2309671 (Refugee)
[2024] AATA 3968
•2 September 2024
2309671 (Refugee) [2024] AATA 3968 (2 September 2024)
DECISION RECORD
DIVISION:
Migration & Refugee Division
CASE NUMBER:
2309671
COUNTRY OF REFERENCE:
Zambia
MEMBER:
Fraser Robertson
DATE:
2 September 2024
PLACE OF DECISION:
Perth
DECISION:
The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 02 September 2024 at 2:53pm
CATCHWORDS
REFUGEE – protection visa – Zambia – political opinion – Movement for Democratic Change member – support for human rights – LGBT activist – fear of detention – fear of killing – delay in applying for protection – return visit to Zambia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757
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
The applicant is a Zambian national who arrived in Australia in December 2010 as the holder of a student visa. The applicant returned to Zambia in January 2013. In March 2016, as his student visa was coming to an end, the applicant applied for, and was refused, a temporary graduate work visa March 2016. Following an unsuccessful application for review of the decision to refuse him a temporary graduate work visa, the applicant applied for a protection visa in March 2017, claiming to have a fear of persecution because of his actual or imputed political opinion.
A delegate of the Minister for Home Affairs refused to grant the applicant a protection visa in June 2023. The delegate concluded that there was no substantive evidence to support a conclusion that the applicant had ever been politically active in Zambia or Australia. As such, the delegate concluded that the applicant did not have a well-founded fear of persecution or face a real risk of significant harm. The applicant has provided a copy of this decision to the Tribunal.
The applicant seeks a review of the decision refusing his application for a protection visa. He appeared before the Tribunal to give evidence and present arguments on 28 August 2024.
Following that hearing, I have concluded that the applicant does not satisfy the criteria for the grant of a protection visa, and the decision under review should be affirmed. These are my reasons.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (the 'Act') and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
Refugee criterion
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 decision‑maker 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.[1]
[1] Migration Act 1958 (Cth), s 5H(1)(a).
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.[2] Persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]
[2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[4] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A "real chance" is a prospect that is not "remote" or "far‑fetched", but does not require a likelihood of persecution on the balance of probabilities.[6] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the ‘complementary protection criterion’ under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[7]
[7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Credibility
In determining this application, it is necessary to make findings of fact. The task of fact-finding may involve an assessment of an applicant’s credibility. I recognise that assessing credibility is an inherently difficult task,[9] which should be conducted carefully, fairly and reasonably.[10] Inconsistencies in an applicant’s account may or may not be significant.[11] I should give the benefit of the doubt to those who are generally credible but cannot substantiate all of their claims.[12]
CLAIMS AND EVIDENCE
[9] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[10] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ); see also, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[11] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[12] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
Protection visa application
The applicant applied for a protection visa in March 2017. He claimed to be of Bemba ethnicity and a Christian. In his protection visa application, he claimed that since 2006 he had been a member of an opposition political party in Zambia, the Movement for Democratic Change.[13] He claimed to have participated in "several party activities and forums" and that his life had always been "in minor danger".[14] He claims that the risk to his life had increased because the ruling government was now targeting him. He claims that people have attended upon his mother looking for him and that other members of the party had been arrested and have not been heard from since.[15]
[13] Protection visa application, Q 90.
[14] Protection visa application, Q 90.
[15] Protection visa application, Q 90.
The applicant claims that he travelled to Australia because he believed he would cease to be a target if he travelled. He claims security services are still contacting his family and wife, who are looking for him. He claims that the risk to him is across Zambia and that he cannot seek protection in Zambia. His protection visa application foreshadowed providing a copy of his "party card", "ownership of property", "letter from family", and "letter from a friend.”
The applicant listed his family in Zambia as his wife, [and children].[16] He commenced his relationship with his wife in October 2007, and they married in September 2008.[17] He also claimed that he was widowed in respect of a relationship that began in March 2005 and ended in March 2009.[18] When he lodged his protection visa application, he claimed he spoke to his wife "nearly every day".[19]
[16] Protection visa application, Part B, Q 5.
[17] Protection visa application, Part B, Q 36.
[18] Protection visa application, Part B, Q 36. At the hearing the applicant confirmed this was in error. I accept that and draw no adverse conclusion on that basis.
[19] Protection visa application, Part B, Q 45.
The applicant returned to Zambia in January 2013, returning to Australia in February 2013.[20] Other than Australia, he has previously travelled to [several named countries].
[20] Protection visa application, Part B, Q 71.
Request for further information and response
The Department wrote to the applicant seeking further information in February 2023. That correspondence included:[21]
[21] See letter and request for information from the Department to the applicant dated 28 February 2023.
Claims lacking detail
You claim that you cannot return to Zambia for political reasons and that you now face persecution there because of your political activities and/or opinion.
However, these claims lack substantiating details such as specific dates, names and identities of people or groups involved, among other things. You have also not provided any documents or other evidence to corroborate or support these claims, in particular your claim of being politically active. To assist the Department in assessing whether these claims are genuine, I am inviting you to provide further detailed information in relation to your claims and documentary evidence to support your claims.
Additionally, I am also inviting you to provide further information about the following matters below.
Delay in lodgement and return to Zambia
According to your application form, you left Zambia and arrived in Australia in 2012 and again in 2013. You stated you had returned to Zambia to visit your kids. You did not lodge the current protection visa application until 2017.
Please provide an explanation for your delay in seeking protection and why this much time passed after you arrived in Australia before you lodged this visa application.
Please also explain why you returned to Zambia if you claim you fear persecution there.
The applicant's statement in response was brief and in the following terms:
Explanation on the delay of lodgment and Return to Zambia.
When I visited Zambia in 2013 that is when I realized how bad things have become, I experienced physical and emotional harassment. I did not lodge for the protection visa straight way as I thought the situation may improve but I was wrong. Activists and opposition political leaders where getting killed or jailed for voicing out their concerns. I did not go back home for fear of putting myself and family in danger.
When I arrived in 2012 and 2013, I arrived with the intention to finish my studies and return to Zambia. I have always been vocal about human rights, gay rights, freedom of speech and government accountability/corruption. As of the above-mentioned years, things were not as bad and I remained with the thought of returning and building a better Zambia. As of 2016 violence against civilians by the government had become rampant up to a point that they had blatant disregard for the law, please refer to references provided, people such as myself that stood up against corruption and gay rights especially, where being prosecuted with fake charges and being imprisoned, it was late 2016 that I started to genuinely fear for my safety and that of my children in the event that I returned to Zambia. Friends and colleagues have advised me that my presence would instigate violence against me, as my stance for equality remains unchanged.
As seeking protection from Australia was not my intention things like voters and party affiliated documents where irrelevant here so I left them back home and efforts to retrieve them have been futile as the systems are not electronic. (errors as in original)
At the same time, the applicant also provided a statement from his brother, which claimed as follows:
My name is [C] and [the applicant] is my [brother]. I write to you to explain the happenings in our home country. My brother has been very vocal on the topic of human rights especially. on gay rights. Even as a young boy my brother always believed in standing up for what he believed was the right thing. He spoke against the Government on the infringement of human rights especially on gay. rights, corruption and Freedom of speech. Our government believes that being Gay is a crime and when my brother spoke against it, he began to receive death threats. It is because of my brother’s stance to speak against the Government that he is not safe here and is very liable to persecution and Torture. He is therefore seeking protection in Australia.
An email from [Friend A] states that he has known the applicant since they were children because they grew up together. It claims that people who oppose the government will face "problems". He claims that:
[The applicant] got a little bit too much involved into the happening and in 2011 he decided to leave the country to further studies in Australia in that same year we had a change of government in Zambia and the government. Things got from bad to worse as there was a deterioration of law and order. Once [the applicant] was away, we occasionally got reports of people asking his where about and threatening that they will sort him out once they catch up with him.
Occasionally I would tell him about the happenings and worn him about what happening back at home. [The applicant] decided to come for a visit in 2013 he was only in the country for about 2 weeks as he realised that what I used to tell him was more serious than he thought he went back to Australia cut for fear of putting his family at risks
Things have gotten really bad to the point of anyone who seems to criticise the people in power, talked about freedom of speech and guys right risks facing the arrest, beating and death threats from the police, religious organisations and out of control gangs that are untouched and have the protection of the most powerful people in the country.
The applicant also provided country information to the Department in respect of issues faced by LGBT persons in Zambia, political 'crackdowns' on dissent, and corruption. I have considered this material. The applicant also provided a property ownership deed. I do not consider that deed is materially relevant to the resolution of the applicant's claims.
The delegate's decision
The delegate refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant was politically active in Zambia or had advocated for human rights or gay rights in any way and had serious doubts about the veracity and credibility of the applicant's claims. The delegate also noted a lack of evidence that the applicant continued to be politically active since he had been in Australia. On that basis, the delegate was not satisfied that he would be wanted by, or targeted by, government authorities.
Tribunal hearing
Prior to the hearing before the Tribunal, the applicant provided a hearing response in which he indicated that he intended to provide "other evidence" before the hearing and did not request that the Tribunal take any evidence from any witnesses.
On 21 August 2024, the applicant provided additional evidence in a Microsoft Word document and some photographs. It included screenshots of a 'group chat' between the applicant and other people and an extract of a news article about the abduction and murder of Guntila Muleya, who was appointed the head of Zambia's broadcasting regulator. The applicant also provided photographs of what would appear to be the body of a person with what seems to be a gunshot wound to his face. The applicant explained at the hearing that the victim was his friend, and he suspected he was killed because of his political opinion.
ANALYSIS, FINDINGS AND REASONS
The issue in this application is whether the applicant satisfies the refugee criterion for protection contained in s 36(2)(a), or the complementary protection criterion contained in s 36(2)(aa) of the Act. There is no suggestion that the applicant satisfies s 36(2)(b) or (c) of the Act.
The applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[22] When assessing the claims made, I am not required to accept any or all the allegations made uncritically.[23] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[24]
[22] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
[23] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[24] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs.[25] There is no Department of Foreign Affairs and Trade Country Information Report regarding Zambia.
[25] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
Country of nationality
The applicant claimed to be a Zambian national. The applicant travelled to Australia on a passport that appears to have been regularly issued by that country. I am satisfied that Zambia is the applicant’s country of nationality and the receiving country.
Does the applicant satisfy the refugee criterion?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[26]
[26] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
I have considered the evidence and country information provided by the applicant. For the following reasons, I do not accept that the applicant faces a real chance of harm, now or in the reasonably foreseeable future, if he is returned to Zambia for any reason.
Does the applicant face a real chance of harm?
In presenting his case, the applicant has sought to focus on the risk in Zambia to people who have profiles adverse to the government or other political parties or are engaged in activism on topics such as human rights or 'gay rights'. However, I am principally concerned with determining whether the applicant personally faces a real chance of harm.
I do not consider the applicant's claims and evidence credible or believable. I have significant concerns about the credibility and reliability of his evidence. Taken together, those concerns lead me to reject his evidence insofar as it relates to his protection claims.
The applicant's evidence was vague and lacked detail
First, the applicant's evidence about his political activism, gay rights activism and human rights activism was vague and lacked real detail. For example, when I asked the applicant about his political activities in Zambia, he said that he made financial contributions and attended their activities. He added that he campaigned for them to get into power when pressed for more detail. When further pressed for more detail, the applicant avoided responding and said he was "just a low-key member".
After discussing his claimed level of involvement with politics in Zambia, I asked the applicant on more than one occasion whether he wished to add anything else. He did not. He did not seek to provide any oral evidence about his 'gay rights activism' or his activities. Indeed, he did not discuss these claims until I raised them. After I had raised his previous claims about his gay rights activism, I asked him to tell me about his activities as a 'gay rights activist' in Zambia. He claimed that he was a "progressive person" who was "active in supporting gay rights".
When I asked the applicant to tell me about his activism in gay rights for a second time, he responded that he supports gay rights and thinks everyone should be treated equally regardless of their sexual orientation.
As a person who claimed to face a real chance of persecution because of his past activism around gay rights, the applicant's evidence in this regard was vague to the point of meaningless. It would not be an inaccurate description to describe his evidence in respect of his gay rights activism as involving little more than motherhood statements.
The applicant's evidence about his political involvement, including his gay rights activism and human rights activism, was so vague and lacking in detail and spontaneity that it did not accord with evidence that I would have expected to hear from a person with any lived experience as an activist or political participant in any way whatsoever.
Moreover, the applicant was not able to explain in any logical, coherent or persuasive way how he was able to reconcile his support to the UNPD when they were, themselves, opposed to gay rights, which was something he was active in supporting. Whilst I do not suggest that a person cannot feel an affinity to a party that does not align with all of their views, I find the inconsistency between the UNPD position on gay rights and the applicant’s stated commitment to that cause to be difficult to reconcile. I would have expected the applicant to be able to explain how he was able to rationalise his support for two conflicting ideological positions.
Unclear and potentially inconsistent evidence
The applicant has provided unclear, and potentially inconsistent, evidence about his past political involvement. At the hearing, the applicant's evidence was that he was a member of the United Party for National Development ('UNPD'). He claimed that he joined that party in 2006 and explained that it had been in power until around 2011, when a candidate from PF became president.
The applicant's protection visa application did not expressly refer to the UNPD. When I raised this, he could not explain why he did not refer to the UNPD by name anywhere in his protection visa application.
The applicant agreed he did not refer to the UNPD by name. When I asked why his protection visa appeared to involve a claim that the party he was a member of was called the 'Movement for Democratic Change", the applicant eventually asserted that the Movement for Democratic Change was a description of the role of the 'main opposition party' as a movement for democratic change before adding that he did not know how that reference came about.
I find that explanation unpersuasive.
The delegate referred to the applicant's claims in the following way, specifically referring to the Movement for Democratic Change as being the claimed party:[27]
The applicant…has claimed they are unable to return to Zambia because they are a member of the main political opposition – the Movement for Democratic Change – and have been a party member since 2006.
[27] Delegate's decision, p 6.
Moreover, the delegate also referred to the ambiguity in the applicant's claims.[28] Despite this, the applicant did not, until it was raised by me, address this aspect of his claims. His clear evidence was that he prepared his protection visa application, and the contents were true and correct. Yet, the applicant did not take any opportunity to proactively correct any ambiguity that was present about the party he was claiming to be a part of.
[28] Delegate's decision, p 7.
Additionally, had the applicant been a member of the UNPD for at least four years, as he claimed, feared harm because of his past membership, activities and involvement with that party and continued to fear membership on that basis, it is not unreasonable to have expected the applicant to make a clear claim in his protection visa application that was the party he was a member of. By the time he came to lodge his protection visa, the applicant had completed both [of his degrees] whilst in Australia.
Plausibility
The applicant claimed he was a government target, including a target for government security forces and officials. He claimed that if he returned to Zambia, “they” would be able to find them. The party the applicant claimed to fear harm from was the Patriotic Front ('PF'). The applicant’s evidence was that when he returned to Zambia, PF was in power and that he knew PF was in power. The applicant did not experience any difficulties entering or departing Zambia. I raised that I had some difficulty accepting that if PF were targeting him and security forces were asking about him, as he claims, that he would have been able to enter and leave Zambia unhindered. Evidently recognising the difficulty with that contention, the applicant then claimed that it was, in fact, the grassroots supporters posed the greatest risk to him, not the Zambian authorities or PF more generally. However, this claim is difficult to reconcile with his earlier written claims which appeared focused on the risk from government authorities as it was, at that stage, controlled by the party to which he was opposed. I also note that the claimed fear from grassroots supporters only arose in the hearing after potential challenges with the overall plausibility of his narrative had been exposed.
Lack of corroborative evidence
Among other things, the delegate did not accept the applicant's claim that people had been to the applicant's mother's house to look for him or contacted his wife looking for him.[29] Significantly, the delegate also concluded:[30]
Overall, given the paucity of meaningful, substantive evidence to support the applicant’s assertion that they were previously politically active in Zambia and had advocated for human rights or gay rights in any way, I have serious doubts in my mind as to the veracity and credibility of the applicant’s claims. At present, there is no substantive evidence before me to support their claims of being politically active in Zambia. There is also no evidence that the applicant continues to be politically active since coming to Australia. It therefore follows that I also do not find they would be targeted and wanted by government authorities and their functionaries for political reasons as claimed.
[29] Delegate's decision, p 8.
[30] Delegate's decision, p 8.
As I have noted above, the applicant provided statements that were claimed to be from his brother and [Friend A]. In reaching that conclusion, the delegate also observed:
I have considered the content of the letters sent to the applicant purportedly from the applicant’s brother and from a friend. I find that the content appears to have been copied, pasted and also altered in a Word document and does not show the original format or source of this information. While I have inferred that they were likely sent as emails, the format of the submitted evidence raises concerns and questions in my mind as to the extent in which the content of the emails (or letters) may have been altered to suit the applicant’s claims. I am also unable to discount the possibility that the letters may have been written and put together by the applicant themselves. There are also no dates and no context as to who or why a letter from [Brother A] or [Friend A] would carry any significant or meaningful weight when it comes to support the applicant’s claims. Furthermore, I note both [Brother A's] and [Friend A's] letters are merely reference letters and do not actually demonstrate or show that the applicant had been genuinely involved in any of the political and advocacy works other than what they have claimed in their letters. For these reasons, I therefore give no weight to these two letters as evidence of the applicant’s political activities in Zambia.
When I raised that I shared these concerns, the applicant said that he had taken screenshots of emails and then put them in a document. Despite this, and within the context of the delegate’s concerns, not only at no time has the applicant sought to have either person expand upon their evidence, but he did not (and still has not) seek that the Tribunal take evidence from these witnesses. I cannot independently confirm the authenticity of their purported statements, nor can I explore or test their evidence. In circumstances where I cannot explore, test or confirm their evidence, I am not prepared to attach any weight to it. Even if I were to attach weight to the statements, much like the applicant’s own evidence their evidence is vague and lacking in detail. It is neither convincing nor persuasive. Their evidence would be deserving of no more than the slightest of weight. In any event, it would not be sufficiently corroborative to overcome the significant concerns I have about the applicant’s evidence.
When submitting his protection visa application, the applicant foreshadowed providing evidence of his party membership card. He did not. He explained that he could not retrieve the documents in either hard copy or digitised form.[31] At the Department stage and before the Tribunal, the applicant claimed that he couldn't provide a copy of his membership card because his ex-wife, who had moved, couldn't locate it. At the hearing, I suggested that he could have contacted the UNPD for proof of his involvement, which seemed to surprise him. He then claimed he didn't know many people still involved with the party. However, he didn't explain why not knowing many people in the party would prevent him from obtaining evidence of his membership from the organisation.
Delay in applying for protection
[31] Delegate's decision, p 6.
The applicant arrived in Australia in 2010. On his case he came here hoping that the risks to him that he faced in Zambia at the time would subside. He returned to Zambia in 2013 and, he claims, only then properly understood how dangerous the situation was for him personally so promptly returned to Australia. Yet, he did not apply for a protection visa until 2017.
The applicant claimed that after returning from Zambia, he felt it would not be safe to return. I asked him why, in those circumstances, he did not immediately apply for a protection visa. He claimed he held a student visa and did not think it necessary.
The applicant explained that following the end of his student visa, he applied for a temporary graduate visa. I asked him why he sought a temporary visa instead of a permanent visa if he believed it was unsafe to return to Zambia. The applicant claimed that he still had some hope that the situation in Zambia would improve and that he would be able to return. When that temporary visa was refused, I asked the applicant why he sought a review of that decision instead of applying for a protection visa. He responded that he chose to seek a review in the Tribunal because, based on his research, he believed he had a strong case.
When I asked the applicant why he applied for a temporary visa and sought a review of the refusal of a temporary visa when he could have applied for a permanent protection visa instead, he could not explain his preference for the temporary visa. I do not accept the applicant's reasons for delaying his application for a protection visa by exploring other visa options. I consider this delay to suggest that the applicant did not fear harm if he returned to Zambia but wants to stay in Australia for personal reasons unrelated to fear of persecution or other valid concerns.
Delay in raising aspects of his claims
The applicant's protection visa application did not expressly claim to have been a gay rights activist. It was only raised in response to a letter from the delegate in February 2023, raising concerns about the lack of detail in his claims.
When I arrived in 2012 and 2013, I arrived with the intention to finish my studies and return to Zambia. I have always been vocal about human rights, gay rights, freedom of speech and government accountability/corruption. As of the above-mentioned years, things were not as bad and I remained with the thought of returning and building a better Zambia. As of 2016 violence against civilians by the government had become rampant up to a point that they had blatant disregard for the law, please refer to references provided, people such as myself that stood up against corruption and gay rights especially, where being prosecuted with fake charges and being imprisoned, it was late 2016 that I started to genuinely fear for my safety and that of my children in the event that I returned to Zambia. Friends and colleagues have advised me that my presence would instigate violence against me, as my stance for equality remains unchanged.
This aspect of his claims was not raised until 2023 in response to correspondence from the delegate. At the hearing, when I attempted to understand why the applicant did not raise these claims initially, he avoided providing any meaningful response. The delay in raising this aspect of his claims undermines the overall credibility of his claims.
Summary of findings
I do not accept that the applicant was a member, "low-key" or otherwise, of UNPD or any other political party. I do not accept that he is, was, or will be an activist for human rights, gay rights, or corruption. I do not accept that he will be imputed with these profiles. I do not accept that the applicant faces a real chance of harm because of his actual or imputed political profile or actual or imputed activism profile, whether with respect to human rights, gay rights, corruption, or any other issue.
I do not accept that the applicant is a target for PF, the government, security services, or any of the authorities in Zambia. I do not accept that PF intends to target the applicant. I do not accept that the applicant is, or would be, of adverse interest to grassroots supporters of parties that are opposed to the UNPD. I do not accept that he received death threats or any threats. I do not accept that he experienced any relevant harm in Zambia.
I do not accept that he will, if returned to Zambia, seek to involve himself in politics or join the UNPD. I do not accept the applicant has a genuine interest in Zambian politics or any genuine intention or desire to involve himself in Zambian politics. I do not accept that he is, by virtue of his political connections or otherwise, likely to obtain employment in an industry or role that will see him come to the adverse attention of any party or persons in Zambia.
I have considered the evidence in respect of Guntila Muleya. There is nothing in the text messages provided to support a conclusion that the applicant knew or was associated with the late Mr Muleya. Moreover, I am not satisfied that the attack on Mr Muleya was politically motivated. The applicant’s own country information indicated the motive was unclear and the applicant was not able to point to any evidence to support a conclusion that it was politically motivated other than suspicion.
Considering the applicant's claims, both individually and collectively, I am not satisfied that he faces a real chance of harm, for any reason, now or in the reasonably foreseeable future, if he were to return to Zambia. I find the chance of the applicant being harmed remote.
I have considered the country information relied upon, however that information would go to the chance of the applicant being harmed if, and only if, I was satisfied that he had the particular profile he claims to have. As I am not satisfied that the applicant possesses the profile, political or otherwise, that he claims (or that he would be imputed with such a profile), the country information relied on by the applicant does not affect my conclusions as to whether he faces a real chance of harm for the reasons claimed by him.
In those circumstances, I find that the applicant does not have a well-founded fear of persecution within the meaning of s 5J(1) of the Act. I do not accept that he is a refugee within the meaning of s 5H(1) of the Act.
The applicant does not satisfy the criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION?
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk that they will suffer significant harm.[32]
[32] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[33] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[34]
[33] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
[34] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
I have already found that the applicant does not face a real chance of harm in Zambia. Adopting those reasons and on the same basis, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Zambia, there is a real risk that he will suffer significant harm.
The applicant is not a person for whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not 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) based on 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.
Fraser Robertson
MemberATTACHMENT – 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.
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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
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