1604355 (Refugee)
[2019] AATA 6804
•24 September 2019
1604355 (Refugee) [2019] AATA 6804 (24 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1604355
COUNTRY OF REFERENCE: South Africa
MEMBER:Susan Hoffman
DATE:24 September 2019
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 24 September 2019 at 12:59pm
CATCHWORDS
REFUGEE – protection visa – South Africa – particular social group – security professionals in South Africa – white male facing legislative discrimination through affirmative action – race – white Afrikaners – religion – conservative Christians – complementary protection – testimony against criminal gangs – fear of killing – no police reports – applicant remained at employer – return visit to South Africa – effective protection – fear of sexual violence – employment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Haji Ibrahim (2000) 204 CLR 1
Prahastono v Minister for Immigration [1997] 50 ALD 345
SZALZ v Minister for Immigration [2004] FMCA 275
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants, who claim to be citizens of South Africa, applied for the visas on 10 November 2014 and the delegate refused to grant the visas on 15 March 2016.
3. The applicants appeared before the Tribunal on 2 July 2019 to give evidence and present arguments.
4. The applicants were not represented in relation to the review by a registered migration agent. The hearing was conducted in English.
CONSIDERATION OF CLAIMS AND EVIDENCE
5. 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.
6. 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).
7. 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.
8. 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’).
9. S.36(2A) sets out that a non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
S.36(2B)(c) sets out three circumstances in which there is taken not be real risk of significant harm. These are:
· where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
· where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
· the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no DFAT country information report for South Africa.
The issue in this case is whether all or any of the applicants meet the criteria for grant of a protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, protection claims, and the delegate's decision
The main applicant is the father. The other applicants are his wife and their two children, a son aged [age] years old and a daughter who turned [age] years old in August 2019.
The applicants claim to be citizens of South Africa. The Tribunal accepts that they are citizens of South Africa and that South Africa is their country of nationality and receiving country.
The Tribunal is satisfied on the evidence before it that the applicants do not have a right to enter and reside in any other country, and therefore, the Tribunal finds that they are not excluded from Australia's protection obligations under s36(3).
The main applicant (henceforth the applicant) was in Australia visiting friends between [dates in] December 2010 and [January] 2011. He lodged a visitor visa [application] on 12 March 2014 and between 12 April 2014 and 30 April 2014, he and his wife were in Australia visiting friends.
On 15 August 2014 the applicant arrived in Australia with the other applicants on the [visitor] visa. The applicant lodged a protection visa application on 10 November 2014. The other applicants did not make protection claims in their own right at that time but as members of the applicant’s family.
The applicants attended an interview with the delegate on 29 February 2016. According to the delegate’s decision, the applicant’s claim for protection arose from his employment with a private security company, [Business 1]. His role was to manage the security department of a large [product] company, [Business 2], located in [City 1], South Africa. The following claims were made:
During his time with [Business 2], the applicant was responsible for bringing a lot of criminals within the company to justice and has testified against them at company disciplinary hearings and at the Council for Conciliation, Mediation and Arbitration (CCMA). Some of whom he testified against have been linked to [criminal] gangs, most of them were dismissed and at times charged with criminal offences.
- During the last two years [some Business 2] employees were shot and killed.
[In] April 2007 the applicant received a threatening text message which said “everything you care about will vanish in front of your own eyes”. Police investigated but were unable to find who sent the message.
In 2008 the applicant’s [Vehicle 1] was sabotaged when it was in the [Business 2] parking bay. No suspects were observed.
[Details of a crime committed at Business 2]
In July 2009 the applicant testified against [Business 2] staff who had been involved in violence during an industrial strike. They were dismissed from the company on the basis of his testimony.
On [a date in] July 2013 a telephone call between two [Business 2] employees ([Mr A] and [Mr B]) was captured via [Program 1] which was prompted by [a colleague’s dishonesty in connection with a] theft. The call detailed a conspiracy to commit armed robbery, theft and to assassinate the applicant.
Because of this call, the applicant altered his route to work, and his start and finish times. He was followed home twice.
He cannot rely on the police for protection because they have failed him in the past. His company safeguarded his residence but that does not give him peace of mind.
The delegate recorded that the applicant’s representative submitted the following:
The applicant had worked at [Business 2] for [number] years.
In his role as [position], he managed security, investigations and operations.
He investigated and exposed crime, corruption and crime syndicates operating in [Business 2’s industry].
Since 2007 he has received threatening messages and in 2008 his [Vehicle 1] was tampered with.
The applicant, his wife and children have received death threats.
A hit was organised against the applicant.
The threats were reported to the police but no progress has been made.
The applicant cannot rely on state protection.
The delegate recorded that the applicant made the following relevant statements during his interview with the delegate:
The transcript of the phone call of [the date in] July 2013 was not provided to the police because the evidence was obtained without a warrant (it was obtained by [Business 2] internally).
The applicant did not alert the police to a possible threat against him because [Business 2] did not permit him to do so. He also thought that doing so would hasten his death.
The applicant does not know the reason or motive for the killings of the [Business 2] employees.
The applicant did not report the [Vehicle 1] incident to the police. After that incident, he drove a marked company vehicle to and from work each work, despite requesting an unmarked car.
Criminal syndicates have been targeting [Business 2] for their [raw materials].
The applicant has received other threatening text messages and calls but has no copies of them.
There have been no criminal prosecutions in relation to illicit activity taking place at [Business 2]; the employees involved were simply dismissed. [Business 2] did not report these matters to the police for investigation and prosecution.
The applicant left his job because he felt unsafe working there and he informed [Business 1] in writing that was the reason for resigning.
To his knowledge, no one at [Business 2] or [Business 1] has been harmed by the criminal gangs referred to by the applicant, in connection to their employment.
The applicant does not know where the two conspirators ([Mr A] and [Mr B]) are or whether they have been charged or prosecuted.
The applicant believes that if he returns to South Africa, [Mr A] and [Mr B] will assassinate him. A lot of other people would want to kill him too because of the reports he wrote as part of his security role. In this role he was responsible for many people losing their jobs and for uncovering criminal activity within and against [Business 2].
The applicant continued to work for [Business 1] at [Business 2] after the plot to kill him came to light because the investigation into illicit activity was not finished, he had to tie up loose ends, he was passionate and loyal and could not just leave, he was earning a good salary and it took him a while to get his protection visa application sorted.
The delegate recorded that relevant information was put to the applicant who then responded as follows:
It was put to the applicant that he remained working for [Business 2] in [City 1] despite the threats and dangers for over 11 years, and did not change company, workplace or city.
The applicant responded that he moved into a more secure townhouse, varied his route to work and his hours of work. His family members were guarded about what personal information they revealed to other people. His children were at school so it was not feasible to move and they do not have relatives elsewhere in South Africa. His wife had a stable job in a good company and they would not have been able to survive on a single salary. Their only option was to come to Australia.
It was put to the applicant that he did not leave South Africa until eight months after learning of the plot against his life. He went to Australia and after a few weeks he returned to South Africa before leaving again.
The applicant said that it was during his time in Australia that he decided to move here. Moving was a big step and he had to return to South Africa to tie up loose ends. For example, he had to sell property and convince his family about the move. He also needed to obtain documentation from his work that would support his protection visa application, and he would not have been able to do that from Australia. He said his son’s passport took three months to be issued. When he resigned the applicant gave just two weeks’ notice. The applicant said the migration agent advised him not to return but he felt he had to in order to get evidence of his claims.
The delegate recorded that they found the applicant to be a credible witness who answered questions in a forthright manner and did not seek to embellish his claims. The delegate accepted that the specific incidents relayed by the applicant (for example, the tampering with [Vehicle 1]) occurred as the applicant stated.
The delegate was not satisfied that the applicant’s protection claim could be considered under the refugee criteria as his claim essentially arose from his employment as a security manager for a [product] company. It was not on the basis of his race, religion, nationality or political opinion leaving ‘membership of a particular social group’ (PSG) as the remaining option. Two possible PSGs were mentioned; security professionals in South Africa and security professionals in South Africa who have detected and reported organised crime in South Africa. The delegate was not satisfied that either of this groupings met the criteria to be found to be PSGs; being in the same occupation or discharging similar responsibilities may be shared characteristics but do not constitute a PSG.
The delegate then considered the applicant’s protection claim against the complementary protection criteria.
The delegate recorded that some of the incidents cited by the applicant were so far back in time they attracted little weight when assessing the risk of significant harm to the applicant should he return to South Africa.
The delegate found it implausible that a person who was the subject of a conspiracy to assassinate him would not report this to the police. The delegate stated that the lack of reporting cast doubt on the seriousness of the threat as did the delay by the applicant in resigning from his job and leaving South Africa.
The delegate observed that neither the applicant nor his family experienced any serious harm after the phone call which contained the assassination threat, and that the applicant did not change company, town or province to minimise or eliminate the risk of serious harm.
The delegate was not satisfied there was a real chance the applicant would be subject to significant harm if he returned to South Africa.
Findings and reasons
In order to make its determination as to whether or not the applicant meets the criteria for a protection visa, the Tribunal has considered the evidence before it including the sworn evidence of the applicants as given during the hearing. The Tribunal acknowledges the challenges facing applicants at a formal hearing where they are required to give evidence and to recall events from many years ago. In general terms, if the account given by an applicant is credible then the Tribunal considers it appropriate to extend the benefit of the doubt regarding claims that the applicant is unable to substantiate. At the same time, the Tribunal is required to critically evaluate the evidence given by an applicant as there is the possibility that details can be embellished to strengthen a claim, even when the Tribunal is satisfied that the applicant is generally credible.
In this case the Tribunal was satisfied that the applicants were in the main truthful in giving their evidence. It accepts that when they spoke about particular incidents, these incidents had occurred as described or as the applicants perceived them to have occurred at the time. However the Tribunal also formed the view that at times the applicants ascribed greater significance to particular issues or events than they warranted, and in so doing have mischaracterised them. The Tribunal was not satisfied that claims made about what had happened since the applicants left South Africa could be relied upon as being accurate and formed the view that claims made in relation to individuals connected with [Business 2] had been embellished.
The applicant had provided a significant amount of documentary evidence to the Department which was before the Tribunal. This included, for example, security incident reports generated during the 11 or so years the applicant was employed at [Business 2] in charge of security at the [City 1] facility.
Prior to the hearing the applicant provided the contact details of [Witness A] whom he described as an expert witness. [Witness A] was in contact with the AAT’s registry before the hearing to enquire as to the best way to submit over 500 electronic documents on behalf of the applicants. He submitted these documents on a USB drive.
These documents include statutory declarations from each of the four applicants. In the applicant’s statutory declaration, he wrote that their application as twofold whereby they were applying for protection through (1) the complementary protection grounds and (2) on the basis of having a well-founded fear of persecution and would experience serious harm on one of four grounds (individually and cumulatively):
Being white
Conservative Christian values
Ethnicity as a members of the Afrikaner (Boer) community
Gender as a white male facing legislative discrimination through affirmative action
The four grounds related to the Refugee Convention. Under a sub-heading “complementary visa considerations” the applicant referred to his role as a security manager at [Business 2] and discriminatory work practices through affirmative action and other issues to do with race and ethnicity. The Tribunal is satisfied that the applicant’s claim related to his work with [Business 2] is properly considered under the complementary protection criteria. It agrees with the delegate’s assessment that this claim essentially arose from his employment as [Business 2’s] security manager and was not on the basis of his race, religion, nationality or political opinion. That leaves ‘membership of a particular social group’ (PSG) as the remaining option whereby the possible PSGs could be security professionals in South Africa and/or security professionals in South Africa who have detected and reported organised crime in South Africa. The Tribunal is satisfied that neither grouping meets the criteria to be found to be PSGs as being in the same occupation or discharging similar responsibilities may be shared characteristics but do not constitute a PSG.
The applicant explained in his statutory declaration that he did not make a claim at the departmental interview based on race or identifying as a white Afrikaner because he did not want to be perceived as a white racist complaining about his treatment in his homeland, as Australia in 2014 was not aware or sensitised to the racial tension in South Africa which has worsened since that time. He also wrote that his migration agent advised him not to make the matter about a racial issue.
The second applicant (the applicant’s wife) did not make a protection claim in her own right before or at the delegate’s interview. Prior to the Tribunal’s hearing she lodged a statutory declaration dated 24 June 2019 in which she made claims to be found to be a refugee on the following grounds (individually and cumulatively):
Being white
Conservative Christian values
Ethnicity as a members of the Afrikaner (Boer) community persecuted by the African majority
Gender as a white female facing legislative discrimination through affirmative action (AA) and Employment Equity (EE) legislation.
The second applicant clarified her claims based on gender. In relation to the AA and EE legislation she wrote that her ability to freely access work to ensure her family’s basic means of survival was seriously restricted as she can only secure gainful employment within approximately 8% of the available national workforce because of the “racial quota” system that applies in South Africa.
She also wrote in relation to persecution and being female, of sexual violence and rape, particularly in South Africa, referring to the dynamics that shape the power relations with regard to men who target European women as easy prey.
The second applicant also wrote about her mental health, stating that she suffers from post-traumatic stress disorder (PTSD) and still experiences panic attacks due to past trauma experienced while living and working in South Africa. She expressed concern that her mental health might affect her ability to give evidence at the Tribunal’s hearing as she might forget or confuse dates. Her statutory declaration was 13 pages long and included accounts of specific incidents to support her overall protection claim. The Tribunal will return to these later.
The third and fourth applicants, the son and daughter, similarly did not make protection claims in their own right before or at the delegate’s interview. Prior to and at the Tribunal’s hearing, they each made claims to be found to be a refugee on the following grounds (individually and cumulatively).
Being white
Conservative Christian values
Ethnicity as a members of the Afrikaner (Boer) community persecuted by the African majority
Gender as a white male or a female facing legislative discrimination through affirmative action (AA) and Employment Equity (EE) legislation.
In addition the son spoke of a death threat he received from an individual at a [location]. The daughter referred to being in an abusive relationship when she was in South Africa. The Tribunal took evidence in relation to these to which it will return later, as well as to other claims raised in the written statements each made on 10 June 2019.
The Tribunal will proceed on the basis that the mother’s claims to do with rape, sexual violence, and power relations between men who target European women in South Africa as easy prey apply equally to the daughter.
The Tribunal will first consider the claims that apply to all four applicants, to do with “being white”, having conservative Christian values, ethnicity as members of the Afrikaner (Boer) community and the AA and EE legislation. It will then return to the claims made that are specific to one or two of the applicants.
Before considering their claims, the Tribunal will address the question of witnesses. In his response to the hearing invitation, [the applicant] identified two witnesses. The relevant AAT form states as follows:
You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.
The two witnesses from whom [the applicant] requested the Tribunal take oral evidence were [Witness A] and [Psychologist A], a clinical psychologist. [The applicant] described [Witness A] as an expert witness. [Witness A] gave his background as follows:
[Number] years’ service as an officer [in the] South African [Army] with operational experience in [specified areas].
[Researcher] on [oppression and] politically motivated [persecution].
The AAT website sets out certain information about expert witnesses.[1] It states that a person giving evidence based on his or her special knowledge or experience in an area has an overriding duty to provide impartial assistance to the AAT website on matter’s relevant to the person’s area of knowledge or experience and is not an advocate for a party to a proceeding.
[1] Kerr, D. (2015) Administrative Appeals Tribunal: Persons Giving Expert and Opinion Evidence, accessed 18 July 2019 at >
The Tribunal would expect an expert witness who submitted written material to provide a report that set out his or her qualifications and/or experience, details of published works if any, and a summary of findings or similar, supported by more detailed analysis.
The USB submitted by [Witness A] was called Genocide in South Africa. It included the statutory declarations and statements made by the applicants referenced above. It included videos from various public figures such as Fraser Anning, Katie Hopkins and Stephen McNallen. It included a Master of Arts dissertation from a Mr M.C. G. Gumbi dated 2017 called “An investigation of the motivational factors for farm attacks and its consequential injurious phenomena.”
The USB included lists of crimes, crime statistics and various graphs. There was no report (as one would expect from an expert witness) explaining the relevance of these statistics, pulling them together, or analysing the data provided. Many of the graphs were about attacks on or murders of South African farmers, and more generally in rural areas, yet none of the applicants are or were farmers, or resided in rural areas of South Africa.[2] (As discussed below, the applicants said that they were regarded as being the same as Boers and white farmers. The word ‘Boer’ means farmer.)
[2] The second applicant referred in her statutory declaration to visiting the family farm when she was ten years old but there was no suggestion that she was residing on a farm during a period relevant to this review. Her educational and employment history as provided to the Department show that she has lived in [City 1] since at least 1984.
Some of the pages in the USB were screen grabs from videos or copies of newspaper articles that showed the headline and a photo but little else. There were also statistics that appeared to be snips from Wikipaedia or similar but no source was given as would be expected when statistics are submitted by an expert witness.
The majority of the documents and videos included in the USB are better regarded, in the Tribunal’s view, as a collection of country information reports, rather than a submission by an expert witness.
Given the volume and nature of material provided, the Tribunal did not consider it necessary to speak to [Witness A]. The Tribunal explained to the applicants that she would not be calling [Witness A] as a witness and gave reasons why including the quantity of material already provided; the applicants seemed agreeable to this.
The second potential witness was [Psychologist A], the second applicant’s clinical psychologist. She provided a written clinical report for the applicant and his wife which contained the following information.
· The applicant and the second applicant were referred to [Psychologist A] by their general practitioner (GP) in 2017.
· She first saw the second applicant, who was suffering from stress, anxiety and depression, on 15 April 2017 and the applicant on 2 May 2019 for stress and anxiety.[3]
[3] [Psychologist A] first wrote that she saw the applicant on 2 May 2017. Later in her report she wrote that she saw him on 2 May 2019. She provided details of the invoices she issued to the applicant which indicate that she saw the applicant in May 2019 rather than May 2017.
· Since April and May 2017, [Psychologist A] has seen them individually and occasionally together.
· Prior to leaving South Africa, the second applicant was managing a [professional business] in [City 1], the son was working as [an Occupation 1] and the daughter was [undertaking studies].
· Their rationale for applying for a protection visa included racial prejudice, hatred and threats on their lives as applicant and second applicant were perceived by many as belonging to, or affiliated with, the white Afrikaner minority group in South Africa. They feared the death threats may be carried out.
· The second applicant was asked on occasion by some of her [clients] if her husband was the applicant. This made her feel she was being watched, even by [her clients].
· The son received a message via a phone messaging service at 2 am one morning asking “Where do you live?” This disturbed and stressed him and the family greatly. He shut down that app and woke his parents to tell them what had happened.
· Direct assassination threats to the applicant and his family were recorded in a stifled armed robbery attack at [a different Business 2 site]. The threat was to have him shot, not at home, but at [a public event].
· The applicant on a number of occasions was further intimidated and followed home. He was followed to a local restaurant when he was with his wife and to a petrol station when he was with the kids to a petrol station. What was alarming was the fact that the kids had been identified by the gang leader at the petrol station incident.
· These threats were the final straw that made the family fly to Australia and seek an urgent protection visa.
· [Psychologist A] also wrote about the applicant feeling undermined and discriminated against because of the Affirmative Action (AA) and Black Economic Empowerment (BEE) policies in South Africa where he was not promoted due to being Caucasian and was informed by his management in 2012 that the workforce would go on strike if he was given the promotion.
· When [Psychologist A] first met the second applicant, she initially presented with symptoms of major depressive disorder, anxiety and panic attacks. Her GP prescribed [named medication], and antidepressant.
· When [Psychologist A] saw the applicant in May 2019, he presented with anxiety, significant fear and deep feelings if remorse and responsibility for putting his family through trauma in South Africa, and was also really concerned about the “limbo stage’ the family was in while in Australia.
· The second applicant’s parents have both died while she has been in Australia, her mother [in] January 2015 and her father [in] June 2017. She felt very torn at not being able to go back to South Africa for the funerals.
· [Psychologist A] wrote that since then, the applicant and his wife’s mental health have deteriorated significantly as they have both developed PTSD because of what has happened in the past and uncertainty of their visa status.
· Of the second applicant, [Psychologist A] wrote that she is being triggered by past traumas as she recounts them which leads to insomnia, hypervigilance, heightened startled responses, racing pulse, raised blood pressure, avoidant behaviours, night terrors and sweats, and deep fear. Her GP has increased her antidepressant as well as giving her [named medication]; her medication will have to be re-evaluated.
· [Psychologist A] wrote that the applicant has also developed severe PTSD, and is currently struggling with ruminations, disturbing dreams and self-doubt. He has anger and fear, and experiences night terrors, leaving him angry, irritable, constantly on edge and burnt out. He has also been prescribed an antidepressant by his GP.
The Tribunal observed that some of the claims set out by [Psychologist A] were consistent with those made by the applicants but others were not. Self-evidently [Psychologist A] had written what she was told or understood from her sessions with the applicants, and the claims she wrote about were second-hand. Where there were inconsistencies, the Tribunal prefers the version of events as provided by the applicants, either in writing or orally as their firsthand accounts are bound to be more reliable.
Of the claims reported by [Psychologist A], there were at least two significant ones that were, in light of evidence given by the applicants, clearly inaccurate. [Psychologist A] wrote:
Direct assassination threats to the applicant and his family were recorded in a stifled armed robbery attack at [a different Business 2 site]. The threat was to have him shot, not at home, but at [a public event].
The recording to which [Psychologist A] refers is discussed in some detail later in this decision record. There was no assassination threat made against the applicant’s family in that recording. The claim made by the applicant is of a threat made against him in that recording. [Psychologist A] wrote:
These threats were the final straw that made the family fly to Australia and seek an urgent protection visa.
The applicant claimed that a threat (a single threat, not threats) was made in July 2013 about which he learnt in August 2013. He did not leave South Africa until April 2014 and that was for a holiday. While in Australia, he decided to seek protection in Australia. He and the second applicant returned to South Africa after their holiday, and left South Africa again three to four months later in August 2014. They were in Australia for about three months before lodging a protection claim. The Tribunal finds that [Psychologist A’s] statement just quoted is inaccurate and should be disregarded. It gives the wrong impression of what occurred.
The Tribunal gives little weight to the specific claims made by [Psychologist A] as to what occurred in South Africa to the applicants because of the inaccuracies identified; some of what she wrote was clearly wrong. The Tribunal will rely on the applicants’ claims in that regard. The Tribunal accepts [Psychologist A’s] evidence regarding the mental health of the main and second applicants, while noting that their mental health issues are not so severe as to prevent them from being employed here in Australia. The Tribunal acknowledges that this process – applying for a visa and seeking review of a departmental decision by the AAT – is inherently stressful.
The Tribunal did not see the need to contact [Psychologist A] during the hearing. It accepts her written evidence as to the two applicants’ mental health which was not inconsistent with how they presented at the hearing in that on occasion each was clearly distressed. The Tribunal acknowledges that being present, and giving evidence, at the hearing was stressful for the applicants; it reminded them of bad things that had happened. The Tribunal was satisfied that this did not affect their ability to give evidence in any significant way as their evidence was clear and responsive to the questions put to them. Further as the four applicants were present in the hearing room at all times, they could support each other and add to evidence given by another if needed which happened once or twice. After the hearing the second applicant made further submissions some of which clarified statements made at hearing.
In a post-hearing submission dated 26 August 2019 from the main and second applicant, they referred to other AAT protection decisions pertaining to South Africa that are publicly available. They pointed out that the most recent of those decisions was made in 2017 and therefore the country information relied upon in them is now out of date. The Tribunal has made its own country information enquiries and has used more recent information.
Also after the hearing the second applicant asked the Tribunal to access certain information from a particular website. She provided a login and password for the Tribunal to do so. She was advised that this was not acceptable and after an exchange of emails and a phone call, it was clarified that it was up to the applicant to provide the evidence she wanted the Tribunal to take into account. Subsequent to that, the second applicant sought confirmation that the Tribunal had accepted the USB and the letter of 26 August 2019 as submissions, which was duly confirmed.
The applicants also submitted letters which are probably best described as character references, such as from their landlord, [named], who attests to the [applicants’] good character traits; paying rent on time, keeping the property clean and being polite and friendly when dealing with others. Another example is a letter dated 3 March 2017 from the applicant’s employer, [named]. These letters do not address the protection claims per se and therefore do not assist the Tribunal in assessing whether or not the applicants meet the criteria for protection visas.
“Being white”
Submissions were made that the applicants are persecuted because they are white. The applicant, in his statutory declaration, requested that the Tribunal view a nine-minute video entitled “2018 Summary Geopolitical Facts Why SA racism and killings of whites” which was included in the afore-mentioned USB. The applicant wrote “It is hoped it will provide a chilling insight into the challenges, risks, fears, persecution, discrimination and prejudice we experience as an ethnic minority in South Africa.”[4] The video is a presentation by Mr Stephen McNallen who refers to South Africa as the rape capital of the world. He suggests that black on white crime is not reported enough, and is intense enough to be a sort of slow motion genocide. He claims that what is almost never mentioned is that this crime wave is actively encouraged by racist anti-white elements in parts of the South African government.
[4] The Tribunal has considered all the submissions from the applicants and would confirm that it has watched the videos as requested by the applicants.
Mr McNallen provides a brief history of South Africa. The Afrikaners established the Cape colony in 1682. In 1994 Nelson Mandela was elected president. He claimed that sense of threat against white in 1993 was very thick. He speaks about attacks on white farmers some years ago. The attackers had the motto ‘one settler, one bullet’. Mr McNallen claims that this is ongoing with organised groups of South African blacks killing white civilians; it goes back to the 1990s and earlier and is happening now. He said that fighters and guerrilla forces responsible for atrocities in the past were integrated into the new South African army when Mandela came into power. Regarding the current situation, Mr McNallen claimed that there was strong evidence some of the police are actively aiding home invaders and that the criminals have government support, as evidenced by them having military-style jamming equipment (so victims could not use their phones) when they attacked a white-owned farm.
Mr NcNallen claims that the end game of the atrocities is to ultimately purge South Africa of whites which was consistent with what had recently happened inside the South African Parliament – a recent vote to confiscate white-owned land without compensation. He also referred to Mr Julius Malema’s statement made November 2016 that “We are not calling for the slaughter of whites – yet”. Mr McNallen stated as follows:
Whites are being genocided in South Africa and all the denials from the left are simply because they cannot bring themselves to admit that noble blacks anywhere in the world are victimising white people. Or maybe they just don’t think white men, women and children are worth saving.
Mr Malema, a politician, is the leader of the Economic Freedom Fighters, a party he founded in 2013. According to a media report, Mr Malema’s comments sparked outrage and were investigated by the South African Human Rights Commission (SAHRC) on the grounds of them being hate speech and the incitement of violence against white South Africans. The SAHRC ruled that given the historical, social and factual context of the statement, Malema was in the clear, noting that he also said was “what we are calling for is the peaceful occupation of the land”.[5] The full quote is as follows:
They found peaceful Africans here. They killed them. They slaughtered them like animals. We are not calling for the slaughtering of White people, at least for now. What we are calling for is the peaceful occupation of the land and we don’t owe anyone an apology for that…
[5] Business tech (2019) Malema’s ‘not slaughtering white people for now’ comments not hate speech accessed 18 July 2019 at
The Tribunal is not assessing the appropriateness or otherwise of the ruling of the SAHRC but considers it relevant that Mr Malema’s comments were referred for investigation; that is, South Africa has systems and institutions which deal with allegations of hate speech.
In a statutory declaration dated 24 June 2019, the applicant wrote that he witnessed a white father being shot to death in front of his son, and that the son would have died but for his gun jamming. The perpetrators only took cell phones. He wrote that he believed this was more of a hate attack against whites than actual petty theft.
The applicant also wrote that his car was broken into and minor items stolen. The perpetrators defecated in the back of the car. About this, the applicant wrote:
The act of defecation implies the act was not only criminal in nature but the act itself was borne out of hatred by the criminal of his/her victim with an intent to humiliate and intimidate, so in this instance, I feel I was racially targeted. The police did not investigate.
The Tribunal accepts that these two incidents occurred although it cannot be sure of the motivation of the perpetrators and whether the primary motivation in each case was criminality or racial. The Tribunal is not satisfied that the applicant’s colour – his race - was the essential and significant reason for the harm. Further it is not satisfied that the harm caused to the applicant when his car was broken into amounted to serious harm.
The applicant also claimed he was subjected to discriminatory treatment from an African staff member when he visited the Department and was waiting to be seen. The Tribunal will disregard this as it has no bearing on whether or not he meets the criteria for a protection visa.
The applicant wrote that racially humiliating treatment (such as he encountered at the Department’s offices including tongue-clicking which he described as an African gesture indicating contempt, and being told to go away) is now very common in everyday South Africa, where whites are treated like second-class citizens.
The Immigration and Refugee Board of Canada (IRBC) has compiled a research report dated September 2018 on country conditions in South Africa.[6] The Tribunal considers it to be reliable document as the Board gathers information from a range of sources.
[6] Immigration and Refugee Board of Canada (2018) Responses to information requests accessed 18 July 2019 at
According to the report and its sources, the population of South Africa is approximately 57 million, with white South Africans making up 8% or 9% of the population. There is a linguistic divide between white South Africans who speak Afrikaans and those who speak English but “there is no difference in their access to wealth or their political representation”.
The report states that white South Africans are in a privileged position in South African society, being substantially wealthier than other racial groups. They dominate in the areas of business, media, politics, legal services and academia.
According to the report, white South Africans do not face any specific challenges or threats in society, in terms of access to employment, education, health or housing. The report states that white South Africans face the same issues as black South Africans with regards to public health care and public education and notes that black South Africans are more burdened because of their lack of resources; for example they do not have the resources to buy private health care.
Human Rights Watch reported on South Africa for 2018. It referred to xenophobic attacks levelled at foreign nationals from other African countries. It did not mention white South Africans as being an at-risk group.[7]
[7] Human Rights Watch (2019) World Report 2019: South Africa - Events of 2018 accessed 23 July 2019 at >
The applicant claimed that racial tension in South Africa has worsened since 2014, that is, since he left South Africa. The second applicant wrote that since arriving in Australia in 2014, circumstances in South Africa has deteriorated dramatically and are more detrimental to their safety than ever before.
The applicant referred in his statutory declaration dated 24 June 2019 to the political instability, growing persecution and racial hate against whites which is driven by the populist anti-white rhetoric articulated by followers of the major parties: ANC, DA and EFF. He wrote that he believed there was a direct connection to the politically motivated killings of whites and in particular members of the Afrikaner community, and that the government – through its inept, corrupt and dysfunctional policing – the political military and major political parties are in collusion in the racially motivated ethnic and cultural genocide.
After the hearing the second applicant forwarded a link to a Youtube video which was entitled “Police now killing farmers in South Africa”. The narrator speaks about a man wearing a South African police uniform and others in possession of South African police equipment, attacking white farmers, and for this reason he claims there is white genocide.
An academic from South Africa’s University of the Western Cape wrote earlier this year about race and South African politics.[8]
Race continues to divide. Take just the best-known parties among the four dozen contesting the country’s general election this month. They all represent radically different perspectives on the race issue. And – at the extremes – there is no crossing the color line…
For example, almost no black Africans will vote for the minority Freedom Front Plus. Almost no whites will vote for the Economic Freedom Fighters (EFF), the third-largest party. Strident racial rhetoric from some EFF leaders. And its election manifesto envisages for massive tax rises, a proviso that’s alienated white voters. For its part, the Freedom Front Plus’s campaign to defend minorities against affirmative action and black economic empowerment doesn’t attract many black voters.
But, when moving towards the leading parties of the centre, the governing African National Congress (ANC), and the official opposition, the Democratic Alliance (DA), are making serious efforts to rein in racial rhetoric among their leaders and members. They also have manifestos that promote non-racialism…
White South Africans are only make up 7,8% of the population. But they remain strategically important. They still own most capital and most companies. They constitute a significant proportion of management and in most of the professions.
The western powers, investors, and media remain sensitive to their concerns and anxieties.
Interestingly, statistics show that white living standards have risen higher than anyone else’s since 1994. That is not exactly the “genocide” proclaimed by the global alt-right.
There is a wide range of black views on color and race relations. Some activists in the Rhodes-must-fall and Fees-must-fall movements expressed total alienation from whites and “whiteness”. Simultaneously, there are many interracial friendships and some interracial marriages.
[8] Gottschalk, K. (2019) Race still permeates South Africa’s politics 25 years after apartheid’s end, accessed 13 August 2019 at
The author concluded as follows:
Given that the country has the world’s largest white minority living under black rule, color line tensions will remain a fairly permanent feature of the country’s political landscape. The same can be said of the US, where the world’s largest black minority lives under white rule.
While this is but one perspective, the Tribunal considers the article as being a measured assessment of race relations in South Africa. There was no suggestion in it that racial tensions have got markedly better or worse. The Tribunal does not accept the applicant’s claim that racial tension in South Africa has worsened since 2014.
The Tribunal notes that in the submission dated 26 August 2019, the applicants referred to an organisation called Genocide Watch. They claimed that according to Genocide Watch, the rating for South Africa has gone from stage 6 (polarisation) to stage 9 (extermination). The Tribunal checked the Genocide Watch webpage which gave the rating for South Africa as being at stage 6.[9]
[9] Genocide Watch (2019) Ten Stages of Genocide Interactive World Map, accessed 24 September 2019 at
Africa Check describes itself as “an independent, non-partisan organisation which assesses claims made in the public arena using journalistic skills and evidence drawn from the latest online tools, readers, public sources and experts, sorting fact from fiction and publishing the results.” In 2016 it fact-checked the claims made about white genocide in South Africa and found that they were unsupported.[10] It discussed the claims made by Genocide Watch in relation to South Africa being at stage 6 and noted that Genocide Watch was “either unwilling or unable to provide evidence to show that the country meets the organisation's requirements of that stage.”[11] Africa Check also quoted Genocide’s Watch President, Gregory Stanton, as saying:
One of the false uses of Genocide Watch’s model for genocide prediction is the claim by some South Africans, racists in the United States, and a few South African expatriates, that South Africa is undergoing a ‘white genocide’,” Stanton told Africa Check. “Genocide Watch has never said ’white genocide’ is underway in South Africa.[12]
[10] Africa Check (2016) Claims about ‘white genocide’ in South Africa unsupported, accessed 13 August 2019 at
[11] Africa Check (2016) ANALYSIS: Genocide Watch thin on transparency and methodology
[12] ibid
The Tribunal does not accept claims of white genocide occurring in South Africa.
During the hearing the second applicant referred to messages she had received from people in South Africa about killings occurring in South Africa. She submitted copies of these messages after the hearing. A message dated 28 May 2019 from [a named relative] says “Please pray for us in SA it’s bad here”. That was about three weeks after the election in South Africa.
A message from [a named person] dated 1 July 2019 reads in part “They are killing ALL white people in SA so they’re sentencing you to die basically if they deport you”. [Another person] messaged on 10 May 2019 “children are being shot every day in crossfire it’s horrific”.
In a covering email to the messages, the second applicant wrote that if the applicants were to return to South Africa “it would be like signing our death sentence”.
The Tribunal is satisfied that the statement “they are killing ALL white people in SA” is an exaggeration. More than three months after the date of that message it is clear that there have not been attempts to kill all white people in South Africa. The Tribunal does not dispute the high crime rate, which includes a high murder rate, in South Africa. However it does not accept that these are targeted at white people as it is black South Africans who bear the brunt of the violent crimes.
With regard to the BEE and AA programs, the IRBC report cites sources which state that such programs target black South Africans (to assist them). As white South Africans do not qualify for the programs, there are complaints from some white South Africans that these programs make it difficult for them to access employment.
One of the USB submissions was an article dated 18 June 2014 and titled “White people now finally excluded from the South African job market” with a sub-heading “B-BBEE Amendment Bill eliminates all white people from South Africa”.
The Tribunal put it to the applicant at hearing that the headline was perhaps exaggerated but he did not agree. The article notes that the Employment Equity Act still has white women as a designated group for affirmative action purposes. There is nothing in the article that explains why the headline claims that white people are excluded from the South African job market. That is, the headline did not reflect the content of the article.
According to its preamble, the primary Act, the BEE Act 2003, was enacted to:[13]
· Increase broad-based and effective participation of black people in the economy and promote a higher growth rate, increased employment and more equitable income distribution; and
· Establish a national policy on broad-based black economic empowerment so as to promote the economic unity of the nation, protect the common market, and promote equal opportunity and equal access to government services.
[13] ATNS (2007) Broad-Based Black Economic Empowerment Act, 2003 (South Africa), accessed 18 July 2019 at
According to one article, the Broad-based Economic Empowerment Amendment Bill 2013 has brought about four key changes to the BEE Act 2003 to close many loopholes that were created by the different interpretations of the primary Act and of the codes and other legislation. None of the provisions of the Broad-based Economic Empowerment Amendment Bill 2013 specifically exclude white people from the job market. These key changes are:
· Aligns codes and clarifies the status of codes that previously caused confusion, sets out who has the power to issue codes, etc.
· Establishes a commission to receive and investigate complaints; maintain a registry of major transactions; receive reports from organs of state and public entities and the private sector.
· Forces organs of state, public entities; listed companies and other bodies to report compliance as their core obligation.
· Establishes a single body to accredit and regulate verification agencies and people who perform any work related to the rating of enterprises.
The Tribunal understands these Acts to mean that a business is required to hire black and white staff in the same proportions as they are in the country; that is, 8% or 9% are white. That means if 15% of a business’s employees are white, and a vacancy comes up, it has to employ a black person to fill that vacancy and the job is not open to white people.
The Tribunal has read widely to better understand the affirmative action measures and considers a particular opinion piece written in 2012 encapsulates the range of views.[14] It makes the following points:
· At the end of the apartheid government in 1994, one of the biggest challenges was how to achieve a more representative workforce when virtually all well-paid jobs were held by white people who made up about 10% of the overall population.
· In 2003 the government brought in positive discrimination also referred to as affirmation action (AA), requiring employers to give preference to candidates from previously disadvantaged groups (including women), when recruiting and promoting staff, where other factors are equal.
· Two downsides to this approach. AA is based on discriminatory principles, ones that are by and large deeply racist. The former apartheid government divided people into racial groups that included whites, blacks, coloureds and Indians. After apartheid, those same categories have become re-utilised as the basis for achieving racial equality in the workplace.
· While BEE is intended as a positive step towards racial equality, there are huge practical problems, not the least of which is the shortage of skilled, qualified and experienced available candidates.
· BEE has the effect of disadvantaging white people such that being a white, middle-aged man can be a huge barrier to employment.
· It is arguable that the fate of a middle aged white male is better than that of a black child born in a rural area
[14] Sharp, D. (2012) Positively unfair: workplace discrimination in South Africa, published in International Workplace, accessed 19 July 2019 at
The author said he could not make up his mind about positive discrimination on the South African workplace as to whether it was overall a good or a bad thing.
In April 2019 it was widely reported that President Cyril Ramaphosa said that he did not want young white South Africans to leave the country and he joked that if could, to stop them leaving, he would tie them to a tree. He also referred to white South Africans having valuable skills the country needed, and that he hoped those who had left the country would return.[15] His comments were met with some scepticism.
[15] The Citizen (2019) Ramaphosa wants to ‘tie’ young, white people ‘to a tree’, accessed 23 July 2019 at
With regard to the AA policies, the Tribunal observes that these are intended to benefit a particular group or groups of people, rather than seeking to directly disadvantage another group or groups, although that may well be the side effect of the AA policies, in that they reduce the number of vacancies open to white South Africans.
As to whether this amounts to persecution, the Tribunal looked to s.91R of the Act, which sets out that persecution must involve ‘serious harm’ to the person. Section 91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in by way of an aid to their application, as follows:
(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.
The applicant said that in South Africa, a person would stay with an employer for a long time and not change their job unlike the situation in Australia. This is not consistent with the second applicant’s work history. Based on employment details she provided to the Department, the second applicant worked at [Agency 1] between February 2001 and January 2007. She then went to work for another [agency] as a [a specified role] for about 21 months and in a similar role for about 2½ years [in professional businesses]. She was employed by [a professional business] as a [Manager] between April 2011 and May 2014. This was the job she had before leaving South Africa.
In his statutory declaration of 24 June 2019, the applicant wrote that [Business 2] advertised a new position, [Security Position 1], in 2009, and because of his race and gender he was precluded from applying for his own position. He continued to work at [Business 2]. The person employed in that role was an African male. The applicant wrote that he continued to manage security obligations at [Business 2] despite threats that he was no longer required as a manager. He was told to leave the office he managed and [Program 1 that] he oversaw was [discontinued]. He was instructed that all security incident reports were to be directed to the new manager. The applicant claimed that he was discriminated against and treated unfairly under the new manager because he was white.
The Tribunal accepts that the applicant was discriminated against because he was white, but is satisfied that it was low level discrimination as he did not lose his job, he continued to manage security obligations and as set out below, the situation went back to what it had been after three months – that is, it was short-lived.
The applicant wrote that after three months, the general manager called a meeting. When asked about security incidents, the new AA-appointed manager said there were none. The applicant wrote that he spoke up to say they had in fact reported a theft of [products] which were found in an employee’s locker. The general manager was alarmed that no report had been filed and that [Program 1] had been [discontinued]. The security responsibilities were handed back to the applicant and the AA appointee was discharged. The applicant wrote that he believed the AA appointee and his African boss despised him because of his race, professionalism and the riot report.
The Tribunal accepts that this situation occurred and must have been a difficult few months for the applicant until it was resolved, which it was and in his favour. The applicant did not become unemployed. Based on his evidence, his role and responsibilities changed during the period the AA appointee was the manager but this was a temporary situation. The Tribunal finds that the applicant was not subjected to serious harm because of AA legislation or policy at this time.
The applicant wrote that again in 2012, [Business 2] advertised a new position of [Security Position 1] and he was encouraged to apply for it. This contrasts with his previous experience in 2009 of not being able to apply for that position. This would have been a promotion for the applicant. He wrote that he was interviewed and short-listed but was advised he would not receive the promotion. He wrote:
I was informed that if I was to be appointed by [Business 2] then their workforce had advised management they would go on strike. This again is a clear example of the tension in the workplace because of my cultural affinity and race.
The Tribunal does not consider this to be a clear example of workplace tension because of the applicant’s cultural affinity and race. On the facts as presented the tension could be due to a personal dislike of the applicant because of how he operated as a security manager, eg [establishing Program 1] and catching thieves. While it is possible and arguably likely that his cultural affinity and race were a factor, it was not the only factor. It is conceivable that if he had been less effective in his role, the workers would not have had such strong objections to him being promoted.
Even if the workplace tension was largely because of the applicant’s cultural affinity and race, it did not affect his capacity to subsist. In his statutory declaration the applicant wrote that EE, AA and BEE laws precluded him from over 80% of available jobs within the national workforce, and “We would therefore face significant economic hardship that directly threatens our capacity to subsist”. The Tribunal does not accept this to be the case, should the applicant return to South Africa, for reasons set out below.
According to the IRBC’s report:
Sources indicate that the unemployment rate of white South Africans is lower than that of black South Africans (Vice-Chancellor 4 Sept. 2018; Campbell 30 Aug. 2018; Al Jazeera 30 Aug. 2018). According to Al Jazeera, in 2017, "30 percent of … black South Africans were unemployed compared with 6.7 percent of" white South Africans (Al Jazeera 30 Aug. 2018). The Vice-Chancellor explained that "[w]hite South African unemployment is less than 3 percent, [while] the unemployment rate of black South Africans … is approximately between 50 and 60 percent" (Vice-Chancellor 4 Sept. 2018).
According to unemployment statistics for the first quarter of 2019, the overall unemployment rate in South Africa rose to 27.6 % compared to 27.1 % in the previous period with 31.1% of black people being unemployed and 6.6% of white people being unemployed.[16]
[16] Trading Economics (2019) South Africa Jobless Rate at 1-1/2-Year High of 27.6%, accessed 13 August 2019 at
There are reports that while the overall unemployment rate is high, this reflects a large pool of unskilled and semi-skilled workers, whereas there is a shortage of people with particular skills.[17]
[17] Expatica (2019) Work in South Africa: Finding a job, accessed 1 August 2019 at
The Tribunal had regard to the National List of Occupations in High Demand for 2018, published by the South African government.[18] It classifies the ‘in demand’ occupations according to whether they fall into the highest, higher or high category.
[18] Department of Higher Education and Training (2018) National List of Occupations in High Demand: 2018, accessed 1 August 2019 at
Before they left South Africa three of the applicants were employed and the youngest, the daughter was studying. The main applicant’s expertise lies in security. Security services manager and security risk assessment manager are listed as being in high demand. The Tribunal has recorded that the second applicant was employed in managerial and administrative roles in the [specified] sector. [Two of her roles] are occupations included in the list of jobs with the highest demand, and client services administrators, general clerks and administrative assistants as being jobs in higher demand. The third applicant was employed as [an Occupation 1] in South Africa and gave his occupation as a [a related occupation] on his Australian marriage certificate. Both [occupations] fall into the higher level of demand. The fourth applicant was a student of [a named field]. [Occupations based on this field] fall into the highest category of demand, whereas [related occupations] are in the higher category.
The Tribunal is satisfied that the applicants have the skills to find work in South Africa, which recruits from overseas to fill vacancies in the high demand occupations.[19] The Tribunal further notes that the AA and EE legislation and policies did not prevent the second applicant from changing jobs in 2007, 2008 and 2011.
[19] Expatica (2019) Work in South Africa: Finding a job, accessed 1 August 2019 at >
The Tribunal earlier quoted from an opinion piece that stated “BEE has the effect of disadvantaging white people such that being a white, middle-aged man can be a huge barrier to employment”. The writer then went onto to state that it was arguable that the fate of a middle aged white male is better than that of a black child born in a rural area.
The Tribunal does not accept the argument that any of the applicants would be denied the capacity to earn a livelihood of any kind in South Africa, such that their capacity to subsist would be threatened, if they were to return in the foreseeable future.
It may be the case that the applicants would not find employment at the same level of seniority they had before leaving South Africa but that does not equate to them not being able to subsist. The Tribunal does not accept that the job-related policies and legislation are persecutory in that they do not create a real chance of serious harm for any of the applicants.
The Tribunal also considered the claims made by the applicant about discrimination he faced at work and whether he would face them if he returned to South Africa. The Tribunal accepts that the applicant may well have to contend with discriminatory remarks or racially-charged name calling if he returns to South Africa.
However as McHugh J set out in MIMA v Haji Ibrahim, the Refugee Convention “protects persons from persecution, not discrimination.” He went on to say:
Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[20]
[20] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
The Tribunal is satisfied that the examples of discrimination described by the applicant do not constitute persecution, and while he might experience similar upon return to South Africa, the Tribunal finds that these would not be so intensive, prolonged or repetitive to be found to be persecution.
For the reasons set out above, the Tribunal does not accept the applicants’ claims that they were being persecuted when in South Africa because they are white or that they would be persecuted for “being white” if they were to return.
Conservative Christian values
In a statutory declaration dated 24 June 2019, the applicant made the following claim:
As a conservative Christian with religious beliefs aligned with Afrikaner Calvinistic faith, we see our beliefs under threat as the nation is exposed to state-approved Africanisation of medical service and the promotion of witchcraft via Sangoma’s (who are now approved as medical practitioners) with their growing “muti” rituals.
The applicant then made reference to folders in the USB which include videos and screen grabs which the Tribunal has viewed.
According to the CIA’s World Fact Book, 86% of South Africans are Christians.[21] The Tribunal was unable to find any country reports that suggested Christians experienced discrimination or persecution in South Africa. The Tribunal asked the applicants about this; if, for example, they were prevented from worshipping at the church of their choice or prevented from practising their religion.
[21] CIA The World Factbook (2019) South Africa accessed 23 July 2019 at
The daughter said that at school, saying morning prayers was stopped and there was no religious instruction in school.
According to a Master thesis in Biblical and Religious Studies:[22]
South Africa’s constitution provides for freedom of religion, and other laws and policies contribute to the general free practice of religion in South Africa. The law protects the right against abuse by the government. The Bill of Rights prohibits government from unfairly discriminating directly or indirectly against anyone on the bases of religion…
Good Friday and Christmas are recognized as national holidays…
The government allows, but does not require, religious education in public schools, however, religious instruction, or the advocating of the doctrine of a particular group, is not permitted in public schools.
[22] Damons, E. (2016) Religious Education in South African Public Schools: Opportunities and Problems, accessed 23 July 2019 at
The applicant’s wife said that when she worked in [an agency], there were only twelve white staff and they were prevented from saying prayers before their shift. She said they were told they could not pray with their Boer mentality. Based on the work history she provided to the Department, the second applicant last worked in [an agency] in 2008. The Tribunal accepts this incident occurs but gives it little weight as it occurred so many years ago.
The applicant said that they could go to church.
The applicant also spoke of some people at his work who practiced witchcraft and who used body parts for rituals. He said they knew his values. There were times when he would find muti (traditional medicine) to bring a curse against him and his workers. He said that people practised witchcraft and performed rituals against them. The applicant said that it caused him to be mindful of people whom he suspected of doing black magic. When asked if that affected him, the applicant said that if a person does not have God in their life, it could affect them and it could affect his staff who would be traumatised. That is, he made it clear that he was not affected by witchcraft and rituals because of his faith.
The Tribunal accepts that these incidents occurred. It notes the applicant’s response that whereas they had the potential to affect people – traumatise them – that was not the case for someone had God in their life. It was evident from the manner in which he said that, he was referring to himself as being someone who had God in his life and was therefore unaffected by the witchcraft and rituals. The Tribunal finds that the applicant was not subjected to serious harm by these incidents. With regard to what might happen should he return to South Africa, and be subjected to witchcraft and rituals performed against him, the Tribunal finds that there is not a real chance he would face harm as a consequence because he is protected by his faith.
Given the applicants were generally free to attend church and practice their religion (apart from the incidents mentioned); that Christianity is by far the majority religion in South Africa; and the country information set out above including that freedom of religion is enshrined in South Africa’s constitution, the Tribunal finds that there is not a real chance the applicants would face harm because of their religion and religious beliefs upon return to South Africa.
Ethnicity as members of the Afrikaner (Boer) community persecuted by the African majority
The applicant said that his mother was of Dutch origin. His wife’s maiden name is [name], also indicative of Dutch ancestry. The Tribunal accepts that the applicants are members of the Afrikaner (Boer) community. “Boer’ means farmer.
The applicant claimed that as members of the Afrikaner (Boer) community, they were members of a particular social group. The Tribunal is of the view that as Afrikaners, they are caught by ‘race’, as mentioned in paragraph 7, rather than as members of a particular social group. As each (race or particular social group) is one of the five refugee grounds, it makes no practical difference to their protection claim which ground is more appropriate with regard to the applicants being members of the Afrikaner community. The Tribunal finds that as Afrikaners the applicants fit into each category.
The Tribunal has already referred to the report from the IRBC, and that, based on that report, of the 8% or 9% of South Africans who are white, there is a linguistic divide between white South Africans who speak Afrikaans and those who speak English but “there is no difference in their access to wealth or their political representation”.[23] That is, the Afrikaan or Boer community is a subset of the white community.
[23] Immigration and Refugee Board of Canada (2018) Responses to information requests accessed 18 July 2019 at
The third applicant in his written statement of 10 June 2019 claimed that on two occasions going home after school he was mugged for his phone and money. The first time three black men approached him and his friend as they got off a bus. Two of the men had knives. They demanded phones and money and the third applicant and his friend handed them over quickly as one of the men was asking in another language “Do you want to die farmer white man”; he used the word Boer. On the other occasion, this applicant was on his own when two black men approached, pointing a knife at him, wanting his phone. The applicant made no claims about being physically harmed on either of these occasions which happened about ten years ago. The Tribunal accepts that these incidents occurred but gives them little weight as far as the protection claim is concerned, given the time that has passed since they occurred and notwithstanding the racist slur, it finds that they were primarily random acts of crime rather than being substantially motivated by reasons of race or ethnicity.
The second applicant said that when she was working at [an agency], a colleague referred to her using a term which meant ‘farmer’. She said that she responded that she was not a farmer, but he said “but you are white”. The second applicant said that they (meaning black people) do not discriminate between white people and Afrikaners, and all whites are deemed by them to be Afrikaners.
After the hearing the second applicant provided a link to a Facebook page called “Break the Silence about South Africa” which included a link to a video.[24] She did not give an explanation as to why she thought it was significant with regards to the protection claim. The post started by stating there are 11 official languages in South Africa which all have equal status and they must all be respected in the House of Parliament.
[24] The video can be accessed here
It goes on to state that a Freedom Front Plus MP, Mr Philippus van Staden, was delivering a speech in Afrikaans. He was interrupted by Josephine Mokwele MP who demanded that his speech be translated. She said "I'm not respecting Afrikaans. It is my democratic right... no one will force me to respect Afrikaans." The post stated that Ms Mokwele was in breach of the Constitution, which all MPs had sworn to uphold.
The video shows that Mr Staden was making a speech in Afrikaans in parliament. Ms Mokwele interrupted to say that it was not being translated; she pointed to equipment as she said this. It is apparent from the video that speeches in a particular language are usually translated for the benefit of other MPs who do not speak that language, and the concurrent translating was not happening. She asked the House Chair if she could be assisted in getting a translation of what Mr Staden was saying. The speaker then says the matter would be raised with the language services to assist. Another MP then rises to say that there are 11 official languages in South Africa which all have equal status and they must all be respected in the House. He then says “We must respect each other’s languages if this house is to prevail.” There is some applause in response to his comments.
Ms Mokwele then says she will never respect Afrikaans as much as they do not respect her language. The House Chair, who is a black or coloured woman, asks her to retract that statement. Ms Mokwele asks for clarification as to which statement she should retract and the response is “about the language”. Ms Mokwele then says it is her democratic right not to respect Afrikaans. She said that as much as the other MP cannot speak her language, she cannot speak or respect his language.
The Chair asks her to minimise her language, not to be unparliamentary, not to use hate speech and to respect other people as much as they respect her. Ms Mokwele then responds in a language, not English. She then says in English that she cannot respect a language used to oppress her mother and her forefathers. There is some clapping (less than the applause in response to the other MP’s call to respect each other’s languages) and then the Chair asks her to take her seat and gives the call to another MP, a white man, who says that every member of the House swore to defend the constitution. He quotes from the constitution that says any member can practice and exercise their language rights and argues for all members to respect the languages of other members.
The applicant submitted a letter from [Lawyer A] of [Business 3], Employment Law Practitioners, dated 7 February 2016. [Lawyer A] confirmed that there was a long term project to eradicate a black market operation to do with [Business 2’s industry]. She wrote that in 2013 the syndicate planned an armed robbery at [Business 2’s] premises and that the robbery was foiled and the syndicate members identified because of the work done by the applicant. She wrote that all involved had material concerns for their safety if they were to testify in open court and they applied for in-camera witness proceedings for all the company witnesses.
[Lawyer A] wrote that the applicant advised that he received a number of death threats and evidence presented suggested a planned attack on the applicant’s life. She also wrote that they sought to exact revenge, to terminate the applicant as the driving force of the project and sought to reinstate their operations. She wrote that despite the involvement of the local and national law enforcement, there was very little that could be done to ensure the applicant’s safety and as a consequence he terminated his employment and left South Africa.
The Tribunal does not consider this letter to be particularly helpful to the applicant. It broadly corroborates the applicant’s claims about his work at [Business 2] which the Tribunal accepts to be true. [Lawyer A] seems to be suggesting that the applicant would be at risk as a result of court proceedings yet the applicant’s evidence was that charges were not laid against the syndicate members. Instead they lost their jobs. [Lawyer A] referred to involvement of the local and national law enforcement yet the applicant was very clear that the police were not involved at all. The Tribunal gives little weight to [Lawyer A’s] letter.
The Tribunal notes that in the submission to the Tribunal referred to above, the applicant claimed that the two men have since been dismissed from [Business 2], and that they confessed to staging an armed robbery in 2009, planning another one and planning a hit on the applicant but despite this, they were not facing criminal charges.
The Tribunal does not find this to be credible. It does not accept that police would not be informed, leading to criminal charges being laid against these men, if they did indeed confess to staging one, and planning another, armed robbery and confessed to planning to kill the applicant.
Further the Tribunal does not accept that the men confessed to planning a hit against the applicant as it has not accepted that a hit was planned on the applicant, for reasons already discussed at length.
In a written statement submitted to the Tribunal with his statutory declaration, the applicant expressed his disappointment with being refused a protection visa by the Department “Given the fact that a plot was made to take my life”. For reasons already set out, the Tribunal is not satisfied that what was recorded on [the date in] July 2013 was a plot to take the applicant’s life. There was clearly conversation about the applicant and the best place a hit could take place but, despite how alarming and distasteful this was, there was no agreement that he should be killed.
The Tribunal asked the applicant why, if that recording took place in July 2013, and he believed that an assassination attempt was being planned, he did not leave South Africa sooner than he did.
The applicant said that it took them a long time to leave and decide to emigrate. He said that it was after their return to South Africa, having holidayed in Australia, that they decided to leave South Africa. The holiday in Australia took place in April 2014.
The Tribunal finds therefore that it was the holiday in Australia during April 2014, rather than learning of the recording in August 2013, that was the trigger for the applicant’s decision to leave South Africa.
In the written statement submitted to the Tribunal the applicant referred to questions he had been asked by the delegate. In response to the question “Why did I not leave [Business 2]”, he wrote as follows:
I explained that South Africa had an extremely high unemployment rate and that there were Black Economic Empowerment and Affirmative Action policies in place where only African persons could apply for certain positions. This is why people stay with companies longer. I was also very loyal to my boss whom I regarded as my mentor.
In response to the question “Why did we delay leaving South Africa after we had learned of the plot against my life” the applicant wrote about having to get passports renewed, obtain visas and other documents, amongst other things. This did not address the question which was about the period between August 2013 and April 2014.
In exploring this with the applicant at hearing, it was apparent that in answering the delegate’s question, he referred to the period between making the decision to leave South Africa (during April 2014 when he was in Australia) and leaving, which was in August 2014. The Tribunal accepts that the applicant and the second applicant decided they needed to return to South Africa after their Australian holiday, to organise for their children to emigrate with them, and get various documents. It draws no adverse inference from this. But that does not explain the period between August 2013, when the applicant learnt of the recorded conversation, and when the decision to leave South Africa was made in April 2014. If the threat to his life was so serious, why did he not act during that eight months to get away? The applicant responded by saying that before the holiday in Australia, it had not crossed their minds to leave South Africa. He said he did not realise there was another option.
The Tribunal is particularly troubled by the applicant remaining in his job and in [City 1] for eight or so months, and not making any attempt to leave, as it does not sit well with the notion of someone who fears there is a plan to assassinate him.
The Tribunal is of the view that if someone believes there is a credible death threat against them, they take immediate action to get away which could be to another part of the country or would explore their options for leaving the country.
The applicant said that his bosses tightened up the security around him and he altered his routes to and from work. In a written statement the applicant wrote that he and his family had moved to a townhouse complex several years previously which was where they stayed until the last two weeks they were in South Africa. He wrote that their lease had come to an end and they moved in with his parents and lived there for the final fortnight.
The Tribunal notes that the delegate recorded that when it was put to the applicant that he had remained working for [Business 2] despite the threats and dangers for 11 years, the applicant responded that he moved into a more secure townhouse. The Tribunal is satisfied that the applicant was referring to moving to the townhouse he had been living in for several years before he left South Africa and was not claiming that he moved in response to the claimed death threat.
When the delegate put to the applicant that he had not changed company, workplace or city, the applicant responded by saying it was not feasible to move because the children were at school and they did not have relatives elsewhere in South Africa, and his wife had a stable job in a good company and they would not have been able to survive on a single salary. This response is not consistent with a person who fears they are to be assassinated. The applicant said at that time their only option was to come to Australia. The Tribunal rejects that. There were other options open to the applicants as suggested by the delegate, such as to change employer or city, or consider migrating to another country. The suggestion that coming to Australia was the only option is not sustainable.
The applicant gave evidence as to how badly affected he was psychologically from his years or working as a security manager and dealing with threats and animosity. He said that he was brainwashed by his employers, the sense being that he had normalised what he had to deal with at work. It was open to the applicant to seek psychological counselling when he was in South Africa and seek out alternative employment.
The applicant claimed that a short time after the recording was made, he was sitting in a restaurant having breakfast with his wife and daughter, and was horrified to see one the persons involved in the assassination plot against him, walk in to the restaurant and sit near to him and his family. The second applicant wrote about this incident and according to her, it happened during the period between their Australian holiday and leaving South Africa (between May and August 2014) in which case it was some ten to 12 months after the recorded phone call.
The applicant wrote that this was life-threatening and he quickly extracted his family from the restaurant. The Tribunal accepts that the applicant and his family were unnerved by this and left the restaurant. However nothing of consequence actually happened. They were not directly threatened and were not harmed.
The second applicant claimed (and the other applicants referred to this incident also) that during the same period – May to August 2014 - they were on their way home after church and drove into a service station. As their car stopped, the applicant told the second applicant that another car had stopped next to them and in it was the man who had made the death threats against him. The second applicant wrote that she felt they would be gunned down and fortunately the applicant acted and drove away. The Tribunal notes that nothing further happened on this occasion which, as with the restaurant incident, was approximately ten to 12 months after the recorded phone conversation.
It was only the main applicant who knew the man who was one of the two in the phone conversation. The other applicants relied on him saying that he recognised him. The Tribunal accepts that these incidents occurred but is not persuaded that they are sinister as they occurred so long after the recorded telephone conversation and beyond sighting the man, nothing happened.
The applicants have given evidence of how living in South Africa has affected them, traumatised them. They were fearful of crime, and lived on a daily basis with a heightened sense of danger, and it is possible that they were hypervigilant and saw danger where it did not exist. Again if the applicant was scared for his life and that of his family it makes no sense that they delayed for so long – between August 2013 and August 2014 – before leaving South Africa to seek protection in Australia.
The applicant claimed that he feared if he returned to South Africa, he will quickly become [another] victim (after the [Business 2] female employees who were killed) as the hit on his life remains active.
The Tribunal rejects this claim. It is not satisfied that there ever was a hit planned against the applicant as opposed to a casual conversation between two men who disliked him because of his job. Between July 2013, when the alleged threat was made, and August 2014, when the applicant left South Africa there was no attempt to take his life, to the applicant’s knowledge.
The applicant also claimed that a lot of other people, aside from [Mr A] and [Mr B], wanted to kill him because of the reports he wrote as part of his security role for [Business 2]. The Tribunal does not accept this claim to be true. There was no evidence given of attempts made to physically harm the applicant after the incident when his [Vehicle 1] was tampered with in 2008, some 11 years ago, in relation to his work at [Business 2].
In a document headed “Lodgement for AAT (Amended Version)” the applicant referred to a question put to him by the delegate as to why he did not move to another location, given the threats and dangers. He claimed that people knew where he lived and had followed him home more than once and that during their last days in South Africa, he witnessed suspicious vehicles and people within the grounds of their complex. His claim of suspicious vehicles and people within the grounds of the complex in their last days in South Africa would have occurred therefore about a year after the phone conversation was recorded. The Tribunal does not accept that there is sufficient evidence to conclude that these suspicious vehicles and people were anything to do with the applicant’s employment at [Business 2]. It was a year after the recording was made and nothing else untoward happened.
The applicant and his family have now been out of South Africa for five years. The Tribunal finds that in relation to his work for [Business 2] and the people who were involved in stealing from [Business 2], there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, the applicant will face a real risk of significant harm.
Generalised violence
The applicants made a number of oral and written submissions pertaining to the general violence and high crime rate that occurs across South Africa. In his statutory declaration, the applicant set out the security arrangements at his home. These consisted of the following:
· Burglar proofing on the windows.
· Slam/lock doors on all external doors.
· Slam/lock gate in the passage separating the bedrooms from the rest of the house.
· ADT alarmed response alarm system.
· External lighting to monitor movement in the property.
· Six foot walls with electric fencing and remote access gate.
· Our pet and guard dogs.
The applicant referred to occasions over the years when he was followed home by unknown black African males and he took countermeasures to shake them off. The Tribunal accepts that these incidents occurred and that they are examples of the high crime rate that affects all South Africans. There was no evidence of the applicant being harmed as a result of these incidents.
The applicant wrote that a black [brand name] light delivery vehicle learned where he lived but as he did not claim anything untoward happened as a consequence of this, the Tribunal gives it little weight.
The applicant wrote of two personal experiences of criminal activity whilst in South Africa. His wife was at home with the kids when their garage was broken into, and electrical tools were taken despite the alarm being activated. The police did not investigate. In the second example, bicycles were stolen from their garage. The Tribunal accepts that these incidents occurred but the fact of the garage being broken into and tools and bicycles being stolen does not meet the threshold to be considered to be significant harm.
The applicant also claimed that whilst cycling in public, he was stabbed in the back with a blunt object and was winded and unable to prevent the theft. The Tribunal accepts this incident occurred while noting that being stabbed connotes a sharp implement was used, which appears not to be the case here, as a blunt object was used and being winded was the result. The Tribunal finds that the applicant did not suffer significant harm as he was merely winded.
The Tribunal gives little weight to these incidents in the context of a protection claim as they are examples of the generalised violence that occurs in South Africa, and there was no significant harm suffered.
The Tribunal does not accept that these incidents indicate that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk that they will suffer significant harm.
Claims arising from the second applicant’s mental health
The Tribunal has already set out that the second applicant suffers from PTSD and fear return to South Africa. She has referred to the anxiety she experiences and that this is due to being exposed over a protracted period to intense fear of being raped and tortured; and that her husband and children would be killed or hurt in some way.
In her statutory declaration the second applicant wrote that they lived in homes with electrical fences, remote access, and intercom gates with cameras. All the windows were burglar-proofed. They had guard dogs and slam lock gates between the bedrooms and the rest of the house. When her husband was called out to work, the minute his phone rang in the night, her stomach would churn and contract. Anxiety would overcome her as the fear of being alone in case somebody was watching and gained access to the home was overwhelming.
She wrote that she would keep checking windows and go over different scenarios in her mind as to what to do if attackers gained access. Her behaviour was hyper-vigilant. Paranoia and fear gripped the very fibre of her existence. She wrote that this behaviour carried on through her children’s lives.
In a post hearing submission, the second applicant referred to something the Tribunal said to her at the hearing, to do with examples of assault or violence she saw or experienced as a little girl. She wrote that for her these things were not in the past as they live with her as trauma, and the current events and crimes are very real. They torment her and in her mind it is tangible, tormenting and current. She wrote that it was just a matter of time before they were harmed or killed.
The second applicant claimed, and the Tribunal accepts, that she was asked on occasion by some of her [clients] if her husband was the applicant. She claimed that this made her feel she was being watched, even by [her clients].
The Tribunal accepts that the second applicant is genuinely fearful of returning to South Africa. It finds that this is a result of the high level of crime and violence in South Africa, which is a real risk faced by the population of South Africa generally and is not faced the applicant personally. Her psychological vulnerability is not of itself grounds for granting complementary protection. There needs to be intention on the part of another to cause significant harm which is exhaustively defined in s.36(2A). It sets out that a person will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The wording of the five indicates that in each case, there has to be intent – by, for example, another person or by the state - to cause significant harm by arbitrarily deriving or carrying out or subjecting the person. A person’s dread or fear of being removed from Australia to the receiving country does not mean that they face a real risk of significant harm, in the absence of an intention by another person or the state to cause them harm.
Claim arising from evidence given about the fourth applicant’s former partner
The father referred to discovering around this time that the daughter was in an abusive relationship and needed her parents to help her leave it. The daughter wrote about this in her statement, stating that she was grateful that her parents found out about it and came to her aid as she had started to accept that the abusive relationship was normal. In her statement the fourth applicant made no claims about fearing harm from her former partner if she was to return to South Africa. The fourth applicant said that an interdict had been issued against him (a domestic protection order) several months before she left South Africa but she could not remember when. She said that after the interdict was issued nothing of concern happened. The Tribunal asked if her former partner had tried to contact her since. The second applicant said that he contacted about two years ago. The Tribunal asked about it and was told he sent a message along the lines of “Hello, how are you” and there was nothing threatening in it. It was submitted that he [suffered from a mental health issue]. The Tribunal accepts that the evidence given about this man and the relationship is true.
When asked if there was any concern as to what might happen if they returned to South Africa with regard to this man, the father said “Who knows what will happen?”. The Tribunal concluded there were no substantial grounds for believing that as a necessary and foreseeable consequence of the fourth applicant returning to South Africa, that there is a real risk she would suffer significant harm from her former partner. He did not bother her in South Africa after the interdict was issued, he politely enquired after her about two years ago and the fourth applicant did not make any claims about fearing harm from him should she return to South Africa.
Claim arising from evidence given about an altercation involving the third applicant
In his statement of 10 June 2019, as recorded above, the son wrote about an incident in 2009 when he came to the aid of his sister who had been hit by a black student. The tribunal asked the third applicant about this. He said that the incident happened when he was [age] years old and he left South Africa when he was [age] years old. The Tribunal asked him if anything happened during those five or so years. He said that he saw the other man at the [location] who said “You are going to die” but he did not follow through on the threat. Nothing untoward happened. The third applicant explained that the youth of the day would hang out at the [location] in three groups – whites, blacks and coloureds. Now and again a fight would break out and people would stay with their group in whatever part of the venue their group tended to be based in. The Tribunal accepts that the third applicant met this man in the [location] as he claimed. It does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the third applicant returning to South Africa that he would face a real risk of significant harm from the man who threatened him in the [location] some ten years ago; that claim was not made by the third applicant in his written statement or at hearing.
Claim arising from potential separation from family
After the hearing the third applicant’s wife wrote to the Tribunal. She stated it would be inhumane to split the family up, and denying her and her daughter the opportunity to grow up in a family-orientated environment and with family values.
The Tribunal considered the effect upon the third applicant of being separated from his partner and child if he was removed from Australia, and his wife and child did not travel with him. Guidance is given in the case of SZRSN. The appellant in that case wanted to stay in Australia to be with his partner and child and not be returned to his receiving country. He argued he would suffer significant harm if he was separated from his child. The Tribunal has already referred to the place of ‘intent’ and ‘intention’ with regard to significant harm.
The Tribunal is satisfied that there is no intent to inflict pain or suffering or any other form of significant harm upon the third applicant by separating him from his partner and daughter. Any pain or suffering he might experience as a result of separation from them will be a consequence of his removal from Australia rather than him being removed to the receiving country.
The Tribunal finds therefore that the third applicant being separated from his partner and daughter who live in Australia does not satisfy the criteria for a protection visa.
The Convention on the Rights of the Child (CROC) sets out principles to do with the best interests of the child and references separation from one or both parents. The Federal Court has considered whether such principles apply to the determination of protection visas and concluded they do not. The Tribunal is satisfied that it need not consider any further the impact of its decision upon the third applicant’s daughter.
CONCLUDING PARAGRAPHS
The Tribunal has considered the applicants’ claims under the Refugee Convention individually and cumulatively and found that they do not engage Australia’s protection obligations. The Tribunal finds that none of the applicants have a well-founded fear of persecution for any Convention reason should they return to South Africa now or in the foreseeable future. The Tribunal is satisfied therefore that they do not meet the requirements of s.36(2)(a).
The Tribunal has also considered whether any or all of the applicants meet the criteria for protection under the complementary protection provisions. In particular it has considered the father’s claims relating to his work at [Business 2]. It has also considered whether the high rates of crime and violence in South Africa engage protection obligations under the complementary protection provisions for all or any of the four applicants and is satisfied they do not. It has considered the other claims raised, including those concerning the daughter’s former partner, the mother’s mental health, the altercation between the third applicant and another, and the impact of the potential separation between him and his wife and daughter.
In summary, the Tribunal does not find for any of the applicants that there substantial grounds for believing, as a necessary and foreseeable consequence of them being removed from Australia, there is a real risk any of them will suffer significant harm.
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). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Susan Hoffman
Member
Gouws, A. (2018) South Africa may finally be marching towards solutions to sexual violence, accessed 1 August 2019 at N. (2018) Cyberbullying and rape culture, accessed 1 August 2019 at
Griffin, T. (2019) She Protested Against Campus Rape Culture After Being Sexually Assaulted. Then Her School Banned Her For Life, accessed 1 August 2019 at
Adebayo, B. (2018) Rape of seven-year-old in South African restaurant sparks outrage over sexual violence, accessed 1 August 2019 at
EFE-EPA (2018) South Africa sees rise in homicides, rape, sexual assault cases in 2017-18, accessed 1 August 2019 at
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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