1705904 (Refugee)

[2022] AATA 3384

1705904 (Refugee) [2022] AATA 3384 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1705904

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Simone Burford

DATE:12 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 July 2022 at 3:39pm

CATCHWORDS

REFUGEE – protection visa – South Africa – particular social group – young women without familial support – orphans in South Africa – gender-based violence – forced prostitution – mental health issues – marriage to an Australian citizen – family separation – effective state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
AZAEH v MIBP [2015] FCA 414
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
DAJ19 v Minister for Immigration [2020] FCCA 2142
FMN17 v MICMSMA [2020] FCA 326
GLD v Minister for Home Affairs [202] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAEN v MIBP [2016] FCCA 620
MZZIA v MIBP [2014] FCCA 717
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Background

2. The first applicant (the applicant) is [an age]-year-old citizen of South Africa. She was born in Johannesberg and grew up in [Town 1].  She indicated that she was a Christian and that she identified as ethnically African. The second applicant is her son who was born shortly after her arrival in Australia in early 2014.

3. At the first hearing the applicant provided evidence about her background and family composition. She said her father died when she was young and she was raised by her mother until she passed away in 2012 after a long battle with [condition 1]. She did not know her father’s family. Her mother had two siblings – her aunt and uncle. She was not sure where either were currently living. She went to live with her uncle in Johannesburg following her mother’s death in November 2012.

4. She completed high school and went to university in South Africa where she studied [a specified course]. She worked as an intern in South Africa. She reported working in the [specified] sector for two years in Australia but was not working at the time of the hearing.

5. She met her current husband in 2015 at church in Australia.  They married in 2018 and have [children] together who are [age range].  He works as [an occupation 1] in [Perth]. Her husband has been in Australia since he was [age] years old.  He came to Australia with his brother to live with an aunt and uncle.  He is an Australian citizen and their [children] from the relationship are also Australian citizens. All his family live in Perth and his brother lives with the applicant and her family. 

6. The applicant was granted an Australian Transit visa TX-771 [in] January 2014 valid until [February] 2014 on route to [Country 1]. No visa was required for South African citizens to visit [Country 1] at that time. She arrived in Australia [in] February 2014 on that transit visa. She has not departed from Australia since arriving here.

7. She applied for a protection visa on 7 February 2014. The second applicant was added to the visa application following his birth in [2014].

8. On 28 February 2017 the delegate refused to grant the applicants protection vias.

9. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   Protection claims

   Protection visa application

10. In her application for the protection visa, statutory declaration dated 17 February 2014 and in her interview before the Department on 5 June 2014 the applicant made a number of claims regarding her family circumstances and fear of harm on return to South Africa.  Her claims were also supported by written submissions from her then representative dated 4 July 2014 and submitted following the interview with the Department.  These claims were, in summary:

11. The applicant claims to fear harm on return to South Africa from her uncle and his employees or associates.  She claims to have suffered rape and forced prostitution while living in her uncle’s home. She claims that she went to live with her uncle following her mother’s death in late 2012.  She claims he is a prominent businessman in the Johannesburg community.  In early 2013 her uncle imprisoned her and repeatedly raped her and physically assaulted her. Her uncle prostituted her out to a [Nationality 1] business associate. In November 2013 she realised she was pregnant and her uncle said she must have an abortion. The doctor refused, saying she could lose her life. Her uncle continued bringing men to her, collecting money and forcing her to sleep with them. She claims to fear being murdered, abducted, unlawfully imprisoned, physical and sexually assaulted by her uncle and people in his employment on return to South Africa.

12. In written submissions to the Department prepared by her previous representative, [Agency 1], she claimed that she fears that if she returns to South Africa, she will suffer serious harm including murder, abduction, unlawful imprisonment, physical and sexual assault and severe psychological harm at the hands of her uncle and/or his employees on account of, either cumulatively or separately:

    a.Her membership of the particular social group, orphans in South Africa; and/or

    b.Her membership of the particular social group, young women in South Africa, without familial protection.

    Alternatively, she claimed that there are substantial grounds for believing that if she returns to South Africa, there is a real risk she will suffer significant harm in the form of;

    a.Torture;

    b.Cruel or inhuman treatment or punishment; and/or

    c.Degrading treatment or punishment.

13. In submissions the applicant claimed that country information regarding South Africa supported her claims suggesting there was a high incidence of rape and gender-based violence in South Africa.  It was further submitted that country information supports the view that effective state protection is not available in South Africa due to the corruption, criminality and lack of professionalism of the South African police. The applicant submitted that her uncle is a wealthy man and that he was prominent in the business community and had connections in church and government.  In comparison the applicant was a young woman without family connections or resources. This left her powerless and ‘unable to access effective protection from a police service that is highly susceptible to corruption and does not respect the rule of law’.

14. The applicant submitted that there is no area to which she could reasonably be expected to relocate where there would be no appreciable risk of persecution because her uncle’s capacity and willingness to locate and follow her meant she would remain at risk throughout the country.  Further, there was a lack of available housing for single women without support and she would be unlikely to be able to obtain employment having regard to the high unemployment rate in South Africa.

15. The then representative also submitted that the applicant suffered from PTSD (as evidenced  by a trauma counsellor’s report) and as such her ability to describe the events which occurred in South Africa was impaired and should not be relied on to assess her credibility.

16. No claims were made by or on behalf of the second applicant before the Department. At the hearing before the Tribunal the applicant confirmed this remained the case.

    Evidence submitted to the Department

17. As noted earlier, before the Department the applicant submitted identity documents, a statutory declaration and a report from a counsellor at [Agency 2].

18. The applicant provided a statutory declaration dated 17 February 2014 supporting her claims for protection.  She also gave information orally at an interview with the Department. The delegate’s account of that interview is recorded in the decision.

19. The [Agency 2] report, dated 27 June 2014, indicated that the applicant had been referred for counselling in February 2014.  She had commenced counselling in April 1014 and at the time of the report had attended nine counselling sessions. The report assessed that the applicant ‘presented with post-traumatic stress symptomatology including hyper arousal and ongoing sense of re-experiencing her trauma.’  Results of her clinical assessments:

    were congruent with the client's presentation and information given. Recurrent, involuntary and intrusive trauma memories cause continued harm to [the applicant] by eliciting hyper arousal, mental blocking, dissociation and intense distress. When activated through trauma triggers, these symptoms significantly decrease her capacity to function in practical matters.

20. Under ‘Recommendations’ the report noted:

    Since commencing counselling, progress has been made in addressing some of the [applicant’s] therapeutic goals, particularly in dealing with her severe trauma symptoms and her acute sense of isolation. She continues to experience symptoms of trauma, anxiety and depression, primarily related to her history of sexual trauma and the nature of her pregnancy, but also related to her mother's death and associated unresolved grief.

21. Before the Tribunal the applicant testified she was still accessing counselling support.

    The delegate’s decision

22. On 28 February 2017, a delegate of the Minister refused the protection visa application. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act, and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

23. The delegate accepted the applicant’s claims to have been beaten and raped by her uncle and to have fallen pregnant. However, the delegate found that there was less than a real chance that private actors, including her uncle, would target the applicant on return to South Africa due to her having given birth, having brought shame to her family or having escaped from her uncle’s home.

24. The delegate also found that the applicant could live in the Polokwane area which is outside Johannesburg and that she would have the support of her friend [Friend A] who had arranged her travel out of South Africa.  The delegate found she would not face a real chance of serious harm in that area and that she would have access to effective protection from the South African Police Service if she requires it as country information suggested the police encourage rape victims to report crime.  The delegate also found there was no information to suggest the applicant would not be able to access counselling services or medication she may require in South Africa.

25. The delegate was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.

26. The delegate also found there was no real risk that the applicant would suffer significant harm on return to South Africa because she could obtain protection from the South African Police Service such that there would not be a real risk she would suffer significant harm from a private actor such as her uncle or his employees. The delegate considered the risk the applicant faced as a victim of violence in South Africa is a risk that is faced by the population generally and not by the applicant personally.

27. The delegate found that any likelihood of the applicant being targeted by her uncle had significantly diminished over time and that he no longer presents a threat to her.  There was no real risk that the applicant would suffer significant harm on return to South Africa from her uncle in connection with past harm.

    Review application

28. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 27 March 2017. They provided a copy of the delegate’s decision to the Tribunal.

29. Before the Tribunal the applicant submitted further documents relating to her marriage and children, family photographs of the children in Australia, a school report for her son and a further statutory declaration in similar terms to that submitted to the Department.

30. The first applicant appeared before the Tribunal on 27 August 2021 and 16 November 2021 to give evidence and present arguments. The second applicant, who is a minor, did not appear.  The Tribunal also received oral evidence from the first applicant’s Australian citizen husband, [named]. The hearings were held in person at the Tribunal’s Registry in Perth.

31. At the initial hearing the Tribunal outlined for the first applicant the issues it was considering on the application, confirmed with the first applicant the nature of her claims and discussed her background and changes to her personal circumstances since the application was filed.  This included her marriage to an Australian citizen partner [in] March 2018 with whom she now has [Australian citizen] children, born in [specified years].

32. The Tribunal explained at the first hearing that it would be necessary at the next hearing to talk about some of the experiences she mentioned in her claims.  The Tribunal indicated it  was mindful this might be difficult for the applicant and while it would not be necessary to talk in detail about the past events she claimed to have experienced, it would be necessary to discuss them at some level.

33. The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed in more detail at the second hearing. The applicants were represented in the application for the visa by [Agency 1] who made written submissions to the delegate.  The applicants also submitted a report in relation to the first applicant from a Counsellor/Advocate at [Agency 2] counselling service.

34. Before the Tribunal the applicants were represented in relation to the review at the initial hearing by a registered migration agent.  This was not the same representative who had carriage of the application before the Department. Following that hearing, their representative ceased to act for them and they were not represented in relation to review at the second hearing. Prior to the initial hearing, the applicants submitted identity documents in relation to the applicants and other family members, a marriage certificate, a school report for the second applicant and family photos.  The applicants’ agent did not make any written or oral submissions on the applicants’ behalf.

35. At the first hearing the representative indicated there was no further information to submit as they were waiting for a freedom of information request to obtain the Department file.  When the Tribunal queried what documents they were anticipating they needed from the Department which were not in the applicants’ control the representative indicated they were waiting for a copy of the [Agency 2] report and the Department’s file notes.  The Tribunal pointed out that the first applicant would be entitled to obtain a copy of her medical records from [Agency 2] directly if she no longer held a copy.  In questioning the first applicant noted that she was still receiving counselling from [Agency 2] and was due there the following week.   The Tribunal further pointed out that it was difficult to see how obtaining copies of Departmental notes should delay the applicants making submissions or providing evidence in support of their claims in a ‘de novo’ review.

36. The applicants were provided with additional time following the initial hearing to provide further evidence and submissions. Identity documents for the applicant’s [specified] child and a further written statement from the applicant were submitted prior to the second hearing.

37. The applicant’s representative ceased to act prior to the second hearing.

38. The applicant indicated she did not require the assistance of an interpreter and the Tribunal was satisfied she was able to participate fully in the hearings without an interpreter present.

39. The applicant was provided with additional time following the second hearings to provide further evidence and submissions.  A medical referral for the first applicant from [Medical Centre 1] to [Health Service 1] dated 25 November 2021 was provided following the second hearing along with a link to a newspaper article on COVID in South Africa. The referral was for an opinion and management for ‘moderate to severe depression, anxiety and history of trauma’.

40. Evidence submitted by the first applicant is considered further below.

    Submissions to the Tribunal

41. Although no further written submissions were provided to the Tribunal, the applicant’s statutory declaration dated 8 November 2021 confirmed similar claims to those made before the delegate.

42. In addition to those claims the first applicant stated in her later statutory declaration that:

    I wish my application to be considered as I have suffered and still are going through post-traumatic stress.

    Currently I worry about my son’s transition to life and his separation from his siblings how that it can cause adverse confusion and depression. I would have to explain the whole ordeal that has occurred to me. We have no family to go back to and it would be highly difficult for me to transition back. My family would not cope as I am the one who takes care of them as my young [named child] is breastfed and it would be tremendously difficult for them to transition without me. I also suffer from mental health as I have nightmares of what happened. I am currently seeking help.

    My current family is all I have and what I live for. They give me reason to live and try to be better. They are my pillar of strength and give me hope. I struggle day in and day out sometimes I feel like I don’t belong in this world why should I have to go through such means pain and still have to learn and still have to live.

    I wish to take into consideration the states that we are in currently my separation from my family would be very difficult on them with the current pandemic going on and my [named child] will miss out of school. I feel that it would not be fair to punish my [named child] and put his life in danger.

    I wish you would consider what it would mean for my young children to not have their mother nearby.

43. At the hearings, the Tribunal discussed with the applicant her claims and country information in relation to South Africa. This information and the applicant’s oral evidence to the Tribunal at both hearings are discussed further below.

    ISSUES

44. The issue in the review is whether the applicant has a well-founded fear of persecution in South Africa due to her membership of a particular social group being ‘orphans in South Africa’ or ‘young women in South Africa without familial protection’ from her uncle and/or his employees or associates, or from any other person for any other reason, or whether complementary protection provisions apply.

    Criteria for a protection visa

    Refugee criterion

1. 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).

2. 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.

3. 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 Migration Regulations 1994 (the Regulations) to a particular person.

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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

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 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’).

12. ‘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.

13. 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.

    Mandatory considerations

14. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

15. The Tribunal notes that in this case DFAT has not produced a Country Information Report for South Africa.

    Member of the same family unit

16. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a dependent child.[1]

    [1] Reg 1.12(1), as in force before F2016L01696.

    Credibility assessments

17. In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2]

    [2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.

18. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[3]  Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]

    [3] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

19. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]

    [5] MIMA v Rajalingam (1999) 93 FCR 220.

    [6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

20. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]

    [7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

    [8] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

21. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.  If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[9]

    [9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

22. The Tribunal notes that where there is a finding that there is no subjective fear of persecution this may lead to a conclusion that the Tribunal finds the claims not to be credible.  In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].

    CLAIMS AND EVIDENCE

    Applicant identity and country of reference         

23. The applicant travelled to Australia on a South African passport and claims to be a South African national.  Copies of the applicant’s South African passport issued [in] 2013 were provided to the Tribunal.  The applicant confirmed at the hearing that she was a citizen of South Africa. The delegate accepted the applicant’s identity and there is nothing before the Tribunal to suggest that the first applicant is not the person identified in the relevant application for protection.

24. The second applicant is the child of the applicant.  In his application for protection he indicated his citizenship as South African. The delegate accepted the second applicant’s identity and no issue of the second applicant’s nationality was raised before the Tribunal.

25. At the hearing, the applicant confirmed that the second applicant had not been formally adopted by his stepfather (who is an Australian citizen) and has not been registered for South African citizenship.  She was not aware he was listed in the application as being a South African citizen.  The Tribunal indicated country information suggested he would be entitled to South African citizenship by descent as she was a South African national[10] and she said she didn’t know.  The Tribunal asked if she had any information to suggest this information was not correct and she did not offer any.  She did not make any claims with regard to the second applicant’s nationality either on her own behalf or on behalf of the second applicant.

    [10] Country Background Notes: South Africa, Version 2.0, August 2020, United Kingdom Home Office, at [6.1.1] see also South African Citizenship Act 1995.

26. On this basis, and given the delegate had no concerns about their claimed nationality, the Tribunal accepts the applicant is a national of South Africa and has assessed her protection claims accordingly.  The Tribunal finds the second applicant is eligible for South African citizenship by descent but has not yet been registered for citizenship with South African authorities.

27. The Tribunal considers South Africa to be the receiving country for the applicants for the purposes of refugee and complementary protection assessments.

    Evidence

    Application for protection

28. In her application for protection and supporting statement the applicant made the following claims:

    ·Her mother passed away from [condition 1] in late 2012. Before her death, the applicant’s mother arranged to have the applicant looked after by her uncle, [Uncle A], who her mother thought was a respectable and decent man.

    ·In late January or early February 2013 she went to live with her [Uncle A].  He did not let the applicant leave the house and she was locked in the bedroom.  Around late January or early February 2013, [Uncle A] raped the applicant at night when she was sleeping. After that he continued to regularly rape her. He beat her and held a gun to her head, saying that if she screamed, he would pull the trigger and kill her. After this, he began forcing the applicant to sleep with other men who were his foreign business partners. They paid him so they could have sex with her.

    ·On [a day in] February 2013 one of her uncle’s business friends visited the house. Her uncle called the applicant into the guestroom to talk to him. The man was old, in his late 50s and he was a [Nationality 1] named [Mr A]. [Mr A] said that he paid her uncle to sleep with the applicant. The applicant refused. The applicant asked if she was his daughter, would he do such a thing to her? [Mr A] then became violent and said he had paid a lot of money and that she should do what he says. [Mr A] pushed her onto the bed and began to force himself on her. He said that if she screamed, he would kill her. He forcibly removed her underwear and made her lie flat while he repeatedly raped her. As soon as he was done, he left her room and her [Uncle A] came and took her back into the room where he locked her in.

    ·In early November 2013 the applicant realised that she was pregnant. She told her uncle, and he said that she must abort the baby. He brought a doctor to the house to perform an abortion, however, the doctor refused as he said that if he did, the applicant could die. Even after she became pregnant, [Uncle A] continued to bring men to sleep with her.

    ·One night in November 2013 the applicant’s uncle was high and drunk. He started beating her and pushing her into the wall, saying that he was going to kill her and the baby. He said that she will cause him too much disgrace and must die. He was so loud that the housekeeper, [Ms A], heard him.  Afterwards [Ms A] helped the applicant escape.

    ·Between November 2013 and January 2014 the applicant stayed with [Ms A’s] grandmother in Limpopo. [Ms A’s] grandmother worked for a white lady in Polokwane called [Friend A]. She told [Friend A] about the applicant, and [Friend A] made a plan for the applicant to escape from South Africa. She arranged a passport and a ticket to [Country 1] via Australia. She also obtained an Australian Transit visa, so if she was feeling unwell due to the pregnancy she could stop when she got to Australia.

    ·While waiting to travel in Johannesburg the applicant heard from [Ms A’s] grandmother that her uncle sent four men to Limpopo. They had taken [Ms A] away with them and her body had been found later, about two hours away.

    ·On [a day in] February 2014 [Ms A’s] grandmother took the applicant to the airport and the applicant flew out to Perth. The applicant didn’t feel well and called [Friend A] from Perth airport. [Friend A] said that Australia was a country that protected refugees and that she could stay there. She looked on the internet and said there was an organisation in Perth called ‘[Agency 1]’ who would help.

    Before the Tribunal

29. The applicant and her husband gave evidence before the Tribunal.  The applicant also submitted a further statutory declaration in support of her claims.

30. In summary, the applicant testified that:

    ·She graduated from high school in [year] and went to university to study [course].  She graduated but didn’t have an opportunity to work in the field.  When asked about information in her application regarding an internship she said she worked from January to November 2012 a few days a week. She had also worked from December 2010 to October 2011 in [another role].

    ·She has no contact with her father’s family.  On her mother’s side she has an uncle and aunt. She has not had contact with her aunt since she was young and has had no contact with their uncle since she left South Africa.

    ·She said she was having counselling including group sessions once a week and individual counselling.

    ·She said she went to live with her uncle in late 2012 when her mother passed away.  She said sometime later in 2013 he began abusing her. She said her uncle raped her and used her as a sex slave.

    ·She said he kept her in a room. He lived in a gated community in Johannesberg and was [an occupation 1] and a member of the African National Congress (ANC).  When the Tribunal aasked what she meant by that she said he was ‘active in it’.  She said ‘he helped in the struggle’. The Tribunal asked whether she meant the struggle against apartheid and she confirmed that is what she meant.  She said after apartheid. She said he did not hold any office with the ANC. She knew he was involved in the ANC because she used to see the politicians come to the house and he met with the President (Mandela) in 2010.  She said he had told her mum about it when she was still alive.

    ·She said he worked at [Employer 1].  Before that he worked for [a named employer].  When asked if she had any evidence of his community standing she said there were pictures of projects he had done.  The Tribunal provided the applicant with additional time following the hearing to provide evidence with respect to her uncle’s claimed standing in the community and the ANC, however no evidence with respect to these claims was submitted.

    ·The Tribunal asked if she interacted with other people at the house and she said in the beginning only with the helper.  Once he started raping her he would bring his business associates.  The Tribunal asked if these were people from [Employer 1] and she said he also had a consulting company and he would say the people were his business associates.

    ·The Tribunal asked if anyone else knew she was living at the house if she was not allowed to leave. She said only the people who worked at the house knew.  When asked who worked at the house she said ‘[Ms A]’.

    ·When asked how long she was there she said it was a year. She left towards the end of 2013 at which stage she was pregnant. She found out she was pregnant around August 2013.  She said her uncle brought a doctor to the house once because he wanted to terminate the pregnancy.

    ·The Tribunal asked about how she had left and she said [Ms A] the housekeeper had overheard her uncle saying he wanted the applicant to die and beat her.  The next morning she said she was going to try and help her.  She was going to distract the guard and her brother would be waiting to pick her up.  The car took her to Limpopo to [Ms A’s] grandmother’s house.  This was about a six hour drive from Johannesberg.  [Ms A’s] grandmother said she had told her employer, [Friend A], about the applicant’s situation and she had offered to help her. She said she had never met [Friend A]. 

    ·[Friend A] helped her to travel to [Country 1]. She arranged to leave South Africa at the end of January but she ended up leaving in February. [Friend A] paid for her ticket. The Tribunal asked if she spoke to [Friend A] and she said she spoke to her through the helper to tell her what was going on.

    ·She said she was going to seek protection in [Country 1] and the Tribunal asked if she gave her advice about how to do that and she said ‘I just had to ask where I could seek protection’. She said she chose [Country 1] because it was far from her uncle.

    ·She said that when she left she was staying at [Ms A’s] grandmother’s house while she was waiting to leave and when she went to fly out, [Ms A’s] brother picked her up. She flew out of Johannesberg.

    ·The Tribunal asked what happened when she got to Australia and she said she was stopping here to go to [Country 1] and she was not feeling good so she thought she would ‘go and see if I can get help from the hospital’. The Tribunal asked if she sought assistance from anyone at the airport and she said she asked a security guard and he said you get the bus and then at the last stop the bus driver told her ‘you have to walk where you are going’.  She said she caught the bus but got lost in the city and she ended up sitting on a bench.  She said she asked around for somewhere to stay and ended up at [Agency 3] and they said she could stay for one night and in the morning she would have to leave straight away.  She told them she wanted to seek protection and they said she should contact [Agency 1].  The Tribunal asked if she got medical treatment and she said the lawyers (from [Agency 1]) took her there. At this stage she was about six or seven months pregnant. She said she talked to the lawyers at [Agency 1] and then filled in a form which they helped her to submit and she stayed in a women’s refuge. She said she wrote down her own statement and they helped her submit it.  The Tribunal confirmed she was talking about her 2014 statutory declaration.

    ·The Tribunal asked if she spoke to [Friend A] again and she said, ‘no’. She said she spoke to [Ms A’s] grandmother shortly after she arrived in March and she told her [Ms A] had passed away.  The Tribunal asked if she had called [Ms A’s] grandmother and she said she did before she changed her number.  The Tribunal asked if she gave her the new number and she said no.  The Tribunal asked why she rang her and she said she wanted to ring and say thank you to her and [Friend A] for helping her.

    ·The Tribunal asked what [Ms A’s] grandmother had told her about [Ms A] and she said her uncle had heard she had helped the applicant escape and she said she ([Ms A’s] grandmother) strongly believed she was murdered. She said [Ms A’s] grandmother didn’t go into the details.  She did not say how she died. The Tribunal asked if she had told her when it happened and she said it was as soon as they heard she had helped her escape. She couldn’t recall the exact date. The Tribunal asked if [Ms A] was still working for her uncle at that time and she said she was when she was killed.  The Tribunal confirmed she was saying she was killed while working for her uncle and the applicant said she couldn’t recall. She said she didn’t recall what happened as she didn’t stay on the phone, she just heard that [Ms A] died.

    ·The Tribunal asked if [Ms A] was still working for her uncle when the applicant was in South Africa and she said she wasn’t sure.  The Tribunal queried this, noting the applicant had been living with [Ms A’s] grandmother in South Africa and she said, ‘I don’t think she was still working for him’. She then said she didn’t know. She confirmed she was not at her grandmother’s house and she was not told she wasn’t working for her uncle anymore while she was there.

    ·She was asked what [Ms A’s] grandmother told her and she said she told her [Ms A] had passed away and she believed it was her uncle and that he was searching for her and asking questions about her so she should be careful.

    ·The Tribunal queried where her uncle had been searching for her and she said he asked [Ms A’s] grandmother if she had heard about her whereabouts.  The Tribunal asked whether he came to the house and she said she didn’t know the exact story.  She said [Ms A’s] grandmother didn’t go into detail on the phone.  The Tribunal asked if she had asked how it was [Ms A] had been killed and she said ‘no’. The Tribunal asked if [Ms A’s] grandmother had reported her murder to the police and she said she didn’t know.

    ·She said she felt her uncle and the people that work for him would harm her if she goes back. She does not know who those people are. She said it could be the security and the people who work for him if they get any tips of her whereabouts, through government organisations.

    ·The Tribunal queried if there was any reason he would still be looking for her more than six years after she left and she said he believes the child is his and he will still be looking for her.  The Tribunal asked if he had contacted her and she said ‘not direct, no’.

    ·The Tribunal asked how he would know if she were back in South Africa and she said she believed he would be told the minute she landed in the country.  The Tribunal put to her that for someone to be immediately notified of someone’s arrival in a country as big as South Africa would suggest the person was extremely well connected and powerful and it would be reasonable to assume there would be evidence of that person’s connections and stature to support that claim.  The Tribunal asked if she had any such information or evidence and she said she knew he would be notified as he is connected and she knows he has been looking for her. The Tribunal asked how she knew this and she said she had been told.   The Tribunal asked who had told her this and she said she did not wish to disclose this. The Tribunal asked why and she said she didn’t want to put the person’s life in danger.  The Tribunal pointed out the proceedings were closed and there was no reason to think anyone would be aware of her evidence.  The Tribunal noted if she couldn’t say who told her the Tribunal would not be able to place much weight on what she said.  In response she said it was [Ms A’s] grandmother who had told her and confirmed she hadn’t talked to her since March 2014 and she had not been told since March of 2014 that her uncle was looking for her.  She also accepted she had no details about how he was looking for her or where he was looking for her.

    ·The Tribunal asked what she feared might happen to her if she went back to South Africa and she said she feared she and her son would be killed.

    ·She said the authorities would not protect her because of her uncle and how corrupt they are.  The Tribunal asked what she meant by this and she said ‘they can be easily bought’.

    ·The Tribunal noted her circumstances on return would be very different from when she left as she was now older and was married with a family, this might impact her circumstances when she returned.

    ·The Tribunal asked if she would return to Johannesberg and she said ‘no’.  The Tribunal asked if she could live anywhere else in South Africa and she said she didn’t think so because of her fear of harm from her uncle and ‘about the children now.’ She said she wouldn’t feel protected. The Tribunal asked if there was any basis for thinking she would not be protected and she said her uncle would be able to find her and she has no faith in the South African police system.

    ·The Tribunal asked if her husband would go to South Africa with her and she said she didn’t know.  The Tribunal asked if he would support her financially and she said she didn’t know but she didn’t think he would be able to because he just works as [an occupation 1] and he is supporting family back home. 

    ·The Tribunal put to her that supporting her and her son would presumably be his priority and she said she didn’t know if he would be able to do it.

    ·The Tribunal asked if there was any other reason or basis on which she feared harm on return to South Africa and she said ‘mentally I would not be able to survive.’

    ·The Tribunal asked if there was any reason she would not be able to get access to counselling or other services in South Africa and she said she believes she wouldn’t be able to access services because of her fear of talking about what happened.

    ·The Tribunal asked about what her fears were in relation to her children and she said they will not cope without her.  The Tribunal asked if they would remain in Australia if she returned to South Africa and she said it wasn’t something they had discussed. 

    ·She said she was also fearful for the second applicant. The Tribunal asked what he would be at risk of in South Africa and she said he would be sad without his siblings.  She later said she thought he would be at risk from her uncle.  She said she was also worried because he doesn’t know what happened in South Africa and he is integrated into Australia.  She was concerned about what this would do to his mental state.  The Tribunal asked why he would be told and she said she would need to explain what had happened.

    ·The Tribunal put to her that country information suggested children were entitled to public education in South Africa and she said it was the first she had heard about it.

1. At the first hearing the applicant told the Tribunal that she undertook counselling at [Agency 2] for a long time and then went to another place closer to where she was living.  She did group sessions when she needed them. She stated that she had an individual counselling session scheduled with them shortly after the hearing.  She also indicated that she was not seeing any other medical practitioners in relation to mental health issues. When asked about treatment at the second hearing, the applicant said that she stopped treatment at [Agency 2] in 2018 or 2019.  She said she hadn’t been back since.  The Tribunal asked if she had any other counselling and she said she had church counselling in [Suburb 1].

2. The applicant’s husband also gave evidence. He is an Australian citizen having arrived in 2012 with his brother to live with family.  He was originally from [Country 2] but came to Australia from [Country 3].  He is [an occupation 1] and his brother is [an occupation 2].

3. When asked why his wife did not want to return to South Africa he said that it was because she was afraid of her uncle.  When the Tribunal asked what she thought would happen to her he said she had nightmares about her uncle.  She said she had been having counselling but because of the children it was hard for them.

4. When asked if he and the children would go to South Africa with the applicant and second applicant he said it would be hard for the children so they would stay here.  The Tribunal asked if he would support the applicant and her son financially if they returned and he said he would support them.  The Tribunal put to him that it may be difficult to accept that he would let the applicant return to South Africa alone if he thought she faced a real chance of the type of harm she claims and where she claims that risk is worse because she would be without family support and he said he was scared because it is not safe for them and he didn’t know what he would face there.  The Tribunal asked whether in those circumstances he would leave the applicant to return there by herself with her son and he said ‘no’.  He said he would like them to stay here and protect them from everything. When asked what he planned to do if they were not granted protection visas he said they would apply for partner visa. He said they had not done this to date because it was a financial struggle to afford a partner visa.  He indicated there was nothing else he wished to tell the Tribunal.

   Country information

   Rape, gender-based violence and general crime rates

5. Country information states that violence against women is a grave problem, with the country having one of the highest rates of both rape and domestic violence in the world. However, information also indicates that this is part of a broader crime problem within South African society in which men are more likely to be victims of some forms of violent crime than women.

6. An August 2019 Human Rights Watch report about South African sex workers says that South Africa has a well-developed legal and policy framework to address gender-based violence, including:[11]

   A progressive constitution, targeted legislation such as the Domestic Violence Act and the Sexual Offences Act, and government policies designed to prevent, respond to, and eventually eradicate gender based violence all exist. South Africa has also ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), its optional protocol, and regional instruments such as the Maputo Protocol.

   [11] ‘Why Sex Work Should be Decriminalised in South Africa’, Human Rights Watch (HRW), 07 August 2019, p.18.

7. This is supported by a May 2018 report by the Wilson Center, a US-based think-tank, which notes that ‘the government has already passed a number of laws and policies designed to reduce violent crime, including sexual violence against women and children, intimate partner violence, and child abuse or neglect’. It says that South Africa’s National Crime Prevention Strategy (1996), National Development Plan 2030, Integrated Urban Development Framework and 2016 White Paper on Safety and Security all emphasise the need for both an effective criminal justice system and social programs that address the underlying risk factors of crime.[12] Despite this, both reports indicate that violence against women remains pervasive.

   [12] ‘Preventing Violence Against Women and Children in South Africa’, Wilson Center, 01 May 2018, p.1.

8. The US Department of State’s 2019 Human Rights report states that in most cases of rape and domestic violence, attackers were acquaintances of family members or the victim that, together with societal attitudes, contributed to a reluctance to press charges.[13]

   [13] USSD, 2019 Human Rights Report, South Africa, 11 March 2020.

9. The Africa Check (NGO) website noted in April 2020 that high rates of gender-based violence are a concern for South Africa.  The police recorded 179,683 contact crimes against women in the 2018/2019 financial year.  Of these 82,728 were cases of common assault and 54,142 were assault with the intent to cause grievous bodily harm.  In that year, 2771 women were murdered, with a further 3445 attempted murders.  The police do not provide motives for these murders.  There were 36,597 recorded cases of sexual offences against women.  This is a broad crime category that includes rape, attempted rape, sexual assault and contact sexual offences.[14]

   [14] Africa Check, ‘South African police record 2,300 gender-based violence…’ 9 April 2020.

10. The Amnesty International 2019 Report on South Africa noted that gender-based violence continued to increase in the country.[15]

    [15] Amnesty International, ‘South Africa 2019’, 2020.

11. The Freedom House ‘Freedom in the World 2020 Report’ stated that despite a robust legal framework criminalising domestic violence and rape, both are ‘grave’ problems.  The South Africa Police Service reported 4,649 rapes during the 2018–2019 reporting period.[16]

    [16] Freedom House, ‘Freedom in the World 2020’, South Africa, 2020.

12. While the incidence of crime against women in South Africa is high, this occurs within a society in which rates of crime, and rates of violent crime, generally are high. For example, an analysis of South Africa’s 2017/18 crime statistics by Africa Check, a South African based fact-checking organisation, found that the country’s overall murder rate was 35.8 per 100,000 people. However, the rate of murders of women and children was 15.2 per 100,000 people – while murders of women and children made up 19.3 per cent of the total murder count in South Africa in 2017/18. The June 2018 Statistics South Africa report about crime against women says that data from 2000–2015 indicates that men were three times more likely to be murdered in South Africa than women, while it also found that male-headed households were more likely to be targeted in household crimes such as robbery than female-headed households.[17] According to the report:

    Evidence provided in this report also shows that the problem is the level of crime in the country rather than crime against women. In many crimes (including murder) men have been more victimised than women. If crime levels decline then crime against women will also decline. This conclusion does not suggest that there is no need for targeted interventions against crimes that victimise women. However, femicide is a term that is often misused by activists and the media. The killing of females simply because they are females is a rare phenomenon in South Africa, while the incidence of female homicide resulting from domestic violence or violence emanating from broken relationships is unacceptably high.

    [17] South Africa 2020 Crime and Safety Report, US Department of State.

13. More broadly, numerous sources indicate that crime is a serious problem generally in South Africa. For example, according to a September 2018 Africa Check factsheet, there were 20,336 murders in South Africa between 1 April 2017 and 31 March 2018 – up from 19,016 murders the year before. The country’s murder rate also increased from 34.1 per 100,000 people to 35.8 – an average of 56 murders per day. This rise in the total number of murders is the biggest single increase since the end of apartheid and is part of a 17 per cent rise in murder over the past five years. Police Minister Bheki Cele in 2018 described the statistics as being close to those found in a war zone, while criminologists agree that, while poor areas are particularly affected, violent crime is pervasive in South Africa and affects every sector of society.

14. The US Department of State’s 2018 South Africa Human Rights Report says that severe penalties apply for rape and domestic violence, including up to life imprisonment for perpetrators with previous rape convictions and perpetrators aware of being HIV positive at the time of the rape.[18]

    [18] Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, pp.19–20.

15. While South Africa has developed a strong legal and policy framework to address gender-based violence, country information indicates that the capacity of South African law enforcement is mixed and that police are viewed as often ineffective. A 2015 South African Human Rights Commission report refers to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent’.[19]

    [19] ‘Safety and Security Challenges in Farming Communities’, South African Human Rights Commission, 27 November 2015, p.81. 

16. The US Department of State says that the law requires police to protect victims from domestic violence, but police commanders do not always hold officers accountable.[20] Country information states that community and government support services are available for female victims of crime, but that these services are insufficient to meet demand.[21] Services for women offered at these shelters include accommodation, meals, toiletries or care packs, psycho-social support, skills development programmes and assistance with health and legal matters. They also assist women with applying for grants and with applying for identity documents.

    South African economy

    [20] ‘Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, p.20.

    [21] Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, p.20.; ‘Shelter Services to Domestic Violence Victims – Policy Approaches to Strengthening State Responses’, National Shelter Movement of South Africa and the Heinrich Boll Stiftung, September 2017, p.5.

17. The CIA World Factbook notes:[22]

    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.

    Economic growth has decelerated in recent years, slowing to an estimated 0.7% in 2017. Unemployment, poverty, and inequality - among the highest in the world - remain a challenge. Official unemployment is roughly 27% of the workforce, and runs significantly higher among black youth.

    [22] South Africa - The World Factbook (cia.gov)

    CONSIDERATION

18. The essence of the applicant’s claim is that she will be seriously or significantly harmed by her uncle or his associates on return to South Africa.  She claims the reason for this harm is that she bore a child her uncle believes he fathered and because he held her in his home in circumstances where she was subjected to rape and forced prostitution by her uncle and his business associates.

19. Submissions to the Department characterised her claims of persecution on the basis of being:

    a.a member of the particular social group, orphans in South Africa; and/or

    b.a member of the particular social group, young women in South Africa, without familial protection.

    The Tribunal notes that both before the Department and the Tribunal, the risk to the applicant was claimed to be from her uncle and his associates on the basis of her membership of these particular social groups.

20. The Tribunal notes that when asked about her fears of returning to South Africa the applicant did not raise a claim with respect to being an orphan. This was unsurprising given the time which has passed since she made the claims and the changes in her claimed circumstances in the intervening period.  In the Tribunal’s view her status as an ‘orphan’ was effectively subsumed into her claim to be a member of a particular social group of ‘young women in South Africa without familial protection’.

21. Before the Tribunal the applicant also raised concerns regarding the mental impact returning would have on her, her separation from her Australian citizen children and the impact of return on the second applicant.  In post hearing submissions she provided material regarding COVID-19 in South Africa.  Although no specific claims were articulated with respect to COVID-19 the Tribunal has considered whether this evidence gives rise to a claim in the applicants’ circumstances.

    Fear of harm from the applicant’s uncle and his associates

22. As noted earlier, the applicant’s principal claim is that she will be seriously or significantly harmed by her uncle or his associates on return to South Africa.  She claims the reason for this harm is that she bore a child which her uncle believes he fathered and because he held her at his home in circumstances where she was subjected to rape and forced prostitution by her uncle and his business associates.

23. In support of these claims she gave evidence that her uncle had raped and threatened her with abortion while she was living at his home.  She claimed that her uncle’s housekeeper, [Ms A], was killed by her uncle or his associates sometime after she helped the applicant escape from her uncle’s home.  She also claimed her uncle was looking for her in South Africa in 2014, shortly after she had arrived in Australia and that he would be alerted by authorities as soon as she returned to South Africa because he was powerful and connected as a member of the ANC.  She claimed she could not relocate elsewhere in South Africa as her uncle would be able to find her due to his political and business connections.

24. As noted above, in submissions to the Department the applicant claimed her risk of harm from her uncle and his associates arose for the essential and significant reason of her membership individually or cumulatively of particular social groups of ‘orphans in South Africa’ or ‘young women without familial support’.

25. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

100.   Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

101.   As noted earlier, in her original submissions the applicant claimed to fear harm as a member of a particular social group of ‘orphans in South Africa’.  However, she did not raise this claim before the Tribunal.  As orphans would share the common characteristics of being children whose parents have died and the applicant is no longer a child, the Tribunal considers that she lacks a characteristic of this particular social group.  In any event, as her claims were cast in terms of her lack of family support and risk of harm from her uncle, the Tribunal considers any claims arising under membership of that social group would be reflected in the other claimed social group of ‘young women without familial protection’.

102.   In this case, the common characteristic of the social group of ‘young women in South Africa without familial support’ is that they are female. Country information cited above indicates that their gender gives women a distinct identity in South Africa which is perceived as being different by the surrounding society. In the Tribunal’s view ‘young women in South Africa without familial protection’ constitutes a particular social group (PSG) as the members share a common characteristic that cannot be changed – their gender – and this can be perceived by others. The characteristics which distinguish these groups is not the fear of persecution.

103.   ‘Young women without familial support’ constitute a particular social group within the meaning of the Refugee Convention because they share a common characteristic that cannot be changed – their gender.  Based on the Tribunal’s assessment of the country information they have a distinct identity in South Africa which is perceived as being different within that society.

104.   Although women in South Africa arguably form a PSG, this does not mean that establishing such membership is sufficient to make out a case for recognition as a refugee.  The question to be addressed in each case will be whether the applicant faces a real risk of persecution for the essential and significant reason of membership of such a group. 

105.   Country information noted above suggests that violence against women in South Africa is serious problem. However, information also indicates that this is part of a broader crime problem within South African society in which men are more likely to be victims of some forms of violent crime than women. Country information also suggests that most victims of gender-based violence suffer abuse at the hands of family members or others who are known to them.  Country information also suggests that while authorities have put in place a range of measures to  criminalise and deter gender based violence, many victims are reluctant to report these crimes to authorities particularly where the offender is known to them.  The Tribunal considers these elements of country information to be consistent with the applicant’s core claims with respect to her treatment by her uncle while living in his home.

106.   Having considered the applicant’s evidence regarding her claimed abuse by her uncle while living in his home, the Tribunal accepts that she was the victim of rape by her uncle. In accepting these claims the Tribunal considers they are consistent with country information pointing to a high incidence of gender-based violence within families in South Africa.  The Tribunal also regards the applicant’s claims that she was raped by her uncle as plausible based on the circumstances of her arrival in Australia and the consistency of this element of her claims over time.  The Tribunal also accepts that the applicant’s uncle believed he was the father of her child and that he attempted to arrange an abortion for her or force her to have an abortion which did not proceed.  The Tribunal accepts that her concern for her wellbeing and that of her unborn child precipitated her departure from her uncle’s home and caused her to leave South Africa.

107.   With respect to the harm caused to the applicant by her uncle’s foreign business associates, her evidence in this regard was lacking in detail.  In particular, the Tribunal notes that in her oral evidence before the Tribunal the applicant did not mention having a gun put to her head by her uncle or being raped by a [Nationality 1] business associate identified as [Mr A]. Further, the claim she was forced to sleep with a range of men was difficult to reconcile with her claim her uncle believed the baby to be his. Further, the applicant claimed to have been imprisoned in her uncle’s home for the year she was living there, yet her identity documents, including a passport issued in [2013] were obtained during that time suggesting she had some freedom of movement and that, in particular, she was not prevented from obtaining documents which would eventually enable her to leave South Africa. Notwithstanding some apparent shifts in her recollection of these events, and a lack of detail regarding the claimed abuse by associates, the Tribunal accepts on the basis it is plausible that she was raped by foreign business associates of her uncle while living at her uncle’s home and that these assaults were not reported to authorities.

108.   Past experience of harm by an applicant may be relevant to a decision relating to an application for protection because occasions of past harm may be instructive about factual circumstances.  However, past experiences of harm are not necessarily determinative when applying the forward-looking test that the Tribunal must apply under the law – namely regarding the refugee criterion, whether, on return in the recently foreseeable future an applicant faces a real chance of serious harm for one or more Convention reasons.

109.   The Tribunal explained to the applicant that even if it accepted her uncle had abused her, and that she may be fearful of returning to South Africa because of those events, it needed to assess if her fear was well founded and whether there was a real risk that the things she was afraid of might would happen to her if she returned to South Africa now or in the foreseeable future.  The Tribunal put to the applicant that country information suggested that gender based violence is an issue in South Africa but there was also a high rate of crime generally suggesting such violence was not directed at any particular section of the community for a purpose or reason but was part of a high incidence of crime.  She agreed this was the case. The Tribunal also noted that country information suggested a high rate of general based violence within family environments and is under reported among family members but that this might suggest that she was at less of a risk in circumstances where she wasn’t in a domestic arrangement with her uncle.  The Tribunal explained it needed to look at the risk of harm she was claiming would eventuate on her return to South Africa.

110.   The Tribunal had a number of significant concerns with the applicant’s claims that she was at risk of harm on return to South Africa based on the prior harm inflicted on her by her uncle and his foreign business associates.

111.   While the Tribunal accepted core elements of her claims regarding past harm, it was concerned that there were a number of significant inconsistencies in her evidence concerning events which occurred in South Africa which were critical to evaluating her risk of harm on return.

112.   A number of inconsistencies in the applicant’s evidence related to events occurring after she left her uncle’s home.  A significant inconsistency, which was a key element to her claim to be at risk of serious or significant harm from her uncle or his associates on return to South Africa concerned the claimed murder of [Ms A].   The Tribunal was also concerned about inconsistencies in the applicant’s account of her travel to Australia and her actions.

113.   In her 2014 statutory declaration, prepared with the assistance of her then representative, the applicant claimed to have travelled to Johannesburg while she was awaiting arrangements for her travel to Australia to be finalised.  She claimed that while she was there she heard from [Ms A’s] grandmother that the applicant’s uncle had sent four men to Limpopo. They had taken [Ms A] away with them and her body had been found later, about two hours away.

114.   In her 2014 and November 2021 statement she said that [Ms A] had told her after she had left her uncle’s that [Ms A] had overheard her uncle telling the men who worked for him that they must find her and kill her.  [Ms A] also feared for her own life and fled to her grandmother’s house.

115.   However, when she was asked about these events at the hearing,  she provided a significantly different account of the threats from her uncle, [Ms A’s] death and how she came to be aware of it. 

116.   In evidence at the hearing, she told the Tribunal that she contacted [Ms A’s] grandmother when she got to Australia.  She said this was a few months after she arrived and that this was when [Ms A’s] grandmother told her that [Ms A] had passed away.  The Tribunal asked if she had had any contact with [Ms A’s] grandmother since that time and she indicated she had not.  She told the Tribunal she was still staying at [Ms A’s] grandmother’s house when she left South Africa, saying [Ms A’s] brother came and collected her for the flight from Johannesberg. The Tribunal asked what [Ms A’s] grandmother had told her about [Ms A] and she said her uncle had heard [Ms A] had helped the applicant escape. [Ms A’s] grandmother ‘strongly believed’ she was murdered however, she didn’t go into the details.  She was unable to provide any details including how [Ms A] died or what the date was. The applicant told the Tribunal [Ms A] was killed as soon as they heard she had helped the applicant escape. The Tribunal asked if [Ms A] was still working for her uncle at that time and she said she was when she was killed.  The Tribunal confirmed she was saying she was killed while working for her uncle and the applicant said she couldn’t recall. She said she didn’t recall what happened as she didn’t stay on the phone, she just heard that [Ms A] died.

117.   There were additional inconsistencies in the applicant’s account of events after leaving South Africa. The Tribunal asked what happened when she got to Australia and she said she was stopping here on the way to [Country 1] and she was not feeling good so she thought she would ‘go and see if I can get help from the hospital’. The Tribunal asked if she sought assistance from anyone at the airport and she said she ‘saw a bus waiting’ so she took it. The Tribunal asked if she asked directions to the hospital and she said she asked a security guard and he said you get the bus and then at the last stop you have to walk where you are going.  She said she caught the bus but got lost in the city and she ended up sitting on a bench.  She said she asked around for somewhere to stay and ended up at [Agency 3] and they said she could stay for one night and in the morning she would have to leave straight away.  She told them she wanted to seek protection and they said she should contact [Agency 1].  The Tribunal asked if she got medical treatment and she said the lawyers (from [Agency 1]) took her there. At this stage she was about six or seven months pregnant. She said she talked to the lawyers at [Agency 1] and then filled in a form which they helped her to submit and she stayed in a women’s refuge.

118.   This account was significantly different to that provided in her 2014 statutory declaration where she had stated that she called [Friend A] from the airport when she felt unwell. [Friend A] had told her told her about seeking protection and had told her about [Agency 1]. Then she got the bus into town and tried to find [Agency 1], got referred to [Agency 3] and they sent her to [Agency 1] the next day. The Tribunal put to her that this different version of events may cause concerns about the credibility of her evidence.  In response she said was saying what she remembered but she remembered she did call [Friend A] as soon as she got here and she went looking for a SIM card.  The Tribunal put to her that she had said earlier in her evidence that she had not spoken to [Friend A] and she said she spoke to [Ms A’s] grandmother.  The Tribunal asked if she was now saying she had spoken to [Ms A’s] grandmother at the airport and she said ‘yes I did’.

119.   When the Tribunal put to the applicant its concerns regarding the inconsistencies in her evidence regarding [Ms A’s] death and her arrival in Australia she said she just wished to not remember some of the things. She said ‘a lot has happened.’  The Tribunal did not find this explanation of the significant inconsistencies in her account of events after she left her uncle’s home and on her arrival in Australia, to be satisfactory.

120.   The Tribunal also raised concerns with the applicant regarding her evidence that her uncle would be looking for her and aware of her return if she went back to South Africa and a lack of supporting evidence as to his position and profile in South Africa.  

121.   As noted earlier, in 2014 and November 2021 statutory declaration she had stated it was her housekeeper who had told her she had overheard her uncle discussing that they would kill the applicant if they found her and that the housekeeper had fled to the village fearing for her own life.  However, before the Tribunal she suggested it was [Ms A’s] grandmother who told her this after she had arrived in Australia. While she later said she knew he had been looking for her, when asked for details she said this was based on the information from [Ms A’s] grandmother in 2014.  The Tribunal considered this inconsistencies cast doubt on the claim that the applicant’s uncle has had any threats against house since she left his home and in particular that he would seek to find her if she returned to South Africa.

122.   The Tribunal also found the lack of corroborating evidence regarding her uncle’s position in South Africa to cast serious doubt on her claim he was a powerful and influential member of the ANC who would be immediately notified of her return to South Africa.  This concern was raised in the delegate’s decision and discussed with the applicant at the hearing.  Despite being given time following the hearing to provide evidence of his profile none was provided. The Tribunal considers this lack of corroborating evidence causes concerns regarding the credibility of this aspect of the applicant’s claims.  Giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant’s uncle is [an occupation 1] with [Employer 1].  The Tribunal is also prepared to accept he was a member or supporter of the ANC. However, having regard to the lack of evidence and to the fact the applicant was able to obtain a passport and leave South Africa without incident or detection by her uncle, the Tribunal does not accept he has a political, religious or business profile such as would support the applicant’s claim he would be informed of her return to South Africa, be able to enlist South African authorities to track her whereabouts or influence authorities to ignore her requests for assistance should she or her son be threatened with harm by her uncle.

123.   The Tribunal accepts that the applicant’s treatment while at her uncle’s house would have caused her significant distress.  The Tribunal has also had regard to evidence that the applicant has previously been treated for mental health issues including depression and PTSD.  Mindful of this, the Tribunal did not press the applicant on details of her abuse where the Tribunal felt it was not necessary in order to make findings on her claims.  However, the Tribunal does not accept her circumstances explain significant changes in her evidence over time, particularly with respect to events which occurred after she left her uncle’s home but on the basis of which she claims she would still be at risk on return to South Africa.  Further, the Tribunal found the applicant gave evidence regarding her uncle’s position, [Ms A’s] claimed death and threats against her by her uncle after her departure to have been exaggerated to enhance her claims for protection.

124.   In particular, the Tribunal does not accept on the evidence that [Ms A] was killed by her uncle or his associates for any reason including for her role in helping the applicant leave. The Tribunal also does not accept that her uncle has made any threats against her to [Ms A’s] grandmother or to any other person since her departure.

125.   Further, as discussed with the applicant at the hearing,  her circumstances have changed considerably since she lived with her uncle.  She is now a mature adult who is married and has the active support of her partner and family members.  In this regard while the applicant expressed some concern about her partner’s capacity to support her and the second applicant if they were in South Africa he gave evidence that he would and his employment history and family circumstances suggest he would be in a position to do so.  While there was some uncertainty as to whether the other family members would accompany the first and second applicant to South Africa, or if they would pursue other options to remain in Australia, the Tribunal accepts they may be returning on their own but finds they would have financial support from the applicant’s husband were they to return.  While country information suggests unemployment rates in South Africa are high, he husband’s support would give the applicant some means to support her living arrangements independent of family members in South Africa and means she would not face the situation of dependency on her uncle which lead to her initial abuse.

126.   Further the Tribunal notes that while country information suggest that rates of gender-based violence are high in South Africa this was in the context of a high overall crime rate.  The applicant did not submit that she was at particular risk of serious or significant harm on this basis other than from her uncle and his associates. 

127.   While the applicant limited her claims to a risk of harm from her uncle and his associates, the Tribunal has also considered whether she faces a risk of harm from gender-based violence more broadly as a result of being a ‘young woman without familial support’.  The Tribunal accepts based on country information that while women in South Africa face a risk of gender-based violence, country information suggests that there are safeguards in the law in South Africa that criminalise gender-based violence. While the state does not consistently implement the law to provide protections to victims at all times, country information suggests the South African government has put in place a range of mechanisms to address gender-based violence and discrimination, including social programs to reform cultural practices and prejudices which may serve to reinforce women’s disadvantage in South Africa and mechanisms to support and protect women who suffer gender-based violence or claim to be at risk of such violence.

128.   The applicant claimed that she was unable to seek help from authorities in the part due to her circumstances, her uncle’s position and corruption in the South African police.   She further claimed the lack of action regarding [Ms A’s] murder was proof of this. While the Tribunal accepts the applicant was reluctant to seek assistance from the authorities in her previous circumstances, the Tribunal does not accept she would be unable to do so returning independently, noting that the Tribunal does not accept on the evidence that her uncle has a profile which would result in the applicant being denied protection by the authorities.  Further, the Tribunal does not accept that [Ms A] was killed by her uncle and consequently does not accept that a lack of police action in that regard is proof the applicant would be unable to access police protection n South Africa or proof of police corruption with respect to her uncle’s activities.  The Tribunal considers on the information before it that the level of protection in South Africa for ‘young women without familial support’ would meet that which the applicant is entitled to expect according to international standards. 

129.   Further, the Tribunal finds the applicant would have financial and emotional support from her husband either from Australia or with her in South Africa.

130.   Given the available country information, the Tribunal considers that while it accepts gender-based violence against women to be a social problem in South Africa as part of a broader problem of general levels of violent crime, it does not consider that the applicant has a well-founded fear of persecution on the basis of being a ‘young women without familial support’ in South Africa.

131.   Having regard to the concerns articulated above and to the lack of any evidence of threats from her uncle since at the latest 2014, the Tribunal does not accept there is a real chance or a real risk the applicant would be seriously or significantly harmed by her uncle on return to South Africa now or in the reasonably foreseeable future.

132.   Based on the evidence and the available country information, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be subjected to serious or significant harm on the basis of being a ‘young woman without familial support in South Africa’.

Additional claims

Separation from family

133.   In her statutory declaration in November 2021, the applicant claimed that her family would not cope if she were to return to South Africa and her mental health would suffer as a result of the separation and the stress of her return.

134.   The Tribunal has considered whether the applicant’s potential separation from her partner and younger children would give rise to any claim for protection.

135.   Insofar as the decision impacts the Australian children, they are not applicants for the visa. While the Tribunal accepts the decision on the applicants’ visas impacts the applicant’s Australian children and partner’s interests the Tribunal is satisfied that it need not consider any further the impact of its decision upon them insofar as the question of whether the applicants meet the criteria for protection. The applicant acknowledged that the Australian children and her partner do not form part of the visa application and any harm they may face is not the subject of the review before the Tribunal.

136.   With regard to the applicants, when asked what her and her partner’s plan would be for the children if she returned to South Africa, the applicant said she was not sure but she thought it would be hard on them. Her husband gave evidence that they could not return and that he would plan to sponsor her for a partner visa.  Given the evidence, the Tribunal accepts that the applicant may be separated from her Australian children if the couple decide they should stay in Australia with their father. While the Tribunal accepts the first applicant would suffer emotionally from a geographical separation from her younger children and partner, the Tribunal does not accept those circumstances give rise to any claim for protection.

137.   The Convention on the Rights of the Child (CROC) sets out principles to do with the best interests of the child including separation from one or both parents and issues such as access to education and other services. However, the Federal Court has considered whether such principles apply to the determination of protection visas and concluded they do not.[23] 

[23] MZZIA v MIBP [2014] FCCA 717 at [39]; AZAEH v MIBP [2015] FCA 414 at [31] – [33].

138.   As noted above, there must be a refugee nexus between the claimed harm and the real chance of persecution being faced by the applicant now or in the reasonably foreseeable future. On the evidence the Tribunal is not satisfied that she has a well-founded fear of persecution on return to South Africa for the reason she may be separated from her younger children and partner, who may remain in Australia. The applicant did not claim that she did. There was no submission that any harm arising from the possible separation of the applicant and her younger children is, or would be, the consequence of persecution for a Convention reason. The applicant did not identify how the separation from her children or partner would be a consequence of, or would give rise to, persecution for a Convention reason and her evidence did not provide a basis for such a finding.

139.   The Tribunal finds that there is no well-founded fear of persecution faced by the applicant now or in the reasonably foreseeable future arising from harm caused to her by her separation from her younger children and partner if she was returned to South Africa and the parents determined the Australian family members should remain here for the present.

140.   With respect to complementary protection the Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s 36(2)(aa).[24] The reasoning applied by his Honour has recently been upheld by the Full Court of the Federal Court.[25]

[24] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]–[49], upholding at citing the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM,1 March 2013) at [61]–[65].

[25] GLD v Minister for Home Affairs [2020] FCAFC 2 (5 February 2020) (Allsop CJ and Mortimer JJ, Snaden J agreeing).

141. The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[26] Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s 36(2B)(a) (relocation) and s 36(2B)(b) (protection from an authority) are to have any application.[27]

[26] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [61]–[62].

[27] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [63].

142. Further, the Court noted the circularity in the operation of s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[28] The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia.[29]

[28] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].

[29] SZRSN v MIAC [2013] FCA 751 at [47].

143.   Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s 5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention of causing ‘extreme humiliation that is unreasonable’.[30]

[30] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA at [65].

144. As such it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[31]

[31] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s 36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]–[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. The Full Court in GLD v Minister for Home Affairs cast doubt on the distinction drawn in MZAEN and affirmed the approach in SZRSN, at [67].

145.   For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to be separated from her partner and younger children it does not accept that she is owed complementary protection on this basis.

Mental health issues

146.   The applicant did not raise any claim to fear persecution on the basis of her mental health issues on return to South Africa.  However, she submitted that her mental health would suffer on return.

147.   The Tribunal accepts that the applicant is genuinely fearful of returning to South Africa. It finds that this is a result of her personal history with her uncle in South Africa. The Tribunal has found that fear is not well-founded but accepts that the applicant would suffer distress on her return. 

148. With respect to any claims under the criteria in s 36(2)(a), the Tribunal notes there was not information before it, and the applicant did not claim, that there was a real chance she would be subjected to serious harm by reason of her history of mental health issues on return to South Africa. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.

149.   In GLD v Minister for Home Affairs,[32] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[33]

[32] At [88]–[89].

[33] See also FMN17 v MICMSMA [2020] FCA 326.

150.   As noted by the Full Court in GLD v Minister for Home Affairs:[34]

[34] [202] FCFCA 2 at [50] per Allsop CJ and Mortimer J.

The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will. 

151.   The applicant’s psychological vulnerability is not of itself grounds for granting complementary protection. There needs to be intention on the part of another to cause significant harm which is exhaustively defined in s 36(2A). It sets out that a person will suffer significant harm if:

(a)  the non-citizen will be arbitrarily deprived of his or her life; or

(b)  the death penalty will be carried out on the non-citizen; or

(c)  the non-citizen will be subjected to torture; or

(d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)  the non-citizen will be subjected to degrading treatment or punishment.

152.   In each case, there has to be intent to cause significant harm by arbitrarily depriving or carrying out or subjecting the person to certain treatment. A person’s fear of being removed from Australia to the receiving country does not mean that they face a real risk of significant harm, in the absence of an intention by another person or the state to cause them harm.

153.   The Tribunal finds the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of her return to South Africa due to mental health issues and in particular prior diagnosis and treatment for PTSD and depression.

COVID-19

154.   The applicant’s post hearing submissions included an article regarding COVID-19 rates in South Africa.  While no specific claims regarding COVID-19 were raised by the applicant, the  Tribunal was concerned whether COVID-19 gives rise to a claim for protection in the applicants’ circumstances.

155.   The Tribunal notes that the applicant did not raise any personal circumstances with respect to her or the second applicant which would suggest either was at particular risk from COVID-19 on return to South Africa. She did not express any specific concern regarding COVID-19 with respect to her personal circumstances or those of the second applicant or with respect to any actions or responses by South African authorities which may give rise to a risk of harm in this regard. The Tribunal also noted that country information submitted with respect to COVID-19 in South Africa suggested that figures for infection rates from the Omicron variant in South Africa were high. 

156.   It is acknowledged that the international public health crisis arising from the current COVID- 19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia.  The Tribunal notes that this decision is not a decision on removal.  However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.  Accordingly, for the removal of doubt, the Tribunal finds that that there is no information before the Tribunal suggesting or supporting a claim that the COVID-19 pandemic or the South African government’s response to it give rise to a well-founded fear of persecution on the part of the applicants on return to South Africa. 

157.   Further, there is no evidence that as a reasonably foreseeable consequence of the applicant’s return to South Africa there is a real risk the applicants would suffer significant harm on the basis of the existence of COVID-19 cases in South Africa or the government’s response to the COVID-19 pandemic.  In this regard, the Tribunal finds that the COVID-19 pandemic and whatever measures may be applicable to the population of South Africa generally in response to it do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.

Claims relating to the second applicant

158.   The applicant did not articulate any claims on behalf of the second applicant in their protection applications.  Before the Tribunal she suggested he was at risk on return from her uncle on the basis her uncle would think he was his child.  She also claimed the second applicant would suffer due to a separation from his siblings and Australian family members and his education would be disrupted.

159.   The applicant offered no evidence to suggest her uncle was aware of the second applicant’s birth.  His father is not identified on his birth certificate and the applicant’s evidence was that she was not in contact with anyone from South Africa after she arrived here.  As noted earlier, there is no credible evidence to suggest the applicant’s uncle is currently seeking the whereabouts of the applicant and her son or that he has done so since she left South Africa.  Nor does the Tribunal accept his profile is such that he would be informed of their return to South Africa.  For the reasons articulated with respect to the applicant’s claims to fear harm on return to South Africa from her uncle or his associates, the Tribunal does not accept the second applicant faces a real chance of serious or significant harm from the applicant’s uncle or his associates on return to South Africa now or in the reasonably foreseeable future.

160.   The Tribunal acknowledges the second applicant has no experience living in South Africa and would find the transition difficult.  However, he has the care and protection of his mother and would continue to have the financial and emotional support of his Australian family.  There is no evidence he would be denied services or protection in South Africa from the authorities for any Convention reason. 

161.   As with the applicant, the second applicant’s separation from family members and emotional distress at relocating do not give rise to either a well-founded fear of persecution or a claim for complementary protection on the part of the second applicant.

162.   The Tribunal has considers that on the information before it no claims for protection arise with respect to the second applicant’s circumstances.

Do the applicants meet the refugee criterion?

163. The first question is whether the first applicant’s claims could ground a claim for protection under the refugee criterion set out in s 36(2)(a) of the Act.

164.   The applicant made claims against the refugee criteria on the bases of membership of particular social groups of ‘orphans in South Africa’ and ‘young women without familial support’. The Tribunal also considered whether any claims arose on the basis of the applicant’s mental health issues, due to COVID-19, due to the applicants’ separation from Australian family members or for any other reason.  The Tribunal also considered if any claims arose with respect to the second applicant.

165.   Having regard to her changed circumstances, the Tribunal does not accept that the applicant would be considered a member of a particular social group of ‘orphans in South Africa’. Based on the evidence before it, the Tribunal does not accept that there is a real chance the applicant will face serious harm on return to South Africa now or in the reasonably foreseeable future from her uncle or his associates or employees due to her membership of the particular social group of ‘young women without familial support’.

166.   While it accepts gender-based violence against women to be a social problem in South Africa, given the available country information and the evidence before it, it is not satisfied that the applicant has a well-founded fear of persecution on the basis of being a ‘young woman without familial support’ in South Africa.

167.   The Tribunal also does not accept that there is a real chance that the applicant will face serious harm on return to South Africa on the basis of her mental health issues now or in the reasonably foreseeable future from any person in South Africa.

168.   The Tribunal finds that there is no information suggesting or supporting a claim that the COVID-19 pandemic or the South African government’s response to it give rise to a well-founded fear of persecution on the part of the applicant on return to South Africa.

169.   While the Tribunal accepts the applicant would suffer emotionally from a potential geographical separation from her partner and younger children, the Tribunal does not accept those circumstances give rise to any claim for protection. The Tribunal is not satisfied there is a real chance the applicant will face a real chance of serious harm for the essential and significant reason of any Convention ground, arising from potential separation from her partner and younger children if the applicants returned to South Africa and the parents determined the younger children and husband should remain in Australia. 

170.   While no specific claims were articulated on behalf of the second applicant, the Tribunal also considered whether there were any grounds on which the second applicant may face a real chance of serious harm for a Convention reason.  The Tribunal is not satisfied that he does.

171. After considering all of the applicants’ claims, both individually and cumulatively, against the refugee criteria the Tribunal finds that there is no real chance that the applicant will face serious harm in South Africa for the reason of their race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicants do not have a well-founded fear of being persecuted for a Convention reason. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a).

Do the applicants meet the complementary protection criterion?

172. The Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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 she will suffer significant harm.

173.   As discussed above in the assessment of the evidence, the Tribunal has found that the applicant does not face a real chance of serious harm on return to South Africa from her uncle, his associates or employees or any other person.

174. The Tribunal notes the threshold for the real risk element of the complementary protection criterion in s 36(2)(aa) is the same as that for the real chance test in the refugee criterion in s 36(2)(a) of the Act.[35] The Tribunal further notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

[35] MIAC v SZQRB [2013] FCAFC 33.

175.   Based on the evidence the Tribunal does not accept there is a real risk the applicant would be harmed by her uncle or his associates on return to South Africa.  She is no longer dependent on her uncle for accommodation and support and has the financial and emotional support of her husband.  She is an adult with experience and means of support to live independently of her uncle and as such does not face the risks she was previously exposed to when she was living dependently of his care.  There is no credible evidence that the applicant’s uncle has sought information about her whereabouts since she left South Africa and taking the applicant’s evidence at its highest, since early 2014.  There is no supporting evidence to establish her uncle has a position or influence which would enable him to determine her whereabouts in a city of 5 million people in a country of more than 56 million people.[36]  In this regard the Tribunal notes she was able to obtain a passport and leave the country freely. Further there is no information to suggest that the applicant has identified the second applicant as the child of her uncle. There is nothing to suggest he would be so identified.

[36] Country Background Notes: South Africa, Version 2.0, August 2020, United Kingdom Home Office.

176.   There is no evidence, and the Tribunal does not accept, that the applicants would face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment if she returns to South Africa for any of the reasons claimed.

177.   To the extent the applicants claim to fear harm on return to South Africa due to the prevailing security and crime situation in South Africa, there no evidence to suggest this is a risk of harm to the applicant personally but rather to the population generally: s 36(2B)(c).

178.   The Tribunal accepts that country information suggests there is a high rate of crime in South Africa and that perceived corruption within the police force is an issue.  On this basis the Tribunal accepts there may be a risk of significant harm from crime in South Africa. While a risk of harm from general crime may exist the Tribunal is not satisfied that the risk attaches to the applicants personally rather than to the population generally. While the Tribunal accepts the applicants may be returning to South Africa without her husband, the Tribunal has found based on his evidence that he will continue to support the applicants financially.  He also indicated he would be pursuing other avenues for them to remain in Australia.

179.   The Tribunal accepts that there is a high unemployment rate in South Africa, however the applicant did not claim and the Tribunal does not accept based on the information before it that she would face a real risk significant hard due to the unemployment rate there or because of the prevailing economic circumstances in South Africa.  To the extent that the information before the Tribunal suggests any risk of harm, there is information before the Tribunal suggesting any economic harm in South Africa caused by the prevailing economic circumstances of the country would be intentionally inflicted on the applicants by an agent of harm.  In any event, there is no evidence to suggest the economic circumstances in South Africa represent a risk of harm to the applicant personally but rather to the population generally (s 36(2B)(c)) noting the Tribunal’s findings with respect to the applicants’ circumstances on return.

180.   The Tribunal finds this support combined with the applicant’s age familiarity with South Africa, age and experience will enable the applicants to settle and subsist in South Africa. In this regard the Tribunal notes that country information suggests that the second applicant would have access to public education and both applicants would have access to services available to South African citizens.[37]

[37] South Africa 2020 Human Rights Report, Country Reports on Human Rights Practices, United States Department of State; Country Background Notes: South Africa, Version 2.0, August 2020, United Kingdom Home Office.

181.   Further, the Tribunal has found that the applicants’ separation from family members in Australia does not give rise to a claim for complementary protection.

182.   As discussed above in the assessment of the evidence, the Tribunal has found that there are no 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 the applicants will suffer significant harm, for any of the reasons claimed.

183. The Tribunal notes the threshold for real risk element of the complementary protection criterion that 36(2)(aa) is the same as that for the real chance test in the refugee criterion 36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

184. The Tribunal has carefully considered each of the integers of the applicants’ claims of fear of serious harm discussed above with respect to their claims for refugee protection in the context of complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa), individually and cumulatively. The Tribunal finds that the applicants return to South Africa does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s 36(2)(aa) of the Act.

185. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk that they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicants for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of their lives or the death penalty. The Tribunal, therefore, is not satisfied that there are grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

186. The Tribunal, therefore, is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

CONCLUSION

187. The Tribunal has considered the applicants’ claims under the Refugee Convention individually and cumulatively and found that they do not engage Australia’s protection obligations. The Tribunal finds that neither of the applicants have a well-founded fear of persecution for any Convention reason should they return to South Africa now or in the foreseeable future. The Tribunal is satisfied therefore that they do not meet the requirements of s 36(2)(a).

188.   The Tribunal has also considered whether the applicants meet the criteria for protection under the complementary protection provisions. In particular it has considered where the applicant was at risk of significant harm from her uncle or his associates or employees in South Africa. It has considered the other claims raised, including those concerning the applicant’s mental health and the impact of the potential separation between the applicants and their Australian family members. In addition, it has also considered whether the high rates of crime and violence in South Africa engage protection obligations under the complementary protection provisions for all or any of the applicants and is satisfied they do not

189.   In summary, the Tribunal finds that there are not substantial grounds for believing, as a necessary and foreseeable consequence of them being removed from Australia, there is a real risk any of them will suffer significant harm.

190. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

191.   The Tribunal affirms the decision not to grant the applicants protection visas.

Simone Burford
Senior Member