1617277 (Refugee)
[2021] AATA 717
•12 February 2021
1617277 (Refugee) [2021] AATA 717 (12 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1617277
COUNTRY OF REFERENCE: Zambia
MEMBER:Simone Burford
DATE:12 February 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Migration Act.
CATCHWORDS
REFUGEE – protection visa – Zambia – particular social group – unmarried mother – single woman – victim of gender-based violence – returnee from the West – honour killing – attacks by Patriotic Front (PF) and criminal gangs – ritualistic killing – employment – separation from children – estrangement from family support – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 57, 65, 423
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BAJ16 v Minister for Home Affairs [2019] FCCA 1598
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
BZAFM v MIBP (2015) 321 ALR 117
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
MZZJO v MIBP [2014] FCAFC 80
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281
Ponnundurai v MIMA [2000] FCA 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZRTC v MIBP (2014) 224 FCR 570
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
SZTEQ v MIBP (2015) 321 ALR 44
SZTIB v MIBP (2015) 321 ALR 81
SZTYV v MIBP [2018] FCA 1076
SZTYV v MIBP [2018] HCASL 382
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089
WAKK v MIMIA [2005] FCAFC 225Any 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 dependents.
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 29 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is [an age]-year-old citizen of Zambia. She arrived in Australia [in] March 2012 as the holder of a [Student] visa.
Prior to coming to Australia, the applicant was living in Kabwe, the capital of Central Province, Zambia[1]. She had lived there for approximately 10 or 11 years having previously lived in Endola, Zambia.
[1] Kabwe | Zambia | Britannica
The applicant travelled to Australia on a Zambian passport and claims to be a Zambian citizen. A copy of the applicant’s Zambian passport issued [in] 2011 was provided to the Tribunal. The applicant confirmed at the hearing that she is 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 applicant applied for a [Student] visa offshore which was granted [in] March 2012 with validity until 5 August 2013. She arrived in Australia [in] July 2012. The applicant applied for a further student visa on 26 June 2013 which was granted [in] July 2013. The applicant transferred from her student course on 13 December 2013. The applicant requested a student deferral of the course from [February] 2015 to [April] 2015. The applicant’s student visa expired on 15 March 2015. The applicant lodged an application for a further [Student] visa on 13 March 2015 and withdrew from this application on 14 May 2015. In this student visa application, the applicant declared [Partner A] as her spouse/family member in the application. The applicant lodged a Protection visa application on 5 June 2015.
The applicant has two children born in [specified years] who are Australian citizens. The applicant claims not to be in a relationship with the children’s father, who is an Australian citizen who was also born in Zambia.
Protection claims
Protection visa application
The applicant filed her application for a protection visa on 5 June 2015. In her application for protection the applicant said she came to Australia to study [Subject 1] because she wanted to become [an occupation]. She became pregnant out of wedlock and when her father found out about the pregnancy he became angry and threatened to poison her. She was afraid because her father used to beat her and her siblings growing up and threatened her with a metal bar because she was watching a fight outside her school.
She said her father had harmed her when she was younger including threatening to kill her and breaking her tooth throwing her into a door. She said that here was no one in Zambia to help you because the police were corrupt, and they would just call her father and ‘talk to him like a friend ad say don’t let it happen again’. She said her brother had gone to the police, but they had just called her father in and talked to him nicely and later her father beat her brother.
She said she was at school when the abuse happened and then she left and came to Australia.
She claimed her father would kill her from bringing him shame and becoming pregnant out of wedlock. She claimed he had threatened her on the phone and in emails. She claimed even if the police acted her father didn’t mind going to jail because when he came out, he would have house and his pension. She claimed that victim support and police are not functional.
She claimed she would not be able to relocate in Zambia because the transport system was very good, and her father could travel anywhere and find her through word of mouth. She claimed living as a single woman in Zambia was difficult and no one will help her because her father had isolated her from her family.
Submissions to the Department
The applicant submitted the following documents to the Department of Home Affairs (the Department):
·Applicant’s identity documents.
·A copy of a Western Australian Birth Certificate for the applicant’s [Child A], born [DOB], issued by the Registrar of Births, Deaths an marriages, Perth, Western Australia, on [date]. The certificate lists the applicant as the child’s mother and [Partner A] as the child’s father.
·Copy of an email from [the applicant’s father] (whom the applicant claims is her father) to the applicant dated [in] April 2015, titled ‘Unbelievable and unforgiveably circumstance’.
·Copy of an email from [the applicant’s father] to the applicant dated [in] April 2015, titled ‘Death to erase unforgiveable embarrassment’.
The interview
The applicant attended an interview with the Department on 14 June 2016. Where relevant, the applicant’s oral evidence to the delegate is referred to below.
Information was put to the applicant during the interview for comment under s 57 of the Act including regarding information she has been receiving support financially from her ex boyfriend's family, indicating that she will be financially supported upon he return to Zambia and will not be destitute as claimed. The applicant replied that her ex boyfriend's family will not support her and confirmed they have sent money to the applicant's ex-partner and the money is for her [Child A]. The applicant claimed her ex partner's family are in Zambia. She said that the money that comes to her from her ex-partner is for her [Child A] and she is living with her ex-partner as she has nowhere else to stay and that she does not receive money from her ex partner's family personally.
It was also put to the applicant that in her student visa application which the applicant signed on the 13 March 2015, she has listed her father as [name] as her closest remaining· relative in her home country raising concerns regarding whether the applicant's father is in pursuit of the applicant as claimed by her. The applicant stated that she didn't think her father knew she was pregnant at the time she lodged the student visa application. She had asked him for support and he had refused to give her money for university and he said he did not care if she was kicked out of Australia and she had wasted her money.
It was also put to the applicant that in her student visa application dated March 2015 she had listed [Partner A] as her partner. However, at the interview she stated that she separated from her partner in October 2014. Therefore, the delegate had concerns regarding whether the applicant was separated with her ex-partner given they were still residing together and he is supporting her child and providing for her rent and accommodation. The applicant responded that that she does not have anything to do with [Partner A] and [he] wanted to help her and the baby out.
Information put to the applicant at the interview and her applicant’s responses are discussed further below.
The delegate’s decision
The delegate refused to grant the visa on the basis 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.
Review application
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 October 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 6 August 2020 following the recommencement of in-person hearings at the Tribunal. Post-hearing submissions were received on 31 August 2020 and 8 January 2021.
At the initial hearing the Tribunal outlined for the applicant the issues it was considering and confirmed the applicant’s 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 confirmed that she had given birth to a second child following the delegate’s decision. The applicant’s claims for protection and the evidence on which she was seeking to rely in support of her claims were discussed at the second hearing.
The applicant was represented in relation to the application for the visa and 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.[2]
[2] <>
The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional submissions and a further statutory declaration were received following the second hearing.
Submissions to the Tribunal
Prior to the first hearing the applicant submitted the following material to the Tribunal (in addition to copies of the material submitted to the Department prior to the delegate’s decision):
·A copy of a Western Australian Birth Certificate for the applicant’s [Child A], born [DOB], issued by the Registrar of Births, Deaths and Marriages, Perth, Western Australia, on [date]. The certificate lists the applicant as the child’s mother and [Partner A] as the child’s father.
·A copy of a Western Australian Birth Certificate for the applicant’s [Child B], born [DOB], issued by the Registrar of Births, Deaths and Marriages, Perth, Western Australia, on [date]. The certificate lists the applicant as the child’s mother and Mr [Partner A] as the child’s father.
·A copy of the Australian Citizenship Certificate of [Partner A] [dated], noting citizenship was acquired on that date.
·A copy of the Australian Citizenship Certificate for [Child A], dated [date], noting that citizenship was acquired on [date].
·A copy of the Australian Citizenship Certificate for [Child B], dated [date], noting that citizenship was acquired on [date].
·Written submissions and a statutory declaration from the applicant dated 21 November 2019 confirming the submissions reflect her claims. Written submissions included references to country information.[3]
[3] Freedom House, Freedom in the World 2017 - Zambia, 12 July 2017, available at:The applicant’s submissions, from her representative dated 21 November 2019, included a summary of her claims as follows:
·If [the applicant] were to be returned to Zambia, she would be returning as a single mother of two; both children are young, and both are Australian citizens.
·[Child A] was born on [DOB]. [Age specified].
·[Child A’s] father is [Partner A].
·On [DOB], [the applicant] gave birth to [Child B]. [Age specified.].
·[Child B’s] father is also [Partner A].
·[The applicant] currently lives with the father of her children. He provides some limited support to the children and shares the rent. [The applicant] and [Partner A] have separate bedrooms.
·[The applicant’s] claims for protection are based on the fact that her family and community will condemn her for being a single mother and having children out of wedlock. Her family have shunned her, and she states she would have no family support if she returns to Zambia.
·Both of [the applicant’s] children are Australian citizens. If they were to return to Zambia, they would be denied the benefits of being an Australian citizen.
·[Partner A] plays an active role in [Child A] and [Child B’s] lives. While his support is at times limited, he does assist with some financial support for the children and also cares for the children when [the applicant] is working.
·[The applicant] fears that [Partner A] would prevent both children from leaving Australia. It is not in the interests of the children to be separated from either parent. Due to their young age, separation from their mother is a significant issue.
·[The applicant] would be a single woman returning to Zambia. She fears she would have no support if she returns, and no male protection. Societal discrimination and violence remain serious obstacles to women’s rights, with rape being widespread.
·Country information indicates that single women in Zambia are subjected to discrimination. It is difficult to find employment as well due to discrimination.
·[The applicant] would not have male support and states that her family will not support her due to already having 2 children. This will make it difficult for her to look after her children.
·She fears being separated from her children and this would have a significant impact on the family unit. As both children are Australian citizens, if they were to go to Zambia with her, she fears this may raise concerns for the safety of her and the children.
The submissions acknowledge that the children do not form part of the visa application and any harm they may face is not the subject of the review before the Tribunal. The submissions indicated that the submissions confirmed the claims on which [the applicant] continued to rely. The submissions also referred to country information regarding the situation of women in Zambia, which is considered further below.[4]
[4] Freedom House, Freedom in the World 2017 - Zambia, 12 July 2017, available at:At the first hearing the applicant said this was a fair and accurate summary of her claims. She confirmed that she did not have any additional claims for protection however she told the Tribunal that she now had two small children born in Australia to an Australian citizen.
These claims differed from those detailed in the application for protection. The most significant difference was the absence of a claim from the applicant that she would be harmed or killed by her father due to having children out of wedlock. While the applicant continued to claim she would lack family support in Zambia, submissions did not claim she would be harmed by her father or any other members of her family. However, while giving evidence before the Tribunal when asked about the claims in her application she stated she still remained fearful of her father. She also claimed to fear harm from violence in Zambia including from PF caders and ritualistic killings.
The applicant’s oral evidence to the Tribunal at both hearings are discussed further below.
Country information regarding Zambia, including the situation of women in Zambia, unmarried women with children, employment prospects for women with nursing experience, generalised violence in Zambia were canvassed in the delegate’s decision. That information was broadly consistent with current information before the Tribunal.[5] The Tribunal discussed country information in general terms with the applicant at the hearing. Relevant country information is considered further below.
[5] Zambia: 2020019161611 – Update on Zambia CI160614150353886 – Update on Zambia ZMB41755 – Treatment of women – State protection for women – Bigamy laws, 26 August 2020.
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 29 September 2016. The certificate issued covered folios 5–58 on the Department file [number]. At the first hearing the Tribunal provided the applicant with a copy of the certificate and invited her representative to make submissions regarding its validity. No submissions were made.
The Tribunal notes the information contained in the folios is considered in the delegate’s decision and, according to the decision, was discussed with the applicant at her interview with the Department.
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.[6]
[6] 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.[7] 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.[8]
[7] See SZTYV v MIBP [2018] FCA 1076 at [42].
[8] 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 a redacted version of the information.
Accordingly, the Tribunal released a redacted version of the folios to the applicant. The Tribunal noted that the information was considered in the delegate’s decision and that it would be discussed in general terms with the applicant at the next hearing.
While the copies released were redacted to remove personal information relating to the source, mindful of s.438(3) and (4) of the Act and in an abundance of caution, the Tribunal later made an order under s.440(1) of the Act that the evidence and information given to the Tribunal in folios 50–58 of file number [number] 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.[9] 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 s.438(1)(b) of the Act and its disclosure by the Tribunal is subject to s.438(3) and (4) of the Act. The Tribunal sent a copy of the direction to the applicant through her representative.
[9] Order made on 6 January 2021.
The information provided to the applicant included a ‘dob in’ alleging that the applicant was receiving support from [Partner A’s] family and would be supported if she returned to Zambia. The information contained in the material and the applicant’s responses to it are discussed further below.
ISSUES
The issue in the review is whether the applicant has a well-founded fear of persecution as a single, unwed mother 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 she is 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 of such a person. The relevant law is included in Attachment A.
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 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). 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), 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, 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.[10]
[10] 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 be sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[11] 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.[12]
[11] 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.
[12] 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.[13] 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.[14]
[13] MIMA v Rajalingam (1999) 93 FCR 220.
[14] 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.[15] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[16]
[15] 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].
[16] 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.[17]
[17] 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.[18]
[18] 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, 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.
The Tribunal notes that in this case DFAT has not produced a Country Information Report for Zambia.
Analysis, reasons and findings
The Tribunal must consider whether the applicant’s claims could ground a claim for protection under the refugee criterion set out in s.36(2)(a) of the Act.
To meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal must be satisfied the applicant is a refugee, as defined by s.5H of the Act. As noted above, any fear of persecution must be well-founded and must have a refugee nexus, namely, the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. The reason, or reasons, must be the essential and significant reason for the persecution (s.5J(4)(a) of the Act).
Where the applicant does not meet the refugee criterion, the Tribunal must also consider 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 decision maker 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.
For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be remitted for reconsideration.
CLAIMS AND EVIDENCE
Evidence
The applicant submitted a number of documents in support of her application to the Department. Other than written submissions from her representative, the applicant relied on the same documents before the Tribunal.
The Tribunal notes that there appeared to be folios missing from the Department’s file which the Department was unable to locate[19] (following a request from the Tribunal) however the applicant’s representative confirmed that no documents other than those before the Tribunal were submitted by the applicant in support of the visa application.
[19] The Department indicated it thought the missing documents were copies of the documents covered by the certificate. A redacted copy of those documents was provided to the applicant at the first hearing.
She said she thought her family were still living in Kabwe. Her parents are still living and she has [specified family members]. She has extended family also living in Zambia but she was not sure where they were living. Her father had been working in a [service] company. At the time of the first hearing she was not sure where he was working.
She last had contact with her mother in May or June of 2020. She spoke to her on the phone. She hasn’t spoken to her father in years. She is in contact with [her brother]. She last spoke to him a few days prior to the first hearing. She said he lived in [Town 1]. He is working [in a business]. She said he had studied at college. She was not sure about the other siblings. She had spoken to him again 3 or 4 months prior to the second hearing.
She completed school in Zambia but did not undertake any further studies there or work there prior to coming to Australia.
She arrived in Australia as a student in 2012 to study [Subject 1] at [University 1]. She commenced studies but in [year] she fell pregnant and switched to a course she said she thought would be easier to manage with a child with the hopes of returning later to study but now with a view to becoming a registered nurse.
With respect to her studies in Australia she said that she actually transferred from a diploma to a degree course. When she first arrived she did prep courses for nursing, completed [specified] courses and part of a diploma before transferring to university. Her degree course was a [related] degree at [University 1]. She wanted to find [an industry 1] job in Zambia. She completed one year of the degree but then she fell pregnant. She said she thought if she moved to an easier course she may be able to return later. She said she had hoped eventually to go back to [University 1] but probably not to the [same] degree. She said she hadn’t been able to go back to university because she didn’t have money or financial support from her family since she had children so she could not afford it. She indicated she wanted to become a registered nurse. She has been working as an assistant nurse commencing in 2012, and though there had been periods during that time where her visa had not permitted her to work.
In 2014 she entered into a relationship with [Partner A] whom she met at university (he was not studying but came to visit a friend). He was originally from [country] and came as a student, studying [occupation 1]. He is working at an [occupation 1] firm in [a location]. He has worked there since 2014. At the first hearing she said they were in a relationship for a few months. At the second hearing she said they were in a relationship for most of 2014. She fell pregnant in later 2014. They moved in together in January or February of 2016. Prior to that she had been living with friends.
As noted above, she has two children in Australia, one born in [year] and one born in [year]. The children’s father is an Australian citizen who was born in [country]. Both children are Australian citizens. The applicant had lived with the children’s father since 2016 however she said that the relationship had been ‘on and off’ during that period but they had been living at the same address. At the time of the first hearing the applicant was living with her partner but at the second hearing she said she had moved out a few days prior to the hearing. The children were living with both parents. She said they had lots of problems including the involvement of police and verbal and mental violence. The Tribunal asked if this was violence against her and she said ‘mostly’ him and when the Tribunal sought to clarify what she meant she said it ‘was just between me and him’. She said they had no formal agreements in relation to the children. She said she had received advice in relation to the children but she hadn’t sought any orders because she didn’t have support.
She said when they were living together [Partner A] was giving her some money he got from the government but not his personal money. She had some food and voucher support prior to getting work rights. She later became pregnant with their second child. She said that just happened. She said they shared costs of day care, schooling and when they were living together they shared the rent. She said that he stopped giving her the payments from the government in January 2020.
She informed her family she was pregnant with her first child when she was around 7 months pregnant and she told them in 2019 about the second child. She said she told her brother and he didn’t say much but he was surprised. She said she tried to talk to her mother about her second child but her mother didn’t want to talk about it. She said she brought up arguments and called her a prostitute.
The Tribunal discussed with the applicant that the delegate’s decision indicated they had put to the applicant that she has been receiving support financially from [Partner A’s] family and that she would be financially supported upon her return to Zambia and will not be destitute as claimed. The applicant said that she never received any money from [their money exchange] from [Partner A’s] mother. The Tribunal asked if [Partner A’s] mother had provided financial assistance and the applicant said that as far as she knew she had not. She said she saw [Partner A’s] mother when she visited Australia a few months after the first child was born. She was not living with [Partner A] at that time but she was using his address to receive mail.
The Tribunal asked what the applicant feared may happen to her if she returned to Zambia and she said she was afraid of ‘dying, being attacked, afraid of who is going to look after the children, if someone attacks the children.’ She said she could be attacked because she is more vulnerable, doesn’t have family support and does not have anywhere else to live. She said there was ritualistic killing in Zambia. She said people were being gassed and killed. She said lots of people have been dying and she had been following the situation on social media but she wasn’t sure of the circumstances. The Tribunal queried why they are being gassed and she said it was ‘sacrifices or some sort’. She confirmed she was saying that because she lacked family support, she would be vulnerable to attack in Zambia.
The Tribunal asked if the applicant had experienced harm in Zambia before coming to Australia and she said she had been attacked on her way to school when she was 13 years old. She said it was not reported to police. She told her parents ‘but you can’t talk about it’. She said she was treated at the local clinic for her injuries. She did not know her attacker.
The Tribunal asked who she thought might harm her and she said, ‘anyone who can have access to me’. The Tribunal asked if the authorities would protect her in Zambia and she said the protection of authorities was non-existent in Zambia. She said, ‘the system doesn’t work’. She said there was a case where a 3-year-old was raped and the family beat up the man and the police said, ‘you can’t beat him’. She said she knew people who have died and people who have gone to jail and the system is ‘non-existent’.
The Tribunal noted that in her application she said she was afraid her father may hurt her and asked if she was still afraid of that and she said, she was still afraid of her father. She said her father had always been abusive. She said parents kill their children in Zambia because they bring shame on the family. She said she last had contact with her father 5 or 6 years ago.
Before the Department, the applicant had submitted copies of two emails from her father sent on [dates in] April 2015. The emails are signed off as ‘embarrassed and disappointed’ or ‘disappointed and embarrassed’. The first email refers to her father’s embarrassment ‘now being looked upon as a person without norms and values’ and indicates her father does not want to see the applicant anymore. The first email states that:
Because of the above embarrassment you have brought in my family for the unplanned pregnancy or unwanted pregnancy, am disowning you as my daughter and in fact am even wishing you dearth. Better be there for the rest of your life than coming here and risk your life. Without hiding anything from you. I do not want to see you with my naked eyes. If i have some means to clear you (kill) by any means, then I will do it. I will not fail to slaughter you like a. chicken. I know how am going to do it so that the embarrassment you have brought to my family can come to an end. Definitely. I have to do it. I do not mind about the consequences that am going to encounter after I have done it.
The second email refers to the applicant being pregnant and to the fact her father has supported her studies to assist the family ‘spending all the money he had in the bank’ and expecting her to obtain a degree. Both emails refer to the writer’s belief it would be better that he be dead when she next sees him or that she be dead when he next sees her.
The Tribunal discussed the emails with the applicant at the hearing. The Tribunal indicated in the emails it appeared her father was upset about the fact she was not continuing with her studies and she said, ‘mostly yes’. The Tribunal asked if that was the main issue he was angry about and she said the biggest issue was the baby and the shame on the family not to be together with the father. The Tribunal pointed out that her father stated that if she were pregnant then his expectation was at least she would obtain a degree and she replied that he sent several emails and indicated that coming home with a degree and without a baby was mandatory. She said they had said horrible things about the baby so she didn’t think the only thing he was worried about was the education.
The Tribunal indicated that while the country information suggested there was sexual inequality for single women in Zambia, it did not indicate a particular social stigma with respect to being an unwed mother. The Tribunal indicated you might expect to see country information about such an issue if the social stigma was such that a parent would kill a daughter for having a child out of wedlock but that the Tribunal did not have information of that kind before it. The Tribunal noted that the country information indicated that a significant proportion of women in Zambia were single parents and that 30% of households were female-led. The Tribunal put to the applicant that this would not support the applicant’s claim regarding the degree of social stigma and the risk she may be subjected to harm, or honour killing, by her father. She said to understand the stigma you would have to go to Zambia.
The Tribunal noted that the general sense that her family was upset with her would not, of itself, give rise to a claim for protection. The Tribunal explained that the issue of whether the lack of family support presents a different kind of risk would be a different question. The Tribunal discussed with the applicant that similarly the general level of violence or crime in Zambia, absent other issues, which presented a risk to the population generally would not give rise to a claim for protection. The Tribunal asked what it was about the applicant’s personal circumstances which might place her at particular risk and she said that as someone from Australia she could be seen as having money and being well off. She might be attacked for this reason.
The Tribunal asked whether the applicant would be able to relocate elsewhere and she said she had only lived in Kabwe or a neighbouring town and word of mouth was very strong in Zambia. The Tribunal asked whether she could relocate to one of the larger cities where country information indicates there was a demand for nursing services. She said that it was still highly unlikely she would get a job as you needed to know someone or pay someone to get a job. The Tribunal asked how then she had hoped to get a job after studying in Australia as originally planned and she said it was possible but you had to know someone. The Tribunal asked who she knew in [industry 1] who would have helped her with this and she said that she would have applied and tried to get contacts or connections.
The Tribunal asked about obtaining help from [Partner A’s] family and she said she didn’t think they would help her. The Tribunal asked if she had asked for help from [Partner A’s] family and she initially said that she had asked his mother however when the Tribunal queried if she asked her when she was here in Australia she said she ‘didn’t necessarily ask but it was obvious as I had a small baby and I needed help’ but she didn’t help her at all. She said that what she said was that what they had done was wrong and they had gone their separate ways. The Tribunal asked if they had any contact after [Child B] was born and she said no.
The Tribunal put to the applicant that the delegate’s decision indicated that when it was put to her at the interview that [Partner A’s] family had provided support she said that they would not support her but confirmed they have sent money to [Partner A] and the money was for her child [Child A]. The applicant said that she thought his sister has sent something but it wasn’t enough for her to find a stable place to live. From what [Partner A] told her, his sister sent some money and clothes. She said he didn’t give her the money and they have never offered financial support to her. She said they sent clothes and a little bit of money when the first child was born but she didn’t get the money. She said she did get the children’s clothes. She said the last time they sent clothes was 6 months ago and this was from his sister who lives in [another country].
The Tribunal also put to the applicant that the delegate’s decision indicated that in her student visa application, which the applicant signed on 13 March 2015, she has listed her father as her closest remaining relative in her home country and in her statement of claims and at her interview she has claimed her father threatened her in early March. The delegate had found this information to be inconsistent and found that if the applicant’s father had threatened the applicant in early March as claimed, then she would not have put her father down as the closest remaining relative. She said that when she was doing anything about the visa, no one knew she was pregnant. She said she was the only one who knew.
The Tribunal put to the applicant that, as detailed in the delegate’s decision in her application for asylum seeker assistance (Form 1455, dated 1 September 2015) she had indicated that her father found out she was pregnant in December 2014. This also gave rise to a concern about the genuineness of her claims. She said that December 2014 was too early because her father was still supporting her then with financial support for university. She said she didn’t know why she had mentioned that in the application but she said at that time they didn’t know she was pregnant. The Tribunal put to her that this raised a concern regarding whether the applicant’s father is in pursuit of the applicant as claimed. The applicant responded that she didn’t think her father knew she was pregnant at the time she lodged the student visa application. She had asked him for support and he had refused to give her money for university and he said he did not care if she was kicked out of Australia and she had wasted her money.
It was also put to the applicant that the delegate’s decision notes that in her student visa application dated March 2015 she has listed [Partner A] as her partner. However, at the Protection visa interview the applicant stated that she separated from her partner in October 2014. She told the Tribunal they broke up in later 2014. She said she needed help with student visa applications. She said she was talking to him and he was coming to her house but he said they were not together and he was clear about that. The Tribunal asked why she put that on her application and she said she had no idea. The Tribunal noted that this may raise a concern that where she had provided inaccurate or untruthful information on visa applications previously it may give rise to a concern about the credibility of her claims made in this application. She said she had done it just in case he can be contacted as next of kin but not to indicate that they were in a relationship. The Tribunal notes she had told the Tribunal that she had been using the partner’s address when she was not living with him for correspondence. She said if he was her partner they would be living together and he would be supporting her but at that stage they were not living together.
The Tribunal discussed with the applicant country information that Zambia had a shortage of nurses in Zambia and that this might indicate she may be able to work there or study nursing. The applicant said it didn’t work like that and she didn’t think you could just study. She said there were lots of nurses in Zambia who go without pay and do not have proper working conditions. She said nurses are on strike and people are dying everyday in hospitals because nurses don’t get paid enough. She said it was not true that the government was caring about nurses or recruiting more nurses.
The applicant confirmed that she had never come to the attention of authorities or the government prior to leaving Zambia. She confirmed that she had never been targeted by the government, had not been involved with the police before and had left Zambia without any issues.
The Tribunal asked whether there were other countries she could go and work in and she said she didn’t know because of the children. She said before her son was born she was planning to go to South Africa but at the moment there were just too many attachments concerning the children including an attachment to their father. She said she has to be around him even when she doesn’t want to and if there were work opportunities elsewhere she didn’t know who would help her with the children. She said they shared care of the children here and had childcare. She said in somewhere like South Africa it was not a safe country so she couldn’t leave her children in childcare. She said without a qualification it was impossible because there was xenophobia in South Africa. The Tribunal noted the applicant had some qualifications obtained in Australia and she said she didn’t have ‘proper’ qualifications or a degree.
The applicant said she was concerned about where her children would get the proper care and education in Zambia. She said her children have been through enough already and it wouldn’t be fair on them to go somewhere where they wouldn’t have the bare necessities and she wouldn’t be able to work. She said the life here in Australia is very different. The Tribunal asked what the plan would be for the children if she was to return to Zambia and she said she would have to think of something but the ultimate plan wouldn’t be to return to Zambia.
The Tribunal asked why she withdrew the last student visa application and she said she was heavily pregnant so she wouldn’t be able to go to school so she thought she could maybe take maternity leave but she just withdrew. She said many things were happening and she thought the father of her children wanted to sponsor her but he changed his mind abruptly.
The Tribunal raised with the applicant that the fact she had claimed to fear harm due to having had one child out of wedlock but had gone on to have another might cause some doubt about the genuineness of her claim to fear harm on that basis. She said it wasn’t planned and her religious views didn’t allow her to have an abortion.
At the end of the hearing the applicant’s representative asked the Tribunal to clarify who the applicant might be concerned might attack her in Zambia and she said there were street kids, political caders[20] (members or associates of political groups or parties in particular the Patriotic Front (PF)) and criminal gangs. She said they do this because they want to exercise that freedom and power over people. She said they mostly attack people who are vulnerable, women who travel in the night as women are generally attacked in the night. She said her biggest fear is that she might find herself alone at night. The Tribunal asked whether there was anywhere in particular this occurred and she said it was everywhere. She said there were ritualistic killers in every city and caders in every city.
[20] The Tribunal notes country information variously refers to ‘political cadres’ and ‘political carders’. The Tribunal understands these terms to be used interchangeable and adopts the term ‘political caders’ for consistency and because this was the spelling used by the applicant.
Country information
Country information regarding the situation of single women in Zambia, unmarried women with children and employment prospects, including in health care, were canvassed in the delegate’s decision. That information was broadly consistent with current information before the Tribunal.[21] The Tribunal discussed the information in general terms with the applicant at the hearing.
[21] Zambia: 2020019161611 – Update on Zambia CI160614150353886 – Update on Zambia ZMB41755 – Treatment of women – State protection for women – Bigamy laws, 26 August 2020.
Crime and Violence in Zambia
Independent country information indicates that the country is largely stable, although there has been election violence. The BBC News Zambia Country profile states that Zambia, unlike most of its neighbours, has managed to avoid the war and upheaval that has marked much of Africa’s post-colonial history, earning itself a reputation for political stability. Edgar Lungu, from the ruling Patriotic Front (PF), became the sixth president of Zambia in January 2015 after winning a narrow election victory. He gained a new term in August 2016.[22]
[22] BBC World News, Zambia Country Profile, 3 January 2018, >
The US Overseas Security Advisory Council (OSAC) describes the overall crime and safety situation in Zambia as follows:[23]
The U.S. Department of State has assessed Lusaka as being a HIGH-threat location for crime directed at or affecting official U.S. government interests. Criminality continues to affect ordinary citizens, diplomats, and visitors alike. The use of firearms and edged weapons during the commission of many crimes is common; do not resist if confronted. Street gangs operate in certain parts of Lusaka, Livingstone, and Copperbelt Province. These gangs engage in a variety of criminal activities to include vehicle theft, mugging, burglary, vandalism, and assault. According to 2019 Zambia Police Crime Statistics, Lusaka and Copperbelt province have higher rates of violent crime compared to the rest of Zambia.
The most commonly reported crimes against Westerners in Lusaka are non-violent confrontations best characterized as crimes of opportunity (e.g. theft of unattended possessions in public places or hotel rooms, confidence scams). Pickpockets operate in crowded markets and on public transportation. Visitors have reported snatch attacks of bags and smartphones on busy city streets, as well as smash-and-grabs of valuables from vehicles idling in traffic or parked insecurely. Other crimes, including thefts, violent attacks, home invasions/robberies, and sexual assaults occur with frequency. Criminals often follow their intended victims from banks, nightclubs, and ATMs, robbing them at gunpoint on the street or upon arrival at their reside…
The Tribunal notes that OSAC reports are produced for private security purposes and not to assess risks for the purposes of protection assessments. As such they are directed towards the risks to tourists and Westerners living and working in Zambia. According to World Bank data, rates for intentional homicides per 100,000 people in Zambia were below or comparable to other countries in the region.[24] The Zambian police crime statistics report a reduction of 9.27 percent in general crime cases reported for the third quarter of 2019 with 11,795 cases reported overall for that period.
However, the United States Department of State Country Report on Human Rights 2019, reports that significant human rights abuses occur in Zambia, particularly with respect to those ‘affiliated with the ruling party or serving in the government’, noting that: [25]
The government took steps to investigate, prosecute, and punish perpetrators of human rights violations. Impunity remained problematic nevertheless, as alleged violators affiliated with the ruling party or serving in the government were either not prosecuted for serious crimes or, if prosecuted, were acquitted or released after serving small fractions of prison sentences. The government also continued to apply the law selectively to prosecute or punish individuals who committed abuses and mostly targeted those who opposed the ruling party.
[23] Zambia 2020 Crime & Safety Report (osac.gov)
[24] For the most recent available year 2015 - Intentional homicides (per 100,000 people) - Zambia | Data (worldbank.org), source UN Office on Drugs and Crime's International Homicide Statistics database.
[25] United States Department of State, 2019 Country Reports on Human Rights Practices: Zambia, 11 March 2020, Freedom House has reported in 2018 that there have been threats and arrests of opposition politicians, politically motivated charges against opposition figures, non-governmental organisations operate in a restricted fashion, social media users risk arrest if they criticise the government and supporters of the ruling party sometimes disrupt broadcasts involving opposition figures. Freedom House states that corruption is widespread and impunity common.[26]
[26] Freedom House, Freedom in the World 2019, Zambia, Having regard to country information, the Tribunal accepts that Zambia, although politically stable for many years, has become more repressive of political opposition in recent years and that high-level opposition political figures have been subjected to violence and arrest by the PF government and supporters. However, as noted earlier, the applicant did not claim to have been politically active in Zambia or to have ever come to the attention of authorities or PF carders in this regard or for this reason. She did not claim to fear harm on that basis. However, she did claim to fear harm from PF carders who she implied acted with impunity particularly against vulnerable persons. She claimed they represented a risk to her on that basis.
102. With respect to violence by political loyalists and PF caders, the United Nations has stated that ‘Zambia has significant levels of violence and injustice, however, often in multiple and hidden forms’.[27] An article in the Daily Mail refers to the usurping of power by caders, which has led to violence, entitlement and illegal appropriation of land.[28] The article states that: [29]
given the wrong notion that the ruling party owns the State and its institutions, ruling party cadres tend to illegally usurp powers and functions of legally-established governance institutions such as the police and local government authorities. A typical example is the usurpation of powers to demarcate and allocate land by ruling party cadres under different administrations.
[27] United Nations, Zambia, Country Analysis Summary Report, Zambia Daily Mail, Understanding the cadre party politics, 6 June 2018, Zambia Daily Mail, Understanding the cadre party politics, 6 June 2018, With respect to ritualistic killings, the applicant’s representative submitted the following country information following the second hearing:
In early 2020, police reported that they have “… so far received 511 reports of incidents of ‘chemical spraying of poisonous substances on households’ that have affected 1,687 victims.”[30]
Country research confirms that in February 2020 there were at least 40 suspected gas attackers killed as mob justice took hold following a spate of gas attacks in the Copperbelt province.[31]
Other news reports confirm that there had been ongoing attacks since December 2019. The gas attacks prompted the US embassy in Lusaka to issue a security alert (earlier in the year) saying that “rumours of ritualistic killings and residential gassings have led to incidents of civil unrest and vigilante justice in multiple provinces throughout the country.”[32]
(citations included)
[30] Bloomberg News – Politics, Zambia mobs kill 43 suspected gas-spray attackers, police say, 22 February 2020, accessed at on[31] ANI News, More than 40 suspected gas attackers killed in Zambia in wave of mob justice, 23 February 2020, accessed at: France24 News, Zambia dazed by wave of mysterious gas attacks, 6 March 2020, accessed at
104. At the hearing the applicant told the Tribunal she was not aware of these attacks being directed at particular individuals or groups in Zambia but that she had read about the attacks in online media. There was no country information suggesting the attacks were directed at any group or groups. Further, country information suggests the government recognises the risk presented by these attacks and is taking steps including the use of military support to address them.[33]
[33] Zambia deploys troops to quell gas attacks by criminal gangs | Zambia News | Al Jazeera
105. While the OSAC report refers to the general crime rate in Lusaka as “high” there was no information before the Tribunal to suggested that criminal activity is directed at particular segments of groups of the population. DFAT Travel advice indicates that crime is ‘common’ in Zambia but does not does not advise of a particularly high incidence of particular crimes, noting however that date-rape drugs have been used in bars and advising travellers to avoid walking alone or travelling at night.[34] The DFAT advice notes crimes ‘persist’, including armed robbery, carjacking, petty crime and home break-ins.
[34] Zambia Travel Advice & Safety | Smartraveller
106. The Tribunal considers that there nothing in the country information before it to suggest that general crime including violent crime by criminal gang, street kids or ritualistic killers is directed against any particular segment or group of the population for any of the reasons set out in 5J(1)(a).
107. There was no country information before the Tribunal suggesting that Zambians who return to their country from the West as failed asylum seekers or for any other reason are persecuted in Zambia or subjected to harm due to having been in Western countries. While there is country information suggesting visitors or residents from the West may be targeted for theft due to a perception of wealth, this information was directed at foreigners in Zambia and did not suggest this applied to Zambian returnees.[35] Further, the information notes that the majority of the victims of crime are Zambians and that crimes against foreigners are predominantly crimes of opportunity.[36]
Gender-based issues
Women in Zambia
[35] Zambia Travel Advice & Safety | Smartraveller
[36] US Department of State, Overseas Security Advisory Council, ‘Zambia 2020 Crime and Safety Report’, 4 September 2020.
108. In its most recent Zambia country report on human rights, the US Department of State (USDOS) reports that Zambian police committed ‘significant’ human rights abuses during 2019.[37] The USDOS report discusses legal and support mechanisms available to victims of gender-based violence. The law criminalises gender-based violence but in practice is not consistently enforced by the state: [38]
The law criminalizes rape and other sexual offenses, and courts have discretion to sentence convicted rapists to life imprisonment with hard labor.
The Anti-Gender-Based Violence Act does not have provisions for spousal rape. The penal code criminalizes domestic violence between spouses and among family members living in the same home. The law provides for prosecution of most crimes of gender-based violence, and penalties for conviction range from a fine to 25 years’ imprisonment, depending on the severity of injury and whether a weapon was used. The law provides for protection orders for victims of domestic and gender-based violence, and such orders were issued and enforced. Despite this legal framework, rape remained widespread. Although the law criminalizes rape and domestic violence, the government did not always consistently enforce the law.
[37] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Executive Summary and Section 1.
[38] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
109. According to the US State Department, police and NGOs provide some support to victims of gender-based violence:[39]
To address the problem of gender-based violence, the government engaged traditional marriage counsellors on gender-based violence and women’s rights in collaboration with NGOs. The Young Women’s Christian Association (YWCA) also continued its ‘good husband’ campaign and, in collaboration with other women’s movements, the ‘I Care about Her’ campaign to promote respect for women and to end spousal abuse. The government and YWCA worked to address these problems through community sensitisations, shelters, toll-free lines, and one-stop centres where victims accessed counselling and legal support services. The Victim Support Unit under the police, staffed with trained personnel, supplemented these efforts. Other efforts to combat and reduce gender-based violence included curriculum development for training of police officers, roadshows to sensitise the public to gender-based violence, and instruction on how to file complaints and present evidence against perpetrators.
A gender-based violence information management system in the government Central Statistics Office strengthened monitoring and reporting of cases of gender-based violence. The system, which allows for effective and comprehensive reporting of gender-based violence and improved support, including legal services, social, economic and overall national planning, led to an increased number of reported cases.
[39] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020,
Section 6,
110. Broadly speaking, the USDOS reports that women experience discrimination because the government ‘did not adequately enforce … family, labor, property, and nationality laws’ despite equality in the constitution and laws themselves. Reportedly, sexual harassment is ‘common’ and the state took ‘few steps’ to prosecute despite provision in the penal code that warrants prosecution. The USDOS summarises that protections are ‘inadequate’ to effectively protect women from sexual harassment.[40]
[40] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
111. Bertelsmann Stiftung reports that ‘women are often … subject to gender-based violence’ and the recourse for justice is typically weaker in rural Zambia because of customary law practices that typically ‘discriminate against women’. Despite the lack of effective legal protections against discrimination, Bertelsmann Stiftung concludes that ‘discrimination against women is not as problematic in Zambia as it is in other African countries’.[41]
[41] 'BTI 2020 Country Report Zambia', Bertelsmann Stiftung, 29 April 2020, pp.13-14.
112. Human rights-focused NGOs observed that the country’s dual system of customary and statutory law made it difficult to combat and deter injustices against women.[42] In contrast to customary law, the constitution and other laws provide for the same legal status and rights for women as for men, including under family, labour, property and nationality laws. The government did not adequately enforce the law, and women experienced discrimination. For example, customary land tenure and patriarchal systems discriminate against women seeking to own land. This situation restricts women’s access to credit as they lack collateral, which land ownership provides.
[42] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
113. Freedom House reports that ‘[w]omen are constitutionally guaranteed the same rights as men, but gender-based discrimination and sexual harassment are prevalent in practice’.[43] ‘Domestic abuse is common, and traditional norms inhibit many women from reporting assaults.’ Rape is ‘widespread and the law is not frequently enforced’.[44]
[43] ‘Freedom in the World 2020 Zambia Country Report’, Freedom House, accessed 20 August 2020, F4.
[44] ‘Freedom in the World 2020 Zambia Country Report’, Freedom House, accessed 20 August 2020, G3.
114. In post-hearing submissions the applicant also referred to statements from Amnesty International in August 2020 regarding gender-based violence in the Southern African Development Community (SADC), of which Zambia is a member country, during the COVID-19 pandemic. Amnesty noted: [45]
The COVID-19 pandemic has also heightened the threat posed to women and girls in the region including by sexual and gender-based violence. Confinement due to stay-at-home orders and lockdowns has left many women and girls exposed to domestic violence, sexual, economic, psychological and other forms of abuse by partners and family members. Many women in the region live in poverty, which forces them to stay with their abusers for fear of losing their livelihoods. Police and NGOs have recorded an alarming increase in cases of gender-based violence since lockdown regimes were introduced in early March.
[45] SADC: Regional leaders must fix the deteriorating human rights situation across the region, 14 August 2020, SADC: Regional leaders must fix the deteriorating human rights situation across the region | Amnesty International
115. The Tribunal notes Amnesty does not indicate any particulars issues or instances relating to Zambia with respect to gender-based violence, as is the case elsewhere in the statement, however the Tribunal accepts that government responses to controlling the COIVD-19 pandemic may have exacerbated conditions of abuse for women in circumstances of domestic violence.
116. The Tribunal notes that the only reference to risks of gender-based crimes in the DFAT Travel Advice relates to the need for vigilance as date-rape drugs have been used in Lusaka.[46]
Single women and single unmarried mothers in Zambia
[46] Zambia Travel Advice & Safety | Smartraveller
117. Country information suggests that women in Zambia may suffer economic disadvantage particularly in female-led 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.[47] 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.[48]
[47] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 7.
[48] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
118. Further, country information indicates that illegitimate children may bear some social stigma and legal restrictions on their legal status and inheritance rights,[49] there was no country information before the Tribunal that indicates honour killings are committed against women who have had children out of wedlock in Zambia. The delegate refers to an opinion piece in The Times of Zambia in January 2016 arguing that a purported rise in the number of children born out of wedlock will have a negative impact on Zambian society.[50] A similar article was located from 2018.[51]
[49] Legitimacy Act 1965 (Zambia). This included updated searches CISNET, domestic and international media outlets, non-government organisations, Home Affairs Library, and Internet searches.
[50] Moonga, C 2016, 'Impact of Single Motherhood On children', Times of Zambia, 17 January[51] Single parenting: Its impact on children – Zambia Daily Mail (daily-mail.co.zm)
119. There is no information to suggest there are honour killings against women with illegitimate children and country information suggests that having children out of wedlock is not uncommon in Zambia.[52]
Nursing-related employment opportunities in Zambia
[52] Raising children as a single mother. ‘A Study to Explore Single Mother’s Experiences in Raising their Children in Chibolya, Zambia’, Zulu, H T, Oslo and Akershus University, January 2017; ‘Illegitimate childbirth is common in Zambia by way of adolescent pregnancies.’ In Zambia, poverty and social exclusion spur teenage pregnancies’, Aljazeera, 11 April 2019.
120. 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.[53]
[53] Sources consulted include CISNET, domestic and international media outlets, non-government organisations, Home Affairs Library, and Internet searches.
121. According to non-governmental organisation IntraHealth International,[54] ‘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.’[55] 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’.[56]
CONSIDERATION AND FINDINGS
[54] 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.
[55] ‘Zambia’, IntraHealth, n.d., accessed 21 August 2020.
[56] ‘Grow cadre of nurses’, Zambia Daily Mail, 17 November 2019.
The applicant’s claims for protection
122. The applicant’s claims for protection centre around her status as a woman returning to Zambia from the West without family support and having had children out of wedlock, causing shame to her family.
123. These claims as expressed to the Tribunal include (in summary) that:
·She is at risk of harm from general violence in Zambia including from ritualistic killing, political carders, street kids and gangs.
·She is at risk from harm as a member of a particular social group being ‘returnees from the West/overseas’.
·She is at risk of harm as a woman and as a single mother in Zambia. The Tribunal has considered these as claims that the applicant fears harm as a member of particular social groups being ‘women in Zambia’, ‘single women in Zambia’ and also ‘unmarried, single mothers in Zamia’. She claims to have been the victim of an assault or sexual assault when at school which was not reported to the authorities. She fears she would have no support if she returns, and no male protection.
·She is at risk of harm from her family and in particular her father because she cause the family shame by becoming an unmarried mother and because there is a history of violence in her family from her father. Further, she claims her father has isolated her from her family causing her to lose the support of her family and community.
124. The applicant’s claims for protection are based on the fact that her family and community will condemn her for being a single mother and having children out of wedlock. She claims she will have no family support if she returns to Zambia. She fears she would have no male protection in Zambia and is fearful of societal discrimination and violence which she claims remain serious obstacles to women’s rights in Zambia. She fears violence from Patriotic Front cadres, street kids, gangs and ritualistic killings. She fears claims to fear harm as a returnee from the West/overseas. She claims she would be unable to find employment due to economic conditions in Zambia, discrimination against single women and corruption or nepotism in employment.
125. She fears being killed, raped or being unable to subsist in Zambia. She claims that Zambian authorities are unable or unwilling to provide protection due to corruption and discrimination. She claims she could not live elsewhere as she would not have family support and would be unable to obtain employment.
157. While the Tribunal accepts based on country information that women in Zambia face a risk of gender-based violence and discrimination, there was a general lack of credible country information available to the Tribunal regarding the level of gender-based violence in Zambia. Country information suggests that there are safeguards in the law in Zambia that criminalise gender-based violence and offer protections. While the state does not consistently implement the law to provide protections to victims at all times, country information suggests the Zambian government is taking steps to address gender-based violence and discrimination, including social programs to reform cultural practices and prejudices which may serve to reinforce women’s disadvantage in Zambia. The Tribunal considers on the information before it that the level of protection in Zambia of ‘women in Zambia’ would meet that which the applicant is entitled to expect according to international standards.
158. Given the available country information, the Tribunal considers that while it accepts gender-based violence against women to be a social problem in Zambia, it does not consider that the applicant has a well-founded fear of persecution on the basis of being a ‘women in Zambia’ alone, and absent other considerations.
159. With respect to the applicant’s claims as a member of the particular social groups of ‘single women in Zambia’ and ‘unmarried, single mothers in Zambia’, 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 woman with employment experience and skills would face significant economic hardship including the denial of a capacity to earn a livelihood.
160. Country information also did not suggest that single women would be at risk of violence for the ‘essential and significant reason’ of being ‘single women’. Similarly, there is no information to suggest there are honour killings or other forms of harm directed against single women or unwed women with illegitimate children and country information suggests that having children out of wedlock is not uncommon in Zambia.
161. As noted above there was no country information before the Tribunal to suggest there was any societal stigma attached to unwed mothers of the kind that would lead to the applicant being seriously harmed on that basis, including by her family. The Tribunal does not accept that there is a real chance she would be seriously harmed for that reason.
162. Country information suggests that single women, and female-led households which would include unwed single mothers 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.[65] The Tribunal put to the applicant that the delegate noted she had healthcare-related training and experience in Australia. The applicant told the Tribunal she had worked as a nursing assistant since 2012 (albeit with periods of absence for the birth of children and work restrictions). The applicant said in evidence she thought it was probably four years. Further, the applicant had [specified family members] in Zambia who were working and was in contact with her family there.
[65] 'Country Reports on Human Rights Practices for 2019 - Zambia', US Department of State, 11 March 2020, Section 6.
163. Given her experience and education, 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 did not believe the government was supporting more nurses and better wages in Zambia and that you couldn’t study or get a job without connections or payment. However, the Tribunal also noted she had planned to study and return to get a job in [industry 1] where she said she had no connections but had planned to apply and attempt to get connections. It can be inferred from this that employment opportunities in Zambia are open to those without connections. The Tribunal considers based on country information this would particularly be the case in in-demand areas like nursing though the Tribunal accepts the applicant’s submission that nurses (and healthcare professionals generally) in Zambia may be poorly paid compared to conditions in Australia. However, the Tribunal accepts based on her evidence that she may require further study or training to qualify for employment in the healthcare sector as a nurse and that such training may be difficult to access and undertake without family support. Further, the Tribunal accepts that there is a risk she would be without family support, contrary to the delegate’s findings. This aspect of the applicant’s profile is considered further below.
164. Based on the evidence and the available country information, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of being a single woman or unwed single mother in Zambia alone, absent other considerations. The applicant’s cumulative adverse profile is discussed below.
Potential separation from her family and impact on children
165. The applicant’s submissions raised as claims both the harm which would be caused to her by being separated from her children if they remain in Australia and the harm which may be suffered by the children if they are separated from her or if they travel to Zambia with her.
166. The Convention on the Rights of the Child (CROC) sets out principles to do with the best interests of the child including separation from one or both parents and issues such as access to education and other services. However, the Federal Court has considered whether such principles apply to the determination of protection visas and concluded they do not insofar as the decision relates to the applicant. Insofar as the decision impacts the children, they are Australian citizens and as such are not applicants for the visa. While the Tribunal accepts the decision impacts their interests the Tribunal is satisfied that it need not consider any further the impact of its decision upon the children insofar as the question of whether the applicant meets the criteria for protection. The applicant’s submissions acknowledged that the children do not form part of the visa application and any harm they may face is not the subject of the review before the Tribunal.
167. The Tribunal accepts that the children are Australian citizens and that the applicant is no longer in a relationship with their father. When asked what her plan would be for the children if she returned to Zambia the applicant said she was not sure but her plan would be to stay in Australia. Submissions note that the father’s consent may be required for the children to relocate to Zambia and that consent may not be forthcoming. Given [Partner A’s] ongoing involvement in the children’s care the Tribunal accepts that to be the case and that in such circumstances the applicant may be separated from the children. The Tribunal also considers it unlikely given the applicant and [Partner A] are no longer in a relationship that [Partner A] would relocate to Zambia with the applicant and the children. While the Tribunal accepts the applicant would suffer emotionally from a geographical separation from her children, the Tribunal does not accept those circumstances give rise to any claim for protection.
168. 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. on the evidence the Tribunal is not satisfied that, she has a well-founded fear of persecution on return to Zambia for the reason she may be separated from her children, who may remain in Australia. The applicant did not claim that she did. There was no submission that any harm arising from the possible separation of the applicant and her children is or would be the consequence of persecution for a reason covered by s.5J(1) of the Act. The applicant did not identify how the separation from her children would be a consequence of, or would give rise to, persecution for a reason provided for in s.5J of the Act nor did her evidence provide a basis for such a finding.
169. The applicant has not identified any ground in s.5J(1) which would be the essential and significant reason for any harm caused to her by her separation from her children if she is returned to Zambia, for the purposes of s.36(2)(a) of the Act. The Tribunal finds she does not have a well-founded fear of persecution on that basis. 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), arising from harm caused to her by her separation from her children if she was returned to Zambia, for the purposes of s.36(2)(a) of the Act.
The applicant’s cumulative profile
170. While the Tribunal is not satisfied that the claims detailed above meet the refugee criterion individually, the Tribunal has also considered the applicant’s cumulative profile of adverse factors.
171. The Tribunal considers that the applicant has a cumulative profile of adverse factors as a person who:
·Is a single woman and unwed single mother without effective family support and without male protection;
·Has a history of family violence;
·Has been a victim of gender-based violence as a minor;
·Due to family violence and estrangement from her father would be unlikely to be able to return to her family home and as a result would be without immediate housing;
·While educated and experienced working in health care in Australia has not worked in Zambia and may require further study to obtain work in the health care sector in Zambia.
172. While the Tribunal does not accept the applicant is at risk of serious harm, including from her father or family members, on account of being a single woman or unwed single mother, the Tribunal accepts the applicant’s family were upset about her pregnancy and the resulting discontinuation of her studies. The Tribunal also accepts that her father expressed strong views in this regard, including that he no longer wanted to see her. The Tribunal accepts on this basis that if she were to return to Zambia there is a risk she would be without family support and male protection. There is also a risk she would be without stable accommodation in the immediate term, potentially with two young children. This would leave her at risk of homelessness, increase her vulnerability to crime and violence, including gender-based violence, and put at risk her capacity to subsist.
173. If the applicant were able to return to her home in Kabwe, based on her family history and the evidence of her estrangement from her father, the Tribunal considers she would be at risk of family violence. Based on the evidence of gender-based discrimination in Zambia and the applicant’s background, the Tribunal considers that if the applicant were subjected to family violence, there is a risk the authorities would fail to provide adequate protection to her. Further the Tribunal accepts that circumstances of family violence may be exacerbated by COVID-19 response measures, noting however that there is no evidence before the Tribunal as to what those measures currently are in Zambia and whether they would impact the applicant personally.
174. In the Tribunal’s view, given country information regarding violence, including gender-based violence and discrimination in Zambia there is a real chance these particular adverse aspects of the applicant’s profile will result in the applicant being vulnerable to becoming a victim of crime, including from her father, and be unable to support herself and/or her children. This may include gender-based violence, discrimination in opportunities for employment services and the physical and mental harm associated with homeless and an inability to subsist. The Tribunal considers that such instances of harm constitute ‘serious harm’ having regard to s.5J(5).
175. The Tribunal is satisfied that adverse aspects of the applicant’s profile, as listed above, bring the applicant within membership of a particular social group as defined by the Act and discussed above. The Tribunal is therefore satisfied the criteria set out in s.5J(1)(a) and (b) of the Act are met.
176. The Tribunal accepts that should the applicant return to Kabwe, now or in the foreseeable future, there is a real chance she will face ‘serious harm’, of the types noted above, from the agents of crime, including her father, and violence in Zambia as required by s.5J(4)(b) of the Act, in that it involves threat to her life or liberty or significant physical harassment or ill-treatment.
177. The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is her membership of these particular social groups, as required by s.5J(4)(a). Combined, they heighten the chance of the serious harm occurring to a real one, having regard to her particular vulnerabilities. Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that the persecution which she fears involves systematic and discriminatory conduct that is deliberate or intentional and involves her selective harassment for reason of her membership of these particular social groups.
178. The Tribunal has gone on to consider if effective protection measures are available to the applicant in Zambia as required by s.5LA. The nature of the harm feared by the applicant and her particular vulnerability means that there are no effective protection measures available to her. The harm that the applicant fears from is from non-state actors and the applicant claims that the Zambian authorities will not protect her from that harm because they do not have capacity to do so and they discriminate against women.
179. Based on country information detailed earlier, the Tribunal is not satisfied that in the applicant’s particular circumstances the state, or a party or organisation is willing and able to offer protection, noting in particular concerns about gender-based discrimination, selective enforcement and corruption and attitudes to family violence. The Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant in Zambia as provided by the state, or a party or organisation.
180. The Tribunal has gone on to consider if the first applicant faces a real chance of persecution in all areas of Zambia as required by s.5J(1)(c). In the Tribunal’s view, the applicant would face a real chance of persecution for reasons of being a single, unwed mother without family support if she attempted to relocate to other areas in Zambia given the general levels of gender-based violence and discrimination throughout Zambia. The Tribunal considers that the applicant would face a risk of societal discrimination and violence, including a risk of domestic and family violence, throughout Zambia, the Tribunal is satisfied that the first applicant would face a real chance of persecution in all areas of Zambia.
181. The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that the modification would require the first applicant to modify her gender and/or marital status and therefore s.5J(3) does not apply.
182. Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well-founded fear of persecution for reasons of her cumulative adverse profile if she returns to Zambia, now or in the reasonably foreseeable future.
183. For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the first applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
Third country protection
184. In light of the Tribunal’s findings detailed above, consideration must then be given to whether the applicant has a right to enter and reside in third country pursuant to s.36(3) of the Act which is as follows:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
185. Section 36(5) of the Act is as follows:
Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
186. In SZRTC v MIBP the Full Federal Court unanimously held that a temporary period of residence contemplated by s.36(3) need not be linked with protection obligations owed to an applicant, and need not be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances in his or her country of origin.[66]
[66] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28], [33] and per Flick J at [43]. This rejected the approach of Lee J (obiter) in WAGH v MIMIA (2003) 131 FCR 269 at [34], namely that while the right to reside may not be permanent, it must be co-extensive with the period in which protection equivalent to that to be provided by Australia as a contracting state would be required, should not be followed.
187. Their Honours summarised the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[67]
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the ‘gateway’, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the ‘gateway’ open.
[67] At [25].
188. The Tribunal has considered available country information relevant to economic co-operation and freedom of movement in the southern region of the African continent. There are a number of such formal regional agreements in place, including the Common Market for Eastern and Southern Africa (COMESA) and the South African Development Community (SADC). [68]
[68] Bertelsmann Stiftung, BTI 2020 Country Report– Zambia, Gutersloh: Bertelsmann Stiftung’s Bertelsmann Stiftung 2020, page 38; The available country information relating to SADC visa conditions applied by SADC member countries indicates that non-resident, visa-free travel is possible between the countries of Botswana, Malawi, Mozambique, Mauritius, Swaziland, South Africa, Tanzania, Zambia and Zimbabwe. In the case of at least one state (Zimbabwe) this appears to allow for up to six months’ stay on a visa free basis.[69] In the case of South Africa it allows a period of 90 days.[70]
[69] Zambia/Zimbabwe: ZWE CI160826104944439, 2 September 2016.
[70] Department of Home Affairs – South Africa, Passport holders who are exempt from visas for South Africa; In addition, COMESA provides a right of entry for business purposes between member countries of up to 90 days. Member countries of the common market arrangement include Burundi, Comoros, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.
191. Post-hearing from the applicant’s representative addressed this issue and submitted that:
The existence of the SADC treaty (to which both Zambia and South Africa belong), does not, at the best of times, represent effective protection. It is not a treaty for safe resettlement, or protection from persecution or harm. It is primarily an economic arrangement designed to develop economic ties and facilitate trade relations, with promoting common political values, peace and security and regional integration.[71] There is no objective of right to reside in member states. Article 21 of the Treaty notes areas of cooperation; none specifically relate to immigration or migration of nationals between member states.
Zambians are generally exempt from applying for an entry permit to enter South Africa; if they are permitted to enter, they can remain for a period of up to 90 days without a visa. After this period, they must apply for a visa to remain.
[71] Citing Southern African Development Community, Treaty of Southern African Development Community, Article 5 – Objectives, available at accessed on 17 August 2020.
192. It was also submitted that COVID-19 restrictions had impacted movement between SADC nations and would impact movement on an economic basis going forward. The submissions pointed to a rise in zenophobic attacks in South Africa as an indication effective protection would not be available to the applicant in SADC member countries.
193. On the face of it, the available country information suggests that the applicant may, in fact, have had a right to enter and reside in a third country for the purposes of s.36(3) of the Act prior to her arrival in Australia. However, careful regard must be had to her particular circumstances, together with the potential effect of s.36(4), (5) and (5A)[72] of the Act in light of available country information.[73]
[72] As per Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 and SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43.
[73] BAJ16 v Minister for Home Affairs [2019] FCCA 1598.
194. While there was limited country information before the Tribunal regarding visa arrangements prevailing among member countries of COMESA and SADC, the information suggests that several countries allowed exemptions for Zambians citizens who wish to enter those countries without a visa and that it may be the case that Zambians have a right to reside in those countries. This freedom of movement is exemplified in formal regional agreements including the COMESA and SADC discussed above.
195. The applicant demonstrated some understanding of the freedom of movement which applies in the region of Africa within which Zambia is located. However, she expressed a concern about the treatment of Zambians in South Africa and was uncertain about the arrangements for movement and work. She was concerned that she would have no support for herself or her children and claimed she would not be able to work as she needed to care for them.
196. While the first applicant may have ‘a right to enter and reside in’ one of the member countries of COMESA or SADC in the sense contemplated by s.36(3) of the Act, the Tribunal finds having regard to the applicant’s particular vulnerabilities discussed above, that the first applicant would be at risk of persecution in such countries due to her cumulative profile and status as a Zambian national in those countries. Due to her cumulative profile, including being a Zambian citizen outside Zambia, she would be unlikely to be able to avail herself of adequate state protection and may be particularly vulnerable to gender-based violence. This places her at real chance of serious harm.
197. In any event, the Tribunal accepts that the circumstances of COVID-19 have impacted the capacity of people in the region to exercise rights of entry and residence such as otherwise may exist and that these restrictions are likely to remain for the foreseeable future.
198. Accordingly, the Tribunal finds that s.36(3) of the Act does not apply.
DECISION
199. The Tribunal remits the matter for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Simone Burford
MemberATTACHMENT - 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.
…
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.
…
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.
…
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.
…
Freedom House, Freedom in the World 2019 – Zambia, available at: United States Department of State, 2016 Country Reports on Human Rights Practices - Zambia, 3 March 2017,
available at:
Freedom House, Freedom in the World 2019 – Zambia, Section 4F, available at: United States Department of State, 2016 Country Reports on Human Rights Practices - Zambia, 3 March 2017,
available at:
17 August 2020.
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Citations1617277 (Refugee) [2021] AATA 717
Cases Citing This Decision0
Cases Cited25
Statutory Material Cited2
SZTYV v MIBP [2018] FCA 1076SZTYV & Anor v Minister for Immigration and Border Protection [2018] HCASL 382DAJ19 v Minister for Immigration [2020] FCCA 2142