2205912 (Refugee) - [2025] ARTA 857

2205912 (REFUGEE) [2025] ARTA 857 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Miss Vanessa De Pretis (MARN: 1388116)
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2205912

Tribunal:General Member A Devitt-Bills
Date:20 March 2025

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 20 March 2025 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – Zambia – particular social group – lesbian – summons to a police station – fear of detention – family disapproval – credibility – inconsistent evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 26 February 2025 to give evidence and present arguments.
The applicant was represented in relation to the review, but the applicant’s representative did not attend the Tribunal hearing. The Tribunal was informed that the representative was appointed only to assist with lodging documents for the matter, not to accompany the applicant to the hearing, nor to provide any submissions.
BACKGROUND
The applicant was born in Lusaka, Zambia. The applicant is currently [age] years of age.
On 22 March 2013, the applicant was granted a student visa to travel to Australia and study. The applicant arrived in Australia [in] April 2013. The applicant has remained in Australia since her arrival.
On 18 August 2014, the applicant was granted a subsequent student visa to undertake further study in Australia.
On 20 September 2016, the applicant applied for a further student visa to undertake further study in Australia. The application was refused by a delegate of the Minister.
On 27 November 2016, the applicant sought review by the Tribunal of the delegate’s decision to refuse her student visa application. On 7 March 2018, the Tribunal affirmed the delegate’s decision to refuse the student visa application.
Evidence before the Department
Protection visa application and supporting material – May 2018
On 15 May 2018, the applicant applied for a protection visa.
In her visa application, the applicant stated that she had an aunt who lives in Australia. The applicant also stated that the only family member she contacts in Zambia is a cousin whom she speaks with approximately twice per fortnight.
In her visa application, the applicant stated the following as her reasons for leaving Zambia and claiming protection in Australia:
Provide reasons why this applicant left that country:
The applicant initially left Zambia to pursue further studies in Australia. The applicant is a homosexual and has struggled with this in her home country. She was put into bible school to help transform and her family do not agree with her homosexuality.
The applicant has been summoned to a local police statement in her home country to be questioned about her sexuality. She is aware that the punishment for being a homosexual in her country is approximately 14 years of imprisonment if caught publicly. The laws enforced in Zambia do not support homosexuality.
Did this applicant experience harm in that country?
No
Did this applicant move, or try to move, to another part of that country to seek
safety?
No. The whole country of Zambia has the same restrictions and penalties relating to homosexuality.
Explain what the applicant thinks will happen to them if they return to that country:
The laws enforced in Zambia do not support homosexuality. The applicant is aware that the punishment for being a homosexual in her country is a lengthy imprisonment.
Does this applicant think they will be harmed or mistreated if they return to that country?
Yes. The applicant will be unable to live a free life as her choice of sexuality is not supported by her family of the Government in her home country. The police authorities would enforce imprisonment because of her sexuality and she will no doubt be treated by others within the community.
Does this applicant think the authorities of that country can and will protect this applicant if they go back?
No. It is the authorities as well as her family, that will mistreat the applicant and disadvantage her because of her homosexuality.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
No. The applicant’s home country of Zambia and most neighbouring countries in Africa do not support homosexuality.
In support of her protection visa application the applicant filed the following material:
a.Copy of her Zambian passport [number].
b.Wikipedia and news articles on LGBTQIA+ in Zambia.
c.Letter dated [in] May 2018 addressed to the applicant from ‘Guardian / family’ which states:
We have received a very disturbing and anathema report showing how you have been involving yourself in perpetual lesbianism. We as Guardians and the entire family are most disappointed by your continued lifestyle of being a lesbian and that you have further continued with the same illicit activities unabated. We have therefore also requested that the police arrest you upon your returning home. We are also disappointed that your returning home to Zambia will be a great embarrassment to us, the entire family and the community, as such we feel that only the Prison sentence would help in reforming you. We shall only be saved from this embarrassment and humiliation from friends and public at large only if you were not to come back to Zambia.
d.Document entitled ‘Police Call Out’ dated [in] May 2018 which states:
Zambia police have completed investigating your perpetual involvement in homosexual activities (lesbianism), these allegations are contrary to the laws of Zambia, a crime punishable with imprisonment / indefinate detention. You are therefore ordered to report yourself to the Police Force Headquarters upon arrival to allow police to affect your arrest and subsequent indefinate detention.
e.Letter dated 14 March 2012 from ‘[Pastor A]’ of ‘[Church 1]’ which states:
Please be advised that with effect immediately, the above mentioned individual has been dismissed from our church members list. [The applicant] has failed to maintain the biblical and ethical standards and our attempts to help in redemption have failed. No member should be noted to have any contact or communication with [the applicant] as her beliefs are non-Christian and barbaric. She has openly confessed her lesbian status and 3 attempts of counselling have been unsuccessful.
f.Letter dated 5 May 2018 from ‘[Pastor B]’ of ‘[Church 1]’ which states:
[The applicant] had been an active member of our church, participating in Sunday school as a child, youth ministry and ushering, as well as attending services weekly. I was assigned by the church board to be her spiritual counsellor, after her family members that she lived with complained of her strange behaviour and sexual interests in the same sex. From 2010, we prayed, counselled and fasted for the demonic spirit of Lesbianism to leave her but unfortunately there was no success. She ceased being a member of our church when she continued to pursue this evil desires, ignoring our advice. All forms of counselling failed and we saw no point in continuing our association with the mentioned individual.
Further material in support of protection visa application – March 2019
On 16 March 2019 the applicant filed a written statement. Parts of the statement are as follows:
I came to Australia [in] April 2013 to study a [Qualification 1] because of the good education system Australia offers and its multiculturalism. I haven’t returned to my home country since my arrival in Australia because of the backlash that I face because of my homosexuality … Lesbianism is frowned upon and an illegal act. If caught publicly, one faces up to 14 years imprisonment which is the case with me as my family and community want me imprisoned upon my return.
I came to know about my sexuality when I was about 14 years of age … I ended up telling my family before I left for Australia.
I attended counselling sessions with the pastor at the church after people were informed about my sexuality, these sessions were done in the hope of me becoming “reformed”.
After completion of my [course] I was encouraged by my grandmother to attend bible school to help transform my faith into understanding that my sexual preference is demonic.
On [a day in] May, 2018 I was summoned by a local police station to be questioned about my sexual preference because some of my family members through I was returning back home on the [following day] so that they could arrest me. The summons was sent to my Aunty in Australia as she is still in contact with my family in Zambia. I had told one of my cousins that I may return on the [following day] and word got out about this.
When I was living in [Town 1] I did research about where the LGBT community would meet up. I found an organisation called [Agency 1] that helps LGBT youth be free with who they are … I was part of them from the beginning of 2018 until September when I moved to South Australia.
My grandmother who was assisting me has since passed on and there is no one to return to because the other family members have disowned me and want nothing to do with me.
Interview with the delegate, further material in support of protection visa application, and delegate’s decision – March 2022
On 17 March 2022, the applicant participated in an interview with a delegate of the Minister. The applicant informed the delegate that she feared returning to Zambia because she identified as a lesbian. The applicant confirmed that there were no other reasons she feared returning to Zambia.
On 18 March 2022, the applicant provided an email dated 16 October 2018 from [Ms A] of [Agency 1]. In her email, [Ms A] states that the applicant attended the [Agency 1] weekly diversity support group meetings from early 2018 until she moved to South Australia. [Ms A] states: ‘Prior to [the applicant] leaving [Town 1], she became more comfortable and confident within the support group and really opened up’.
On 30 March 2022, the delegate refused to grant the applicant a protection visa. The delegate did not find the applicant’s evidence to be credible. The delegate did not accept that the applicant was homosexual. The delegate was not satisfied that the applicant would face a real chance of harm if she returned to Zambia. The delegate was not satisfied that there was a real risk the applicant would face any harm if removed to Zambia.
Evidence before the Tribunal
Review application – April 2022
On 21 April 2022, the applicant applied to the Tribunal for review of the delegate’s decision to refuse to grant her a protection visa.
Material filed in support of review application – February 2025
On 20 February 2025, in anticipation of the Tribunal hearing, the applicant provided the Tribunal with various publicly available articles and reports relating to LGBTQIA+ persons in Zambia, as follows:
a.‘Zambia: Anger as embassies fly gay pride flags’ by Africa Needs dated 19 May 2022.
b.‘2021 Country Reports on Human Rights Practices: Zambia’ by US Department of State.
c.‘The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Zambia’ by Global Rights Partners for Justice dated July 2007.
d.‘LGBTQ Zambians face up to hate and bigotry’ by Chiponda Chimbelu dated 17 May 2023.
e.Wikipedia ‘LGBTQ rights in Zambia’ undated.
f.Human Dignity Trust ‘Zambia’ dated 17 December 2024.
On 25 February 2025, the applicant provided the Tribunal with a further article entitled ‘Madalitso’s story: the persecution of LGBTI people in Zambia’ by Amnesty International dated 26 November 2024.
Tribunal hearing – February 2025
The applicant gave the following evidence at the Tribunal hearing on 26 February 2025:
a.The applicant is a citizen of Zambia only and does not have the right to live in any other country.
b.The applicant's father died when she was [very young]. The applicant's mother died when she was [age] years old. The applicant does not have any siblings.
c.The applicant was raised by her maternal grandparents [Grandmother A] and [Grandfather A]. [Grandfather A] died in 2007 and [Grandmother A] died in 2019. The applicant has [specified] maternal aunts, [named]. The applicant has one maternal uncle, [Uncle A]. The applicant has [number] maternal cousins and can remember the name of four of them, namely, [names]. When she was growing up the applicant spent some time with her maternal cousins and aunts and uncle, but not see them all the time. The applicant’s aunt [Aunt A] moved to Australia in 2005 and is still living in Australia. The applicant has no contact with her maternal relatives except for [Aunt A] who she has regular contact with. [Aunt A] helped the applicant travel to Australia to study in 2013.
d.The applicant did not have much contact with her paternal relatives growing up. They didn’t want much to do with the applicant. She has only seen them five times in her whole life. The applicant met her paternal grandfather [named] on one occasion only. [He] passed away between 2008 and 2010. She met her paternal grandmother [Grandmother A] five times. [Grandmother A] passed away in 2018. The applicant has a paternal aunt [named], but she is unsure if [she] is still alive. The applicant is unsure whether she has any other paternal aunts or uncles. The applicant only knows of [number] paternal cousins, [named]. The occasions when the applicant has seen her paternal family have been random, for example after school, they have not been at organised events such as family gatherings.
e.The applicant grew up in Kafue, Lusaka. The applicant completed primary school and high school. The applicant attended church each week whilst she was growing up. The applicant’s maternal family all attended church weekly.
f.The applicant travelled to Australia in 2013, when she was [age] years of age. Up until she travelled to Australia, the applicant lived with her grandmother [Grandmother A]. At the time she travelled to Australia, the applicant’s grandfather had already passed away. [Grandmother A] passed away in 2019.
g.Between 2013 and 2019, the applicant had regular contact with [Grandmother A]. They would talk on the phone approximately two times per week. The applicant also had regular contact with [Aunt A] in Australia. Since she has been in Australia the applicant has not had contact with any of her other relatives.
h.The applicant applied for a protection visa because she identifies as a lesbian and fears harm if she returns to Zambia. The applicant fears harm from her family and from her community.
i.The applicant became aware of her sexual orientation in [year] around the age of 14 and told [Grandmother A] shortly afterwards. [Grandmother A] told the extended family. The extended family did not support the applicant with her sexual orientation. They told her that something was wrong with her and that she had demons. Zambia is a Christian nation. It is against the law to be a lesbian.
j.The applicant’s relationship with her extended family became strained after they became aware of her sexual orientation. Her family arranged for her to have counselling through the church in an attempt to reform her sexuality.
k.After learning of the applicant’s sexual orientation, [Grandmother A] limited the applicant’s opportunities to socialise. The applicant, in any event, hid her sexual orientation to avoid receiving insults and derogatory comments.
l.The applicant came to Australia to study a course in [subject]. After studying [this course], [Grandmother A] encouraged the applicant to study theology as a way to help the applicant reform her sexual orientation.
m.In mid 2016, after studying theology, the applicant spoke with [Grandmother A] and she stated that the study was not working for her, i.e.. that her sexual orientation had not changed. [Grandmother A] felt hurt and completely stopped talking to the applicant. [Grandmother A] would talk to [Aunt A] only. The applicant tried to connect with [Grandmother A] again but the conversation about the applicant’s sexual orientation would keep repeating itself.
n.The applicant has consistently identified as a lesbian since she was 14. The applicant does not identify as bisexual. [Aunt A] does not really support the applicant’s sexual orientation, but accommodates it.
o.After the applicant arrived in Australia, it took some time for her to feel open with her sexual orientation. The applicant went on her first date with another woman in 2016. The applicant's longest and most committed relationship with another woman was a six month relationship in 2019 with a woman called [Partner A]. They did not live together, just dated. The applicant’s other relationships with women have not been for more than one or two dates each. In 2019, the applicant went on three dates with a man named [name] as she wanted to see what it would be like to have a relationship with a man but it did not go well. The applicant has never married. The applicant has never lived with a partner. The applicant has never been in a defacto relationship.
p.In May 2018, [Aunt A] was speaking with the family in Zambia and mentioned that the applicant may return for a visit. The applicant had held hopes of visiting Zambia one day. [Aunt A] was returning to Zambia for a visit around that time.
q.After the phone call between [Aunt A] and the family in Zambia, the family sent [Aunt A] the documents referenced at paragraph 12.c – 12.f above. [Aunt A] then provided the applicant with the documents and the applicant provided them to the Department in connection with her protection visa application.
r.In relation to the letter dated [in] May 2018 written from ‘Guardian / family’ the term ‘guardian’ would be a reference to her grandparents who raised her. Anyone could have written that letter because there is influence from the extended family.
s.In relation to the letter dated 14 March 2012 from the [Church 1] the applicant was aware of that letter in 2012 but had not seen it. Someone must have held on to the letter and then provided it to [Aunt A] in 2018.
t.In relation to the letter dated 5 May 2018 from the [Church 1] the applicant’s family would have visited the church and asked for an updated letter.
u.In relation to the letter from the police dated [in] May 2018 someone from the applicant’s family must have contacted the police who then provided the letter to them.
v.The applicant’s family do not accept her sexual orientation and provide no support to the applicant.
w.When the applicant first arrived in Australia, she spent two years living in Sydney. During that time the applicant studied her [subject] course. In 2015, the applicant moved to Adelaide where she studied theology. In 2018, the applicant moved to [Town 1] for 8-9 months. In 2019, the applicant moved back to South Australia and has remained in South Australia since that time.
x.Whilst the applicant was living in [Town 1] she joined the [Agency 1] [group] where she felt she was able to explain her situation and be supported.
y.Since she has finished studying, the applicant has worked in retail, worked as a [Occupation 1], and now works as an [Occupation 2].
z.There are no other reasons the applicant fears returning to Zambia. She only fears returning due to her sexual orientation as a lesbian. The applicant feels freedom here and can be authentic about her sexual orientation, whereas in Zambia no-one would accept her and she would have to hide her sexual orientation. The anti-LGBT climate is even worse in Zambia now, compared to when the applicant left Zambia in 2013. Zambia is a Christian nation and people do not easily accept other views. If the applicant went back to Zambia it would pose a huge risk as she would have to hide compared to the ability she has had for the last 12 years to live freely in Australia.
Student visa application – September 2016

As earlier noted, on 20 September 2016, the applicant applied for a student visa.
The Tribunal considered parts of the applicant’s student visa file to be relevant to the applicant’s claims for protection. The Tribunal shared the following relevant information with the applicant:
a.On her student visa application, the applicant stated that she was in a defacto relationship.
b.On her student visa application, the applicant was required to provide information to demonstrate that she met the ‘genuine temporary entrant’ criteria. The applicant stated: ‘This course I have currently chosen, after completion will help me gain work back home in Zambia upon my return. [Occupation 3] in Africa is a way of life and culture and being able to find an outstanding college as [College 1] will only help me achieve my goals as an Internationally qualified [Occupation 3].’
c.In support of her student visa application, the applicant provided the Department with the following materials:
i.A statement by the applicant as follows: ‘My uncle has offered me a job in the family business as Administration assistant and [Occupation 3].’
ii.A letter dated 4 October 2016 from [Uncle A], CEO [Employer 1]. The letter states: ‘Dear [the applicant’s name], it is with great pleasure that I am writing to you to offer you the position of [Occupation 3] and administration assistance with [Employer 1]. Your enthusiasm will be an asset to our company. We will review and outline your salary and benefits, once you return to Zambia upon completion of studies and documents will be sent to you prior, in order for you sign where indicated…’
iii.An ‘Affidavit in Support of Relations’ dated 7 October 2016 from [Grandfather A]. The affidavit states: ‘That I am a bonafide biological grandfather of [the applicant] who is currently studying in Australia. That [the applicant’s] mother late [named] was my biological Daughter. That [the applicant] is currently Double orphaned having lost both parents. That [the applicant] has many biological relatives from both sides of parents here in Zambia.’
iv.An ‘Affidavit in Support of Relations’ dated 7 October 2016 from [Grandmother A]. The affidavit states: ‘That I am a bonafide biological grandmother of [the applicant] who is currently studying in Australia. That [the applicant’s] mother late [name] was my biological Daughter. That [the applicant] stands to benefit our estates, being the oldest grandchild.’
v.An ‘Affidavit in Support of Relations’ dated 7 October 2016 from [Uncle B]. The affidavit states: ‘That I am a bonafide uncle of [the applicant] who is currently studying in Australia. That [the applicant’s] father late [named] was my biological brother. That [the applicant’s] supporting bank statement for her visa process is mine’.
vi.A copy of a [Bank 1] account statement dated 22 August 2016 in the name of [Uncle B variant].
Information received by the Department from third parties – February 2022
On 12 October 2022, the Tribunal received information from the Department, subject to a s 438 Migration Act 1958 (Cth),[1] certificate which stated that disclosure of the information would be contrary to the public interest as it may lead to identity of a confidential source.
[1] s 438 Migration Act 1958 (Cth) was repealed on 14 October 2024 as a result of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
The certificate was provided in relation to five separate pieces of information which had been received by the Department in February 2022.
The Tribunal considered the certificate to be valid in relation to two pieces of information where the sources of information had clearly provided the information seeking anonymity.
In relation to these two pieces of information subject to the certificate, the Tribunal shared with the applicant the gist of the information which was that the applicant was not a lesbian and that her claims were not genuine.
The Tribunal considered the certificate not to be valid in relation to the remaining three pieces of information which were pieces of information from [Grandmother A] and [Grandfather A] and they confirmed they did not seek anonymity.
In relation to the information from [Grandmother A] and [Grandfather A], the Tribunal shared with the applicant the entirety of the information which included that the applicant had travelled to Australia to study a [Qualification 1] with the intention of then returning to Zambia to manage the farm. The information stated that the applicant was a loved niece and granddaughter and that as her grandparents, [Grandmother A] and [Grandfather A] wished to leave the applicant their legacy. The information stated that the applicant was not in any danger if she returned to Zambia. The information stated that [Grandmother A] and [Grandfather A] were aware the applicant had applied for asylum and that her application was not genuine. In their information, [Grandmother A] and [Grandfather A] had referenced the applicant’s passport [number].
Issues arising from the evidence
The Tribunal discussed with the applicant the following issues arising from the evidence before the Tribunal. The Tribunal discussed each issue with the applicant. The Tribunal explained the relevance of the information, and the consequences of the information being relied on in potentially affirming the decision under review. The applicant was invited to comment on each issue.
The Tribunal noted that the applicant had given evidence that her grandfather [Grandfather A] had died in 2007. The Tribunal noted that the Department had received an affidavit from [Grandfather A] in 2016 and information from [Grandfather A] in 2022. On both occasions, [Grandfather A] had identified himself as the applicant’s grandfather. On the second occasion [Grandfather A] had correctly referenced the applicant’s passport number. The applicant stated that she did not understand where these documents had come from and as far as she was concerned her grandfather [Grandfather A] died in 2007. In relation to the 2016 documents the applicant stated that her grandmother [Grandmother A] would have had help from other relatives when sending the supporting documents, but the applicant stated that she could not explain why there was an affidavit from [Grandfather A].
The Tribunal noted that the applicant had received support from family in connection with her student visa application lodged in September 2016. In particular, the applicant had received an affidavit of support from her grandmother [Grandmother A], an affidavit of support with accompanying financial support from her paternal uncle [Uncle B], and an offer of employment from her maternal uncle [Uncle A].
In relation to the affidavit of support from her grandmother, the Tribunal noted that the applicant had given oral evidence that in mid 2016 her grandmother had stopped contact with her because of her sexual orientation. The Tribunal questioned the applicant on why her grandmother would provide an affidavit of support at a time when she was not in contact with the applicant. The applicant confirmed that her grandmother was not talking to her at that stage but stated that she provided the affidavit from a place of love.
In relation to the offer of employment from her maternal uncle [Uncle A], the Tribunal noted that the applicant had given oral evidence that she was not in contact with any of her extended family (apart from her grandmother and aunt [Aunt A]) as they did not support her sexual orientation. The Tribunal questioned the applicant on why her uncle would offer her employment if he did not support her due to her sexual orientation. The applicant stated that maybe out of love her uncle had provided that evidence as it was support for her study and in Zambia education is very important.
In relation to the affidavit of support and financial support from her paternal uncle [Uncle B], the Tribunal noted that the applicant had given evidence of having no contact with her paternal relatives since she had been in Australia as they did not support her due to her sexual orientation and that the applicant had had minimal contact with her paternal relatives whilst in Zambia. The Tribunal questioned the applicant on why her paternal uncle would provide support and financial support for her to study in Australia if he was not in contact with the applicant and he did not support her due to her sexual orientation. The applicant stated that he had helped to begin with in 2013. The Tribunal noted that her uncle had supported her in 2016. The applicant stated that they were communicating through her grandmother and aunt and they supported her hoping that something would change, meaning her sexual orientation.
The Tribunal noted that in her student visa application lodged in 2016 the applicant had stated an intention to return to Zambia after studying her course. The Tribunal questioned the applicant on why she was prepared to return to Zambia in 2016, in light of her evidence of fearing returning to Zambia due to fears of persecution for being a lesbian. The applicant stated that she had considered returning but realised she would have had to live discreetly and as such she realised it would have been a terrible idea to return.
The Tribunal noted that in her student visa application lodged in 2016 the applicant had declared her relationship status as defacto. The Tribunal noted that the applicant had given oral evidence that she had never married, never lived with a partner, and never had a defacto relationship. The applicant stated that when she had completed the visa form she had started dating [Partner B] and they had spoken about living together one day and that is why the applicant wrote defacto as her relationship status on the visa form. The Tribunal questioned the applicant on her relationship with [Partner B] and the applicant stated that they had been together for 3 months, that they met when they worked together and that [Partner B] had now returned to [Country 1]. The Tribunal noted that the applicant had given earlier evidence of her longest relationship being 6 months with [Partner A] and that all other relationships had been for 1-2 dates only. The applicant then stated that her relationship with [Partner B] was an on/off relationship and that they accepted each other.
The Tribunal then discussed with the applicant the information received from third parties, being that she was not a lesbian and that her claims were not genuine. The applicant stated that she could not understand where this information had come from and that it did not make any sense to her. The applicant confirmed that both of her maternal grandparents were deceased. The applicant stated that if she could explain it she would.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on an apparently genuine Zambian passport, a copy of which is contained in the material before the Tribunal. The applicant has at all times maintained that she is a citizen of Zambia. The Tribunal is satisfied that the applicant is a national of Zambia and has assessed her claims against Zambia as her country of nationality and the receiving country.
The applicant claims to fear harm if she were to return to Zambia due to her sexual orientation as a lesbian. The applicant does not claim to fear harm if she were to return to Zambia for any other reason.
For the following reasons I do not accept the applicant’s evidence that she identifies as a lesbian. I found the applicant’s evidence regarding her sexual orientation to be unconvincing, misleading and inconsistent. This caused me to have significant doubts about the credibility of the applicant’s evidence in relation to her protection claims.
I accept that the applicant was born and raised in Zambia. I accept that both of the applicant’s parents died when she was very young and that she was raised by her maternal grandparents. I accept the applicant’s oral evidence in this regard and I accept the documentary evidence in this regard, namely the affidavits provided by the applicant’s family in support of her 2016 student visa application and the information provided by the applicant’s maternal grandparents in 2022.
I accept that the applicant travelled to Australia in 2013 to study. I accept that the applicant studied a course in [subject] and then studied a course in theology. I accept that in 2016 the applicant applied for a third student visa. I accept that the Department refused to grant the visa, and, in March 2018 the Tribunal affirmed the decision to refuse the student visa. I accept, that two months later, in May 2018, the applicant applied for a protection visa. I make these findings based on Departmental records available to the Tribunal.
I consider that the applicant did not give consistent and convincing oral evidence about her relationship history with other women. The applicant gave evidence early in the hearing that she first went on a date with another woman in 2016 and that she had only had one committed relationship for six months with a woman in 2019 and that all her other relationships had just been for one or two dates only. Later in the hearing, when questioned by the Tribunal as to why she would write her relationship status as defacto in her 2016 student visa application, the applicant stated that at that time she had been dating a woman for three months and hoped that they would live together one day. When the Tribunal noted that the applicant had given earlier evidence that she had only had one relationship that lasted for more than one or two dates, and that was in 2019, the applicant stated that the 2016 relationship was on and off. I do not accept the applicant’s evidence in this regard. I consider the applicant has modified her evidence in light of the information contained in the student visa application form.
I do not accept the applicant’s evidence that she has had limited contact with her family in Zambia since she has been in Australia. The applicant gave evidence, early in the hearing that she could not identify any paternal uncles. The applicant gave evidence that she had not had contact with her extended family (except [Grandmother A] and [Aunt A]) since she had been in Australia. Later in the hearing, after the Tribunal noted the support, including financial support, from her paternal uncle and other family members, the applicant acknowledged the support from her family, and stated that the support was from a place of love, due to the importance of education, and was provided with the hope that the applicant’s sexual orientation would change. I consider the applicant’s initial evidence that she had no contact with her extended family to be misleading. It is plainly apparent that the applicant had contact with multiple members of her extended family in 2016 to assist with her student visa application. I do not accept the applicant’s explanation of the reasons why her family offered her support. I draw the logical inference that in 2016, the applicant had a positive ongoing relationship with her maternal and paternal relatives in Zambia, and that when she applied for her third student visa, she was supported by her relatives to do so, including with financial support and with offers of future employment.
I do not accept that the applicant fears being harmed in Zambia due to identifying as a lesbian. The applicant arrived in Australia in 2013 on a student visa. The applicant did not apply for a protection visa until 2018, five years after she arrived in Australia and just two months after the decision to refuse her student visa was affirmed by the Tribunal. In 2016, in connection with her student visa application, the applicant stated that she intended returning home to Zambia to work as [an Occupation 3]. When questioned about why she had stated that she intended to return to Zambia, in light of her claimed fear of persecution for reasons of sexual orientation, the applicant stated that she had considered returning, but realised she would have had to live discreetly and it would have been a terrible idea. I do not accept this explanation. If the applicant genuinely feared being persecuted in Zambia, I do accept that she would have considered returning to Zambia in 2016.
I have considered the information received from the applicant’s maternal grandparents in 2022 which states that her claims for asylum are not genuine and that she is a much loved family member. I reject the applicant’s evidence that her maternal grandfather died in 2007. I reject the applicant’s evidence that her maternal grandmother died in 2019. I am satisfied that the applicant’s maternal grandparents were both alive in 2022 at the time they provided information to the Department. I make this finding on the basis that they have identified themselves, and the applicant, and correctly identified her course of study in Australia, and correctly referenced her passport number. The applicant questioned this information and stated that she could not understand where it had come from. I do not accept this as a satisfactory explanation. I place significant weight on this information.

I have considered the information received from the anonymous sources in 2022 which states that the applicant is not a lesbian and that her claims for protection are not genuine. These two pieces of information are independent of the information from the applicant’s maternal grandparents, but the information is corroborative. The applicant questioned this information and stated that she could not understand where it had come from. I do not accept this as a satisfactory explanation. I place significant weight on this information.
I have considered the email from [Ms A] dated October 2018 who attests to the applicant attending a [Agency 1] weekly diversity support group from early 2018 until the applicant moved to South Australia. There is no comment made in the email about the applicant’s identified sexual orientation, only that the applicant became more comfortable and confident in the support group. I accept that the applicant attended this support group and note that the timing of her attendance coincides with when the applicant lodged her protection visa application. There is no evidence to suggest the applicant attended a diversity support group prior to or following this period. I place minimal weight on this email.
I have had regard to the documents filed by the applicant in connection with her protection visa application, including the letter from guardian / family, the police call out, and the two letters from the church. In her statement dated 16 March 2019 the applicant stated: ‘I had told one of my cousins that I may return on the [day in] May (2018) and word got out about this’. At the Tribunal hearing the applicant’s oral evidence was that these documents came into existence after her aunt spoke with family and mentioned the applicant may return to Zambia. The applicant gave oral evidence that she had hoped to return to Zambia one day. Again, I consider this explanation to be unconvincing. If the applicant genuinely feared being persecuted in Zambia, I do not accept that she would consider returning to Zambia, nor that her aunt would inform the extended family that she would be returning to Zambia.
I have significant concerns over the genuineness of these documents. The letter from the guardian / family in 2018 is in stark contrast to the letters of support from the family in 2016. In both situations it is envisaged that the applicant will return to Zambia. In 2016 the applicant’s family make no reference to her sexual orientation and provide only support as outlined above. In 2018, there is reference to the applicant’s sexual orientation and threats made for imprisonment. The applicant’s evidence was that her family were all aware of her sexual orientation prior to her arriving in Australia in 2013. I place no weight on these documents.
For the reasons outlined above, I do not accept that the applicant identifies as a lesbian. It follows that I do not accept that the applicant has ever faced any harm due to her sexual orientation. Therefore I consider that if the applicant returned to Zambia, now or in the reasonably foreseeable future, she would not face any harm due to her sexual orientation.
The applicant made no other claims for protection.
On the evidence before me I do not accept there to be a real chance that the applicant would face any harm due to her sexual orientation if she returned to Zambia, now or in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution for the purposes of the refugee criterion. For the same reasons I do not accept there to be a real risk the applicant will be subjected to any harm due to her sexual orientation as a necessary and foreseeable consequence of being removed from Australia to Zambia.
Conclusion
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:         26 February 2025
Representative:          Miss Vanessa De Pretis (MARN: 1388116)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
…