1619469 (Refugee)

1619469 (Refugee) [2020] AATA 4986 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619469
COUNTRY OF REFERENCE:                   Zambia
MEMBER:Simone Burford
DATE:17 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 November 2020 at 2:22pm

CATCHWORDS
REFUGEE – protection visa – Zambia – actual or imputed political opinion – musician’s songs critical of government and police – credibility – no evidence of public profile of interest to authorities – delay in applying for protection visa – applied after two student visas ceased – application for partner visa in progress – effect of potential separation from Australian citizen wife and child – country information on government, police and political dissenters – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
AUB16 v MIBP [2017] FCCA 2634
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD v Minister for Home Affairs [2020] FCAFC 2
MZAEN v MIBP [2016] FCCA 620
SZRSN v MIAC [2013] FMCA 78, [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 31 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Zambia, applied for the visa on 2 March 2016. 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.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 November 2016. He provided a copy of the delegate’s decision with his application for review.
The applicant attended hearings before the Tribunal on 19 December 2019 and 25 August 2020 to give evidence and make submissions in support of the review application. The Tribunal notes that the applicant requested a postponement of the 19 December 2019 hearing due to a delay in gathering evidence. As this was scheduled to be an initial hearing only to confirm the applicant’s claims for protection and discuss with him the process for the hearing of his substantive claims at a subsequent hearing, the Tribunal decided not to postpone the hearing and indicated to the applicant the purpose of the initial hearing. At that hearing the Tribunal outlined for the applicant the issues it was considering on the application, confirmed that he did not have any changes to make to his claims for protection and discussed with him his background and changes to his personal circumstances since the application was filed. This included his marriage to an Australian citizen partner in June 2018 with whom he now has an Australian citizen child, born [date], and a step-daughter.
The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the second hearing. That hearing was delaying by the closing of the Tribunal registry due to the COVID-19 pandemic. The second hearing was held once in-person hearings recommenced in the Tribunal’s [Registry].
The applicant was not represented in relation to the application for the visa or the review.
The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional material was received following the first hearing and was discussed at the second hearing. No additional material was received following the second hearing.
ISSUES
The issue in the review is whether the applicant has a well-founded fear of persecution in Zambia due to his work as a musician critical of the Zambian government, for actual or imputed political opinions critical of the Zambian government, or for any other reason, or whether complementary protection provisions otherwise apply.
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. The relevant law is included in Attachment A.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
DECISION MAKING FRAMEWORK
Criteria for a protection visa
As noted above, 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) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]
[1] 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] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36] –[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] 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.[3]
[2] 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.
[3] 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.[4] 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.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] 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.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]
[6] 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].
[7] 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.[8]
[8] 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 at [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.[9]
[9] 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[10] made under s.499 of the Act, the Tribunal is required to take into account policy guidelines prepared by the Department of Home Affairs (the Department) -Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.
[10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
In this case DFAT has not produced a Country Information Report for Zambia.
CLAIMS AND EVIDENCE
Applicant identity and country of reference
The applicant travelled to Australia on a Zambian passport and claims to be a Zambian national. Copies of the applicant’s Zambian passport issued [in] 2010 was provided to the Tribunal. The applicant confirmed at the hearing that he was a citizen of Zambia. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
On this basis, and given the delegate had no concerns about his claimed nationality, the Tribunal accepts the applicant is a national of Zambia and has assessed his protection claims accordingly. The Tribunal finds that the applicant is a citizen of Zambia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
The applicant’s migration history
The Tribunal discussed the applicant’s migration history, as outlined in the delegate’s decision, with the applicant at the second hearing. According to the delegate’s decision, the applicant’s migration history is as follows:
·The applicant was granted a student visa on 4 July 2012.
·The applicant arrived in Australia on his student visa [in] August 2012.
·The visa ceased on 15 September 2015 and a Bridging visa WA-010 was issued.
·The applicant was granted a further student visa on 12 November 2012.
·The visa ceased on 2 March 2016.
·He lodged an application for a protection visa on 2 March 2016 and was issued an associated bridging visa on 10 March 2016.
The applicant confirmed that his migration history was correct.
Background
The applicant is a [Age]-year-old citizen of Zambia. He indicated that he was a Christian and that he identified as ethnically African.
At the first hearing the applicant provided evidence about his background and family composition. The applicant testified that he was born and bred in Lusaka, Zambia. He is one of [number] siblings. His father is deceased. One brother is also deceased, having died of illness in early 2020. His mother is alive and living in [Suburb], a suburb of Lusaka. He was living with his mother in Lusaka prior to coming to Australia. His application listed an address in [Suburb] from June 1987 to August 2012. [A number] of his brothers lived with his mother in Zambia. [A number] of his sisters live in [Country 1]. One brother lives in [Country 2] and another lives in Australia, having arrived in early 2007. That brother is now an Australian citizen. The applicant is [deleted] of the siblings.
As noted above the applicant married in June 2018 and has a son born in [date]. His wife and son are Australian citizens. He has a stepdaughter who is his wife’s child by a previous relationship. The applicant told the Tribunal he had applied for a partner visa in April 2019 but that that application was yet to be determined by the Department.
In Zambia the applicant completed high school in [year] and went on to work in a [Workplace]. He was working as a recording artist and producer from 2006 until he came to Australia in 2012.
According to his application, in Australia he studied at [Institution 1] completing a [Qualification 1] and at [Institution 2] completing a [Qualification 2]. He has also undertaken advanced English study.
Since 2013 the applicant has been working as [an Occupation] for [Employer].
Protection claims
The applicant filed his application for a protection visa on 2 March 2016. The delegate’s decision indicates he was invited to attend an interview with the Department in relation to the application on 11 October 2016. The delegate’s decision indicates that the applicant failed to attend the scheduled interview appointment.
At the hearing the Tribunal discussed with the applicant his failure to attend the interview. The applicant stated that he never received the invitation to attend which was sent to his email address. He later received notification of the refusal at that same address. He said he thought perhaps the person he had been staying with at the time tampered with his email. He said he couldn’t find the invitation from the Department in his inbox.
At the first hearing, the Tribunal put to the applicant a summary of the claims contained in the application as detailed in the delegate’s decision (detailed below) and taken from his application for protection. The applicant’s claims for protection were as follows:
Q 25 What is your main reason for remaining in Australia?
Freedom of expression opposed to the government, probability of persecution because of songs circulating on social media attacking government.
Q 88 I am seeking protection in Australia so that I do not have to return to;
ZAMBIA.
Q 89 Why did you leave that Country?
I left normally to get a better education as I was not happy with the poorly pathetic education system in Zambia and I spoke about my dissatisfaction of it in my music and other public platforms
Q 90 What do you think will happen to you if you return to Zambia?
. I will face persecution because of my controversial music that expresses my dissatisfaction with the government and its corrupt practices and oppression it does to people that oppose or criticise it. My· music has in the last couple of months gained a lot of attention from the Zambian public who are tired of the government and its corruption as well as the police that is equally as corrupt and does way less to protect its own people. People back home have contacted me that my songs are being banned from receiving any rotation on the radio stations and they are looking for the people behind the music.
Q 91.Did you experience harm in Zambia?
Yes.
I have in the past while I lived in Zambia received death threats from government supporters which left me scared for my life or what could happen if I remained as outspoken as I was. The police had issued threats to me after a song I did that criticised its corrupt ways and oppression. My close friend that actually produced the song was shot dead by the cops in 2011 but they said he was suspected as a thief but it was related to the controversy surrounding the song.
Q 92 Did you seek help within Zambia after the harm?
No.
The police could not have protected me in anyway as they resented my music and what it stood for. I also feared if they knew it was me behind the song I was going to be arrested.
Q 93 Did you move, or try to move, to another part of Zambia to seek safety?
No.
I did not have the capacity to move elsewhere and my family couldn't offer any form of support for me. So I chose to go low profile and stopped promoting my songs just so I could not be sought after.
Q 94 Do you think you will be harmed or mistreated if you return to Zambia?
Yes.
I am most likely to get arrested by government authorities or even battered by the cops as my music has become more accessible due to social media which was not common about 5 years ago, my friend that wrote the song was killed in 2011 and ha was only [Age]. The police and the government are not happy with my music and my outspoken ways and they will do whatever they can in their power to suppress ma and use ma as an example to anyone also that chooses to criticise it in such a way.
Q 95 Do you think the authorities of Zambia can and will protect you if you go back?
No.
The authorities that meant to protect me are the same corrupt and oppressive people trying to stop ma. The human rights organization in Zambia is also pretty weak.
Q 96 Do you think you would be able to relocate within that country?
There is no province in the country that will be safe for me. The government uses everything in its power to find you. Just like they did my closest friend when they shot him to death.

At the first hearing the applicant confirmed that this was a fair and accurate summary of his claims for protection. He also confirmed that he did not have any additional claims for protection or any changes to make to the information he provided in his protection visa application. At the commencement of the second hearing and the applicant confirmed that he had no changes to make and no additional claims for protection.
Evidence
As noted above, the applicant did not attend his scheduled hearing before the Department. A copy of his passport and birth certificate were submitted to the Department. There were no other documents submitted by the applicant on the copy of the Department’s file which was before the Tribunal.
Before the Tribunal the applicant submitted one document, a letter from his wife dated 17 November 2016. The letter indicates they had been in a serious relationship for the 9 months prior and they had known each other for 16 months. The letter indicated they were expecting a child and planning to marry. At the first hearing the Tribunal noted that the applicant might want to consider providing additional evidence reflecting his current circumstances and supporting his claims. He was also encouraged to give thought to whether he wanted to call any witnesses in support of his application. The Tribunal indicated he could submit material by uploading it in the same way he had provided his previous material, ideally at least 7 days prior to whenever the next hearing was scheduled. No further material was submitted to the Tribunal.
At the first hearing the Tribunal asked why the applicant had travelled to Australia. He said because of the music he was doing and the controversy surrounding it, his family was uncomfortable about it so he decided to give in. He said he was worried about the safety of his family. He said he was in a state of mind to go after the government and his family were trying to convince him to go back to school and take up [Subject]. He wasn’t taken with that so he looked into [another line of work] which he thought might also help with his music career. He said the year before he left he lost his friend [Mr A].
At the second hearing the Tribunal asked if the applicant had any trouble obtaining a passport in Zambia. He said he didn’t have trouble but he applied for a passport (in 2010) and didn’t hear back for about a year. His family wanted him to come to Australia to study but he still didn’t have a passport, so he applied again and the same day they told him the passport was there and had been issued in 2010 when he had initially applied. He confirmed he had not had issues with the authorities leaving Zambia once his passport was issued.
The Tribunal asked about the experiences in Zambia that made the applicant fear returning there. He told the Tribunal he grew up as recording artist ever since [time period]. Around 2006 or 2007 when he was about [age] or [age] years old he started noticing a lot of things he had been ignorant about, including how bad the political situation was and how hard it was for the youth. At the university lecturers were always striking, there were always disruptions and the economy was in a bad state. He felt like he would use his music as a platform to speak out and he moved from singing about ‘whatever random stuff’ and started having strong political views in his music. The more he recorded those songs he started getting a response from people and it was so real and true, so from there he just kept on doing it, and reached a point where he wasn’t scared anymore to record music that was speaking out about how unhappy he was about the government and the state of the country and the police force.
He said he performed under [Performing names] and released music on [Online platforms 1-3], but he had not been in the studio this year due to personal issues.
He said he did a song that was ‘[deleted]’ which he recorded with one of his friends [Mr A] at [Mr A]’s place. They started recording this controversial music and he started getting people warning him about speaking up. He said radio DJ’s were saying they didn’t want to play the music. One day in 2011, [Mr A] had gone to visit his parents and [Mr A] had an attitude where he didn’t filter any of his feelings and within that same period he got shot. He said the story was the people who killed him were the cops. He was with a girl at the time he was shot, and they said they were wearing cop uniforms. He said the police denied it and said that they were thieves dressing up in police uniform.
He said this really aggravated him and he recorded some music with someone else ([Mr B]) which directly attacked the police. He said the lyrics were so direct that the police did not appreciate it. He said the song about the police was called ‘[Title]’ meaning [Translation] (released in 2010). The other song was called ‘[Title 2]’ meaning ‘[deleted]’ (also released in 2010). They came out together on an EP. There was also ‘[Title 3]’ around the same time. He said ‘[Title 2]’ was about [deleted]. He said it covered all of the issues [and] that things were kept a secret ‘until they just couldn’t lie any more’. He said it was also about unemployment and a lack of jobs and the government stopping people from earning a living. He said there was a lot of stuff going on which he couldn’t be silent about.
At that time a lot of people, including the applicant, couldn’t afford to be on smart phones and social media so everything was on recordable discs. They were distributing the music and it got to the cops and the family got concerned. They said he needed to tone it down and that they couldn’t afford for him to be arrested. His family suggested he go to Australia, or he could do his music properly and stop attacking the government and talk about other issues. He said at that time he was becoming a bit apprehensive about the tension he thought he was creating, so for once he decided to do as his family wanted. He said he wasn’t making money out of music anyway because the radio stations were refusing to play the music.
He said he rapped in English and later played in his language [to] reach more people. The Tribunal asked whether the applicant had submitted any evidence of the songs and he said he couldn’t find any translators in his language. The applicant said he needed someone to confirm what he said and the Tribunal pointed out that submitting the songs even untranslated may assist in providing evidence. He said he could do this.
The Tribunal asked whether he had recorded anything else since then and he said that he had, but he felt like he was growing up and he was disenchanted about his country and people. He said a lot of people that do music are still getting locked up, and not just music, but a lot of young people who speak up. He redefined himself and started talking about this ‘petty stuff’ that doesn’t inspire him.
He confirmed he hadn’t recorded any political music since 2010 because those were the songs that really created tension. The Tribunal asked about how they created tension or how it showed itself. He said threats by political ‘carders’. He said one time he had a show with [Mr B] and they had just started performing ‘[Title]’, and these guys came and they had to be moved off the stage as they were told something would happen to them, so they ended up ‘silently disappearing’.
On another occasion, a bus driver was playing the song in the bus and the police threatened to arrest the driver because it was disrespectful. He said this happened in early 2012 in Lusaka and he heard about it through someone who distributed promos for them.
The Tribunal asked why, given the length of time since the music was released, he would still be at risk because of it. He said that in 2015 someone put it online on [Online platform 1] and it started getting a lot of attention. He said they called the person who had put it online ‘[Mr C]’. He said when it started getting shared he got contacted by people back home and they said the cops are looking for the people who did the songs. He said a number of guys contacted him including [Mr B], but shortly before the applicant had left Zambia [Mr B] had started doing gospel music and stopped doing political music. He confirmed [Mr B] was still in Zambia. The applicant said he was more the centre because there were songs that were under his name and the others were featured on his songs.
The Tribunal asked whether [Mr B] had ever faced adverse attention from the authorities if he had remained in Zambia and the applicant said not since what happened before he (the applicant) came to Australia. The Tribunal put to the applicant that it might be reasonable to expect that if the applicant were at risk because of the music on return to Zambia, [Mr B] would have been at risk remaining there. The applicant agreed [Mr B] would have been at risk. However the applicant claimed he had spearheaded the movement and he would definitely be the subject of attention.
He said he had evidence on his phone but lost his phone and couldn’t retrieve it. The Tribunal queried when he had last been contacted regarding the songs and he said it was in 2016. When the Tribunal asked on what basis there would still be interest in the music he said it ‘Never dies’.
He said as the circumstances on Zambia got worse the government tried to silence critics like musicians to try to prevent backlash from the public. The government will try and silence the criticism at its source, the person making the music. He said there was a musician called Pilato who had been banned and locked up for being critical of the government. He said he thought he wasn’t allowed to make music anymore if it was critical of the government.
The Tribunal put to the applicant the information contained in the delegate’s decision concerning Pilato. The information was as follows:
On 8 June 2015, popular satirical singer Chama Fumba aka Pilato was arrested on charges of conduct likely to breach the peace. The charges were in respect to a defamatory song he wrote called "Alungu Anabwela" referring to President Edgar Lungu as an incompetent, and a drunk. Pilato pleaded not guilty to the charges and was released on bail stating that he was exercising his freedom of expression. On 13 July 2015, Zambia's chief prosecutor instructed that the charges against Pilato be abandoned. The song was widely shared on social media and messaging service WhatsApp. This was not the first time the singer had offended the country's politicians. He released a song called "Bufi" (Lies) in 2013 highly critical of (now late) President Sata's rule. There were no reported repercussions for Pilato.
The applicant said Pilato had been locked up again since then. He said he thought he could find the evidence. The Tribunal pointed out that it had been some months since the first hearing but he had provided no additional evidence. The Tribunal noted that it was for the applicant to make his own case with respect to his application for the visa, but that the applicant had not provided any supporting evidence of the things he was claiming, including of the circulation of matters on social media and other matters where it would be reasonable to assume the applicant would be in a position to provide evidence of such matters. This included matters raised in the delegate’s decision which was made in 2016. These issues are discussed further below.
Following the hearing the Tribunal was able to obtain country information that ‘Pilato’ had been arrested in December 2019 for attending an unlawful protest rally.[11] This was broadly consistent with the applicant’s evidence. Further media reports indicated that the charges against Pilato were dropped in September 2020.[12]
[11] ttps://news.yahoo.com/zambian-musician-activist-pilato-arrested-rally-210848448.html.
[12] >
The delegate’s decision also contained information regarding music freedom and the situation of musicians in Zambia. The country information included indicated that there have been instances where musicians in Zambia have had stations refuse to play their music or, in the case of Pilato, where they had been arrested and charged. However, the delegate’s decision noted that the reports indicated that dissent by internationally known musicians who still reside in Zambia has not resulted in their imprisonment, detention or ongoing harassment. Further, the delegate was unable to find any examples of musicians who were gaoled or threatened or who had disappeared.
Tribunal discussed the country information contained in the delegate’s decision regarding music in Zambia with the applicant. The applicant responded that not all the information was reported. He said that a lot of things were not reported and didn’t make it to the media. He said that with certain individuals they tried to stop them before they make it to the limelight.
The Tribunal noted that the delegate had undertaken searches of the applicant’s performance names. The delegate noted that a search of the site [deleted], for information regarding the applicant’s career as [details deleted] did not yield any results. Similar searches yielded no results for the Tribunal. The delegate reported 4 results were returned for ‘[Performing name 1]’ dated [in] June 2016. They all refer to a song called [deleted]. Further, the delegate noted that the applicant did not appear on the list of 146 Zambian Most Popular Artists for the period.
The Tribunal noted this suggested there was no evidence of any profile in Zambia that might suggest the applicant would be of interest to the authorities in Zambia. The applicant said he was pretty surprised and that he thought he would be on that list, but he indicated he thought that was because he hadn’t been actively promoting his music in the last few years because he just doesn’t have a team to work with to do so. The Tribunal noted the searches were conducted in 2016. The applicant had no response to this.
The Tribunal put to the applicant that if he were of interest to the authorities because of his music at the time he claimed he was in Zambia, it may be reasonable to expect he might have issues leaving Zambia. The applicant said that because they had stopped promoting the songs at that time, it was hard for the songs to gain momentum; because of the ‘stuff that was happening’ they withdrew from promoting the music. He said [Mr B] stopped singing that music and decided to do gospel, and the applicant took a step back as well. He said this was also because his family intervened.
The Tribunal asked what he would plan to do if he returned to Zambia and he said ‘the same thing’. He said he just couldn’t be silent. He said things are really bad, even worse than they were before. He claimed he would continue producing music that spoke about those things.
The Tribunal put to the applicant that he had not been active in any of those issues while he had been in Australia and he said ‘Australia is cushioning my frustrations, in Zambia and in that environment I can’t be silent.’ He said when he is in Zambia he just can’t be quiet and will be forced to react, and when he starts doing that there is no stopping him. If he starts making that music again it will be easier to gain momentum because of social media and all that.
He said he thought he might get locked up but hopefully only for a few weeks until he promised not to say anything bad about the government. He said the most scary thing is the political carders, they hear it firsthand and they know where you are. They throw petrol bombs and are nothing but thugs. He said it is the carders for the government, the Patriotic Front.
The Tribunal asked if the applicant had ever been involved in any political parties in Zambia and he said he had not because all the parties try and win people and make promises but once they get in power ‘that’s it’. He said he didn’t vote until 2011 because it didn’t make sense. He said he did a song about voting but that encouraged apathy, and he didn’t have that song anymore. He said he made the song in 2004.
The Tribunal asked whether anyone in his family had been threatened or harmed after he left when he said the music was circulating in Zambia. He said ‘no’. The Tribunal put to him that if the police were looking for him as he suggested, a reasonable person might expect his family to be approached to question his whereabouts. He said his family weren’t approached but he ‘strongly believed’ they had killed [Mr A]. He said people who were supportive of his music, ‘they were the people who would feel what was happening’.
He said there were incidents, not related to his music. He recalled an event where he and a friend decided to work home after midnight and they saw two police officers coming with guns who were patrolling the area, and they stopped them and one slapped his friend and called them thieves. He said the other police officer was drunk. The one questioning him just asked questions, but the other drunk officer was battering his friend. One officer stopped the one who was beating his friend. He said the drunk police officer pulled a gun but the officer told him to stop and put it away or he would shoot him. He said this made him angry because he didn’t know what would happen if the good police officer was not there. He said he didn’t want to get himself in trouble, but if that is the environment he is exposed to then he has to do something about it. God has blessed him with ability to sing and make music and that inspires him to do something.
The delegate’s decision also contains information regarding websites featuring the applicant’s music. This included information on [Online platform 1] and [Online platform 4]. On [Online platform 1], an online venue for showcasing music, the applicant has supplied profile information to the site that states:[13]
[Quotation deleted]
[13] [Reference deleted]
[Online platform 4] is an online promotional page that showcases emerging [artists].[14] The site has a link to the applicant's own [Online platform 4] page which states the site is:[15]
[Quotation deleted]
[14] [Reference deleted]
[15] [Reference deleted]
In addition, the delegate’s decision records that the applicant appeared on an episode of ‘[Program]’, which is a filmed for [Online platform 3] variety show and is a promotion of talent in [his current] community. The programme follows an entertainment and interview based format[16]. The delegate notes that:
[Quotation deleted]
[16] [Reference deleted]
This information was read to the applicant at the hearing. He did not have any comment to make on the information.
The Tribunal asked what material he was posting on [Online platform 1] and [Online platform 4]. He said the only song that really speaks to him is ‘[Title]’. He said ‘that is the only song in the last 5 years that I have recorded that I felt I had to say something from my chest, something what I was feeling.’ He said the other songs had nothing to do with politics, they were just ideas, feel good songs. The other songs are just songs, ideas, nothing, feel good songs. He said regarding his [Online platform 5] site he hadn’t looked at it in a while but he thought that [Title] was probably on it. He said he thought more recently he needed to take a different turn because people were offended too easily and his family didn’t appreciate the lyrics because it ‘painted a bad picture of the family’. He said 90% of the songs on [Online platform 1] do not portray his honest feelings and they are not in line with the music he did prior to coming to Australia. He said he doesn’t get inspired because he has to consider so many people’s feelings when he considers a song. Before he would be inspired by what was around him but he can’t do that anymore.

The Tribunal asked whether he could live anywhere else in Zambia, and he said the carders were everywhere. The Tribunal noted his sisters were in [Country 1] and asked if he could go there, and he said he thought he wouldn’t have a problem. He said crime was high there. The Tribunal asked about his rights to enter and reside in [Country 1] and whether he was aware that agreements such as COMSEA gave him a right to enter and reside. He said he wasn’t sure about these now due to border closures and COVID-19. He said there had also been political change in [Country 1] and it was very xenophobic there.
He confirmed that he had worked previously in Zambia. He said he wasn’t sure about family support because his mother didn’t work and they were dependent on his brother in [Country 2]. He was the one who had educated the applicant. He confirmed he was living with his family before he left and that his family paid for him to come to Australia. The Tribunal put to the applicant in those circumstances it would be reasonable to assume his family would support him and help him resettle in Zambia, and he said they would. The Tribunal queried what his wife and son would plan to do if he returned to Zambia, and he said he didn’t know because that would be a very big change for them.
Delay in seeking protection
Tribunal noted that the applicant arrived in Australia on a student visa in August 2012. His last student visa expired on 2 March 2016 and he applied for the protection visa on 2 March 2016.
The Tribunal put to the applicant that the fact he claimed to have left Zambia due to threats associated with his music in 2012, yet he did not seek protection until March 2016, may raise a concern regarding the credibility of his claims as it may be reasonable to assume that someone who left Zambia due to fears for his safety would not wait such an extended period to claim protection. The applicant told the Tribunal that his family saw he was becoming very vocal through his music and tried to dissuade him. At that time in 2012 he was disillusioned and felt drained because he didn’t have a job and was a struggling artist. He wasn’t getting paid much, if at all. When he got offered to come to study he decided to listen to his family and thought this might be a good thing. He had wanted to study [and] do [a line of work]. ‘That is the vision for my music, aside from the politics and everything’. He said he wanted to be a producer, and business and audio engineering would let him be able to fulfil that. That was the reason he refrained from making critical music. He said that was fine and Australia cushioned him. He still sees what is happening at home but he doesn’t feel it the same way. Then the music was getting some traction, and he started hearing the music was getting to people and they were looking for the person behind the music, and that started freaking him out because he knew what they would do to him. So he started to think it wasn’t safe for him. He thought he might get jailed or killed because of the guys that are getting arrested.
The Tribunal observed that the applicant did not mention his siblings, including his brother in Australia, in his application for the protection visa. The Tribunal queried why this was the case. He said he thought that he had but that they were not on very good terms at the time because they’d had a personal fight. He said that he thought that he did include him because, aside from his wife and children, he was the only family that the applicant had here. Tribunal noted where complete or truthful information was not submitted it might cause a concern about the credibility and truthfulness of the information submitted in support of the application. The applicant indicated he understood this and didn’t know why he hadn’t listed it.
The Tribunal noted that none of the sites mentioned by the delegate which the applicant confirmed and the interview with the ‘[Program]’, mentioned any political activism or being at risk in Zambia in particular, as a reason for leaving Zambia and coming to Australia. The Tribunal queried if there was any reason for that and the applicant said he didn’t want to reinforce the negative energy and he didn’t want to end up in that situation again. He said people would follow him and he needed to represent them and he didn’t want to get back into the same situation. He said his family wouldn’t be happy about it. He said his mum is getting old. Also, two of his [relatives] had died: one in 2015, [and] another who got sick in January 2019. He said his mum thinks of him as a baby so he needs to tone it down.
The Tribunal expressed a concern that the applicant had offered no evidence to support his claims, including evidence of his music. The applicant said he had a rough year because his wife had surgery and he was in hospital and he had to take time off work, and his brother had died. The Tribunal indicated it understood he may have issues but the delegate’s decision had been in 2016, almost 4 years prior, and no additional evidence had been offered to support his claims. Further, the Tribunal said it was concerned that the music was recorded many years prior and it was difficult to see why that music would still be of interest to the authorities. Further, on his evidence, the people he had recorded the music with had continued to live in Zambia without issue. Further, his family had been able to continue living in Zambia without issue, including through the period he claimed his music had seen renewed interest from authorities. The Tribunal also expressed a concern that the delay in seeking protection was not consistent with his claim to have left Zambia due to issues with the authorities. The applicant said everything was as he said it was.
The Tribunal indicated it accepted country information indicating there may be attempts to prevent dissent in Zambia but that information, including that contained in the delegate’s decision, indicated that higher profile artists and musicians were able to continue to produce music quite critical of the government in Zambia without widespread reports of detention and harassment, and there was no information contrary to that with respect directly to musicians. The Tribunal noted that there was information the government might attempt to constrain or control political dissent in particular from rival political parties, but there was no information to suggest that that translated to targeting of musicians who produced music which was critical of the government. The Tribunal noted that country information regarding Mako Zulu and Pilato suggested that they were artists who produce music critical of the government and who continue to be able to do so, nothwithstanding in Pilato’s case intermittent arrest by authorities.
The Tribunal indicated that it was difficult where there was no evidence to support or establish the veracity of the claims he was making, particularly having regard to the extended period the applicant had to put on evidence. The Tribunal gave the applicant a further week to put on additional material including addressing the concerns put to him. The applicant indicated he thought this was fair and said he would do his best to provide further material. The Tribunal indicated whatever the applicant submitted the Tribunal would decide what weight to give to it, indicating that if material was not in English it may be difficult for the Tribunal to give significant weight to the content of the music but that it may assist the applicant in establishing that the songs were, in fact, recorded for example. No further material had been received at the time of decision.
CONSIDERATION
Claims
The essence of the applicant’s claim is that he fears harm as a result of producing music in Zambia in 2010 which was critical of the Zambian government. He claims that his role in producing that music places him at risk and that on return to Zambia his inability not to speak out on political issues would see him produce further music critical of the government. This would bring him to the adverse attention of the authorities and government political supporters, ‘carders’ supporting the incumbent Patriot Front government.
He fears being arrested or physically harmed because he believes his friend with whom he had recorded songs was shot and killed by the police.
Relevant country information
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.[17]
[17] BBC World News, Zambia Country Profile, 3 January 2018, >
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.[18]
[18] BBC World News, Zambia Country Profile, 3 January 2018, >
Independent country information indicates that the country is largely stable, although there has been election violence. The United States Department of State Country Report on Human Rights 2019, states as follows:
Zambia is a constitutional republic governed by a democratically elected president and a unicameral national assembly. In 2016 the country held elections under an amended constitution for president, national assembly seats, and local government, as well as a referendum on an enhanced bill of rights. The incumbent, Patriotic Front (PF) President Edgar Chagwa Lungu, won re-election by a narrow margin. A legal technicality saw the losing main opposition United Party for National Development (UPND) candidate, Hakainde Hichilema, unsuccessfully challenge the election results. International and local observers deemed the election as having been credible but cited a number of irregularities. The pre-election and postelection periods were marred by limits on press freedom and political party intolerance resulting in sporadic violence across the country. Although the results ultimately were deemed a credible reflection of votes cast, media coverage, police actions, and legal restrictions heavily favored the ruling party and prevented the election from being genuinely fair.
The national police have primary responsibility for internal security and report to the Ministry of Home Affairs. The military is responsible for external security but also has some domestic security responsibilities in cases of national emergency. The president appoints the commanders of each military service and they report directly to him. Civilian authorities generally maintained effective control over the security forces.
Significant human rights issues included: arbitrary and extrajudicial killings, torture, and arbitrary detentions by police; harsh and life-threatening prison conditions; arbitrary interference with privacy; restrictions on freedom of expression and press freedom, and censorship including arbitrary application of criminal libel laws against critics of the government, and unjustified arrests or prosecutions against journalists; substantial interference with the right of assembly; official corruption; and the criminalization, arrest, and prosecution of persons engaged in consensual same-sex sexual relationships.
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.[19]
[19] United States Department of State, 2019 Country Reports on Human Rights Practices: Zambia, 11 March 2020, >
The report goes on to comment that the constitution provides for freedom of peaceful assembly; however, the government at times restricted this right, and police and pro-government groups sometimes disrupted meetings, rallies and other activities of opposition political parties and civil society organisations.[20] The report also notes that:
There were restrictions on artistic presentations or call other cultural activities, including music lyrics and theatrical performances. For example, authorities banned the music of hip-hop artist Fumba Chama, professionally known as ‘Pilato’, on the Zambian National Broadcasting Corporation and other state media. Private radio stations continued to play his music, except for two of his songs that criticised the president.
[20] United States Department of State, 2019 Country Reports on Human Rights Practices: Zambia, >
Amnesty International has said that in 2017-2018 authorities cracked down on critics, including human rights defenders, journalists and opposition party members. The Public Order Act was used to repress rights to freedom of expression, association and assembly.[21]
[21] Amnesty International, Country Report Zambia 2017/18, 2018,
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.[22]
[22] 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. This has included some restrictions on artistic expression. However, the Tribunal notes that, other than the material relating to Pilato, there was no country information before the Tribunal specifically relating to musicians which suggested that musicians were targeted due to producing music critical of the government. The information cited by the delegate suggested high profile musicians critical of the government continues to operate in Zambia. The information relating to Pilato is consistent with this indicating that he had been arrested during a political protest, in the latest instance, and that the charges against him were later dropped. The circumstances of his arrest suggest that he is a high profile political activist who has faced the attention of authorities on that basis.
Findings
The Tribunal has significant concerns about the credibility of the applicant’s claims. As noted at the hearing, the Tribunal had serious concerns regarding the lack of any supporting evidence from the applicant substantiating his core claims, including any evidence of the songs he claims to have produced and which he claims brought him to the attention of authorities and led to his friend [Mr A]’s death at the hands of the police.
The applicant indicated the lack of evidence was due to the fact he’d had a difficult year, including the illness of his wife and the death of his brother. The Tribunal did not accept that the applicant’s explanation was sufficient to explain the lack of any supporting evidence submitted by the applicant despite the amount of time he had available to provide information. The Tribunal notes that it identified its concern regarding the lack of evidence at the first hearing and several times during the second hearing. Further, the Tribunal identified a number of specific concerns with the applicant’s core claims for protection, including those outlined in the delegate’s decision, on a number of occasions and provided several opportunities for the applicant to provide additional evidence. None was submitted.
Given that the applicant claimed his music came to renewed attention in 2016 via social media it is reasonable to expect he would be able to provide evidence of the music and its distribution. He provided no explanation as to why he was unable to do so other than that he was unable to find a translator for the material. The Tribunal notes it stressed to the applicant at both the first and second hearing that while it may not be able to place significant weight on the content of untranslated material which it could not understand, evidence of the existence of the musical output claimed by the applicant may assist in establishing his claims and the applicant should give serious consideration to submitting such material. It would then be a matter for the Tribunal to consider the weight to be given to the material in assessing the applicant’s claims. In such circumstances the lack of any supporting evidence raised serious concerns about the credibility of the applicant’s claims. These concerns are detailed further below.
In the Tribunal’s view, the applicant’s conduct in Australia contributes further to doubts regarding his credibility and claims for protection. These include his delay of more than 3 years in seeking protection in Australia and his failure to mention his siblings in his application for protection, including a brother who has been living in Australia since before the applicant arrived.
With respect to the delay in seeking protection in Australia for a period in excess of 3 years, the applicant indicated that before 2016 he had decided to follow his family’s wishes. However, after his songs circulated on social media and [Mr A] was killed he had concerns about his safety. There was no evidence offered to substantiate or support the applicant’s testimony that his music was circulated on social media in 2016 and came to the adverse attention of authorities. Further, there was no evidence to support the claim his friend [Mr A] had been killed by police, including for the reason of having produced music critical of the government. In such circumstances, and given the protection visa was not sought until after the expiry of the applicant’s second student visa, the Tribunal is not persuaded by the explanation.
The applicant came to Australia in August 2012, after claimed problems in Zambia, yet he did not seek protection until March 2016, more than 3 years later. This raises doubt as to the extent of his claimed fear of harm in Zambia. The Tribunal finds his failure to apply for protection for more than 3 years a strong indication that he was not fearful of serious harm when he left Zambia and arrived in Australia. On the basis that the applicant unreasonably delayed seeking protection after arriving in Australia for more than 3 years this delay further suggests that the applicant’s claims for protection lack credibility.

100. However, based on the limited material before the Tribunal and giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant is a musician and that he recorded and produced hip hop/rap music in Zambia. The Tribunal also accepts on the basis of the evidence that the applicant has music sites on a number of music sites including [Online platform 1] and [Online platform 4]. The Tribunal also accepts that he recorded songs called ‘[Title]’ and another called ‘[Title]’, on the basis the Tribunal was able to locate songs bearing those titles on a [Online platform 4] page bearing one of the applicant’s stage names: [Performing name].[23] The Tribunal also accepts on the basis it is plausible having regard to the counter-culture nature of rap music, that those songs had the meaning described by the applicant and were critical of [deleted].

[23] [Reference deleted]
101. The Tribunal notes that the applicant did not provide evidence of his marriage or the birth of his child, other than a short letter from his wife written in 2016. However, Departmental movement records supported the applicant’s claim that he has applied for a partner visa and that his wife is his sponsor. The Tribunal further accepts, for the purposes of this application, that the applicant is married to an Australian citizen and has an Australian citizen child.
Does the applicant meet the refugee criterion?
102. The first question is 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.
103. 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).
Anti-government or political claims
104. The applicant identified his actual or imputed anti-government political opinions as expressed in his music as the reason for the claimed fear of harm. The Tribunal accepts that this is consistent with the grounds set out in s.5J(1) of the Act.
105. As noted above, the Tribunal had significant concerns about the lack of any supporting evidence offered by the applicant to substantiate his claims to be at risk of harm on return to Zambia due to his profile as an anti-government musician. While the Tribunal was prepared to give the applicant the benefit of the doubt with regard to some aspects of his claims, including accepting that he was a musician and recorded the 2 songs specifically mentioned in evidence, the Tribunal does not accept on the evidence that there is a real chance he will suffer serious harm on return to Zambia for the reasons claimed.
106. In his application the applicant claimed he left Zambia to get a ‘better education as I was not happy with /he poorly pathetic education system in Zambia and I spoke about my dissatisfaction of it in my music and other public platforms’. He did not provide any evidence before the Tribunal that he had spoken about lack of education services in Zambia on ;other public platforms’ and the Tribunal does not accept that he did. Also, while the applicant complained that a range of services provided in Zambia were inadequate there was no evidence provided to support a claim that the applicant was denied access to basic education services in Zambia and to the extent he makes this claim the Tribunal does not accept that he does. The Tribunal does not accept that he faces a real chance of serious harm on this basis.
107. The Tribunal does not accept the applicant was threatened or harmed by authorities prior to leaving Zambia. The applicant’s claims to have been threatened in Zambia due to his music were vague. He said he recorded a song with [Mr A] which ‘hinted they were unhappy with the police’. He said that he started getting people warning him about speaking up and radio DJ’s were saying they didn’t want to play the music. One day in 2011, [Mr A] had gone to visit his parents and ‘the story was the people who killed him were the cops’. He was with a girl at the time he was shot and she said they were wearing cop uniforms. He said the police denied it and said that they were thieves dressing up in police uniform. He provided no evidence to corroborate or support his testimony in this regard. Absent any country information to support the claim that police killed [Mr A] due to his involvement in anti-government music, the Tribunal does not accept [Mr A] was killed by police, or that he was killed for the reasons claimed. In this regard while country information reports instances of the arrest and charge (and later dropping of charges) against anti-government musicians including Pilato, there is no country information that fatal force has been used by police against musicians or that musicians have been assassinated by police or pro-government carders posing as police. On this basis the Tribunal rejects this claim. Although his protection application mentioned having “received death threats from government supporters which left me scared for my life” he was unable to provide any details or evidence of such threats at the hearing.
108. When asked if there were other threats he said he had been told a bus driver playing ‘[Title]’ had been threatened by an off duty policeman to stop playing the song. He said he heard this from the people who helped distribute his music. Further, the applicant did not report any instances where he was approached directly by the authorities with respect to his music. He reported one incident with police where he and a friend were questioned while walking late at night, however he did not suggest this was linked with his music or anti-government views. The Tribunal notes that on his evidence he and his friend were not harmed in this incident which was managed by the intervention of one of the two police officers. Further, there was no suggestion by the applicant that the questioning by police in this instance was directed at him for any reason other than the fact he and his friend were walking late in the evening. There was no suggestion by the applicant or on the evidence that the police questioning that he suffered harm as a result of this incident or that the police attention was directed at the applicant for the essential and significant reason of any of the factors in 5J(1)(a). The Tribunal finds the applicant does not face a real chance of serious harm from police on this basis.
109. The applicant did not claim to have been harmed by authorities or government carders in Zambia. Incidents he reported were based on accounts given to him by others, including with respect to the death of his friend [Mr A]. With the exception of the death of [Mr A], which the Tribunal does not accept if it occurred was connected to the applicant’s music, the incidents of harm reported by the applicant were a threat to someone playing one of his songs and the refusal of DJ’s to play the songs.
110. For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. While the instances are not exhaustive, the Tribunal finds does not accept that the instances of harm claimed by the applicant would amount to serious harm for the purposes of the refugee criteria. While he claims not to have been able to earn much money from music in Zambia he did not claim this was due to any systematic or discriminatory conduct by the authorities, including by restricting airplay of his music. There was no evidence he would be denied the capacity to earn a livelihood of any kind, threatening his capacity to subsist. Indeed, he said he came to Australia to help him learn business skills to enhance his capacity to work in music production to improve his chance of earning a living in the music industry. Further, other musicians have continued to operate in Zambia including friends with whom he claims to have made anti-government music in the past. There was no evidence the applicant faces serious physical harassment or physical ill-treatment or denial of access to basic services due to producing anti-government music or for any other reason and the Tribunal so finds.
111. Further, the applicant had no issues leaving Zambia or obtaining a Zambian passport. While return of his passport was delayed there was no suggestion by the applicant that this was deliberate or any evidence to support such an assertion. As put to the applicant at the hearing, the fact he was able to leave Zambia without incident suggests he was not of interest to the authorities at the time of his departure and the Tribunal so finds.
112. As noted above the Tribunal was also concerned that the applicant waited more than 3 years before claiming protection in Australia. The Tribunal finds this is not consistent with the applicant’s claim to have left Zambia due to threats from authorities and pro-government carders.
113. In addition, there was no evidence before the Tribunal to support the applicant’s claim that his music was widely distributed or that he had a significant profile as an anti-government musician either prior to leaving Zambia or in 2016 when he claims his music was circulated online. In the Tribunal’s view it is reasonable to assume if the applicant had such a profile there would be evidence of this in online reports or in material within the applicant’s control or access. No evidence was provided. This leads the Tribunal to have additional concerns regarding the applicant’s claim that his music was known to authorities and carders and that it generated adverse attention from them and consequently a real chance he would be harmed by them.
114. Further, the applicant testified that no threats have been made to his family who have remained in Zambia including in the home he lived in prior to coming to Australia. This included in 2016 or since, when he says there was renewed interest in his music. The applicant indicated his family had disassociated themselves from him but this was not consistent with his evidence that he was in ongoing contact with his family and that they would support his resettlement in Zambia. Further, while the applicant suggested others who were supportive of his music may have suffered threats because of it, he did not provide any instances of such threats or harm.
115. The Tribunal also noted that applicant claims that [Mr B], with whom he recorded the 2 songs he says drew him to the attention of authorities and carders, he has remained in Zambia without incident and is a recording artist. This suggested the applicant may be similarly able to live in Zambia without risk. The applicant indicated that [Mr B] didn’t record anti-government music anymore so he was no longer of interest, but this did not explain why the applicant, who said he similarly had not recorded anti-government music since 2010 (with [Mr B]) would be at risk with respect to the same music. While the applicant claimed that he would return to making anti-government music on return to Zambia the Tribunal does not accept, based on his actions and activity since 2010 that he would. He said he has not produced anti-government songs since 2010. He indicated this was at least in part due to his family’s desire for him to pursue other career options. He accepted he was not making sufficient money in music in Zambia and that he left to pursue educational opportunities in Australia. Although he claimed he would be motivated to return to anti-government music is he returned to Zambia the Tribunal was concerned that this was not supported by the fact he has not felt motivates to produce such music since 2010, including while in Australia where he faced none of the risks he claimed might prevent him from doing so in Zambia. He said this was because being in Australia had ‘cushioned him’. He said he didn’t want to reinforce negative energy and he didn’t want to end up in that situation again. He said people would follow him and he needed to represent them and he didn’t want to get back into the same situation. He said his family wouldn’t be happy about it.
116. In the Tribunal’s view the applicant’s explanations for why he stopped producing anti-government music, left Zambia and has not returned to making such music were not consistent with his stated intention of returning to producing anti-government music in Zambia. In the Tribunal’s review he has not demonstrated any commitment to the political issues and causes he says would motivate him to become a high profile critic of the government, including when he faced no risk of government harm in the eight years he has been in Australia. While the Tribunal accepts he produced to songs in Zambia in 2010 which might be regarded as critical of the then government, the Tribunal does not accept he would return to producing such music in the further. In any event, even if the Tribunal is wrong and the applicant does return to producing such music, the Tribunal does not accept based on the evidence and country information that he would face a real chance of serious harm as a result.
117. While country information suggests that opposition party members and high profile opponents of the government may face forms of political censorship including arrest and detention, the Tribunal does not accept that the applicant’s profile is such that there is a real chance he would face harm on this basis on return to Zambia. The applicant is not and has never been a member of a political party in Zambia. Nor has he been affiliated with one. He testified he has not been involved in political activity since he left Zambia and has not recorded anti-government music since 2010. While the applicant suggested he would return to such music if he returned to Zambia, the Tribunal did not regard that claim as being consistent with his lack of interest in involvement in political issues since 2010, not withstanding what he claimed was a worsening political situation in Zambia and the fact he was in Australia where his freedom to do so would not be constrained. Accordingly, while the Tribunal accepts the applicant may be identified as a member of a particular social group of ‘musicians producing anti-government music in Zambia’ the Tribunal does not accept that he faces a real risk of harm on that basis alone.
118. Even if the applicant were to record music consistent with the claimed themes of his anti-government songs of 2010, given the country information, the applicant’s lack of political profile and affiliation and his lack of popular following in Zambia, the Tribunal considers there is no real chance he would be seriously harmed by authorities or carders on the basis of such activities. Based on country information it is plausible government radio stations may refuse to play such music. The applicant did not suggest he would face serious harm as a result of this. However, in any event for the reasons outlined above, the Tribunal does not accept this would amount to serious harm. In this regard the Tribunal notes that country information suggests that there are a range of non-government affiliated radio stations in Zambia on which his music could continue to be played. Further, the applicant pointed to a range of online social media platforms he uses to distribute his music including [Online platform 1] and [Online platform 4] and there was no evidence restrictions would apply to such platforms.
119. Given the lack of evidence, the lack of threats to the applicant or his family members while in Zambia or since he left in 2012 and his lack of professional or political profile, the Tribunal does not accept that the applicant would face a real chance of serious harm from authorities or pro-government carders on return to Zambia because of anti-government music he recorded in 2010, music he would record there in the future, membership of a particular social group of ‘musicians producing anti-government music in Zambia’ or for any other refugee-related reason.
Potential separation from his family
120. Although not specifically raised by the applicant, the Tribunal has also considered whether the applicant’s potential separation from his wife and son on removal to Zambia would give rise to a real chance of serious harm.
121. As noted above, there must be a refugee nexus between the claimed harm and the real chance of persecution being faced by the applicant now or in the reasonably foreseeable future. The applicant has not identified any ground in s.5J(1) which would be the essential and significant for any harm caused to him by his separation from his son if he was returned to Zambia, for the purposes of s.36(2)(a) of the Act. The Tribunal does finds he does not have a well-founded fear of persecution on that basis.
122. The applicant testified that his wife and child are Australian citizens and when asked if they would relocate with him to Zambia, he said he wasn’t sure, and that it would be a big change for them. The Tribunal accepts that the applicant’s wife and child may choose not to relocate to Zambia if he is unsuccessful in his application for the visa. While the Tribunal accepts the applicant may suffer emotionally from a geographical separation from his wife and child, the Tribunal does not accept those circumstances give rise to any claim for protection.
123. The applicant did not claim, and based on the evidence the Tribunal is not satisfied that, he has a well-founded fear of persecution on return to Zambia for the reason he may be separated from his wife and son, who may remain in Australia. There was no submission that any harm arising from the possible separation of the applicant and his wife and child 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 his wife or child arises from, would be a consequence of, or would give rise to, persecution for a reason provided for in s.5J of the Act nor did his evidence provide a basis for such a finding.
124. 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 him by his separation from his wife and child if he was returned to Zambia, for the purposes of s.36(2)(a) of the Act.
Conclusion or refugee criterion
125. The Tribunal considered whether the combination of factors affecting the applicant would mean he faces a real chance of serious harm if he returns to Zambia. Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted because of real or imputed political opinion or membership of a particular social group, and he does not meet s.5J(2)(b).
126. As the Tribunal has found that none of the applicant’s claims individually or cumulatively result in him meeting the criteria to have a well-founded fear of persecution, he does not meet s.36(2)(a) for the grant of a protection visa, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection criterion?
127. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s.36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
128. As discussed above in the assessment of the evidence, the Tribunal has found that the applicant does not face a real chance of serious harm on return to Zambia because of real or imputed political opinion arising from his work as an anti-government musician in 2010 or in the future or due to his membership of a particular social group of musicians producing anti-government music in Zambia.

129. The Tribunal notes the threshold for the real risk element of the complementary protection criterion in s.36(2)(aa) is the same as that for the real chance test in the refugee criterion in s.36(2)(a) of the Act.[24] The Tribunal further notes that the necessary and foreseeable consequence element at s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
[24] MIAC v SZQRB [2013] FCAFC 33.
130. There is no evidence, and the Tribunal does not accept, that the applicant would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment if he returns to Zambia.
131. To the extent the applicant’s claim to have left Zambia to seek a better education amount to a claim that he would suffer any of these types of significant harm there is no evidence before the Tribunal that the availability of education services in Zambia are such that amounts to a real risk of significant harm and the Tribunal so finds. In any event, to the event such a claim of inadequate education is made, there is no evidence to suggest this is a risk of harm to the applicant personally but rather to the population generally: s 36(2B)(c).
132. The Tribunal accepts that country information suggests police in Zambia may commit human rights abuses. It also suggests that while the government takes steps to investigate, prosecute, and punish perpetrators of human rights violations, impunity remains problematic. On this basis the Tribunal accepts there may be a risk of significant harm from police in Zambia. However, to the extent the applicant’s reporting of the incident where he was stopped and questioned by police amounts to a claim of a real risk of significant harm to the applicant personally, such a claim was not articulated by the applicant or supported by any evidence. While a risk of harm from police may exist the applicant has failed to satisfy the Tribunal that risk attaches to him personally rather than to the population generally. The Tribunal notes that in this regard it is for the applicant to make his own case. Notwithstanding this, when questioned by the Tribunal regarding the reasons he was stopped by police the applicant did not articulate any reason which would suggest he was at risk personally from this kind of activity by police.
133. The applicant claimed to have been stopped randomly by police due to the location and time of night when he and his friend were out walking. He did not suggest this action was connected with any real or imputed political profile he may have or for any other reason attaching to him personally. He claimed his friend was threatened by an officer but due to the intervention of another officer neither the applicant nor his friend was harmed. The Tribunal find that to the extent that a risk of arbitrary arrest, detention or other human rights abuses by police in circumstances described by the applicant presents a real risk of significant harm in Zambia such a risk to the population generally and not to the applicant personally: s 36(2B)(c). The Tribunal does not accept the applicant faces a real risk of significant harm on this basis for the purposes of in s.36(2)(aa).
134. With regard to the applicant’s potential separation from his wife and child, the Tribunal has found that there is no real chance of persecution being 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 him by his separation from his wife and child if he was returned to Zambia, for the purposes of s.36(2)(a) of the Act.
135. The Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court (agreeing with the (then) Federal Magistrates Court) found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2)(aa).[25] The reasoning applied by his Honour has recently been upheld by the Full Court of the Federal Court.[26]
[25] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding at citing the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM (as his Honour then was), 1 March 2013) at [61]-[65].
[26] GLD v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing).
136. The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[27] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s.36(2B)(a) (relocation) and s.36(2B)(b) (protection from an authority) are to have any application.[28]
[27] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [61]-[62].
[28] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [63].
137. Further, the Court noted the circularity in the operation of s.36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[29] The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia.[30]
[29] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[30] SZRSN v MIAC [2013] FCA 751 at [47].
138. Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s.5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention of causing ‘extreme humiliation that is unreasonable’.[31]
[31] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA at [65].
139. As such it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[32]
[32] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s.36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]-[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. The Full Court in GLD v Minister for Home Affairs cast doubt on the distinction drawn in MZAEN and affirmed the approach in SZRSN, at [67].
140. Further, in GLD v Minister for Home Affairs[33], the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicants removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[34]
[33] At [88]-[89].
[34] See also FMN17 v MICMSMA [2020] FCA 326.
141. As noted by the Full Court in GLD v Minister for Home Affairs:[35]
[35] [202] FCFCA 2 at [50] per Allsop CJ and Mortimer J.
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.

142. For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to be separated from his wife and child and would suffer emotionally as a result of any separation from them, it does not accept that he is owed complementary protection on this basis.
143. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk that the applicant will suffer significant harm for the purposes of s.36(2)(aa) of the Act due to being separated from his Australian citizen wife and child.
144. The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm singularly and on a cumulative basis as discussed above, with respect to his claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s.36(2)(aa). The Tribunal finds that the applicant’s return to Zambia does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s.36(2)(aa) of the Act.
145. The Tribunal, therefore, finds that there are no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk of significant harm for the purposes of s.36(2)(aa) of the Act.
CONCLUSION
146. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
147. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
148. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
149. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:

(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

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

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

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

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

[2020] AATA 4986

17 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing