2309671 (Refugee) - [2024] AATA 3968

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] AATA 3968
Decision Date: 2 September 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to be a member of the Movement for Democratic Change in Zambia, an opposition political party, and an advocate for human rights and LGBT rights. The applicant asserted that he feared detention and death due to his political activities and that security services were still seeking him. The decision under review affirmed the refusal to grant the applicant a protection visa.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), or the complementary protection criterion under section 36(2)(aa). This involved assessing the applicant's credibility and the veracity of his claims regarding political persecution and a well-founded fear of harm in Zambia. The court also considered whether the applicant had discharged his responsibility to provide sufficient evidence to establish Australia's protection obligations.

The court applied principles of fact-finding and credibility assessment, acknowledging the inherent difficulty in such tasks and the need for careful, fair, and reasonable evaluation. It noted that inconsistencies in an applicant's account may not always be significant and that the benefit of the doubt should be given to generally credible applicants who cannot substantiate all claims. The court considered the evidence presented, including country information, a property ownership deed, screenshots of a group chat, and photographs of a deceased individual, but found that the property deed was not materially relevant. The delegate's decision to refuse the visa was based on doubts about the applicant's veracity and credibility, a lack of evidence of continued political activity in Australia, and a failure to be satisfied that the applicant would be targeted by government authorities. The court affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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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