2201443 (Refugee)

2201443 (Refugee) [2022] AATA 2851 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2201443
COUNTRY OF REFERENCE:                   Zambia
MEMBER:Simone Burford
DATE:29 July 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2022 at 6:08pm
CATCHWORDS
REFUGEE – protection visa – Zambia – fear of harm from members of extended family because of inheritance dispute – raids on family home, attacks on applicant and suspicious death of brother – returnee with criminal record in Australia – separation from Australian citizen wife and children or harm to them if they travel with him – credibility – extended voluntary returns – delay in applying for protection – permanent partner visa refused and tribunal reviews, court appeals and requests for ministerial intervention unsuccessful – no fear of harm expressed in any of those proceedings – inconsistent claims and evidence and no corroborative evidence provided – some claims discontinued – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65, 195A, 197AB, 424A, 424AA, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
AUB16 v MIBP [2017] FCCA 2634
CSV15 v MIBP [2018] FCA 699
CHB16 v MIBP [2019] FCA 1089
GLD v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
MZAEN v MIBP [2016] FCCA 620
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age 1]-year-old Zambian citizen who was born in [Town], Muchinga Province, Zambia. He identified himself as a Christian and a member of the Bemba tribe.
He married an Australian citizen, [Ms A], [in] July 2013 in Zambia. He has two [children] who are both Australian citizens, [Child 1] born in [Year 1] and [Child 2] born in [Year 2]. He speaks, reads and writes English, Bemba and Nyanja. He is the only son left in his family. The applicant’s parents and two married sisters remain living in Zambia. His elder brother is deceased. He was born and raised in [Suburb], Lusaka, where he was living prior to coming to Australia. His application indicated that he remains in contact with his family in Zambia.
According to the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, he arrived in Australia on a Student (TU 573) visa [in] October 2008. He was enrolled in, and completed, a [Subject 1] degree at [College]. On 30 September 2012 his student visa ceased. He was granted a Bridging Visa D on 5 October 2012 before a Bridging Visa E on 12 October 2012.
The applicant departed Australia on the Bridging Visa E [in] November 2012. While offshore he lodged a combined application on 16 July 2013 for a Class UF Subclass 309 Partner Visa (Provisional Partner Visa) and a Class BC Subclass 100 Partner (Migrant) Visa (Permanent Partner Visa). He was granted the Provisional Partner Visa on 5 December 2013 and arrived in Australia again [in] January 2014.
On 15 January 2018, the applicant’s Permanent Partner Visa was refused under s 501 of the Act and his Provisional Partner Visa ceased. The applicant was placed in immigration detention.
[Later in] 2018, the refusal of the applicant’s Permanent Partner Visa was upheld by the Tribunal, differently constituted. The applicant requested Ministerial intervention under s 195A of the Act and this request was not referred to the Minister on 4 August 2021.
The Federal Court overturned the Permanent Partner Visa refusal decision by the Tribunal, differently constituted, [in] 2019. The refusal was remitted back to the Tribunal for reconsideration. [In] 2021, the Tribunal, again differently constituted, affirmed the refusal of the applicant’s Permanent Partner Visa. The Federal Court affirmed the decision [later in] 2021.
On 3 August 2021, the applicant requested Ministerial intervention under s 197AB which was not referred to the Minister on 4 August 2021. The applicant requested Ministerial intervention under s 195A and s 197AB on 20 August 2021. Both requests were not referred to the Minister on 25 October 2021.
The applicant applied for the protection visa on 26 October 2021. The delegate refused to grant the visa on 3 February 2022. That is the decision which is the subject of this application for review.
Issues
The issue in the review is whether the applicant has a well-founded fear of persecution in Zambia due to his status as the only male heir to his family’s estate from members of his extended family, as a Christian, as a member of the Bemba tribe, due to separation from his family members in Australia ort their return to with him to Zambia, as a returnee convicted of serious offences in Australia, or as a returnee who is perceived to have failed overseas or for any other reason, or whether complementary protection provisions otherwise apply.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. The relevant law is included in the Attachment.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
Protection visa application
In his application for a protection visa, the applicant set out the reasons he claimed he could not return to Zambia. These are summarised in the delegate’s decision as follows:
·He is the only son left in his family;
·There is a dispute in the family over the distribution of land, farms and wealth;
·The applicant’s older brother was killed because of this dispute as ‘they’ are targeting males of the family;
·‘They’ have made several threats that when the applicant arrives, he will be shot dead;
·The applicant suffered mentally and physically when he lost his brother;
·His family home is regularly raided by family members who believe they have rights to the applicant’s land and property;
·The applicant experienced severe physical attacks by family members when he tried to stop them invading his privacy;
·It is an unwritten rule that this type of dispute is left to the family or tribe to resolve and the authorities will not intervene;
·The applicant cannot move elsewhere in Zambia as they are a big family with branches all over the country; and
·The applicant fears torture, imprisonment, being killed by gunfire or beheading.
In support of his application the applicant submitted the following documents to the Department:
·Certificate of Course Completion, [Parenting course], issued 10 May 2021;
·Certificate of Completion, NSW Traffic Offender Program, dated 16 August 2021;
·Certificate of Course Completion, [Drug and alcohol course], issued 10 March 2021;
·Photos including of the applicant’s [children], the applicant and one of his [children] and photos of the children’s artwork;
·Letter from [Ms B], Counsellor, [Alcohol and drug counselling service provider], dated 13 November 2021 confirming that the applicant attended four sessions with the service.
The interview
The applicant attended an interview with the Department on 10 November 2021. The delegate’s decision notes that the claims and incidents raised in the interview were not always consistent with the information stated in the applicant’s written claims.
The delegate’s decision
On 3 February 2022, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision with his application for review.
The delegate accepted that:
·The applicant’s home region is Lusaka, he is a member of a tribe which is an offshoot of the Bemba tribe and he is a practising Christian;
·The applicant speaks, reads and writes Bemba, Nyanja and English;
·The applicant’s parents live in Lusaka as do his two sisters. He is in contact with and on good terms with his family;
·The applicant’s parents own a house in Lusaka, where the applicant was raised, as well as a farm in Lusaka and a larger farm three hours’ drive from Lusaka;
·The applicant’s brother died in Zambia in February 2019. The applicant does not know the location or reason for his brother’s death, but he suspects that some of his paternal cousins may be responsible; and
·The applicant has a criminal record in Australia.
The delegate accepted that the applicant may suspect that some of his paternal cousins were involved in the death of his brother in Zambia in February 2019. However, the delegate found that he did not provide information to demonstrate that this belief is well-founded. The delegate did not accept that the applicant’s brother’s death had a bearing on the likelihood of the applicant being harmed in Zambia in the foreseeable future. The delegate concluded that the applicant did not have a genuine, subjective fear of harm in his home country for this or any other reason.
The delegate found the applicant’s delay in seeking protection for 13 years while in Australia indicated he did not wish to return to Zambia for reasons other than a fear of persecution. However, the delegate did not place much weight on this consideration. The delegate also noted that the applicant voluntarily returned to Zambia and lived there for 14 months with his parents. The delegate found this further supported a finding that the applicant did not face a real chance of serious harm on return to Zambia.
Based on these findings, the delegate was not satisfied the applicant meets the criteria in s 5H(1)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Zambia.
Review application
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 February 2022. He provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 8 March 2022 and 6 April 2022 to give evidence and present arguments.
The hearings were held during the COVID-19 pandemic. The first hearing was held by telephone. The second hearing was held by video conference using the MS Teams platform. The Tribunal notes that at the time of the hearings the applicant was in immigration detention. The Tribunal determined it was reasonable to hold a hearing by electronic communications, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic communications. The applicant did not raise any concerns regarding the conduct of the hearings by telephone and video conference and there were no communication issues arising during the hearings.
The applicant was not represented in relation to the application before the Department and the Tribunal. At the first hearing he told the Tribunal that he had been trying to get legal help but had been unable to do so. He asked if the Tribunal could assist and the Tribunal indicated it was unable to provide legal assistance to the applicant but would attempt to conduct the proceedings in a way that was accessible and would enable him to put his claims and submissions in support of the application.
The applicant did not request the assistance of an interpreter. The Tribunal notes the applicant’s first language is English and the Tribunal considered he was able to participate in the hearing without the assistance of an interpreter. He did not raise any concerns in this regard.
Prior to the initial hearing the applicant provided a document titled ‘Applicant’s Statement of Issues, Facts and Contentions’ submitted on 7 March 2022. That document made the following claims:
·The applicant is the only male heir of his family after his older brother was killed by members of his family who believe they have rights to his father’s wealth and assets;
·The applicant is a target of these family members who are trying to locate him and have raided his family home taking advantage of the lack of a male protector;
·The applicant and his family cannot go to the authorities because they consider these matters should be dealt with within families and tribes;
·He cannot relocate because his tribe and family are extensive all over the country and he will be able to be located wherever he is;
·He has a well-founded fear of being persecuted for the reason of being the only male inheritor of his family wealth and this is very common all over Africa especially southern Africa;
·Taking his young children to Africa will mean he is denying them the opportunity of better education, medical treatment and future, and they would face language and cultural barriers;
·If they are left in Australia they will be without a father and the negative effects of that decision;
·The applicant will be the subject of a degrading and miserable life and is owed complementary protection.
In his response to the initial hearing invitation he indicated he wished to call the following witnesses:
·[Mr C] who he identified as the person taking Bible study the past three years;
·[Mr D] who he indicated knew him and could speak of him as a person.
At the initial hearing the Tribunal outlined for the applicant the issues it was considering and confirmed the applicant’s claims for protection. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to his personal circumstances since the application was filed. The Tribunal indicated that in addition to the Department file in relation to the protection visa application, it had before it a copy of the most recent decision by a different Senior Member of the Tribunal with respect to the refusal of the applicant’s Permanent Partner Visa application on character grounds under s 501 of the Act. That decision was dated [in] 2021. The Tribunal also had a copy of the transcript of the hearing before the Tribunal on that application. The Tribunal indicated that to the extent any information from that hearing was relevant to the protection visa application and may be considered to be adverse to the review application the Tribunal would discuss it with the applicant at the following hearing.
At the initial hearing the Tribunal indicated it would not be taking evidence from witnesses at that hearing but would speak to any witnesses the applicant wanted it to contact at the following hearing. The Tribunal asked that prior to that hearing, the applicant provide statements from the witnesses he wanted the Tribunal to take evidence from. The applicant was encouraged to provide any evidence in support of his claims prior to the second hearing.
Prior to the second hearing the applicant provided the following documents:
·Document titled ‘Zambia: Land and Property Rights’ – at the hearing the applicant indicated this was a document he created to explain his circumstances;
·Statement from [Mr E] dated 21 March 2022;
·Statement from [Mr and Mrs C] dated 13 March 2022;
·Statement of [Mr D] (undated). The applicant told the Tribunal he obtained this statement at the end of March 2022. It notes [Mr D] has known the applicant for 11 years and that he is kind and dedicated. The statement described the difficulty separation from his [children] and family would cause for the applicant. The statement indicates that ‘[the applicant]’s older brother was discovered dead in very suspicious circumstances in Zambia. He has had a tough few years, and he regrets every decision that led him in detention’. The statement notes the applicant is reformed and would contribute positively to Australian society and sending him back to Zambia would be difficult for his family.
The document prepared by the applicant titled ‘Zambia: Land and Property Rights’ refers to what he describes as a tradition of ‘property grabbing’ whereby:
The tradition, known as property grabbing involves relatives of a widowed husband claiming her as inheritance, along with everything the husband has owned. The modern cases are different, as it involves children and any other family member that might be the one to look after all the assets the father had acquired.
And the prevalence of land disputes in Africa which at times may involve violence. It states that this is a problem for the applicant as he is next of kin and his father is the successful youngest son in his family who has acquired assets. The document states in conclusion that:
Property grabbing is a huge problem in Zambia and other African countries, certain people work hard in life to have a better life. But relatives will come in and try to have what does not belong to them, they will kill torture, or do whatever they can to get something out of nothing. There is no Centrelink in Zambia and people are facing hard to live a normal life. [The applicant] is a young father of two Australian citizen children and It would be a risk to take him to a country where he might lose his life and his children will have no father.
In his response to the adjourned hearing invitation the applicant indicated he wished to call:
·[Mr C] who he identified as the person taking Bible study the past three years;
·[Mr E] who he indicated had known him for over a decade as they went to the same high school and are still in touch.
The Tribunal took evidence from those witnesses by telephone at the hearing.
[Mr D] was not included in the witness list for the second hearing and the applicant did not indicate he wanted the Tribunal to speak to [Mr D]. The Tribunal requested the applicant’s wife also attend the hearing via telephone to give evidence. However, at the time of the hearing the applicant indicated she was unavailable because he didn’t want to add to her stress and because she had ‘given up’.
‘Additional information’ submitted on 1 April 2022 included a statement and country information on Zambia from everyculture.com. The applicant’s statement indicated that:
·As inheritance is dealt with within tribes he cannot go to the authorities with his complaint;
·The applicant will not be able to provide the same lifestyle to his Australian citizen children due to interference by his tribe and other family members in their development.
He submitted that brought him ‘within Complementary Protection Visa boundaries’.
The applicant’s claims for protection and the evidence on which he was seeking to rely in support of his claims were discussed in more detail at the second hearing. The applicant was provided with additional time following the hearing to put in further submissions or evidence. No material was provided other than the response to the s 424A letter detailed below.

At the second hearing the Tribunal discussed a range of concerns with the applicant including regarding his failure to raise any fears of harm in the context of earlier proceedings before the Tribunal.
At the hearing the Tribunal formally put to the applicant, pursuant to s 424AA, information regarding his prior application for review of the refusal of his Permanent Partner Visa pursuant to s 501 and the fact fears of harm on return to Zambia had not been raised in that application. The Tribunal indicated the information, subject to his comment or response, would be the reason or part of the reason for affirming the decision under review. The particulars of the information were:
·The decision of the Tribunal, differently constituted, [in] 2021 concerning a past review of the refusal of the applicant’s Permanent Partner Visa on 15 January 2018 under s 501 of the Act indicates that the submissions of his representative to the Tribunal and the material before the Tribunal did not raise any issues of non-refoulement obligations being owed to the applicant with respect to his return to Zambia. The Tribunal was satisfied this consideration was not applicable to his application in that case.
·The transcript of those proceedings indicates the applicant’s then representative confirmed that non-refoulement issues did not arise and that he did not raise any claims to fear harm from his family members on return to Zambia due to a dispute over property, to disinherit him or for any other reason.
The Tribunal explained that non-refoulement obligations arise in a range of circumstances including where a person is a refugee or where they would be owed complementary protection because of a real risk of significant harm as a necessary and foreseeable consequence of being returned to their country of nationality.
The Tribunal explained that the information was relevant because non-refoulement obligations are a prescribed matter which the Tribunal must take into account when determining whether to exercise its discretion in s 501 matters. If the Tribunal accepted the information, subject to the applicant’s comment or response, it may also cause the Tribunal to find that the applicant’s claims to be at risk of serious or significant harm on return to Zambia are not credible. It may also cause the Tribunal to doubt the credibility of claims which were not raised in the context of consideration of his visa refusal including where the Tribunal was required to consider whether non-refoulement obligations were owed to the applicant if representations to that effect were made by the applicant. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
After a short adjournment the applicant indicated he had already said what he wanted with respect to these issues.
At the end of the hearing, the applicant asked if the Tribunal could send him the information following the hearing so he could see if there was anything further he wanted to say about it. In light of this request and in order to give the applicant further time to consider those matters following the hearing, on 6 April 2022, the Tribunal sent the applicant a letter pursuant to s 424A of the Act putting the same information to him to enable him to make any further comments.
The invitation indicated that the information was relevant to the review because non-refoulement obligations are a matter which the Tribunal is directed to take into account, where relevant, when determining whether to exercise its discretion under s 501 of the Act. The Tribunal indicated that if it accepted the information, subject to his comment or response, it may also cause the Tribunal on the current application for a protection visa to doubt the credibility of claims which were not raised in the context of consideration of his visa refusal including where the Tribunal was required to consider whether non-refoulement obligations were owed to the applicant. The Tribunal explained this may cause it to find that the applicant’s claims to be at risk of serious or significant harm on return to Zambia are not credible.
The applicant responded to the invitation on 19 April 2022 and submitted that when he was fighting the cancellation of his Permanent Partner Visa he was concentrating all his efforts on reinstating his visa. He said that he indicated to the Department that he intended to apply for a protection visa and ‘their answer is always that I should concentrate on reinstating [my] current visa’. He referred to his earlier evidence to the Tribunal on review in support of his claims for protection. He said he did not mention the protection claims to his representative on the s 501 application as he was concentrating on the reinstatement of his Permanent Partner Visa. He said he should have been provided a migration agent to help him prepare for the interview for his Permanent Partner Visa and also to help him prepare for the AAT review. He submitted that in failing to do so the Department denied him natural justice and procedural fairness.
Evidence at the hearing
At the initial hearing the Tribunal discussed with the applicant whether there were any changes to his claims and the information on which he was seeking to rely in support of his claims. The Tribunal asked if the applicant had any additional claims and he said his submissions included all his claims.
The applicant confirmed that he was a citizen of Zambia and was born in a small town called [Town]. He said he had a right to visit other countries around Africa. He said that he was ethnically African and a member of the Bemba tribe. He is a Christian. In Zambia he identified as a [Church denomination] but said he had never had a chance to go there in Australia.
His parents have been living in Lusaka for about [Number] years. He was living in Lusaka prior to coming to Australia. They remain living in the same home in [Suburb], Lusaka. His sisters also remain in Lusaka but are married and moved houses. His parents are no longer working.
His father had previously worked for the [Employer]. His mother was [an Occupation 1]. His father has degrees in [Subjects 2 and 3]. Initially he worked in [job task 1] and then in [job task 2] departments. He did this work for about 25 years retiring in around 2012. His elder sister works for the [Employer] in [job task 3] in the [work location]. His younger sister was working in a [workplace]. Both now have children. He has extended family, most of them are not in Lusaka.
He and his wife met at university in 2011. They married in July 2013 in Lusaka. They married in a civic centre with a pastor, witnesses and friends. His family were not at the ceremony but afterwards they had a small ceremony. The couple have two young children who are Australian citizens.
He said he first came to Australia on a student visa to study a [Subject 1] course. He only completed half of the course due to financial constraints. At the time he obtained the visa his father was assisting him financially but this stopped when his father retired which was around the same time he had a serious [incident] which led to his conviction. When asked if he was still studying when the [incident] happened he said that he was ‘working and saving some money’. As noted below, the Tribunal put to the applicant the account of his migration history as summarised in the delegate’s decision. The applicant confirmed those details were correct.
In Zambia he worked on his father’s farm in Lusaka, around 30 minutes from their home. He said his father had a larger farm outside Lusaka in Central Province but he was not sure where it was located. It was purchased after the applicant came to Australia. He was not sure if he still owned that farm.
The Tribunal asked about the applicant’s experiences in Zambia which made him fear returning and he said that when he was growing up he could see things happening to his elder brother. He said his elder brother was targeted more than he was. He said he couldn’t understand why ‘they’ were doing things to his brother but that sometimes he would be bleeding and they would strip him of his clothes. He indicated by the ‘they’ he was referring to his uncles and cousins. He said this happened about [Number 2] years ago when he was in his teens and his brother was about 20 years old. The Tribunal asked where this incident occurred and he said it was at his father’s house. The Tribunal asked who it was that did this to his brother and he said it was his older cousins. He couldn’t remember their names but he thought one was ‘[Mr F]’.
The Tribunal asked what his father did when this happened and he said his father ‘was against such kind of attitude so he would ask them to leave the premises. They would leave but after a few months or years they would still come back.’ The Tribunal asked what happened when they came back and he said ‘what they wanted the most was a better life, they wanted to live with us but my family was against it, they would be asked what they really wanted, occasionally they wanted help with finance.’ He said they were given help but they came back and ‘it is very sad because they never know what they used the money for.’
The Tribunal asked if anyone else was harmed by the cousins and he said that ‘the only thing I remember one of my cousins was older than me and we had an argument when I was young, he lifted me up in the air and he put me down and I cried and my father came home and I told him what happened and he was asked to leave the house.’ The Tribunal asked how old he was when this happened and he said he couldn’t remember but he thought he was about eight or nine years old.
The Tribunal asked if his parents were ever harmed and he said that the only thing his parents went through was being pushed for finance and for help. They were not physically harmed but they were being pushed to help out.
The Tribunal asked if the applicant was harmed at any other time and he said that when he got a bit older, 15 or 16 years old, one of his cousins came from a rural area. The applicant had started lifting weights and looking muscular and his cousin told him he was looking good and he said he was fat. They went outside and started pushing each other, he was lean and small. He said he didn’t know if he should consider that being harmed because he was just playing and he struck him on his nose and the applicant started bleeding. The Tribunal put it to him that this sounded more like a contest of strength and he said ‘I’m not a talkative guy, my brother was the one who was targeted. He couldn’t hold himself back.’
The Tribunal asked what it was the applicant said had happened to his brother and he said ‘he was loud and because of that he put himself on the spot most of the time. First born son is the person who is most likely to inherit certain things, he was the one who was targeted the most.’ The Tribunal asked how he knew that was the reason and he said it was because there were only two boys in his family and his brother was the older one which made him the primary target. The Tribunal asked again how he knew this was because of his likelihood of inheritance and he said his brother was lazy or didn’t want to work hard. He was a laidback guy trying to acquire what had been worked for by another person. He said that when he finished high school his father bought a car for all to use but he took it and would not let others use it.
The Tribunal asked again on what he based his assumption that his brother was targeted because he was going to inherit. He said that as he was the older one, it meant he would be likely to inherit and that made him a target. The Tribunal asked who he would be targeted by and he said ‘by the people who feel it is their right to be part of the inheritance. Normally these are older cousins or family members from my father’s side.’ He couldn’t recall their names clearly but he ‘kind of’ knew who they were.
The applicant claims his brother died [in] February 2019. The Tribunal asked what happened to his brother and he said that ‘a few months before he died he had an altercation with one of the aunties at our house, so when they had the argument one of the aunties stated to the family this boy is rude and thinks he is in charge of everything and we will see what is going to happen to him in the couple months.’ He said his brother then went to the next province from Lusaka and one of his uncles was called by his cousins to say his brother was dead. The Tribunal asked why he went to the other province and he said he went to visit their cousins. The Tribunal asked how he died and he said ‘that information is unknown’. He said their uncle started trying to investigate but was unable to find out. He said his uncle went and collected his brother’s body and brought it back to Lusaka. He then said he wasn’t sure if the body had been brought back to Lusaka or buried in the area in which he died.
He said he found out about two or three days after the incident when his sister called and said they had lost their brother. The Tribunal asked if his sister said how he had died and the applicant said ‘Because of the same incident’. He said his sister thinks it was because of their auntie. The Tribunal asked several times if his sister said how he had died and the applicant said it was ‘hard to talk about certain things’. He then said that his uncle went back to the area to find out what had happened and to ‘involve the authorities’.
The Tribunal asked if the incident was reported to the authorities and the applicant said that after his uncle had gone there it had been reported to the authorities. He said they started doing the investigations but his uncle became ill and died. The Tribunal asked whether the authorities did anything and he said that his mum said they decided to drop the case. He said they didn’t give a reason.
The Tribunal asked what the applicant feared may happen to him if he returned to Zambia and he said ‘It’s same thing I guess, same thing which I would be executed or tortured.’ The Tribunal asked who would do this and he said ‘The family ([Mr F]’s family) on my father’s side.’ The Tribunal asked why his father could not write a will indicating people could be disinherited if his son died and he said that ‘The problem comes in because these people the father’s side of family is very big. They wouldn’t understand a will, there are certain things they follow, according to their beliefs.’ He said they would insist on certain things. The Tribunal put to the applicant that country information submitted by him suggested that wills are enforceable and used in Zambia and he agreed this was the case but the problem is there will still be disputes and some people will not follow the will. The Tribunal asked why the authorities would not enforce the law in such circumstances and he said that ‘the authorities would do what they have to do, the people who are trying what they are trying to acquire’.
The Tribunal asked why, if this was the case, they would not just act against his father while the applicant was out of the country. He said that they ‘would not force themselves on my father.’ The Tribunal asked why they would not seek to do this and he said that under their customs and traditions, the females will get married and they will not have rights of inheritance, which puts him as the sole inheritor, being the only male. The Tribunal asked why they wouldn’t target his father and he said ‘respect I guess’. The Tribunal asked why they would not respect his father’s wishes and he said it was due to the level of respect they have for his father.
The Tribunal asked whether his father could leave the property to all three of the remaining children to ensure the applicant’s safety and he said that would be better but that ‘normally females will get married and move’. The Tribunal asked why, if the applicant was at risk of being killed for the inheritance, his father could not split the inheritance among the clan. He said he didn’t know why he wouldn’t do that. The Tribunal asked if he had discussed with his father that he was afraid he would be killed if he goes back to Zambia and he said he had. The Tribunal asked what his father said and he said his father is the last born in his family and he is the one who has acquired many assets and if there are family disputes the applicant will have to handle it with his cousins. The Tribunal put to the applicant that this response didn’t sound like his father thought the applicant would be killed for the inheritance by his cousins and he said ‘probably he knows like eventually something would happen’. He said his father tries to ‘put it in a good way’. He said his father knows that if things are not communicated properly something bad might happen. The Tribunal put to him that it sounded from his evidence like his father thinks that he has financially supported other members of the family and that the applicant would manage this. The Tribunal put to the applicant that if his father thought his son would be killed it seemed reasonable to think he would put in place arrangements to ensure this would not happen but that what the applicant described suggested he thinks the applicant can manage it. The applicant said that is what his father thinks but that doesn’t mean that is what would happen because they treat his father differently. The Tribunal put to him that it was difficult to see why his father would not have taken steps to protect him if he thought his brother had been killed for his inheritance particularly given that he was in Zambia and dealing with the money.
The Tribunal asked whether he could relocate to another area to avoid the harm and he said this was ‘still a very high risk’ as he would have to relocate to another area and his name was very unique so he would be easily found. He said it would involve changing of names. The Tribunal noted country information suggested there were around 19 million people[1] in Zambia which made it difficult to believe his cousins could find him based on his name. The applicant said that they ‘would work hard to get rid of someone rather than work.’ The Tribunal asked whether the applicant could avoid the harm by indicating he did not wish to inherit and he said that this would be ‘a good thing’ but that it ‘doesn’t change much of anything because I am a sort of person who wants to work hard for my things, anything I would acquire would put me in a spot of being targeted.’
[1] Population, total - Zambia | Data (worldbank.org)
The Tribunal asked how he would be targeted on this basis but his father would not be targeted for things he had earned himself. He said the difference is that people will not target his father because they want to own things easily so they would wait for someone like the applicant to be targeted. He said there was respect for ‘older ones’.
The Tribunal put to the applicant that, as raised in the delegate’s decision, there was a lack of supporting evidence to corroborate his claim that his brother was killed by family members. He said that his older uncle started with the investigation but he had health issues and died so they couldn’t get proper information on his brother’s death. He said the only thing he could rely on was what his auntie had said before his brother died. The Tribunal noted that his report of his auntie’s comment was that she was talking about his brother’s behaviour rather than the fact he was going to inherit from his father. The applicant said that he wouldn’t know exactly what was said on that day, he could only say what his sister told him. He said that when their auntie had come to visit his brother, he started shouting at her not to come and visit because she only came for financial help. The Tribunal asked why his brother would have gone to visit his cousins if he felt at risk of harm from them and he said that ‘obviously he did not know they would get to that extent’.

The Tribunal put to the applicant that there was also a lack of corroborative evidence or explanation as to why the family would inherit if they killed him or why his parents could not prevent this or discourage it by threatening disinheritance if he died noting country information indicating wills are made in Zambia. The applicant responded that with inheritance, with females it is a ‘no, no’ if there is a male present in the family. The females will grow up and get married and move.
The Tribunal noted that the applicant had returned home in 2012 for 14 months and did not suffer harm which may suggest he was not concerned about harm from his cousins and that he was able to live in Zambia without being harmed and the applicant said he was not harmed or targeted because he did not have any assets or property then. However, he said that now since his father is old ([Age 4] years) he doesn’t have many more years left.
The Tribunal also put to the applicant that there were apparent discrepancies in his application including where he stated that his family home was regularly raided and that he experienced physical attacks from family members when he tried to stop them invading his privacy. However, the delegate’s decision recorded that at his interview with the Department he said his parents had not been harmed in Zambia and he did not claim he had been harmed. This was consistent with his evidence before the Tribunal. He said that personally he did not get harmed but this is something that he saw happen to his brother and since he is not there anymore it means he is the next target.
The Tribunal also put to the applicant that the fact his parents remained in Zambia without being harmed might suggest that the applicant would not be harmed and he said he would be a target because of his parents’ advanced aging.
The Tribunal noted the delay in the applicant lodging a protection visa, until three months after the Federal Court refused his appeal against the second decision and the applicant said that he changed case managers and the new case manager told him to apply.
The Tribunal asked if the applicant had raised this fear of harm in the application for review of the decision to refuse his Permanent Partner Visa under s 501 and he said that he did not ‘because main target was to do with the character grounds.’ The Tribunal put to the applicant that the fact that fears regarding harm on return to Zambia were not raised in the context of his Permanent Partner Visa refusal, including when represented, in the context of non-refoulement considerations, may raise a concern regarding the credibility of the claims to fear harm now put forward. The applicant said this is why it would be good if he had legal representation. He said he only knew about that information now. He confirmed he didn’t raise his fear of harm on return before.
The Tribunal also put to the applicant that the delegate’s decision found that with respect to criminal convictions the applicant had, country information suggests that Zambia’s constitution and Criminal Procedure Code both cover double jeopardy and suggested the right against double jeopardy is constitutionally protected in Zambia and there was no information to suggest that double jeopardy is practised in Zambia. This suggested there was no real chance of the applicant being persecuted or significantly harmed in Zambia on this basis. The applicant agreed with this.
The applicant indicated if he returned his wife and [children] would stay in Australia where they had more opportunities. The Tribunal asked in such circumstances what his concern was regarding his [children] and he said the fact they would grow up without a father figure. The Tribunal explained that as Australian citizens the harm that might be caused to them by remaining in Australia and being separated from him would not be the kind of harm that would meet the test for protection. The applicant indicated he understood this. The Tribunal indicated this also applied to distress the applicant might suffer as a result of being separated from his children because of his return to Zambia. The applicant also said he understood this. The Tribunal confirmed these were the concerns he was raising in his submissions to the Tribunal.
The applicant indicated there were no other fears on his return to Zambia.
The Tribunal also spoke to [Mr C] who confirmed he made a statement with [Mrs C] on 13 March 2022. He said he knew the applicant through Bible classes which he had attended weekly for about three years. He was ‘vaguely’ aware of the applicant’s protection claims. The Tribunal asked if the applicant had raised with him any concerns about returning to Zambia and he said that the applicant is concerned about returning to Zambia and how he would be treated and what could happen to him particularly as he is a Christian. The Tribunal asked what he feared may happen to him and [Mr C] said he fears for his life. The Tribunal asked what [Mr C] knew about Christians in Zambia and he said does not know about their situation. The Tribunal put to him that country information suggested Christians were the majority in Zambia and did not face persecution on the basis of their religion in Zambia. The Tribunal asked if the applicant had raised any other concerns about returning to Zambia and he said that he had raised concerns not so much about returning but about leaving his partner and family here. He said that that was more his concern. The Tribunal asked the applicant if there was anything else he would like the Tribunal to ask [Mr C] and he said no. [Mr C] observed the applicant had matured over the years and was a changed man and he was happy to attest to his good character.
The Tribunal also spoke to [Mr E] who confirmed that he made a statement of support dated 21 March 2022. He said he had known the applicant since high school as they went to the same tuition centre in the last few years of high school. [Mr E] came to Australia in 2008 and is an Australian citizen. He returned to Zambia in 2014 and 2017. He did not know the applicant’s family in Zambia. He was not aware what the applicant’s claims were. He said the applicant had mentioned it ‘in general’. The Tribunal asked if the applicant had raised with him any concerns about returning to Zambia and [Mr E] said it was a ‘complicated place, first there are differences in culture, difficult to explain how things work there, it does get pretty rough there. When family is of a certain status threats come with that.’ The Tribunal asked what the applicant’s family’s status was and he said that for him to come to Australia generally he would be in the middle class. The practice was to invest in one potential family member to get the family out of the state they are in. He said that is where the applicant sees himself. He said it is much easier to fit and integrate with the Australian community than in Zambia where people can have a bit of an inferiority complex. He said there is pressure back home and that can get overwhelming. He said when you first come to Australia it is difficult growing up and getting your focus right.
The Tribunal asked what the risk was to the applicant if he returns to Zambia. He said it was being ostracised by family and society. The Tribunal asked why he would be ostracised and he said if he looks at it from his own perspective it was the fact of being a laughing stock for having spent years abroad and not having anything to show for it. He said he would look back on the opportunity he had from a better perspective. He said the applicant will feel his family is doomed and that will weigh heavily on him and there would be backlash from family. [Mr E] said his sister had to sell the family house for him to come here and if it didn’t work out there was a lot to pay back or retribution. The Tribunal asked if there was anything else and he said he wished he had been more involved in the applicant’s situation. He said he had a ‘terrific start and went off tracks’ and started turning things around in 2018. The applicant indicated there was nothing further he wanted the Tribunal to ask [Mr E].
The evidence is considered further below.
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 Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2]
[2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[3] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]
[3] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]
[7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[8] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[9]
[9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that DFAT does not produce a country information report for Zambia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s identity and country of reference
The applicant claims to be a citizen of Zambia. As noted earlier, the applicant provided a copy of his Zambian passport to the Department and to the Tribunal. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
The Tribunal finds that the applicant is a citizen of Zambia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Migration history
The delegate’s decision contains a summary of the applicant’s migration history in Australia. The Tribunal put the summary to the applicant at the hearing and he confirmed that it was accurate. The applicant’s migration history is as follows:
·[10]/2008 – Arrived in Australia on a Student (Subclass 573) visa
·30/09/2012 – Student (Subclass 573) visa ceased
·05/10/2012 – Bridging visa D granted until 12/10/2012
·12/10/2012 – 16/11/2012 – Bridging visa E granted
·[11]/2012 – Departed Australia on a Bridging visa E
·16/07/2013 – Partner (Migrant) (Subclass 100) visa application lodged
·03/12/2013 – Provisional Partner (Subclass 309) visa granted
·[01]/2014 – Arrived in Australia on a Provisional Partner (Subclass 309) visa
·15/01/2018 – Partner (Migrant) (Subclass 100) visa application refused under s 501. Provisional Partner (Subclass 309) visa ceased
·01/02/2018 – Applicant placed in immigration detention
·[2018] – Refusal of Partner (Migrant) (Subclass 100) visa application upheld by AAT
·02/07/2019 – Ministerial intervention requested under s 195A. Not referred to Minister on 04/08/2021
·[2019] – Refusal of Partner (Migrant) (Subclass 100) visa application overturned by Federal Court
·[2021] – Refusal of Partner (Migrant) (Subclass 100) visa application affirmed by AAT
·[2021] – Refusal of Partner (Migrant) (Subclass 100) visa application affirmed by Federal Court
·03/08/2021 – Ministerial intervention requested under s 197AB. Not referred to Minister on 04/08/2021
·20/08/2021 – Ministerial intervention requested under s 195A. Not referred on 25/10/2021. Ministerial intervention requested under s 197AB. Not referred to Minister on 25/10/2021
·26/10/2021 – Permanent Protection (Subclass 866) visa application lodged. Associated bridging visa application invalid.
The applicant confirmed that he had lawyers assisting him with the proceedings in relation to the cancellation of his visa, including on appeal to the Federal Court. The same lawyers handled his request for Ministerial intervention in August 2021. He did not have assistance with respect to the protection visa application.
Summary of claims
The applicant’s central claim is that he fears harm from members of his family because he is the male heir to his father’s estate following the death of his brother at the hands of his cousins. He also claims that he will suffer as a result of separation from his children and that they will suffer from separation from him if they remain in Australia. He also claimed that if the children came with him to Zambia they would be denied the same lifestyle they could have in Australia due to the prevailing economic and social circumstances in Zambia and because his tribe and other family members would interfere in their development.

100. While witnesses called by the applicant suggested he may face a risk of harm as a Christian or due to having failed to take advantage of the opportunities granted to him as the only member of his family to study in Australia, the applicant did not raise any fear of harm on these bases before the Department or the Tribunal and there is nothing in the material before the Tribunal to suggest the applicant would be at risk of serious or significant harm on either basis.

101. As the applicant has criminal convictions the delegate also considered where double jeopardy considerations gave rise to a claim for protection in the applicant’s circumstances.
Consideration and findings
102. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.
103. The Tribunal accepts that the applicant is a Christian of the Bemba tribe whose home area is in [Suburb], Lusaka. He grew up in Lusaka and was one of four siblings. The Tribunal accepts that he is married to an Australian citizen and has two Australian citizen children. The Tribunal accepts that the applicant’s parents and two sisters remain in Lusaka. The Tribunal accepts that the applicant’s parents are both retired. The Tribunal also accepts, on the basis it is plausible, that his father holds assets including two farms, one in Lusaka and one in Central Province.
104. The Tribunal also accepts, on the basis it is plausible, that the applicant’s brother died in 2019 while visiting family members in Central Province and that the applicant is the only remaining son in his family though he has two sisters, both of whom are married.
105. While the Tribunal accepts these aspects of the applicant’s profile, the Tribunal has significant concerns about the credibility of many aspects of the applicant’s core claims. These concerns are detailed below.
106. As noted earlier, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
107. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were inconsistencies in aspects of his core claims in relation to events which occurred in Zambia including with respect to raids on his parents’ home and physical attacks on him by his extended family. Further, with respect to aspects of his claims the applicant failed to provide substantive or corroborative evidence regarding key elements of his claims including the circumstances of his brother’s death and the nature of his inheritance.
108. The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to provide corroborating evidence where, in the Tribunal’s view, it is reasonable to expect it would have been possible for the applicant to provide it. This was particularly the case with respect to the family’s financial circumstances and inheritance arrangements and the death of the applicant’s brother. This included the Tribunal allowing further time for evidence to be provided. No corroborative evidence of these matters was provided. No reasonable explanation for the failure to provide such evidence was offered.
109. In the Tribunal’s view, the applicant’s conduct in Australia contributes further to doubting the credibility of his claims for protection. These include his delay in raising his claims to fear harm on return to Zambia for more than 13 years after he arrived in Australia, three years after his Permanent Partner Visa was refused and more than two years years after he claims his brother was murdered. In particular, the applicant’s failure to raise any fears of harm at the hands of his family members due to his anticipated inheritance on return to Zambia during the s 501 review process where the Tribunal was bound to consider any claims by the applicant to be owed non-refoulement obligations.
110. The applicant explained his general failure to raise his fears of harm on return to Zambia earlier because he was not the target of the attacks by his cousins until after his brother died and he became heir in 2019. Further, he claimed his parents were aging and this had heightened the risk associated with his inheritance. With regard to the failure to raise his claimed fear of harm in the context of the s 501 proceedings he said that he was concentrating all his efforts on reinstating his visa. The Tribunal did not regard these explanations to be credible in explaining the very late raising of these claims only after the applicant’s Permanent Partner Visa was refused, appeals were exhausted and Ministerial intervention requests had failed. In the Tribunal’s view it is reasonable to expect that if the applicant’s fears were genuine he would have raised these concerns during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018. In particular, it is reasonable to expect the applicant would have raised his claims to fear being seriously or significantly harmed by his family members in the context of his efforts to ‘reinstate’ his Permanent Partner Visa given such claims arise for consideration under the Ministerial Direction applying to those applications.[10]
[10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90) and its predecessors.
111. In the Tribunal’s view, it is reasonable to expect that if the applicant feared being killed or otherwise seriously or significantly harmed by his family members on return to Zambia he would have raised these concerns when his return to Zambia at least in the context of the refusal of his permanent Partner Visa when given the opportunity to do so and in a context where he was represented. The Tribunal finds his failure to apply for protection for more than two years after his brother’s claimed murder a strong indication that he was not fearful of serious harm on the basis of his brother’s death. That he failed to do so casts serious doubts on the credibility of his claims for protection.
112. These issues are considered further below.
Claims with respect to being the sole heir
113. The applicant’s central claim was that he would be seriously or significantly harmed by his cousins or other extended family members due to the fact he was the last remaining son of his parents and would inherit his father’s estate which the family regarded themselves as having an entitlement to. He claimed he would be killed so his cousins could claim his inheritance. He also claimed he would be harassed or harmed by family members seeking money from him or seeking to access the family’s properties. He claimed that his brother was harassed, beaten and eventually killed by his cousins for these reasons and that following his brother’s death, he was at risk of the same treatment.
114. The Tribunal had a range of concerns with these claims, including with the plausibility of the applicant’s account of the events and the risk of harm faced by him in the foreseeable future.
115. As noted at the hearing, the Tribunal had serious concerns regarding the lack of any supporting evidence from the applicant substantiating his core claims, including any supporting evidence regarding the circumstances of his brother’s death, the nature and extent of his claimed inheritance and any supporting evidence of a prior history of violence by family members against the applicant’s family in pursuit of their assets.
116. The applicant indicated the lack of supporting evidence was due to the fact the family did not have information confirming the details of his brother’s death as his uncle, who was conducting inquiries, died due to ill health. The Tribunal did not accept that the applicant’s explanation was sufficient to explain the lack of any supporting evidence submitted by the applicant including with respect to the circumstances and extent of his claimed inheritance. The Tribunal notes that it identified its concern regarding the lack of evidence at the first hearing and during the second hearing. Further, the Tribunal identified a number of specific concerns with the applicant’s core claims for protection, including those outlined in the delegate’s decision, and on a number of occasions provided several opportunities for the applicant to provide additional supporting or corroborative evidence.
117. Neither of the two witnesses called by the applicant were aware of the nature of his claims for protection despite regular contact with the applicant. Both witnesses were keen to support the applicant’s remaining in Australia and attested to his character. However, neither was aware the applicant feared harm on return to Zambia due to being the only son set to inherit his father’s estate, nor were they aware of his claim that his brother was murdered by members of his family. This lack of knowledge casts doubt on the credibility of the applicant’s claims.
118. Further, there is no evidence linking the applicant’s brother’s death to his cousins or to the family inheritance. The only witness statement to refer to matters giving rise to the applicant’s claims was from [Mr D] who stated that ‘[the applicant]’s older brother was discovered dead in very suspicious circumstances in Zambia. He has had a tough few years and he regrets every decision that led him in detention’. In the Tribunal’s view this evidence does not establish that the applicant’s brother was murdered by his cousins. At its highest it reflects the applicant’s account of his brother’s death as suspicious. Further, the applicant’s own evidence was vague and speculative with respect to his brother’s death. The applicant testified he did not know the cause of his brother’s death, where he had been buried, or what the findings of the police complaint were.
119. In the Tribunal’s view, evidence regarding events in Zambia do not support the applicant’s contention that his brother was killed for his inheritance. The applicant indicated his parents have not been harmed and that his father believed he can manage issues with the family with regard to the family assets after his death. The Tribunal does not accept that this is consistent with a belief on the part of the applicant’s father that his eldest son was murdered for his inheritance. Further, the applicant claimed he believed his brother had been killed based on a warning issued by his auntie before his brother’s death. However, the account of that warning which he provided made no reference to inheritance issues but rather to the brother’s attitude and behaviour, suggesting that even if he was murdered, which the Tribunal does not accept, it was not for reasons of accessing his inheritance. As the applicant noted, his brother was outspoken and the applicant is not. He upset family members behaving in a manner which the applicant disavowed in his evidence. There is no suggestion the applicant would similarly inflame or provoke his family members.
120. Given the Tribunal’s concerns regarding the lack of evidence to support the applicant’s account of his brother’s death, the implausibility of the applicant’s claims in the context of the lack of harm to other family members and the evidence regarding the applicant’s father’s attitude to issues concerning the inheritance and other general credibility concerns detailed in this decision, the Tribunal does not accept that the applicant’s brother was killed by his cousins in order to obtain his inheritance. Even if the applicant’s brother was killed by family members, there is no evidence other than the applicant’s account of speculation by his sister which would link the incident to the family inheritance or, consequently, to suggest an associated risk of harm to the applicant. The applicant’s evidence was that his brother was outspoken and antagonised other family members and that he assumed he was harmed in connection with the inheritance because his brother was the oldest son. Despite being pressed several times by the Tribunal to explain why he assumed the treatment of his brother was due to his inheritance, the applicant returned to his position that it was because his brother was the oldest son.
121. Further, were the applicant to be threatened on return, there is no information before the Tribunal to suggest the police would not provide protection to the applicant. While the applicant suggested they would not interfere in a tribal matter, country information suggests there are established laws of land ownership and inheritance which could be relied on. In the Tribunal’s view the country information does not support the applicant’s contention that such laws would not be enforced, or that threats of violence against the applicant would not be acted on by police. In this regard the Tribunal notes the applicant testified his uncle had lodged a complaint with police regarding his brother’s death. While the applicant was not able to say what the result of that investigation was, noting he thought it had been ‘dropped’ following the death of his uncle through illness, the fact his uncle had reported the issue to police suggests his uncle had an expectation the police would investigate and act in relation to the matter. The Tribunal regards this does not support the applicant’s claims.
122. The Tribunal also considered that the applicant’s behaviour in returning to Zambia on two occasions, including bringing his now wife to Zambia for his wedding, was not behaviour which was consistent with his claims that the family were subjected to harassment and violence from other family members. While the applicant claims he was not at risk until after his brother’s death the Tribunal regards it as implausible that if family members were seeking control of the inheritance they would not regard the applicant or any potential heir within the family as a threat or that the applicant would not have regarded himself as being at risk given the claimed history of violence by family members.
123. The Tribunal also considers that the country information with respect to Zambia, including that submitted by the applicant, did not support his claims. The ‘Culture of Zambia’ document submitted by the applicant notes:[11]
[11] Culture of Zambia - history, people, clothing, women, beliefs, food, customs, family, social (everyculture.com)
Land Tenure and Property. There are many plots of land, both in cities and rural areas, that are owned by individuals after purchase from the government. In the villages, the chiefs own the land and give out parcels to their supporters. In this distribution, tribal customs and practices are honored. The government supports this form of distribution because the acreage to be distributed is vast and unpopulated. The government still owns most of the valuable land, specifically the mines and other mineral-rich areas.
…
There are no laws preventing ownership of land by women. Very few women own land in practice primarily because of cultural and historical precedent.
Inheritance. The issue of inheritance is handled differently throughout the country, reflecting the different customs of the numerous tribes. Traditional methods call for disputes to be settled within the clan or at the next level, which is the chief. In disputes involving men and women, the clans traditionally favor the male's position. In urban areas, the courts resolve these disputes. The Goba tribe has what is called dihwe, a council to settle problems of succession and inheritance if a prominent member of the household dies. Many Zambians, especially in cities, now create a will and last testament.

124. There is no information before the Tribunal to suggest that the applicant’s father’s property is other than privately owned. He did not claim and the Tribunal does not accept that the property was provided to him by a tribal chief. The applicant told the Tribunal his father had owned a small farm in Lusaka and a larger one in Central Province which he had purchased after the applicant left Zambia. This does not suggest there would be any restriction on the applicant’s father making an enforceable will to deal with the disposition of his assets in a binding way, including to his daughters. While the applicant claimed that he was the only possible heir, country information suggests that the Zambian constitution and other laws provide for the same legal status and rights for women as for men, including under family, labour, property and nationality laws. While that information suggests that the government does not adequately enforce the law, and women experience discrimination, that does not suggest it is not open to the applicant’s father to split the inheritance.[12]
[12] US Department of State ‘Zambia 2020 Human Rights Report’.
125. Having regard to country information and the evidence, the Tribunal found it implausible that the applicant’s father, and the applicant himself, would not take steps to mitigate the risk associated with any inheritance. There appeared to be a number of options in this regard based on country evidence, including that submitted by the applicant. This included the making of a will to dictate the terms of the disposal of the estate or the applicant seeking to be disinherited of his own volition if he felt at risk of being killed. It was clear on the applicant’s evidence that such options had not been considered or pursued. In the Tribunal’s view this is not consistent with claims the family had suffered ongoing harassment by their family members or particularly where the eldest son had been killed.
126. There were also significant inconsistencies in the applicant’s account of the events across time. As discussed at the hearing, the applicant initially claimed his family home was regularly raided and that he experienced ‘severe physical attacks’ from family members when he tried to stop them invading his privacy. However, the delegate’s decision recorded that at his interview with the Department he said his parents had not been harmed in Zambia and he did not claim he had been harmed. This was consistent with his evidence before the Tribunal. In response the applicant said that personally he did not get harmed but this is something that he saw happening to his brother and since he is not there anymore it means he is the next target. The Tribunal did not find the applicant’s explanation of these discrepancies to be satisfactory. Further, in his application for protection the applicant claimed that several threats had been made against him, including that when he arrived he would be shot dead. He did not raise this claim before the Tribunal when asked if he had been harmed or threatened with harm, stating instead that he had seen his brother harmed previously and thought he would be next as the last remaining male heir.
127. This, combined with the lack of evidence to corroborate the circumstances he claims, give rise to a real chance of serious harm on return to Zambia and the inconsistences in his accounts of the past instances of harm, causes the Tribunal not to accept those claims.
128. The Tribunal accepts that the applicant is concerned family members may seek money from him if he returns to Zambia and inherits his father’s wealth or makes his own. However, the Tribunal does not accept that the applicant’s claimed fear that his family members will kill him to obtain his inheritance is genuinely held or well-founded. In any event, on the evidence before it and having regard to concerns regarding the credibility of the applicant’s claims and evidence, the Tribunal does not accept there is a real chance the applicant would be seriously harmed by his family members to gain access to his family inheritance now or in the reasonably foreseeable future.

129. The applicant did not claim to have been harmed by authorities in Zambia. He also resiled from claims in his application form that he had been subjected to violence by family members in Zambia testifying that he observed this happening to his brother. He described one incident when he had an exchange with a cousin that resulted in a blood nose. The applicant accepted the Tribunal’s assessment that this incident might accurately be characterised as a contest of strength rather than an attack on him. The Tribunal does not accept he suffered serious harm on that occasion or that he faces a real chance of serious harm on the basis of that incident. Other incidents he reported were based on accounts given to him by others, including with respect to his brother’s death, the cause of which he said remained unknown. The applicant also resiled from the claim his family home was regularly ‘raided’ by family members for money, telling the Tribunal instead that family members regularly pressed his parents for money which was a cause of consternation to his brother. The Tribunal does not accept the applicant or his family suffered serious harm on the basis of these approaches nor does the Tribunal accept the applicant faces a real chance of serious harm in the foreseeable future on the basis of them.

For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. While the instances are not exhaustive, the Tribunal finds that the instances of harm described by the applicant of family members approaching him for financial support or the two instances of being lifted up as a child or getting a bleeding nose from his cousin would not amount to serious harm for the purposes of the refugee criteria. Further, while he claims his family may approach him for money he did not claim this was due to any systematic or discriminatory conduct by the authorities or any other person.

131. While the claimed murder of his brother would constitute serious or significant harm, the Tribunal does not accept the applicant’s brother was murdered. While the Tribunal accepts that it is plausible that there may have been disputes regarding money among family members, it does not accept the applicant’s brother was beaten by family members for money. When asked about these events the applicant said his brother was outspoken and fought with family members. As a result this is not consistent with claims he was targeted and harmed in an attempt to gain his inheritance or for any other reason. Further, as noted above the Tribunal considered that the applicant’s father’s conduct and responses were not consistent with circumstances where he considered his sons’ lives were at risk from other family members. Were this the case the Tribunal considers it is reasonable to expect he would take steps to protect his children and the inheritance through legal protections available under Zambian law. It is also reasonable to expect he would engage the authorities were his family at risk of death or serious injury at the hands of extended family. In this regard the Tribunal also places weight on the fact his parents and sisters have been able to remain living in Zambia without suffering serious harm. While the applicant claimed this was due to respect for his father and the fact his sisters would not inherit the Tribunal does not accept this explains the lack of threats to the rest of the family given country information suggests it would be possible for his sisters to share in the inheritance. In addition, the Tribunal did not consider it was plausible that his family members would murder his brother to remove him from the line of inheritance but refrain from harming his father.
132. As noted above the Tribunal was also concerned that the applicant waited two years after his brother’s death before claiming protection in Australia and did so only after exhausting a range of other migration options. The Tribunal finds this is not consistent with the applicant’s claims to fear harm.
133. While country information suggests that tribal arrangements remain an active social and legal force in rural areas of Zambia, the country information does not support the contention that this is the case in cities like Lusaka where the applicant’s family has lived all of his life. There was no evidence to support a claim the land owned by the applicant’s father is other than privately held or that his ownership of the property was subject to the legal dictates of any particular tribal chief. The evidence is that the applicant’s father is a successful [Occupation 2] who has lived and worked in Lusaka for more than [Number 1] years and who has purchased property through his earnings. The Tribunal does not accept that the applicant’s profile is such that there is a real chance he would face serious harm on the basis of being the only son and heir to his father on return to Zambia now or in the reasonably foreseeable future. Even if the applicant does inherit his father’s estate, his evidence was that his father considered any disputes or claims from family members could be managed by the applicant as they have been by his father. This does not support the contention that the applicant is at risk of serious harm on this basis.
134. Given the lack of evidence, the lack of threats to the applicant or his family members while in Zambia, during return visits there or since he last left, the Tribunal does not accept that the applicant would face a real chance of serious harm from his family members or any other person on return to Zambia because of his status as the sole heir to his father or for any other refugee-related reason related to that status.
Harm caused by separation from his family or their travel to Zambia
135. The applicant also made a number of claims with respect to his separation from his wife and children.
136. While the Tribunal accepts the applicant may face challenges resettling in Zambia and would suffer further emotionally from a geographical separation from his wife and children, the Tribunal does not accept those circumstances give rise to any claim for protection.
137. The applicant did not claim, and based on the evidence the Tribunal is not satisfied that he has a well-founded fear of persecution on return to Zambia for the reason he may be separated from his wife and children, who, the applicant’s evidence suggested, would likely remain in Australia with their mother. There was no submission that the harm arising from the possible separation of the applicant and his wife and children is or would be the consequence of persecution for a reason covered by s 5J(1) of the Act. The applicant does not identify how the separation from his wife and children arises from, would be a consequence of, or would give rise to, persecution for a reason provided for in s 5J of the Act.
138. While the applicant testified that his family would remain in Australia, he also claimed they would be subjected to harm if they did travel to Zambia due to poorer living, education and health standards there and due to the interference of his tribe in their upbringing. However, he did not suggest any basis on which such harm would be the consequence of persecution for a reason covered by s 5J(1) of the Act. In any event, given the applicant testified that his family members will remain in Australia, where they are entitled to reside, having regard to the lack of any evidence that the family would be the subject of any tribal activity amounting to real harm the Tribunal regards any risk of such harm to be less than a real chance.
139. The Tribunal finds that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to him by his separation from his wife and children if he was returned to Zambia or in the event they return with him to Zambia, for the purposes of s 36(2)(a) of the Act.
Other claims
140. As noted earlier, the applicant did not raise any other claims for protection with the Tribunal. When asked if he had any other concerns or fears about returning to Zambia he did not raise any other claims.
141. However, during their evidence the applicant’s witnesses alluded to additional claims when asked if they were aware of the nature of the applicant’s claims for protection. Their answers to the Tribunal suggested they were not aware of the claims articulated by the applicant and the Tribunal considers the issues they raised more reflected an attempt to assist the applicant through their evidence and an expression of general concerns regarding his return to Zambia and separation from his family.
142. In any event, the Tribunal considered whether any other claims arose in the applicant’s circumstances, including those suggested by the witnesses, namely that he would face persecution as a Christian or be ostracised or ashamed of having disappointed his family through a lack of success in Australia. The applicant did not suggest that he faces harm with respect to either of these issues, and the Tribunal does not consider that there is a real chance he would be seriously harmed for either of these reasons or for any other reason.
143. The Tribunal finds based on credible country information that persons identifying as Christians form a majority of the population in Zambia.[13] There was no country information to suggest they were persecuted because of their religion or for any other reason. Further, the applicant is a member of the Bemba tribe which is a large and influential tribe in Zambia. There was no country information before the Tribunal to suggest the Bemba are persecuted on the basis of their ethnicity.[14]
[13] US Department of State Religious Freedom Report 2022, Zambia - United States Department of State
[14] US Department of State ‘Zambia 2020 Human Rights Report’; Culture of Zambia - history, people, clothing, women, beliefs, food, customs, family, social (everyculture.com)
144. While the Tribunal accepts the applicant may suffer embarrassment due to the circumstances of his return to Zambia there is no evidence to suggest any treatment of him on this basis would amount to serious harm, nor was there any evidence the applicant subjectively held such a fear. In this regard, the Tribunal notes the applicant did not report suffering any ill treatment following his return to Zambia after his initial criminal conviction. This suggests he would be able to return safely again on this occasion and is consistent with the fact the applicant did not raise any concerns in this regard on his own behalf.
145. With respect to the applicant’s convictions the Tribunal notes the delegate found that country information suggested that Zambia’s constitution and Criminal Procedure Code both cover double jeopardy and the right against double jeopardy is constitutionally protected in Zambia and there was no information to suggest that double jeopardy is practised in Zambia. This suggested there was no real chance of the applicant being seriously or significantly harmed in Zambia on this basis. The applicant agreed with this finding. Having regard to the evidence and to the country information cited in the delegate’s decision, the Tribunal finds that the applicant does not face a real chance of serious or significant harm arising from his convictions in Australia on the basis of double jeopardy considerations or for any other reason associated with the applicant’s offences.
146. The Tribunal considered that there were no other claims for protection arising from the applicant’s circumstances on the information before it.
Does the applicant meet the refugee criterion?
147. The Tribunal has considered the applicant’s claims made in both the applicant’s protection visa application and before the Tribunal and the evidence presented by him in support of his claims.
148. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that if the applicant returns to Zambia now or in the foreseeable future, there is a real chance that he will face serious harm as the sole male heir to his family’s estate, as a Christian, as a member of the Bemba tribe, as a returnee convicted of serious offences in Australia, or as a returnee who is perceived to have failed overseas or for any other reason set out in s 5J(1)(a) of the Act.
149. The Tribunal has also found that neither the applicant’s separation from his Australia family members, or their return with him to Zambia, give rise to a well-founded fear of persecution in the applicant’s circumstances.
150. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.
Does the applicant meet the complementary protection criterion?

The Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.

152. For the reasons set out above, the Tribunal has found there is not a real chance the applicant would suffer serious harm on return to Zambia as the sole male heir to his father’s estate, as a Christian, as a member of the Bemba tribe, as a returnee convicted of serious offences in Australia, or as a returnee who is perceived to have failed overseas or for any other reason.
153. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[15] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Act.
[15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
154. There is no evidence, and the Tribunal does not accept, that there is a real risk the applicant would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment if he returns to Zambia.
155. For the reasons set out above, the Tribunal finds there is not a real risk the applicants will suffer harm on return to Zambia as the sole male heir to his father’s estate, as a Christian, as a member of the Bemba tribe, as a returnee convicted of serious offences in Australia, or as a returnee who is perceived to have failed overseas or for any other reason.
156. Accordingly, the Tribunal finds that the applicant does not face a real risk of significant harm on these basis as a necessary and foreseeable consequence of his return to Zambia, now or in the reasonably foreseeable future.

With regard to the applicant’s potential separation from his wife and children, the Tribunal has found that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to him by his separation from his wife and children if he was returned to Zambia, for the purposes of s 36(2)(a) of the Act.

158. The Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court (agreeing with the (then) Federal Magistrates Court) found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s 36(2)(aa).[16] The reasoning applied by His Honour has recently been upheld by the Full Court of the Federal Court.[17]
[16] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]–[49], upholding at citing the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM (as his Honour then was), 1 March 2013) at [61]–[65].
[17] GLD v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing).
159. The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[18] Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s 36(2B)(a) (relocation) and s 36(2B)(b) (protection from an authority) are to have any application.[19]
[18] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [61]–[62].
[19] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [63].
160. Further, the Court noted the circularity in the operation of s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[20] The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia.[21]
[20] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[21] SZRSN v MIAC [2013] FCA 751 at [47].
161. Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s 5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention of causing ‘extreme humiliation that is unreasonable’.[22]
[22] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA at [65].

As such it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[23]
[23] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s 36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]–[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. The Full Court in GLD18 v Minister for Home Affairs cast doubt on the distinction drawn in MZAEN and affirmed the approach in SZRSN, at [67].

163. Further, in GLD18 v Minister for Home Affairs,[24] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[25]
[24] [2020] FCFCA 2 at [88]–[89].
[25] See also FMN17 v MICMSMA [2020] FCA 326.
164. As noted by the Full Court in GLD18 v Minister for Home Affairs:[26]
[26] [2020] FCFCA 2 at [50] per Allsop CJ and Mortimer J.
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.

165. For the reasons set out above, the Tribunal does not accept the applicant faces a real risk of significant harm for the purposes of s 36(2)(aa) of the Act due to being separated from his Australian citizen wife and children.
166. Further, for the reasons outlined above, the Tribunal does not accept that were the applicant’s wife and [children] to return to Zambia with him, there is a real risk he would suffer significant harm as a result. The applicant’s evidence was that his wife and children will remain in Australia. On that basis there is no real risk associated with harm which might be suffered in connection with their relocation to Zambia. In any event, as noted earlier, protection obligations are not owed to the applicant’s wife and [children] who are Australian citizens and may remain here. If they were to return to Zambia, the applicant did not offer any corroborative evidence to support his claims that the children’s upbringing would be interfered with by tribal members or that any claimed interference would reach the thresholds of significant harm in s 36(2A). Nor did he provide any evidence of past experiences of his own upbringing which would support such a claim. The Tribunal does not accept there is a real risk of significant harm as a necessary and foreseeable consequence of the applicant’s return to Zambia now or in the foreseeable future on this basis.
167. The Tribunal has carefully considered each of the integers of the applicant’s claims singularly and on a cumulative basis. The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Zambia, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s 36(2)(aa).
CONCLUSION
168. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

171. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Senior Member

Attachment – Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

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

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

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

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

[2022] AATA 2851

29 July 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

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