1611861 (Refugee) - [2020] AATA 5604

1611861 (Refugee) [2020] AATA 5604 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611861
COUNTRY OF REFERENCE:                   Zambia
MEMBER:Simone Burford
DATE:22 December 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 December 2020 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Zambia – fear of harm from ex-husband and respective families – particular social group – single, divorced woman in Zambia – former bigamist – credibility concerns – delay in seeking protection and migration history – providing false information regarding marital status – delay in notifying the Department of change in relationship status – country information – situation of single women in Zambia and employment prospects – bigamy laws in Zambia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 36, 65, 423A, 424, 424AA, 438, 440
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Zambia, applied for the visa on

22 December 2014. The delegate refused to grant the visa on the basis that that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 August 2016. She provided a copy of the delegate’s decision to the Tribunal.
The applicant attended an initial hearing before the Tribunal on 19 December 2019. Further hearing of the application was delayed by the closing of the Tribunal Registry due to the COVID-19 Pandemic. The applicant attended further hearings on 19 August 2020 and 1 September 2020 following the recommencement of in person hearings at the Tribunal.
At the initial hearing the Tribunal outlined for the applicant the issues it was considering and confirmed that the applicant did not have any changes to make to her claims for protection. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to her personal circumstances since the application was filed. The applicant’s claims for protection and the evidence on which she was seeking to rely in support of her calims were discussed at the second and third hearings.
The applicant was not represented in relation to the application for the visa or the review. The applicant indicated she did not require the assistance of an interpreter and the Tribunal was satisfied she was able to participate fully in the hearings without an interpreter present. In this regard the Tribunal notes that English is the official language of Zambia.[1]
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The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional material was received following the second hearing and just prior to the third hearing. This material was discussed at the third hearing.
ISSUES
The issue in the review is whether the first applicant has a well-founded fear of persecution due to the breakdown of her marriage in Zambia, as a single or divorced women in Zambia, for breaching bigamy laws in Zambia or for any other reason, or whether complementary protection provisions otherwise apply.
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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons 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 of such a person. The relevant law is included in Attachment A.
For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.
DECISION MAKING FRAMEWORK
Criteria for a protection visa
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.
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.
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 themselves of the protection of that country: s.5H(1)(a) of the Act. 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).
Under s.5J(1) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
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.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2]
[2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[3] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]
[3] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]
[7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[8] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]-[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[9]
[9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular [8], [13], [17]–[19] and [27]–[28].
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[10]
[10] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In this case DFAT has not produced a Country Information Report for Zambia.
CLAIMS AND EVIDENCE
Applicant identity and country of reference
The applicant travelled to Australia on a Zambian passport and claims to be a Zambian national. A copy of the applicant’s Zambian passport issued [in] 2009 was provided to the Tribunal. The applicant confirmed at the hearing that she was a citizen of Zambia. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
On this basis, and given the delegate had no concerns about her claimed nationality, the Tribunal accepts the applicant is a national of Zambia and has assessed her protection claims accordingly. The Tribunal finds that the applicant is a citizen of Zambia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.
The applicant’s migration history
The Tribunal discussed the applicant’s migration history, as outlined in the delegate’s decision, with the applicant at the hearings. According to the delegate’s decision, the applicant’s migration history is as follows:
·The applicant was granted a student visa on 24 July 2009 with her then husband ([Mr A]) and daughter ([named]) as dependent applicants.
·The applicant arrived in Australia on her student visa [in] July 2009 without her husband and daughter.
·The applicant departed Australia [in] June 2010 and returned [in] July 2010. The applicant testified she travelled to [Country 1] on missionary work during this trip.
·The applicant departed Australia [in] July 2011 and returned [in] June 2011. She claimed she travelled to [Country 2] on missionary work at this time.
·On 4 July 2012 the applicant’s student visa was cancelled as she failed to maintain enrolment in studies.
·On 30 July 2012 the applicant was granted a Bridging visa to facilitate her voluntary departure for Australia. She was granted a further Bridging visa.
·The applicant lodged an application for a partner visa on 17 August 2012 claiming to be married to an Australian citizen ([Mr B]). She was granted a temporary partner visa on 3 July 2013.
·The applicant departed Australia [in] March 2014, returning [in] April 2014. She testified that she returned to Zambia at this time.
·On 4 July 2014 the applicant was invited by the Department to comment on information that she was still married overseas at the time she had married [Mr B]. She withdrew her partner visa application on 16 July 2014 stating that she and [Mr B] were no longer living together.
·The applicant applied for a student visa on 8 August 2014[11] with her daughter as a dependent applicant. The visa was refused as the applicant did not hold a substantive visa at the time of application.
·The applicant lodged an application for a protection visa on 22 December 2014 and was issued an associated Bridging visa.
[11] The delegate’s decision recorded this date as ‘8 August 2015’; however, the applicant agreed at the hearing that this was an error and it should read ‘2014’.
The applicant confirmed at the hearing that she was she was unlawful for the period from 16 July 2014 to 8 August 2014.
The applicant confirmed that this migration history was accurate. She said that she had been unable to commence studies due to a number of issues she suffered in Australia including attempted break-in, a car accident and other incidents. She had studied [Course 1] at [Institution 1].
Background
The applicant is a [age]-year-old citizen of Zambia. He indicated that she was a Christian and that she identified as ethnically African.
At the hearings the applicant provided evidence about her background and family composition. The applicant testified that she was born and raised in Kitwe, Zambia. She was living in Kitwe prior to coming to Australia. She is one of [number] siblings. One sibling is deceased and her father passed away several years ago. Her mother is alive and living in Kitwe with [some] of her siblings and several of her nieces and nephews. A number of her siblings are married and a number have children. Several siblings live in Kitwe, one lives in the same province and another lives in Endola.
She finished high school in Zambia but did not do further study because her family could not afford it. She said she worked in a [Workplace 1] and in the [Workplace 2] for about a year. Prior to coming to Australia she was volunteering at an organisation working with [specified people].
The applicant indicated that in Australia she had worked as [an Occupation 1], had completed a certificate in [Discipline 1] and had worked for [Employer 1], and also had worked for a while as [an Occupation 2]. She stopped working in August 2014 as she has no work rights and receives some financial support from the church where she volunteers. She volunteers for community services including the [Church 1]’s op shop and [other ministries].
She was living with her parents in Kitwe for a few weeks prior to coming to Australia. Prior to that she had been living in Kitwe with [Mr A] and her daughter. Her daughter is currently living with her ex-husband in Kitwe. Her mother and her siblings have contact with her daughter. She said that last year they saw her almost every week but this year they’ve seen her maybe twice. She is around [age] or [age] years old and in [grade] at school. She said she hasn’t spoken to her daughter in a long time and she generally spoke to her when she was at her mother’s house, but has not had any other contact with her while she is living with her ex-husband.

She said she and her husband married in [year] and her daughter was born in [month]. She said it was a traditional marriage but it was registered, and when she was divorced it went to court. She said a bride price was paid but she did not know how much. She also said that when she obtained the divorce her husband consented or agreed to it. She said there were no assets in the marriage and she has not had any contact with her husband since the divorce. He sent her the divorce document when it was granted. She said that the family had had contact with her husband and were now organising care for her daughter. She indicated that it had been easier for her family to see her daughter when she had been attending school, but she didn’t think that she was at the moment. She said her husband had remarried and had a new wife with two new children, and that the new wife was mistreating her daughter. She said her daughter told her sister this and her sister had noticed that her daughter’s attitude and demeanour had changed and that she was not ‘her usual lively self’. The Tribunal asked the if she had raised this with her ex-husband and she said she had not.
Protection claims
The applicant filed her application for a protection visa on 22 December 2014.
At the first hearing, the Tribunal put to the applicant a summary of the claims contained in the application as detailed in the delegate’s decision (detailed below) and taken from her application for protection. The applicant’s claims for protection were as follows:
Why did you leave your country?
I left Zambia to allow myself to escape an abusive relationship and hostile environment in order to enable self to start a life for myself in which I could support myself independently pay educating myself and acquiring skills to enable me to make it in life. I suffered physical, mental, verbal abuse in my previous relationship. I also did not receive support from family or community.

Because my immediate family is poor leaving the abusive relationship was difficult in that it meant if I did I would have to live out on the streets.

Religions & cultural beliefs held widely in communities including my own family members were also a great contribution to the extent of abuse I differed and the lack of support to come out of it.
Have you experienced harm in that country?
The harm experience in the country was a direct result of an abusive marital relationship I was involved in and other hardships that made much difficult to escape.

The harm experienced was physical - although not on a regular basis.

Psychological due to the constant verbal abuse plus the lack of support from the community or families members who pressured me to stay.

The countries state offers no solutions or support and if I had chosen to leave my previous partner the onus would have been on me to support myself.

Since leaving the country and due to my stand to leave my previous partner. I have been accused of putting a curse on my family and that I cause my own sister's death and my mother’s ongoing illness.

In a recent development my father suffered a sudden health attack in his body and still accusations were forwarded towards me for putting a curse on the family due to my decisions.
What do you fear may happen to you if you go back to that country?
I am likely to face irreparable harm of continuing hardship being subjected to inhumane & degrading treatment.

I have fought through so many things in my life.

The amount of stress I have undergone even while trying to make hit here in Australia is evidence of how fearful it is for me to go back.

I have been left financially handicapped with the unfolding of events in the recent past months making it difficult for me to start all over if I could.

My psychological state has been greatly affected.

I have no way of survival if I got back.
Did you seek help within the country (a) after the harm?
In a society with high levels of poverty and cultural beliefs widely practiced which discriminate the poor and women, going back would put my in a difficult situation facing homelessness and hardship, humiliation and shame.

I have been ostracized by my own family following adamant decisions I have made to separate myself from abuse and other violating experience to restart a life and work towards making something of myself.

I have been accused through messages, some of them have been seen by other people who supported me while here that I have put a curse on the family and I have caused death in certain cases.
Why do you think this will happen to you if you go back?
I have been ostracized by my family as earlier stated and accused of allowing a curse to fall on the family causing death and illness.

The reality is my fears are worsened due to the fact that it is very embarrassing thing to talk about.

Chances of me working towards a life for myself has been lost because I am financially and psychologically incapacitated at the moment.

My long stay away from Zambia makes it even harder for me to start all over again and with no support I can't see any chances.

During my 5 year stay in Australia I have supported myself without any outside help.

I have worked hard through studies and employment and that in itself shows just how desperate my situation is and how desperate it is for me to leave.
Do you think the authorities of that country (s) can and will protect you if you go back?
Zambia is a nation with high levels of poverty and widely practiced are beliefs and traditions which discriminate against the poor and women. A single isolated case like mine would not be noticed or taken into consideration. There are no known welfare agencies to assist me.
At the first hearing the applicant said this was a fair and accurate summary of her claims at the time. She said that initially it was hard on her family that she was going to get out of a relationship, and she did get text messages from her family because they didn’t understand why she was leaving the relationship at the time. She confirmed that she did not have any additional claims for protection or any changes to make to the information she provided in her protection visa application other than the fact she hadn’t seen her daughter a in a long time and that looking at her mother and other relatives there had been a cycle of being in relationships that were unhealthy, and she didn’t want that to happen to her daughter. She said she wanted her not to have to rely on people getting stuck in relationships which are unhealthy.
The delegate’s decision noted that the applicant attended an interview on 4 July 2016 where she provided the following information:
·     The applicant claimed she will face financial hardship upon her return as life is different in Zambia.
·     The applicant claimed she will not necessarily be ostracized by her family as previously stated.
·     She stated that she does not have 'bad energy' with her ex-husband and that he will not target her upon her returned.
·     She claimed she will not face serious harm upon her return but will face financial hardship.
·     The applicant also stated that she applied for her partner visa as she thought "things were nice and lovely and she thought she could start life with him differently and that would at least help her finish her studies without interruption”.
At the first hearing the applicant indicated this was ‘more like it’ but she stated that she considered it was significant harm that she faced because she doesn’t really have ‘a foot to stand on’. She said her situation at home was bad and she constantly received messages about a lack of resources. She said that although she didn’t have a lot of evidence she would suffer harm in Zambia and it might not seem like a big case, she had tried hard to establish herself here as evidenced by her work and personal references.
This information was put to the applicant again at the second hearing. She confirmed again that she had no additional claims for protection.
In a ‘Personal statement’ submitted to the Department in support the application for the visa the applicant stated:
In support of the claims that lam a person in respect of whom Australia has protection obligations otherwise I would suffer significant economic hardship that will threaten my capacity to subsist.
I completed secondary school in [Year 1] with good scores to qualify me for university selection for the year [Year 2] I was selected at [University 1] in the school of [Discipline 2] with a partial bursary and [University 2] in the School of [Discipline 3]. This
The easiest option would have been at the time the [Discipline 2] course because of the partial bursary that was been offered as well as the convenience of having the campus location in my hometown. I was unable to commence in either because at the time my family could not afford it as most finances were going towards and my two youngest siblings who were still in school and my elder brother and sister who were both in the middle of their tertiary studies.
To help contribute mostly towards my late youngest sister's school needs, I took up a small business on and off selling [products] in the town market where I had to walk long distances to get to and from whenever I was short of public transport fare.
Sometime after, I found a job at a nearby [Workplace 2] and this is where I met my former partner [Mr A] who shortly after begun to help out towards my affairs. We got married in [year] and had our daughter and during this time I helped my parents and in small ways with basic needs.
This was from the beginning a difficult marriage exhibiting physical, emotional and psychological abuse and mainly why I decided that we go our separate ways. This decision caused a lot of conflict between me and my family and directed a lot of superstitions allegations towards me.
My motivation to stick with the decision to separate from [Mr A] was derived from a hope I have for my daughter; to set a new standard for her, one exempt from lack, abuse and a generational pattern of abject poverty.
I do love my family and because so much has worked against us in the past they continue to hold onto superstitions which just hinder progress in so many areas.
While I have been here I in Australia I have worked hard, contributed and also volunteered with various charities and organisations.
I have been interrupted with my studies in [Discipline 4] which was my hope for a liberated life.
I hope this country can give me a chance.
Certificates and adverse information
The Departmental file included information which was the subject of a certificate and notification issued under s.438 of the Act on 6 July 2016. The initial certificate issued covered two folios on the Department file [Number 1] (folios 132-133). This file reference was not the reference to the protection application file, a copy of which was before the Tribunal. The Tribunal formed the view that the original certificate on the file was not valid and, in any event, identified the reason for the issuing of the certificate as being the disclosure of internal working documents and business affairs from the Department. The Tribunal formed the view that this did not constitute a reason that disclosure would be contrary to public interest. Further, it misdescribed the file number (and therefore the folios) it purported to cover. The Tribunal wrote to the Department prior to the second hearing asking that the certificate be reconsidered.
In response, the Department purported to revoke the original certificate. The revocation dated 12 August 2020 referred to folios 133–134 of file [Number 2] (the protection visa application file) and indicated that the certificate could be considered inoperative. The Tribunal has some doubt that the revocation of the original certificate was effective as it referred to a different file to that of the original certificate. In any event, the Tribunal did not regard the original certificate to be valid.
Copies of the original certificate and the revocation were provided to the applicant at the second hearing. The Tribunal explained the certificates and its concern about whether the revocation was operative. However, the Tribunal explained that it regarded the earlier certificate as invalid in any event and was proposing to release the document with redactions to remove the personal information of any third parties for privacy reasons. The Tribunal invited the applicant to make submissions on the validity of the certificate or the release of the documents, noting however that absent submissions it was proposing to release the documents. The applicant indicated she did not have any submissions to make.
The Department issued a new notification, dated 12 August 2020, with respect to one of the folio’s (133) of [Number 2] (one of the folios purportedly covered by the original certificate). This correctly identified the protection visa application file before the Tribunal. The notice identified that the information in the folio had been given to an officer of the Department in-confidence and that the Department considers that:
this document, matter contained in the document or information should not be disclosed to the applicant or the applicant’s representative because it contains a ‘dob in’ email provided by a member of the Australian community in confidence. The email contains personal identifiers and information in the body of the email that identifies the sender.
The Tribunal provided a copy of this notification to the applicant. The Tribunal explained the provisions of s.438(1)(b) of the Act and that it had formed the preliminary view that the new notification was valid. The Tribunal explained that the Act gave the Tribunal a discretion to release documents covered by a notification and that it was proposing to release a redacted version of the document with the personal information of third parties removed in such a way that protected the identity of the source. The Tribunal indicated that it considered it would be reasonable to do so in the circumstances, considering the nature of the information and the public interest in the applicant being able to consider and address the information in the document.
The Tribunal invited the applicant to make submissions on the validity of the notification or the release of the documents, noting however that absent submissions it was proposing to release the document. The Tribunal also explained that if it did find the notification to be valid and decided to release the information it was required to issue a direction that the information not be divulged to persons outside the proceedings.
The Tribunal gave a copy of folio 132 to the applicant with slight redactions to remove the personal information of the sources of the information. The Tribunal also gave the applicant a copy of folio 129 which was not covered by the certificates or notifications but did not appear to have been previously put to the applicant.
The Tribunal adjourned the hearing briefly to give the applicant an opportunity to consider whether she wished to make submissions. Following the adjournment the applicant indicated she did not have any submissions to make.
With respect to the confidential information the Tribunal notes that s.438(1)(b) contemplates that documents or information may also be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. Whether a document is impressed with the necessary quality of confidence required for s.438(1)(b) is a matter for the Tribunal to decide on its merits.[12]
[12] SZTYV v MIBP [2018] FCA 1076 at [42]. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382.
For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or Departmental officer by an external source or third party with the expectation that the material would be treated as confidential and wouldn’t be disclosed, and that the information not be public or common knowledge.[13] In exercising its discretion to release the material to the applicant or another person, the Tribunal may consider whether the consequences of its release may have a detrimental effect on an individual.[14]
[13] See SZTYV v MIBP [2018] FCA 1076 at [42].
[14] Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41.
With regard to the other material notified as having been provided in confidence, the Tribunal considered that information provided or communicated to the Department possessed the necessary quality of confidentiality contemplated by the Act. However, having regard to the important public interest in the applicant being able to answer any matters which may be relevant to the determination of her application and considering the capacity to redact the document to remove personal identifiers to provide some protection regarding the source of the information, the Tribunal decided to exercise its discretion to release the information.
Accordingly, the Tribunal released a redacted version of folio 133 to the applicant. The Tribunal also made an order under s.440(1) of the Act that the evidence and information given to the Tribunal in folio 133 of file [Number 2] (as identified on the document) must not be published or otherwise disclosed by the Applicant except to members and staff of the Tribunal and the applicant’s registered migration agent or legal adviser, should she engage one. In making the order, the Tribunal was satisfied that it was in the public interest that this material not be published or otherwise disclosed because it was provided in confidence and its publication or disclosure would unreasonably reveal the identity of the informer. The Tribunal noted that the information was the subject of a certificate issued under s438(1)(b) of the Act and its disclosure by the Tribunal is subject to s.438(3) and (4) of the Act.
The Tribunal provided a copy of the direction to the applicant and explained the effect of the direction to her. The Tribunal indicated that it would discuss the documents and the applicant’s response to them at the next hearing to give her an opportunity to consider the information.
The information provided to the applicant included an email from her Australian ex-husband and sponsor for the partner visa in May 2014 informing the Department that his relationship with the applicant had broken down and they were living separately and apart.
The other information included an email from April 2014 from a third party that the applicant was married in Zambia, but the informant understood she had applied for a partner visa on the basis of another marriage in Australia. An email also from April 2014 from the applicant’s husband in Zambia informed the Department that he and the applicant were married when she married [Mr B in] August 2012, a month before her student visa expired. The email notes that he has seen the forms the applicant submitted for her partner visa and that they contain false and misleading information. The email also notes that:
Or Marriage Act in Zambia does not condone bigamy and this is a criminal offense which apart from letting you aware, I will also report to our police wing in Zambia to commence an investigation.
The information contained in the material and the applicant’s responses to it are discussed further below.
Evidence
The applicant submitted a number of documents in support of her application to both the Department and the Tribunal. Relevant to the issues before the Tribunal, the applicant submitted the following documents to the Department:
·a Personal Statement from the applicant;
·Statement of Attainment printed 11 June 2016 and a Record of Results printed 11 June 2016 from [Institution 2];
·a set of photographs headed ‘March 2014 holiday trip back home’;
·a set of photographs headed ‘[Country 2] Mission Trip 2011’;
·a set of photographs headed ‘[Country 1] Mission Trip 2010’;
·a document titled ‘Compelling reasons leading towards the cancellation of my student visa’;
·an offer of admission to the Bachelor [degree] program from [University 3] dated 2 May 2012;
·a letter of support from [Mr C], Social Worker Member AASW, dated 13 August 2012;
·a letter of support from [Mr D], [health services provider], Psychologist, dated 10 August 2012;
·a document titled ‘a BRIEF Account of my Family’;
·copies of text messages with hand annotations purporting to be between the applicant and her mother from August 2014, September 2014, March 2015 and November (year not indicated), and the applicant and her sisters from September 2014 and October 2014;
·copies of an email from the applicant’s sister dated ‘9/15/15’;
·divorce documents for the applicant and [Mr A] filed with the High Court for Zambia from July 2014;
·an undated letter of support from [Ms E];
·various academic awards, statements of attainment and certificates from [Institution 1 and various other institutions and organisations].

Additional identity documents and documents relating to the applicant’s financial circumstances in Australia were also submitted to the Department.
Before the Tribunal, in addition to a copy of the delegate’s decision, the applicant submitted the following documents:
·an undated letter of support from [Paster F] from [Church 1];
·a letter of support from [Dr G], President, [community organisation] dated 14 November 2019;
·various photographs headed ‘Community Involvement’;
·written submissions from the applicant dated 26 August 2020 attaching a highlighted copy of the document titled ‘Compelling reasons leading towards the cancellation of my student visa’ which was submitted to the Department, which the submissions indicate was prepared on 14 August 2012, and a highlighted version of the undated letter of support from [Ms E];
·a letter of support from [Ms H] dated 25 August 2020;
·an undated letter of support from [Mr I];
·copies of email correspondence between the applicant and [Mr A] from various dates between November 2010 and December 2012.
At the first hearing the Tribunal explained to the applicant that the relatively poorer economic circumstances in Zambia would be unlikely to give rise to a cognisable, well-founded fear of harm, for the purposes of the refugee criteria, in the absence of other considerations. The Tribunal also explained that at the next hearing it would discuss some of the findings in the delegate’s decision, country information and any concerns it had about the applicant’s claims.
At the second hearing the Tribunal asked why the applicant had travelled to Australia. She said she was coming from an abusive relationship and she wanted a start afresh. She said she saw there was an opportunity and it was the only chance she would have to get educated. The Tribunal queried why, if she was getting away from an abusive relationship, she applied for her husband to obtain a visa to come to Australia with her and her daughter and she said it was complicated and he knew the people doing the visas and he paid for the applicant’s as well. She said he didn’t come initially because he was working in Zambia and it was going to be more expensive for them if he came. The Tribunal asked why her daughter didn’t come, and the applicant said that her husband started to threaten that she wouldn’t come. She said this was around two years later when she was thinking her daughter could come on a visitor’s visa to visit for a while. She said the second time was in 2012 when she was with her Australian husband and she wanted her to come to visit.
The Tribunal asked when she and her husband separated and she said she was with her parents for a bit, but they separated while she was in Australia. She said they started talking about divorce in 2010. She said they came from different religions and this was another issue for them. She said she went to the Catholic Church and he was a member of the Jehovah’s Witnesses.
The Tribunal discussed further with the applicant the reasons she feared returning to Zambia. She said that the reason she left was to get some sort of establishment and study and find work that could support her and her daughter. The Tribunal queried why it was not possible for her to do those things in Zambia, and she said she had been able to study and work here supporting herself but it is not possible to study and work in Zambia.
The Tribunal asked who it was the applicant feared may harm her on return to Zambia and she said ‘no, I don’t think anyone will harm me’. The Tribunal asked if she feared her ex-husband and she said ‘no’. The Tribunal asked if she feared anyone from her family and she said ‘not really now’.
The Tribunal explained again that the relative economic circumstances in one country as opposed to another would not, absent other considerations, give rise to a claim for protection. The Tribunal explained that the economic circumstances in Zambia might be said to impact all Zambians and it was difficult to see how those circumstances would be directed or motivated to cause her harm. The Tribunal asked what it was about her personal circumstances which might give rise to a risk of persecution on her return to Zambia.
The applicant said she had spent most of her years here and there was not much she could go back with to start a new life. She wanted to go back in a state where she could support her daughter and right now she had nothing. She said going back would mean living with her mum and her mum needs all the support she can get at the moment. She said her mother could hardly move and was always struggling financially.
The Tribunal explained that it understood living with her mother or returning to Zambia might not be her preferred option and that it involved changed. The Tribunal indicated the fact she had been able to come to Australia and establish herself might suggest that it was something she was capable of. The Tribunal explained it was trying to understand how it was she said she met the criteria for protection which it had outlined earlier.
The Tribunal explained that it needed to understand her circumstances and the claims she was making for protection in order to decide if she met the criteria for the visa. The Tribunal determined that it should adjourn the hearing to a later date to allow the applicant an opportunity to consider what she wanted to say about her claims and to give her an opportunity on another occasion to explain her circumstances fully to the Tribunal.
Prior to the hearing adjourning the Tribunal put to the applicant adverse information pursuant to s.424AA of the Act. The Tribunal indicated that would not ask the applicant to respond to the information until the next hearing, so she would have an opportunity to consider her responses.
Mindful of its obligations under s.424 of the Act, the Tribunal put to the applicant at the hearing information which it considered would be the reason or part of the reason for affirming the decision to refuse to grant the applicant a protection visa. The particulars of the information were that in the applicant’s student visa application in 2009 the applicant stated that she was married to [Mr A] and had a daughter with him, however, in her partner visa application in 2013 she submitted that she was married to [Mr B]. That application made no mention of having been previously married or that she was still married to [Mr A]. The Tribunal explained that the information was relevant because the fact that the applicant had given false information to the Department in the context of a prior visa application may cause a concern regarding her credibility. The fact the applicant had previously provided false information may cause the Tribunal to have concerns about the truthfulness of her evidence and to consider that her claims lack credibility. It may also cause the Tribunal not to accept that she had a well-founded fear of persecution if she returned to Zambia, or that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Zambia. If the Tribunal accepts this information it would be the reason or part of the reason for affirming the decision under review.
The applicant responded to the information at the third hearing.
In response to the information the applicant indicated that it had been a long process of trying to get the divorce and [Mr A] was making it difficult. She was trying to get him out of the picture. She thought if the application went through and her daughter was with her it wouldn’t be hard for him to be close to his daughter and she was hoping not to sabotage chances of him and her daughter being close.
The Tribunal put to the applicant that in the context of a partner visa application she would understand that questions were asked about current or prior relationships for a range of reasons, including that there are requirements for that visa that the parties have a mutual commitment to a shared life to the exclusion of all others, and when incorrect or incomplete information is provided regarding those matters which are central to the criteria for that visa, that might raise a concern that you provided deliberately false information in order to improve your chances of getting a visa. She said she knew she would get the divorce eventually but she was aware he would make it difficult, so it was important she go to Zambia and deal with the issue by herself. She said she didn’t know how to go about it.
The Tribunal asked whether she declared when she got married in Australia that she was not married elsewhere, and she said that she thought she did. She said that her (then) husband in Australia knew about it before they got married. She said they started going out in June 2012 (she said she thought he said March in his statement) and got married sometime in November that year. She said they split up close to a year after that. She said she moved out when she started working for [Employer 1]. The Tribunal asked how long before or after she was granted the 820 Partner visa this was and she said it was ‘maybe two months before that’.
The Tribunal enquired whether she meant March/April 2013 (she was granted the 820 Partner visa in July 2013) and she said it was before she went to Zambia, two to three months before she went to Zambia. The Tribunal queried whether she meant in early 2014 and she said she thought that was when they separated. The Tribunal asked why she separated from her Australian husband and she explained that she had discovered he had been with other women he met through a dating site while she was working nightshift.
The Tribunal asked when she had notified the Department that they were no longer together and she said it was after she returned from Zambia. The Tribunal queried why she had not told the Department earlier and she said that her ex-husband (Australian) said ‘keep it as it is’. She said she thought he felt guilty because of what he did. The Tribunal asked whether she understood it was her obligation to notify the Department of changes to her circumstances which impacted her visa application (in this case her applications for a Permanent (801) Partner visa). She said that she understood.
Following the second hearing the applicant submitted additional documents, including the email correspondence with [Mr A]. This included a letter from the applicant dated 27 August 2020 that stated as follows:
I have reason to believe that my ex-husband [Mr A] and his family have intentions of harming me in some way.
I also believe that our daughter [name omitted] is been abused by her step mother.
She has not been allowed to see my family, goes without meals and is at the brink of depression.
Please find enclosed copies of correspondence via email between [Mr A] and I from December 2010 to November 2012.
This will reveal the kind of a person [Mr A] is and will confirm that he has had ill intentions for a long time and has used our daughter to try and manipulate, frustrate, hurt and gaslight me.
It will also confirm the following;
•That he was unfaithful during the marriage
•He was abusive and violated my privacy by hacking my mail
•He learnt of my intentions to divorce him as early as December 2010
•He resisted my divorce proposal but later agreed to it only to deliberately prolong and/or obstruct the process.
•He had many opportunities to travel to Australia from August 2009 but always came up with excuses not to.
•He has constantly humiliated me by exposing personal matters to others just so he can maintain a victim stance.
•He has used his Australian friends while I've been here to spy on me
My approach from our separation to now has been one of protecting his image/reputation and at all cost trying to avoid sabotaging chances of our daughter not growing up without him, but this has not been reciprocated from him and his family.
A recent review of past events and incidents has brought on a deeper concern and fear that [Mr A] would go to extreme lengths to try and harm me.
I will refer to a past written statement which I prepared on 14 August 2012, (also enclosed), "Compelling Reasons under Schedule 3— for grant of substantive visa -"Highlighted section.
I have recently begun to suspect that [Mr A] might have orchestrated the four highlighted incidents listed on that document.
It was during this period that I had asked him to send some documents though to me via post and I strongly feel that upon acquiring information of my residential address and with the help of his contacts here in Australia, he incited assault towards me in order to intimidate and frustrate hoping it would make me to want to go back home.
I remember at the time feeling that I was been watched and that I purposefully targeted. During this period I had also clearly stated my intentions of obtaining a divorce as the email communication will show.
My mother would constantly call and send messages telling me to go back, my sister's ([Ms J]), would also call and text hurtful messages of insults and accusations, which I showed my friend [Ms E] at the time. ([Ms E]'s written statement enclosed, please see highlighted section).
At some point the catholic priest at the local church where my mother attended was made to call me to persuade me against may divorce intentions, he further went to say I would bring a curse on the family because what I was trying to do was sin and that the western world had corrupted me.
With all of this, I was even more determined to stay here.
Because our communication included other medium like phones and text messages some gaps might be found in the copies of the emails but there is enough to shade the light.
I do wish to bring up one other incident in which I suspect foul play during the hearing.
Included with the letter was the email exchange with her husband, the letter from [Ms E] marked 22 December 2012, the letter from [Ms H] dated 25 August 2020, the undated letter from [Mr I] and that applicant’s statement prepared in support of her student visa.
At the third hearing the Tribunal discussed this material with the applicant and asked if the applicant could say what harm she feared on return to Zambia. The applicant had submitted email exchanges between her and her then husband from November 2012 and December 2012 and one email exchange involving a pastor. It is clear from the email exchanges that there were issues in the marriage and that the applicant and her husband were at odds over the path forward. The correspondence makes accusations of infidelity by the applicant and suggests her husband was told about this by friends in Australia. The exchange indicates that the parties disagreed over arrangements for [Mr A] and their daughter to move to Australia. In one email the applicant accuses [Mr A] of accessing her email account, though it is unclear what the impetus for the accusation was. While the email exchanges are consistent with a relationship which is breaking down, the Tribunal was unable to find anything amounting to threats of harm against the applicant contained in the emails and at a general level they appeared consistent with the sort of private exchanges couples in marriage breakdown might reasonably be expected to engage in.
She said that having reviewed the material she had since sent in to the Tribunal, she realised she had ‘repressed things’. She said she didn’t really remember certain events and reading through the emails she started to recall how everything had transpired in the last few years and how her ex-husband had deliberately tried to intimidate her or hurt her. The Tribunal noted that it understood she had been through a marriage breakdown and in those circumstances it was not unusual for the parties to the relationship to feel hurt and that there might be a range of reasons why one or both sides feel hurt, upset or embarrassed and those feelings may be exacerbated where there are children or other complications which make those circumstances more difficult. However, the Tribunal noted that a marriage breakdown would not generally give rise to a claim for protection absent some other circumstances. The Tribunal asked what it was the applicant felt her particular circumstances were and what she feared might happen to her if she returned.
She said she feared he might target her in some way. She said she feared her family had been targeted in some way. The Tribunal asked in what way she felt her family had been targeted and she said her dad was very talkative when he was out drinking and he would say things out of pride and to some it might seem boastful. She said before he died he was out drinking with a friend who was a close friend of [Mr A]’s father, and when he went home he was vomiting and he passed the following morning. She said the autopsy report said it was food poisoning and her mum insinuated in phone calls someone had caused it. She said she hated to entertain that thought and she couldn’t say for sure. The Tribunal understood this to be the other incident of foul play referred to in her letter.
She said [Mr A]’s family were a bit strange and she didn’t know if they were angry, but she thought they didn’t understand how she was still in Australia. She said her father was careless about the way he spoke. She said none of their family went to the funeral and a few months later they went and asked for dowry money. She said her father died in November 2016. She said she didn’t understand why they didn’t ask earlier but she sent her mum some birthday money and her mum didn’t say clearly, but she thought she said that they might give them some of the money for dowry money.
The Tribunal asked whether anyone had reported the suspected food poisoning to the police and she said she didn’t think her family would. She said there was no evidence of the food poisoning and she hoped it wasn’t food poisoning. The Tribunal noted that a reasonable person might have some concerns about the accusation that someone had been poisoned where the circumstances have been ruled a food poisoning, but that was never raised with police and she said it there was no evidence and she hoped the it wasn’t the case.
The Tribunal asked whether [Mr A] had made any threats to the applicant since the divorce, and she said in 2014 he sent another email but she didn’t even read it all and deleted it. She said she was out of detention (December 2014) and she had filed for divorce. She said there was another email she deleted from him which was sent last year when her daughter was sitting for exams, and it said something about her not caring enough about her daughter. She said it was abusive and saying she had not been there for her daughter. The Tribunal asked how this was threatening and the applicant said she couldn’t remember and she had deleted it. The Tribunal asked whether anyone in the family had been threated and she said no but they can’t see her daughter.
The Tribunal asked the applicant about the relevance of the material she had submitted and how it supported her claims. She said there were four incidents when she was living with ‘[Pastor J]’ and communicating with [Mr A] about the divorce, and now she thought they had been orchestrated by her ex-husband. The Tribunal notes that the incidents she highlighted in the material submitted to the Tribunal were:
•     On [Date 1] October 2011, a neighbour heard someone smashing the passenger window of her car and saw someone running from the scene so he rang her landlord and the police. She found her car had been broken into and her registration and GPS had been stolen. The police took a report of this incident. She had the window fixed the next morning.
•     In the early hours on [Date 2] October 2011, her car was once again targeted by vandals in the area who cracked her windscreen, rear-view mirror and caused dents on the roof by throwing rocks at it. It was not established whether the incidents were related. A report was made to the police.
•     While the applicant was living in [neighbourhood], there was an attempted break in into her home. She said at about 1:00 am a man tried to pull her door down. The police and neighbourhood security were called.
•     On Sunday [Date 3] October 2011 the applicant found her wall had been sprayed with graffiti not far from where her car had been parked.

The Tribunal asked the applicant if they were reported to police and she said they were. The Tribunal asked whether the police found any evidence the events were orchestrated against her and she said ‘no’. The Tribunal asked applicant if she raised with the police her concern that her ex-husband was targeting her and she said nothing physically happened to her. The Tribunal asked if she told the police about her concern she was being targeted and she said ‘no’, but she remembers now she felt targeted.
The Tribunal indicated it understood that she may feel where events happen in sequence that would be upsetting, and she may feel she was being targeted, but where those incidents are reported to the police and the police do not find evidence the events are connected or that she is being targeted that causes a concern about that accusation. The Tribunal noted there was no reason to believe the Australian police would not have investigated the incidents fully or taken the applicant’s claims seriously.
The Tribunal asked whether the applicant had been subjected to any other activity which caused her concern since then and she said ‘no’.
With respect to the emails she said her husband would say one thing and then another. He would pretend they were on the same page and then change and she felt like it was manipulation or intimidating her. The Tribunal asked her how, even if it accepted there was evidence in the emails that her husband was manipulating or intimidating her in the context of the marriage breakdown, she would still be at risk of harm from her husband when the emails finish in 2012. The Tribunal asked why, when so much time had passed, she would still be at risk from him and she said that he hadn’t gotten what he wanted, which was to see her suffer in some way.
The applicant said she didn’t know when [Mr A] discovered she had been married in Australia while they were still married, but he mentioned it to her in another email she deleted not long after she returned from Zambia in 2014.
The Tribunal asked whether [Mr A] had ever reported her to police for the fact she was married in Zambia and Australia (as threatened in the document sent to the Department in 2014 – folio 133) and she said she didn’t know. The Tribunal asked whether her ex-husband or anyone else had ever communicated to her that he had reported her to police or that he planned to do so, and she said ‘no’. The Tribunal asked if she was concerned about that and she said ‘now I am’.
The Tribunal asked the applicant what she knew about bigamy laws in Zambia and she said she didn’t know anything. The Tribunal asked if it was legal to be married to someone in Zambia and someone in another country and she said ‘no’.
The Tribunal noted the applicant departed Australia on 1 March 2014 and returned on 6 April 2014. She confirmed she went to Kitwe and stayed with her mother for most of the time, and spent two weeks in the capital at a guest house having a holiday with her elder sister and daughter. The Tribunal queried whether she had any issues when she returned and she said ‘no’. She said she wanted to do something about the divorce.
The Tribunal asked how she had secured her divorce in Zambia and she said through a lawyer through Facebook and email communications. She said [Mr A] had said he would talk to the lawyers himself, and then he went into using her daughter saying she would not be coming to Australia.
The Tribunal asked what the applicant’s plan would be if she were successful in obtaining a protection visa, and she said she planned for her daughter to live with her and find some way to bring her here and that she would like to continue with studies. The Tribunal asked if she thought [Mr A] would agree to her daughter leaving Zambia, and she said that she thought that eventually he would. She said he knew she was an applicant for this visa. The Tribunal noted from the divorce petition that she had agreed to her daughter residing with [Mr A] in Zambia. The Tribunal asked why she proposed that if she wanted to bring her to Australia. She said she didn’t remember including that in the petition and she didn’t think it was permanent.
She said she had not thought about what she would do if she was not successful in obtaining the visa. The Tribunal asked if she thought [Mr A] would support her having a relationship with her daughter in Zambia and she said she couldn’t say for sure.

100. The Tribunal notes that the applicant did not suggest before the Tribunal that she feared harm from her family. This is consistent with the account in the delegate’s decision of her claims at interview. Further there was no evidence before the Tribunal of threats made by her family, though there were text and email exchanges indicating the family had reported on health issues, financial difficulties and robberies in their home and other events including a robbery and assault. The exchanges include requests for financial support from the applicant.
101. At the hearing the applicant gave evidence that she maintained contact with her family and had stayed with them on her return visit to Zambia.
102. The applicant provided supporting statements from friends and members of her church communities in Australia. These attest to her being hardworking, community spirited and committed to the service activities of the church. She is clearly a valued member of her church community and a valued friend. However, as the Tribunal notes for the applicant at the hearing, the Tribunal’s assessment of her claims for protection was not an assessment of the contribution she had made while in Australia through which the Tribunal acknowledged she had made a positive contribution.
Delay in seeking protection and migration history
103. The account of the applicant’s migration history contained in the delegate’s decision was discussed with the applicant at the hearings. Tribunal noted that the applicant arrived in Australia on a student visa in July 2009. Her student visa was cancelled in July 2012. She was unlawful for the period from 16 July 2014 to 8 August 2014.
104. In relation to her student visas the applicant explained that she had personal issues including the attempted break-in at her property, her car accident and the death of her youngest sister, which had prevented her from commencing her studies as planned.
105. The Tribunal asked why, if the applicant had left Zambia to escape her marriage and was unable to return safely, she did not seek protection at that time or when her student visa was cancelled in 2012. She said she did not perceive the threat to be direct then and she thought if she separated from [Mr A] her daughter would come and live with her, but not that she would be separated from her father. The Tribunal put to her that that might suggest she did not perceive [Mr A] to be a threat at that time and queried what had happened since then and December 2014. The applicant said that during the process she wanted it to work out amicably and it has sort of backfired. She had been hoping for some sort of proper separation, and finding that liberation and moving on with life, but that had not been possible. The Tribunal queried why she would not have been able to do that in Zambia. She said she did not have the financial standing, and through the whole period her family opposed it so much and had her friends and the priest calling her, and being in that environment meant she wouldn’t have a voice to state what she really wanted. The Tribunal asked why she didn’t return earlier to finalise her divorce and she said for those reasons and because it would have been financially costly earlier.
106. The Tribunal queried why she didn’t apply earlier and she said she couldn’t think right. The Tribunal pointed out that she had had migration assistance on other visas previously and queried whether she had raised the fears regarding the ex-husband, and she said she didn’t.
107. The Tribunal pointed out that after the applicant withdrew her partner application in July 2014, she applied for a further student visa on 8 August 2014, and this was refused as she did not hold a substantive visa at the time. She subsequently lodged the protection visa application on 22 December 2014. The Tribunal put to the applicant that she had not applied for a protection visa until she had her student visa cancelled, withdrawn a partner visa application once it was known she was already married in Zambia and been refused a further student visa, and this might give rise to a concern regarding the credibility of her claims for protection, as it may be reasonable to conclude she would have raised claims to fear harm on return to Zambia earlier. She said she thought it supported her claims because it showed she was desperate to stay. The Tribunal noted that there can be a range of reasons people don’t want to return to their country of nationality, but that not all of those reasons give rise for a claim for protection, even though some of them might be quite pressing, including economic circumstances or their desire to remain in a country. The Tribunal noted that a concern which may arise where a range of visas is sought before a claim for protection is made is that that claim is only made in order to be able to stay in Australia. She said she did think things would be resolved amicably, it has got into a mess and where the threat was minimal it had become bigger.
108. She said she is concerned now to return because his family might want to involve the police. She conceded this didn’t occur to her previously but she was worried now. She said it was the relationship she was trying to escape. The Tribunal asked where the evidence was that the threat had become worse, and she said the way he had handled the issue. The Tribunal questioned what it was he had done which was threatening. The Tribunal noted it understood he had refused to allow her daughter to leave Zambia but that this action did not seem unusual in circumstances where a marriage breaks down and the parents are living in separate countries, in fact international law would tend to favour where the child was currently living. As much as that might be difficult, it does recognise the relationship of both parents so that would not necessarily be an unusual circumstance. The Tribunal noted that this would understandably be upsetting and frustrating but it wasn’t clear how that presented a risk of harm to the applicant.
109. The Tribunal noted she had provided evidence of the relationship breakdown but this had ceased a significant number of years earlier and it was not clear how a threat arose from that material. The applicant said that he was probably angry about her having a relationship which he found out later and the whole family probably feels humiliated. She said he remarried not long after the divorce came through and he was seeing her while the applicant was in Australia and they were married.
110. The Tribunal indicated it had a concern that the fact she had left out important details of her status and history, including in the context of her partner visa application, that it may be reasonable on the material to draw a conclusion that she had put forward information in that context that she thought would achieve the outcome she wanted, which was to obtain the visa. The Tribunal indicated this may raise concerns regarding her credibility and the truthfulness of information she provided in the context of visa applications. She said that she regretted the decision but that she was in a desperate situation.
111. The Tribunal asked why she was desperate and she said she was desperate to stay and restart her life to give her daughter a hope for a future that is not going to involve the same cycle of abuse and lack of finances as she had. She said it had been the same for her mother and she was hoping her daughter would not to have to go through what she had gone through.
Country information
112. Country information regarding the situation of single women in Zambia and employment prospects, including in health care, were canvased in the delegate’s decision. That information was broadly consistent with current information before the Tribunal.[15] The Tribunal discussed the information in general terms with the applicant at the hearing.
[15] Zambia: 2020019161611 – Update on Zambia CI160614150353886 – Update on Zambia ZMB41755 – Treatment of women – State protection for women – Bigamy laws, 26 August 2020.
113. Country information indicates that there is a shortage of about 30,000 trained nurses in Zambia and that the government seeks to train and employ nurses to fill this void in the healthcare system. Although the employment code in Zambia prohibits gender discrimination in employment, laws are not always effectively or consistently enforced. Country information was not located about societal views towards women in healthcare employment on the basis of their marital status.[16]
[16] Sources consulted include CISNET, domestic and international media outlets, non-government organisations, Home Affairs Library, and Internet searches.
114. According to non-governmental organisation IntraHealth International,[17] ‘every year, more Zambian health workers emigrate to other countries in search of higher salaries and better working conditions. This combination of emigration and growing health care needs leaves the Zambian health system grossly understaffed.’[18] In November 2019 Zambia Daily Mail reported that ‘more public health nurses’ were needed to meet the demand of population growth and epidemics. Reportedly, ‘[i]n its quest to fulfil its pledge, Government has targeted to recruit 30,000 healthcare givers by 2021’. On recruitment of nurses, the article reports that ‘just like other professionals, Government picks from both its own institutions and those trained by private colleges or universities’.[19]
[17] Source description: According to the ‘About’ tab of its website, ‘IntraHealth International is a global health nonprofit that has worked in over 100 countries since 1979. We improve the performance of health workers and strengthen the systems in which they work so that everyone everywhere has the health care they need to thrive.’ IntraHealth works alongside governments to deliver programs to support their initiatives.
[18] ‘Zambia’, IntraHealth, n.d., accessed 21 August 2020.
[19] ‘Grow cadre of nurses’, Zambia Daily Mail, 17 November 2019.
115. The Tribunal put to the applicant that the delegate noted she had nearly five years’ experience working in [Sector 1] as [an Occupation 1] in Australia and had completed education in [Discipline 5] as well as [Discipline 1]. The applicant said in evidence she thought it was probably four years. Further, the applicant had brothers and sisters in Zambia who were working and was in contact with her family there. Given her experience, education and networks in Zambia the delegate found that she would be able to find work and would be supported in Zambia by her family if she returned there. In response the applicant said she ‘hoped so’, but she said [Sector 1] jobs did not exist in Zambia. As for health care generally it could be difficult to get a job and some people who graduated from government universities, like her sister who had studied as a teacher, still couldn’t find work. She said there were not many streams of health care where you could find work. She said the main categories where she could find work would be in community services and there wouldn’t be anything in Zambia in this area.
116. With regard to other family members who are working, she said they are not able to support their own mother in a proper way and would not be able to support her. She said she would be another addition to the burden.
117. Country information suggests that women in Zambia may suffer economic disadvantage particularly in female lead households. While discrimination in employment is unlawful, laws are not consistently enforced. Women’s wages lagged behind men’s, and training opportunities are less available for women. Women were much less likely to occupy managerial positions.[20] Single women are often financially vulnerable and lack the opportunity to independently purchase their own homes or businesses and women often do not gain equal access to marital assets upon divorce, particularly in rural areas and traditional communities.[21]
[20] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 7.
[21] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
118. There was no country information before the Tribunal to suggest there was any societal stigma attached to divorce.
119. The delegate noted that while country information indicated that women are financially vulnerable and lack the opportunity to independently purchase their own homes or businesses, the country information did not suggest that a single divorced woman with family support would face significant economic hardship including the denial of a capacity to earn a livelihood.
120. The applicant responded that she didn’t think that information obtained on the internet was very reliable. She said the economic circumstances in Zambia were worse at the moment. She said that after COVID-19 it had worsened because a lot of areas have been economically handicapped and that her family was struggling.
121. Zambia recognises both customary and statutory law with regard to marriage.[22] The applicant indicated that she had been legally married but that a bride price had also been paid. The documents submitted with respect to the marriage and divorce suggest that it was a statutory marriage. Under customary law, polygamy is permitted; however, marriages conducted under statutory law must be monogamous.[23] Bigamy is forbidden under Zambia’s Penal Code Act and Marriage Act and carries a penalty of five years imprisonment.[24] Article 166 of The Penal Code Act prohibits any person from marrying another individual if they are already legally married unless their first spouse has been absent for seven years and presumed dead. The article states:[25]
[22] Mwizabi, G 2010, ‘Are Women Losing Out in Customary Marriages?’, Times of Zambia, 24 September; US Department of State 2016, Country Reports on Human Rights Practices for 2015: Zambia, 13 April, Section 6, see also 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
[23] Mwizabi, G 2010, ‘Are Women Losing Out in Customary Marriages?’, Times of Zambia, 24 September; US Department of State 2016, Country Reports on Human Rights Practices for 2015: Zambia, 13 April, Section 6, see also 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
[24] The Penal Code Act (Zambia), Effective 2005, Zambian Parliament, Art 166.
[25] The Penal Code Act (Zambia), Effective 2005, Zambian Parliament, Art 166.
Any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years:
Provided that this section shall not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.

122. Zambia’s Marriage Act includes provisions prohibiting individuals from entering into a marriage if they are already married to another individual under African customary law, or if they knowingly enter into a marriage with another person who is already married. The Penal Code Act states that Zambian citizens committing an act wholly overseas which is considered an offence under Zambian law can be tried in Zambia.[26] A 1972 Zambian High Court case held that entering into a marriage overseas while already in a legal Zambian marriage amounts to committing an act wholly overseas, and therefore Zambian citizens can be tried for this offence in Zambia.[27]

150. In relation to the economic effects of COVID-19 the Tribunal accepts that the pandemic has impacted the global economy. However, there was no evidence before the Tribunal of any economic impact COVID-19 may have had on Zambia having a discriminatory impact on single or divorced women, or that COVID-19 had impacted the capacity of Zambians generally to earn a livelihood. To the extent the claim is raised, the Tribunal does not accept the applicant faces a real chance of serious harm on the basis of the economic impacts of COVID-19.
151. While the instances in s.5J(5) are not exhaustive, the Tribunal finds that the instances of harm which the applicant claimed may be suffered by her, having to live with her mother, being unable to find employment and being unable to give her daughter the sort of future she wanted, would not amount to serious harm for the purposes of the refugee criteria: s.5J(4)(b).
152. Having regard to the applicant’s personal circumstances, employment history and family support in Zambia, the Tribunal finds she does not face a real chance significant economic hardship that threatens her capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist; or a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, or any other treatment such as may constitute serious harm for reasons of her membership of a particular social group of divorced women in Zambia’ or ‘single women in Zambia’.
153. Having considered all the applicant’s circumstances and the available credible country information, the Tribunal finds that there is no real chance that if the applicant is returned to Zambia she will be persecuted for reasons of her membership of a particular social group of ‘divorced women in Zambia’ or ‘single women in Zambia’.
154. While the Tribunal accepts that single or divorced women in Zambia may be subject to discrimination and face economic hardship the Tribunal does not accept that the applicant faces a real chance of serious harm on this basis alone.
Harm as a former bigamist
155. Although not raised by the applicant, the Tribunal has also considered whether the applicant’s entering into a marriage in Australia while still married to her husband in Zambia, breaching legal prohibitions against bigamy for statutory marriages in Zambia would give rise to a real chance of serious harm.
156. As noted above, there must be a refugee nexus between the claimed harm and the real chance of persecution being faced by the applicant now or in the reasonably foreseeable future. The applicant has not identified any ground in s.5J(1)(a) which would be the essential and significant reason for any harm caused to her by breaching Zambian laws prohibiting bigamy, for the purposes of s.36(2)(a) of the Act.
157. While the country information establishes that with respect to statutory marriages bigamy is a crime in Zambia, there is nothing to suggest on the information before the Tribunal that such laws are other than laws of general application. Only one instance of prosecution for this kind of offence for a marriage entered into overseas was referred to in country information. There is nothing in the country information to suggest that prosecution, or any other prosecution which might be brought for breaches of this law were administered in a discriminatory manner or purpose. The Tribunal finds the applicant does not have a well-founded fear of persecution on that basis.
158. The Tribunal finds that there is no real chance of persecution faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s.5J(1)(a), arising from harm caused to her from her breach of bigamy laws in Zambia, for the purposes of s.36(2)(a) of the Act.
Conclusion on refugee criterion
159. The Tribunal considered whether the combination of factors affecting the applicant would mean she faces a real chance of serious harm if she returns to Zambia. Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted because of her membership of a particular social group, and she does not meet s.5J(1)(b).
160. As the Tribunal has found that none of the applicant’s claims individually or cumulatively result in her meeting the criteria to have a well-founded fear of persecution, she does not meet s.36(2)(a) for the grant of a protection visa, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection criterion?
161. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s.36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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 they will suffer significant harm.
Fear of harm from the applicant’s ex-husband, his family or her family
162. The applicant claimed fear of harm from her ex-husband, his family and her family due to the break-down of their marriage and subsequent divorce.
163. As discussed above in the assessment of the evidence, the Tribunal has found that the applicant’s claims to fear harm from her husband, his family or her family members over the circumstances of the marriage breakdown are not credible.
164. Having regard to concerns regarding the credibility of the applicant’s evidence, the inconsistency of her claims over time and the lack of specificity of her claims, the Tribunal does not accept on the evidence that the applicant has been subject to harm or threats of harm from her husband or his family in the past. Notwithstanding her late claim that she suspected her husband’s family may have been involved in some unidentified way in her father’s death in late 2016, she told the Tribunal her family members have not been threatened by her ex-husband or his family members since the divorce. There is no evidence before the Tribunal to corroborate the applicant’s claims that she would be subjected to significant harm by her ex-husband or his family in the foreseeable future. The Tribunal does not accept that she would be.
165. There is no evidence, and the Tribunal does not accept, that the applicant would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment from her ex-husband or his family if she returns to Zambia. The Tribunal finds that the applicant would not face a real risk of significant harm from her ex-husband or his family on return to Zambia.
166. The applicant further resiled from her claims that she was at risk of harm from her family with whom she remains in contact and was continuing to support when she was able. For the avoidance of doubt, on the evidence before it the Tribunal finds the applicant does not face a real risk of significant harm from her family members on return to Zambia.
Fear of harm as a single, divorced woman in Zambia
167. As detailed above, the Tribunal accepts that single or divorced women in Zambia may be subject to discrimination and face economic hardship, however, the Tribunal found that the applicant does not face a real chance of serious harm on this basis.
168. The Tribunal notes the threshold for the real risk element of the complementary protection criterion in s.36(2)(aa) is the same as that for the real chance test in the refugee criterion in s.36(2)(a) of the Act.[31] The Tribunal further notes that the necessary and foreseeable consequence element at s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
[31] MIAC v SZQRB [2013] FCAFC 33.
169. The Tribunal has found there is no real chance the applicant will face serious harm in Zambia as a result of being a single or divorced woman. The Tribunal has found that the applicant would return to live with her mother and would have family support. She has siblings who are working in Zambia and overseas and the family has continued to live in the same area and home since she left Zambia more than 10 years ago. The Tribunal has also found the household has the presence and associated protection of at least one male member. Further, the Tribunal has found that the applicant has undertaken additional training and work experience in Australia which would assist her to find work in a health care related industry in Zambia or to undertake further training there.
170. There is no evidence, and the Tribunal does not accept, that the applicant would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a single or divorced woman in Zambia as a necessary and foreseeable consequence of her return to Zambia.
171. To the extent the applicant’s claim to have left Zambia to seek a better education and better opportunities for herself amount to a claim that she would suffer significant harm, there is no evidence before the Tribunal that the unavailability of education services in Zambia are such that this amounts to a real risk of significant harm and the Tribunal so finds. In any event, to the event such a claim of inadequate education is made, there is no evidence to suggest this is a risk of harm to the applicant personally but rather to the population generally: s.36(2B)(c).
Harm as a former bigamist
172. The Tribunal accepts that bigamy is an offence in Zambia. The Tribunal also accepts on the evidence that the applicant entered into a marriage in Australia when she was legally married in Zambia. On the country information that would be likely to constitute an offence in Zambia.
173. The Tribunal also accepts that country information suggests police in Zambia may commit human rights abuses and that conditions in custody, particularly for women, may amount to significant harm. It also suggests that while the government takes steps to investigate, prosecute, and punish perpetrators of human rights violations, impunity remains problematic. On this basis the Tribunal accepts there may be a risk of significant harm from custody or detention in Zambia.
174. Having carefully considered all the circumstances of the applicant’s case, the Tribunal does not consider that there is a real risk she would suffer significant harm as a result of having breached bigamy laws in Zambia. In this regard the Tribunal notes this was not a risk identified by the applicant as a risk of harm on her return until put to her by the Tribunal. The Tribunal accepts the applicant’s ex-husband mentioned in an email to the Department that he would report her to authorities, shortly after learning of her marriage to [Mr B] in 2014. However, based on the evidence before the Tribunal it does not appear that [Mr A] ever reported the applicant to police as threatened. Since that time the applicant’s evidence was that [Mr A] had remarried and has children from his new relationship. They have not had contact since claimed emails in 2014. The applicant is not aware of any interest by authorities in her marriage in Australia and her family have not been approached by the authorities in that regard, [Mr A] has never threatened the applicant that he would report her to the police. On the evidence the Tribunal finds that the applicant’s ex-husband has not reported her marriage in Australia to authorities in Zambia.
175. Country information suggests that while there have been instances of prosecution for marriages entered into overseas, few examples were cited in country information. On that basis and given the fact the applicant is no longer legally married in Zambia or Australia and more than six years have passed since she was married and the threat of reporting was made, the risk she would be reported to authorities is less than a real risk.
176. Noting the findings as detailed above, it follows that the Tribunal is not satisfied 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 that the applicant will suffer significant harm for the purposes of s.36(2)(aa) of the Act for breaching bigamy laws in Zambia.
Conclusion or complementary protection criterion
177. The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of harm singularly and on a cumulative basis as discussed above, with respect to her claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s.36(2)(aa). The Tribunal finds that the applicant’s return to Zambia does not give rise to a real of significant harm for the purposes of s.36(2)(aa) of the Act from her ex-husband, his family or her family due to the circumstances of the breakdown of her marriage, as a single or divorced woman in Zambia, for breaching bigamy laws in Zambia or for any other reason as a necessary and foreseeable consequence of her being removed from Australia to Zambia.
178. The Tribunal, therefore, finds that there are no 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 for the purposes of s.36(2)(aa) of the Act.
CONCLUSION
179. 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 s.36(2)(a).
180. 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).
181. 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 any of the criteria in s.36(2).
DECISION
182. The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…