1732703 (Refugee)

[2021] AATA 3072

1732703 (Refugee) [2021] AATA 3072 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732703

COUNTRY OF REFERENCE:                   Zambia

MEMBER:Simone Burford

DATE:14 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2021 at 1:41pm

CATCHWORDS

REFUGEE – Protection visa – Zambia – political opinion – former member of the UPND Youth – particular social group – supporters of the gay/LGBTI community – women at risk – raped by the father of her oldest son – gender-based violence – women returnees from Western countries – COVID-19 pandemic – spread of sexually transmitted diseases in Zambia – geographic separation from partner and son – credibility concerns – significant period she remained unlawful in the community – delay in lodging the visa application – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 5L, 36, 65, 499

Migration Regulations 1994, rr 1.03, 1.12; Schedule 2

CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD v Minister for Home Affairs [202] FCFCA 2
SZRSN v MIAC [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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [age]-year-old citizen of Zambia.  She came to Australia on [date] April 2017 as the holder of [a] student [visa]. Her son was a dependant on her visa and arrived some months later.

3. She has another son in Australia with her current partner, who is also a citizen of Zambia.  This child was born in Australia in [year]. Her older child was born in [year] and is now [age] years of age.

4. The applicant was born in Lusaka, Zambia and speaks English and Bemba.  She identified herself as a Christian.

5. Her parents are deceased.  She had [number] siblings but [number] of her siblings are deceased.  Two of her sisters live in Australia with their families.  One of her sisters lives in the [Country 1].  One is married [and] lives in Lusaka with her family.  One brother is ill with HIV and lives [in a place] on the outskirts of Lusaka. [It] belongs to one of her sisters.  Her other sisters live in [different countries].

6. Prior to coming to Australia she had been living for a number of years with her sister in Lusaka.  That sister is now in the [Country 1].  She completed year [level] in Zambia and had been [studying] for about six months when she decided to come to Australia.

7. She is living in Australia with her partner, [name deleted], and their son. He partner is a Zambian citizen who is also from Lusaka.  He is studying and working in [a specified] field. His parents [and] siblings remain in Lusaka.

8. Her older son is living in Australia, however, he has not spoken to her since he was in Year [level] at school because he blamed her for things that happened to him.  He had been living with one of her sisters in Australia but at the time of the second hearing she understood he had moved out.  She did not know why.

9. The applicant applied for the protection visa on 6 October 2016. The applicant’s migration history was discussed with the applicant at the hearing.  Issues in relation to the applicant’s migration history are dealt with further below.

   Protection claims

   Protection visa application

10. In her application for review and in her interview before the Department of Home Affairs (the Department) on 30 October 2017 the applicant made a number of claims regarding her family circumstances and fear of harm on return to Zambia.  These claims were, in summary:

    ·The applicant was raped when she was [age] by men at a [venue 1] including the father of her child who raped her regularly and did not want to support her or the child. As a result, she claims she was a ‘woman at risk’.

    ·She was captured several times by policemen while walking home after night school.  She was expected to comply with police demands. If returned to Zambia she would be at risk of living in substandard accommodation and face a risk of rape by authorities who would believe as a returnee from a Western country she is not infected with HIV/AIDS. She will be unable to afford basic medications and fears being detained or ‘made unlawful’.

    ·She had joined a political party (UPND Youth) which she claimed was ‘one of the worst decisions I ever made in my life.’ She said she joined because she was looking for employment but they had ‘clashes at the youth level’ and  some of the members of other political parties threatened to burn any house she resided in. She claimed that after returning from religious worship, she found that the house she resided in had attempted petrol bombings or break-ins and that she still received threatening emails from unknown persons.

    ·The majority of the applicant’s elder sisters and their families currently live and work in Australia and she is estranged from the majority of her family in Zambia and is fearful for her life due to past disputes. Her family members residing in Australia do not have any options to include her on their Australian entitlements. According to the delegate’s decision she clarified at the interview that she couldn’t live with her family because her political activities placed them at risk.

    ·The applicant claimed to have a ‘membership in a particular social group’  stating that she had participated in different youth programmes In Zambia hoping to have a connection to employment and had supported and attended what could be perceived as an “underground” gay rights movement. She claimed that she had received information from people who ‘travel back and forth’ to Zambia that people abroad like her are being accused of funding gay rights and organisations and she has been informed that her name is under investigation. She claimed she would ‘be kidnapped by people as I will not voluntarily join them in denouncing gay rights.’ She fears harm on this basis.

    ·She claims that as Zambia is land locked with neighbours such as Congo (DRC), Zimbabwe and Angola continuous political unrest in those countries means it is very common for criminals to enter Zambia and commit very dangerous crimes including murder and armed robbery. Women from those countries often travel to Zambia in search of a better life but more often become unregulated commercial sex workers which has caused the spread of both sexual and non-sexual diseases, particularly exposing women including married women. She claims that women are in fear ‘as the moral standards have been brought down.’

    Submissions to the Department

11. The applicant made a written ‘statement of claims’ dated 28 September 2016 accompanying her application.  She did not submit any other evidence to the Department in support of the application.

    The delegate’s decision

12. On 28 November 2017, a delegate of the Minister refused the protection visa application. The delegate found that the applicant’s claims to fear harm from her family members, as a result of having been raped by her son’s father, as a result of not having family support or as a gay rights supporter lacked credibility.  Further, the delegate found that the applicant’s delay in seeking protection cast doubt on her claims.

13. The delegate accepted that high level members of the UPND risked being targeted by the ruling Patriotic Front government but did not accept the applicant as an average, low-level supporter of the UPND more than 10 years ago faces a real chance of persecution on return to Zambia for those reasons.

14. The delegate accepted the applicant was a member of a particular social group of Zambian women who have returned from Western countries but found that there was no country information to support the applicant’s claim that she would be raped because of her time spent in a Western country and the delegate was not satisfied that she would be at risk of serious harm for that reason if she were to return to Zambia.

15. With respect to her claims regarding incursions from neighbouring countries the delegate did not accept the fear of persecution was for any of the reasons in s.5J(1)(a) of the Act. With respect to complementary protection the delegate did not accept the risk of rape in Zambia was so widespread or severe that almost everyone is potentially affected by it.  The delegate did not accept the applicant’s personal circumstances were such that she faced a real risk of significant harm on this basis.

    Review application

16. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 22 December 2017. She provided a copy of the delegate’s decision to the Tribunal.

17. The applicant failed to appear at her initial hearing on 30 October 2020 and the matter was dismissed.  The matter was reinstated on 16 November 2020 as it appeared the applicant had been given inconsistent information by the Tribunal Registry regarding the time at which she was required to appear.

18. Appearances scheduled on 2 December 2020 and 15 December 2020 were rescheduled at the applicant’s request. The applicant appeared at initial hearing on 24 December 2020. At the initial hearing the Tribunal outlined for the applicant the issues before it and confirmed the applicant’s claims for protection. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to her personal circumstances since the application was filed. The applicant confirmed her claims for protection as outlined above. The review was adjourned to a later date.

19. A further appearance on 12 January 2021 was postponed at the applicant’s request. A further appearance scheduled for 4 February 2021 was postponed due to the closure of the Perth Registry for in person hearings due to a COVID-19 lockdown in Perth.

20. Following the lifting of restrictions, the applicant appeared again on 17 February 2021.  The applicant’s claims for protection and the evidence on which she was seeking to rely in support of her claims were discussed in detail at the second hearing. At that hearing the applicant told the Tribunal she had been suffering from a sore stomach at the time the two postponements were sought in December 2020 but that she had now recovered from that illness. The Tribunal notes she did not raise any concerns of claims in relation to this.

21. The applicant was not represented in relation to the application for the visa and the review. The applicant indicated she did not require the assistance of an interpreter and the Tribunal was satisfied she was able to participate fully in the hearings without an interpreter present. In this regard the Tribunal notes that English is the official language of Zambia.[1]

    [1] <>

    The applicant was provided with additional time following the first and second hearings to provide further evidence and submissions. Additional material was provided following the first hearing.

    Submissions to the Tribunal

22. In support of applications for postponement of her hearings the applicant submitted the following documents:

    ·Birth certificate for son, [Name deleted].

    ·Medical certificates dated 30 November 2020, covering the period from 30 November 2020 to 5 December 2020, and dated 7 December 2020, covering the period from 7 December 2020 to 21 December 2020, indicating the applicant was ‘unfit for work or study’ in that period.

23. On 4 January 2021, prior to the second hearing, the applicant submitted the following information or evidence in support of her application:

    ·Photo titled ‘Zambia police brutality is escalating towards supporters of gay rights’.

    ·Facebook post (undated) from ‘Zambian Watchdog’ headed ‘Zambia police brutality against my choice political opposition party’– noting a police shooting of two people at police headquarters as part of a process to arrest the UPND leader.

    ·Facebook post (undated) from ‘Zambian Watchdog’ headed ‘Zambia human rights violations. Killing of unarmed citizens (extra judicial killings)’ – noting death of a state prosecutor.

    ·Screen shot of CNN (undated) – ‘Countries with confirmed cases of South African Covid Variant including Zambia and Australia’ – noting ‘Zambia also now has the problem of the second wave of Covid - I am afraid for myself and my 18 month old son of catching it in transit or in Zambia. Zambia does not have the medical capacity to handle the Covid19 variant and many people are dieing.’ (sic)

    ·Page titled ‘My opposition political party choice and Zambian citizens are living in fear of extra judicial killings escalating and going unpunished.’ Attached is a first page of a letter from UPND Office of the President to the Chairperson of the Zambian Human Rights Commissions headed ‘Request to investigate Extra-judicial killings and Gross violations of human rights by the Zambian Police.’

24. At the hearings, the Tribunal discussed with the applicant her claims and country information in relation to Zambia. This information and the applicant’s oral evidence to the Tribunal at both hearings are discussed further below.

    ISSUES

25. The issue in the review is whether the applicant has a well-founded fear of persecution due to her family members, as a result of having been raped in Zambia as a teenager including by her son’s father, as a result of not having family support, as a gay rights supporter, as a woman returning from a Western country or as a woman in Zambia from insurgents from neighbouring states or for any other reason or whether complementary protection provisions otherwise apply.

    DECISION-MAKING FRAMEWORK

    Criteria for a protection visa

26. 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.

27. 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.

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

29. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.

30. 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

31. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2]

    [2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.

32. The courts have made it clear for some time that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[3] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]

    [3] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

33. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]

    [5] MIMA v Rajalingam (1999) 93 FCR 220.

    [6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

34. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]

    [7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

    [8] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

1. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[9]

   [9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

2. The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular [8], [13], [17]–[19] and [27]–[28].

3. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[10]

   [10] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

4. 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

5. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

6. The Tribunal notes that in this case DFAT has not produced a Country Information Report for Zambia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Analysis, reasons and findings

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of reference

8. The applicant travelled to Australia on a Zambian passport and claims to be a Zambian citizen. A copy of the applicant’s Zambian passport issued [in] 2011 was provided to the Department. The applicant confirmed at the hearing that she is a citizen of Zambia. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. On this basis, and given the delegate had no concerns about her claimed nationality, the Tribunal accepts the applicant is a national of Zambia and has assessed her protection claims accordingly.

9. The Tribunal notes the applicant gave evidence she has spent her whole life in Zambia living in Lusaka.  Her evidence was that her family members in Zambia and her partner’s family members live in Lusaka.  She indicated if she returned to Zambia she would live in Lusaka and the Tribunal has assessed her claims on the basis she would be returning to Lusaka.

   Applicant’s migration history

10. As noted above, the delegate’s decision contained a summary of the applicant’s migration history in Australia which was discussed with the applicant at the hearings.  In summary:

    ·On 25 September 2006 the applicant applied for an offshore student [visa]. She was granted the visa on 22 March 2007.

    ·[In] April 2007 the applicant arrived in Australia on a student [visa].

    ·On 21 May 2007 the applicant’s student [visa] ceased and she was granted a further Student [visa] onshore. That visa ceased on 30 December 2008.

    ·On 23 December 2008 the applicant applied for a further student [visa] onshore and was granted a bridging visa A in association with that application.

    ·On 1 May 2009 the applicant was granted a further student [visa] onshore.

    ·On 23 September 2009 the applicant was reported to the Department through a non-compliance notice from her education provider stating she had been “consistently unfinancial and non-attending, despite numerous attempts by the college to assist”.

    ·On 16 April 2010 the applicant’s onshore student [visa] expired.

    ·On 6 October 2016 the applicant applied for the protection visa.

11. The applicant confirmed at the hearing that this was a fair and accurate summary of her migration history.  She confirmed that after her student visa expired in April 2010 she became unlawful.  She remained in the community until making her application for a protection visa when she was granted an associated bridging visa.

12. For the reasons outlined below, and as discussed with the applicant at the hearing, the Tribunal finds that the applicant’s considerable delay in seeking protection casts doubt on the credibility of her claims to fear harm for reasons associated with events which occurred prior to her leaving Zambia in 2007.

    The applicant’s credibility

13. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were marked inconsistencies in aspects of her claims in relation to events which occurred in Zambia including the alleged attacks by police and the alleged rape by [Mr A]. On critical aspects of her claims she struggled to provide meaningful detail and context and she was unable to offer any corroborative evidence, in particularly in relation to her claimed membership of the UPND.  Further aspects of her claims including in relation to threats made against her as a supporter of gay rights were implausible given the nature of her claimed association with such groups and the length of time she has been absent from Zambia.  These concerns are detailed further in the assessment below.

14. In the Tribunal’s view, the applicant’s conduct in Australia contributes further to doubts regarding her credibility and claims for protection.  These include remaining unlawfully in the community for a period of more than six years and her delay in seeking protection of more than 10 years after her arrival in Australia. 

15. The Tribunal discussed with the applicant the delay in seeking protection.  The Tribunal noted it is reasonable to expect that if someone claims they left a country due to fears of harm and is afraid to return on that basis that a failure to seek protection at an early opportunity may cast some doubt on their claims. The Tribunal noted that the applicant came in 2007 and did not apply for the protection visa until October 2016.  The Tribunal asked why she delayed seeking protection and she said that she asked her [sister] about it and she put fear in her and told her not to do it. She said her sister said ‘just forget about it, don’t do it’. The Tribunal asked if she sought advice from a migration agent or the Department and she said every time her sister would put fear in her and said ‘don’t call the Department’.  The Tribunal asked about what she did when her visa expired and she said she was trying to find out by asking how she could do it but her sister put fear in her.  She said she was repaying money to her sister. She said she didn’t have the money to ask a lawyer and she was scared to ask the Department.

16. The Tribunal asked why she applied for protection in 2016 and she said that her older son’s school told her how to apply.  This was when her son was in Year [level]. The Tribunal asked why she didn’t ask the school for help earlier and she said that she didn’t know how to approach them. 

17. The Tribunal is not persuaded by these explanations. While the Tribunal appreciates the applicant may not have fully understood the process for seeking protection, in the Tribunal’s view this does not explain a delay of more than six years in resolving her visa status or delaying seeking protection.  The Tribunal notes that the applicant did not seek advice in relation to her options until the school offered assistance in 2016.  The applicant had ample opportunity to seek advice and assistance in the six years prior to that during which sis was unlawful or in the 4 years when she held a substantive or bridging visa.  The Tribunal regards that she would have done so in a more timely fashion if she had left Zambia to escape persecution or threats of serious harm as claimed. The Tribunal finds the applicant’s failure to apply for protection earlier is an indication that she was not fearful of serious or significant harm when she left Zambia and arrived in Australia, or in the 10 year period she was in Australia before making the application for protection.

18. Further, the Tribunal notes that she made a claim in 2016 which would have been when her son was on Year [level]. This is when she said her son stopped talking to her because it was discovered they were unlawful which was uncovered in the context of his trying to go to university.  In the Tribunal’s view it can be inferred from this that she made the application after the school learnt she and her son were unlawful.

19. The Tribunal finds the applicant’s conduct both with respect to the significant delay in seeking protection and the significant period she remained unlawful in the community contribute further to doubts regarding her credibility and the genuineness of her claims for protection. 

    Harm as a supporter of the UPND

20. When the Tribunal asked the applicant at the hearing why she feared harm on return to Zambia the applicant said it was because of her previous support for the UPND opposition party in Zambia and because she was a supporter of the gay community. She said she feared death.

21. In her statement of claims she stated:

    Prior to traveling to Australia, I had joined a political party. This is one of the worst decisions I ever made in my life. I joined politics because I was looking for some youth employment. However, we had some clashes at youth level and some of the members of other political parties threatened to burn any house I resided in. During weekend afternoons after returning from religious worship, we would fond that the house were I resided had attempted petrol bombings or break-ins. I still receive threat e-mails, I am unsure of who it is, I have actually changed my e-mail address many times over. These threats normally relate to taking away of my life. I only feel comfortable to carry on with life because I am in Australia.

    (unaltered from original)

22. In support of these claims she submitted copies of two undated Facebook posts from ‘Zambian Watchdog’. One related to a police shooting of two people at police headquarters which was said to be part of a process to arrest the UPND leader, Hakainde Hichilema. The applicant annotated this post stating ‘Zambia police brutality against my choice political opposition party’. The other related to the shooting of a state prosecutor by ‘an overzealous officer’.  On this the applicant annotated ‘Zambia human rights violations. Killing of unarmed citizens (extra judicial killings)’. A further page bearing a notation from the applicant stating ‘My opposition political party choice and Zambian citizens are living in fear of extra judicial killings escalating and going unpunished’ included the first page of a letter from the UPND Office of the President to the Chairperson of the Zambian Human Rights Commissions headed ‘Request to investigate Extra-judicial killings and Gross violations of human rights by the Zambian Police.’ The Tribunal was able to locate the remainder of this letter on the internet.

23. At the hearing the applicant told the Tribunal she was a member of the UPND when she was in Zambia.  She said she was a member or a youth arm of the organisation handing out t-shirts for UPND.  She said that she became involved because she was only studying a few days a week and so on other days she was sitting around and they were close by. The Tribunal asked if she joined and she said she did.  The Tribunal asked what this involved and she said she just went there and said she wanted to be involved. She said it was voluntary. She said she started doing it in around 2000 or 2001 and she did it until she came to Australia and she did it every day except the two days she was [at] school. She said they handed out leaflets and posters.  She could not remember who any of the candidates on the posters were. She couldn’t remember the address of the office but remembered the area. She could recall the elections in Zambia were in 2006 but could not remember when any other elections were held. She said they worked all day for the UPND because they never had anything else to do.

24. When the Tribunal asked what attracted the applicant to the UPND, she said they promised when they won they would give them jobs.  The Tribunal asked if she had had any involvement with the UPND since coming to Australia and she said just reading updates on social media.  When the Tribunal asked if she would be involved with them again in Zambia she said she wouldn’t because of members who were killed the year prior. The Tribunal noted it had been a significant period of time, more than 13 years since she left Zambia and asked why she thought she would still be at risk for activities she was engaged in so long ago.  She said that she had been told by someone in Zambia that they were killing members of the UPND. The Tribunal queried why if she was not going to be involved in the UPND on return she would be targeted as a member now.  She said that she would be recognised by some former UPND members who were now members of the ruling Patriotic Front (PF) party. The applicant said there were people in the compound she used to work with who just drank and were members of PF and they used to know her. The Tribunal asked how she knew they were still there and she said her friend told her.  The Tribunal queried where her friend lived and she said her friend just moved [overseas] three years ago.

25. The Tribunal asked who she thought would harm her and she said the other youths from PF. She said [Mr B] was one PF member who still lived there.  She said existing members of UPND were still there.  She said existing members were scared.  

26. She said she was afraid she wouldn’t have anywhere to live if she returned and she feared she would be killed.  The Tribunal asked if she could live with her brother and sister and she said they wouldn’t look after her as they only wanted money. The Tribunal queried why her partner wouldn’t be able to support her if she returned to Zambia and she said it would be cheaper for him to support her here. The Tribunal put to the applicant if she had her partner’s support she could afford to live in Zambia and she said it would be expensive.

27. The Tribunal asked if she had suffered harm in Zambia and she said she was beaten in 2002 but she didn’t know by whom. The Tribunal queried why she had continued working with UPND after that and she said ‘yes because they were promising things’.  She said they would find them work when they got into office and she found comfort in that. She said you have to know someone to get a job.  She said that they were beaten badly again and their clothes were stripped off in 2003.  She said they were just walking at the time after delivering the t-shirts. She said they reported it to the police but you have to pay them something to get them to react.  She said she also reported it to the UPND and they were told not to be moving about in the evening. She said there were no other incidents. She said as a result of the incident she had a fractured leg and she was given ‘Neurofen and a bandage’.

28. The Tribunal queried whether she had evidence of her membership of the UPND and she said she would have to get them to send her a card.  She said she had been phoning them to ask them to get her a card.  The Tribunal queried when she had asked for the card and she indicated it was a week before the hearing.  She said the delay was because she had to pay $10 to be a member from Australia.  She said last time she asked someone to obtain it for her she said they would pay for her membership, or to renew it, but they disappeared. At the time of decision no evidence corroborating the applicant’s membership of the UPND has been provided.

29. 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.[11]

    [11] 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.[12]

    [12] United States Department of State, 2019 Country Reports on Human Rights Practices: Zambia, 11 March 2020, The Tribunal notes the 2020 version of this report was released after the hearing and is in similar terms Zambia - United States Department of State.

1. 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.[13]

   [13] United States Department of State, 2019 Country Reports on Human Rights Practices: Zambia, >

   Freedom House states that ‘Zambia’s political system features regular multiparty elections, and some civil liberties are respected. However, opposition parties face onerous legal and practical obstacles to fair competition, and the government regularly invokes restrictive laws to curb freedom of expression and ban peaceful demonstrations and meetings. Political violence remains a problem’.[14]

   [14] Freedom House, Freedom in the World 2020, Zambia, >

   The 2019 report noted: ^[15]

   Opposition leaders also face harassment and arrest on trumped-up charges, and the sidelining of such key figures can seriously hamper the ability of opposition parties to gain power in elections. Threats of arrest and violence continued for UPND leader Hakainde Hichilema, Zambia’s most prominent opposition figure, in 2018.

   [15] Freedom House, Freedom in the World 2019, 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.[16]

   [16] Amnesty International, Country Report Zambia 2017/18, 2018,

2. The United Nations has stated that ‘Zambia has significant levels of violence and injustice, however, often in multiple and hidden forms’.[17] An article in the Daily Mail refers to the usurping of power by cadres, which has led to violence, entitlement and illegal appropriation of land.[18] The article states that:

   ...given the wrong notion that the ruling party owns the State and its institutions, ruling party caders tend to illegally usurp powers and functions of legally-established governance institutions such as the police and local government authorities. A typical example is the usurpation of powers to demarcate and allocate land by ruling party cadres under different administrations.[19] Very recently, the President has proposed sweeping changes to the Zambian constitution which critics say are aimed at reducing scrutiny and improving his chances of retaining power at the 2020 (?0 elections. The United States ambassador to Zambia, Daniel Foote has referred to a ‘deterioration of Zambian democracy and institutions.[20]

   [17] United Nations, Zambia, Country Analysis Summary Report, Daily Mail, Understanding the cadre party politics, 6 June 2018, Daily Mail, Understanding the cadre party politics, 6 June 2018, Africa Confidential, Lungu to change basic law, 19 July 2019, Vol 60 no 14.

3. 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.[21]

   [21] Freedom House, Freedom in the World 2019, Zambia, >

   The Tribunal put to the applicant that country information suggested there are some political irregularities, reports of violence during elections and the suppression or disruption of opposition by ruling party carders in Zambia, but overall there are few assassinations and political killings and the country is fairly democratic and stable.  

4. The applicant responded that it wasn’t that stable and that most of the time people drink alcohol attack members of opposition parties. She said the govt tries to stop it but it keeps on growing.

5. The country information submitted by the applicant is broadly consistent with other country information which indicates that high profile political opponents of the PF may be at risk of violence from PF cadres.  She said that the letter to the Human Rights Commission and the reports showed that there were attacks on the UPND. In response to information that high profile political opponents may be targeted the applicant said that they just target anyone. The Tribunal noted that the information suggested the Human Rights Commission was seen as having a role to play in oversighting these kinds of abuses and she said there was no freedom of speech and it takes a long time for the Human Rights Commission to act.

6. The Tribunal put to the applicant that country information suggests that Zambia has become more repressive of opposition in recent years and that high level opposition political figures have been subjected to violence and arrest by the PF government and supporters.  The applicant said it was also low level supporters an they will target anyone.

7. While the Tribunal accepts that Zambia, although politically stable for many years, has become more repressive of opposition in recent years and that high level opposition political figures have been subjected to violence and arrest by the PF authorities and carders, the Tribunal had significant concerns regarding the credibility of the applicant’s claims to be at risk because she was a youth member of the UPND.  The Tribunal accepts on the basis it is plausible that the applicant may have had some low-level involvement with UPND Youth in Lusaka.  However, the Tribunal does not accept the applicant was involved through genuine political commitment to the UPND, reflected in her lack of engagement with UPND since leaving Zambia. On her own evidence her involvement was motivated by the fact she had nothing else to do and was hoping to gain employment via her involvement at some stage.  Further, the Tribunal does not accept that the applicant worked for the UPND all day, everyday bar the two days she was [at] school.  The applicant’s evidence as to what she did for such long periods was vague and lacking in the detail one would expect from such a lengthy commitment.  Further the Tribunal considered the applicant’s lack of knowledge of the political candidates she was supporting through her claimed work at that time, including putting up candidate posters, was not consistent with the claimed length and level of her involvement.  Further the applicant’s knowledge of key political milestones such as elections was limited to knowing one election was held in 2006.  In addition, she had no evidence to support her claim to have been a member of the party.  Her earlier testimony was that she just went and said she wanted to join.  She later said she had been trying to get a membership card from Australia by paying $10 to join shortly prior to the hearing but had been unsuccessful.

8. The Tribunal accepts the applicant occasionally handed out t-shirts for the UPND in Zambia and was a low-level youth supporter of the UPND.  The Tribunal does not accept the applicant would be engaged in activities supporting the UPND on return to Zambia. The Tribunal does not accept her lack of involvement would be motivated by fear of harm from PF supporters.  The Tribunal notes this claim was not consistent with her evidence that she only became involved with UPND because they offered jobs and she had nothing to do. Given her original involvement was motivated by a desire to obtain employment which she says was never forthcoming, and not any articulated political commitment to UPND policies or platforms, the Tribunal considers that the applicant would not be involved with UPND on return as she has no interest in such involvement, evidenced in her lack of engagement with the UPND since leaving Zambia, even when free to do so from Australia.

9. Further, the Tribunal accepts based on country information regarding general crime levels in Zambia that the applicant may have been attacked on a roadside with a friend on two occasions in 2001 and 2003.  However, there is no evidence to link those attacks to her claimed work with the UPND.  Further, the fact that she claimed to have continued to work with the UPND for several years following these attacks casts doubts on her claims they were politically motivated.  In this regard the Tribunal notes in her application and before the delegate, the applicant claimed to have been the subject of firebombing and robberies in Zambia due to her UPND involvement and to have received threatening phone calls and emails in Australia.  She did not mention these before the Tribunal.  When the Tribunal put to her that this cast doubt on the genuineness of those claims she said she had forgotten.  This casts significant doubt on the credibility of those claimed events and on her broader claims to have been politically targeted.

10. In any event, the Tribunal had significant concerns that the applicant faces a risk of harm for UPND involvement given the significant length of time which has elapsed, more than 13 years, since the applicant claims she was handing out t-shirts for UPND.  The applicant claimed to have been told by people that UPND members were still targeted in Zambia and that members of PF from the old neighbourhoods she operated in would recognise her and harm her.  However, as noted above, the applicant declared she would not be involved in UPND on return to Zambia and the Tribunal does not accept that she would be identified as a member of UPND on return to Zambia in such circumstances. 

11. The country information before the Tribunal indicates that political violence among the parties in Zambia does occur. However, in the country information cited, significant actions against opposition parties have been focused on UPND leadership with occasional interparty violence among the members. Country information notes in this respect that the political system in Zambia remains relatively stable compared to most countries in the region, and while there are signs of increasing ruling party restrictions on opposition activity, the opposition remains free to operate, including through elected officials and representatives participating in the parliamentary system.  In any event, the applicant indicated she would not be involved with the party and the Tribunal has found this would be die to her lack of political interest and not a fear of being targeted as a member of the UPND.  This is consistent with her lack of involvement, or demonstrated interested, in Zambian politics in the 13 years she has been in Australia.

12. Given the Tribunal’s considerable concerns with the credibility of the applicant’s claims to have been an active supporter of the UPND and the length of time which has elapsed since she left Zambia and that was no longer involved with the UPND the Tribunal does not accept the applicant would be identified as or imputed to be a member of the UPND on return to Zambia.  The Tribunal finds the applicant would not become involved with the UPND and that this would reflect her lack of political commitment or interest in the UPND platform and not any fear of harm.

13. The Tribunal does not accept that the applicant would face a real chance or a real risk of serious harm on return to Zambia as a former supporter of UPND youth, because she worked as a low level campaigner for UPND or because she would be imputed to be a member or supporter of the UPND on return to Zambia now or in the reasonably foreseeable future.

    Harm as a supporter of gay rights

14. In her statement of claims the applicant stated:

    While in my country of origin, I participated in different youth programmes hoping to have a connection to employment. Unfortunately, gay rights are still an issue and nonstarter in my country of origin. I supported and attended what can be seen as an “underground” gay rights movement. According to the information that I have received through members of my community that travel back and forth, people abroad like myself are being accused of funding gay rights and organizations. I have been informed through people that affiliated to the gay rights movement I joined that my name is under investigation. I can only imagine what they will do to me if they find out that Australia cannot provide me support over this issue. I feel I will be kidnapped by people as I will not voluntarily join them in denouncing gay rights. I am in fear of psychological harm.

15. In light of the applicant’s claims the Tribunal has considered whether the applicant faces a real chance of serious harm due to membership of the particular social group (PSG) of ‘supporters of the gay/LGBTI community’.

16. Section 5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it, or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution.

17. In the case of the applicant the Tribunal accepts that the PSG ‘supporters of the gay/LGBTI community’ is consistent with the grounds set out in s.5J(1)(a) of the Act. The groups share common characteristics that cannot be changed and that could be perceived by others. The characteristic which distinguishes the group is not the fear of persecution.

18. In relation to the applicant’s claims to be a member of the PSG of ‘supporters of the gay/LGBTI community’ and to fear harm on this basis, the applicant told the Tribunal she had friends who are gay and ‘gays are not allowed in Zambia’. She said there is a law that you can’t support gay rights. The Tribunal asked how she had supported gay rights in Zambia and she said she went to a friendship meeting. She said they called it that because they didn’t want the police to know. She said she couldn’t remember when this was. The Tribunal asked if she had ever come to the attention of authorities for supporting gay people and she said the police came to her friend’s house in 2004 and gave them a warning and told them if they found them there again they would be arrested. She said the police thought she might have been gay as well. She said her gay friend in Zambia was ‘[name redacted]’ but she had now moved to [Country 2].

19. The Tribunal asked whether the applicant had any involvement with the gay rights community in Australia and she said she was friends with her neighbours who were gay. The Tribunal asked if any members of her family were gay rights activists and she said no, she said her family said it was a sin.

20. The Tribunal put to the applicant that while country information suggested it was unlawful to engage in same sex activity and that members of the LGBTI community may be liable for arrest and imprisonment, there was no information before it that there was any law against supporting gay people. She responded that it was illegal. She said that if you supported gay people, the third time you were detected they imprison you for six months. She said that was what she was told by the police.  She said that in Zambia if they hear you are a supporter, they would report you and she was scared she would be arrested. The Tribunal put to the applicant that the fact that there was reporting from gay rights groups in Zambia, suggests they are active but there was no reporting that they are arrested for being gay rights supporters or activists. The applicant said they do get arrested.

21. The Tribunal notes the applicant did not offer any evidence or country information to corroborate this claim and the Tribunal was unable to find any information regarding such an offence in the country information available to it.

22. When the Tribunal asked how she would be identified as a supporter of the gay community, she said she would be holding her female friend’s hand.  The Tribunal asked if this had happened to her before and she said a few months after the police came to the house she was walking with her friend and someone reported them to police and the police found them. She said she had just been telling her friend something. Police told them they were reported as kissing and hugging and the police said ‘don’t do it again’ and indicated they had seen her at the house before.  When the Tribunal queried whether it was the same police officers she then said the police took her to the police station and the police there recognised her.

23. The Tribunal queried whether she had mentioned the police attendance at the house or being taken to the police station before the Department, she said she thought she did.  However, the Tribunal put to her that this was not mentioned in the delegate’s decision.  She did not respond to this.  The Tribunal notes this was also not mentioned in her statement of claims.

24. With respect to responses to sexual orientation and gender identity in Zambia, the United States Department of State ‘Zambia 2019 Human Rights Report’[22] states:

    The law criminalizes consensual same-sex sexual activity, and penalties for conviction of engaging in “acts against the order of nature” are 15 years’ to life imprisonment. Conviction of the lesser charge of gross indecency carries penalties of up to 14 years’ imprisonment. The government continued to reject calls to recognize and protect lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights. In September 2019 while attending the 74th Session of the UN General Assembly, the president reiterated that LGBTI rights “cannot be replicated in Zambia because they are a taboo” in local culture. The government enforced laws against same-sex sexual activity and did not address societal discrimination against LGBTI persons. In November 2019 the Lusaka High Court upheld the convictions of two Kapiri Mposhi gay men for consensual same-sex sexual conduct and sentenced them to the mandatory minimum sentence of 15 years’ imprisonment. In May the president pardoned the two men along with other inmates released as a COVID-19-induced health measure reducing prison overcrowding.

    Societal violence against persons based on gender identity and sexual orientation occurred. LGBTI persons in particular were at risk of societal violence due to prevailing prejudices, misperceptions of the law, lack of legal protections, and inability to access health-care services. Most politicians, media figures, and religious leaders expressed opposition to basic protections and human rights for LGBTI persons and same-sex marriage.

    According to LGBTI advocacy groups, societal violence against LGBTI persons occurred, as did discrimination in employment, housing, and access to education and health care. LGBTI groups reported frequent harassment of LGBTI persons and their families, including threats via text message and email, vandalism, stalking, and outright violence. Freedom of expression or peaceful assembly on LGBTI issues remained nonexistent.

    [22] Country Reports on Human Rights Practices for 2019 United States Department of State • Bureau of Democracy, Human Rights and Labor, pp 24–25, Zambia - United States Department of State 2019 Country Reports on Human Rights Practices - United States Department of State. The Tribunal notes the 2020 version of the report was released following the hearing and is in substantially the same terms. 2020 Country Reports on Human Rights Practices - United States Department of State.

25. In 2013, it was announced in the media by the Zambian Police that the public is encouraged to report homosexuals to the police. A police spokeswoman told the media that:[23]

    homosexuality was a serious offence and appealed to the public to report anyone involved to the police.

    [23] Human Dignity Trust:

1. The applicant submitted one photograph which she said was of a male found with another male in Zambia who was arrested and beaten.  She said the picture was sent to her by a friend in [Country 2].  The Tribunal accepts based on country information that it is plausible the image depicts someone arrested for breaching Zambia’s prohibition on same-sex activity.  In that respect it is consistent with country information detailed above.  However, as the source and details of the picture were unable to be identified the Tribunal is unable to place significant weight on it.

2. The Tribunal also finds that the country information suggests that there is little social or official tolerance for the LGBTI community in Zambia. The country information suggests that those who are or who are perceived to be engaged in same sex relationships face a risk of arrest and social discrimination.  In some circumstances they may face a risk of violence from authorities or vigilantes.

3. However, as discussed with the applicant at the hearing, it is less clear that those who merely support the LGBTI community, but who are not imputed to be themselves gay, face serious or significant on that basis.  The country information suggests that ‘freedom of expression or peaceful assembly on LGBTI issues remained non-existent’ however there was no country information supporting a claim that supporting LGBTI rights carried with it a risk of arrest, mistreatment or discrimination such as might amount to a real chance of serious or significant harm.

4. Notwithstanding a lack of country information regarding offences relating to LGBTI activism, the Tribunal accepts that those actively campaigning for LGBTI rights may be discouraged from doing so given the strong disapproval of LGBTI lifestyles in Zambia by authorities and the broader community.  The Tribunal also accepts that close involvement with the LGBTI community and engagement in activities associated with being a member of that community may result in supporters of the LGBTI community being imputed to be LGBTI.

5. However, in the Tribunal’s view the applicant’s claimed level of support for the gay community does not suggest such a real chance or risk risk in her circumstances.  The Tribunal is not satisfied on the evidence that the applicant’s personal qualities or claimed affection or tolerance for LGBTI persons are such that she would be perceived to be a ‘member of the LGBTI community’ or a ‘supporter of gay/LGBTI rights’. The Tribunal accepts the applicant may have had some friends in Zambia who were LGBTI and that those people are no longer in Zambia.  The Tribunal also accepts that the applicant may speak to her neighbours in Australia who are gay.  In her words she loves ‘those people, they are very friendly’ and that she finds ‘it is easier if I have a problem to open up to them than another person because if I tell that person they won’t tell my problem to anybody else’.  The Tribunal does not consider that the applicant identified any views or activities in Australia which would result in her being a gay rights activist or supporter in Zambia.

100.   In any event, the applicant told the Tribunal she would be identified as being a supporter of the gay community because she would be with her friends who are gay, however she told the Tribunal that all her gay friends had left Zambia.  The Tribunal does not accept she would be identified as a supporter of the gay community or imputed to be LGBTI on that basis.  The Tribunal accepts that the applicant is not prejudiced against LGBTI people and that some of the members of her family may be given the dominance of anti-LGBTI views in Zambia.  However, the Tribunal does not accept on the evidence that the applicant is an advocate for gay rights, a gay rights activist or a supporter of gay rights. 

101.   Further, the Tribunal does not accept the applicant attended an underground gay rights meeting which was broken up by police with a warning in Zambia.  The applicant’s details of the meeting and the engagement with police was vague and was not raised in her original statement of claims or before the delegate.  Before the delegate she claimed she could not remember where the meetings were held. She said this was because she was pregnant at the time. The Tribunal does not consider this explanation to be plausible given she says she fears serious or significant harm on this basis on return to Zambia.

102.   The Tribunal also does not accept the applicant was detained by police and taken to a police station for holding hands with a friend who was gay.  The Tribunal notes that this claim was not raised before the delegate and was only raised before the Tribunal after the applicant was asked directly whether she had even been arrested by police in relation to supporting gay people in Zambia. She later claimed when pressed on why she claimed supporters were jailed for six months after two warnings that she was told this by police at the station. Given this was the only occasion the applicant claims to have been taken into custody by police the Tribunal considers that the fact it was not raised until so late in the proceedings raised serious concerns regarding the credibility of those claims. Given other concerns about the applicant’s credibility, the lack of detail in her claimed involvement with the LGBTI community and the late nature of these claims the Tribunal formed the view the applicant fabricated these events to strengthen her claims for protection and the Tribunal does not accept them.

103.   In any event, taken at its highest, the Tribunal finds that the applicant’s involvement with the LGBTI community is not such that she would be a real or imputed member of the PSG of ‘supporters of gay/LGBTI rights’ in Zambia now or in the reasonably foreseeable future in Zambia.

104.   The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm at the hands of the authorities, Zambian society or members of her extended family due to her real or imputed membership of a particular social group of ‘gay rights supporters in Zambia’ or as a supporter of the LGBTI community in Zambia.

Gender-based claims

105.   In her statement of claims the applicant raised a number of gender-based claims.  These included:

·Being a ‘woman at risk’ due to having been raped when she was [age] by men at a [venue 1] including the father of her child. She stated that:

When I was [age] yrs old while residing in my country of origin, men at a [venue 1] took turns rapping and violating my rights. This resulted in a forced pregnancy and later on the man who raped me regularly did not want to support me and the child. Whenever I tried to meet other men willingly to assist my desperate needs, the father to my only child would capture me in a foot path on the way home and assault and rape me. In his words, “I will make sure no one marries you or I kill you both.” Those words still haunt me.

·Being at risk of rape by authorities who would believe as a returnee from a Western country she is not infected with HIV/AIDS. In her statement of claims she stated that: 

I am currently unwilling to return to my country of origin due to the fact that I was several times captured by policemen walking home during the evening after returning from night school. Growing up in Sub-Saharan Africa, we are expected to comply with all police demands or face a case of resisting arrest. I do not originate from back grounds were people can afford to keep paying authorities to avoid harassing me. If I returned to my country of origin today, I will experience sub standards of accommodation, face rape by authorities as they believe women originating from Western countries are not infected with HIV/AIDS. I cannot even think of how I will be able to afford basic medications. I am personally concerned and fearful of being detained or made unlawful.

·Being at risk of sexual disease spread by unregulated sex workers from neighbouring countries and a drop in ‘moral standards’.

106.   The Tribunal notes that when asked about her fears of returning to Zambia the applicant did not raise these claims.  She was asked several times whether she had any other claims or concerns and she did not raise these claims in response to those invitations from the Tribunal.  Given the applicant did not raise these claims until she was asked about them directly by the Tribunal, the Tribunal has concerns regarding whether these claimed fears were genuinely held.  Concerns with the credibility of these claims are detailed further below.

107.   In light of the applicant’s claims the Tribunal has considered whether the applicant faces a real chance of serious harm due to membership of a particular social group, being ‘women in Zambia’ or ‘women returnees from Western countries’. Below the Tribunal has also given consideration to whether these claims amount to a claim for protection from general violence and criminal activity in Zambia.

108.   In this case, the common characteristic of the social group of ‘women in Zambia’ is that they are female. The common characteristic would also be shared with ‘women returnees from Western countries’ who would also have the characteristic of having spent time in, and returned to Zambia from, Western countries. Country information cited below indicates that their gender gives women a distinct identity in Zambia which is perceived as being different by the surrounding society. In the Tribunal’s view ‘women in Zambia’ and ‘women returnees from Western countries’ constitute particular social groups as they share a common characteristic that cannot be changed – their gender – and this can be perceived by others. In the case of returnees from Western countries they also share another common characteristic that cannot be changed – the fact they have lived outside of Zambia and returned – and this could be perceived by others. The characteristics which distinguish these groups is not the fear of persecution. The Tribunal accepts that the claimed groups are consistent with the grounds set out in s.5J(1)(a) of the Act.

109.   The Tribunal accepts that the applicant is in a long-term relationship with her current partner and that they have a son. The applicant told the Tribunal her partner was on a bridging visa and hoped to obtain a visa to remain in Australia.  He was not an applicant for a protection visa.  Her son is a dependant on her partner’s visa.  The applicant was unable to say what the couple’s plans were in the event her application for protection was unsuccessful other than that she would be added to her partner’s visa.  The Tribunal accepts that if she were to return to Zambia she may be returning on her own, but would more likely attempt to return at the same time as her partner and son.  If it is not possible for them to remain in Australia or for her to remain with them, given the declared intention of the applicant that they would remain together, the Tribunal considers that the applicant’s son and partner would either return with her to Zambia or join her there in the foreseeable future. In any event, the Tribunal finds that the applicant would continue to be supported by her partner either from Australia or with her in Zambia.

Women at risk

110.   The Tribunal had serious concerns regarding the applicant’s claims to have been raped by [men] including the father of her older child.  Of significant concern in this regard were inconsistencies between the applicant’s account of these events and her relationship with [Mr A] and material provided in support of her student visa application and a related party visa application. 

111.   As detailed in the delegate’s decision and discussed with the applicant at the hearing, the applicant claimed to have been raped by [Mr A] and not to have had contact with him since the birth of her oldest son.  However, as discussed with the applicant at the hearing and detailed in the delegate’s decision. the Tribunal notes the child bears [Mr A]’s name and [Mr A] provided a letter approving his son’s travel to Australia.  He also provided a letter supporting her son’s later application for a visa in which he indicates he was in contact with his son prior to him coming to Australia and that he had provided occasional financial support for the child.  He stated his son was born following a brief relationship with the applicant.

112.   The Tribunal asked how he came to be on the birth certificate and the applicant said that when her son was born her family contacted him and told him.  The Tribunal noted country information suggested that under Zambia law the father has to acknowledge he is the father in the presence of the Registrar.[24]  She agreed that is what he had done.

[24] The Zambian Births and Deaths Registration Act, Chapter 51:

113.   However, as put to the applicant at the hearing, this appeared to be inconsistent with her claim to have been raped by [Mr A] and to have had no contact with him since the child was born. She said he was lying and had not supported her.  She said he had not seen the child in Zambia. She did not know if [Mr A] and her son had been in contact since her son came to Australia.  She said the letters had been organised by her sister who was in contact with [Mr A].

114.   The applicant did not raise before the Tribunal her earlier claims to have been repeatedly raped by members of [a group] or pursued and threatened by [Mr A].

115.   Given the inconsistencies between the applicant’s claim and other material detailed in the delegate’s decision, including the implausibility of [Mr A] acknowledging paternity of the child and maintaining contact with the applicant’s family had the child been the result of a sexual assault by him, the Tribunal does not accept that she was raped resulting in the birth of her oldest child.  In any event, the Tribunal notes the applicant did not claim to fear harm with respect to that specific incident or to fear harm from [Mr A]. 

116.   The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm at the hands of [Mr A], members of her former [group] or any other person due to having been raped by [Mr A] and others when she was [age] years old or because she had a child as a result of having been raped.

Fear of gender-based violence including from authorities

117.   In her application the applicant claimed to have been assaulted by police while walking with a friend in Zambia.  When it was put to her towards the end of the hearing that she had not raised this before the Tribunal she said this was the instance she claimed to have been harmed during her work for the UPND.  The Tribunal noted she had told the Tribunal she did not know who attacked her and did not mention that they were police earlier. She said that they had been wearing uniforms so they assumed they were police but she was not sure. Given these inconsistencies and the fact the applicant did not raise this claim until prompted and was unable to provide a reasonable explanation for this, the Tribunal does not accept she was assaulted by police in Zambia while working for UPND or at any other time.

118.   However, considering the applicant’s claims to fear being raped, the Tribunal notes that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[25]  For example, depending on the circumstances, an applicant who belongs to a persecuted group might establish a well-founded fear even though the applicant has not personally suffered harm in the past.[26]  Consideration of whether such an applicant has a well-founded fear of harm may be necessary, even if their account of past events is entirely disbelieved.[27]  An applicant who has not been persecuted in the past might also establish a well-founded fear because their own circumstances have changed or because circumstances have changed in the applicant’s country during his or her absence.

[25] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that “[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past”.

[26] See Ponnundurai v MIMA [2000] FCA 91 (Burchett J, 11 February 2000) at [13] and [15] where the Court held that the Tribunal had erred in finding that there was no real chance of future harm on the basis of its rejection of the applicant’s claims of past harm, without considering whether the material before it showed the applicant’s fears to be well-founded in the future.

[27] MZZJO v MIBP [2014] FCAFC 80 (North, Bromberg and Mortimer JJ, 4 July 2014) in obiter at [40].

119.   In its most recent Zambia country report on human rights, the US Department of State (USDOS) reports that Zambian police committed ‘significant’ human rights abuses during 2019.[28] The USDOS report discusses legal and support mechanisms available to victims of gender-based violence. The law criminalises gender-based violence but in practice is not consistently enforced by the state: [29]

[28] ‘Country Reports on Human Rights Practices for 2019 – Zambia’, US Department of State, 11 March 2020, Executive Summary and Section 1.

[29] ‘Country Reports on Human Rights Practices for 2019 – Zambia’, US Department of State, 11 March 2020, Section 6.

The law criminalizes rape and other sexual offenses, and courts have discretion to sentence convicted rapists to life imprisonment with hard labor.

The Anti-Gender-Based Violence Act does not have provisions for spousal rape. The penal code criminalizes domestic violence between spouses and among family members living in the same home. The law provides for prosecution of most crimes of gender-based violence, and penalties for conviction range from a fine to 25 years’ imprisonment, depending on the severity of injury and whether a weapon was used. The law provides for protection orders for victims of domestic and gender-based violence, and such orders were issued and enforced. Despite this legal framework, rape remained widespread. Although the law criminalizes rape and domestic violence, the government did not always consistently enforce the law.

120.   According to the US State Department, police and NGOs provide some support to victims of gender-based violence:[30]

[30] ‘Country Reports on Human Rights Practices for 2019 – Zambia’, US Department of State, 11 March 2020,

To address the problem of gender-based violence, the government engaged traditional marriage counsellors on gender-based violence and women’s rights in collaboration with NGOs. The Young Women’s Christian Association (YWCA) also continued its ‘good husband’ campaign and, in collaboration with other women’s movements, the ‘I Care about Her’ campaign to promote respect for women and to end spousal abuse. The government and YWCA worked to address these problems through community sensitisations, shelters, toll-free lines, and one-stop centres where victims accessed counselling and legal support services. The Victim Support Unit under the police, staffed with trained personnel, supplemented these efforts. Other efforts to combat and reduce gender-based violence included curriculum development for training of police officers, roadshows to sensitise the public to gender-based violence, and instruction on how to file complaints and present evidence against perpetrators.

A gender-based violence information management system in the government Central Statistics Office strengthened monitoring and reporting of cases of gender-based violence. The system, which allows for effective and comprehensive reporting of gender-based violence and improved support, including legal services, social, economic and overall national planning, led to an increased number of reported cases.

121.   Broadly speaking, the USDOS reports that women experience discrimination because the government ‘did not adequately enforce … family, labor, property, and nationality laws’ despite equality in the constitution and laws themselves. Reportedly, sexual harassment is ‘common’ and the state took ‘few steps’ to prosecute despite provision in the penal code that warrants prosecution. The USDOS summarises that protections are ‘inadequate’ to effectively protect women from sexual harassment.[31]

151.   With respect to complementary protection 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).[41] The reasoning applied by his Honour has recently been upheld by the Full Court of the Federal Court.[42]

[41] 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,1 March 2013) at [61]–[65].

[42] GLD v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing).

152.   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.[43] 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.[44]

[43] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [61]–[62].

[44] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [63].

153.   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.[45] 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.[46]

[45] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].

[46] SZRSN v MIAC [2013] FCA 751 at [47].

154.   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’.[47]

[47] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA at [65].

155.   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.[48]

[48] 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].

156.   Further, in GLD v Minister for Home Affairs,[49] 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’.[50]

[49] At [88]–[89].

[50] See also FMN17 v MICMSMA [2020] FCA 326.

157.   As noted by the Full Court in GLD v Minister for Home Affairs:[51]

[51] [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. 

158.   For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to be separated from her partner and son it does not accept that she is owed complementary protection on this basis.

PROTECTION ASSESSMENT

Does the applicant meet the refugee criterion?

159.   Based on the evidence before it, the Tribunal does not accept that there is a real chance the applicant will face serious harm on return to Zambia now or in the reasonably foreseeable future at the hands of Zambian authorities or Patriotic Front supporters or caders due to her prior work as a UPND youth supporter, as a UPND supporter or as a real or imputed opposition supporter. 

160.   The Tribunal also does not accept that there is a real chance that the applicant will face serious harm on return to Zambia now or in the reasonably foreseeable future from authorities, members of the Zambian community or any other person due to membership of a particular social group of ‘supporters of gay/LGBTI rights’ or due to being a real or imputed member of the LGBTI community.  The Tribunal does not accept on the evidence that there is a real chance the applicant will face serious harm from members or supporters of the LGBTI community or any other person for failing to support the LGBTI community in Zambia.

161.   Based on the evidence before it, the Tribunal does not accept that there is a real chance the applicant will face a real chance of serious harm on return to Zambia now or in the reasonably foreseeable future from the authorities, criminal groups, [Mr A] or any other members of the applicant’s [community group], or insurgents for neighbouring countries due to being a member of the particular social groups of ‘women in Zambia’ or ‘women returnees from Western countries’.

162.   While it accepts gender-based violence against women to be a social problem in Zambia, given the available country information and the evidence before it, it is not satisfied that the applicant has a well-founded fear of persecution on the basis of being a ‘woman in Zambia’.

163.   Further, the Tribunal is not satisfied on the evidence that there is a real chance that the applicant will face serious harm on return to Zambia at the hands of her family members or anyone hired by them because they want money from her.

164.   The Tribunal finds that there is no information suggesting or supporting a claim that the COVID-19 pandemic or the Zambian government’s response to it give rise to a well-founded fear of persecution on the part of the applicant on return to Zambia.  Similarly, there is no information supporting a claim that the spread of sexually transmitted diseases in Zambia give rise to a well-founded fear of persecution on the part of the applicant on return to Zambia.

165.   While the Tribunal accepts the applicant would suffer emotionally from a potential geographical separation from her son and partner, the Tribunal does not accept those circumstances give rise to any claim for protection. The Tribunal is not satisfied there is a real chance the applicant will face a real chance of serious harm for the essential and significant reason of any ground in s.5J(1) of the Act, arising from potential separation from her child or partner if she was returned to Zambia and the parents determined the child should remain here for the present. 

166.   After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Zambia for the reason of her race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

Does the applicant meet the complementary protection criterion?

167.   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.3(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 she will suffer significant harm.

168.   As discussed above in the assessment of the evidence, the Tribunal has found that there are no 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 she will suffer significant harm, for any of the reasons claimed.

169.   The Tribunal notes the threshold for real risk element of the complementary protection criterion that 36(2)(aa) is the same as that for the real chance test in the refugee criterion 36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

170.   The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to her claims for refugee protection in the context of 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.

171.   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 she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal, therefore, is not satisfied that there are 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 she will suffer significant harm for the purposes of s.36(2)(aa) of the Act.

172.   The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

CONCLUSION

173.   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).

174.   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).

175.   Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de facto partner of the family head or a dependent child of the family head. 

176.   ‘Dependent child’ as defined in r.1.03 includes minors under the age of 18 as well as children over the age of 18 who are ‘dependent’ on their parent(s) or are incapacitated for work due to the total or partial loss of bodily or mental functions. Regulation 1.05A of the Regulations defines dependency for the purposes of a protection visa application as being where the applicant is wholly or substantially reliant on another person for financial, psychological or physical support.

177.   While the applicant indicated she has a partner with whom she has a son, she indicated he was on a bridging visa and applying for a study related visa.  There was no information before the Tribunal that the applicant’s partner was an applicant for a protection visa or otherwise someone who was owed protection.  She told the Tribunal she was being supported financially by her partner.

178.   The Tribunal notes the applicant has a son who she said is [age] years old.  At the hearing she told the Tribunal she had not spoken to her son since he was in Year [level] (when would have been when he was around [age] years old).  In any event, given her son’s age, the fact they have not been in contact with each other for a number of years and the fact there was no evidence that either was supporting the other the Tribunal is not satisfied that the applicant is a member of the same family unit as her son. 

179.   Therefore, 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

180.   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.

…

“No person shall be bound as father to give notice of the birth of an illegitimate child, and no person
shall be registered as the father of such child except on the joint request of the mother and himself and upon his acknowledging himself in writing to be the father of the child in the presence of the Registrar.”

Section 6.