1619877 (Refugee)

[2019] AATA 6819

1619877 (Refugee) [2019] AATA 6819 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619877

COUNTRY OF REFERENCE:                  South Africa

MEMBER:L. Symons

DATE:16 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 October 2019 at 1:58pm

CATCHWORDS

REFUGEE – protection visa – South Africa – particular social group – white Afrikaner – fear of economic hardship and systematic discriminatory treatment – family living in Australia – fear not well founded – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of South Africa, arrived in Australia [in] September 2007 as a dependent applicant on his mother’s [Temporary Work] visa that was valid until 16 December 2008. On 8 September 2008, his mother applied for a [Student] visa including him as a dependent applicant. As he was over the age of 18 years at the time, he was removed from the application. He departed Australia [in] August 2010.

3. The applicant applied for a [Tourist] visa on 22 August 2011 and was granted the visa on 12 September 2011. He arrived to Australia [in] October 2011. On 4 November 2011, his mother applied for a [Sponsored Migration] visa including him as a dependent applicant. On 4 November 2011, he was found not to be included in the application as there was a No Further Stay condition on his visitor visa. On 28 November 2011, he applied for a [Tourist] visa and this was refused. He departed Australia [in] January 2012.

4. The applicant applied for a [Tourist] visa and was granted the visa on 24 April 2012. He departed Australia [in] July 2012 and returned [in] July 2012. He departed Australia again [in] October 2012. On 13 March 2013, he was granted a [Tourist] visa and returned to Australia [in] March 2013.

5. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 12 June 2013 and the delegate refused to grant the visa on 26 October 2016. On 24 November 2016, he applied to the Tribunal for a review of that decision.

6. On 23 September 2019, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before it on 17 October 2019 at 9.00am to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it

7. The Tribunal’s letter dated 23 September 2019 was sent to the applicant through his migration agent. On 15 October 2019, the Tribunal received a letter from his migration agent requesting that a decision be made “on the papers” without a hearing. In these circumstances, the Tribunal cancelled the hearing and will proceed to make a decision on the review.

8. The issues that arise on review are whether the applicants are owed Australia’s protection under the Refugee Convention or the complementary protection criterion.  

   RELEVANT LAW

9. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

   Refugee criterion

10. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

11. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

19. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

22. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

24. The applicant’s claims in his application for a Protection visa lodged on 12 June 2013 are summarised as follows.

    ·He left South Africa to be with his family, who have been living in Australia since 2007. He tried various visas to live with his family but was never successful.

    ·He could not complete his studies as his Australian Certificates were not recognised in South Africa. He could not work in South Africa due to visa restrictions. He cared for his grandparents for 3 years in South Africa he but his grandfather passed away in April 2012. He really needs his family. He has applied for a Remaining Relative visa but cannot wait 15 years.

    ·He was warned by immigration officers in South Africa that it would not be that easy to be granted a visa to return to visit his family again. He does not have the financial stability to care for himself in South Africa.

    ·With Nelson Mandela being extremely sick, every white person fears the ‘night of long knives’. There are plans made by the nation’s Communist Party to slaughter all whites in the country upon his death, with one of the operations entailing 70,000 armed black men being transported to Johannesburg city centre in taxicabs to attack whites. Mandela is back in hospital and is 95 years old. He fears for his life and the chaos that will be in South Africa.

    ·If he returns, he will be subject to the threat of racial disputes occurring daily. As a white person, he is really in danger due to the vicious campaign of ethnic cleansing that will follow Nelson Mandela’s death. That is why so many white South Africans have emigrated to Australia, New Zealand and Canada. May 2013 was the bloodiest month this year for white South Africans, murders, 69 attacks, 101 victims, 20 Farm attacks. He does not wish to become a statistic.

    ·He does not believe the authorities can and will protect him on his return.

25. The applicant has filed with the Department copies of his South African passport, Birth Certificate, travel itinerary, health insurance, work reference, Driver’s Licence, Student Card, academic results and qualifications, correspondence with the Department and country information. The Tribunal has considered this evidence.

26. The applicant’s migration agent has filed with the Department submissions dated 12 June 2013.   

27. On 8 May 2014, the applicant attended an interview with the Department. During that interview, he reiterated his written claims.

28. On 29 August 2014, the applicant’s migration agent filed a further submission with the Department in which he made the following new claims on behalf of the applicant:

    ·He fears persecution at the hands of the South African government and its agencies.

    ·He fears ending up in one of the white squatter camps and will suffer degrading conditions. He will be subject to significant physical ill-treatment, significant economic hardship and denial of access to basic services threatening his capacity to subsist.

    ·He is a member of the particular social group “white Afrikaners” who will face systematic discriminatory treatment at the hands of the South African government.

29. The delegate found that the applicant is not a person in respect of whom Australia has any protection obligations.

30. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 26 October 2016.

    Country of reference/Receiving country

31. The applicant claims to be a citizen of South Africa and has provided a copy of his South African passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of South Africa. The Tribunal finds that South Africa is the country of reference for the purpose of assessing his claims for protection under the Refugees Convention criteria and the receiving country for the purpose of assessing his claims for protection under the complementary protection criteria.

    Third country protection

32. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

33. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well founded” or is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)

34. In this case, the applicant’s claims are made in general terms and they are unsubstantiated. As he declined to attend the hearing, the Tribunal was unable to obtain further details of his claims or to test their veracity.

35. If the applicant had attended the hearing, the Tribunal would have discussed with him his claim that he could not work in South Africa due to visa restrictions and sought clarification as to why, as a citizen of South Africa, he would be subject to visa restrictions. The Tribunal would also have ascertained why he was unable to work and support himself financially. The Tribunal would have explored with him whether there was any reason why his family in Australia would not offer him financial support until such time as he is able to obtain employment and support himself in South Africa.

36. If the applicant had attended the hearing, the Tribunal would have ascertained why he was warned by immigration officers in South Africa that it would not be that easy to be granted a visa to return to visit his family again and clarified whether he was referring to his family in South Africa or in Australia. The Tribunal would have sought further details of why he fears ending up in one of the white squatter camps. The Tribunal would have explored with him why he fears persecution at the hands of the South African government and its agencies and why he does not believe the authorities can and will protect him. The Tribunal would also have discussed with him relevant and current country information.

37. The Tribunal has had regard to the country information provided by the applicant and the submissions made by his migration agent based on country information. The Tribunal notes that the applicant’s claims and the submissions made by his migration agent appear to be based primarily on speculation about what is likely to happen to white South Africans in South Africa when Nelson Mandela passes away. Several years have now lapsed since these claims and submissions were made and the country information relied on is out of date. The country information indicates that Nelson Mandela passed away on 5 December 2013[1] and the “chaos” the applicant feared did not come to pass. The current country information does not support his claims.  

    Country information

    [1] Nelson Mandela, Encyclopaedia Britannica. (>

    Country information obtained by the Immigration and Refugee Board of Canada indicates the following:

    Overview

    Sources indicate that there is a linguistic divide among white South Africans, namely between Afrikaans speakers and English speakers (Campbell 30 Aug. 2018; Vice-Chancellor 4 Sept. 2018). In correspondence with the Research Directorate, John Campbell [1], who is the Ralph Bunche Senior Fellow for Africa policy studies at the Council on Foreign Relations (CFR) in Washington, DC, stated that "[b]etween these two groups, there is no difference in their access to wealth or their political representation" (Campbell 30 Aug. 2018). Sources indicate that white South Africans are in a privileged position in South African society (Campbell 30 Aug. 2018; Vice-Chancellor 4 Sept. 2018). Campbell explained that white South Africans are substantially wealthier than other racial groups. The net wealth of black South Africans is only about five percent of the average net wealth of white South Africans. White South Africans in South Africa live in the "First World"; their social and economic standard of living is similar to that in Eastern Europe or Israel. (Campbell 30 Aug. 2018)

    Treatment of White South Africans in Society and by the Government

    Sources indicate that white South Africans do not face any specific challenges or threats in society (SAHRC 7 Sept. 2018; Campbell 30 Aug. 2018; Vice-Chancellor 4 Sept. 2018), "for example, in terms of access to employment, education, health or housing" (Campbell 30 Aug. 2018). In correspondence with the Research Directorate, the Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, explained that [i]n terms of accessing public health care and public education, white South Africans face the same issues that black South Africans do. However, black South Africans are burdened more because of their access to resources. For example, black South Africans do not have the same resources as white South Africans to buy private health care. (Vice-Chancellor 4 Sept. 2018)

    In correspondence with the Research Directorate, a representative from AfriForum, a non-governmental "Afrikaner interest organisation and civil rights watchdog" that aims to "protec[t] the rights of minorities" (AfriForum n.d.), stated that there is "[n]o legislation … that specifically discriminates against white South Africans" in terms of health care (AfriForum 7 Sept. 2018).

    Campbell stated that "[t]he South African government is explicitly non-racial" (Campbell 30 Aug. 2018). The Vice-Chancellor similarly stated that "[p]ublic services and policies apply to many and to all" (Vice-Chancellor 4 Sept. 2018). The AfriForum representative indicated, however, that Afrikaans language rights and education are "under attack," as language policies are being changed, for example, at universities, to exclude the use of Afrikaans, adding that "efforts to protect the language rights of students is … vilified as … efforts to protect 'white privilege'" (AfriForum 7 Sept. 2018).

    State Protection Available to White South African Victims of Violence

    According to the Vice-Chancellor, "[w]hile the crime rate remains high [in South Africa], police stations and the appropriate infrastructure to address the high crime rate are not always available" (Vice-Chancellor 4 Sept. 2018). According to sources, the state provides all South Africans who are victims of crimes the same services, irrespective of race (Vice-Chancellor 4 Sept. 2018; AfriForum 7 Sept. 2018). The Vice-Chancellor explained that state institutions … are not as efficient as they need to be. … There is state incompetence in some departments. These factors have impacts on citizens, regardless of race. Black citizens experience these impacts far more than white South Africans. (Vice-Chancellor 4 Sept. 2018)

    Sources indicate that state institutions like the SAHRC ensure that human rights are respected (Vice-Chancellor 4 Sept. 2018; SAHRC 7 Sept. 2018). According to the Vice-Chancellor, [a]nyone experiencing discrimination can report to [the SAHRC and the Public Protector]. The legal system in South Africa is vibrant. The press is robust, vibrant, alive and independent and holds political elites accountable. The media comes to [the] defence of its citizens, regardless of colour. (Vice-Chancellor 4 Sept. 2018)

    According to Campbell,[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)

    Other sources similarly indicate that South Africa's judiciary is "independent" (Al Jazeera 30 Aug. 2018) or "strong" (SAHRC 7 Sept. 2018). [2]

    Findings

    [2] 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. Immigration and Refugee Board of Canada.

1. Having considered all of the evidence, the Tribunal accepts that the applicant left South Africa to be with his family in Australia. The Tribunal accepts that he does not wish to return to South Africa and would prefer to live in Australia. The Tribunal does not accept that he fears returning to South Africa for the reasons claimed or that he will not be able to get State protection in South Africa. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm, for any of the reasons claimed, if he returns to South Africa now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the Refugees Convention?

2. Having considered all of the applicant's claims, individually and cumulatively, all the evidence, the submissions and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his race or any other ground under the Refugees Convention if he returns to South Africa now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary      protection criterion?

3. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

4. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to South Africa now or in the reasonably foreseeable future.

5. Having considered all of the applicant’s claims, individually and cumulatively, all the evidence and the submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to South Africa now or in the reasonably foreseeable future.  

6. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

7. 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) or s.36(2)(aa) of the Act.

8. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         Member