1619584 (Refugee)

[2020] AATA 5581

1619584 (Refugee) [2020] AATA 5581 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1619584

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Jane Marquard

DATE:10 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a protection visa.

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 10 December 2020 at 9:57am

CATCHWORDS
REFUGEE – protection visa – South Africa – race – white South African – targeted for crime – discrimination on the basis of race – access to employment, social or health services – affirmative action in favour of black South Africans – particular social group – elderly people – victim of crime on numerous occasions – random and non-selective in nature – complementary protection criteria – torture, cruel or inhuman treatment or punishment – inability to access jobs, services or treatment – intention of the state – arbitrary deprivation of life – elements of capriciousness, inappropriateness, injustice or lack of predictability – risk of crime faced by the population generally – state protection – compassionate circumstances – serious, ongoing and irreversible harm to an Australian citizen – carer for a disabled Australian citizen – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 417
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
EZC18 v MHA [2019] FCCA 464
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
MZAAJ v MIBP [2015] FCA 478
MZAAJ v MIBP [2015] FCCA 151
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZDCD V MIBP [2019] FCA 326
SZQRB v MIAC [2013] FCAFC 33
SZTAL v MIBP [2015] FCCA 64
SZTEQ v MIBP (2015) 321 ALR 44
SZTGM v MIBP [2017] HCA 34

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The first named applicant is a [age]-year-old man from Johannesburg, South Africa. He first arrived in Australia with his wife, the second named applicant, [in] May 2012 on a [tourist] visa. They departed Australia in May 2012 and were granted further tourist visas on 8 July 2014. They arrived back in Australia [in] August 2014.

2. The applicant and his wife applied for protection visas under s.65 of the Migration Act 1958 (the Act) on 2 July 2015. A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visas on 4 November 2016.

3. This is a review of the decision by the Department to refuse the applications for a protection visa, by the Administrative Appeals Tribunal (the Tribunal).

   NO JURISDICTION IN RELATION TO SECOND NAMED APPLICANT

4. The second named applicant passed away in 2019.

5. The Tribunal therefore has no jurisdiction in relation to the second named applicant as there is no longer a valid application for review.

   CRITERIA FOR A PROTECTION VISA

6. The Tribunal must determine whether the first named applicant (hereafter called the applicant) meets the refugee criteria or the complementary protection criteria set out in the legislation.

7. 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, he or she 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.

8. 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 because the person is a refugee.

9. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of that country: s.5H(1)(a).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

11. 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 the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    SUMMARY OF FINDINGS IN RELATION TO FIRST NAMED APPLICANT

13. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

14. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

15. The Tribunal refers the matter to the Minister for consideration pursuant to s.417 of the Act pursuant to which the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration

16. The Tribunal has taken into consideration the evidence adduced to the Department as well as evidence before this Tribunal. The Tribunal has also considered information from independent sources about South Africa.

    Summary of evidence before the Department

17. The applicant and his wife made claims in their application forms and provided evidence at an interview with the Department on 6 October 2016. A summary of the evidence follows.

18. The applicant stated that he is elderly and white, and he and his wife left South Africa as there was no-one left in the country to assist them in times of need. The applicant’s parents have passed away. [His sister] is elderly and being cared for by her children. [Another sibling] was in the process of moving to [Country 1]. The applicant’s daughter, [named], [a Country 2] citizen, is living in [Country 2]. His son, [named], is an Australian citizen and lives with his wife and children in Australia.

19. The applicant grew up in Johannesburg, attending school for [number] years until [grade], in [year]. After that he was an apprentice [Occupation 1] from [year] to [year] in [Town 1]. He qualified as a [Occupation 1] in 1963. He also completed his military conscription. This was for nine months and then three weeks each year for three years, until [year]. He was in the technical corps as [an Occupation 1] and did not undertake active duty.

20. After discharge from the military he worked for a company called [Business 1] in various roles for 11 years. He then worked for a company named [Business 2] and then a company called [Business 3] as [specified role] for 10 years. He retired from [Business 3] in July 2014 prior to travelling to Australia.

21. The applicant and his wife resided in various houses around Johannesburg. They lived in [one location] from December 2004 to April 2009. They lived in a rural area, [Town 2] on a farm from 2009 to 2013. They were burgled twice when he and his wife were not at home. One month prior to these burglaries their [dog] was poisoned. They lost nearly all their possessions. They could not afford the high premiums for insurance.

22. They lived in [Town 3] from July 2013 to August 2014. The applicant and his wife were also held up in a carpark of a shopping mall by four black youths. Their jewellery and money were taken. On another occasion, the applicant withdrew money from an automatic teller machine, and it was taken from him. On a third occasion, the applicant’s debit card was snatched from his hand and 500 Rand withdrawn.

23. The applicant claims that he and his wife were verbally abused on numerous occasions by blacks and were told that they were foreigners and were not welcome.

24. On another occasion, the applicant was carjacked at traffic lights after attending church by a man holding a knife and his accomplices. They demanded his money and cell phone.

25. Other family members have been physically attacked and one was tied up with barbed wire.

26. The applicant said that the incidents were reported to police, but they were told the police could not do anything as there were no witnesses. The applicant claimed that police are corrupt and side with the criminals. The police have no interest in protecting white people. The police participate in armed robberies, side with criminals, hire their guns to criminals and do very little with complaints from white people. Murder rates are high and ‘will lead to genocide of whites’ as criminals know police protect them. The applicant claimed that the justice system is corrupt, arrests do not lead to convictions and prisoners escape. The President and other party leaders incite and give approval to the black nation via media, meetings and on the street, allowing them to harm and kill white people. There is nowhere safe to relocate.

27. The applicant and his wife travelled to Australia in 2012 as their daughter bought them tickets as a gift. Their intention was to visit their son as a surprise for his birthday. They did not consider applying for protection as their situation was ‘not as it is now’. The couple had a ‘no further stay’ condition imposed on their visa and were not initially aware that they could apply for protection. It did not cross their mind to seek asylum in [Country 2] when they visited their daughter on numerous occasions as things were not as bad as they are now.

28. The applicant expects physical injury at any time in South Africa and is always looking over his shoulders to watch for attacks. He fears injury, robbery, molestation, or losing his life. Elderly people are easy targets for criminals.

29. He claims that the South African government and the majority of the black nation do not want white people to live or work there. The Broad Based Black Economic Empowerment Bill has as its objective taking economic control from the whites. Police do not assist white people when crimes are committed. He also cannot rely on assistance from other whites who will put themselves in danger.

30. The applicant was diagnosed with type 2 diabetes in 2002. Services and treatment deteriorated, and he had to attend a private clinic from 2012. He was told that his type 2 had become type 1 and he would require insulin injections for the rest of his life. When he arrived in Australia in 2014 a local doctor advised him that he had [a specified condition], from taking [his] medication. This has improved dramatically and he is now treating his diabetes with tablets. This indicates the doctors in South Africa did not do what they should have. He cannot afford private medical care and state hospitals do not provide proper medical assistance. He could only afford medication while his finances last. He is concerned about treatment in South Africa.

31. The applicant claimed that he would be homeless and could not find employment at his age and because of his race. He does not own or rent a house currently. He said that his money will only last him two months in South Africa. In Australia his son assists him when needed. He provided a bank statement issued in 2015, as well as information on the cost of rent and second-hand vehicles in South Africa.

32. The applicant provided a large number of articles about genocide and discrimination against white people in South Africa, dated from 2012 to 2015.

33. He also provided medical reports from 2014/2015 demonstrating that he had been diagnosed with type 1 diabetes.

    Evidence before the Tribunal

34. The Tribunal initially scheduled a hearing for 23 March 2020, however this hearing had to be postponed because of the COVID-19 pandemic. The hearing was rescheduled for 6 October 2020. The applicant appeared by video from the Tribunal hearing room in Perth, as the Tribunal member was located in Sydney and was unable to travel due to the COVID-19 pandemic.

    Evidence of the applicant

35. The applicant made a number of written submissions to the Tribunal in which he repeated his claims made as part of his application and made a number of new claims. A summary of his written and oral evidence follows.

36. In his submission he claimed that if he returned to South Africa, he would not have a place to live, or a job, and he would not be able to access his diabetic medication.

37. He claimed that under the current South African government there had been a rise in crime against the elderly, which appears to be condoned by the government and goes unpunished.

38. He said that in Australia he earns a small weekly income as a pamphlet distributor and he lives with a man called [Mr A] who has many health problems. He assists him with cleaning, cooking and making sure he takes his medication.

    Personal particulars

39. At the Tribunal hearing the applicant confirmed that he was born in Johannesburg. His family were all born and bred there. He grew up and went to school in [a named school] and completed [grade] and then joined a trade in [year]. He had a five-year apprenticeship with a [Occupation 1] firm.

40. He has [number of siblings]. One is living in [Country 1] – [having] married [a Country 1 citizen]. His [sister] is elderly and has retired. She is married with one child living in Victoria, Australia and another child living in Johannesburg.

41. His mother and father are deceased. He has lost contact with various cousins who live in South Africa and is not sure where they live.

42. He has a son who lives in Perth who is an Australian citizen. He is married with two grandchildren, aged roughly [age] and [age]. He also has two great grandchildren. He used to live with his son, but later through the church, he got to know [Mr A] who is disabled, so his wife and he lived with him and looked after him. His son agreed that he should live with [Mr A] as they live close to each other and spend a lot of time together. The applicant works all day, but he sees them on weekends when his son is home from [his work]. He often takes [Mr A] with him.

43. He has a daughter in [Country 2]. She has been there for fifteen years or so. She has her own business. She has two daughters. One of them has a child.

44. During the apprenticeship, he was conscripted to the army for nine months plus a number of camps thereafter for four years. He stayed with the [Occupation 1] firm for a number of years. He got [a medical condition] so he gave it up. He then started selling [products] for ‘maybe 20 years’ and he also had a [business] which he sold. He later moved to [Business 1], who own [another business], in their manufacturing area and then in the production line for roughly 11 years. He then worked for [Business 2] then [Business 3] – [product] manufacturers – until he left South Africa.

45. He was working for [Business 3] before coming to Australia. During this time he lived in various suburbs of Johannesburg, ending up in Town 3]. He owned his home for a long time but when he left he did not own any property. His wife was working at [Business 3] as well as a [specified role].

46. He visited Australia once when his son first arrived for one month.

47. The day he left for Australia he decided to retire. His company did not provide superannuation, which was not compulsory for businesses after 1997. They also did not provide medical aid.

48. When he came to Australia he wanted to stay in Australia as they had many encounters in South Africa which made them want to leave. He had a visitor visa for one year.

    Crime

49. The applicant said that when the new government took over in South Africa, they faced a lot of crime. He was stopped at traffic lights and his wallet taken. They could not go out because they were afraid of being attacked. He and his wife stayed home most of the time.

50. They were burgled twice when living on a small holding in [Town 2]. He said the first time they were away at work and the second time they were not home. They were also held up in a carpark of a shopping mall by four black youths. Their jewellery and money were taken. They had been doing some shopping and they were asked for money. They did not have much money but the burglars took it. That was roughly a year before they left for Australia. He wanted to stay in Australia after these incidents. On another occasion, the applicant withdrew money from the ATM and it was taken from him. He said that in South Africa the criminals would stand behind them and watch them. He drew the money and they asked him for it, so he gave it to them as he did not want to put his life in danger. After that he stopped withdrawing money from the ATMs.

51. On another occasion, the applicant was carjacked at traffic lights after attending early morning mass by a man holding a knife and his accomplices. He said that it was early morning mass. He looked up and there were four men around him, one with a knife. He told them he did not have much money but they took what he had as well as his telephone.

52. He said that all these incidents took place in the three years prior to coming to Australia.

53. He said that they reported the robberies to the [Town 2] police station. He said the police came out and gave them a case number but they never heard anything about it after that. He said that he gave the case numbers to the police but they had not progressed with the case. They did not report the hold-ups.

54. Other family members have been physically attacked as well.

55. He said that prior to this spree of crime, they were happy, but they became very scared. They did not want to go out at night and did not go out for dinner. He said that ‘it was not a life’.

    His wife

56. The applicant’s wife lived for only one year after being diagnosed with cancer in 2018. In July 2019 she passed away and he has been alone since. He said he has found it very difficult to move on since then without her.

    Fears for return

57. Asked what he fears if he returns to South Africa, the applicant said that he has no place to stay and could not get a job at his age and because of his race. He does not own or rent a house currently and would be homeless. He said that jobs have dwindled for whites over the last six years. He said that his money will only last him two months in South Africa. In Australia his son assists him when needed. He provided a bank statement issued in 2015, as well as information on the cost of rent and second-hand vehicles in South Africa.

1. He claimed that in South Africa he could not get medical insurance and would not be able to get treatment for his diabetes. He said that the Australian doctors took him off insulin and put him on to other medication which he would not be able to access in South Africa. He fears having to live in a white squatter camp. Asked if his son or daughter could help him financially, he said that they fear for him as well. He said that when he arrived in Australia in 2014 he had the sum of R84,520.00. When converted into Australian currency, this amounted to $8452 which they deposited in a bank account.

2. He said that he secured a letterbox distributor position with [a business] which he started in December 2014.

3. He said that on 28 April 2016 he took out medical insurance with [an insurer] for $280 per month.

4. He said that they befriended [Mr A] through his brother. He has disabilities, with [specified medical conditions]. He and his wife suggested going to care for him, which he accepted and they moved in on 7 October 2016. He and his wife took care of medication, odd jobs, taking him to appointments and preparing meals. In 2018 his wife was diagnosed with cancer. She died [in] July 2019.

5. In October 2019 the applicant was admitted to hospital with a [medical condition]. He was discharged [later in] October 2019. He ceased delivering the post. On 27 November 2019 he was employed as [an Occupation 2]. He finances himself fully.

6. He said that it is difficult for elderly white people to find work in South Africa and there is no pension available. He is very concerned about the medical system in South Africa as well. He provided copies of his remittances from [his employer], his [insurance] bills, consent forms for donation of his deceased wife’s eyes, his wife’s death certificate, his successful application for a tax file number and his payments from the [Occupation 2] company.

7. He provided an article about South Africa’s post-apartheid squatter camps[1] in which photographs are shown of the squalid conditions in which hundreds of families live. The article states that according to the 2014 census, whites now make up less than 10 percent of the country’s population. Estimates on the percentage of whites living in the country run as high as 12% (400,000 whites). The article refers to fact-checking website Africa Check stating that this is grossly exaggerated with the number of white households at 7754. The applicant also provided an article about South Africans leaving the country, and an article on the COVID-19 pandemic in South Africa. The article suggests that 82% of people have no health insurance and rely on overcrowded public clinics and hospitals, which are overstaffed.[2]

   [1] Daily Mail, Inside South Africa’s post-apartheid ‘white squatter camps’, 14 March 2020.

   [2] Aljazeera, Tension, fear as South Africa steps up coronavirus fight, 18 March 2020

8. He claimed that the South African government and the majority of the black nation do not want white people to live or work there.

   Evidence of [Mr A]

9. [Mr A] said that the applicant is his carer and has been for many years. He testified that the applicant lives with him and ‘does everything’ for him. He said that he cares for him by cooking, taking him to doctors’ appointments and assisting him with taking his medication. He said that sometimes they go out together and visit the applicant’s family. He said that both he (and his wife when she was alive) provides him with excellent care. He said that the applicant has a very good character. He emphasised that for his own welfare it was very important to have the applicant in Australia. He said that he is ‘excellent in all ways’.

   Evidence of [the applicant’s son]

10. The witness is the son of the applicant. He has been in Australia for fifteen years and is an Australian citizen. He is married with two children, and they are all citizens. The witness said that he is truly grateful for being in Australia and having the opportunities he has had.

11. The witness said that after three years he went back to South Africa for a visit, and it was a shock to see what had happened. He said that people are permitted to drive through traffic lights rather than be carjacked. A father ran out of fuel going to [a named town] and when he returned, his daughter had been raped and killed. He said that this sort of thing happens all the time.

12. He said that ‘South Africa is not a nice place for old people’. He said the infrastructure for old people is bad and the elderly are easy targets for crime. He said that older people are easiest to rob. Because of the economy there are senseless murders of old people. He said that ‘every day you hear another story’. There are some horrific stories and for old people there is ‘nowhere to go’.

13. The witness referred to a number of examples of crime he had experienced. He said he was ‘at work once and the manager came in, full of bullet holes’. He had been hijacked by individuals who were shooting at cops and he got caught in it. Another [friend] tried to confront burglars and got shot in the side. His sister-in-law was pushed off the road in her car and was in hospital for six months. He said that the situation is getting worse and the police are corrupt.

14. The witness said that the applicant is still able to work and although elderly, would work in anything and has a trade. However he could not work in South Africa as there are no jobs and no pension funds. If you go to hospital in South Africa now you need to take your own blankets.

15. He said that the applicant is a hard worker. His father does everything to help [Mr A], who has [medical condition] and cannot drive. His mother when she was alive also cooked and washed clothes. His father was very sad when his mother died. When his father was in hospital recently, [Mr A] was very worried. His father does the shopping and cooking. They are the best of friends.

16. His children and grandchildren love having the applicant around. He is very jovial and they love him. He is part of the family and they would be lost without him.

17. He is a very good person. He does everything to be independent and not burden his family. He is always trying to do things on his own. He tries his best in everything. The witness said they had offered their father a place in their home, but he says he cannot leave [Mr A] who would not survive on his own. When his mother died, the hospital asked if he would be prepared to donate her organs. They used her eyes to help someone else. They asked him in the hospital if they could use them. Later, he received a letter saying that two people had benefitted from her organs. It was a very hard decision for his father to make, however he knew his mother would have wanted to help someone.

18. The witness said that ‘he is the greatest dad out there and has sacrificed so much for us. He just wants them to be happy. He would give up his last cent for his family without clothes on his back. He never complains and always helps.’

    DECISION OF THE DEPARTMENT

19. The Department was not satisfied that there was a real chance of serious harm or a real risk of significant harm if the applicants were to return to South Africa, given country sources which indicate that in general crime is not race-based.

    FINDINGS AND REASONS

    President’s Direction

20. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. The Tribunal also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[3] and

    [3] At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).

    ·that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[4]

    [4]At [8.1].

21. The Tribunal exercised its discretion to hold the hearing via video due to the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and that the hearing provided a real opportunity to be heard.

22. In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant and maintain line of sight and appropriate communication throughout the proceedings.

    Relevant legal principles

23. The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.

24. The findings of the Tribunal, based on the evidence provided, are set out below.

    Nationality

25. The applicant has a South African passport issued [in] 2017. The applicant testified that he is a citizen of and was born in South Africa. The Tribunal is satisfied on the basis of the passport and his oral evidence that the applicant is a citizen of South Africa, and that South Africa is the receiving country for the purposes of the legislation.

    Findings of fact

    The reasonable approach to fact-finding

26. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.

27. This approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

28. The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

29. The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[5] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has also taken into consideration the applicant’s vulnerability. He is [age] years old and has a number of health issues. Further, he lost his wife in 2019 after a short illness, and this has clearly affected him greatly.

    [5] AAT, Guidelines-on-Assessment-of-Credibility.pdf (aat.gov.au)

    Findings of fact

30. The Tribunal found the applicant to be a very credible witness. He did not appear to inflate or exaggerate his claims and has provided consistent evidence to the Department and Tribunal. The Department also had no issue with his credibility. The Tribunal is satisfied on the basis of his evidence, as supported by his son’s evidence, that the applicant and his wife were victims of crime on numerous occasions in South Africa as claimed. This has included being held at knifepoint in his car, a number of robberies and their pet dog being poisoned. He and his wife were also burgled at a shopping centre by four youths. The Tribunal accepts also that other relatives have been victims of crime. As discussed further below, sources indicate that South Africa has high crime rates and the applicant’s experiences with crime would not be uncommon in South Africa.

    Well-founded fear of persecution

31. Under s.5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

32. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant have a fear of persecution?

33. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons set out in the legislation. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

34. The Tribunal is satisfied that the applicant genuinely fears returning to South Africa on the basis that he will be attacked as an elderly white person and due to the prevalence of crime in South Africa.

35. The applicant has been the victim of crime on multiple occasions. This has included traumatic experiences, for example on one occasion being held at knifepoint in his car, and he and his wife being burgled in the carpark of a shopping centre by four youths. It is reasonable to assume that a person who has lived these experiences would have a genuine fear of being targeted if he returned to the country.

    Is there a real chance that the applicant would be persecuted for reasons of his race?

36. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted for one of the reasons set out in the legislation. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

37. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 percent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

38. The Tribunal has summarised below a range of independent sources regarding population statistics for white people in South Africa, the state of the economy, discrimination against whites, crime rates and targeting of whites for crime.

39. The Tribunal is not satisfied, after carefully reviewing these sources, that the applicant has a real chance of persecution for reasons of his race (in the sense of a substantial or non-remote chance[6]). The reasons for this are as follows. Firstly, the evidence establishes that there are significant problems in South Africa with unemployment, housing availability and health care, but the sources state that white people are not generally discriminated against in relation to employment or services. Secondly, the evidence does not establish that white people are disproportionately targeted for crime, although there are incidents of race-related crime. Thirdly, the evidence suggests that problems in the police force are due to corruption and resources, rather than withholding of state protection due to race.

    [6] Chan v MIEA (1989) 169 CLR 379

    White people in South Africa

40. An overview provided by the Canadian Immigration and Refugee Board states as follows:

    Sources indicate that the population of South Africa is approximately 56.7 or 57.7 million (South Africa 20 July 2018; World Bank 6 July 2018). According to sources, white South Africans make up eight or nine percent of the total population (The Guardian 23 Aug. 2018; Campbell 30 Aug. 2018; Al Jazeera 30 Aug. 2018; WSJ 23 Aug. 2018).[7]

    State of the economy in South Africa

41. South Africa ranked 113 out of 189 countries in the United Nations Development Programme (UNDP) Human Development Report 2019. The UNDP Human Development Index is a composite index measuring average achievement in three basic areas of human development – a long and healthy life, knowledge and a decent standard of living.[8]

42. According to the CIA Fact Book, South Africa is a middle-income emerging market with an abundant supply of natural resources; well-developed financial, legal, communications, energy, and transport sectors; and a stock exchange that is Africa’s largest and among the top 20 in the world.[9] However, economic growth has decelerated in recent years, slowing to an estimated 0.7% in 2017.Official unemployment is roughly 27% of the workforce, and runs significantly higher among black youth. Even though the country’s modern infrastructure supports a relatively efficient distribution of goods to major urban centres throughout the region, unstable electricity supplies retard growth.[10]

    [7] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

    [8] United Nations Development Programme, Human Report 2019, 2019

    [9] CIA World Factbook, South Africa, 17 June 2020

    [10] CIA World Factbook, South Africa, 17 June 2020

100.   South Africa provides public or social housing to individuals with limited or no income. However, sources indicate that the amount of available housing is insufficient to meet demand.[11]

[11] The Conversation, South Africa’s Housing Challenge seen through the lens of its largest city, 22 September 2017

101.   According to a 2015 African Institute of Health & Leadership Development Report, the majority of South Africans access health services through government-run public clinics and hospitals[12] which are underfunded and overcrowded.

[12] African Institute of Health & Leadership Development, Minimum data sets for Human Resources for Health and the surgical workforce in South Africa’s Health System – A rapid analysis of stock and migration, September 2015, p.3,

102.   An article in Bloomberg dated 22 January 2020, stated:

The African National Congress party, which has led the country for more than 25 years and holds 58% of seats in Parliament, has committed to enacting universal health insurance, outlining the framework in a draft law published in August [2019]. Significant questions remain, including which drugs and services will be covered and how the whole thing will be financed. But with the country’s biggest labor group behind it, the bill’s fate is clear: South Africa will soon join the majority of the developed world in providing some form of nationalized health care…

Of the nation’s 60 million people, about 16% have private insurance, many of them white and comparatively wealthy. They’re served by 70% of the nation’s doctors and consume almost half the spending on medical care, according to the health department. That leaves the remaining 84% of the population to crowd into government hospitals and clinics beset by underfunding, broken equipment, and personnel shortages. The most recent government-mandated inspection report showed that just 5 of 696 public hospitals and clinics met at least 80% of the national standards for such measures as drug availability and infection control.[13]

[13] Bloomberg, Universal Health Care, the South African Way, 22 January 2020

Are white people subject to discrimination in South Africa?

103.   The applicant claims that white South Africans find it more difficult to get work due to the black economic empowerment programs and other employment discrimination. Asked if whites are denied services, he said ‘sometimes but not always’. He said that the system of social services is ‘pathetic’. As a white he would always need to queue up.

104.   The Freedom in the World Report for 2020 indicates that although the affirmative action legislation benefits previously disadvantaged groups in public and private employment, racial imbalances in the workforce still exist, with white people still owning most business assets. [14]

[14] Freedom House, Freedom in World 2020 Report South Africa, 2020

105.   A September 2018 Immigration and Refugee Board of Canada report provides some information about the relative level of access to employment of white South Africans as opposed to their black compatriots. It indicates that white South Africans are not generally discriminated against when seeking work.[15] Sources quoted in that report suggest that the unemployment rate of white South Africans is far lower than that of black South Africans, and that the majority of senior management positions are occupied by whites.[16] A table in the report shows that in all sectors of the economy, representation of whites is more than five times their economically active population.[17]

[15] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

[16] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

[17] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

106.   According to John Campbell, the Ralph Bunche Senior Fellow for Africa Policy Studies at the Council on Foreign Relations in Washington DC, net wealth of black South Africans is only about five percent of the average net wealth of white South Africans and whites are in a privileged position in South African society. He finds that South Africans do not face any specific threats or challenges in society, for example, in access to employment, education, health or housing (30 August 2018).[18]

[18] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E, 21 September 2018

107.   Furthermore, the Vice-Chancellor of the University of Witwatersrand, also a political science professor, states that in terms of accessing public health care and education, white South Africans face the same issues that black South Africans do. However generally black South Africans are burdened more because of their access to resources. He indicated that public services and policies apply to many and to all (4 September 2018).[19] According to AfriForum there is no legislation that discriminates against white South Africans in terms of health care (7 September 2018).[20]

[19] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

[20] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018

108. Access to health care is guaranteed to every South African citizen under the country’s Constitution. In practice, the provision of health services is divided into public and private facilities – the latter dependent on an individual’s ability to pay.[21]

[21] Bloomberg, Universal Health Care, the South African Way, 22 January 2020

109.   A World Health Organisation Report on health care in South Africa states that the majority of the population has access to health services through government-run public clinics and hospitals. The report suggests that African physicians are well qualified from a clinical and academic perspective.[22] One report suggests that the standard of health care in South Africa is considered the best on the African continent, with guaranteed universal access to subsidised public health care, for all citizens, based on a sliding scale according to income. A National Health Insurance (NHI) initiative is in a pilot phase prior to being introduced across the country in a phased approach from 2016–2025.[23]

[22] World Health Organisation, South Africa’s health system, September 2015

[23] Allianz Care, Healthcare in South Africa,  There is an old-age pension available for people over 60 years old, regardless of race, currently R1 860 per month.[24]

[24] South African Government website, Old age pension,  Major human rights reports have not identified discrimination or violence against whites as an issue in regular reports.[25]

Crime in South Africa

[25] See for example, Human Rights Watch, World Report 2020 South Africa,  South Africa has high crime rates,[26] with the fifth highest murder rate in the world.[27] In 2019 to 2020 there were 21,325 murders, an average of 58 murders a day or 36.3 murders for each 100,000 people.[28] In 2018 to 2019, the police recorded a total of 21,022 murders, an increase from 2017/18 which had a rate of 20,336 murders.[29] The murder rate increased from 35.8 per 100,000 people to 36.4 per 100,000, an average of 58 murders per day.[30] This compares to Australia’s 1 per 100,000 according to 2014 figures.[31] In 2017/18, an average of 56 people were murdered every day.[32] In 2017/18, 156,243 common assaults were recorded. On average, 428 people were victims of this type of assault every day. All provinces have experienced a rise in armed robberies in recent years with the rural provinces of Mpumalanga, North West, Northern Cape and Free State recording the highest increases. Poor areas are particularly affected.[33] There has been an overall 35 percent rise in murder over the last seven years.[34]

[26] Africa Check website, Business Tech, Africa Check, FACTSHEET: South Africa’s crime statistics for 2019/20, 4 August 2020

[29] Institute for Security Studies, Accurate statistics are needed for the SA farm murder debate’, 11 December 2017, Africa Check, FACTSHEET: South Africa’s Crime statistics for 2018/2019, 12 September 2019

[30] FACTSHEET: South Africa’s Crime statistics for 2018/2019, 12 September 2019

[31] News.com.au, South Africa farm attacks: Brutal crimes landowners face, 17 March 2018, Africa Check, South Africa’s Crime Statistics for 2017/18, Institute for Security Studies, Accurate statistics are needed for the SA farm murder debate, 11 December 2017

[34] Africa Check, Factsheet: South Africa’s crime statistics for 2018/19, BBC, South Africa crime: Police figures show rising murder and sexual offences, 12 September 2019, Institute for Security Studies, Policing alone cannot solve South Africa’s violence,12 September 2019

113.   Police Minister Bheki Cele has described the statistics as being close to those found in a war zone,[35] while criminologists agree that violent crime is pervasive in South Africa and affect every sector of society.[36] Institute of Race Relations crime analyst Kerwin Lebone said that ‘South Africans live with horrific levels of violent crime’.[37]

[35] The Guardian, South Africa: murders surge by more than 7% in a year, 12 September 2018

[36] News24, Ramaphosa’s ‘killings of white farmers’ comment: What the president meant, 27 September 2018

[37] SBS, Who are South Africa’s persecuted white farmers?, 11 April 2018,  The applicant comes from Johannesburg which has been ranked among the most dangerous cities in the world, based on crime statistics.[38]

Are white people targeted for crime for reasons of race?

[38] IOL News, Joburg ranked among 10 most dangerous cities in the world (iol.co.za), 16 May 2020

115.   Sources indicate that crime in South Africa is often random and non-selective in nature.[39] Some crimes are motivated by race but generally crime is tied to economic need, as well as problems associated with unemployment and other factors affecting low income areas such as gangs, drug and alcohol abuse, and a violent sub-culture. Silber and Geffen have reported that everyone in South Africa is affected by crime, and the consequent sense of insecurity that comes with living in fear.[40] A 2011 survey showed that a third of South Africans are so afraid of being attacked by criminals that they will not walk alone in public places and many people secure their homes against thieves and carry a gun for protection.[41]

[39] See for example, United States Department of State, Crime and Safety Report, South Africa, SA Crime Quarterly, Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis, No 30, December 2009; Immigration and Refugee Board of Canada, ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, 21 September 2018

[40] SA Crime Quarterly, Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis, No 30, December 2009, p. 35.

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

116.   The issue of what motivates crime has been hotly debated in the context of attacks on white farmers. AfriForum, an Afrikaner lobby group is conducting global lobbying campaigns suggesting white farmers are being targeted and killed, the government is seizing their land and they are being discriminated against through affirmative action programs.[42] The South African Police Service however includes a number of motives under its definition of ‘farm attack’ including race-related issues, land and property disputes, revenge or other grievances.[43] Farmer groups claim race is an important motivating factor evidenced by lower rates of violence against black workers on white farms.[44] A former commissioner of the Human Rights Commission suggests that black farmers are equally affected by farm violence and that race is not a motivating factor.[45] Credible sources also suggest that farm attacks can be opportunistic, given the remoteness of farms and the perception that landowners are elderly and wealthy.[46] Recently, President Ramaphosa rejected claims by pressure groups that a spike in attacks on farms amounted to ethnic cleansing. He strongly denied that farm attacks were racially motivated, instead characterising the attacks as a sad reminder that South Africa was still recovering from its dark past and were acts of criminality which should be treated as such. The article suggested that 49 out of 21,325 murders in the past year had been murders of farmers.[47] There is no doubt though that many if not most of the farm murders have been against whites.[48]

[42] Afriforum website, BBC News, South Africa: the groups playing on the fears of white genocide, 1 September 2018

[43] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015

[44] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015

[45] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015, Associated Press, Pompeo says South Africa land seizures would be disastrous, 19 February 2020

[46] Institute for Security Studies, Accurate Statistics are needed for the South African farm debate, 11 December 2017, Afriforum, Farm attacks and farm murders in South Africa – analysis of recorded incidents – 2019, 19 February 2020, South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015, News24, Farm murders on the decrease – Parliament told, 26 August 2016

[47] Aljazeera, South African President says farm attacks are not racially motivated, 12 October 2020, Farming groups quoted in South African Human Rights Commission, Safety and Security Challenges in Farming Communities, 27 November 2015; AfricaCheck, Factsheet Statistics on Farm Attacks and Murders in South Africa, 8 May 2017,  The World Bank ‘Overview’ on South Africa, updated on 10 October 2019, noted that unemployment is a significant problem in South Africa:

Unemployment remains a key challenge, standing at 27.6% in the first quarter of 2019. The unemployment rate is even higher among youths, at around 55.2%.

South Africa remains a dual economy with one of the highest inequality rates in the world.[49]

[49] World Bank, South Africa Overview, updated on 10 October 2019,  Poor areas are particularly affected by crime.[50] In July 2019 troops were deployed to township areas in Cape Town in an attempt to stop the spike in gang-related killings.[51] In 2015, the United States Department of State ‘Crime and Safety Report’ noted that occurrence of crime was across all metropolitan areas regardless of socio-economic status of a particular neighbourhood. It referred to the official unemployment rate then of 25%, which experts believed to be 40%.[52] In 2007, the Christian Science Monitor reported that ‘it is a war of the have-nots against the haves’ and that ‘crime is apparently not racially motivated. It is black upon affluent black as well as black upon affluent white’.[53] The Economic Intelligence Unit has also stated that crime levels in South Africa are based on one of the most unequal distributions of income in the world, and that rather than race, the causes of South Africa’s crime levels are based on the legacy of apartheid which has created a violent society with high levels of gun ownership.[54]

[50] Institute for Security Studies, Accurate Statistics are needed for the South African farm debate, 11 December 2017

[51] The New York Times, As gang murders surge, South Africa sends army to Cape Town and the city cheers, 13 August 2019

[52] United States Department of State, Crime and Safety Report, South Africa,

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

[54] Economist Intelligence Unit, South Africa risk: Security risk, 20 October 2008.

119.   Many reports reference South African government policy to omit the racial ethnicity of perpetrators or victims in reporting crime statistics.[55] Researchers have tried to assess the racial breakdown of crime through other mechanisms. Some groups, such as young black men or women in black townships, appear to be affected disproportionately, with one commentator stating that people in ‘suburbs can buy security that people in townships cannot’.[56] The ISIS Crime Hub website keeps track of crime statistics across South Africa. Information on the website indicates that crime is prevalent across all metropolitan areas, and that most of the 20 highest crime areas are primarily black residential areas, which are not in the higher socio-economic demographics.[57]

[55] G. Silber & N. Geffen, Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis, SA Crime Quarterly, No 30, December 2009; Africa Check, Are SA whites really being killed “like flies? Why Steve Hofmeyr is wrong’, 24 June 2013; US State Department, Report on Human Rights in South Africa, 2013

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

[57] ISIS Crime Hub,

120.   In terms of the impact of crime on the safety of white South Africans, John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations, is quoted in a September 2018 Immigration and Refugee Board of Canada report as stating that ‘there are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody’.[58] The Chief Executive Officer of the South African Human Rights Commission is quoted in the same report as stating that ‘white people … experience less crime than other racial groups’ in South Africa, while the Vice-Chancellor of Witwatersrand University in Johannesburg says that ‘violence is experienced more by black South Africans’.[59]

[58] Immigration and Refugee Board of Canada, ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, 21 September 2018

[59] Immigration and Refugee Board of Canada,

‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, 21 September 2018

121.   However, according to a 2016 survey conducted by Statistics South Africa – again, cited in the Immigration and Refugee Board of Canada report – ‘households headed by white and Indian/Asians were more likely to be affected by crime than other population groups’, including burglary and the theft of a motor vehicle or motorcycle.[60] As regards the overall threat of violent crime in South Africa however, statistics demonstrate that young black men in townships experience the highest murder rate in the country – estimated in March 2018 by the head of the Institute for Security Studies, a Pretoria-based think tank, to be between 200 and 300 per 100,000.[61]

[60] Immigration and Refugee Board of Canada, ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, 21 September 2018

[61] The Guardian, South Africa criticises Australian plan to fast-track white farmer visas, 15 March 2018,

122.   An article by Gavin Silber and Nathan Green in 2016 analysed the ‘Brandon Huntley’ case in Canada. Huntley was initially granted asylum in Canada on the basis that whites are disproportionately affected by crime. The authors argued that the Brandon Huntley decision has been generally condemned and presented evidence from several sources to demonstrate that black and poor people are disproportionately the victims of violent crime in South Africa, and that everyone is affected by crime.[62]  Brandon Huntley later lost the case on appeal. In July 2020 the Canadian Federal Court upheld the most recent Canadian Immigration and Appeal Board decision, refusing him asylum, with the judge finding that he could seek protection in South Africa from crime or human rights abuses.[63] 

[62] Silber, G and Geffen, N, Race, class and violent crime in South Africa: Dispelling the ‘Huntley’ thesis, March 2016, The South African, 22 July 2020, Huntley’s Circus of asylum appeals to run out,  Silber and Geffen considered the mortality data of Stats SA reported in 2002,[64] records of the Medical Research Council in 2004,[65] and a 2009 random sample of police dockets in one district by the Centre for the Study of Violence and Reconciliation.[66] The authors stated:

Cape Town is the South African city that best exemplifies the uneven distribution of resources that renders this country one of the least equal societies in the world in terms of income… It also happens to fall into one of the most violent provinces in the country… We have analysed Cape Town’s crime data to illustrate the extent of serious and violent me, and who was most affected by it. A recent study carried out by the city of Cape Town contains a breakdown of crimes under investigation by each police district in the year 2007/2008. The results indicate a significant disparity between homicide and rape cases in low income areas when compared to wealthier and traditionally white communities.[67]

[64] Stats SA, Causes of death in South Africa 1997 – 2001: Advance release of recorded causes of death,2002

[65] Silber & Geffen, op cit, p. 40.

[66] Silber & Geffen, op cit, p. 40.

[67] Silber & Geffen, op cit, pp 39-40.

124.   The views expressed above are supported by Africa Check, a non-profit and non-partisan organisation founded in June 2012 to improve fact checking and news gathering throughout South Africa. Whilst Africa Check also notes that South African government crime statistics do not identify the race of the victim or the perpetrator it considered the 2009 analysis. In 86.9% of the cases the victims were black Africans. Whites accounted for 1.8% of the cases although whites then comprised 8.85% of the population.[68]

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

125.   Some prominent figures have made disparaging remarks against white people which have been interpreted as ‘hate speech’.[69] However a hate crime report in South Africa found that most of the victims of hate crimes were black foreigners.[70] The Hate Crimes Working Group, which studied 945 cases of hate crimes over a five-year period, found that nationality, sexual orientation and religion were the three key reasons for hate crimes.[71]

Do the police withhold state protection from whites?

[69] For example, BBC News, ANC Julius Malema’s Shoot the Boer ruled “hate speech”, 12 September 2001,

[70] Times Live, Most victims of hate crimes in SA are black, male and foreign, 8 February 2018, Ibid

126.   A 2015 South African Human Rights Commission report referred to the ‘deeply ingrained’ nature of crime in South Africa, with a feeling among criminals that they will not be caught, and even if they are, that the criminal justice system is not enough of a deterrent.[72]

[72] South African Human Rights Commission, Safety and Security challenges in Farming Communities, 27 November 2015

127.   The Head of the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise said that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident.[73]

[73] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

128.   Another source quoted in the Canadian Immigration and Refugee Board report said that:

[t]here are state protection measures available to white South Africans who are victims of violence. For instance, the SAPS and the judiciary (which is quite independent) offer protection. To illustrate this point: if a person is attacked and robbed on the street, the police would investigate and arrest the perpetrator. The perpetrator is then tried in a court, and then sentenced to jail, without any reference to race. (Campbell 30 Aug. 2018)[74]

[74] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

129.   The Vice-Chancellor of the University of Witwatersrand, who is also a political science professor has said that while police stations and the appropriate infrastructure to address the high crime rate is not always available, all South Africans who are victims of crime have access to the same services, irrespective of race.[75]

[75] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E, 21 September 2018

130.   The Institute for Security Studies said in May 2019 that the overall capacity of the police had declined dramatically, while a government-initiated commission in 2019 heard that corruption had weakened the capacity of the police force.[76] Conviction rates are as low as ten percent for all crimes.[77]

[76] BBC News, South Africa elections – are crime rates rising?, 5 May 2019

[77] United States Department of State, Country reports on human rights practices South Africa 2017, 2018

131.   The Institute of Race Relations in a survey in 2018 found that a quarter of people interviewed said that they had never seen police in their suburb.[78] It appears that police inaction and poor responses are a result of underfunding and resources,[79] rather than discriminatory treatment: ‘despite efforts to professionalize, SAPS remained understaffed, ill equipped, and poorly trained. Corruption continued to be a problem.’[80]

[78] Institute of Race Relations, Free facts – is South Africa losing the war on crime, November 2018, OSAC, South Africa 2018 Crime and Safety Report, 2018, United States Department of State, Country Report on Human Rights Practices for 2018,

[80] United States Department of State, Country Report on Human Rights Practices for 2018,  Other reports also refer to problems with corruption and efforts by the government to professionalise the police force:

The South African Police Service (SAPS) has made a strong effort to decrease its response time in recent years. While active crimes will take precedence over crimes that have concluded, SAPS will respond to incidents within a reasonable time. SAPS patrol vehicles will typically be the first response unit, and they are capable of opening a case docket and taking statements at the scene or can advise the complainant to report the crime at the nearest police station. There are effective detective programs at all SAPS stations, and a detective is on duty 24/7. Once a case is reported to the detective he will generally make contact with the complainant on the same day.

The formation and use of community watch groups is increasing slowly. They complement SAPS’ efforts to detect/deter crime and provide improved response to calls of a serious nature. Though there has been an improvement in community policing, police are often mistrusted and viewed as corrupt.[81]

[81] OSAC, South Africa 2018 Crime and Safety Report, 2018, applicant’s comments on these sources

133.   Cumulatively these reports indicate that whites are not discriminated against on the basis of race, although there is some legislation which provides for affirmative action in relation to black South Africans. Further, reports suggest that although there are high levels of crime against whites, crime is predominantly random and economic based. The reports were discussed with the applicant at the Tribunal hearing.

134.   The applicant agreed that crime is ‘across the board, black and white’. However, he said that whites are assumed to have property and money and are targeted more than blacks. Burglars think that whites have more valuable items to steal. He said there is also a ‘pay-back attitude’ for apartheid. He also argued that there is a political cover-up in relation to farm murders. He said that if you look at the farmers being slaughtered on a daily basis, they are white.

135.   He said that police try to be diplomatic and would never admit to not helping a person because of their race. However the cases involving white people are put on the bottom of the pile. There have also been reports of corruption, involving selling of guns to gangs.

136.   He said that if you apply for jobs, and there are ten jobs, only one will go to a white. He said that with the new leaders coming through, whites are increasingly being pushed out of jobs. He said that youth have taken down statues at Rhodes University. He cannot see how whites are not discriminated against. He said that if you are a rich white, then you ‘might be ok’. If you are a poor white, you face difficulties.

Tribunal findings on real chance of persecution for reasons of race

137.   The applicant has submitted that he will be discriminated against because of his race (and his age, to be discussed later in this decision). He claims also that he will be targeted for crime including physical violence because of his race.

138.   After careful consideration of the sources cited above, the Tribunal is not satisfied that there is a real chance of serious harm in the form of withholding of employment or services, or through being targeted for crime, if the applicant returned to South Africa in the reasonably foreseeable future, for the essential and significant reason of race.

139.   There is no doubt that there may be specific jobs which the applicant may apply for where he is unsuccessful, and this may be attributed to affirmative action in favour of blacks. This is an experience recounted by an interviewee in an article, who said he was not considered for a job because he was white and old.[82] However the same article quotes South Africa’s Institute for Race Relations stating that while poverty levels for whites have increased in the country, they still pale in comparison to black poverty levels.[83] The Tribunal has taken into account articles provided by the applicant about white squatter camps in which hundreds of people live and acknowledges that there is a ‘poor white’ community in South Africa and that he would be a poor white rather than a rich white. However independent reports do not suggest that there is significant discrimination by the government or community against white people,[84] although there are incidents of discrimination and hate speech. The reports referred to earlier note that the unemployment rates for whites are far lower than for blacks and that whites are not generally discriminated against in employment or services.[85] The Tribunal has considered an article provided by the applicant which suggests that 82% of people have no health insurance and rely on overcrowded public clinics and hospitals. However, the reports indicate that there are problems in the country with funding of hospitals and availability of medical care, however these problems impact everybody and the applicant would not be denied access to employment, social or health services because of his race.

[82] ABC, White South Africans complain affirmative action policy is causing them to face discrimination - ABC News, 1 August 2016

[83] ABC, White South Africans complain affirmative action policy is causing them to face discrimination - ABC News, 1 August 2016

[84] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

[85] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

140.   The applicant has claimed that he fears that he will not be able to access medication. As set out earlier independent sources do not indicate that people are refused treatment based on race. The Tribunal discussed this with the applicant at hearing. He said that media articles suggest that due to the COVID-19 pandemic, the health system is in dire straits. When his brother-in-law was in hospital his family had to take him blankets and change him. He presumes that the health system has worsened since then.

141.   The Tribunal is satisfied that the health system in South Africa, while overall of a generally high standard, has a number of shortcomings and that it is under stress due to the COVID-19 pandemic. Access to private health may be unavailable to him and the public system is over-extended. However, the sources indicate that inability to access medication would not be for race or any of the other reasons set out in the legislation. As the ‘persecution’ he would suffer, lack of access to treatment, would be for reasons of underfunding and lack of resources, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race.

142.   While South Africa has one of the highest crime rates in the world, the reports referred to in detail above indicate that crime impacts all population groups, and that people in lower income black areas are affected the most. The sources suggest that although the issue of the racial motivation of the perpetrators of violence is contested, and some property crimes may focus on wealthier white areas, most crime appears to be founded in economic disparity and problems associated with low socio-economic areas. Although there have been incidents of hate speech in South Africa relating to whites, hate crimes have generally targeted nationality, sexual orientation and religion. The applicant’s claim that white people are disproportionally affected by crime is not therefore reflected in reports or crime statistics. While there has been a significant volume of murders of white farmers, the Tribunal notes that the applicant does not claim that he is a farmer and farm murders comprise only a small proportion of total murders. The Tribunal is satisfied that Johannesburg may experience significant levels of crime but is not satisfied based on the evidence above that there is a real chance any harm he may experience would be for the essential and significant reason of his race.

143.   The applicant has also claimed that if he returned to South Africa, he would be discriminatorily denied state protection because of his race. He said that the police do not respond to complaints from whites, and in fact at times assist criminals with crimes against whites. He said that this is fuelled from comments from politicians containing hate speech against whites. The Tribunal accepts that there may be incidents where police inaction is the result of racism and/or corruption. However, the Tribunal is not satisfied, on the basis of country reports, that there is a real chance (one that is substantial and not remote) that the applicant will be discriminatorily denied police protection on the basis of race. The South African Constitution and various laws protect equal treatment and prohibit discrimination. There are a number of human rights organisations which review these laws. The media in South Africa is free and impartial. These institutions assist in protecting equality before the law in South Africa. Further, country sources referred to above suggest that while there are problems with corruption and resources, there is in general equal treatment by police. The Tribunal is not satisfied therefore that there is a real chance of serious harm based on discriminatory withholding of state protection for reasons of race.

144.   The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his race.

[121] MZAAJ v MIBP [2015] FCCA 151 (Judge Riley) 4 February 2015, at [40]-[41] (upheld on appeal): MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015); special leave application dismissed: MZAAJ v MIBP [2015] HCATrans 238, (Gordon J, 15 September 2015).

[122] Ibid.

176.   In the recent case of SZDCD V MIBP [2019] FCA 326 Gleeson J held that the words ‘arbitrarily deprived’ imply conduct which is responsible for the deprivation of a person’s life, and which is ‘arbitrary’. Gleeson J found that loss of life due to losing access to medical treatment in Australia, did not involve arbitrary conduct.

177.   Having regard to the ordinary meaning of the words, the jurisprudence and the Complementary Protection Guidelines, the Tribunal is satisfied that arbitrary deprivation of life can encompass non-state actions where there is some random or unreasonable dispossession or divestment, but does not relate to a simple lack of resources. As stated in SZDCD V MIBP [2019] FCA 326, a person may be arbitrarily deprived of life by lawful or unlawful action that is demonstrated to have elements of capriciousness, inappropriateness, injustice or lack of predictability, and must be in the nature of serious human rights abuse that is the arbitrary deprivation of life.

178.   The Tribunal is not satisfied that the applicant would be prevented capriciously, unreasonably or randomly from obtaining a job, social service or medical treatment which would lead to death. As discussed earlier in this decision, the Tribunal is not satisfied that the applicant would be capriciously denied these services, but rather if they were not available it would be due to underfunding and resources.

179.   The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life, for reasons of inability to access employment, treatment or services.

Crime: the real risk is one faced by the population generally and not the applicant personally

180.   As set out earlier, the Tribunal is not satisfied, on the basis of independent sources that there is a real chance of persecution in the form of crime, for reasons of his race or age. The Tribunal is also not satisfied that there is a real risk, in the sense of a substantial or non-remote risk[123] of significant harm in the form of crime. While there is a high crime rate in the country, crime is generally random and based on economic need. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

[123] SZQRB v MIAC [2013] FCAFC 33 (20 March 2013)

181.   Given the country sources referred to earlier indicate that crime is not usually race-based and the widespread nature of crime in South Africa, the Tribunal is satisfied that the real risk is one faced by the population of the country generally and not faced by the applicant personally. Thus there is taken not to be a real risk of significant harm in regards to crime.

182.   Similarly, the Tribunal is not satisfied that there is a withholding of state protection which would be faced by the applicant personally. As discussed earlier, problems with police protection are due to resources and funding rather than intentional withholding of protection. The UNHCR has emphasised that it is important for States to take measures and punish the deprivation of life by criminal acts.[124] If there is evidence that such laws are not routinely enforced, it may be arguable that such a person would be arbitrarily deprived of life if there is a reason to believe that a person in their particular circumstances would be killed.[125] The Complementary Protection Guidelines of the Department of Home Affairs suggest that it is not sufficient that there is a high crime rate, and relatively poor police control. In order to establish that there is a real risk of being arbitrarily deprived of life by a non-state actor there must be two criteria met. Firstly, there must be extremely widespread conditions of violence. South Africa has high crime rates[126] generally, with the fifth highest murder rate in the world as discussed earlier and the applicant has been the victim of crime on a number of occasions. Further, the Complementary Protection Guidelines also refer to the laws ‘not being routinely enforced’. The Tribunal referred above to inadequacies in police protection and conviction rates being low; it appears that inaction is often the result of underfunding.[127] Country reports suggest that the South African government has made attempts to strengthen police responses.[128] The United States Department of State reported in 2018 that the police have made a strong effort to decrease response times in recent years and will generally respond within a reasonable time. The Report also suggests that the judiciary is strong and independent.[129] The UK Home Office states the following about the South African police force:

The South African Police Service (SAPS) has primary responsibility for internal security within South Africa and for enforcing the law throughout the country. The government continues to improve and professionalise the SAPS, however it is reportedly understaffed, ill-equipped, poorly trained, and corruption is a problem. Around 2 million criminal cases were recorded or ‘detected’ by the SAPS between April 2016 and March 2017. While the SAPS responsiveness and effectiveness varies, it is attempting to improve its service and does take action to combat crime. This led to over 340,000 criminal cases being prosecuted in the courts in 2016/17 with 94% of cases resulting in a conviction.[130]

[124] Human Rights Committee, Baboeram v Suriname, 4 April 1984, Comm Nos 146,148-154/1983, UN Doc CCPR/C/24/D/146/1983

[125] Department of Home Affairs, Protection Visa - Complementary Protection Guidelines, March 2019

[126] Africa Check website, United States Department of State, Country Report on Human Rights Practices South Africa, 2018, UK Home Office Report, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation, December 2017 United States Department of State, Country Report on Human Rights Practices South Africa, 2018, UK Home Office Report, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation, December 2017  The Tribunal is not satisfied, on the basis of these country reports, that there is systematic breakdown of law enforcement or that laws are routinely not enforced, although there is poor police reaction in many areas. Further, as discussed earlier, the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise said that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident,[131] thus it can be surmised that it would be the same for white people indicating that the problems of underfunding and lack of resources are widespread rather than being pertinent to particular areas only.

[131] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

184.   The Tribunal is not satisfied therefore that there is a systematic breakdown of law enforcement, the second element suggested in the Complementary Protection Guidelines. The Tribunal is not satisfied that the laws are ‘not being routinely enforced’, although there are inadequacies in the police service caused by underfunding and lack of resources. The Tribunal is not satisfied that the applicant would be deprived of life because of arbitrary action or inaction by the state. Considering this country information, the Tribunal is not satisfied that ‘another actor is intent on dispossessing’ him of his life ‘in a despotic or tyrannical fashion or otherwise subject to whim or caprice’ – EZC18 v MHA [2019] FCCA 464.

185.   The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of this applicant being removed from Australia to South Africa there is a real risk that he would be arbitrarily deprived of his life due to crime or withholding of protection.

Findings on complementary protection

186.   The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa there is a real risk of significant harm.

REFERRAL FOR MINISTERIAL INTERVENTION

187.   Under s.417(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.[132] The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 on the basis of public interest.

[132] s 417; PAM3: Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351,417, and 501J) (reissued 29 March 2016) at [2] states that what is and what is not in the public interest is a matter for the Minister to determine.

188.   The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in departmental policy, ‘Minister’s guidelines on Ministerial Powers (s351, s417 and s501J)’. The applicant is a lawful non-citizen who does not appear to have other visa pathways available to him. The Tribunal respectfully refers the matter to the Minister as the case has unique or exceptional circumstances as described in the Ministerial Guidelines, for the reasons set out below.

189.   Firstly, the Tribunal is of the view that there are ‘compassionate circumstances regarding the age and or health of a person which if not recognised would result in serious, ongoing and irreversible harm and ongoing hardship to the person.’ The applicant is [age] years old. Returning to South Africa would be extremely difficult for him at his age. He suffers from type 2 diabetes and had a [medical condition] in October 2019. He and his wife, [named], to whom he was devoted, arrived in Australia in July 2014 to visit family. They applied for protection after being the victims of crime in South Africa. [His wife] died in 2019 in Australia after a short illness. This was devastating to him and he has ‘found it very hard to move on’. He has said that he would like to stay in Australia ‘with the memory of his wife’. Both of his children are outside South Africa. His son lives in Australia and his daughter in [Country 2]. He is very close to his Australian family including his two grandchildren] and they spend a large amount of time together. His remaining close relative in South Africa is his sister, who is elderly and being cared for by other relatives. This means that he would need to return to South Africa, without his wife, and with no children or siblings in the country to assist him with his health and other needs. He does not own a house, car or assets in South Africa, and has no job to which to return, although his children may be able to send him funds. He also does not have a pension. At his age it would be more difficult to get a job. He is also very fearful of returning to South Africa at his age, as he has been the victim of crime on a number of occasions. On one occasion he was held at knifepoint in his car. Other relatives have also been victims of crime.

190.   Secondly, the Tribunal is of the view that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing harm to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen. The applicant’s family are all Australian citizens. They state that they are a very close family and that the applicant is integral to the family unit. His departure would cause them significant sadness and distress. The applicant’s son said that the applicant’s grandchildren love him and they would ‘all be lost without him’. The applicant is carer for a disabled Australian citizen, [Mr A]. He has cared for him since 2016. [Mr A] has disabilities, [and a number of specified medical conditions]. The applicant and his wife cared for [Mr A] before his wife died and he has continued with this role after her death. He cooks, cleans, does odd jobs, assists [Mr A] in taking his medications and takes him to medical appointments. The applicant also includes [Mr A] in visits to his own family and they attend Mass on Sundays. [Mr A] has said that the applicant does everything for him, is of very good character, ‘excellent in all ways’ and it is ‘important for him to have him around’. The applicant’s son said that they are the best of friends. The applicant’s son said that even though he has offered the applicant a room in his home, the applicant has said that he could not leave [Mr A], as he is devoted to his task and [Mr A] depends on him.

191.   Thirdly, the Tribunal is of the view that there are particular circumstances or characteristics which provide a sound basis for believing that there is a significant threat to personal security, but the mistreatment does not meet the criteria for the grant of a protection visa. The applicant has been the victim of crime on a number of occasions and is genuinely frightened of returning to South Africa. As an elderly person he is more vulnerable if he were to be a victim of crime.

192.   The applicant has complied fully with Australian laws. He has integrated into Australia, having lived in the country for six years, being able to speak English, and as there is a large expatriate community in Perth and he has become part of a church community. In South Africa he was a qualified [Occupation 1] and also worked in various large [companies]. His son has spoken of him as ‘the greatest dad out there’, a hard worker, a very good person and somebody who always puts others before his own needs. [Mr A] has also spoken of his good character. Before the applicant became a carer, he worked as a pamphlet distributor. He said that despite his age he has always wanted to be independent and has sought out work. He attends the [a named] Church regularly. He agreed to donate his wife’s eyes when she passed away, which was a difficult decision according to his son, but he knew it would help someone else. He was later advised that two people benefitted from her organs.

CONCLUSION

193.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

194.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

195.   The Tribunal refers the matter to the Minister for consideration by the Minister pursuant to s.417 of the Act.

DECISION

196.   The Tribunal affirms the decision not to grant the first named applicant a protection visa.

197.   The Tribunal has no jurisdiction in relation to the second named applicant.

Jane Marquard
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(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.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)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.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen 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

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction

• Jurisdiction

• Natural Justice

AI Chat Citations

Actions

Download as PDF Download as Word Document

---

Citations

1619584 (Refugee) [2020] AATA 5581

---

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

Return