1510994 (Refugee)

[2018] AATA 3026

1510994 (Refugee) [2018] AATA 3026 (20 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510994

COUNTRY OF REFERENCE:                  Zambia

MEMBER:Jane Marquard

DATE:20 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 June 2018 at 9:22am

CATCHWORDS

Refugee – Protection visa – Zambia – Particular social group – Severely disabled person – Australian citizen – Complementary protection – Strong compassionate circumstances – Specialist medical needs – Significant threat to human rights or human dignity – Serious, ongoing and irreversible harm – Probable death of an Australian citizen – Definition of 'arbitrary deprivation of life' – Inadequate health care system – Social stigma of disability – Conventions of the Rights of the Child considered – Members of the same family unit – First named applicant unable to survive without family support – Strong community involvement – Credible witnesses – Referral for Ministerial intervention – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 4, 5, 5H, 5J, 5K, 5L, 5LA, 29, 36, 65, 345, 351, 391, 417, 454, 499, 501J

Migration Regulations 1994 (Cth), Schedule 2

CASES

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
MZAAJ v MIBP [2015] FCA 478
MZAAJ v MIBP [2015] FCCA 151
MZAAJ v MIBP [2015] HCATrans 238
SZTAL v MIBP (2016) 243 FCR 556

SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34

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 applicants are a family from Zambia.

2. The primary applicant, [first-named applicant], is a boy [age], who was born in Australia. The other applicants are his father (born [year]), mother (born [year]) and sister, who is [age].

3. [The first-named applicant]’s father, the second-named applicant, first arrived in Australia on a  Student [visa] [in] February 2006 with his wife and daughter.

4. The applicants applied for protection visas under s.65 of the Migration Act 1958 (the Act) on 19 January 2015.

5. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visas on 6 August 2015.

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

   CLAIMS

7. In summary, the applicants claim that the first-named [applicant] has a well-founded fear of persecution for reasons of being a severely disabled person in Zambia, and that there is a real risk of significant harm under the complementary protection criteria. The other applicants claim to be members of the same family unit as the first-named applicant.

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

   APPLICANT MUST BE A CITIZEN

9. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

10. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s.4 and s.29 of the Act). The issue in this case is whether the applicant is now an Australian citizen.

11. The first-named applicant is the primary applicant in the matter. He was born in Australia on [date], and he has been ‘ordinarily resident’ in Australia for [a prescribed period] years from his birth as he has been living in Australia. Thus, he automatically acquired Australian citizenship on [date]. This was discussed with the applicants at a hearing on 14 June 2018. They agreed that the law was ‘straight forward about this”.

12. Therefore, the Tribunal is satisfied on the evidence before it that the first-named applicant is an Australian citizen. It follows that the first-named applicant does not satisfy the requirements of s.36(2), and cannot be granted a protection visa.

13. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The second, third and fourth named applicants are members of the same family unit as the first-named applicant. The second, third and fourth named applicants do not satisfy subsections 36(2) (b) or (c) as members of the same family unit as the first-named applicant, because the first-named applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

    REFERRAL FOR MINISTERIAL CONSIDERATION

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

15. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and refers the matter to the Department.

    Strong compassionate circumstances

16. The Tribunal respectfully submits that there are very strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australia citizen and an Australian family unit. There is also a strong likelihood that the result may be death of an Australia citizen. Details are set out below.

17. [The] first-named applicant, became an Australian citizen on [date] 2018.

18. The Tribunal is satisfied on the basis of oral evidence of the applicants, detailed medical reports, and the first-hand experience of seeing [the first-named applicant] at the Tribunal premises, that [the first-named applicant] has had [Medical Condition 1] since birth, and is wheelchair bound and is unable to speak or eat on his own. The Tribunal is satisfied based on medical reports that he was born [prematurely], had a complicated neonatal course and spent 18 months in hospital. [Doctor A], [University 1], in a report dated 25 August 2011 stated that he was the treating and responsible specialist looking after [the first-named applicant]. He said that when [the first-named applicant] was born, he required substantial intensive care. His survival was the result of being in Australia, with a sophisticated health care system.

19. The report from the Paediatric Registrar at [Hospital 1] stated that [the first-named applicant] is on [medication] for [Medical Condition 2] which he has had since birth, and has severe global and developmental delay. The Tribunal accepts [Doctor B], Specialist Paediatrician’s assessment that he has [Medical Condition 1], and that he has limitations of movement in his [body]. He said that he requires feeding through apercutaneous gastroenterostomy (PEG) tube insertion. A letter from the Assistant Principal, [School 1], [State 1], dated 4 June 2015 stated that [the first-named applicant] was a student at the school, which is a specialist school for students with moderate, severe and profound learning disabilities. He had been enrolled since January 2015. He had development delay and complex needs. He has [Medical Condition 1] and [Medical Condition 2].

20. [The first-named applicant] has little control of his body and requires assistance for all day to day needs. He uses an assisted wheelchair for all mobility and is given nutrition through a stoma in his stomach (PEG device) as he has [Medical Condition 3] and [Medical Condition 4] so is unable to eat and drink by mouth. He requires glasses and has hearing aids. He has communication difficulties and attempts to communicate by making sounds and eye gaze. Due to his complex needs, he requires care by [a range of medical professionals]. He requires specialist equipment, [details deleted] and other items tailored to his needs. [State 1] Health Department Children’s Development Team therapists train school staff to plan, program and deliver safe and appropriate therapy programs. His educational program is guided by the Australian Curriculum, General Capabilities at Level 1a which is the earliest stage of learning. He requires adult assistance to access learning tasks. Their classes have three specialist staff for six students. A trained [facilitator] works with [the first-named applicant] to develop skills to control his body. The dietician from [a health service] has reported that he relies on enteral nutrition support via a PEG for 100% of his nutrition and hydration.

21. The Tribunal is satisfied, based on the medical report of [Doctor B], that [the first-named applicant]’s condition is ‘precarious’ Considering all of the above, the Tribunal is satisfied that [the first-named applicant] could not survive on his own in Australia. His parents and sister are responsible for all of his financial, practical, physical and emotional needs. For example, they feed him five times a day through his PEG device after being trained how to use it. They connect a syringe and feed him water first, and then food. They have to go to the hospital every six months and a surgeon changes the PEG, with the use of local anaesthetic. There is usually one stomach nurse who can help, or a surgeon. It has to be done within two hours. Sometimes the PEG devices come out accidentally. Within two hours [the first-named applicant] has to be taken to emergency, otherwise the hole will close. Once recently the PEG device came out, and they had to rush to hospital.

22. Furthermore, according to the speech pathologist at [State 1] Department of Health, a report in 2016, although [the first-named applicant] is non-verbal, he is communicative and uses facial expressions to show happiness, pain or discomfort. He recognises different adults and acknowledges and reaches out to them with his hands. His emotional connection to his family was evident at the Tribunal hearing.

23. If his parents and sister were to be required to return to Zambia, they would need to take [the first-named applicant] with them, notwithstanding that he is an Australian citizen. The Tribunal is of the view that these are some of the strongest compassionate circumstances that have come before it. If not recognised, the Tribunal is of the view that there would be serious, ongoing and irreversible harm to [the first-named applicant], and very probably death of an Australian citizen. The reasons for this are set out below.

24. The Tribunal is satisfied on the evidence provided that the PEG device is not available in Zambia, and medical practitioners are not trained in its use. A letter from [Dr C], Consultant, Department of Paediatrics and Neonatal Surgery, Zambian Ministry for Health, stated that there were no PEG devices in Zambia, and they would be difficult and expensive to procure. He stated that children with [the first-named applicant]’s condition can be nursed in Zambia; however, they would lead much more miserable lives and have a shorter life span compared to an environment where he is on special feeds.  [Doctor B] has also stated in his report that the Nutrison Multi Fibre is only available through hospitals in Australia, and he believes it is not available in Australia, also confirmed by [Doctor C]. [Doctor D], who has travelled to Zambia and seen what was available, has said that in Zambia his essential feeding formula and the PEG technology would be unavailable, and his respiratory medications would be difficult to access. She also claimed that he would not have immunity to local pathogens such as malaria and tuberculosis which are prevalent.

25. The Tribunal is satisfied on the evidence of the applicants and medical reports, that as the PEG device needs monitoring and, on occasions, leaks or needs to be changed, that the absence of trained personnel in Zambia could lead to adverse health consequences and even death. The applicants have said that even in Australia, nurses are interested in the PEG device as they do not see them often. So in Zambia no-one would know what to do if a PEG device came out accidentally or needed to be changed. Sometimes the PEG devices can leak and the doctors manage this, but they need to drill another hole if the device leaks too much. There can be infections around the spot and the nurses are trained to check for this.

26. The Tribunal is also satisfied after reading reports of health conditions in Zambia, and the medical reports, that in the case of an emergency, due to complications of his condition, asthma or malaria (which is prevalent in Zambia), that he would have difficulties taking the medication and this also may lead to adverse health consequences. The Tribunal notes that while there are other feeding mechanisms, such as nasogastric tubes available for patients with various conditions, the medical reports indicate that such devices are not suitable for [the first-named applicant]. A number have been attempted unsuccessfully. Doctors were unable to connect a device through his nose, as it made him bleed him constantly. Medical practitioners have tried to feed him by mouth but it has not worked because he cannot co-ordinate swallowing.

27. For all these reasons, and given [the first-named applicant]’s ‘precarious’ condition, the Tribunal is satisfied that without the availability of his feeding mechanism and support personnel for it, there is a real chance that he would become seriously ill and possibly die. This proposition is supported by [Doctor B]’s report.  [Doctor A] of [University 1], has said that [the first-named applicant]’s survival was ‘the result of being in Australia, with a sophisticated health care system’. The report of [Doctor D] states that he may never be able to swallow.  The Tribunal accepts [Doctor B]’s conclusions that without the feeding mechanism and specialised nutritional support, his ‘precarious condition would deteriorate’. The Tribunal accepts the evidence of [the first-named applicant]’s parents that Zambian ‘nurses or doctors know about the PEG through theory or overseas study but none have the practical experience of using this in Zambian hospitals. [The first-named applicant]’s PEG requires help with growths, emergency replacement, unblocking etc which are non-existent in the Zambian hospitals’. This means that even if the family were able to source a PEG device they would not be able to access the required medical assistance to clean and replace it and deal with emergencies. In Australia he is treated by specialist doctors and nurses and it is unlikely they would be available in Zambia. Further, [Doctor D] has referred to the need for multidisciplinary treatment. While aspects of this kind of treatment, for example, physiotherapy, may be available, it is unlikely that the medical system would be able to meet the first-named applicant’s many and complex needs in totality. As mentioned by [Doctor D], he would also be susceptible to malaria and he has asthma, which could exacerbate his condition and treatment needs if contracted.

28. It thus appears highly unlikely that [the first-named applicant]’s very specialised requirements for survival would be able to be met in Zambia. Clearly, Zambia is a country which ranks poorly on the Human Development Index and faces a number of problems common to developing countries. Most recently, Zambia ranked 139 on the Human Development Index, ranking poorly on most indicators of growth and development. Australia, by comparison, ranked second.[1]

    [1] United Nations Development Program, Human Development Reports,

29. A World Health Organisation Report from 2008 to 2013 stated that 60% of the population live in rural areas and 64% live in poverty. It stated that:

    over the last 5 years the bulk supply of essential drugs and other medical supplies were erratic with more than 50% of essential drugs being out of stock. Shortages and inappropriate clinical use of drugs still remain a problem in Zambia.[2]

    [2] World Health Organisation, WHO Country Co-operation Strategy, 2008 t0 2013,

30. According to the non-governmental organisation, IntraHealth, nearly one in six Zambian adults are living with HIV, and every year, more Zambian health workers emigrate to other countries in search of higher salaries and better working conditions. The website states:

    This combination of emigration and growing health care needs leaves the Zambian health system grossly understaffed. Currently, there are only eight nurses and one doctor for every 10,000 Zambians, fewer than half the minimum recommended by the World Health Organization.[3]

    [3] IntraHealth website,

31. UNICEF states that 64% of the population live on less than $5 a day and that Zambia’s health care system faces shortages of drugs, equipment and qualified personnel. It reports that malaria is the leading killer of children.[4] Life expectancy in Zambia was 61.8 years in 2015 compared to 82.8 years in Australia.[5]

    [4] UNICEF website, World Life expectancy website,

32. The Commonwealth Health site summarises the health system (as at 2011) as follows:

    Zambia’s public spending on health was 3.7 per cent of GDP in 2011, equivalent to US$87 per capita. In the most recent survey, conducted between 1997 and 2011, there were seven doctors and 78 nurses and midwives per 100,000 people.
    Additionally, in the period 2007-12, 47 per cent of births were attended by qualified health staff and in 2012, 83 per cent of one year olds were immunised with one dose of measles. In 2010, 64 per cent of people were using an improved drinking water source and 42 per cent had access to adequate sanitation facilities. The most recent survey, conducted in the period 2000-11, reports that Zambia has 13 pharmaceutical personnel per 100,000 people.

    Zambia’s five main referral hospitals are the Arthur Davison Children’s Hospital (Ndola), Chainama Hills College Hospital (Lusaka), Kitwe Central, Ndola Central and the University Teaching Hospital (Lusaka). There are provincial and district hospitals and health centres throughout the country. Health providers other than the government include faith organisations and health care companies. There are four main manufacturers of pharmaceutical products, all based in Lusaka. Products include tablets, painkillers, syrups and some antibiotics. About 85-90 per cent of pharmaceuticals are imported.[6]

    [6] Commonwealth Health Online, Health System in Zambia, >

    A report published in 2013 refers to the fact that many of the key determinants for health care are outside the direct scope of the health sector, such as poor access to safe water and sanitation, malnutrition, and lack of education. According to the report, the mission statement of the Zambian Ministry of Health is: ‘to provide equitable access to cost effective, quality health services as close to the family as possible’. The report concludes that this is an ambitious goal as ‘the significant service disparities between rural and urban areas, cultural and religious beliefs, poor physical infrastructure, and limited resources all hamper the provision of equitable health services and create challenges for policymakers and planners’. Problems include disparities between rural and urban areas, ingrained cultural beliefs and poor infrastructure. According to the report, the Zambian health service suffers from a critical shortage of equipment and, owing to budget constraints and lack of experienced maintenance staff, much of the equipment currently in use is poorly maintained.  The shortage of drugs and medical supplies is another challenge. The report states that in 2009, 30% of facilities reported stock-outs of drugs, and that supplies are adversely affected by staff shortages and poor logistics. It states that supplies are adversely affected by staff shortages, poor logistics and limited availability of ‘cold chain’ equipment; vaccine potency, for example, is significantly reduced by poor storage. The drugs and medical supplies budget is estimated to be underfunded annually by 40%. The report indicates that this figure would be significantly higher if support provided by bilateral, multilateral and global health initiatives were to end, as the majority of the delivery trucks and around 60% of the stock received by Medical Stores Limited is provided by donors.[7]

    [7] ACCA, Key Health Challenges for Zambia, April 2013, - accessed 3 November 2017

1. The Ministry for Health in a survey on its health system in 2013/14 confirmed that it was prioritising primary health care programs for common illnesses, based on analysis of diseases and conditions that cause the highest burden of morbidity and mortality. It summarised its priorities as follows:

   The high disease burden in Zambia is compounded by the high prevalence of HIV, high poverty levels, and the poor macroeconomic situation. The government of the Republic of Zambia is committed to improving the quality of life for all Zambians, and this commitment is demonstrated through the government’s efforts to improve health care delivery by reforming the health sector. In 1991, the government launched radical health policy reforms characterised by a move from a strongly centralised health system in which the central structures provided support and national guidance to the peripheral structures. An important component of health policy reform is the restructured primary health care programme. The government is committed to providing efficient and cost-effective quality basic health care services for common illnesses as close to the family as possible through implementation of the Basic Health Care Package (BHCP) at all levels of care. Currently, the following priority health service areas have been identified for inclusion in the BHCP: nutrition; environmental health; control and management of communicable diseases; malaria; tuberculosis (TB); epidemic and disaster prevention, preparedness, and response; school health; and oral health. The elements of the BHCP are selected on the basis of an epidemiological analysis of diseases and conditions that cause the highest burden of morbidity and mortality. Population-based and health facility-based surveys are regularly and consistently conducted to guide policy and planning.

   The Ministry of Health (MoH) has embarked on the 2011-2015 National Health Strategic Plan(NHSP), aimed at reducing the disease burden and accelerating the attainment of the Millennium Development Goals and other national priorities. The plan represents a major departure from past strategic plans. While it is recognised that all health care interventions are important and should continue to receive the necessary levels of support, prioritisation of interventions is of critical importance as the resources and capabilities available are significantly constrained. The NHSP places emphasis on addressing human resource crises; improving the state of the health care infrastructure; fostering multisectoral responses in key areas such as nutrition, HIV/AIDS, control of epidemics, and health education; and increasing access to basic environmental health facilities such as water and sanitation, electricity, and telecommunication.[8]

   [8] Ministry for Health, Zambia, Zambia, Demographic and Health Survey, 2013 to 2014.

2. The above information indicates that, reflective of the economy generally, the health system is significantly underfunded and suffers from a lack of resources, medical practitioners and drugs. Government policies understandably focus on the most common illnesses based on surveys and analysis. Thus, more sophisticated medical technology, and technology which is only required for a few patients, is less likely to be available as government and policy decision makers make difficult decisions about where to allocate resources. Patients with disability are not prioritised, (as discussed in more detail below). Specialised care for difficult patients with rare drugs is less likely to be available because of lack of funding.

3. Considering this information cumulatively, and the medical reports about [the first-named applicant]’s status, there is a strong likelihood that [the first-named applicant] would at the least, undergo severe pain and suffering if he returned to Zambia, and at the worst, would not be able to survive. The Tribunal refers this to the Minister based on the unique and exceptional compassionate circumstances of the matter.

   A person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their human rights or human dignity if they return to their country of origin;

4. [The first-named applicant] is in a wheelchair and cannot speak or eat normally. He communicates by making noises, as observed at the Tribunal hearing. Thus his disability is very visible and obvious. The country information indicates that stigma and discrimination is prevalent in Zambia.  Further, the information indicates that disabled people in Zambia have some difficulties accessing health care, due to underlying stigma and discrimination in the community and from health care providers, and because of government inaction in disability law and policy.

5. In a report in 2014, Human Rights Watch commented that figures on disability are inaccurate because of social attitudes towards disabled people. This report states that because of fear and shame, and traditional beliefs that disability arises from misfortune in a family caused by witchcraft, many disabled people remain hidden in their homes. In the report Human Rights Watch also commented on discrimination against disabled people in relation to access to treatment for HIV:

   Nearly 2 million people in Zambia face significant barriers to HIV prevention, testing and treatment because of pervasive social stigma and discrimination. Zambia has ratified a number of international and regional human rights treaties including the Convention on the Rights of Persons with Disabilities.. which obligates governments to provide people with disabilities with the same range, quality and standard of free or affordable health care as programs for others…disability is often considered as a curse or punishment caused by evil spirits or as a result of witchcraft, for example in response to the actions of a family member.... Taboos regarding their sexuality result in a lack of respect for the sexual and reproductive rights of persons with disabilities. Individuals with different disabilities told Human Rights Watch that they are often viewed as being asexual and are confronted with negative attitudes about their right to marry and have children. As a result, persons with disabilities sometimes do not have access to HIV prevention, testing, or treatment services. All persons living with HIV experience stigma and discrimination.[9]

   [9] Human Rights Watch, People with disabilities left behind in HIV response, 15 July 2014  – accessed 4 November 2017.

6. The report provided numerous examples of beliefs that people with disabilities were bewitched and should be feared. In the HIV context, they could not get access to treatment because they could not attend treatment centres. The report indicated that stigmatising environments and attitudes within health centres also create barriers for persons with disabilities and their caregivers in accessing health information, testing and treatment.[10]

   [10] Ibid.

7. The United Nations Special Rapporteur on the Rights of Persons with Disabilities, in a report on Zambia in 2016, commented positively on some developments in Zambia, including the inclusion of disability as a ground for discrimination in the Constitution. However the Rapporteur was ‘deeply’ concerned at the lack of implementation of legislative and policy commitments:

   Zambia has ratified the Convention on the rights of persons with disabilities (CRPD) in 2010 and almost all other international human rights treaties. .. Zambia is also overdue to present its first and second reports to the Committee on the Rights of Persons with Disabilities. I encourage the authorities to submit a combined report to the CRPD as soon as possible and to ratify these three international protocols.

   In relation to the national normative framework, the new amended Constitution adopted in January this year introduced some positive changes that contribute to strengthening the protection system for the rights of persons with disabilities. These include for instance the mention of disability as a ground of discrimination, and the fortification of the powers of the National Human Rights Commission and the Electoral Commission of Zambia.

   Importantly, the additional constitutional amendments that will be subjected to referendum in August present an important opportunity to broaden the protection of human rights in Zambia... Despite these positive developments, I am deeply concerned about some of the remaining constitutional dispositions that are discriminatory towards persons with disabilities, as I will illustrate further on.

   Overall I have found that Zambia has a wide range of well-formulated and well-intended policies and strategies to realise the rights of persons with disabilities. I commend the adoption, in recent years, of the Persons with Disabilities Act, the National Policy on Disability, the National Implementation Plan on Disability, as well other inclusive policies, such as those on Social Protection, on Free Basic Education or on Youth… Notwithstanding the enactment of the policy and legal frameworks on disability, the main challenges that should be tackled as a matter of priority are the implementation and enforcement of these provisions…

   In relation to effective access to health services, I acknowledge that the Persons with Disabilities Act provides for free general and specialized medical care, including rehabilitation and assistive devices, for persons with disabilities. Nevertheless, I was informed of the limited availability of specialized equipment, services and personnel across the country. Ensuring access to quality health services for persons with disabilities in remote and rural areas should be made a priority.[11]

   [11] OCHCR, End of Mission Statement by the United Nations Special Rapporteur on the Rights of Persons with Disabilities, 28 April 2016, >

   The Special Rapporteur also had this to stay about stigma and discrimination:

   Traditional and cultural beliefs play a significant role in the way disability is perceived in the Zambian society. I have received multiple allegations of children and adults with disabilities being hidden away from society by their family members, or of mothers who give birth to children with disabilities being abandoned or divorced by their husbands, due to misconceptions and stigma attached to disability. Myths and beliefs about disability also have serious repercussions on the right to life and the physical integrity of persons with albinism who live in constant fear of being attacked and killed for their body parts, or of women and girls with disabilities who are at heightened risk of sexual and gender-based violence due to beliefs that having sex with them could cure a person of HIV/AIDS.

   To tackle these issues, there is an urgent need for wide-scale awareness raising programmes aimed at portraying a positive image of persons with disabilities and explaining the benefits to be gained by their identification and registration, with families of persons with disabilities, communities and other relevant actors. Traditional chiefs play a key role to change perceptions about persons with disabilities and remove stigma associated to them.[12] 

   [12] OCHCR, End of Mission Statement by the United Nations Special Rapporteur on the Rights of Persons with Disabilities, 28 April 2016, >

   Lack of appropriate legislation, and omission to collect appropriate data about disabled people, has led to difficulties of access to services, including medical care for disabled people in Zambia. The United States Department of State Report on Human Rights Practices has stated that while there are anti-discrimination laws in place, there are no laws which prohibit discrimination against persons with disabilities in particular. According to this report, there is a lack of data about people with disabilities, and this has been a major impediment to inclusion in government policies, and thus disabled people are more vulnerable than other people to lack of access to health care:

   The law prohibits discrimination in general, but no law specifically prohibits discrimination against persons with physical, sensory, intellectual, or mental disabilities in employment, education, air travel and other transportation, access to health care, and the provision of other government services.

   The 2012 Persons with Disabilities Act mandates the Ministry of Gender and Child Development to oversee the government’s implementation of policies that address general and specific needs of persons with disabilities in education, health care, access to physical infrastructure, and electoral participation. The Zambia Agency for Persons with Disabilities oversaw the act’s implementation.

   An umbrella organization, the Zambia Federation of Disability Organizations, whose primary role was advocacy and raising awareness, led the disability rights movement. According to the 2014 Human Rights Watch (HRW) report Barriers to HIV Services and Treatment for Persons with Disabilities in Zambia, there was a lack of data on persons with disabilities--including how many adults and children were living with disabilities--and information on their specific housing, education, and health-care needs. The lack of consolidated data was a major impediment to the inclusion of persons with disabilities in government programming and policy. According to HRW limited understanding of how many persons in the country lived with disabilities suggested they were more vulnerable to contracting HIV/AIDS and were more likely to lack access to health care. According to the report, persons with disabilities had limited access to education and correspondingly low literacy levels. While the government did not restrict persons with physical or mental disabilities from voting or otherwise participating in most civic affairs, it prohibited those with mental disabilities from holding public office. Persons with disabilities also faced significant societal discrimination in employment and education.

   The Ministries of General Education and of Community Development have responsibility for ensuring the welfare of persons with disabilities. By law the government must provide reasonable accommodation for all persons with disabilities seeking education and provide that “any physical facility at any public educational institution is accessible.” Public buildings, schools, and hospitals rarely had facilities to accommodate such persons, however. Five schools were designated for children with disabilities. Some children with physical disabilities attended mainstream schools.[13]

   [13] United States Department of State, Country Report on Human Rights Practices for 2016, 2017,

8. An American woman who worked in a Christian ministry in Zambia stated that:

   parents blame each other for the child with disabilities, Dad leaves, Mom and baby with disability now have no income and no chance for income, because Mom has to stay home with the baby. Add to that the cultural belief that a child with a disability is cursed (and I do mean true, witchcraft cursing), it will take a monumental effort to change cultural biases and beliefs.[14]

   [14] Christianity Today, Disability is different in Africa, 11 December 2014.

9. A report in 2014 found that the stigma associated with disability can include perceptions that a person with a disability or their close family earned that condition as a curse for committing sin or doing something taboo in the culture.[15]

   [15] Africa Child Policy Forum, 2014, p.2.

10. In 2015 another study examined people with disability and HIV, and found that health care providers as well as the community stigmatised people with disabilities, with negative impact on access to health care. The study found that:

    Participants recounted that for PWD/HIV+, stigma was enacted in a variety of settings, including the queue for health services, their interactions with healthcare providers, and within their communities. Stigmatizing accounts told about PWD/HIV+ were described as having important consequences. Not only did participants recount stories of internalized stigma (with its damaging effects on self-perception), but also that negative experiences resulted in some PWD preferring to “die quietly at home” rather than being subjected to the stigmatizing gaze of others when attempting to access life-preserving ART….

    Participants from … the groups offered numerous examples of stigma experienced during clinical encounters while seeking care and treatment for HIV. The negative experiences offered by participants were seen as directly contributing to negative health outcomes ...

    Many participants spoke about how they were seen as ‘other’ and ‘less than human’ by health care providers, both during testing for HIV and when seeking treatment ...

    The image of people with disabilities preferring “to die quietly at home” rather than be subjected to the negative attitudes of health care providers is powerful. Here stigma is enacted in a space of care and with devastating consequences. The link between stigma and mortality and access to care acts as an urgent call upon the listener.

    At the practice level, stigmatization has implications for access to healthcare services, quality of life and, ultimately, survival. While people with disabilities directly experience stigma, the consequences go beyond these individuals into wider society.[16]

    [16] PLOS, Parsons, Bond and Nixon, Are we not human, stories of stigma, disability and HIV from Lusaka, Zambia and their implications for access to health services, 3 June 2015,

11. An article in Africa Confidential in 2007 referred to a boy with [Medical Condition 1] who was locked up when visitors arrived due to stigma.[17]

    [17] Africa Confidential, 2007,

12. A report by GlobalGiving states that:

    In addition to physical challenges, there remains in Zambia considerable stigma attached to this condition due to ignorance about the causes of this condition. There are still people who believe that it is caused by witchcraft or a malevolent spirit which inhabits the child’s body. The mothers are often blamed for ignoring traditional practices, thereby allowing their children to be born malformed.[18]

    [18] GlobalGiving, Disabled Children’s Project, March 2013. >

    These reports indicate that there is some progress in relation to disability rights in Zambia. The Constitution adopted in January 2016 introduced some positive changes including disability as a ground of discrimination. In recent years, Zambia has enacted the Persons with Disabilities Act, the National Policy on Disability and the National Implementation Plan on Disability. There are also some organisations assisting disabled people in Zambia, including [a Zambian disabilities alliance] which provides some training for physiotherapists.[19]

    [19] [Source deleted]

13. However, according to the United Nations Special Rapporteur on the Rights of Persons with Disabilities, there has been a lack of implementation of the new and ‘well-intentioned policies’.[20] Taking this into account, as well as all the reports set out above, in particular the United States Department of State and Human Rights Watch reports, the Tribunal is satisfied that there is a lack of government commitment to collecting data about disabled people and their needs, in order to legislate or create policies for them, or to implement existing laws. This reluctance may emerge from deep stigma in the society towards disabled people, as indicated in the report from Human Rights Watch which indicates that failure to collect data has led to lack of access to health care.

    [20] OCHCR, End of Mission Statement by the United Nations Special Rapporteur on the Rights of Persons with Disabilities, 28 April 2016.

1. [The first-named applicant] is, in the words of his father, ‘on the other end of the scale’, where his disability is very visible and his care needs are extensive. He will thus be very vulnerable to negative social attitudes where these exist, from the community and health providers. Given the reports on problems with access to health care for disabled people, the Tribunal is satisfied that lack of appropriate monitoring, legislation and policy is underpinned by stigma towards disabled people. This in turn has led to disabled people being ‘more likely to lack access to health care’[21], as well as inability to access other services, and ongoing stigma.

   [21] United States Department of State, Country Report on Human Rights Practices for 2016, 2017,

2. On the basis of these reports the Tribunal is satisfied that because of [the first-named applicant]’s particular, extreme and very visible disabilities, there is a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to his country of origin.

   The person is excluded from the grant of a protection visa and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will be suffer significant harm as provided in section 36(2A) of the Migration Act 1958.

3. In this case, [the first-named applicant]’s family would be excluded from the grant of a protection visa as [the first-named applicant], the primary applicant, became a citizen on [date]. However he would be unable to survive in Australia without the support of his family.

4. The Tribunal is satisfied that the circumstances of this family engage Australia’s non-refoulment obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the family being removed from Australia to Zambia, [the first-named applicant] would suffer significant harm.

5. As set out above, there is evidence that people with disability in Zambia may not be able to access health care because of stigma and discrimination, as well as underfunding issues. The Tribunal is satisfied that there is a real risk to the applicant of arbitrary deprivation of life resulting from a lack of state commitment to providing health care for disabled people, as well as underfunding in health care generally.

6. In regards to the definition of ‘arbitrary deprivation of life’, while there is no restriction as to who must inflict the harm or for what reason, judicial comments in MZAAJ v MIBP, have indicated that this kind of harm concerns state actions.[22] In MZAAJ v MIBP, the applicant claimed that the Tribunal failed to consider that the applicant might face arbitrary deprivation of life because of the prospect that he might die as a result of his inability to access dialysis in Sri Lanka. The Court held that the Tribunal, which had considered the claim against the definitions of cruel/inhuman/degrading treatment or punishment, had implicitly found that this did not fall within the concept of arbitrary deprivation of life, and was correct in so concluding. Judge Riley said in obiter dicta comments that, in regards to lack of availability of dialysis machines in Sri Lanka, ‘the concept of arbitrary deprivation of life concerns such things as extrajudicial killing and the excessive use of police force. It does not concern the consequences of scarce medical resources in developing countries’.[23] Clearly, the word ‘deprived’ imports an element of deliberateness, rather than death caused by absence of resources to keep a person alive.

   [22] MZAAJ v MIBP [2015] FCCA 151 (Judge Riley) 4 February 2015, at [40]-[41] (upheld on appeal): MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015); special leave application dismissed: MZAAJ v MIBP [2015] HCATrans 238, (Gordon J, 15 September 2015).

   [23] Ibid.

7. The Tribunal notes that in relation to other types of significant harm, such as cruel and inhuman treatment or punishment, there must be intention to cause the harm. In SZTAL v MIBP, a majority of the High Court rejected the contention that knowledge or foresight of a result establishes the necessary intention element of the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.[24] While evidence of foresight of the risk of pain, suffering or humiliation may support an inference of intention (and in some cases may render the inference compelling), foresight of a result is of evidential significance only:[25]

   [24] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) per Kiefel CJ, Nettle, Gordon and Edelman JJ (Gageler J dissenting).

   [25] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [27], [29] and [99]-[100].

8. The requirement for actual subjective intent is not applicable to ‘arbitrary deprivation of life’. Clearly the legislators did not propose that ‘arbitrary deprivation of life’ would need to be ‘intended’, as the provisions do not include the requirement of intent as do the other provisions. Although an element of deliberateness can be imparted into the words ‘arbitrarily deprive’, the Tribunal notes that the element of deliberateness suggested by the wording in relation to ‘arbitrary deprivation’ does not equate with intention in the same sense as in the other types of harm, where there must be actual subjective harm.[26] The Tribunal has therefore interpreted ‘arbitrary deprivation of life’ based on the ordinary meaning of the words, while also being guided by legislative intention as expressed in the Explanatory Memorandum and Second Reading Speeches to the relevant bills, and international jurisdiction.

   [26] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.

9. ‘Arbitrary deprivation’ is not defined by the Act, such that the words ‘arbitrarily deprived’ are to be given their ordinary meaning. [27]‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’[28] and in the Macquarie Dictionary includes ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.[29]

   [27] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6].

   [28] English Oxford Living Dictionary, Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997)

10. ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[30] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[31]

    [30] English Oxford Living Dictionary, Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997).

11. The Tribunal has considered carefully whether there would be ‘arbitrary deprivation of life’ through consideration of the ordinary meaning of the words, in the sense  that [the first-named applicant] would be prevented, dispossessed, kept from, or divested, randomly, capriciously or unreasonably from access to health care. This has been considered in the context of withholding of health care due to lack of resources due to poverty, and withholding of health care due to state decisions about where health care should be allocated.

12. The Tribunal is satisfied that the deprivation of health care would amount to ‘arbitrary deprivation of life’ in that, in accordance with the dictionary definitions referred to earlier, there is a real risk of random, capricious, unreasonable, discretionary, uncontrolled use of power, which would ‘prevent’ or ‘keep’ health care from the applicant. The Tribunal notes that in the case of MZAAJ v MIBP [2015] FCA 478, Judge Riley, in obiter, stated that arbitrary deprivation of life did not concern the consequences of scarce medical resources. However, in that case, the issue was underfunding, not lack of access to medical resources as a reflection of government policy or stigma within health care providers and the community.

13. Such an interpretation of the complementary protection provisions accords with government intention in relation to the provisions. As noted in the Explanatory Memorandum to the 2009[32] and 2011[33] Bills and both Second Reading Speeches,[34] the complementary protection regime in Australia was introduced to reflect Australia’s international obligations under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the 1966 International Covenant on Civil and Political Rights (Covenant) and the 1989 Convention on the Rights of the Child (CROC).

    [32] Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill, 2009 (Cth).

    [33] Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill, 2011 (Cth).

    [34] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 9 September 2009, 8989.

14. In the Second Reading Speech of the 2009 Bill, the Honourable Laurie Ferguson MP noted that:

    The United Nations Committee against Torture recommended that Australia adopt a system of complementary protection ... in addition the United Nations Human Rights Committee recommended ... that Australia should take urgent and adequate measures, including legislative measures to ensure that nobody is returned to a country where there are substantial grounds to believe that they are at risk of being arbitrarily deprived of their life or being tortured or subject to other cruel, inhuman or degrading treatment or punishment.[35]

    [35] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 9 September 2009, 8989.

15. The definitional provisions in section 5(1) of the Act adopt similar, and at times identical, language to other treaty provisions. Mason CJ and Deane J stated in Minister of State for Immigration and Ethnic Affairs v Teoh:

    If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia then that construction should prevail.[36]

    [36] Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

16. The Second Reading Speeches and Explanatory Memoranda to the 2009 and 2011 Bills refer to Articles 2, 6 and 7 of the Covenant, Articles 1 and 3 of CAT, Article 1 of the Second Optional Protocol to the Covenant, Articles 6 and 37 of CROC, indicating that the complementary provisions have drawn heavily on these international treaties, and the language is very similar. Thus in construing the complementary protection provisions, the Tribunal has been informed by decisions in international jurisdictions.

17. The meaning of articles in the international treaties can be taken from the views of the UN Human Rights Committee and the Committee on the Rights of the Child. The interpretations of these committees are found in their General Comments on treaty provisions, Concluding Observations on country reports and views on individual cases, considered by the Human Rights Committee pursuant to the Optional Protocol. The decisions of these Committees are not binding on states; however, they have strong influence and represent the views of experts. Further, in Europe, the European Court of Human Rights has developed extensive jurisprudence and their determinations are binding on states.

18. The ‘arbitrary deprivation of life’ provision in Australia is based on Article 6 of the Covenant, which states that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life’. It is paralleled in Article 2 of the European Convention of Human Rights.

19. Obligations of the State under the Covenant to protect people from ‘arbitrary deprivation of life’ mean that a state must itself refrain from killing people, and also that it must exercise due diligence in preventing people from being killed by other actors.[37] The provision requires that States adopt positive measures ‘to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’.[38] The European Court of Human Rights has confirmed that a ‘public authority may be in breach of the right to life if it has undertaken to provide a particular form of treatment generally and has limited treatment on an arbitrary or discriminatory basis, putting an individual’s life at risk.[39]

    [37] UN Doc A/61/311, ‘Extrajudicial, summary or arbitrary executions: note by the Security General’, 5 September 2006

    [38] UN Human Rights Committee, ‘General Comment No 6: The right to life (Art 6)’, 30 April 1982.

    [39] Nitecki v Poland, European Court of Human Rights, Application no 65653/01, 21 March 2002;  Pentiacova v Moldova, European Court of Human Rights, Application No 14462/03, 4 January 2005d

20. The UN Human Rights Committee has acknowledged that Article 6 has a socio-economic component.[40] Discussion by commentators has indicated that ‘arbitrarily’ in this context is intended to reflect more than intentional killings.[41] An analysis of the views of the Committee has suggested that right to life must be actual or imminent, not a hypothetical risk.[42] The Human Rights Committee has confirmed that protection of the right to life requires that states adopt positive measures[43] and that it should not be interpreted narrowly.[44] The Committee has viewed issues such as homelessness[45], infant mortality[46] and life expectancy[47] as falling within its scope. There have been a number of decisions which have recognised positive obligations on health authorities to adopt appropriate measures for protecting lives in European Convention on Human Rights decisions. This may include in limited circumstances funding minimum levels of health services or medication, and accounting for resource allocation[48] Where life-saving treatment is denied, ‘they (states) must explain the priorities that have led them to decline to fund the treatment’.[49]

    [40] UN Human Rights Committee, ‘General Comment No 6: The right to life (Art 6)’, 30 April 1982.

    [41] Nowak, M, UN Covenant on Civil and Political Rights: CCPR Commentary, 2^nd ed, NP Engel, 2005, p.127/8.

    [42] Asia Pacific Forum of National Human Rights Institutions, Human Rights and the Environment: Final Report and Recommendations (2007).

    [43] Human Rights Committee, ‘General Comment no 6’ (1982) para 5.

    [44] Ibid, para 1.

    [45] Concluding Observations of the Human Rights Committee: Canada, 1999, para 12.

    [46] Concluding Observations of the Human Rights Committee: Ireland, 2000, para 27.

    [47] Concluding Observations of the Human Rights Committee: Democratic People’s Republic of Korea, para 12.

    [48] Ericksson v Italy (Application No 37900/97, 26 Oct 1999); Netecki v Poland (Application No 65653/01), ECHR, 21 March 2002; Scialacqua v Italy (1998) 26 EHRR 164d.

    [49] R v Cambridge Health Authority ex parte B (1995).

21. CROC, Article 6, states that parties shall recognise that every child has the inherent right to life and that state parties shall ensure to the maximum extent possible the survival and development of the child. The Committee on the Rights of the Child has stated the need to implement this holistically, ‘through the enforcement of all the other provisions of the Convention, including rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment’.[50] In Re MQF, the Immigration and Refugee Board of Canada found that a nine year old child had protection needs on the basis of risk to life. His biological family was unknown and he would be at risk of becoming a street child who would be homeless and prey to prostitution.[51]

    [50] Committee on the Rights of the Child, ‘General Comment no 7 (2005): Implementing Child Rights in Early Childhood’, UN Doc CRC/C/GC/7/Rev.1 (20 September 2006).

    [51] Re MQF [2004] RPDD No. 87.

22. The Tribunal notes the formulation of the complementary provisions is not in exactly the same form as the provisions in the international treaties. However, taking into account the Australian legislative intentions to ensure that through the complementary provisions Australia would comply with its international treaty obligations, and analysing how international jurisdictions have interpreted parallel provisions, it is clear that there may be arbitrary deprivation of life where there is arbitrary state action or inaction in relation to decisions on health. In the very extreme case that is the subject of this decision, the Tribunal is satisfied that because of lack of monitoring, enforcement of legislation and appropriate legislation and policies in Zambia in relation to disabled people, underpinned by stigma, as well as lack of resources, there is a real risk that the applicant would be arbitrarily deprived of life, due to lack of access to the kind of health care which would allow him to live.  This could include both access to the PEG device, as well as its maintenance, emergency treatment, treatment for disease and asthma, and ongoing holistic care necessary for his survival.

23. The Tribunal if of the view that these circumstances engage Australia’s non-refoulment obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Zambia, [the first-named applicant] would suffer significant harm in the form of arbitrary deprivation of life.

    Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child, 1989

24. The following articles of the Convention on the Rights of the Child, 1989 may be relevant to [the first-named applicant]’s case: Articles 3, 5, 6, 9, 23, 24, 27 and 37.

    Circumstances which may bring Australia’s obligations under the International Covenant on Civil and Political Rights 1980 into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

25. The following articles of the International Covenant on Civil and Political Rights, 1980 may be relevant: Articles 6, 7, 17, 23, and 24.

    Character and the level and nature of the applicants’ integration into the Australian community and the length of time they have been in Australia

26. The Tribunal found the applicants to be honest and credible witnesses who reported on their son’s (and brother’s) condition in a straightforward manner and without any signs of embellishment. Their evidence about their respect for Zambia, notwithstanding its problems, reinforced the credibility of their key claim that the reason they fear returning is the serious medical condition of their child and the unavailability of treatment, rather than any other agenda. Their evidence was supported by expert evidence from a number of doctors and medical professionals. It was clear from observing them that they are an intelligent, educated, and loving family, who are very caring and supportive of [the first-named applicant].

27. The applicants have been in Australia for ten years and are integrated into Australian life. They have many friends and are extensively involved in church, school, volunteer and community activities. They are looking forward to supporting Australia in the football World Cup. They say that their daughter, [the fourth named applicant] is the most Australian of all, having lived in Australia for ten years and that she has an Australian accent, knows a ‘great deal’ about Australia, and is very much an ‘Aussie’ in her thinking.

1. [The second named applicant] qualified with a Bachelor [degree] in Zambia and arrived in Australia in February 2006 to undertake a Masters at [University 1]. After taking up residence at [Student Residential Village 1], an undergraduate and postgraduate residential village for students at [University 1], [the second named applicant] was appointed convenor of the [Student Residential Village 1] Chapel following the departure of the college chapel chaplain. His duties involved coordinating chapel services and leading the inter-denominational chapel services for students on campus. He liaised with and organised visiting speakers to the chapel from the Uniting Church, the Baptist Church, the Presbyterian Church, the Anglican Church and the Methodist Church. During his time at [Student Residential Village 1], [the second named applicant] also worked as a college tutor which involved supporting both undergraduate and postgraduate students with academic work and their wellbeing.

2. [The second named applicant] also played [a sport] for [Student Residential Village 1] in the inter-residential hall tournaments at [University 1].

3. The applicants attended [Church 1] in [State 2] [under] the leadership of [a pastor]. During their time with this church, [the second named applicant] and [the third named applicant] served as deacons in the leadership of the church.

4. Upon moving to [State 1], [the second named applicant] has continued his Christian fellowship by attending [Church 2] . [The second named applicant] has served as an usher, welcoming people to church, and also cleaning the church to keep it tidy.

5. [The second named applicant] is a skilled [professional]. [Work history details deleted] . 

6. [Second named applicant] is a full member of [professional organisations].

7. The [third-named applicant], works for [a] community based non-governmental organisation as a [occupation]. [Work details deleted]. She has also been working at [another company] as a [occupation]. She volunteers in [another Not for Profit] [organising community programs].

8. [Third named applicant] is also a member of [School 1] Council, serving as school council secretary, a position she has held for the past two and a half years. The council represents the families and school community to improve the quality of education for the children in the school as well as the general wellbeing and health of all school community members, including teaching and support staff. They are also a voice at the [school's council] in [State 1]. To this end she has participated in [the council] to put forth motions to improve Special Education schools in [State 1]. She has participated in school reviews conducted by [the State 1] Government on behalf of the [School 1] community and recently in NDIS as it relates to funding of the after-school care program which is run by the school council. She has and continues to attend training of school council membership in financial management and industrial relations offered by [State 1] Department of Education among others. She is also an active participant in [a special] programme for parents with disabled children at [School 1]. Together they interact socially to encourage families affected by disability.

9. [The third named applicant] is a [skilled professional] [and] is qualified with a Bachelor [degree]. She holds a membership of [a professional group]. [Sentence deleted].

10. [The fourth named applicant] has been an active participant in [an academic program] at [School 2] in [State 2] in [certain grades] as well as in [other activities]. She has been an active participant of [activities] at [School 2] from [grade] to [grade] and at [School 3]  in [State 1]. She participated in debating at [School 3] [State 2] in 2016 and at [School 4] where she is currently enrolled in her [grade] in 2018. She would like to study [academic discipline deleted].

11. She has been commended for very high scores in [NAPLAN tests]. [At] Church she has participated in the Church Choir by contributing in the worship-leading at [Church 2] [as] well as the Youth Group.

12. [The fourth named applicant] has been a member of [sports] clubs in [State 2]. [The fourth named applicant], [the first-named applicant] and [the third named applicant] attend [community activities] [every] Saturday morning where they interact with many other people for these relaxing and fun [classes]. She has many friends at school and in the community.

    CONCLUDING PARAGRAPHS

13. For the reasons given above the Tribunal is not satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations and therefore he does not satisfy the criterion set out in s.36 for a protection visa.

14. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36 (2) (a) or (AA). However, the Tribunal is satisfied that the parents and sister of the applicant are members of the same family unit as the first named applicant. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will not be entitled to a protection visa. As [the first-named applicant] does not meet the criteria, the second, third and fourth named applicants cannot meet the criteria as members of the same family unit as [the first-named applicant].

    DECISION

    The Tribunal affirms the decision not to grant the applicants protection visas.

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

15. 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, 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.

16. 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 because the person is a refugee.

17. 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: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H (1) (b).

18. Under s.5J (1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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-LA, which are extracted in the attachment to this decision.

19. 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 the 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 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’). 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), which are extracted in the attachment to this decision.

    Mandatory considerations

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …