1617277 (Refugee)

Case [2021] AATA 717

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 2

CASES

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 225

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and…

Continue reading 1617277 (Refugee)

Sign in free to access the full text

Details
AGLC
1617277 (Refugee) [2021] AATA 717
Case
[2021] AATA 717
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, a citizen of Zambia, a protection visa. The applicant arrived in Australia in 2012 as a student and subsequently applied for a protection visa in 2015. She has two Australian citizen children with their father, an Australian citizen also born in Zambia, with whom she claims not to be in a relationship.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the Act), which requires the applicant to be a refugee with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or under section 36(2)(aa) of the Act, which concerns complementary protection where there are substantial grounds for believing the applicant faces a real risk of significant harm if removed from Australia. The court also considered the application of section 423A of the Act regarding adverse inferences from new claims or evidence not previously presented.

The court reasoned that the applicant's claims of persecution in Zambia, including threats from her father due to an out-of-wedlock pregnancy, past physical abuse, and the alleged corruption of police, needed to be assessed against the refugee and complementary protection criteria. The court noted that the delegate had not produced a Country Information Report for Zambia, and that some documents from the Department's file were missing. The court concluded that the decision to refuse the protection visa should be remitted for reconsideration, indicating that the applicant's claims and the evidence presented warranted further examination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 claimsProtection 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.

Evidence

Evidence Before The Court

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 EVIDENCEEvidence 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.

Decision

Reasons for decision

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 FRAMEWORKCriteria 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

Ratio Decidendi

Legal Principle Established

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 EVIDENCEEvidence 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.