1511441 (Refugee)

This matter concerned an application for a protection visa by a white South African national. The applicant claimed to have fled South Africa in 2002 following two traumatic violent events: an armed robbery at his business in 1989 and a brutal attack on his farm in 1998, which resulted in the deaths of his wife and several others. The Administrative Appeals Tribunal (AAT) considered the applicant's claims and independent country information regarding South Africa.

The AAT was required to determine whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess whether the applicant was a refugee under section 36(2)(a) due to a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the Tribunal had to consider if the applicant qualified for complementary protection under section 36(2)(aa), meaning there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to South Africa, there was a real risk of suffering significant harm.

The Tribunal found that the applicant did not satisfy the refugee criterion under section 36(2)(a). While acknowledging the severe trauma the applicant had experienced, the Tribunal's reasoning, as indicated by the decision, did not establish that the fear of persecution was for one of the prescribed reasons, or that the risk of persecution related to all areas of South Africa, or that effective protection measures were unavailable. Furthermore, the Tribunal determined that the applicant did not meet the criteria for complementary protection under section 36(2)(aa). The decision implies that the circumstances of the attacks, while violent, were not found to constitute a real risk of significant harm as defined by the Act, or that such a risk was faced by the population generally rather than the applicant personally.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant did not satisfy the criteria in section 36(2) of the Act, nor was there any suggestion that he was a member of the same family unit as a person who held a protection visa and met the criteria.