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

1. 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].

2. He arrived in Australia [in] February 2019 on a visitor visa but was refused entry, and was detained at [an immigration detention centre].

3. He applied for a Safe Haven Enterprise visa under s.65 of the Migration Act 1958 (the Act) on 15 February 2019.

4. 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).

5. 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.

6. 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.

7. 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

8. A summary of the evidence before the Department is as follows.

9. The applicant is [age] years old and was born in [City 1], Copperbelt, Zambia. He resided in [City 1] and [Town 1], before coming to Australia. His wife, [children], and [sibling] still reside in [City 1]. He speaks fluent English and Bemba. He completed high school in Zambia and then completed a [Qualification 1] at [Institute 1] in 2007. In 2008, he studied [Qualification 2] at [Institute 2] in [Country 2].  He was employed as a [Occupation 1] and [Occupation 2] prior to arriving in Australia.

10. He claims that he left Zambia in February 2019 because he was in danger of being killed or tortured by supporters of the ruling party as he was a [Position 1] of the opposition party. He said that his main duty was to [undertake specified duties].

11. He claimed that he was attacked in 2016. The ‘supporters of the ruling party’ came to his house and burnt his car, and the house of his older brother (this is referred to in this decision as ‘the 2016 incident’).

12. He also claimed that between [date] and [date] 2018, he was at a meeting at [Church 1]. He had another meeting after this to discuss the 2019 national budget and how it was affecting the economy. Suddenly, the ‘political leaders all knew they were having meetings’ and attacked and threatened them. The police came and fired tear gas. The police arrested five [individuals]. The applicant and [another individual] were beaten by the political leaders, who were supporters of the ruling party. The applicant went to hospital and was examined by a doctor. He suffered injuries to his ribs, and bruises on his head. The police opened a case but no arrests were made (this is referred to in this decision as ‘the 2018 incident’).

13. The applicant said that the perpetrators came to his house after he reported the case to the police, and threatened to kill him if he identified them. The applicant fears that if he returns they will kill him and burn down the house. He claims that the authorities cannot protect him. He has made reports to the Zambia Police Service but they have not followed up or made arrests.

14. He travelled to [Country 2] in January 2019 to seek asylum. However, he failed to apply for asylum due to xenophobia and racism in the [Country 2’s] Black community as he felt unsafe. 

15. 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

16. 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

17. On 7 March 2019, the applicant submitted that he had been beaten on the head and taken to hospital, where he was only given tablets for his headaches. He had been experiencing ‘sharp pain in his brain, blackouts, deep depression, and memory loss’. He had been suffering from depression and memory loss since he was in Zambia.

18. He said that he took a flight from [City 1], Zambia, to [Country 2] before arriving in Australia. Once he arrived, he ‘asked the immigration office where he could apply for a protection visa’. He was then interviewed. However, he was tired at this point and could not concentrate on the questions being asked. He cannot remember the answers he gave. He was then picked up by officers and placed in detention.

19. He stated that since arriving in detention, he had been requesting medical assistance in relation to his mental health, pain in his head, and memory loss. He has not been given medical assistance.

20. He said that during the protection visa interview with the Department, he was tired and feeling depressed. He had never sat in one place for 3 hours without having a break. He was asked questions about what he went through, which ‘made him want to take his life’. After the interview, he was depressed and claimed he ‘went to medical to see someone to talk to and after then the depression and memory was restored’.

21. 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

22. The delegate did not accept that the applicant was a member of the [Political Party 1] or held an executive position on the [District 1] Executive Committee or that the claimed incidents took place. The delegate found that the applicant’s testimony was vague and inconsistent.

    Evidence before the Tribunal

23. On 28 June 2019, the applicant’s representative responded to the delegate’s findings in the Department decision record as follows (in summary).

    The applicant’s credibility

24. As to the inconsistencies highlighted by the delegate, the representative submitted that as the applicant did not use an interpreter in his interview with the Department, he did not understand the nuances of a number of questions. Furthermore, the interview was conducted remotely via audio-visual link and this reduced the applicant’s ability to understand the delegate and effectively respond. It was submitted given his lack of understanding during the interview, it should have been rescheduled to make an interpreter available. Similarly, it was submitted that his airport interview was conducted upon his arrival in Sydney, when he was exhausted. He had been travelling for three days, as evidenced by travel records provided. He also did not have an interpreter, and therefore limited weight should be attached to the details of this interview.

25. As to the delegate’s finding that the applicant’s answers were vague and evasive, it is submitted that the applicant either could not remember the information requested or did not know the answer. Instead of making up an answer, he truthfully expressed that he was either confused or could not remember.

26. As to the inconsistencies in times and dates, the representative stated that the applicant did not have a mobile telephone or wristwatch in Zambia. It was submitted that he tells the time and date from events, such as when field workers are going to and from the fields, when his children attended school, and from the sun. It is also submitted that the applicant suffered trauma which has impacted on his memory and recall. The representative referenced articles on this matter.[1] It was also submitted that the applicant was pressured by the delegate at interview, to provide specific times and dates in a quick manner. The representative stated that while time is a relative concept and is referred to informally in Zambia, the delegate was trying to fit the applicant’s account into a Western style timeframe.

    [1] >

    Furthermore, as to the delegate’s adverse credibility findings, the representative argued that the applicant could not provide full names because in Zambian society, it is normal for the applicant to refrain from using a person’s full name. In addition, the applicant was unable to provide addresses because houses in Zambia do not have house numbers or street names. As to the delegate’s finding that the applicant gave inconsistent claims about where his brother’s house was located, the representative claims that [Village 1] is in [Town 1]. An Environmental Assessment Report was attached to support this claim, as there were no Google map images available. 

    Photographs

27. As to the delegate’s finding that the photographs submitted by the applicant were cropped from online reports, the representative stated the applicant was in possession of the original photographs. He said that he was given the photographs by [Mr J], who is a journalist and a friend of his deceased older brother.  The applicant gave the original photographs to a detention officer in Sydney as was required by detention centre policy. He then provided photocopies to the Department. The representative requested the original photographs on 26 June 2019, and stated that he would bring the photographs to the Tribunal hearing. 

28. A letter from [Mr J] was attached to the submission confirming that his brother was a family friend of the applicant’s late brother. He said that he works for [Publication 1] and confirmed that he provided photographs of the incident in [Town 1] to the applicant. Photocopies of the eleven photographs and descriptions of each photograph were provided. Originals were provided at the Tribunal hearing.

    The 2016 incident

1. As to the finding that the date recorded by the Zambian Police Service in [City 1] following the 2016 election results had changed, the representative submitted that there was some confusion regarding the date on which the events happened. Referring to a news article, the migration agent submits that the more likely explanation is that the applicant was attacked on [Date 3] August 2016, and became confused over the dates.[2]

   [2] [Source deleted]

2. The representative stated that the applicant did not mention the death of his brother earlier, because he is extremely upset about this.  A copy of a death certificate was attached to the submission, indicating that he died on [Date 1] August 2016 due to an assault.

   The 2018 incident

3. As to the 2018 attack, the representative referenced news articles supporting the applicant’s recollection of the event.[3] The representative further stated, with reference to an article, that the lack of media freedom in Zambia has impacted on accurately reporting events.[4] A [social media] extract was attached to the submission in support of this claim.

   Membership of the [Political Party 1]

   [3] [Source deleted]

   [4] ‘Independent media harassed’, Reporters Without Borders For Freedom of Information,  >

   The representative submitted that there is sufficient evidence indicating that the applicant was a member of [Political Party 1] and did hold significant positions. It was submitted that the ideology of [Political Party 1] aligns with the purpose of the 2018 meeting in which the applicant was attacked.

4. The representative referenced earlier documents provided and also provided a letter from [Mr B], [Political Party 1], dated [in] June 2019 confirming that the applicant has been a member of the [Political Party 1] since January 2015, and was appointed as [Position 4 in] February 2015, and [Position 5] in August 2016. He also provided the [Political Party 1] Official Party Registers, which recorded the applicant as [Position 5] and [Position 4] and appointment letters that the applicant received for his appointments as [Position 5] (dated [in] July 2016) and [Position 4] (letter dated [in] February 2015). It was submitted that these dates match those in [Mr B]’s letter dated [in] June 2019.

   New claims

5. In the submission to the Tribunal it was claimed that when the applicant arrived at [the immigration detention centre], he contacted a member of [Church 3] for assistance. This person contacted [Mr K] and [Mr L] from [Church 2], [Suburb 1]. The message eventually reached the applicant’s [wife] that the applicant had fled Zambia and was in detention in Australia. Following this, [Ms M], a member of his wife’s family, received a large number of threatening calls and text messages. [Ms M]’s phone records were provided, indicating that the calls/texts were received in March 2019. The applicant claimed that people were looking for his wife and their children because they know the applicant has fled to Australia.

6. A letter from the applicant’s wife was provided in which she claimed that [in] 2018, while they were coming from the hospital, the applicant was threatened by a lady named [Ms N], and two other unknown persons. The applicant’s wife claimed that she was threatened that his house would be burnt down, and was told he would ‘rot in jail’ if he ‘points the finger at anyone [he] saw at [Church 1]’.

7. As to the threats he received during the 2016 elections, the representative submitted that the applicant was appointed as an election monitor with jurisdiction over all voting centres in [District 1]. His Political Party Official Electoral Commission of Zambia card is referenced as evidence of this. His role was to monitor the voting at each voting centre. However, when he attended the voting centre, no forms were provided and he was threatened by [Mr O] (the area Counsellor at the time) and [Mr P] (the current area Counsellor). [Mr O] offered him money to keep quiet regarding the missing forms. When he refused to keep quiet, [Mr P] pointed a gun at the applicant and chased him out the back of the counting centre. One week later, [Mr P] came to his residence and threatened to kill him. Following this, the applicant fled to his brother’s house in [Town 1].

8. The representative submitted that the applicant has been diagnosed with symptoms of hyperarousal, depression, post-traumatic stress disorder and anxiety. Three [ORGANISATION 1] Reports dated 21 April 2019, 27 May 2019 and 30 June 2019 were submitted in support of this claim. The most recent report on 30 June 2019 stated that he had a ‘brief psychological treatment’ with four sessions with a psychologist. The psychologist reported that he presented with symptoms relating to ‘anxiety, PTSD, depression and hyperarousal’. It was reported that having to discuss distressing and traumatic experiences contributed to his symptomatology. The psychologist recommended continuous psychological treatment including psychoeducation, strategies and techniques to manage the symptoms. It was noted in the reports that he spoke in English, was oriented in time, place and person, and his thought processes were logical and coherent with no formal thought disorder or perceptual disturbances noted. The representative also submitted information regarding culturally appropriate tests, with a cover letter from retired psychologist, [Ms Q], dated 16 June 2019.

   Documents submitted to the Tribunal

9. The applicant submitted the following documents to the Tribunal:

   ·A Certificate of Acquittal, issued by [a Court in District 1] (criminal jurisdiction) dated [in] March 2019. It is stated on the certificate that the applicant was acquitted of the offence of one (1) count of threatening violence, which occurred [in] February 2019 in [District 1].  It was alleged that the applicant, whilst armed with a shovel, threatened ‘[Mr E]’ with injury to his person.

   ·A copy of a newspaper article (undated) titled ‘[Title]’.

   ·A letter signed by the General Secretary of the [Political Party 1], [Mr R] dated 25 February 2015 and titled ‘appointment as a [Position 4] – [Constituency 1]’.

   ·A second letter addressed to the applicant and signed by [Mr R] dated 13 July 2016 and titled ‘appointment as a district [Position 5]’.

   ·A document titled ‘Official Party Register’ of the [District 1] Executive stamped 27 March 2019 listing party members. The applicant’s name appears on this register in the position of ‘[Position 5]’.

   ·A second document titled ‘Official Party Register’ from the [Constituency 1], stamped 27 March 2019. The applicant’s name appears on this register in the position of ‘[Position 4]’.

   ·List of [candidates] for which [the applicant] conducted election monitoring activities.

   ·General list of candidates 2016 elections.

   ·African Union Observations on the 2016 elections.

   ·Summons

   ·Letter from [Ms S], first wife to the late [Brother T], brother of the applicant. She said that the applicant supported her and her late husband. She said that the applicant and [Brother T] went to [Town 2], where she lives, the day after the attack in [Town 1]. Her husband had been beaten badly and they came to [City 1] as the hospital facilities were better, and his family were there. Days later [Brother T] passed away. The funeral was held in [City 1].

   ·Letter from [Ms U], second wife of [Brother T]. She said that [Brother T] was a very strong member of the United Party for National Development (UPND), and he later joined the [Political Party 1] in [Town 1] and was a [Position 6]. Because of this hatred grew from UPND members and the ruling party, PF, because they did not support them after the 2016 election results. They saw a mob of people coming to the village with sticks, stones and chains. She was coming from fetching water and picked up her child and ran. The applicant and her late husband were tied up and almost burnt to death but villagers came to their rescue. The grass house was burnt, livestock were killed and the applicant’s car was burnt. [Brother T], the applicant and herself went to the school and camped there for a night. The next day the applicant and [Brother T] went to [Town 2] and then to [City 1].

   ·A number of property documents, which were discussed at the Tribunal hearing.

   ·A copy of a screenshot of emails purportedly sent to the applicant, dated [in] March at [time] stating [various threats].

   ·An article from [Publication 2] dated [in] March 2019 which the applicant said portrayed PF supporters pretending to be police.

   Tribunal hearing 10 July 2019

10. The Tribunal welcomed the applicant to the hearing and noted that the applicant had provided three reports from the organisation [ORGANISATION 1]. The most recent report states that he had symptoms of hyperarousal, anxiety, post-traumatic stress disorder and depression. The Tribunal confirmed that these reports would be taken into account in the assessment of his evidence. The applicant confirmed that he was not taking medication and felt well and capable to give evidence at the hearing.  

11. The applicant confirmed that he was born and grew up in [City 1] in Zambia. His parents were farmers and his father was a [Occupation 1]. They used to have a small holding but it is no longer their property, as his parents have both passed away. They grew crops primarily for subsistence and partly for market. He has one sister and had two brothers, both of whom have passed away. [Brother V] died from [medical condition] in about 2004 and [Brother T] was beaten by his former colleagues at UPND and died a few days later. He had been ill with headaches and sore feet but it was not serious and this was not the cause of his death. [Brother T] was a [Occupation 3] in [Town 1] and also did some farming. His sister sells produce in the marketplace in Lusaka. She lost her husband in 2017. He has an uncle in [City 1] and one in Lusaka. The applicant’s wife and three children are living in [City 2]. His family attended [Church 4] and sometimes his mother’s church, [Church 5].

12. The applicant finished school in 2003 in [City 1], and then started studying at [Institute 1 by correspondence]. The course took three years. During this time, he helped out as an assistant [Occupation 1] and sold a few items at the market. When he finished his course, he [began working] in [City 1]. He worked hard at this and [achieved much results]. In 2008 he also studied [Qualification 2] by correspondence through [Institute 2]. He met his wife in 2004 and they married in 2007.

13. From 2008 until 2019 in addition to being a [Occupation 1], he worked in various part-time jobs in order to support his family and provide additional income for the church. He worked as a supervisor at [Company 1] in [Industry 1] in 2008, as a [Occupation 2] at a [firm] for six months in around 2008/9, as a [Occupation 4] at [Company 2], and doing [Occupation 5] at [Company 3]. He also worked for [Company 4], a family business, owned by his wife’s uncle, as a manager when needed.

14. He said that his first and foremost responsibility was [Occupation 1]. Typically a [Occupation 1] must [work towards certain goals]. They bought a plot of land and they built a [premises]. As a [Occupation 1] his responsibilities were [specified duties].

15. [In] June 2014 he bought [Land 1] from [City 1] City Council to build his own house, with money earned from his various jobs. After he paid the purchase price, the Council sent surveyors to demarcate his land. He cleared the land between June and November 2014 and he started to build. However a person called [Mr E] went to the project and threatened his bricklayer, saying it was his land and telling the bricklayer to stop building. Despite requests from the applicant, [Mr E] refused to go to the original owner and resolve the issue. When the information reached the applicant, he went to [City 1] City Council to tell them about what [Mr E] had done. The Council advised that both parties should bring ownership documents to them. However [Mr E] returned to the site with others and took all the building tools away. The applicant tried to reason with [Mr E] and they agreed to meet at the Council to show ownership. [Mr E] could not produce any ownership documents so the Council advised [Mr E] that the applicant was the owner. [Mr E] did not like this so he obtained a stop order from a court. Upon receiving this, the applicant spoke to the town clerk who told him that he was free to build, but also said that the problem was that [Mr E] was a cadre of the ruling party and therefore had more influence. The applicant continued to build but [Mr E] returned and tried to beat up the workers and one of the workers called the applicant. When he arrived he tried to reason with [Mr E], who started shoving him to annoy him. When the applicant did not respond, [Mr E] insulted his parents. The applicant then got a shovel and threatened to hit him. Following this encounter, the applicant reported [Mr E] to police. The police said that [Mr E] was connected and they could not stop him. [Mr E] took the applicant to court accusing the applicant of attempted murder. In court [Mr E] was unable to produce witnesses but brought a journalist who wrote an inaccurate story. The magistrate ruled that the applicant was the rightful owner and that [Mr E] had tried to take over by accusing him wrongly. However the newspaper reports did not accurately reflect this.

16. [Mr E] also used prisoners to demolish the applicant’s building in the meantime. So the applicant sued [Mr E] [for] malicious damage to property and was hoping to get Council to give him an alternative property as the land had become a threat to his life. The [Court] found that [Mr E] had demolished the building, but as he could not refund the applicant, the Council should compensate the applicant and provide him with alternative land. The applicant said that he had to let the land go as he felt his life was threatened. [Mr E] built his own house on his [land]. [Mr E] still threatened the applicant that if he tried to take other land, he would take the land and kill him. The applicant went to the Council several times but was not given any alternative land and was told that there are too many people on the waiting list. The Tribunal asked the applicant why [Mr E] still threatens him if he now has the land. He said that there are hidden motives. [Mr E] is bitter from the process and is politically motivated as well as the fact that the applicant is not on good terms with the local councillor for [Neighbourhood 3], who is aligned with [Mr E]. The house he lived in [was] in the ward of [Neighbourhood 3].

17. He also claimed that in [September] 2014 he bought a small holding in [Neighbourhood 1] from a person called [Mr W]. He had not paid the full amount yet but started conducting farming activities. The farmers in the other blocks whispered to him that there were rumours that the cadres from the ruling party were coming to take over this land. He recalled what [Mr E] told him about coming after him if he had land. He did not take the threats seriously. While he was in Australia he heard that a person called [Mr F], a friend of [Mr E], wants to take over all the plots in that area. Because ownership had not been transferred to him and was still in the name of [Mr W], [Mr F] has said that the applicant was a squatter. There is a breakdown of law in Zambia as decisions are influenced by the ruling party. [Mr F] sued the original owner of the land, [Mr W], not him, but could not produce ownership of land. The land has been demarcated into residential plots now and the cadres took over. The court ruling is yet to be made but in the meantime the farmers were issued with an injunction not to farm the land.

18. If the applicant returned to Zambia, he could not access the plots of land, and he thinks [Mr E] and [Mr F] would still threaten his life. When he lost his first piece of land, he went to the Lands Tribunal to report what had taken place. The Lands Tribunal is a forum for land disputes. However there is much corruption and they have far too many cases. He said that he exposed [Mr E] for wrongdoing and for this reason [Mr E] will still threaten him, even though he has possession of the land. On one occasion, [Mr F] threatened to send people to put water in his fuel tank in his car and then his engine would seize and he could not get home. It would then be easy for them to attack him. He said it is beyond a land issue; it is because it is political.

19. The applicant said that he became interested in the [Political Party 1] in January 2015. He said that he was prompted to join because of the way the government was administering the country, and also because of the influence of his father and brother, who had political ideals. They had encouraged him to believe in standing up for the underprivileged and the downtrodden. He would like to be an agent for change. The population has grown in his area but there are not enough schools, and children must travel a long distance. Further, the health delivery system is poor. Some women must deliver babies at home and many lose their lives. The standard of living is low, there are few jobs and people queue for commodities. There is high youth unemployment and therefore young people are drinking and taking drugs. His vision for the small holding settlement had been to make it a skills centre for youth and women. He also had a [Sport 1] and [Sport 2] team for youth as a distraction for youth. He also wants to prevent early marriages and substance abuse.

20. He chose the [Political Party 1] because it is founded on Christian values and espouses Christian principles. The leader is a Christian. They stand for the poor and less privileged. The party was distributing pamphlets in his area and when he read the information in the pamphlets, he agreed with their vision, and joined up. As he was a [Occupation 1] and was involved with youth, the leaders spoke to him personally about joining up. The party had been formed in 2014 by [Mr R], who is a [Occupation 6] who had been a former [office bearer] and [senior government official] for PF. The objectives of the [Political Party 1] were socialist-based and about caring for the poor. In 2016 there were elections and he met [Mr R] during the campaigns. Once he joined, he tried to help mobilise people, as the party was just starting. A month after joining he became [Position 4], as the party was new so there were many vacancies. He had several responsibilities, including [Position 4] at [Constituency 1] and [Position 5] of the district and election monitor. He was acting [Position 7] in October 2016. As needs arose they worked with wards to see who could stand in the elections and be leaders. They also distributed flyers door to door in the community. They were also working on strategy. He lived primarily in [City 1] in 2015/16 but because of his brother’s illness in [City 1] he travelled to [Town 1].

21. He said that during the 2016 elections, [Political Party 1] did not have a candidate in [Neighbourhood 3], but they decided to support a candidate called [Ms X] from another party. The applicant was working as an election observer for the [Political Party 1]. They needed two forms to prove the election was credible – one to be signed by the polling agent, and the second by him as an election agent. However these forms were missing. He said that this was brought to his attention and they travelled to [Neighbourhood 3] to see if the report was correct. At the polling station he met with a person called [Mr O] who was aware of the problem. [Mr O] offered him a bribe to turn a blind eye to it, but he declined. Then [Mr O] decided to move the ballot boxes to the civic centre, which is supposed to happen with a police escort in front and back. However there were no escorts. So the applicant insisted that he follow, as he was representing the party. The results needed to be verified. On reaching the civic centre, he was approached by someone called [Mr P] who had his hand in his pocket. The applicant thought that he was going to take out money to bribe him. To the applicant’s shock [Mr P] took out a gun and told him to choose to die or say nothing and leave. He felt weak in his knees and dizzy. He drew a bit of strength, walked to his car and left. He heard that [Mr P] won as an area councillor. The next day after being declared a winner [Mr P] came with other people to the applicant’s house and said he must not talk about what had happened. He was told that if he ever spoke of it, the gun would be fired. The applicant knew that if he raised the issue of the boxes being transported unescorted then the election would be nullified. The following day, fearing for life, he left and went to [Town 1]. Upon reaching [Town 1] he found his brother was unwell.

1. He was asked how long after this the attack on [Town 1] took place. He said after arriving, he was at church and two days later, the presidential results were announced. The parliamentary and local results were announced earlier in [City 1].

2. He was asked how many candidates they had for the 2016 elections. He said that there were [a number of] parliamentary candidates for [number of] constituencies which he named. He said for local councillors they had [number of] candidates. [Political Party 1] did not win any seats.

3. He said that his brother’s sickness did not lead to his death, rather it was the assault. The Tribunal read to him the notes from the protection visa interview where he said that he was spending up to four months in [Town 1] for his brother’s medical condition before he died. He answered that he could not fully understand all the discussion at that interview, because the interview was not in his mother tongue and he was interviewed by video, and the interviewer seemed aggressive and he felt threatened. He also was not feeling well and he had told the case officer this. The Tribunal indicated it accepted this, but asked if it was incorrect to say that he spent months at a time there as his brother was ill. He said that he recalls going there on two occasions.

4. He was asked if he keeps in touch with what is happening with the [Political Party 1] since he has been in Australia. He said that a person called [Mr B] has briefed him on what has happening. He has heard that [Mr B] has been promoted to national leader, and a lady called [Ms A] has also moved to national leadership. He is not up-to-date on who the leaders are in [City 1].

5. The Tribunal discussed with him an adjournment as the hearing had run for three and a half hours. The applicant became very emotional. He thanked the Tribunal member for the manner in which the hearing had been conducted as he felt that he had been able to express himself. His representative said that each time he is transported he is handcuffed and is finding detention difficult. After discussion it was agreed to adjourn the hearing.

   Evidence at the resumed Tribunal hearing

6. The applicant said that the day after the gun incident, [Mr P] came to the church and threatened the applicant, saying that if the applicant took the matter further [Mr P] would act on his threats. The applicant shared this information with his wife and because he was in danger he went to [Town 1]. His intention was not to stay there, but to seek refuge while the final results were being announced as he feared for his life. After a week in [Town 1] he returned to [City 1]. His wife said that [Mr P] had come to the house looking for him when he was not at home, and she said he was not there. [Mr P] then ‘hung around outside’ in a motor vehicle.

7. The applicant said that the attack in [Town 1] took place two days after his arrival. He thinks it was a weekend. He was at his brother’s place in the morning. His brother was intending to go and harvest, and they were getting ready to go, but they were informed that there was something going on and the lake area was empty. The person who told them this suggested they remain indoors, which they did. Not long after, they saw smoke smouldering and they could hear cries of people. Upon hearing the screams, they saw crowds coming towards them, and people began beating him and his brother. His sister-in-law came back from getting water to see this happening. Then the crowd set the hut he was sleeping in and his brother’s house ablaze. This ‘gives him mental torture’. They continued to beat up his brother using sticks and chains. They then moved on to the next houses. Someone told them to go to [Town 1] school. He was asked what injuries he and his brother had at that point. He said that he was hurt on his [Body Part 1] from the beating with chains. He still has pain in his [Body Part 1]. Even yesterday he had asked for medical attention. His brother’s arms were hurt, his fingers were dysfunctional, he had pain around his ribs and he was coughing blood. They went to the school where the [humanitarian aid organisation] was administering medical attention. His brother was in a lot of pain so wanted to go get medical care from a different town. The next day a vehicle was leaving for [Town 2], so they travelled on that vehicle. They went to the brother’s first wife in [Town 2], and she managed to get the first available transport to [City 1].

8. He was asked where the nearest hospital or clinic was to [Town 1]. He said that he did not know. He was asked why he would not go to the nearest clinic or hospital to treat his brother if he was badly injured. He said that they were looking for the safest place as there were no reliable medical services around. His brother’s first wife had been forced to move to [Town 2] for medical attention. The applicant was asked why he did not take his brother to hospital in [Town 2]. He said he followed his elder brother’s wishes, as is tradition, because he wanted to go to [City 1]. The representative asked if he went via Lusaka, and he said that he went via Lusaka, but they did not take conventional transport. He was asked why he would not seek medical attention there if his brother was coughing blood and badly injured. He was asked why they would take a [long] journey. He said that although his brother was in pain, he wanted to be far away from [Town 1] and he was familiar with the medical facilities in [City 1]. He said that when encountered with such a situation it is difficult to be rational. [Town 2] was also volatile.

9. He said that supporters of UPND attacked because they thought their leader was going to win. His brother was in UPND and this contributed to him being attacked as they knew he was not UPND. The ruling party was also involved. It was put to the applicant that media reports suggest that this was a riot where UPND supporters randomly attacked the village, rather than them targeting individuals. He said that he disagrees in that he was an eyewitness and most reporters write with a bias towards the ruling party. Asked why the ruling party would attack if they had won, he said that most of the political parties were involved, and the ruling party attack the opposition parties as they know they are protected.

10. He said that they left the school to go to [City 1] very early the morning after the attack, and they arrived that [evening]. When he got to [City 1], the person who hitchhiked with them took him to [Neighbourhood 2] compound, his ‘uncle’s place’. His uncle saw his brother’s condition and said they should take him to hospital. His uncle asked him why he did not get a police report so they then went to the police station. Then they took his brother to the hospital, but he cannot remember if it was the same night.

11. He said that his brother died ‘not even a week later’. He said that the cause of his death was, according to doctors, internal injuries and some form of clotting of the blood.

12. The applicant claimed that after the 2016 elections, he continued to work for the [Political Party 1] but not carrying out the roles he had before the encounter with [Mr P], as he was scared for his life. He did work on mobilisation. Between 2016 and 2018, he continued to help out with [Company 4] as well as assisting the youth [Sport 1] team and [Occupation 1]. He said that between 2016 and 2018 he lived in [City 1] relatively safely but was in fear. In 2017 a person called [Mr Y], who had helped draw plans for his house and who helped him with his [Sport 1] team, started receiving threats of termination of his employment, because of his association with the applicant. The applicant did not know that [Mr Y] was gay. The police began to question the applicant as to the sexual practices of his [Sport 1] team. On a number of occasions the applicant was summonsed and on one occasion he was summoned to the police station on an allegation that he was encouraging the members of his [Sport 1] team to be gay. Depending on the police officer who took him to the station, the applicant was kept for a few hours, or overnight. Then he would be released. [Mr Y] has now been arrested and is awaiting sentencing for promotion of gay rights. He can be sentenced to 14 years in prison.

13. The applicant also referred to an incident involving a woman called [Ms N] who had the responsibility of administering community funds, called CDF, for building bridges for children to get to school or motorists to move freely. The applicant questioned the use of these funds, thinking they should be used for a medical centre. [Ms N] and others then accused him of practising witchcraft or having ulterior motives in suggesting other uses. [Ms N] came to the church with a group of other members, and verbally insulted him. She told him to keep his mouth shut, or they would kill him. This same group took a portion of the land from the church and subdivided it. In October 2018 he ran out of options as to what to do, and looked at mobilising the [Political Party 1], but thought that it would result in factional fighting. He reported the threats to his life to the police and they told him to go to court. He then sued [Ms N] in the court, and summons were issued and were to be delivered to her. Before taking this step, he proceeded to initiate a conciliatory meeting. She did come to the meeting and brought a group, but arguments and a near punch up ensued, and his clothes were pulled. A court hearing then took place at the Local Court. He had lost his parents and brother and had no-one to stand with him, besides his wife and children. All the PF members were there so he had to go in to the back of the court. The judge gave him a pre-hearing before the real hearing as the situation was volatile. The PF members made derogatory remarks during the hearing. The ruling was to encourage them to reconcile as they were in the same community. He said that he felt that the ruling should have been different as there were threats on his life. Once the hearing had ended, he went to his home which is in an isolated area. Later that day the group assembled in the village close to his home chanting that they had won the case, and they threatened the applicant that they would ‘finish him off’. They told him that they would ‘come up with a case against him’. After this he restricted his movements between the church and his house. He stopped his children from going to school fearing they would be killed or raped.

14. He said that he heard that there was a meeting of the [Occupation 1] in the area and he decided to go so he could be among his peers who could help him with what he was going through. During the meeting a man called [Mr H] said that following the meeting there would be prayers for the newly released national budget for 2019, as the budget projections did not look favourable. The main purpose of the meeting was prayer, not politics.

15. Suddenly a group of about five men from the ruling party came in to the church, and they could hear that there were others outside. They hurled insults and began to push and shove. They started to go outside and there was a bigger crowd there. They were pushed and beaten. Secret agents are often sent by the government. Someone threw a stone and he was [hit] . The men began to beat him up and they said they knew he was from the [Political Party 1], and was causing confusion. He fell to the ground and must have fainted. When he awoke, he was wet. He saw others who had been beaten up. The convenor went around encouraging people to move on. He realised his life was really in danger. He got up and walked to the bus stop which was a considerable distance and jumped on the bus. The people who helped him told the bus inspector to remind him where to get off as he was not fully conscious. He got off the bus and went to the clinic. The clinic told him that they needed to get a police report first. He was given Panadol. He then went home and his family broke down crying. His wife attended to his injuries.  He believes the attack on the meeting was premeditated. His wife went to the police station to see if there was someone helpful there as sometimes political candidates man the station. There was no police officer present so they went to the police post the next day, obtained the police report and went home. On arrival he was met by [Ms N] at the church. She said that she had heard he went to the police, that he got a police docket and threatened him that if anyone got arrested because of him they would do something about it. He also heard that his friend had been arrested with other [Occupation 1]. He heard that some of the police officers were in civilian clothes in the meeting. He saw a police vehicle outside. He said that if it was a caring government he would have been rushed to hospital. He said that journalists did not cover this. The [Police] Commissioner [called] the journalists to her office, saying that they had arrested [Occupation 1] because they had not registered the meeting and the journalists then reported this as it was presented to them. He was asked if he saw the police come and arrest people. He said that he left the church premises and [Mr G] later told him they were arrested.

16. He said from October 2018 to January 2019 he began to plan to leave the country. He looked at options of taking a holiday or leaving the country. He thought that people might move away or the law would catch up with them. Other opposition parties began to talk about suing the president in the International Court of Justice so he hoped things would change. He had sleepless nights. He first applied for a passport. Then he looked at Zimbabwe and Malawi which are ‘countries in the same boat as Zambia’. He applied for a visa to [Country 3] but it was rejected. He considered [Country 2] but there were some Zambians killed in xenophobic attacks. Upon his arrival in [Country 2], he did not feel safe. He was asked if he took any steps for applying for asylum. He said he did not because he feared for his safety. The Tribunal put to him that there are many people from other countries there and the major xenophobic attacks took place in 2008. He said that there are many xenophobic attacks on people from other countries and African businesses are burnt.

17. He said he had already applied for an Australian visa to come to Australia [when] he went to [Country 2].

18. He was asked if he considered moving to a different part of the country to live safely, as he would be away from the people he felt were threatening him. He said that he did consider his options but he did not feel safe anywhere because of his political activities. He could have used the money to start a business. He was asked about [City 2] where his family are living. He said that they are his wife’s relatives. It is a distant province where the PF are strong.

19. He said that since he has been in Australia, [Ms M] has received threatening telephone calls or messages from the people who are threatening his life, including [Ms Z], a member of the PF. Asked why these people would call her, he said it was to threaten her life so she would disclose the location of his family. He was asked why he would be of interest to political cadres as he had left the country. He said that they want to find out that he has truly left and also they want to confirm where his family is.

20. The applicant’s representative made a number of submissions:

    ·She had listened to the decision of the delegate and is of the view that the decision record does not accurately reflect what was said. For example the applicant said that he was not sure if the police were in uniform when left.

    ·She confirmed that travel time from [Town 1] to [City 1] is 9 hours and to [Town 2] is two hours.

    ·She provided a copy of the certificate of judgment relating to [Ms N].

    ·Some of the photographs as set out in the submission are the genuine ones.

    ·The Death Certificate was a pro-forma.

    ·The date on the stamp on the police document may have been a mistake.

    ·There are four eyewitnesses to the sexual act involving [Mr Y] therefore the truthfulness of their testimony may be questionable.

    Independent Country information

    Overview of Zambian political situation

21. 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.[5]

    [5] BBC World News, Zambia Country Profile, 3 January 2018, >

    Country sources are referred to in the findings below.

    FINDINGS AND REASONS

22. The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

23. The Tribunal is not bound by legal forms and technicalities or rules of evidence, although it can be guided by them. The Tribunal considers all of the evidence available in order to make the correct or preferable decision.

24. The findings of the Tribunal, based on the evidence provided, are set out below.

    Findings of fact

25. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[6] 

    [6] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

26. This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

27. The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

1. The Tribunal is guided by these decisions, and is particularly mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. In this case, the applicant has been in detention and there is no doubt that detention can be stressful and difficult. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[7] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

   [7] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

   The Tribunal has considered carefully the overall consistency and coherency of the applicant’s account, as truthful witnesses often present coherent, consistent and detailed accounts of events. The Tribunal notes however that psychological research on memory of trauma[8] indicates that inconsistencies, fragmentation of memory and lapses in memory do not necessarily reflect lack of veracity in relation to recalled events.

   [8] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661

2. In this case, the Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[9] in light of the evidence from the [ORGANISATION 1] reports which indicate that the applicant has been diagnosed with symptoms of hyperarousal, depression, post-traumatic stress disorder and anxiety. The Tribunal acknowledges that these symptoms may affect how the applicant gives evidence. The Tribunal took steps to ensure that the applicant was supported during the review process including giving priority to the matter, providing two hearings, encouraging the representative to make submissions, and, allowing extra time to provide additional evidence. The Tribunal notes that the reports from [ORGANISATION 1] indicates that the applicant speaks English, was oriented in time, place and person, and his thought processes were logical and coherent with no formal thought disorder or perceptual disturbances noted.

   [9] AAT, Migration and Refugee Division , Guidelines on Vulnerable Persons, available on the AAT Website, >

   The applicant has submitted that he was tired and depressed during his protection visa interview with an officer of the Department. He said that he talked for three hours without taking a break, did not have an interpreter so did not understand the nuances of questions, and was interviewed remotely which reduced his ability to understand.

3. Taking all these matters into account and taking a ‘reasonable’ approach to evidence assessment as set out in the guidelines and decisions referred to above, the Tribunal makes the findings of fact set out below. The Tribunal has not accepted the evidence in its entirety, and accepts that the applicant may have exaggerated what took place in Zambia to bolster his claims. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. As remarked on by Professor Hathaway, referring to decisions of the Immigration Appeal Board in Canada:

   Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[10]

   [10] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

4. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

5. The Tribunal is satisfied that the applicant was an active member of the [Political Party 1] in Zambia. He has provided a number of documents, including his membership card, extract from the [Political Party 1] register, and letters of confirmation from [Mr B]. Google searches reveal that [Mr B] is the vice-chairman of the [Political Party 1].  The applicant was able to describe how the [Political Party 1] was formed, correctly stating that it was founded in 2014 in the lead-up the 2016 elections by [Mr R], a [Occupation 6] who had been a former [office bearer] and [senior government official] for PF. According to the official website of the [Political Party 1], the Party was registered [in] 2014 and officially launched [in] December 2014.[11] Media reports refer to the formation of the party in the lead up to the 2016 elections in Zambia:

   [Information deleted].[12]

   [11] [Source deleted]

   [12] [Source deleted]

6. The applicant also knew of some of the leaders, although at the Tribunal hearing he did not know the current [City 1] committee, which may have been expected if he was involved in recent years. Importantly though, he was able to discuss his reasons for joining – the fact that the leader was a Christian and the party espouses Christian principles, and he could describe the ideology of the party. He said that the party was socialist-based and concerned with caring for the poor. He convincingly explained that his father and brother had encouraged him to believe in standing up for the underprivileged and the downtrodden and told the Tribunal that he would like to be an agent for change. He said that the population has grown in his region, but there are not enough schools, and children must travel a long distance. He said that the health delivery system is poor. Some women must deliver babies at home and many lose their lives. He also said there are few jobs and people queue for some commodities. There is high youth unemployment and therefore young people are drinking and taking drugs. He also spoke of his vision for the small holding settlement – making it a skills centre for youth and women. He also had a [Sport 1] and [Sport 2] team for youth as a distraction for youth to help prevent early marriages and substance abuse.

7. His vision and description corresponds with the ideology of the party as expressed in the official website of the [Political Party 1]. The website states that from its inception and launch, the [Political Party 1] has espoused socialism as its political and economic ideology. [Information deleted].[13] The website states that because the Zambian people have traditionally practiced aspects of socialism in their social and economic relations, the party had moved to embrace these values and practices so as to develop the brand of socialism tailored to the existing way of life amongst the peasants, workers and those living in the townships, squatter settlements and per-urban areas of the cities. [Information deleted].[14]

   [13] [Source deleted]

   [14] [Source deleted]

8. The Tribunal is satisfied that during the 2016 elections, the applicant was an election monitor for the [Political Party 1], and was offered a bribe, and then threatened at gunpoint not to reveal election irregularities. The applicant has provided his Electoral Commission of Zambia Political Party Official card from those elections. He was able to describe in detail the candidate whom the [Political Party 1] supported, requirements for election credibility, the forms required, and the sequence of events relating to this incident. Country information does suggest that election irregularity and threatening of opposition supporters has taken place regularly in Zambian elections.[15] The Tribunal is also satisfied that the applicant was threatened after the incident that he should keep quiet about what had taken place.

   [15] US Department of State, Country Reports on Human Rights Practices for 2018 – Zambia, 13 March 2019

9. The Tribunal had some concerns about the veracity of the evidence in relation to the 2016 incident. In referring to the incident in his protection visa application, the applicant said that supporters of the ruling party went to his house and burnt his car and the house of his older brother. The applicant did not state in his protection visa application that he and his brother were tied up, or, importantly, that his brother died from wounds inflicted during the attack. It would have been expected that such key incidents would have been included in his answers. Furthermore, while in his protection visa interview, he said that he and his brother had their hands tied behind their back with wires and were beaten and tortured, he did not mention this to the Tribunal at hearing, instead telling the Tribunal they were beaten with chains, and then the attackers moved on to the next houses. When asked about these discrepancies by the Tribunal, he said that initially he did not want to talk about the circumstances as it causes anguish to him to talk about it. He said that if a person talks about the passing of a beloved that person is returned to a mourning period again. He said that when he was preparing his application, his fellow inmates in detention told him that the application is useless, so he was confused as to what to write. He had been travelling for three days when he had his protection visa interview, and was very tired. He said that it was difficult recalling all the details correctly because of the trauma and threats to him.

10. The applicant was also asked at the Tribunal hearing why he said that the attack took place in the afternoon, but at the Department interview he said that it took place at 7pm in the evening. He responded that the description of time of day, ‘lunch to sunset’ was afternoon and this mix-up was caused by interpretation. He was asked what time it took place, he said it was in the afternoon. Asked roughly what time, he said it started in the afternoon, but it reached his village around 3pm. At the Tribunal hearing he was asked why, when relating the injuries his brother had received, he did not refer to his brother being burnt, as he had claimed to the Department. He said that he had not claimed to the Department that his brother was burnt, rather that they wanted to set him ablaze. He was asked why he told Tribunal that he did not go to the police as he was tired after his long journey, but he told the Department that he did go and was given a report. He said that he had limited understanding of what the delegate was asking.

11. The Tribunal also had concerns about why, if his brother was so seriously injured, they would travel over eight hours to get the brother to hospital in [City 1], if there were hospitals on the way in [Town 2] and Lusaka. Further the Tribunal has given little weight to the police report and the medical report. The police report is titled ‘loss of vital document’ and was dated [Date 4] August 2016. It is unclear why this was the date on the report, if he had only reported the matter the day after the attack, which would have been [Date 5] August 2016 after they travelled to [City 1]. When asked about this, he said that his uncle reported it to the police so he was not aware. He said that they arrived late in the night, so he did not accompany him. Further, the medical certificate states that ‘for cases in which the medical attendant is unable to certify that the death was due to natural causes – see over’, however the second page is missing. Furthermore, the death certificate states that the doctor attended his brother for his ‘last illness’ 18 to 20 August due to natural causes although it is then stamped causes of death, ‘illegible’ due to ‘assault’. When asked about this, the applicant said that it may have been an administrative person who prepared the certificate. As the dates and information do not entirely match the description of what took place, the Tribunal has given these documents little weight.

12. The applicant also provided a number of photographs to the Department which he claimed evidenced the attack on [Town 1]. The Department noted that a number of these photographs had been used in media reports prior to the events in [Town 1]. For example, the photograph of a man lying on the ground was used in articles in 2015, and thus could not have been his brother’s friend in [Town 1] as claimed. The photographs of a person with a chain were used in articles in 2013 and 2016. In light of this information, after discussion with the Tribunal the applicant acknowledged that the photographs did not depict the incidents at [Town 1], although some of the photographs did show his brother’s family and house. He claimed however that he was given the photographs by a friend of his brother who is a journalist. Thus it is possible that the applicant did not know that all of the photographs did not actually depict the events in [Town 1]. The Tribunal has not given the photographs significant weight as evidence of the 2016 incident due to the fact that some of the photographs had been used in earlier articles.

13. The Tribunal accepts that some of the discrepancies and omissions referred to above may have resulted from problems with interpretation and communication at the Departmental hearing as well as trauma. The Tribunal acknowledges also that the applicant may have not included all details of his claims in his initial application when he was tired and depressed. While the Tribunal has significant doubts about the accuracy of all the claims, the Tribunal is prepared to give the applicant the benefit of the doubt, taking the reasonable approach to evidence assessment discussed above. The Tribunal has also taken into account the evidence of the brother’s first and second wife. The Tribunal is satisfied on balance therefore that the applicant and his brother were caught up in the violence in [Town 1] and that a few days later his brother died. The Tribunal does not accept that the applicant and his brother were tied up, given the discrepancies in the evidence about this, or that they were specifically targeted, given the newspaper reports about the event which suggests that this was a random attack by UPND on the village,[16] and his description, that they were attacked while getting ready to go to harvest.

    [16] [Source deleted]

14. The Tribunal questioned the applicant about why his evidence relating to [Ms N] was not included in his application. The applicant submitted that his evidence was true, but he found it difficult to include all the information in the first interview, given the problems in interpretation and communication at that interview. Notwithstanding the late inclusion of this evidence, the Tribunal is satisfied that the applicant had a dispute with [Ms N] who had the responsibility of administering community funds, called CDF. The Tribunal accepts the applicant’s evidence because he was able to talk about it clearly and in great detail, and because he has provided court documents relating to the dispute. The Tribunal is satisfied that the applicant was concerned that CDF funds were not being allocated appropriately for community purposes and this caused hostility from [Ms N] and other ruling party associates, who had also appropriated a part of the church land. The Tribunal is satisfied that [Ms N] threatened to kill him, he reported the issue to the police and they told him to go to court. The Tribunal is satisfied that the applicant initiated a conciliatory meeting which resulted in near-violence from [Ms N] and her associates. The Tribunal is satisfied that at the court hearing, he felt threatened by the attendance of PF members who made derogatory remarks during the hearing. The Tribunal is satisfied that after the court hearing, the cadres threatened the applicant that they would ‘finish him off’ and ‘come up with a case against him’, and they also threatened his wife. The Tribunal is satisfied that after this event he restricted the movements of his family. All this evidence was provided with clarity, coherence and detail often commensurate with telling the truth.

15. The Tribunal is satisfied on balance that the applicant attended the [Church 1] gathering [in] 2018 but is not satisfied that the applicant was attacked by ruling party supporters prior to police closing down the meeting. The reasons for this are as follows. Firstly the applicant claimed that he was attacked by ruling party supporters prior to the police attendance. He claimed that the police used teargas and they were in plain clothes. This information does not accord with country information which suggests that police abruptly stopped the [meeting] and arrested five [individuals]. They were in riot gear as well as plain clothes and there is no mention of tear gas. Importantly, there is no mention in newspaper reports of an attack by supporters prior to the police intervention.[17] An article published by [Publication 3] ([Country 2]) reports:

    [Information deleted].[18]

    [17] [Source deleted]

    [18] [Source deleted]

16. The incident is referred to as follows:

    [Information deleted].[19]

    [19] [Source deleted].

17. When the applicant was asked about why his report of the incident was so different to media reports, he said that the journalists got their information from a briefing with the police commissioner. He said there were some political cadres dressed as police officers which has been referred to in police reports and he did mention seeing a police car. He said that many police stations are manned by political cadres masquerading as police officers. The Tribunal accepts that political cadres may masquerade as police officers, however in this case reports referred to riot gear.[20] The Tribunal does not accept that if political supporters attacked the meeting and violence ensued, that this would not have been included in media reports, given that the meeting was run by a civil society organisation[21] and there were many [Occupation 1] present. The civil society organisation did comment on the police arrests,[22] and it is likely that they would have commented on an attack by cadres if this took place.

    [20] [Source deleted]

    [21] [Source deleted]

    [22] [Source deleted]

18. Secondly, the applicant claimed that he saw the doctor the same day as the attack. His medical reports are dated [Date 1] 2018 and the attack, according to media reports was [Date 2] 2018.[23] While the Tribunal accepts the submissions that in Zambia time and dates are measured from events, the fact that he said that the visit to the doctor was the same day, does undermine its credibility, given these events only took place less than one year ago.

    [23] [Source deleted]

19. Thirdly, he told the Department police arrived in plain clothes 10 to 20 minutes after the attack by cadres and they used teargas, but he told the Tribunal he was pushed and interrogated outside the meeting, fainted, and then walked to a bus stop, so was not present when police arrived. Asked about these discrepancies, he said that he had a brain freeze when talking about these traumatic events.

20. The Tribunal had some doubts as to whether the applicant attended the meeting at all. This was because in his protection visa application, the applicant claimed that the attack on [Church 1] occurred on [Date 1] 2018. However, news articles suggest that it occurred on [Date 2] 2018. While it is understandable that he may have made an error in relation to dates, he also initially claimed that it took place on a Wednesday, later changing this to a Saturday. In fact, the attack took place on a Friday.[24] Further, at the Department interview the applicant was unable to name [Mr I] as the [Chairperson] who conducted the meeting. He told the Tribunal that he did not name the leader because at the time he left the person in charge was [Mr H]. He also referred to difficulties he encountered at the Departmental interview with the interpreter and communicating with the officer. The Tribunal is mindful not to impose too high a standard when assessing an applicant’s level of knowledge, however the Tribunal has had regard to the lack of knowledge of the name of this [Chairperson], as it something that the applicant would reasonably be expected to know if his or her claims were truthful and he did in fact attend the meeting: Nejadv Minister for Immigration and Multicultural Affairs [1999] FCA 1827.

    [24] [Source deleted]

1. However, given the difficulties encountered in communication and interpretation at the Department interview, and taking a ‘reasonable’ approach to assessment evidence, the Tribunal is satisfied that the applicant attended the meeting. The meeting took place at [Church 1] which was in his region. He knew that five [individuals] were arrested and was able to inform the Tribunal of the name of the civil society organisation that ran the second meeting and the issues discussed at that meeting. As discussed however, the Tribunal is not satisfied that the applicant was beaten by ruling party supporters prior to the meeting, reported this to police, or that he was approached by political cadres after the meeting.

2. The Tribunal is satisfied that the applicant was involved in a land dispute with [Mr E] as claimed. He has provided extensive detail about this dispute as well as a number of supporting documents. The Tribunal accepts that [Mr E] has gained control of his land and that there may still be bitterness between them as the applicant has reported [Mr E] to the Lands Tribunal. The Tribunal is also satisfied that while he has been in Australia, [Mr F] has taken over land that he was hoping to develop for a church project. These kinds of land disputes are common in Zambia.[25] The Tribunal has searched the names of [Mr E] and [Mr F] on Google and there are no news reports of them being in positions in PF. However, given the detailed information provided by the applicant, the Tribunal accepts that they may have associations with PF.

   [25] All Africa, >

   The Tribunal is not satisfied that [Mr Y] was arrested for connections with the applicant. The applicant was asked why he did not introduce his concerns about [Mr Y] in his application or to the Department. He said that his memory is ‘not up to scratch’. He remembers things in a ‘piecemeal’ fashion. The Tribunal accepts that he had difficulties in interpretation and communication at the first hearing. However the Tribunal is of the view that if he had concerns about being accused of promoting homosexuality he would have mentioned them at an earlier stage, given that [Mr Y] was arrested in March 2018. In any event, the media reports suggest that [Mr Y] and his partner were seen by eyewitnesses engaging in sexual intercourse at a hotel and there were videos and photographs.[26]  This suggests that [Mr Y] was arrested for other reasons, rather than a connection with the applicant.

   [26] [Source deleted].

   Nationality/receiving country

3. The applicant provided a copy of his passport and gave evidence that he is a citizen of and born in Zambia. The Tribunal accepts on the evidence before it including his passport and personal particulars that he is a citizen of Zambia, and that Zambia is the receiving country for the purposes of the legislation.

   Well-founded fear of persecution

4. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

5. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act, provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

6. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[27]  It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J of the Act.[28] 

   Refugee criteria – does the applicant have a well-founded fear of persecution for reasons of his political opinion?

   [27] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9. Note that Gaudron J did not adopt the ‘real chance’ test.

   [28] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.171 at [1180].s

7. The Tribunal is satisfied for reasons set out earlier that the applicant was involved in the [Political Party 1] in the past and was an election monitor in the 2016 elections. The Tribunal is also satisfied that he was threatened by a candidate for trying to expose electoral corruption in those elections, and has had disputes over community and land matters with ruling party supporters. The Tribunal questioned the applicant about his current knowledge of matters pertaining to the [Political Party 1] to ascertain if he was still interested in it and may want to continue his political involvement when he returned. He said that he gets ‘sketchy information’ on the internet but also did ‘not want to have grief’. He did not know the names of the current committee and was unaware of the split between [Political Party 2] and [Political Party 1] in 2018.[29] Such lack of knowledge may indicate that he would not be closely involved in the [Political Party 1] if he returned, however the Tribunal is satisfied that the applicant would participate in [Political Party 1] activities or other activities in opposition to the ruling party, as he clearly is passionate about social justice and helping the underprivileged. He has spoken of his ‘two addictions’, speaking the word of God, and speaking for the voiceless. He was able to talk passionately about the objectives of the party, and had a vision for the small holding of land to become a place where youth and women could garden, learn skills and play sport to avoid social problems. The Tribunal is satisfied that the applicant is passionate about social change and would be involved in community, social or political issues if he returned.

   [29] [Source deleted]

8. The question for the Tribunal is whether the applicant has a well-founded fear of persecution if he returns for reasons of this involvement. The 2016 incident in [Town 1] emanated from UPND violence rather than actions of the ruling party, and appeared to be a generalised attack on the village. The Tribunal is not satisfied that there would be any repercussions in the future which related to the 2016 incident. The Tribunal is satisfied that the applicant has had a serious dispute over community funds with a PF supporter, as well as a dispute over land with a number of other PF supporters. The Tribunal is not satisfied that the applicant was attacked in 2018 at the [Church 1] meeting, although he did attend the church meeting which received a great deal of publicity. The Tribunal notes that the applicant was not harmed between 2016 and 2018 although he did receive a number of threats. He has submitted that he would be threatened by the PF and the political cadres if he returned.

9. 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 states as follows:

   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, was re-elected by a tight 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 government continued to apply the law selectively to prosecute or punish individuals who committed abuses and mostly targeted those who opposed the ruling party. Additionally, impunity remained a problem as ruling party supporters were either not prosecuted for serious crimes or, if prosecuted, released after serving small fractions of prison sentences.[30]

   [30] United States Department of State, 2018 Country Reports on Human Rights Practices: Zambia, 13 March 2019, >

   The Report goes on to comment that the constitution provides for freedom of peaceful assembly however pro-government groups sometimes disrupted rallies and meetings.[31]

   [31] United States Department of State, 2018 Country Reports on Human Rights Practices: Zambia, 13 March 2019, >

   The Tribunal put to the applicant that the human rights and country reports suggest there are some political irregularities and violence during election time and some suppression of opposition by ruling party cadres, but overall there are few assassinations and political killings and the country is fairly democratic and stable. He said that he would not have travelled to Australia if it was safe in his country, and he would not have left a young family behind. He said he  believes that his life will be threatened if he returns and he would be arrested or killed as he would continue to speak out for those in need. He fears that because there are gay players in his [Sport 1] team, police may arrest him for promoting gay conduct and he would be subject to imprisonment. He would want to comment on these issues. He said that media reports are based in countries that are affluent and well-developed. If the BBC reporters went to the grassroots they would discover the hardships. His human rights are limited. He said ‘if you are a minister or a member of the opposition you are considered adverse to the government. As a [Occupation 1] you need to comment on the social situation. The government sends secret agents to most services. The lives of opposition political leaders are under threat, and the ruling party has resources where he has none’. He said that [Ms N] will still ‘come after him’ as the funds in the community were not used for bridges, clinics or roads and she wants him to keep quiet about this. He will have to comment on the issues for those who have lived in poverty.

10. The Tribunal is satisfied, on balance, and in the very particular circumstances of his case, there is a real chance of serious harm from the ruling party or ruling party cadres in his region. The United States Department of State has said that ruling party cadres can operate with impunity and it appears that in his case, he has been subject to hostility and threats from a number of supporters over his support for social justice issues and in protecting his land. Freedom House states that ‘the government regularly invokes the law to restrict freedom of expression and ban peaceful demonstrations and meetings, while the opposition faces onerous legal and practical obstacles in their operations’.[32] The Report states:

    Political parties are registered under the Societies Act and do not regularly face onerous registration requirements; independent candidates may also run for office.

    The major political parties are the PF and the UPND, but the opposition UPND faces harassment and significant obstacles in accessing media coverage. Supporters of the ruling party sometimes disrupt private television and radio broadcasts, and even attack the stations when opposition politicians are scheduled to make appearances. In January 2018, National Democratic Congress (NDC) leader Chishimba Kambwili was forced to cancel a television appearance when reports surfaced that PF supporters intended to attack the studio during his interview.

    Repression and arrests of opposition figures continued in 2018, as well, hindering their parties’ ability to organize and function effectively. In April, New Labour Party leader Fresher Siwale was arrested and charged with defamation for accusing President Lungu of identity theft and claiming that Edgar Lungu is not his real name. He awaited trial at the end of the year. Despite intense pressure on the private media, and the use of the Public Order Act to restrict opposition events, the opposition UPND almost doubled its representation in parliament in the 2016 elections, while the PF lost several seats. However, political violence and government restrictions on opposition activities ahead of the elections created an environment in which voters were less able to freely elect representatives to determine government policies.

    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. [33]

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

    Amnesty International has said that in 2017/18 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.[34]

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

11. The United Nations has stated that ‘Zambia has significant levels of violence and injustice, however, often in multiple and hidden forms’.[35] 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.[36] The journalist states that ‘given the wrong notion that the ruling party owns the State and its institutions, ruling party cadres tend to illegally usurp powers and functions of legally-established governance institutions such as the police and local government authorities. A typical example is the usurpation of powers to demarcate and allocate land by ruling party cadres under different administrations.[37] 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 2012 elections. The United States ambassador to Zambia, Daniel Foote has referred to a ‘deterioration of Zambian democracy and institutions’.[38]

    [35] 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

12. Taking all this information into account cumulatively the Tribunal is satisfied that this applicant because of his deep-rooted passion for social justice, faces a real chance of serious harm in the reasonably foreseeable future from people associated with the ruling party, for reasons of his political opinion. Freedom House has reported that in 2018, there have been threats and arrests of opposition politicians, trumped-up 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.[39] Reports refer to increased power of ruling party supporters. The Tribunal accepts therefore that Zambia although politically stable for many years has become more repressive of opposition, with supporters able to operate with impunity. In this environment, the Tribunal is satisfied that the applicant, with his history of hostility from ruling party supporters and his passion for social causes, has a well-founded fear of persecution for reasons of his political opinion.

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

    It will not be sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s.5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country.

13. The applicant has claimed that he would be at risk throughout Zambia as his views will be counter to the ruling party and this will bring him to the adverse attention of ruling party cadres no matter where he is located. His wife and children are living in [City 2] which he claims is a stronghold for the ruling party.

14. The Tribunal has found that the applicant has a well-founded fear of persecution because of his political views which have come to the attention of ruling party cadres in his region. While there is no doubt that moving away from this region would lessen the immediate chance of harm, the Tribunal is satisfied that there is a real chance of serious harm in the reasonably foreseeable future, given that this applicant is dedicated to creating social and political change and this is likely to bring him to adverse attention of ruling party cadres in other regions as well. Furthermore, Zambia is a small country where people are likely to know each other and share information.

15. The Tribunal is satisfied therefore that the real chance of persecution relates to all areas of Zambia.

    CONCLUDING PARAGRAPHS

16. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Jane Marquard
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …