By Francisco Mumba
When examining whether an asylum-seeker meets the inclusion criteria of the 1951 Convention refugee definition, decision-makers must take into account all relevant facts and circumstances of the case and determine whether each of the following elements are present;
Outside the country of nationality or habitual residence
A person can only be a refugee if he or she is outside his or her country of nationality, or for those who are stateless (that is, without citizenship of any country), their country of habitual residence. This is a factual issue, which is to be established on the basis of documents, statements or any other information submitted by the applicant or obtained from other sources.
Well-foundedness and fear
The term “well-founded fear” contains a subjective and an Objective element, and when determining refugee status, decision makers must consider both.
Fear is, by definition, a state of mind and hence a subjective condition, which will depend on the individual’s personal and family background, his or her personal experiences, and the way in which he or she interprets his or her situation. In practice, any expression of unwillingness to return is normally sufficient to establish the “fear” element of the refugee definition.
Whether or not the fear is “well-founded” must be assessed in the context of the situation in the applicant’s country of origin and in light of his or her personal circumstances. The decision-maker also needs to develop a detailed understanding of the applicant’s background, profile and experiences. Experiences of family members and/or other persons with a comparable profile will also be relevant. Asylum-seekers are not required to prove their fear “beyond reasonable doubt”, or that it would be “more probable than not” that the feared harm will materialize.
The applicant’s well-founded fear must relate to persecution. The concept of “persecution” is not defined in the 1951 Convention. From Article 33 of the 1951 Convention it can be inferred that a threat to life or physical freedom constitutes persecution, as would other serious violations of human rights. The preamble to the 1951 Convention refers to international human rights standards, and these provide a useful framework for analysis and Mr Biti on face of it meets all these conditions
Having raised the above government could reduce the questions being raised by citizens by providing specific answers for denying Tendai Biti Asylum. Without concrete reasons the government will be regarded as an accomplice for whatever would happen to to Tendai Biti.
Secondly it is serious abrogation of international law which Zambia is a state party to deny one asylum on the basis of allegations from his country of origin.
Writer is a governance and conflict resolution expert.