1516302 (Refugee)

1516302 (Refugee) [2017] AATA 1381 (25 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516302
COUNTRY OF REFERENCE:                  South Africa
MEMBER:Christopher Smolicz
DATE:25 July 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 25 July 2017 at 11:01am
CATCHWORDS

Refugee – Protection visa – South Africa – Race – Coloured – Crime rate – Police inefficiency and corruption – Employment prospects

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES

Calado v MIMA (1997) 81 FCR 450
MINA v Haji Ibrahim [2000] HCA 55

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

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).
The applicants who claim to be citizens of South Africa, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] October 2015.
The applicants appeared before the Tribunal on 14 June 2017 to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee or complementary protection criteria because of:
·their race,
·generalised crime and violence in South Africa
·the difficulty securing employment in South Africa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first named applicant (the applicant) and the second named applicant were born in South Africa. They are married and have two [children]. They arrived in Australia with their two sons in December 2013 as holders of [temporary] visas.
The second named applicant has not made her own claims for protection but is claiming protection as a being a member of the applicant’s family unit. The applicants’ two sons have made separate claims for protection.[1]
[1] See MRD files 1516304 and 1516303
The applicants lived in Cape Town, South Africa and are actively involved in [Organisation 1]. The applicant was the CEO of [Organisation 1] for six years. In October 2012 they travelled to Australia to attend an [event] in [Australia] as an international [judge].
Summary of substantive claims
The applicants’ declared their Ethnic group to be coloured South African and their religion as Christian.
The applicants came to [Australia] and upon arrival learnt of Mandela’s death. They decided to apply for asylum when they realised how peaceful life was in Australia. They feel safe in Australia. They claim that in South Africa violent demonstrations seem to be a daily happening. Crime levels are high and you do not know whether you will be targeted for gang shootings, muggings or rape.
Their eldest son was robbed at gunpoint. They reported this to the police who attended the area and then left. Their youngest son was robbed of his cell phone on his way home from school. They did not report this to the police because nothing would have been done. Their car was broken into and the police took longer than 24 hours to respond.
The applicant fears their children will get involved or forced to be involved in drugs as there is a drug house around the corner where they live. The applicant fears his children will be forced into gangs. There is no one stopping the ‘drug lords’ in his area. The drug lords operate with impunity. The youngsters in the gangs are armed with firearms and have no regard for life. The police are ineffective, corrupt and understaffed. They respond to calls hours later and do nothing about the drug dens in the area. The police accept bribes. Nothing is done about the corruption in the ruling party.
Tribunal hearing
The Tribunal found the applicants to be credible witnesses whose evidence at the hearing was largely consistent with their written claims. They did not seek to embellish their claims and gave their evidence in a forthright manner based on their personal experiences living in South Africa.
At the hearing the applicant repeated his written claims that South Africa was a dangerous and corrupt country where life is cheap, violence and theft were prevalent. He claimed that he had to stop carrying a fire arm because it became too easy to shoot someone. The applicant said that his family felt safe in Australia.
The Tribunal asked the applicant if he had experienced harm in South Africa. In response the applicant said that on one occasion his car was broken into and personal items were stolen.
The Tribunal explained to the applicants that the first issue it must determine is if they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal explained to the applicants that their claims related to a fear of generalised violence and corruption in South Africa.
The applicant said that he was not involved in politics and has not had any trouble with the authorities in South Africa. He has no problems attending his local church with his family in South Africa.
The applicant said that society in South Africa is divided into three races: ‘White, Coloured and African’. The applicant said that life was difficult for coloured South Africans in Cape Town due to the increase numbers of ‘black South Africans’ in his home area.
The Tribunal asked the applicant if he had experienced persecution in South Africa based on his race. The applicant said that on one occasion an African man came to their house and claimed the house belonged to him. The Tribunal asked the applicant to explain how it was relevant to his race. The applicant said it was a scam that happens a lot in Africa and he chased the person away and did not have any further problems. The applicant was unable to explain why he thought the incident was racially motivated. The Tribunal has had regard to the applicant’s evidence and is not satisfied that the incident was racially motivated.
The Tribunal referred the applicant to the delegate’s decision where he claimed he will experience difficulty obtaining employment. The applicant said that unemployment was high in South Africa and it was difficult to secure employment in Cape Town. The Tribunal noted that the applicant and his wife have been working for many years in South Africa and have skills and experience that would enable them to find employment.
The applicant said that he and his wife are close to the pension age which makes securing employment more difficult but conceded that he and his wife are members of a pension fund in South Africa and still own their own house in Cape Town.
During the Departmental interview the applicant claimed it would be difficult to secure employment because under the current government in South Africa preference is given to black South African employees.
[The eldest son] also gave evidence at the hearing. He worked as [occupation]. He would normally finish work late in the evening and would need to catch a bus home. He fears attending at the bus stop. On one occasion in 2013 he was held up at gun point. His bag, phone and wallet were stolen. He reported the incident to the police. He claims nothing happened and the report was quashed because one of the criminals was the son of a local police officer. He made a second police report. He does not know the outcome of the police investigation because he departed to Australia soon after the report was made and has not been able to follow up its progress.
[The first applicant] said that there is a park opposite their home in Cape Town. The park is frequented by drug dealers. The police do little to stop the drug dealers because they all grew up together in the same neighbourhood. The police are ineffective and ignore her complaints.
[The second son] said that he fears generalised crime and violence. He referred the Tribunal to the incident when his phone was stolen when he was returning home from school. He said he was about [age] or [age] years old at the time. He also witnessed a fight in front of his house where one person was being beaten up by a group of people.
Findings
For the reasons discussed below the Tribunal is not satisfied that the applicants’ past experiences or their fear of returning to South Africa meet the refugee or Complementary Protection provisions.
The applicants entered Australia on South African passports issued in their own names. The Tribunal accepts that the applicants are nationals of South Africa and assessed their claims against South Africa for the purposes of s.36(2)(a) and as the receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).
As detailed above the applicants’ described their ethnic group to be “Coloured”.[2] As detailed in the delegate’s decision the apartheid regime in South Africa categorise the population based on perceptions of race, for example black, white and coloured. The 2014 US State Department “Human Rights” report refers to the “coloured” designation as “a heterogeneous, mixed-race ethnicity recognised by the government’’.[3]
[2] Ethnicity is not a Convention ground however, it is a concept that is readily subsumed within the Convention ground of ‘race’: Calado v MIMA (1997) 81 FCR 450 at 455.
[3] >
The applicants claim that they fear returning to South Africa due to generalised violence, crime, corruption and an ineffective police force. They fear that their children will be drawn into drugs and gang violence in South Africa. The applicants also claim that they may face discrimination securing employment because they are coloured South Africans and there is a disproportionate number of black South Africans arriving in Cape Town.
Crime and race
The UK Operational Guidance Notes provide the following information about crime in South Africa:
South Africa has one of the highest violent-crime rates in the world. In 2011, however, rates of murder (31.9 per 100,000), attempted murder (31 per 100,000), assault (397.3 per 100,000), carjacking (21.3 per 100,000), and various forms of robbery all declined significantly from previous years. At the same time, rape and sexual assault rates increased. The country‘s high crime rates, along with concerns about police capabilities, have fuelled regular incidents of vigilantism and a burgeoning private-security industry. The government hired and trained an additional 40,000 police officers in advance of the World Cup, most of who remained on the job to bolster the undermanned police force. Civic groups and opposition parties have routinely accused the government of doctoring crime statistics and of failing to release sufficiently up-to-date statistics to the public.
Whether white South Africans or coloured South Africans are disproportionately targeted by criminals and if so, whether it is because of their race or some other reason the Christian Science Monitor reports that it is a ‘war of the have-nots against the haves’:[4]
Crime is apparently not racially motivated. It is black upon affluent black as well is black upon affluent white. It is the war of the have-nots against the haves. Last month Dumisani Kumalo, South Africa’s black ambassador to the United Nations, returning from New York to Johannesburg, was tracked from the airport to his suburban home, where his party was held up at gunpoint by robbers demanding wallets, cellphones, and luggage.[5]
[4] J. Hughes, ‘South Africa’s rising wave of crime’, The Christian Science Monitor, 24 August 2007 accessed at
[5] Ibid.
Gavin Silber and Nathan Geffen observed:
[E]veryone in South Africa has affected by crime, and the consequent sense of insecurity that comes with living in fear.[6]
[6] , ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis,’’ SA Crime Quarterly, No 30, December 2009, p. 35.
Numerous reports reference the decision of the South African government to not provide the racial ethnicity of perpetrators or victims in reporting crime statistics.[7] Accordingly, researchers have tried to assess the racial breakdown of crime through other sources.
[7] G. Silber & N. Geffen, , ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis,’’ SA Crime Quarterly, No 30, December 2009; Africa Check, ‘Are SA whites really being killed “like flies”? Why Steve Hofmeyr is wrong’, 24 June 2013; US State Department Report on Human Rights in South Africa 2013; as well as A. Stuijt, Dr. G Stanton, and S. Hofmeyr.
Silber and Geffen considered the mortality data of Stats SA reported in 2002,[8] records of the Medical Research Council in 2004,[9] and a 2009 random sample of police dockets in one district by the Centre for the Study of Violence and Reconciliation. [10]
[8] Causes of death in South Africa 1997 – 2001: Advance release of recorded causes of death, Stats SA: 2002.
[9] Silber & Geffen, p. 40.
[10] Ibid.
They noted cultural issues of under reporting of crime generally, but found that very few murders go unreported. Focussing on the murder rate then, the authors looked at the 2009 South African Police Statistics, which recorded that:
In 2008/2009 18,148 people in South Africa were murdered. This amounts to 37.3 people per hundred thousand, or just under 50 per day. [11]
[11] Ibid.
The authors stated:
Cape Town is the South African city that best exemplifies the uneven distribution of resources that renders this country one of the least equal societies in the world in terms of income…. It also happens to fall into one of the most violent provinces in the country…. We have analysed Cape Town’s crime data to illustrate the extent of serious and violent crime, and who was most affected by it.
…
A recent study carried out by the city of Cape Town contains a breakdown of crimes under investigation by each police district in the year 2007/2008. The results indicate a significant disparity between homicide and rape cases in low income areas when compared to wealthier and traditionally white communities.[12]
[12] Silber & Geffen, pp 39-40.
The Tribunal accepts the applicant’s evidence that his car has been broken into, that their eldest son was robbed at gun point and their youngest son’s mobile phone was stolen. The Tribunal also accepts that on one occasion someone tried to scam the applicant that they were the true owners of his property. The Tribunal also accepts that the applicants live in a part of Cape Town where drug gangs are prevalent and the local police are corrupt and ineffective. The Tribunal accepts that the applicants have a genuine fear of criminal harm and violence.
The Tribunal finds that there is a very high level of crime in South Africa and according to the country information it affects all racial groups. The Tribunal finds that given the widespread nature of crime in South Africa the Tribunal is not satisfied that the criminal harm feared by the applicants involves systematic and discriminatory conduct. As detailed in the delegate’s decision, the High Court found that ‘systematic and discriminatory’ conduct requires selective harassment rather than situations of random violence.[13] The Tribunal finds that the criminal problems experienced by the applicants in South Africa were random criminal incidents that impact on society as a whole. As detailed above the Tribunal does not accept that the criminal incidents described by the applicants were racially motivated and the applicants were targeted because they were coloured South Africans. Accordingly, the Tribunal finds that race was not the essential and significant reason for the harm perpetrated against the applicants and their children.
[13] MINA v Haji Ibrahim [2000] HCA 55
In conclusion, the Tribunal accepts that there is a very high level of crime in South Africa and that it appears to affect all racial groups The Tribunal finds that there is nothing to indicate that the applicants’ fear of general crime and violence in South Africa is because of their race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that there is a real chance that the applicants will face serious harm if they return to South Africa in the foreseeable future because of their race.
Police inefficiency and corruption
The applicant and his wife have also referred to the inability and/or unwillingness of the South African police to protect them and their family due to corruption within the police force and the level of familiarity between the criminals and the police. There was no suggestion by the applicants at the hearing that they would be denied police protection because they were coloured South Africans.
While shortcomings in police enforcement are evident, a UK Operational Guidance Note found that the South African constitution and laws provide for an independent judiciary, and the government generally respected judicial independence and practice. However, the UK Operational Guidance Notes also observes that the judiciary was understaffed and underfunded, and there were reports that legal documents used in trials were lost.^[14]
[14] UK Operational Guidance Note, 7 March 2013, para 2.2.13.

The UK Operational Guidance Note reports that despite continued efforts to professionalise, the SAPS remained under staffed, ill equipped, and poorly trained. Law enforcement activities remained focused on wealthy residential and business areas. Police are badly underpaid, and corruption in the SAPS is a significant problem.[15]
[15] UK Operational Guidance Note, 7 March 2013.
The Tribunal finds that corruption, inefficiency and poor training within the SAPS impacts on all members of South African society.
Although the South African government investigates and prosecutes officials who commit abuses, numerous reports of impunity of abuses by government officials were noted in the US State Department’s 2013 report in relation to South Africa:
The government investigated and prosecuted security-force members who committed abuses, although there were numerous reports of police impunity, including of high-ranking members…. IPID, an independent and external body, investigates all complaints and makes recommendations to the SAPS inspectorate division that handles disciplinary matters and to the National Prosecuting Authority (NPA) on which cases to prosecute. IPID investigated cases of police abuse. Law enforcement activities remained focused on wealthy residential and business areas.
During the 2012-13 reporting period, IPID received 6,728 complaints against police, compared with 5,869 complaints the previous year, including allegations of killings, assaults, and other misconduct. Of these, IPID investigated 1,088 cases, of which 545 were found to warrant criminal charges and were recommended for prosecution. Police arrested 125 SAPS members, leading to 57 criminal convictions and 21 acquittals. IPID referred a further 1,040 cases to SAPS on issues of misconduct, such as unauthorized use of state vehicles, leaking information, or dereliction of duty; 84 cases resulted in disciplinary action. Sentences for officers found guilty of misconduct ranged from verbal warnings to fines and dismissal from service. [16]
[16] US State Department Human Rights Practices Reports 2013 - South Africa, 27/2/14, >
The Tribunal accepts that given the inadequate levels of police resource, training and corruption the police response can be inadequate in South Africa. The Tribunal finds however that there is no evidence to suggest that the applicants would be denied police protection in South Africa for any Convention based grounds in the reasonably foreseeable future.
In conclusion the Tribunal finds that the applicants do not face a real chance of serious harm and systematic and discriminatory conduct directed at them for the essential and significant reason of their race or any other Convention related ground. The Tribunal finds that the applicants do not face a real chance of persecution now or in the reasonably foreseeable future if they return to South Africa. Their fear of persecution is not well-founded.
Future employment
South African legislation allows for affirmative action measures in relation to previously disadvantaged groups. Notable legislation includes the Employment Equity Act 1998. The Act prohibits unfair discrimination against employees on a number of grounds, including race, ethnic or social origin and religion. The Act also indicates that it is not unfair discrimination to ‘take affirmative action measures consistent with the purposes of this Act’.[17]
[17] Republic of South Africa 1998, ‘Employment Equity Act 1998’, No. 55 of 1998, South African Department of Labour website, Section 6, >
The law requires employers with 50 or more employees to ensure that previously disadvantaged groups, legally defined as “blacks” (including “Africans,” “Coloured,” and “Asians,” and collectively constituting more than 90 per cent of the population) be represented adequately at all levels of the workforce.[18]
[18] Country Reports on Human Rights Practices for 2014 United States Department of State • Bureau of Democracy, Human Rights and Labor >
The Employment Equity Act protects all workers against unfair discrimination on the grounds of race, age, gender, religion, marital status, pregnancy, family responsibility, ethnic or social origin, colour, sexual orientation, disability, conscience, belief, political, opinion, culture, language, HIV status, birth, or any other arbitrary ground.[19]
[19] Ibid
The South African government, as an emerging democracy, also maintains a number of safeguards in relation to human rights violations, included the government-based South African Human Rights Commission (SAHRC). The SAHRC operates independently and is responsible for promoting the observance of fundamental human rights at all levels of government and throughout the general population. The SAHRC also has the authority to conduct investigations, issue subpoenas, and hear testimony under oath. According to the 2013 US State Department report, the government reacted positively to the SAHRC reports and was responsive to its views.
As detailed above the Tribunal finds that the affirmative action policies in place in South Africa are in place to benefit previously disadvantaged groups which include coloured South Africans as well as black South Africans. The Tribunal is not satisfied that the employment laws in South Africa operate in a systematic and discriminatory way so as to deny the applicants a capacity to subsist because they are coloured South Africans.
Country information detailed in the delegate’s decision confirms that South Africa has extremely high levels of unemployment. The Tribunal also notes that applicant is now [age] years old and his wife is [age] years old. The Tribunal accepts that any difficulty finding employment may be due to the general economic situation in South Africa and the applicants’ age and not due to systematic and discriminatory conduct.
The Tribunal notes however that the applicants have been able to acquire a diverse range of skills and work experience having worked in various fields of employment South Africa and Australia. For example, prior to arriving in Australia the applicant worked in [various sectors]. The second named applicant worked as [occupations] working for [Organisation 1]. The Tribunal also finds that despite their ages the applicants have obtained work [in] Australia.
The Tribunal is not satisfied that there is a real chance the applicants will face any serious harm such as being denied a capacity to subsist because of their race if they return to South Africa in the reasonably foreseeable. The Tribunal finds that the applicants’ fear of serious harm because of their race is not well-founded.
Complementary protection criteria
The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk they will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
As discussed during the hearing, corruption, random and generalised crime in South Africa in the form of theft, burglaries and similar crimes affects the population generally and is not faced by the applicants 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 applicants are taken not to be at a real risk of generalised criminal violence in South Africa because of any characteristic which distinguishes them from the general population.
Having regard to the applicants’ profile and personal circumstances there is nothing in the evidence before the Tribunal to suggest that the applicants are personally at risk except insofar as the population of the South Africa generally faces a real risk of significant harm.
The Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to South Africa, there is a real risk they will suffer significant harm as defined in the Act for any reason.
For the reasons given above the Tribunal is not satisfied that any 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), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
Member

[2017] AATA 1381

25 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction