evidence, that the applicant’s father and brother were involved with UPND, and that she has been a supporter of UPND, although not an activist. The Tribunal is satisfied that she attended meetings and rallies with her father prior to 2006. The Tribunal is also satisfied that the applicant’s brother was threatened because of his involvement with UPND, and left the country twice before returning, and that her father was once beaten up and spent a night in gaol, and that his office could have been burnt down because of his involvement. Her evidence about these matters has been consistent in her accounts to the Department and Tribunal, and there is also evidence that the Tonga people are often identified as UPND supporters.[2]

    [2] See for example, Zambia Reports, ‘Opinion: UPND is Tonga, Ila and Lenje Bantu Botatwe’, 16 December 2015, >

    The Tribunal is not satisfied on the evidence provided that the applicant’s brother and uncle were killed for reason of their involvement with UPND. The applicant has not provided any documentary evidence such as death certificates or media articles about these deaths. No media or other reports were found of the killing of UPND supporters in 2000 and 2009.[3] While the Tribunal accepts that not all deaths would be reported in the media, it notes that there are reports of the deaths of other opposition party members.[4] Furthermore, the applicant herself has stated that she is not sure what the cause of her brother’s and uncle’s deaths were. In relation to her uncle’s death in 2000 she said that ‘she does not know the circumstances’ and that she did not think it was related to politics. In relation to her brother’s death, while stating that he left the country twice, and he had no other enemies and was coming from a political rally, she said that it may have been a random act of violence. In light of her uncertainty, and the absence of media reports or other information about these deaths, the Tribunal is not satisfied that her brother or her uncle were killed for reason of their UPND involvement.

    [3] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), DIBP resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers. Searches were conducted of several English-language Zambian newspapers, including the Lusaka Times, Zambia Daily Mail, Times of Zambia, Zambian Eye and Zambia Reports.

    [4] See for example, CNN, ‘State behind murder, says opposition’, 7 July 2001. Zambia Reports, ‘Suspected UPND Cadres Murder PF Supporter in Chipulukusu’, 28 July 2016, >

    The Tribunal is also not satisfied that her sisters received threats of violence in the past because of their support of UPND, or their family’s connection to UPND, or that an earlier attack on her sisters was the result of political allegiance. The applicant herself stated that she did not know who threatened violence to her sisters. In relation to the attack on her sisters, she said that there was nothing stolen, which suggests it was not a burglary, but also stated that it was a random attack. The country information, discussed in more detail later in this decision, indicates some violence at election and rallies, but does not suggest that there is targeted violence towards UPND supporters or family members of UPND supporters, while those reports do comment on other human rights concerns. For example, Freedom House notes that Zambia is a democracy, with regular elections, although there is some political repression of the opposition. However it does not indicate that there is significant violence towards opposition supporters, whereas it does refer to political violence at rallies:

    Zambia is a multiparty democracy that holds regular elections. However, opposition parties face onerous legal and practical obstacles in their operations. The government regularly invokes the law to restrict freedom of expression, and peaceful demonstrations—particularly those organized by the opposition—are frequently restricted or banned.[5]

    [5] Freedom House, Freedom in the World, Zambia, 2017, >

    The Tribunal is also unable to be satisfied that in 2017 and 2018 respectively, the applicant’s sister and another uncle were killed for reason of involvement or connection with UPND. Despite requests for media articles, none were provided. According to the applicant, her sister was murdered in the bush near [Location 1]. It would be expected therefore that there would be media reports about a brutal murder in that region, particularly if there were political aspects to the murder. The Tribunal also searched Google for reports but has been unable to locate them. In 2015, there were media articles about a murder which took place at [Location 1], in which the police superintendent commented that murders were unusual for this region.[6] This does indicate that it would be likely that a brutal murder would be reported. This is even more likely, if, as claimed by the applicant ‘there were a couple of other murders around the time’. However, even if there were no media reports of these incidents, no death certificates have been provided for these deaths. In relation to her sister’s death certificate, the applicant said that she could not get hold of her sister’s husband to obtain it. She did, however, provide very disturbing copies of photographs of a young woman who had been brutally murdered and mutilated. She did not explain where she sourced these copies of the photographs and there was nothing in the photographs to link the scene with the applicant’s sister.

    [6] [Deleted.]

12. Further, the applicant has not suggested that her uncle was murdered for involvement with UPND. While she has provided a photograph, there is no explanation of the source of the photograph or identifying aspects.

13. She said that she was not sure if her sister was murdered in a random crime or because of her involvement with UPND, and stated that the police were investigating links with other murders around the time. While there is high crime in Zambia, country sources do not suggest that there are brutal crimes like this occurring for reason of involvement with UPND.[7] There does appear to be political violence at rallies initiated by political cadres as reported in the media[8], and there are accusations in some media that the PF have supported thugs in this political violence, but arbitrary targeted killings are not reported as a common ocurrence. The United States Department of State, for example, in its most recent report on human rights practices in Zambia, did not refer to arbitrary killings as a widespread problem, although it referred to one incident in which the perpetrators have been prosecuted:

    There were reports of extrajudicial killings by the government or its agents during the year. For example, on March 19, police brutally beat to death Mark Chongwa, an air force officer, while in detention for a minor traffic infraction. The Human Rights Commission (HRC) condemned the killing as an arbitrary deprivation of life, prompting the president to order a full inquiry into police actions. The HRC called for disciplinary action against the police officers responsible for the arrest and detention of Chongwa. Four individuals, including two police officers and two inmates, were arrested and charged with manslaughter. The case was referred to the High Court for prosecution; the trial continued at year’s end.[9]

    [7] Freedom House, Freedom in the World, Zambia, 2017, See for example, Lusaka Times, ‘Zambia political violence and the hell of political cadres’, 17 March 2016, United States Department of State, Country Report on Human Rights Practices for 2017, 2018, >

    Considering all these factors cumulatively, the Tribunal is not able to be satisfied that the applicant’s sister and uncle were murdered in 2017 and 2018 for reasons of involvement with UPND.

14. The Tribunal is satisfied based on the medical report of [Doctor A] that the applicant has been HIV positive since 2008 and that she is being treated with a once-daily pill called genvoya, with check-ups at the clinic a few times a year.

    Refugee criteria – there must be a real chance of serious harm for one of the Convention reasons

15. An applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.

16. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility, however it may be well below a 50 % chance: Chan v MIEA (1989) 169 CLR 379.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Real chance of serious harm from members of the ruling party or their associates

18. The Tribunal is not satisfied that there is a real chance of serious harm from the government, Patriotic Front (PF) members or associates were the applicant to return to Zambia in the reasonably foreseeable future, for the following reasons.

19. Firstly, the applicant left Zambia in 2006. She has had no political involvement since then. When she was living in Zambia, her only political involvement was attending rallies and political meetings with her father. It is therefore unlikely that she would be remembered or targeted by PF members or their associates for minor support and involvement so long ago. The Tribunal has accepted that her brother and father suffered some repercussions from their involvement with UPND, however since she left the country in 2006 the Tribunal does not accept that she would be associated with their involvement so long ago.

20. Secondly, independent information does not suggest that individual UPND supporters are systematically targeted for serious harm by the Patriotic Front (PF). As discussed earlier, the Tribunal is not satisfied on the evidence that deaths of her family members have related to their involvement or association with UPND. While there has been violence towards UPND supporters from time to time, this appears to correlate with violence at rallies or towards supporters at election time, and does not appear to be targeted towards individuals who have little or no involvement, simply on the basis of the fact that they support UPND or did in the past.

21. The most recent United States Department of State Report on Human Rights Practices suggests that Zambia is a democracy, although there have been questions about fairness at elections, and issues of repression of the opposition. It does not indicate significant targeting of individual UPND supporters:

    Zambia is a constitutional republic governed by a democratically elected president and a unicameral national assembly. In August 2016 the country held elections under an amended constitution for president, national assembly seats, and local government, as well as a referendum on an enhanced bill of rights. The incumbent, Patriotic Front (PF) President Edgar Chagwa Lungu, was re-elected by a tight margin. A legal technicality saw the losing main opposition United Party for National Development (UPND) candidate, Hakainde Hichilema, unsuccessfully challenge the election results. International and local observers deemed the election as having been credible but cited a number of irregularities. The pre-election and postelection periods were marred by limits on press freedom and political party intolerance resulting in sporadic violence across the country. Although the results ultimately were deemed a credible reflection of votes cast, media coverage, police actions, and legal restrictions heavily favored the ruling party and prevented the election from being genuinely fair.

    Civilian authorities maintained effective control over the security forces. In accordance with the constitution, all security and defense service chiefs reported to the president through the minister of defense.

    The most significant human rights issues included: arbitrary killings which were prosecuted by authorities; excessive use of force by police; harsh and life-threatening prison conditions; arbitrary arrest; interference with privacy; restrictions on freedoms of the press, speech, and assembly; high-level official corruption; trafficking in persons; and criminalization and arrest of persons engaged in consensual same-sex sexual relationships.

    The government selectively applied the law to prosecute or punish individuals who committed abuses and mostly targeted those who opposed the ruling party. In addition impunity remained a problem, as ruling party supporters were either not prosecuted for serious crimes or, if prosecuted, released after serving small fractions of prison sentences.. Although the constitution and law provide for freedom of expression, including for the press, the law contains some provisions the government used to restrict these freedoms. For example, on July 5, the president invoked emergency powers that expanded police powers to close down newspapers. Although it was not employed, the announcement was seen as a significant threat to press freedom by private media outlets.

    The government remained sensitive to criticism in general and by the political opposition in particular. It was quick to prosecute critics on the pretext of incitement of public disorder and hate speech. For example, on August 3, police arrested‎ and charged opposition United Progressive People leader Saviour Chishimba for defaming the president by accusing him of becoming dictatorial.

    Historically, political parties operated without restriction or outside interference, and individuals could independently run for office. The ruling party, however, enjoyed the use of government resources for campaign purposes and had police harass opposition candidates and supporters. Opposition parties, particularly the UPND, faced police and legal harassment. Police arrested opposition officials, blocked public rallies, and dispersed participants in opposition political gatherings and public protests. In overturning the August 2016 election of two ruling party members of parliament, High Court rulings cited ruling party abuse of government resources.

    There were reports during the year of forced retirement of civil servants based on their political affiliation and ethnicity. On February 28, a number of young doctors--some as young as 32--at the University Teaching Hospital were forced to “retire in national interests.” The retirement decisions were allegedly made because the individuals belonged to or were sympathetic to the opposition UPND. [10]

    [10] United States Department of State, Country Report on Human Rights Practices for 2017, 2018,

22. The last elections held, in August 2016 were marred by political violence. A report by the Zambian Elections Information Centre, released in July 2016 prior to the election, notes:

    The political environment has changed drastically when compared to the 2011 general election as well as the 2015 Presidential election. A total of three deaths and countless injuries were reported during the campaign period. The majority of the victims were from UPND. As the campaign period is underway, tensions are high between political party sympathisers and cadres which has led to an increase in violence. Reports recorded on a daily basis across ZEIC’s various platforms have indicated that the escalating levels of violence may have an impact on the elections in terms of voter turnout. Some of the specific issues emerging are that:

    ØViolence is being perpetrated by mainly two political parties namely UPND and PF whose cadres seem to have the blessing of their top leadership. Evidence from ZEIC platforms shows that at least two to three cases of violence are recorded on a daily basis between rival political parties in different parts of the country where political campaigns are taking place. Some citizens reported that political party officials give money to their supporters at the grassroots to go and disrupt activities of other political parties using violent means.

    ØPolitical cadres are increasingly becoming unruly to the extent that they have no regard for law enforcement agents. Some verified reports illustrated this fact when a police officer was brutally beaten by two cadres from one of the political parties. The disorderly conduct by political cadres has raised questions among the citizens on the ability and capacity of police and law enforcers to protect innocent citizens who get caught up in the political disturbances. Some citizens felt that the Police is powerless because there have been instances were cadres blocked the road or disregarded police checkpoints.

    As a result of police failure, some citizens have suggested that perhaps there could be military intervention to compliment the Zambia Police Service for the duration of the election period.

    Stakeholders have suggested that the police should not act in favour of the ruling party but protect all Zambians and thereby prove their effectiveness as a police service. Also, lack of updates from the police on what they are doing about the escalating levels of violence has contributed to tension among the political players.

    The vulgar language by some political party officials from various parties has been cited as one of the contributing factors to violence.

    Ø Defacing and destruction of rival party campaign materials was prevalent and the main perpetrators were the Patriotic Front. In retaliation, the UPND also damaged PF campaign materials.

    Ø At the centre of this violence were the youth whose participation was influenced by social economic conditions in the country.[11]

    [11] Zambia Elections Information Centre, ‘2016 Pre-election Citizens Report’, pp.14-15,

1. An August 2016 article in The New York Times described the campaign as ‘punctuated by killings and widespread violence.’[12] The article further states:

   Observers have attributed the violence to the two main parties, the Patriotic Front of Mr. Lungu and the United Party for National Development of Mr. Hichilema. On Tuesday, Esau E. Chulu, the chairman of the Electoral Commission, said that the violence was “unprecedented and has marred Zambia’s historic record of peaceful elections.”

   But some observers said that the Patriotic Front, as the governing party, bore greater responsibility for the violence. The police have often acted in favor of the party, and tax authorities shut down The Post, the country’s only independent newspaper, in the middle of the campaign.

   Catherine Musuva, the Zambia director for the Electoral Institute for Sustainable Democracy in Africa, a non-profit organization based in South Africa, said that the authorities had failed to sufficiently use the police to ensure security and a level playing field during the campaign.[13]

   [12]New York Times,‘Zambia Votes Amid Economic Slowdown and Political Violence’, 11 August 2016

   [13] New York Times,‘Zambia Votes Amid Economic Slowdown and Political Violence’, 11 August 2016

2. A Global Press Journal article reports that several UPND members were attacked during the election campaign during clashes with the Patriotic Front. A UPND supporter, Maxison Chuuka, was attacked with stones by supporters of the ruling Patriotic Front while on his way to a UPND rally. He was identified by his UPND t-shirt. Patriotic Front supporters also attacked the car of a UPND candidate by throwing stones at it. The car was decorated in UPND colours.[14]

   [14] Global Press Journal,‘Political Violence Spikes Between Zambian Party Supporters Before Aug. 11 Elections’

3. Government forces killed a UPND supporter, Mapenzi Chibulo, in 2016, during the lead-up to the 2016 election.[15] The US State Department notes:

   The most prominent and widely reported incident occurred on July 9 when police allegedly shot and killed Mapenzi Chibulo, an opposition United Party for National Development (UPND) supporter, after security forces clashed with a group of opposition supporters protesting the cancellation of a planned UPND rally in Lusaka.[16]

   [15] Lusaka Times,‘Slain UPND female supporter buried’, 12 July 2016

   [16] United States Department of State, Country Report on Human Rights Practices 2016 – Zambia, , 3 March 2017, p.2

4. UPND supporters have also engaged in violence against other political party members. In June 2016, UPND supporters were involved in a clash with supporters of the Forum for Development and Democracy (FDD) in which the ‘FDD Parliamentary candidate’s arm was fractured and her vehicle extensively damaged.’[17]

   [17] Lusaka Times, ‘UPND condemns recent Namwala  party violence against FDD members’ 22 June 2016

5. The country information set out above indicates that most political violence, described by the United States Department of State as ‘sporadic’[18] has occurred during elections and at rallies. While the country information set out above does suggest that the ruling party has restricted press and political freedom, and targeted activists and journalists, and that they and their supporters operate with impunity[19], it does not suggest that there are killings or violence towards UPND supporters or their families taking place on a systematic basis. While there may be isolated incidents of political thuggery, country sources do not indicate that ruling party members carry machetes and attack UPND people randomly, as claimed by the applicant.

   [18] United States Department of State, Country Report on Human Rights Practices 2016 – Zambia, , 3 March 2017

   [19]Amnesty International, Country Report 2018,Zambia, United States Department of State, Country Report on Human Rights Practices for 2017, 2018, Freedom House, Freedom in the World, Zambia, 2017, >

   The applicant has also claimed that she will be targeted as a Tonga, who comes from the south, and because her father and brother were involved with UPND. The country sources do not indicate that Tonga people are targeted for their involvement with UPND or for reasons of being Tonga, although they are associated with UPND. The sources also do not indicate that family members of UPND supporters who are Tonga are targeted:

   There are seven major ethnic/language groups--Bemba, Kaonde, Lozi, Lunda, Luvale, Ngoni, and Tonga--and 66 smaller ethnic groups, many of which are related to the larger tribes. The government generally permitted autonomy for ethnic minorities and encouraged the practice of local customary law. Some political parties maintained political and historical connections to tribal groups and promoted their interests. The general election was marred by rhetoric that contributed to division among tribal groups.[20]

   [20] United States Department of State, Country Report on Human Rights Practices for 2017, 2018, >

   When this country information was discussed with the applicant at hearing she said that not all incidents are reported, and she would be targeted because she attended rallies with her father. The Tribunal accepts that not all incidents are reported, however reputable sources such as the United States Department of State Report on Human Rights Practices, do generally report on targeting of ethnic groups or family members where this does take place. Such reports do not indicate that ordinary supporters who have attended rallies are targeted, or that the Patriotic Front or their associates are targeting individual Tonga, UPND supporters or family members on a systematic and discriminatory basis.

6. Taking into account the fact that the applicant was a UPND supporter but not an activist, that she left the country in 2006 and has had no involvement since then, the Tribunal is not satisfied that there is a real chance (a substantial as opposed to a remote chance), of serious harm were she to return to Zambia and continue to support UPND and attend rallies and meetings. The Tribunal has reached this decision because of the independent country sources discussed above which suggest that there is some repression of political activists, and some political violence prior to elections and at rallies, but not systematic targeting of individual low level supporters or their families. The Tribunal is not satisfied that the applicant would be killed, arrested, suffer violence or be otherwise seriously harmed because of her political opinion, actual or imputed.

7. The Tribunal is not satisfied therefore that there is a real chance of serious harm for reasons of political opinion, real or imputed were the applicant to return to Zambia in the reasonably foreseeable future.

   Real chance of serious harm due to unavailability of medical treatment

8. The Tribunal is also not satisfied that there is a real chance of serious harm, were the applicant to return to Zambia in the reasonably foreseeable future, due to unavailability of anti-retroviral (ARV) treatment. The reasons for this finding are set out below.

9. The applicant has claimed that the first-line medication she currently takes in Australia would not be available in Zambia, and her body would not cope well with treatment with inferior drugs. She claimed that her sister and aunt had told her that the drugs she takes in Australia are not available in Zambia.

10. Zambia has one of the world’s most devastating HIV and AIDS epidemics, with 1.2 million people living with HIV (12.4% of the adult population).’[21] In 2014 the Zambian Ministry of Health and the National AIDS Council described the HIV/AIDS situation in Zambia as a ‘generalized epidemic’, where HIV spreads ‘throughout the population as opposed to being concentrated in specific populations.’[22] According to the report, the HIV epidemic in Zambia had in 2014 ‘stabilized at high levels’ with 1.6 % of the adult population becoming newly infected with HIV each year.[23]

    [21] AVERT website, HIV & AIDS in Zambia <

    [22] Zambian Government & National AIDS Council 2014, Zambia Country Report – Monitoring the Declaration of Commitment on HIV and AIDS and the Universal Access, 31 March, p.2,    

    [23] Zambian Government & National AIDS Council 2014, Zambia Country Report – Monitoring the Declaration of Commitment on HIV and AIDS and the Universal Access, 31 March, p.2,   

11. The quality of the health care system in Zambia is generally poor by comparison with developed countries.[24] By comparison, Australia’s health system is considered to be internationally of a high quality[25] In Zambia, poverty is widespread, life expectancy is among the lowest in the world and the death rate is one of the highest largely due to the prevalence of HIV.[26] In 2014 Human Rights Watch (HRW) noted relevance of nutrition to HIV progression:

    The Joint United Nations Programme on HIV/AIDS (UNAIDS) has emphasized the importance of food security and nutrition because “lack of food and poor nutritional status may hasten progression to AIDS related illnesses and undermine adherence and response to antiretroviral therapy.”[27]

    [24] UK Foreign Office, Foreign Travel Advice: Australia , Department of Foreign Affairs and Trade, Smart Traveller: Zambia, UK Foreign Office, Foreign Travel Advice: Australia, BBC, ‘Zambia Country Profile – Overview’ 2015, 26 January 2015, Human Rights Watch, “We are Also Dying of AIDS”: Barriers to HIV Services and Treatment of Persons with Disabilities in Zambia, 2014,  p.50, >

    In its National Food and Nutritional Strategic Plan 2011-2015 the Zambian Ministry of Health reported that ‘people living with HIV or those showing clinical symptoms of the disease face increased challenges to maintain proper nutrition.’[28] According to the report, ‘despite development in medical treatment, nutrition remains a key component in managing this condition.’[29]

    [28] Zambian Government 2011, National Food and Nutrition Strategic Plan 2011-2015, p.4,

    [29] Zambian Government 2011, National Food and Nutrition Strategic Plan 2011-2015, p.4 <

12. In its 2014 country report for Zambia, Bertelsmann Stiftung reported that ‘public health care in Zambia is poor both in terms of quality and coverage as a result of under-funding.’[30] The Department of Foreign Affairs and Trade (DFAT) similarly stated that ‘the standard of medical facilities in Zambia is poor, especially in rural areas.’[31] According to DFAT, ‘medical supplies are limited and some prescription medicines may not be available.’[32]  In its travel advice, the UK Government also stated that ‘medical facilities and communications in Zambia are poor, especially in rural areas. Even drugs and clean needles may not be available.’[33] 

    [30] Bertelsmann Stiftung 2014, BTI 2014 – Zambia Country Report, p.17

    [31] Department of Foreign Affairs and Trade, Smart Traveller: Zambia, 12 March 2015, Department of Foreign Affairs and Trade 2015, Smart Traveller: Zambia, 12 March 2015, UK Foreign Office., Foreign Travel Advice: Zambia,

13. By comparison, the UK Government’s travel advice for Australia states ‘the standard of healthcare in Australia is very good.’[34]  With respect to HIV treatment, David Wilson of the National Centre in HIV Epidemiology and Clinical Research reports that ‘Australia has a relatively long history of using ARVs and has one of the highest HIV treatment rates in the world.’[35]

    [34] UK Foreign Office, Foreign Travel Advice: Australia, Wilson, D n.d., Mapping HIV Outcomes: Geographical and Clinical Forecasts of Numbers of People Living with HIV in Australia, p.9, >

    However, notwithstanding the fact that the Zambian health system is inferior to that found in Australia, and there are many problems inherent in the system, the country sources indicate that ARV treatment, including first-line HIV treatment is widely available in Zambia.

14. As discussed with the applicant, Zambia is one of the first countries in sub-Saharan Africa to achieve ‘universal access’ to ARV treatment, defined as 80 % coverage of those eligible for treatment.[36] A World Health Organisation (WHO) Report in 2017 indicated Zambia was one of the few low income countries to implement the Treat-All policy.[37]

    [36] The Global Fund, Zambia Expands Access to Treatment for HIV, 17 October 2013 WHO, ‘Treat all: policy adoption and implementation status in countries’, November 2017

The global AIDS non-governmental organisation Avert, on its website, states that 67% of adults are getting ART:

Life expectancy among people living with HIV has improved significantly as a result of scaled up treatment programmes. Among adults who have been able to access ART in Zambia, over half are now virally suppressed.

At the end of 2015, over 63% of people in need of antiretroviral treatment were receiving it. This equates to 67% of women and 56% of men..

Zambia has adopted 2013 WHO treatment guidelines that recommends anyone who tests positive for HIV should be started on treatment, regardless of their CD4 count, which indicates the level of virus in someone’s body. This is particularly important as early treatment can increase the likelihood of someone achieving viral suppression, when levels of HIV are so low the virus is effectively suppressed and so is much less likely to be transmitted. Considering the huge increase in the number of people eligible for treatment under these new guidelines, Zambia has shown commitment to increasing ART coverage. Between 2010 and 2013, 5.6 million new people were put on ART across the world, 4% of whom were in Zambia alone.

Results released by PEPFAR in 2016, suggest Zambia’s change in treatment policy has led to 59% of adults on ART achieving viral suppression. Viral suppression rates are much lower for younger people. PEPFAR found more than 63% of adults aged 25 or over living with HIV to have achieved viral suppression in 2016, compared to 34% of 15-24 year olds.

In 2014, around 85% of Zambians were still on treatment after one year. Efforts need to be stepped up to ensure people who start treatment continue to take it as interrupted or stopped treatment causes illness, drug resistance and further transmission.[38]

[38] AVERT website, HIV & AIDS in Zambia,

Other reports indicate that there are widespread treatments available.[39] A comprehensive list of antiretroviral (ARV) medications that are available in Zambia for the treatment of HIV could not be located; [40] however, reports indicate that first, second and third-line ART treatments[41] are available.[42] An article in 2015 indicated that the United Nations Development Programme had achieved significant reductions in costs for first-line treatment in Zambia:

The most recent further price reduction below US$100 per patient per year achieved by UNDP applies to the one-pill combination of three HIV medicines, known as TLE (Tenofovir, Lamivudine and Efavirenz), a regimen recommended by the World Health Organization (WHO) and most widely-used first-line antiretroviral therapy.[43]

[39] Scott et. al. 2014, ‘Retention in Care, Resource Utilization, and Costs for Adults Receiving Antiretroviral Therapy in Zambia: A Retrospective Cohort Study’, BMC Public Health, Vol.14, No.296,  Government of Zambia Ministry of Health, Adult and Adolescent Antiretroviral Therapy Protocols, 2010, p.28 & p.58, IRIN, ‘Zambia: Third-Line ARVs Available Soon’, 7 March 2011, 

[40] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), DIBP resources including CISNET, US Department of State, UNAIDS, The World Health Organization (WHO), UNICEF, NGO and human rights organisations, local news sources and major international newspapers.

[41] WHO Guidelines, Scott et. al, ‘Retention in Care, Resource Utilization, and Costs for Adults Receiving Antiretroviral Therapy in Zambia: A Retrospective Cohort Study’, BMC Public Health, 2014,Vol.14, No.296 , Government of Zambia Ministry of Health 2010, p.28 & p.58, IRIN, ‘Zambia: Third-Line ARVs Available Soon’, 7 March 2011,

[43] United Nations Development Programme, ‘Zambia benefits from First Line HIV treatment at unprecedented low price, 30 November 2015, >

A report by WHO in 2018 stated that a breakthrough pricing agreement had been announced which would accelerate the availability of an affordable, first-line, generic, single-pill HIV treatment regimen containing dolutegravir, to public sector purchasers in low and middle income countries. According to WHO, the agreement was expected to accelerate treatment rollout as part of global efforts to reach all 36.7 million people living with HIV. According to WHO, this would improve treatment and reduce costs of first-line treatment.[44]

[44] WHO, ‘New high quality antiretroviral therapy to be launched in South Africa, Kenya, and over 90 low and middle income countries at reduced price’, 26 February 2018, >

In February 2013 the Office of the UN High Commissioner for Human Rights (OHCHR) reported that people living with HIV can access free ART medicines in public institutions in Zambia.[45] According to the OHCHR, ‘there is also a memorandum of understanding between Ministry of Health and the Private Sector to provide free Anti-Retroviral drugs to patients.’[46] AVERT explains that state provision of ART began in Zambia in 2002, although few people could afford the monthly payment towards the drugs.[47] As a result, provision of free treatment by the government started in June 2004.[48] AVERT also notes that access to treatment is also provided by private employment schemes and to particular occupations. Some schemes try to make it easier for particular groups to gain access, including civil servants, teachers, university students and mothers and children (through “PMTCT Plus”). Additionally, some employers run private schemes – particularly the mining companies.[49]

[45] Office of the UN High Commissioner for Human Rights, Report on the Working Group on the Universal Periodic Review: Zambia, 26 February 2013, p.4, Office of the UN High Commissioner for Human Rights 2013, Report on the Working Group on the Universal Periodic Review: Zambia, 26 February, p.4, AVERT website, HIV & AIDS in Zambia,

[48] AVERT website, HIV & AIDS in Zambia, AVERT website, HIV & AIDS in Zambia, type="1">

In January 2017, the Lusaka Times reported that over 400,000 women in Zambia were now receiving anti-retroviral treatment:

​First lady Esther Lungu says Zambia has seen an increase of women on Antiretroviral Therapy (ART) treatment from 26 in 2002 to over 400,000 in 2016.

Mrs Lungu said this follows government’s investment in the health sector which she says has seen a reduction of the HIV prevalence rate from 19 percent in 2003 to 11.6 to date.

Highlighting the successes made in Zambia in relation to the fight against HIV and AIDS during the Organization for African First Ladies 15th ordinary session, Mrs Lungu said 700 adults and 51 children were put on Antiretroviral Therapy in 2016.

The first lady said more than three million people in Zambia have accessed HIV testing.[50]

[50] Lusaka Times,‘Over 400,000 Zambian women on ARVs’, 31 January 2017

This information was discussed with the applicant. She said that she had heard that it was difficult to access first-line drugs unless one was terminally ill, and that she would be given third-line drugs. In light of the information set out above, which indicates the availability of first-line drugs, the Tribunal provided the applicant with time to provide information on the unavailability of first-line drugs, however no information was provided as at the time of this decision.

The information before the Tribunal suggests that first-line drugs are available in Zambia and that effective treatment for people living with HIV is available, notwithstanding social and economic problems impacting on the health system. The Tribunal notes the report of the applicant’s doctor that she has had had no coexisting illness related to HIV infection, and her prognosis is excellent. Given the country information set out above, and her current prognosis, the Tribunal is not satisfied that she would be unable to access effective treatment in Zambia. The Tribunal is not satisfied therefore that there is a real chance of serious harm arising out of her inability to access treatment.

Real chance of serious harm due to stigma and discrimination towards people living with HIV

While not an issue specifically pressed by the applicant, the Tribunal has also considered whether there is a real chance of serious harm from discrimination or ostracism associated with being HIV positive.

A report in 2012 found that HIV related stigma was prevalent and ongoing in the lives of people living with HIV. People reported experiencing stigma and discrimination in a variety of settings, including places of worship, local communities, within their household, workplaces and health care facilities. About 30 to 35% of people experienced exclusion from family or religious activities, and more than half experienced gossip, insults, harassment or threats. 16.5% had been refused employment because of HIV status, and 8% reported difficulties in accessing health services.[51]

[51] Network of Zambian People Living with HIV/AIDS (NZP+),‘The People Living with HIV Stigma Index’, January 2012,>

The most recent United States Department of State Report on Human Rights Practices does not suggest that stigma and discrimination is a major issue of concern. The report indicates that while there have been entrenched negative attitudes towards people living with HIV, the government actively discouraged discrimination against persons with HIV/AIDS, and most employers adopted nondiscriminatory HIV/AIDS workplace policies. Further, there has been educational training in relation to preventing stigma:

Training of the public sector including the judiciary on the rights of persons with HIV/AIDS increased public awareness and acceptance, but societal and employment discrimination against such individuals persisted. The government made some headway in changing entrenched attitudes of discrimination against persons with HIV/AIDS. In August 2016 the country’s first openly HIV-positive person was elected to parliament.[52]

[52] United States Department of State, Country Report on Human Rights Practices for 2017, 2018, >

The Tribunal accepts that there may be some stigma and discrimination towards people living with HIV. However, the Tribunal is not satisfied, given the country information about progress in overcoming stigma and discrimination in the country, that harm caused by the stigma or discrimination would amount to serious harm. The Act provides that the following are instances of serious harm: (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. These are indicative kinds of harm only, and there may be other kinds of serious harm. However they do indicate that the legislators intended that the harm be of a serious nature. The harm which the applicant may suffer may include social ostracism, insults or some discrimination, harm which, although unpleasant does not reach the level of serious harm envisaged by the legislators.

The Tribunal is not satisfied that the harm which the applicant may suffer as a result of stigma or discrimination would amount to serious harm.

Real chance of serious harm due to poverty or unemployment

The applicant told the Tribunal that poverty and unemployment were no longer major concerns for her and that she had included these claims in her original application because she was ‘rushed’. However for the sake of completion, the Tribunal has considered whether the applicant would face a real chance of serious harm due to poverty or unemployment.

The applicant has provided little evidence to indicate why she would suffer poverty or unemployment. She is educated and has work experience. She also has family members who can support her. As referred to, she has also indicated that this is not a major concern.

There is no doubt that Zambia faces a plethora of social and economic problems. On 3 March 2015, the World Food Programme (WFP) reported that 60 % of people in Zambia live below the poverty line and 42 % are considered to be extremely poor.[53]

[53] Zambian Government, National Food and Nutrition Strategic Plan 2011-2015, p.4, >

Notwithstanding this, the Tribunal is not satisfied that there is a real chance, anything more than a remote chance of serious harm because of poverty and unemployment. The applicant is educated, has experience of moving to new places, and has family members living in Zambia.

Furthermore, as discussed with the applicant at the Tribunal hearing, there must be a well-founded fear of persecution for one of the Convention reasons. The fear of harm in relation to poverty or unemployment is not fear of harm for any of the reasons set out in the legislation, but rather harm due to economic conditions.

Real chance of serious harm due to crime/generalised violence

The applicant has expressed fear of harm from crime. The Tribunal accepts that she has a genuine fear of harm from crime, as she was sexually assaulted when young, and has had family members who have been murdered. These are seriously traumatising events which would have had significant impact on the applicant.

There is no doubt that the crime rate in Zambia is high. The United States Department of State has reported:

Carjackings, burglaries and the occasional home invasion are the most serious crimes. Violent attacks, including armed carjackings, home invasions/burglaries, and sexual assaults occur throughout Zambia (although most particularly in Lusaka).[54]

[54]United States Department of State, OSAC, ‘Zambia  2015 Crime and Safety Report, >

While the applicant has a genuine fear, the Tribunal is not satisfied that the applicant would be the victim of crime for one of the reasons set out in the Convention, race, religion, nationality, membership of a particular social group, or political opinion. Crime is by its nature, random and can be inflicted for a variety of reasons. The Tribunal is not satisfied therefore, that there is a real chance of serious harm for one of the reasons set out in the Convention. As crime is random and often opportunistic, the Tribunal is also not satisfied that the persecution would be systematic and discriminatory, as required in the legislation.

The applicant has also expressed fear of harm from generalised political violence. The United States Department of State has found that there is a low chance of political violence in Zambia.[55] The country reports referred to earlier in this decision indicate that there is some violence associated with rallies and elections, however this does not appear to be frequent or common.

[55] United States Department of State, OSAC, ‘Zambia  2015 Crime and Safety Report, >

The Tribunal is not satisfied therefore, that there is a real chance (as opposed to an insubstantial or remote chance) that the applicant would suffer serious harm as a result of generalised political violence.

Summary of findings in relation to the refugee criteria

The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the Convention reasons were she to return to Zambia in the reasonably foreseeable future.

Complementary protection criteria

As the Tribunal has found the applicant does not meet the refugee criterion in s.36(2)(a), it turns now to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk that she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in the Act.

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

As discussed above, the Tribunal is not satisfied that there is a real chance of serious harm from the government, members of the ruling party or their associates. The reasons for this are that the applicant left the country in 2006 such that is highly unlikely her attendance at meetings and rallies with her father prior to that time would be longer remembered by members of the ruling party. Further, she has stated that she had no other political involvement then or since then. The Tribunal is not satisfied therefore that the ruling party or associates of the ruling party would have any interest in her. She has claimed that the ruling party would want to harm her because of the involvement of her brother and father, however this was prior to 2013. While there is some violence at political rallies and around election time, country sources, as discussed earlier in this decision, do not indicate that low level supporters of UPND are targeted for violence or that family members of UPND supporters are targeted.

For these reasons, and in line with the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk, more than a remote or insubstantial risk of any of the kinds of significant harm from ruling party members or their associates.

The Tribunal has found above, in relation to the refugee criteria, that the applicant would be able to access effective treatment for HIV in Zambia, including first-line drugs. Given this finding, based on independent sources, the Tribunal is not satisfied that the applicant would suffer any of the forms of significant harm which may have arisen out of unavailability of effective treatment for HIV.

The Tribunal is satisfied, as discussed earlier, that the applicant may suffer some social ostracism and discrimination arising from her HIV status. The Tribunal notes the progress made in the country to overcome stigma and discrimination, as discussed earlier in this decision. The Tribunal is not satisfied that any harm the applicant may suffer, including some discrimination, ostracism or gossip, would amount to arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied that the harm would reach the level of ‘significant harm’ envisaged by the legislators, given the progress in overcoming stigma and discrimination in the country, as discussed earlier in this decision.

The Tribunal is not satisfied that there is a real risk of significant harm caused by poverty or unemployment. As discussed, the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For reasons set out earlier in this decision, the Tribunal is not satisfied that the applicant would fall into poverty, given her education and family support and the resilience she has learned through travel. Given these factors, the Tribunal is also not satisfied that there is a real risk (more than a remote risk) of significant harm in the form or poverty, were the applicant to be removed from Australia to Zambia.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. While there is a high crime rate in Zambia and sporadic political violence, these are risks faced by the population generally and not the applicant personally.

The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard

Member

ATTACHMENT A

RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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

Section 36(2)(a) 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

100. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

101.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

102. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

103.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

104.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

105.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

106.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

107.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

108. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant 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) (‘the complementary protection criterion’).

109. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

110. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

111. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

All Africa, ‘Zambia: Accessing Third-Line Art Regime’ The Times of Zambia, 10 April 2012, Africa, ‘Zambia: Accessing Third-Line Art Regime’, The Times of Zambia, 10 April 2012,

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Citations

1508989 (Refugee) [2018] AATA 2116

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

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