1906306 (Refugee) - [2019] AATA 6384

1906306 (Refugee) [2019] AATA 6384 (7 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906306
COUNTRY OF REFERENCE:                  Zambia
MEMBER:Jane Marquard
DATE:7 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 07 August 2019 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Zambia – political opinion – membership of an opposition party – election monitor – threatened at gunpoint not to reveal election irregularities – disputes over community and land matters with ruling party supporters – Patriotic Front (PF) – credibility assessment – consistency and coherency – memory of trauma – Guidelines on Vulnerable Persons – Departmental interview – mental condition – interpreter not available – late inclusion of evidence – ‘well-founded fear’ – objective element – history of hostility from ruling party supporters – passion for social justice – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

The applicant is a citizen of Zambia, born in [year]. He comes from [City 1], which is [direction] of the capital, on the border of [Country 1].
He arrived in Australia [in] February 2019 on a visitor visa but was refused entry, and was detained at [an immigration detention centre].
He applied for a Safe Haven Enterprise visa under s.65 of the Migration Act 1958 (the Act) on 15 February 2019.
A delegate of the Minister for Immigration refused to grant the applicant the visa on 15 March 2019. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria under the Act. A summary of the relevant law is set out in Attachment A.
The applicant provided written submissions to the Tribunal through his representative and appeared at hearings before this Tribunal on 10 July 2019 and 23 July 2019 with his representative.
In coming to a decision the Tribunal has taken into account evidence before the Department and this Tribunal, and independent country sources about Zambia.
CLAIMS AND EVIDENCE
Evidence in the Department application
A summary of the evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6384
Decision Date: 7 August 2019

CaseChat Overview and Summary

The applicant, a citizen of Zambia, sought a protection visa, claiming he feared harm upon return due to his membership and advocacy for political freedom within an opposition party, the [Political Party 1]. He alleged a history of persecution, including threats and violence from supporters of the ruling Patriotic Front (PF) party, stemming from land disputes and his involvement in election monitoring. The delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the application, finding the applicant’s claims not to be credible. The applicant sought review of this decision in the Refugee Division of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of political opinion, and whether he could avail himself of internal relocation within Zambia. This required the Tribunal to assess the applicant's credibility, considering the consistency and coherence of his account, the impact of trauma on his memory, and the weight to be given to documentary evidence and departmental interview procedures, including the availability of an interpreter and the late inclusion of certain evidence.

The Tribunal, presided over by Jane Marquard, found that the delegate had erred in her assessment of the applicant's credibility. While acknowledging inconsistencies in the applicant's account, particularly regarding the date of the 2018 incident and the use of tear gas, the Tribunal considered these discrepancies in light of the applicant's stated trauma and the absence of an interpreter during the departmental interview. The Tribunal accepted that the applicant had a genuine fear of harm due to his political activities and his disputes with ruling party supporters, noting the objective evidence of hostility from the PF. The Tribunal concluded that the delegate had not adequately considered the applicant's passion for social justice as a basis for political opinion and had not properly assessed the risks associated with internal relocation.

Consequently, the Tribunal remitted the decision to the delegate for reconsideration, directing that the applicant's claims be re-evaluated with due regard to the Tribunal's findings on credibility and the principles of well-founded fear and internal relocation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He fears that he will be harmed if he returns to Zambia, because he is involved in, and advocates for political freedom in his country. He also fears harm as he is the ‘strong opposition or a leader’ in a strong political party. Evidence in the Department interview on 6 March 2019 In his protection visa application interview before the Department, the applicant elaborated on his evidence and made the following further claims:·He clarified that his political party was the [Political Party 1]. He said that ‘[Ms A]’ was the District Chairperson for [City 1]. [Mr B] was the Chairperson. Other members of the committee were [Ms C], who looked after youth and ‘[Mr D]’. He was not sure who the national leader was, as they ‘keep on changing and rotating’. ·[In] 2014, he bought land from the local authorities and was issued the relevant papers. This led to a land dispute with a person called [Mr E] who is a ‘strong member of the ruling party’, the Patriotic Front (PF). He claimed [Mr E] told him to stop building on the land, threatened to kill him, and obtained an injunction to prevent the applicant building. The applicant then engaged a lawyer to help him pursue the land, and he was supported by the local council. The case is currently before [a] Court in Zambia.·He also bought land in [Neighbourhood 1], [City 1] in 2014. [Mr F], [a Position 2] from the PF and a friend of [Mr E], claimed that the land belonged to him. [Mr F] accused him of being a squatter and has taken legal action against him. ·He resided in [Town 1] in 2016. He went there to look after his brother because his brother was sick. ·He elaborated on the 2016 incident as follows. He said that after the announcement of the presidential election in August 2016, cadres from the ruling party came into [Town 1] that night at about 7pm. Cars and houses in the village were burnt and the [humanitarian aid organisation] took victims to the [Town 1] School. During the attack, he and his brother were at his brother’s place, and had their hands tied behind their back with wires and were beaten and tortured. This was about 7pm. He was slapped and beaten. His brother’s house was burnt. ·After the attack, he massaged his brother with water. His brother told him that he was fine. They stayed that night in the area. Then they were helped by the [humanitarian aid organisation] and they stayed a night at the school. His brother wanted to return to [City 1] to die. He travelled with his brother from [Town 1] to [City 1] the day after. It took them [several] hours. He made a report to the police in [Neighbourhood 2] in [City 1] the night he arrived. His brother later died from internal injuries sustained during the assault including burns. His brother’s best friend was killed during the attack in [Town 1].·He elaborated on the 2018 incident as follows. He said that [in] 2018, he and other [people] were attending [Church 1], which they usually did on Wednesdays. [Afterwards] they had another meeting organised by [a think tank] to discuss the 2019 national budget. There were about 50 people there. Then the ruling party supporters arrived and came into the church and were ‘pushing them’. He thinks there were about six supporters and they fought them outside the church for 10 to 20 minutes. They had sticks and stones. They also interrogated and threatened them for 10 to 20 minutes. ·Police then arrived in civilian clothes and fired tear gas and they arrested five [people] including [Mr G] and ‘[Mr H]’. He was beaten. Three [think tank] officials were arrested but he does not know their names. He said he went to the police station and then to the hospital. However earlier he said that he was taken to hospital by the time they were arrested. He was told to get a police report, which he did.·He went to the doctor for a check-up and obtained a medical report on [Date 1] 2018. He went to the police [later] for an update but they told him nothing had been done. ·He said that this took place on a [Wednesday]. However when it was put to him that the day on which he claimed it took place, [Date 1] 2018, was a Saturday, he said that it was a Saturday. He also provided medical reports for [Date 1] 2018, confirming that he attended the doctor on the same day as the meeting. The delegate put to him that media reports suggest that the incident took place on Friday [Date 2] and questioned him as to how the medical report could be dated [Date 1] 2018. He then said that he was beaten on the head so this may have affected his memory.·The delegate also questioned him about whether he attended the police station with the other [individuals] who were not arrested, on [Date 1]. He said that he did not. He did not know who the [City 1] chairperson was ([Mr I]), although he said the one he knew was [Mr H]. The delegate also referred him to reports which suggested police attended in full riot gear and no teargas was used and there were no ruling party supporters involved.·His shop located at his residential address was subject to an arson attack after the 2018 incident. He did not report this to the police because he did not believe they would assist him. ·He travelled to [Country 2] for [a number of] days in January 2019 to see if he could relocate. While he was there his two dogs were killed.·He then went back to Zambia and did not experience any harm or mistreatment.·His wife and children are living in [City 2] with his wife’s aunt. They fled there to avoid harm. Post-interview submissions and documents to the Department, 7 March 2019

Decision

Reasons for decision

He provided the following documents:Identification documents: Certified copy of Republic of Zambia national registration card in the applicant’s name, with date of birth, [date]. Certified copy of Republic of Zambia passport in the applicant’s name, date of birth [date]. Birth certificates issued by the Republic of Zambia, for his [children]. A marriage certificate issued by the Republic of Zambia, in the names of the applicant and his wife, dated [date]. The applicant’s curriculum vitae. In relation to the 2016 incident: A photocopy of a newspaper [article] reporting that ‘150 people have been arrested for riotous behaviour in some parts of [Province 1] in incidences where [number of] police officers sustained injuries’. [A date] was handwritten on the article. An uncertified [letter] on Zambia police letterhead with a stamp dated [in 2016] by ‘Officer in charge [in Neighbourhood 2]’. In relation to [the] 2018 incident: Medical report for the applicant, referring to: ‘swollen forehead and ribcage area, generalised body tenderness, no bleeding noted’, stamped ‘[Date 1 2018]’ by the Republic of Zambia Ministry of Health, and signed by a police officer and a medical officer at ‘[Hospital 1]’. A photocopy of a newspaper [article]. The article reports that five [individuals] were arrested and charged with unlawful assembly after they allegedly held a political meeting without notifying the police. It was also reported that [a large number of] [leaders] attended the meeting. In relation to the land disputes:[Land 1] – dispute with [Mr E] A [document in relation to sale of Land 1] on [the] City Council letterhead, dated [in] June 2014. Two photographs of a piece of land. A ‘Writ of Summons’ in [a court] of Zambia at [District 1], Civil Jurisdiction, stamped [in] April 2015. A ‘Statement of Claim in [a court] at the [District 1] Registry (Civil Jurisdiction)’ dated [in] April 2015.Lot at [[Neighbourhood 1],] – dispute with [Mr F] [Document in relation to transfer of [Neighbourhood 1],] on [the] City Council letterhead, dated [in] June 2014. A [document in relation to payment for [Neighbourhood 1],] dated [in] September 2014. A map of a piece of land with lot numbers. A [document in relation to names for [Neighbourhood 1]. A ‘Notice of Status Conference in [a court] at the [District 1] Registry dated [in] February 2019. A [document in relation to Mr F’s court proceedings] dated [in] February 2019. A document [in relation to an injunction order] dated [in] October 2019. A document titled ‘Affidavit in Support of Injunction’, stamped [in] August 2018.On 4 March 2019, the applicant submitted the following documents via email: A driver’s license issued by the Republic of Zambia [in] 2018. A membership card for the [Political Party 1], in his name, dated 2016-2021. This states the applicant’s position in the party as [Position 3]. An identification card issued by the [Electoral Commission of Zambia], in the applicant’s name, listing the [Political Party 1] as sponsor. An identification card from [Church 2] in [City 1], Zambia, in his [name]. A certified copy of an international driving permit issued by the Republic of Zambia, [in] 2018. Eleven unlabelled photographs which he discussed at the Department interview.Delegate’s Decision

Ratio Decidendi

Legal Principle Established

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