1504620 (Refugee)

[2016] AATA 4343

1504620 (Refugee) [2016] AATA 4343 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504620

COUNTRY OF REFERENCE:                  South Africa

MEMBER:Susan Pinto

DATE:15 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 15 August 2016 at 10:06am

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are a mother and her young son who are citizens of South Africa. The applicants arrived in Australia on [temporary] visas [in] November 2009. The first named applicant (hereafter referred to as the applicant) is aged in her [age range] and her son, [named], is approximately [age] years of age. The applicants applied for [different temporary] visas in February 2012 which were refused by the Department and the delegate’s decisions were affirmed by the Migration Review Tribunal (MRT) in April 2014.

2. The applicants applied for Protection visas [in] May 2014.  The applicant claimed that she has been the victim of three violent incidents in South Africa and she fears for the safety of herself and her son. The applicant claims that they will be targeted because they are ethnically white South Africans. The applicant fears she will be subject to harm as a single, white female and her son will be subject to harm because he is white and as a child he may be the victim of child rape.

3. The delegate of the Minister for Immigration refused to grant the Protection visas [in] March 2015. The delegate accepted that the applicant had been the victim of crimes in 2002 and 2008, but did not accept she had been targeted because of her race or gender or that she would be targeted for this reason upon her return. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicants have a well founded fear of persecution in South Africa for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to South Africa, there is a real risk that they will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant indicated on the application form that she was born in [Town 1] in Natal, South Africa. She stated that she speaks, reads and writes English and Afrikaans. In response to a question as to the ethnic group to which she belongs, the applicant stated “white”. She indicated that her marital status was ‘separated’ and the date of the separation was [in] May 2014.

6. In a submission to the Department, the representative submitted that the applicant is a South African citizen who moved to Australia as a student in the hope of escaping the nightmares and fear she experienced whilst living in South Africa. It is submitted that the applicant was the victim of a home invasion with thieves driving over her in the car they stole from her father, dragging her along as she was stuck under the car. It is also submitted that the applicant was in a “foiled hijacking with her new born son” and was “caught up in events at a [business] where she worked with a syndicate of fraudsters being identified and having access to her address and her details”. It is submitted that as a single, white female she fears for her life in South Africa due to three close encounters in which the South African authorities could not protect her. The applicant is unable to move to another part of South Africa and she does not feel safe anywhere. The thought of returning to South Africa has caused her to experience physical illness and nightmares. The applicant’s fear is real and a direct result of the trauma she experienced in South Africa. It is also submitted that the applicant fears harm due to her race – white coloured skin and her membership of a particular social group of female. The representative submits that the applicant has a well founded fear for her life because she is a white South African female. Her fear is based on the three traumatic experiences she had whilst living in South Africa. The applicant cannot and is unwilling to return to her country of origin and she may also be targeted because of her knowledge of the fraudulent syndicate whilst she was working as a [position].

7. The representative submits that the applicant has no relationship with the father of her son and he is not listed on her son’s birth certificate. The applicant came to Australia to make a new life for herself but a “mess” with her visa resulted in the refusal of her permanent residency nomination. The representative submits that with a young child to care for and support it is impossible for the applicant to gain skilled employment and create a new life for herself and her son. The applicant’s son has lived in Australia for most of his life and does not speak Afrikaans. The applicant fears that she will be unable to protect herself and her son in South Africa. 

8. The representative refers to “Hate Crimes in South Africa” and cites studies showing that there has been an increase in sexual and property crimes in recent years and in 1995 South Africa had the fifth highest murder rate among countries assessed by Interpol, with more than half involve traumatic injuries requiring hospital admissions. The representative also cites studies showing that South Africa has a long history of prejudice and discrimination and media reports carry stories of race related killings, the ‘corrective’ rape of black lesbians, regular incidents of xenophobic violence and occasional reports of religious intolerance. It is submitted that there is a tendency amongst policy makers to dismiss such incidents as being simply ‘criminal’ and an unfortunate part of life in South Africa.

9. The representative refers to reports on “white genocide” in South Africa and submits that the reports show that violence against the white minority and females has risen dramatically since Nelson Mandela’s death, and it is well known that the South African government is promoting anti-white sentiment and campaigns to punish the white minority for previous acts. Reference is also made to reports on a “rape culture” and “child rape” which has emerged in South Arica and the high incidence of HIV. It is submitted that the applicant and her son are at serious risk of being targeted because they are female, white and her son is a child. It is submitted that if they survive a rape attack they will be likely to contract HIV and be scarred for life. Reference is also made to white farmers who are being targeted and the refusal by the government to take action.

10. In response to questions on the application form as to the harm she experienced in South Africa, the applicant states that in 2002 she woke up hearing her father cry for help. The attackers had hijacked her father’s car and drove over the applicant dragging her under the car for several metres and “leaving me for dead”. The applicant stated that the men were never caught and although they found the car with fingerprints they were unable to catch the men. The applicant states that she still has the scars on her body from the attack as the skin on her head burst open when she hit the ground. The applicant states that she still lives in fear of being raped and killed and she experiences panic attacks when she hears a car engine running or if she walks around the rear of a car.

11. The applicant also states that during her employment at a [business] in 2008 there was a fraud situation when a fraudster was detained by a [business] manager. When the applicant walked past the fraudster he “attacked” her when she was eight months pregnant and grabbed the [item] which she was having checked from her hand. He then ate the [item]. The police took a statement from her, including all her personal information and residential address. She was unaware that the fraudster was sitting in a booth next to her and would have heard everything she said. When she walked past him he looked at her as if to say that she will pay for what she had done. She was terrified and locked herself in her house. The applicant did not feel safe again and the [business] manager arranged for her to have a security guard to walk her to her car until she left on maternity leave.

12. The applicant states that the last incident was in late 2008 when her son was in his car seat in the front passenger side of her car. She was driving home in the evening and a man jumped in front of the passenger window with a pistol in his hand. The applicant drove away quickly and drove through a red light to avoid harm. The applicant states that every day she woke up not knowing whether she would be alive at the end of the day and was crippled by suicidal thoughts. 

13. The applicant provided documents to the Department, including birth certificates; a police report and documents relating to the incident in 2002 when her father’s car was hijacked; and a medical report relating to the hijacking.

14. The applicant was interviewed by the delegate [in] February 2015. The Tribunal has listened to the CD Rom recording of the interview and the relevant evidence is set out below. At the Department interview the applicant spoke in greater depth in relation to the incidents she had experienced in South Africa. The relevant evidence is discussed below.  

    Application for review

15. When lodging the application to the Tribunal, the applicant provided documents including a South African Police Docket, relating to an offence which occurred [in] September 2002. The offence is described as an armed robbery of a [brand] Car and attempted murder of the applicant who is described as the “daughter cut marks on [body parts]”. The incident is described by the applicant’s father who stated that he was pushed to the ground and a [chain] ripped from his back by one suspect, and another suspect jumped in the car. Both suspects then reversed at high speed at which time the applicant was run over in a car when she came out of the house. Copies of police statements relating to the case were also provided.

16. The applicant subsequently provided a statement to the Tribunal in which she stated that she believes the incident in 2002 was not adequately explored during the interview with the delegate. The applicant states that her [Relative A] was brutally murdered in October last year after being tied up and brutalised for hours and her [age] year old [Relative B] was brutally raped. The applicant states that nothing was stolen except the utility vehicle that was taken as a “get away” car and it was another “hate crime”. The applicant also refers to a friend of her sister who was brutally beaten to death. The applicant also again refers to the incident in 2002 where she was run over by a car and the fear and trauma she experienced at the time and has experienced over the course of many years as a result of this incident.

17. The applicant states that she and her son have adjusted to living in Australia where they have been for almost five years. The applicant states that her son speaks like an Australian child and “going back to South Africa is not an option”. The applicant states that she has a genuine fear for her own safety and that of her son if she returns to South Africa.

18. The applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The relevant evidence is discussed below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Do the applicants have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

19. As stated above, the applicant has claimed that she has a well founded fear of persecution because of her race as white and her particular social group of females or white, single females.  The Tribunal has considered whether the applicant has a well founded fear of persecution for these reasons, and has considered also whether there is a real chance that the applicant or her son will suffer serious harm in South Africa for their membership of other particular social groups or as a result of any other Convention reason.

20. Having considered all of the evidence, the Tribunal accepts that the applicant is genuinely fearful about her own safety and of her son, and the incidents in 2002 and 2008 have had an extremely negative effect on the applicant. However, whilst the Tribunal has considerable sympathy for the applicant and her son who have lived in Australia for some years, are well settled and contributing positively to the Australian community, the Tribunal is not satisfied that the applicant’s fears in relation to South Africa are such that she or her son have a well founded fear of persecution for a Convention reason. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s past experiences

21. As stated above, the applicant has claimed that she experienced three traumatic incidents in South Africa, the first of which was when her father’s car was stolen and she was badly injured when she was run over by the car driven by the thieves. The second incident occurred in the [business] where the applicant was employed, when a fraudster tackled the applicant in order to obtain the [item] he had attempted to present, and the third incident was when she was driving her car with her baby son in the front seat in a baby seat when a man appeared at her car window. During the Department interview the applicant expanded on these incidents. Although not specifically questioned by the delegate about the 2002 incident, the applicant advised the delegate that she wished to provide further details of this incident. The applicant stated that it was that incident which has resulted in her suffering continuing fear and anxiety and it was “where everything started”. The applicant stated that her father was driving his car out of the garage when he was pulled out of his car and was physically pushed to the ground by the men. The applicant was woken by her father yelling and screaming and she came running out of the house not knowing what was happening. When she came out onto the driveway the two men who had stolen the car were backing out of the driveway. They kept on backing out of the driveway and the applicant became stuck under the car. The skin on her [body parts] was badly injured. The applicant was later told by the hospital doctor that it was fortunate that she was unconscious because if not she would have been injured much more significantly. The applicant told the delegate that although the other incidents were not as significant they contributed to her not being able to live in South Africa anymore.

22. In relation to the first incident, the applicant confirmed during the hearing that she believes that this incident has affected her badly not only because of her injuries but because the perpetrators clearly did not care whether they badly injured or even killed her. The applicant was also badly affected by the reaction of her father who was traumatised by seeing his teenage daughter run over by a car. In relation to the incident in 2008, the applicant stated that she was heavily pregnant at that time. She had taken [an item] which a customer had produced to be checked because she had some suspicions in relation to the customer. The customer became suspicious when he saw what the applicant was doing and left the [business] premises. He was detained by some security guards and taken back inside the [business]. When he saw the applicant with the [item] he tackled her and the applicant attempted to retaliate. When her name was called by another employee she realised that she should allow the man to take the [item] and ensure her own safety and that of her unborn child. The man was able to take hold of the [item] and he then swallowed it. The applicant confirmed that when the man was investigated at the [business] he was sitting in the next cubicle and he heard her provide details of her address and name to the police. The applicant told the Tribunal that she was not required to provide evidence in court and she is uncertain whether the man was ever prosecuted. The applicant also indicated that as far as she knows no other [business] staff have been harmed in relation to the incident in the [business]. When advised that it appears unlikely that the man would have been able to record her name and address or would be motivated to retaliate several years after the incident, the applicant stated that she could not say but she was shaken up by the incident.

23. When asked about the next incident when her baby was in the front seat whilst she was driving her car, the applicant stated that she was coming home from a friend’s house at about [time] when she stopped at the traffic lights. Whilst she was waiting for the red light to turn green someone banged on the window. The applicant immediately sped through the red light. The applicant told the Tribunal does not know whether the person had a weapon but she is certain that the person would have attempted to carjack her had she not sped off through the red light. The applicant stated that even if the assailants do not have weapons they use screwdrivers or other means to break into cars to hijack them. The applicant was very frightened by the incident and had to stop at a service station because she was shaking in fear. The applicant telephoned her [Relative C] whom she was living with at that time to help her.

24. The Tribunal has considered the applicant’s account of her experiences in South Africa. The Tribunal found the applicant to be a credible and truthful witness and accepts that the three incidents occurred in the manner described by the applicant. The Tribunal also accepts that these incidents, particularly the first incident when the applicant was injured by the car driven by two men, have had a deleterious effect on her and have led to her suffering ongoing trauma and anxiety. The Tribunal accepts that in the context of a high crime rate, the applicant fears for her own safety and she is also particularly concerned about the safety of her young son and his ability to adjust to living in South Africa. However, without in any way wishing to minimise the trauma experienced by the applicant, her own evidence indicates that the most serious of the three incidents occurred some 14 years ago. The applicant’s own evidence also indicates that the second incident occurred at her workplace and although she retaliated and appears to have been pushed whilst heavily pregnant, the fraudster’s motivation was to regain possession of the [item] in an attempt to destroy any evidence and she did not sustain any injuries. Although the applicant has indicated that she is uncertain whether there would be any further action or retaliation by the fraudster who was part of an organised gang, her evidence does not indicate that other staff have been harmed or any retaliation taken against them. As discussed at the hearing, the Tribunal also considers it unlikely that the fraudster would have been able to write down her name and address or recall details of her name and address many years later. The Tribunal also considers that the third incident, whilst undoubtedly very troubling given that the applicant’s baby son was with her at the time, did not result in any harm to the applicant or her young son as it occurred quickly and she was able to avoid harm by driving away from the traffic lights at high speed. The applicant’s evidence also indicates that she is uncertain whether the person had a weapon.

1. The Tribunal considers that the applicant’s evidence indicates that all three incidents were random and criminal in nature. The first incident occurred when criminals stole the applicant’s father’s car. The second incident occurred when a criminal attempted to de-fraud the [business] and the third incident most likely occurred when someone attempted to rob or car jack the applicant. At the hearing, the Tribunal discussed the independent evidence with the applicant in relation to crimes and the crime rate in South Africa (see below). The applicant did not dispute the independent evidence, which she agreed generally accords with her own experiences. That evidence, discussed in further detail below, indicates that criminal violence such as that experienced by the applicant is largely random and the motivation of the perpetrators is frequently economic and financial gain. The Tribunal is not satisfied that the applicant was targeted because she is a member of a particular social group of females, white females or any similar connotation of particular social group or because of her race as a white person in South Africa or that there was any other Convention related motivation for the harm inflicted on the applicant. Accordingly, on the basis of the applicant’s own evidence and the independent evidence, the Tribunal finds that the applicant has not suffered serious harm in the past for reasons of her race or membership of a particular social group or any other Convention reason.

   The applicants return to South Africa

2. The Tribunal has considered whether there is a real chance that the applicants will suffer serious harm if they return to South Africa. As stated above, the applicant has claimed that she cannot return to South Africa because she fears she or her son will suffer serious harm. During the Department interview, the applicant stated that she has been through a traumatic incident in 2002 and the potential hijacking incident caused her to become paralysed with fear. The applicant told the delegate that it is unthinkable that her son would have to live in that environment and it has taken her several years to be able to sleep without [difficulties]. The applicant has also claimed that her son has lived in Australia for most of his life and she believes he will be unable to adjust to life in South Africa. Although the applicant initially made written claims to the Department that she would be unable to obtain employment upon her return to South Africa, when asked about this during the Department interview she stated that it would be difficult due to the “Black Empowerment” legislation and affirmative action policies for black people. The applicant stated that as a single, female she is regarded as an “easy target”. The applicant referred to her [Relative D] who was living alone and was raped repeatedly over the course of 24 hours. The applicant stated that although her family takes security measures and had six foot fences and trailer doors her father was targeted because he had an established routine and he became an easy target. The applicant stated that she believes she is also an easy target, a “sitting duck” and it is “not a case of if but when” she or her son will be killed, raped or infected with HIV. The applicant stated that after years of living in Australia she will be an easier target because she has taken her guard down.

3. The applicant spoke at both the Department interview and the Tribunal hearing about her belief that she and her son are particularly vulnerable because she is a female and he is a young child. The applicant stated that the perpetrators of crime target women and elderly people and white farmers are targeted because they are vulnerable as they are often elderly. The applicant also stated that there is very little justice for victims and the police and law enforcement agencies generally are corrupt. The applicant stated that in South Africa her life is viewed by the perpetrators as worthless and they think nothing of not only robbing a victim but for attacking or killing the victim.

4. At the Department interview the applicant’s representative submitted that the applicant has suffered from post traumatic stress disorder after the 2002 incident and she has no confidence in the South African authorities. It was submitted that the applicant’s fear is “real and crippling” and she will “resort to measures which will not be good for her and her son”. The representative also referred to the South African Prime minister who sings songs about killing white people.

5. The Tribunal has considered the applicant’s claims regarding her fears of returning to South Africa and the documentation she has provided regarding “white genocide”, hate crimes and other reports of the violence which is endemic in South African society. The Tribunal accepts that South Africa has one of the highest crime rates in the world[1] and some commentators have observed that “everyone is South Africa has been affected by crime, and the consequent sense of insecurity that comes with living in fear”.[2]  A 2011 survey showed that a third of South Africans are so afraid of being attacked by criminals that they will not walk alone in public places and many people secure their homes against thieves and carry a gun for protection.[3] The Tribunal accepts that the issue of the racial motivation of the perpetrators of violence is a deeply contested issue and some prominent figures have made disparaging remarks against white people which have been interpreted as “hate speech”. However, whilst many South Africans and its observers believe that white South Africans are disproportionately affected by violence, this is not reflected in the reports or crime statistics. Although most South African government crime statistical reports do not specify the racial ethnicity of the perpetrators or the victims,[4] researchers have assessed the racial breakdown of crimes through other sources. In 2007, the Christian Science Monitor reported that “it is a war of the have-nots against the haves” and that “crime is apparently not racially motivated. It is black upon affluent black as well as black upon affluent white”.[5] The Economic Intelligence Unit has also stated that crime levels in South Africa are due to the fact that South Africa has one of the most unequal distributions of income in the word and that rather than race, the causes of South Africa’s crime levels are based in the legacy of apartheid which has created a violent society with high levels of gun ownership.[6]

   [1] UK Operational Guidance Note, 7 March 2013.

   [2] Silber, G. and Geffen, N. 2009, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December, p. 35.

   [3] McLea, Harriet 2011, ‘A nation living in fear’, Times Live, 24 November.

   [4] ‘Silber, G. and Geffen, N. 2009, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December.

   [5] Hughes, J. 2007, ‘South Africa’s rising wave of crime’, The Christian Science Monitor, 24 August.

   [6] ‘South Africa risk: Security risk’ 2008, Economist Intelligence Unit, 20 October.

6. The views expressed above are supported by numerous other sources, including Africa Check, a non profit and non partisan organisation founded in June 2012 to improve fact checking and news gathering throughout South Africa. Whilst South Africa Check also notes that South African government crime statistics do not identify the race of the victim or the perpetrator it considered an analysis undertaken by police in 2009 in a random national sample of 1378 murder dockets. In 86.9 per cent of the cases the victims were Africans. Whites accounted for 1.8 per cent of the cases although whites then comprised 8.85% of the population.[7] A study by Silber and Geffen which considered 2009 South African Police statistics found that “the victims are disproportionately African and coloured working class people” and “young men are disproportionately represented in the murder statistics”.[8] A research report by the Canadian Immigration and Refugee Board from 2013 also stated that the Internet site of Independent News and Media, a South African news and media group, reported that “about 80 per cent of violent crime happens in poor neighbourhoods, and usually by people who know their victims”.[9] A more recent report, “Killing by Numbers” also reported that the 2013/2014 South African Police Service annual report showed that five per cent of murder victims were children and 14 per cent were women – “most of whom were murdered by their intimate partners” and “by far the majority of victims (81%) were male”. The report also cites studies which show that acquaintances, friends or family members were the most likely perpetrators of the violence and victimisation surveys, police docket surveys and mortuary surveillance studies also showed that young black men were most at risk of falling victim to murders.[10]

   [7] Africa Check, 2013, ‘Are SA whites really being killed “like flies”? Why Steve Hofmeyr is wrong’, 24 June.

   [8] Silber, G. and Geffen, N. 2009, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December,

   [9] South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups, Immigration and Refugee Board of Canada, 28 May 2013.

   [10] ISS Africa 2015, ‘Murder by Numbers, 14 October.

7. As stated above, the Tribunal has accepted that the applicant genuinely fears harm in South Africa and her previous experiences have resulted in her suffering considerable anxiety and trauma. However, the Tribunal has also found that the applicant has not been targeted in the past for a Convention reason and the evidence discussed above indicates that the motive of the perpetrators of crime is considerably more likely to be based on perceptions of income and wealth inequality than on race. Again, without wishing to minimise or trivialise the applicant’s experiences, the only incident in which the applicant was physically harmed as a result of a criminal matter, occurred some 14 years ago. The Tribunal has found that there is a general level of violence arising out of criminal activity in South Africa, which affects the entire population, but some groups such as young black men or women in black townships, disproportionately with one commentator stating that people in “suburbs can buy security that people in townships cannot”.[11]  The Tribunal is not satisfied that the evidence indicates that white South Africans or white South African women or women have been targeted for generalised criminal activities because of their race or membership of a particular social group or that race or membership of a particular social group. In light of the independent evidence and the applicant’s previous experiences, the Tribunal is not satisfied that there is a real chance that she will be the victim of generalised crime and violence, such as burglaries, car-jackings, thefts or similar crimes as a result of her race or her membership of a particular social group of women, single women, white women, or any other particular social group, including wealthy persons or wealthy women, or as a result of her race or any other Convention reason. Nor is the Tribunal satisfied that there is a real chance her son will be the victim of generalised crimes for any Convention related reason.

   [11] Smith, David 2015, ‘Calls for inequality to be tackled in South Africa as violent crime rises’, Guardian,1 October.

8. The Tribunal accepts that the issue of sexual violence and rape raises different issues than generalised criminality in terms of the motivation of the perpetrators. The Tribunal accepts that in some circumstances such crimes are targeted at women or certain groups of women because of their race or membership of a particular social group. In the context of South African society, the Tribunal accepts that women or white women are a particular social group and white children or similar connotations could also be a particular social group in South African society. The Tribunal has had regard to the applicant’s claims that she is particularly vulnerable due to her previous experiences and has also regard to the applicant’s evidence regarding the experiences of some persons known to her, including her [Relative D] who was the victim of a vicious assault and her [Relative E] who was also gang raped. Again, whilst not wishing to trivialise the applicant’s genuine fears, the independent evidence discussed above indicates that the majority of crimes are perpetrated against black people and that black women living in poor townships have a significantly greater risk of suffering rape or sexual violence than white women. The reports also indicate that “in most case attackers were acquaintances or family members of the victim”.[12] The applicant has not claimed to have been the victim of sexual violence or rape in the past and her evidence indicates that she has always lived with other people for her own safety and she would continue to do so if she returned to South Africa. The Tribunal is not satisfied on the evidence before it that there is a real chance that the applicants will be the victims of rape or sexual violence or will contract HIV as a result of sexual crimes if they return to South Africa now or in the reasonably foreseeable future.  The Tribunal is also not satisfied that the evidence supports the applicant’s claims that her son has a real chance of being the victim of child rape upon his return to South Africa. The Tribunal is, therefore, not satisfied that there is a real chance that the applicants will suffer sexual violence, rape or similar crimes in South Africa.

   [12] United States Department of State 2016, South Africa  - Country Report on Human Rights Practices for 2016, 13 April, p. 31.

9. The Tribunal accepts that the applicant has not been employed in South Africa for several years and she and her son are well settled in Australia. The Tribunal also accepts that there are affirmative action employment policies in place to assist disadvantaged communities in South Africa. However, the applicant’s own evidence indicates that she has been employed in a [business] as a [position] and the Tribunal observed during the hearing that she appears to be resourceful and intelligent. As also discussed at the hearing, her evidence indicates that she has impressed previous employers, both in South Africa and Australia, with her skills and abilities, such that in South Africa she began employment as a [position] and was subsequently promoted to a team leader position for the [named business] where she worked for almost four years before coming to Australia. The Tribunal does not accept that the applicant’s previous trauma will render her “paralysed” such that she will be unable to obtain employment. The applicant worked for many years following the incident in 2002 and although she was again affected by the experiences in 2008, she has been able to re-establish herself in Australia with her son. The Tribunal is satisfied that the applicant will be able to obtain employment upon her return to South Africa. The Tribunal is also not satisfied that there is a real chance she or her son will suffer serious harm for this reason.

10. The Tribunal accepts that the applicant considers herself and her son to be particularly vulnerable due to the previous trauma she has suffered. However, the Tribunal is not satisfied that the applicant will be unable to re-establish herself and her son or that her previous experiences, or any trauma she experienced which is ongoing as a result of these experiences will be such that she will be unable to take measures for her own and her son’s safety, or that she will be unable to care for her son. Although her mother is deceased, her father has recently sold his home and is now travelling [independently], and she has limited contact with her siblings, the applicant’s own evidence also indicates that she has never lived on her own in the past. She told the Tribunal during the hearing that if she and her son returned to South Africa she would not live alone and she would obtain accommodation with other people. The Tribunal does not accept that the applicant, who has exhibited considerable concern for her son’s safety ahead of her own safety and needs, will fail to ensure that her son is safe and well cared for. The applicant has lived in South Africa almost all her life in an environment and is well aware of the safety measures required to assist in her own protection and that of her son. The Tribunal does not accept that the applicant, even after having lived in Australia for an extended period of time, will be unable to re-adjust to security measures she previously had in place to protect herself or that she will fail to put measures into place to protect her son and to teach him to protect himself in the context of South African society. The Tribunal accepts that the applicant will find it difficult to re-adjust to life in South Africa with her son, but is not satisfied that any difficulties in readjusting to life in South Africa or the requirement to ensure safety measures are in place to protect herself and her son will be for any Convention reason or that there is a real chance that she and her son will suffer serious harm due to any difficulties readjusting to life in South Africa or obtaining employment.

11. Furthermore, whilst white farmers have been disproportionately affected by violent attacks, recent reports indicate that there is evidence that the motive for most of the attacks on farms and small holdings is common criminality with robbery as a primary incentive.[13] In any event, as discussed with the applicant during the hearing, she is not a farmer and the Tribunal is not satisfied that there is a real chance that the applicant who is not and has not in the past been employed on a farm or lived on a farm will suffer serious harm for this reason. Nor is the Tribunal satisfied that there is a real chance that the applicant will be sought or targeted in the future by the fraudster or any members of the criminal syndicate who attempted to defraud the [business] where the applicant was employed in 2008. The Tribunal does not accept that the criminals would have retained her details or be motivated to find or locate the applicant several years after the incident occurred.

    [13] United States Department of State 2010, South Africa - Country Reports on Human Rights Practices for 2009, 11 March, sections 1 & 5.

12. Having considered the applicant’s claims, both individually and cumulatively, and their personal circumstances and characteristics, the Tribunal is not satisfied that they have a well founded fear of persecution for reasons of their white race, the applicant’s membership of a particular social group of white women, or single white woman or any other similar connotations, or her son’s membership of a particular social group of child, white child or for any perception that they are members of a particular social group of wealthy persons or any similar connotation of particular social group, or for any other Convention reason. The Tribunal finds, therefore, that the applicants do not have a well founded fear of persecution if they return to South Africa now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, that there is a real risk that they will suffer significant harm?

13. The Tribunal has accepted as stated above that the applicant has a genuine fear of returning to South Africa. The Tribunal accepts that the applicant has an understandable desire to remain in Australia with her young son who has lived and been educated in Australia for some years. The Tribunal found the applicant to be an intelligent and forthright witness and considers it unfortunate that her application for permanent residence was refused due to an administrative error in the completion of documentation provided to the Department. The Tribunal accepts that the applicant will find it difficult and challenging to return to South Africa, particularly because of the past trauma she has experienced, and this will undoubtedly also cause her son some stress and anxiety. However, for the reasons discussed below the Tribunal is not satisfied that the applicant’s past experiences or her fear of returning to South Africa meet the Complementary Protection provisions.

1. The Tribunal has accepted the incidents which occurred in 2002 and 2008 were frightening for the applicant and have led to her experiencing ongoing trauma. However, as discussed during the hearing, and as the Tribunal has found above, these crimes were random and the generalised crime in South Africa in the form of theft, car-jackings, burglaries and similar crimes affects the population generally and is not faced by the applicant personally. Section 36(2B)(c) provides states that there is taken not to be a real risk that the non-citizen will suffer significant harm if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Tribunal finds, therefore, that the applicant and her son are taken not to be at a real risk of generalised criminal violence in South Africa.

2. The Tribunal has accepted that sexual violence affects women particularly and that they are vulnerable because of their membership of particular social groups. In such circumstances, the “exception” to real risk does not apply to crimes such as rape and sexual violence of other kinds. However, the Tribunal has found above that the evidence indicates that black people, including black women, are disproportionately affected by violence and the majority of rapes and sexual violence occurs in those areas and is perpetrated by persons known to the victims, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm in the form of rape or sexual violence upon their return to South Africa.

3. The Tribunal has also accepted that the applicant genuinely fears harm in South Africa for herself and her son. However, the Tribunal is not satisfied that the applicant’s fear of future harm or her trauma in relation to her desire to not return to South Africa or the need to have security measures in place to ensure her own and her son’s safety amounts to significant harm. This is because the Tribunal is not satisfied that such fear amounts to arbitrary deprivation of life or the death penalty, which are the first two aspects of the definition of ‘significant harm’ as set out in s,36(2)(aa). The latter three aspects of significant harm, including torture, cruel and inhuman treatment or punishment and degrading treatment or punishment require an intentional element. The Tribunal is not satisfied that the applicant’s or her son’s fears of returning to South Africa or the need to ensure safety procedures are intentionally inflicted.

4. Therefore, the Tribunal is not satisfied that the applicants will suffer significant harm, which includes arbitrary deprivation of their life, the death penalty torture, cruel or inhuman treatment or punishment, and degrading treatment of punishment, for any reason upon their return to South Africa. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, that there is a real risk that they will suffer significant harm.

   CONCLUSIONS

5. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

7. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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; 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.’

   Refugee criterion

8. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

9. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

   ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

10. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

11. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

12. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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.