1711738 (Refugee)

[2022] AATA 1245

1711738 (Refugee) [2022] AATA 1245 (24 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711738

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Peter Vlahos

DATE:24 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

This Statement was made on 24 February 2022 at 10.30AM

CATCHWORDS

REFUGEE – protection visa – South Africa – member of particular social groups – women, single women, widows and victims of sexual assault and domestic violence – assaulted by sister’s husband at young age – arranged marriage and various forms of abuse and threats by husband and his family – mental health and suicidal thoughts – assessment, treatment and support – husband returned to home country and later died – little contact with adult daughter and siblings – country information – divorced women at greater risk of social stigma, discrimination and gender-based violence – ineffective protection measures and under-resourced services – applicant’s personal vulnerabilities – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 5LA(2), 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997)190 CLR 225

Applicant S v MIMA (2004) 217 CLR 387

Chan v MIEA (1989) 169 CLR 379

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

Morato v MILGEA (1992) 39 FCR 401

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 on 22 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of South Africa, applied for the visa on 16 October 2015. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. On 2 June 2017, the applicant made an application to the Tribunal to review the delegate’s decision.

4. The applicant appeared before the Tribunal on 16 February 2022 to give evidence and present arguments. The hearing was conducted via a teleconference arrangement with the consent of the applicant for the reason that the applicant was located in Perth, West Australia and for reasons that the Covid-19 Pandemic state of emergency persisted in West Australia and Victoria.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

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

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

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

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of origin and assessment

13. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of South Africa and has had her claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.[1]On this basis therefore, the Tribunal further accepts the applicant’s identity as is claimed.

    Third Country Protection

    [1] see, Department of Home Affairs File [Number] and AAT File, for Passport and other identification evidence.

14. From the evidence before the Tribunal, the applicant does not have a right to enter or reside in a country other than her country of origin, South Africa. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant’s situation.

    Department’s File

15. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard and has considered the information referred to in the delegate’s record. The applicant provided a copy of the delegate’s decision to the Tribunal with her Application for Review.

    Background – Migration history of the Applicant

16. The Applicant’s migration history as recorded by the delegate in his decision is as follows:[2]

    [2] see Protection Visa Assessment section, in the delegate’s decision record at pp. 1 to 2.

    §22 October 2007 the Applicant was granted a UC subclass 457 visa, as a dependant applicant.

    §[November] 2009 the Applicant arrived in Australia

    §17 July 2009 the Applicant lodged a class UC subclass 457 visa application as a dependant applicant and was granted the associated Bridging WA-010 visa. This visa ceased on 21 October 2009.

    §23 September 2009 the Applicant’s class UC subclass 457 visa was withdrawn.

    §19 July 2010 the Applicant lodged a Nomination (Business Sponsorship) visa application as a dependant applicant.

    §8 September 2010 The Applicant’s Nomination was withdrawn

    §[July] 2011 the Applicant departed Australia.

    §[August] 2011 the Applicant arrived in Australia on her UC457 visa.

    §27 September 2011 the Applicant’s UC457 visa ceased.

    §27 September 2011 the Applicant lodged a class UC subclass 457 visa, as a dependant applicant and granted the associated Bridging WA-010.

    §29 September 2015 the Applicant was granted a class UC subclass 457 visa as a dependant applicant and her bridging WA-010 visa ceased.

    §16 October 2015 the Applicant’s UC457 visa was cancelled under s.140: Consequential cancellation.

    §27 November 2015 the Applicant was granted a bridging WC-030 visa.

    §16 October 2015 the Applicant’s WC-030 visa ceased.

    §16 October 2015 the Applicant lodged a class XA subclass 866 Protection visa application and was granted the associated bridging WE-050 visa.

    §16 October 2015 the Applicant was granted a bridging WE-050 visa.

    §6 November 2015 the Applicant’s WE-050 visa ceased.

    EVIDENCE AT THE HEARING

17. The applicant is a female citizen of South Africa of Indian ethnicity, born on [Date] in Durban, the KwaZulu-Natal Province, South Africa. Previously (before her marriage) her name was [Previous name]. The applicant was born into a traditional Hindu family but chose to convert to Christianity when she married a Christian (her deceased husband) and is now a practising Christian. Both of the applicant’s parents are deceased. The applicant has siblings living in South Africa – her sisters [Ms A], and [Ms B] and her brother [Mr C]. The applicant was married to [Mr D] who is now deceased. The applicant has a child from her marriage, [Ms E] who resides in South Africa and is in a relationship with children.

    The Applicant’s Protection claims as submitted to the Department[3]

    [3] see, the Department’s File [Number]

18. The applicant claims for Protection and supporting evidence are contained in the Department’s file and her initial claims are summarised as follows:

    §The applicant was sexually assaulted by her sister’s husband (brother-in-law) the age of 13, leaving her traumatized to this day. She did not seek help as she was young and did not understand what had happened and who to go to for help, but also feared that no one would believe her. Her brother-in-law threatened to kill her sister and their newborn child if she told anyone. She feared he would carry out his threats as she was ignorant at the time. Also due to cultural reasons she did not reveal the sexual assault.

    §In 1994 an arranged marriage proposal was offered to the applicant’s father for her to marry a man 11years her senior. Coming from a Hindu background she had to be baptised as her future husband was a Christian (Holy Gospel). She was asked to marry him in within eight months. They communicated over the phone and only met on one occasion. All the wedding arrangements were made by the two families and the applicant’s father was happy for her to change her religion because of the security the marriage would offer.

    §Prior to the marriage the applicant and her father were told that her future husband was an aggressive and violent man and that the family had a reputation for being dominating. Her father refused to believe the rumours.

    §The applicant was married [in] December 1994 to [Mr D]. Within two months of the applicant marrying her husband, the abuse started when her husband smacked both of her cheeks after playing a prank on him. This was the first time he physically hurt her.

    §She was physically abused several times a month and emotionally on a daily basis. She suffered social abuse in that her husband restricted her visits to her parents. She was continually dominated by him and his family.

    §The applicant was spiritually abused by the fact that she could not carry out Hindu prayers for the passing of her father as her husband and his family prevented this.

    §If the applicant didn’t agree with something in relation to her husband’s family, he would become physically abusive toward her by pulling her hair and smacking her.

    §From when the applicant and her husband were first married, he had been abusive toward her, verbally and physically. This continued after the applicant’s arrival in Australia.

    §When the applicant was pregnant the abuse continued, and she was hit for making minor mistakes. At times she ran to her parents, but they told her to return and that she was to stay with her husband as that was how married life was.  

    §The applicant’s husband expected her to obey his mother’s directions and one time when she was eight months pregnant, he became physically abusive toward her after she refused to do as he had asked her. She was also hit for making minor mistakes and another time during an argument in the car, he threatened to crash the car into oncoming traffic.

    §After the birth of the couples’ daughter an incident occurred where the applicant’s husband threw a suitcase off the balcony. It contained gifted clothes from the applicant’s parents and her husband felt they thought he was not capable of caring for his child. He was also verbally abusive to them.

    §The applicant was threatened by her husband when he stated he would throw her of their [Number] floor apartment balcony.

    §After the coupes daughter was growing up the applicant returned to work as her in-laws told her she needed to support the family financially. Even though she worked she still tended to the house and would be awoken by her husband when he returned from the pub in order to serve him dinner.

    §On occasions when the applicant was out socially with her husband and child he would get intoxicated. When she would ask to be taken home, as he was the driver, he would become upset and threaten her or physically slap her very hard across the face, often when holding their child and in front of people.

    §If the applicant got upset with her husband, he would hit her, grab her hair and roll it around his hand and then throw her to the floor, kick her in the ribs or in her back and hit her head against the wall. After experiencing this she would usually have bruising on her upper arms, lower face and ribs.

    §Several more incidents occurred where the applicant was physically and emotionally abused by her husband and at times her daughter would witness the abuse. On one occasion when the applicant’s husband was threatening her with a knife, her daughter said to her father “daddy stop, please don’t kill mummy”.

    §One year there was a family problem. The applicant’s husband’s sister arranged for her two sons to shoot the applicant’s husband. He was set up, but when his older brother stood up for him, he was shot by his nephews in the abdomen. Her husband’s brother survived. They were still after her husband and when the applicant travelled with him or when they were at home she was afraid.

    §Due to the family feud they moved to an apartment closer to her mum. This caused problems when she visited her parents.

    §The applicant’s husband would always tell her that she was stupid, unintelligent and that she was fit-for-nothing, her family was poor, and she would not be able to feed their daughter.

    §The applicant’s husband was offered employment in Sydney Australia on a subclass 457 visa as [an Occupation 1]. He arrived in May 2006 and then organised for the applicant and their daughter to be included on his visa so that they could be reunited as a family. The applicant and her daughter arrived in Sydney [in] November 2007, and she was happy to be a family again.

    §The applicant started working at [Employer] in 2007 and would work late at times. Her husband would get drunk and forget to pick her up. Sometimes she walked home around 8pm or 9pm. If the applicant talked to men, her husband would accuse her of having an affair and verbally abuse her.

    §On 29 April 2011 an incident occurred where the applicant was referred for a mental health assessment after the police attended the family home. She had threatened to kill herself with a knife and then by grabbing an extension cord and attempting to climb onto a table to hang herself, as she was tired of being abused. The paramedics were called, and the applicant was taken to the emergency department of the [hospital]. She was told to wait however after what seemed a long time she decided to walk out and caught a train home.

    §There were a number of times police were called to incidents at the applicant’s house. The majority of the time she called them and a few times her husband or daughter called them because she was threatening suicide due to the violence. Several times she was punched, slapped, kicked and threatened with objects. She cannot recall the exact dates or times of the earlier events. When questioned by police she would change her story of being physically assaulted as she was afraid of the aftereffects, afraid her husband would deport her back to South Africa without their daughter or continue to abuse her once the police left.

    §The applicant’s husband’s niece [Ms F] was murdered by her own husband in 2011. Her husband [Mr G] was taken into custody and then found hanging by his own scarf in his holding cell. It is the applicant’s belief and the belief of others who know her husband’s family, that [Mr G]’s death may have been arranged through her husband’s family while he was in prison, through bribery and taking revenge. South Africa has no gun law restrictions, and she fears her husband would be able to possess a firearm easily and take her life if she returned to South Africa.

    §On Christmas day in 2012, the applicant was verbally abused by her husband after having been out for a couple of hours. After she told him to shut up he physically assaulted her and she retaliated. He verbally threatened to kill her and put her in a body bag back to South Africa. The applicant told her husband she was going to call the police however he advised that if she did, he would call immigration and she would be kicked out of the country. He also advised he would take their daughter away from her and she would never see her again. Their daughter was present and witnessed the altercation. The applicant didn’t tell anyone or the police about the incident.

    §A few months later the applicant experienced another incident with her husband where he threw his dinner at her after finding a file that she had hidden. The file had information in it about what ‘abuse’ was. The applicant was physically assaulted by her husband and their daughter came from her bedroom and tried to separate them.

    §The applicant paid for half of the family expenses and was not allowed to open her husband’s mail, payslip or see his account.

    §When the applicant spoke with friends on her mobile her husband got upset with her. He broke her phone many times when he saw her hiding to chat with friends.

    §The applicant had a little dog called [Name] who she loved very much, and her husband used to threaten to kill her dog. He threw the next-door neighbour’s cat over the fence one day and injured the animal.

    §In late January 2014, the applicant had finished a late shift at work and her husband wanted money for cigarettes. She refused and another argument followed with her husband verbally and physically abusing her. She left to a friend’s house for safety and rang the police. They attended her home and then rang to find her. Her husband had told the police she was the problem and that she wanted to commit suicide. She did feel this way as she was tired of the abuse. The police took her home.

    §At times when the applicant was alone after the abuse, she thought of committing suicide. She would write letters to her daughter, telling her she was sorry to be leaving her but that she had enough and loved her. She would also write a letter to her husband telling him she was sorry for not being the wife that he wanted her to be.

    §A few days after this incident the applicant saw her neighbour outside. She was embarrassed about what he had seen. He was kind and told her that women in Australia did not get treated in that manner. As time went by a relationship developed. She wanted what he could offer her but was afraid they would get caught by her husband. He showed her more love than she could have ever imagined and was so happy.

    §The applicant’s daughter found out about the relationship, but she convinced her to keep quiet about it however her daughter was not happy and made her promise to tell her father as soon as possible.

    §On the evening of around 9 December 2014, the applicant’s husband caught the couple together. He kicked, punched, slapped, threw her against the wall, pulled her hair and dragged her on the floor. He told her she was a bitch to sleep with a white man, that she was a disgrace to him and his family and that he would kill her and send her in a body bag home to her family. Or that she must fuck off with the white man and get out of his house. She did not have the strength to leave the house and her daughter.

    §The following day the applicant phoned the paramedics as she was stressed. She was in pain but had no physical signs of injury. She was transported to the [hospital]. As she was hysterical and tried to run away, she was strapped to a bed and transferred to the psych ward for assessment. After several hours she was discharged. Two weeks after the incident the applicant’s neighbour moved out.

    §The applicant’s husband left her in March 2015, in Sydney and returned to South Africa after leaving his job and cancelling his visa and took their daughter with him. Before he left, he told the applicant not to follow him, she should not call him, and she should leave him alone. He said if she followed him, he would hunt her down, torture her life and then kill her and put her in a body bag. He said he would never forgive her for making him look stupid and having an affair with a white man and also for bringing disgrace to him and his family. The applicant remained in Australia as she was too frightened to return to South Africa, as she does not believe she can be protected from her husband.

    §The day before the applicant’s husband departed, she asked him for money to buy food as she had taken a month off work and had no money. He just gave her $50 and left without paying the outstanding rent. She had to attend a tribunal and was given two weeks to vacate the property. She now had no home and had to eventually give up her dog.

    §The applicant found accommodation rent free but felt she could no longer live in Sydney after all that had happened. She eventually got a transfer through [her employer], to [Town]. She also arranged accommodation in [Town] through a friend, until she could find a place of her own.

    §After staying in the arranged accommodation, the male, she shared with started making sexual advances toward her and when she declined, he kicked her out. She ended up at the [Town] Women’s Refuge

    §While the applicant’s husband has been out of Australia, she has continued to feel threatened by him. She received a message from her sister warning her to watch her back as her husband was planning something. Her mother told her that he had been to see her to give her a message to pass on; that if she was to return to South Africa, he would kill her. His own brother told her (she phoned looking for her husband because a friend was selling his car that he had left in Australia) that she had brought disgrace onto his family and they would never forgive her and would make her suffer. She fears if she returns to South Africa the [D] family will not allow her to survive.

    §The applicant’s husband’s family are influential in the community and they are wealthy. She fears that her husband would be able to bribe the government and the police.

    §The applicant fears that if she did return back to her family in South Africa, her mother would pressure her to return to her husband because it is part of their culture.

    §South Africa has one of the highest incidents of domestic violence in the world. If the applicant were to return, she fears as a woman she would not be protected by the government or the police, as it common knowledge in the community that there is a lot of corruption and bribery in the government and police force.

    §In regard to the violence the applicant experienced in her marriage, she did not seek help with any agencies as she was not aware of women’s shelters as she had led a sheltered life. She did seek help from her mother, but because of her culture she forced her to return home to her husband. She also stayed in her marriage because her husband and his mother had threatened to take her daughter away from her.

    §The applicant could not leave her husband while she was in South Africa as he would not have let her take their daughter. If she were to have left him, taking their daughter, he would have found her as his family is wealthy and influential. Her family was poor and financially she wouldn’t have been able to relocate due to this. If she was to leave the marriage without her daughter, her husband and his family would not let her have any contact with her.

    §If she was to return, she fears the abuse will continue and her husband would also follow through with his threat to kill her as she brought disgrace on him and his family by having had a relationship with a white guy

    §It is general knowledge in the community that the government and police are easily bribed. Yes, the government may try to protect the applicant by placing her in a women’s shelter or applying for a violence restraining order, but the women’s shelter is not a long-term solution, she would have to find her own place to live permanently, and she would l always be looking over her shoulder. A violence restraining order would not stop her husband if he wanted to do harm to her.

    §There is nowhere in South Africa where the applicant would be safe from her husband. This is because of his threats to her personally and also because his family does business throughout South Africa, they would find her. She would have a strong urge to connect to her family and her daughter. This would put her in danger and also her family in danger. The isolation knowing her daughter and her family were nearby would be emotionally too much for her and then she would not be able to protect herself if she was emotionally unstable. There is nowhere in South Africa where she would feel safe.

1. The applicant attended a Protection visa interview on 1 September 2016 and made the following additions to her claims:[4]

   [4] see, Department File [Number] – see decision record at p.6-7

   §The applicant was in a relationship with another man for approx. 6 weeks in 2014.

   §The applicant has been cut from her family as they do not agree with the extramarital relationship she had. They believe she is an unfit mother and has abandoned her daughter [Ms E]. There is no regular contact with her siblings. The applicant’s daughter returned to South Africa with her father as she didn’t agree with the extramarital relationship her mother had. They have had some communication but not a lot and she told her mother she doesn’t love her anymore. She resides with her father in South Africa.

   §The applicant has no other children.

   §The applicant felt like a slave to her husband. He always put his family first and treated her like she was useless and stupid. He allowed his family to treat her the same way. Her husband was abusive toward her since the start of their marriage. She never thought to go to hospital as she dealt with the abuse her own way.

   §The applicant didn’t seek any help through the police in South Africa as is disgraceful to do so in her culture and she is required to submit to her husband. She asked her family to stand up for her and asked her mother to ask him to stop however she told him to kick and assault her because she is wrong.

   §The applicant never told her husband about the sexual abuse she suffered but he looked at her as though she was not a virgin, when they were married.

   §The applicant came to be with her husband in Australia as she hoped her marriage would work, being away from the influence of his family.

   §The applicant believes her mother would want her to reunite with her husband if she returned as that is what should be done in their culture.

   §The applicant believes her husband would obtain a firearm and use it on her if she returned because his brother had done a similar thing plus, she had cheated on him causing disgrace to the family.

   §The applicant’s husband has not made any contact with her since he departed Australia to return to South Africa. She has also not had any contact from his family.

   §The applicant has contacted her husband twice since he departed permanently from Australia. The first time was in mid-2015 when she was going to tell him to undertake a divorce and the second time was in reference to the sale of his car that he had left behind. He verbally threatened her. She intends filing for divorce in Australia if possible.

   §If a woman takes out a restraining order in South Africa it is considered to be disgraceful for the family. The police do not take domestic violence seriously and many women have died as there is no help or support. The applicant was unaware if there were women’s shelters in South Africa however if there were, she did not believe they would be a long term solution.

   §The applicant would not be able to relocate if she returned to South Africa as she would not be able to be there and not make contact with her daughter. Her husband would eventually find out she was back.

   §The applicant fears if she returned it would be worse than it was before due to the affair and because her family can’t forget what has happened. She fears for her life and is afraid of her husband.

   §The applicant does not believe the authorities can protect her as someone will find her. The applicant’s mother was diagnosed with cancer recently. She wants to be with her but can’t as she fears returning because of her husband.

   §Although the applicant wants to be with her daughter, being far away is better than being dead.

   §If the applicant follows her husband to South Africa, he will hunt her down, torture and then kill her.

2. The Tribunal asked the applicant what is her current employment situation? The applicant told the Tribunal that she is currently as [an Occupation 2] for [Employer] in West Australia. She has been working at her current employment since 2016.

3. The applicant confirmed for the Tribunal her migration history and admitted that she first arrived in Australia on 18 November 2007 on her late husband’s granted 457 visa as ‘his dependent.’

4. The applicant told the Tribunal that she has returned to South Africa only once in 2010/2011 to see her family and has not returned since.

5. The applicant also confirmed for the Tribunal that she one daughter as a result of her marriage to her now deceased husband, who is [Age]-years-of-age, in a relationship and with children (applicant’s grandchildren).

6. The applicant confirmed that she keeps in touch with her siblings and admitted to the Tribunal that it had been a very long time since she has seen them, and that separation has taken its toll on her. The applicant became very emotional when she made reference to her daughter and grandchildren who, she had not seen in person.

7. The applicant confirmed that her husband had died [in] January 2019. The applicant also explained to the Tribunal that though separated from her husband by distance and personally, there were no divorce proceedings formalising their separation. The applicant also confirmed that she has had no contact with her husband’s family.  

8. The applicant told the Tribunal that she met her husband in 1994 ‘around April’ of that year. The relationship between the two, according to the applicant, was that of an ‘arranged marriage’ which was discussed and formalised between her family and her husband’s family. The applicant told the Tribunal that she had no say in the matter and followed the dictates of her parents.

9. The applicant told the Tribunal that she married her husband [in] December 1994.

   The ‘relationship’ of the Applicant with her husband

10. The Tribunal asked the applicant – how would she describe her relationship with her husband once married? The applicant explained that “…at first…things appeared to be fine…” Then, overtime, the verbal and physical abuse came. It was said by the applicant that anything she tried to do concerning the day to day running of the household came into immediate criticism by her husband’s mother and later by the husband also. The applicant described her situation as ‘hopeless’ and that she was seen by her mother-in-law and later her husband as ‘stupid’ and ‘incapable of doing anything properly…’ These criticisms led on occasion to physical abuse inflicted upon the applicant by her husband without any remorse or second thought.

11. The applicant told the Tribunal that the abusive situation continued throughout her pregnancy. The applicant explained to the Tribunal that she had informed her parents and family about what was happening to her but her parents ‘told her’ that there could be nothing done, and that the situation was one the applicant had to deal with her husband and his family. In particular, the applicant told the Tribunal that while she had found herself in an abusive marriage situation, she was hesitant in leaving that marriage because of her child then being without the support of a father.

12. The Tribunal was told that when the applicant arrived in Australia, as the ‘dependent’ on her husband’s 457 subclass visa in 2007, the abuse from the husband was for a while discontinued and things seemed ‘better’ but it did not take long according to the applicant, for the situation to return. While in Australia, and in particular in the period 2008/9 the ‘abuse both physical and verbal’ continued.

13. Facing the fear of dealing with an abusive husband, a loveless marriage and with child, the applicant’s personal esteem destroyed and her mental and physical standing low, she sought solace with another man. That other man was the applicant’s neighbour at the time when the ‘affair’ commenced (sometime in 2014). The applicant explained to the Tribunal that the affair ‘just happened’. She explained to the Tribunal with emotion resulting in tears, that such a thing would not have happened if her husband and family respected her and appreciated her and did not continuously ‘put her down’ as ‘worthless’ and ‘stupid.’ The affair was triggered by the applicant’s feeling the need to have someone in her life which ‘loved her’ and appreciate her ‘for the person she was.’ At this stage, the applicant broke down in tears and required a little period of time to regain her composure – which she did.

14. Returning to the ‘affair’ with another man, this affair was discovered by her husband and her relationship with him completely collapsed, according to the applicant. However, the physical abuse, the Tribunal was told, continued. These abusive sessions became more dangerous and hurtful from the fact that the applicant’s husband would be assisted in his actions by the consumption of excessive amounts of alcohol. On one occasion in 2014, (in January) the applicant had come home from work, when her husband demanded of her to go and purchase for him cigarettes which she refused. Verbal and physical abuse followed. The applicant left her home and sought refuge with friends and ‘called police.’ The police attended the applicant’s home. The applicant’s husband having faced the police told them according to the applicant, that ‘she (the applicant) was the problem’ and that ‘she (the applicant) was threatening him (the husband) with suicide.’

15. The applicant admitted that on occasions ‘when alone’ she ‘thought of committing suicide’. The applicant would compose ‘letters to her daughter’ explaining to her that ‘she was sorry to be leaving her but that she had enough’ but ‘loved her.’ Nevertheless, suicide was a terrible and serious thought according to the applicant she carried on her mind for a considerable period of time but never had the strength to carry out. The applicant explained to the Tribunal that what caused her not to end her life was the belief that she was not chained to her sad circumstances but could change it all for the better as long as she concentrated on her own attempts to better her life and to do everything she could for her child.

16. The applicant told the Tribunal that her husband left her, in March 2015 returning first to Sydney and then returned to South Africa with her daughter. He also cancelled his employment visa. Before his departure from Australia, the applicant was telephoned by her husband who warned her not to follow him and to leave him alone. The applicant said that her warned her that if he saw her again in his life ‘he would hunt her down, torture her and kill her’ and then dispensing her body ‘in a body bag.’ The husband told the applicant that ‘he would never forgive her for making him look stupid and [for] having an affair with a white man and for bringing disgrace to him and [his] family.’

17. The applicant recalled that before the applicant’s husband departed Australia, she ‘asked him for money to buy food.’ The applicant only received $50.00 from her husband and left her to pay the unpaid rent.

18. The applicant said that she later found accommodation which was rent-free but felt that she could no longer live in Sydney. She then received a transfer from her employer [Employer 1], to [Town]. Also, she arranged with the help of friends accommodation in [Town], until she could find a proper home.

19. The Tribunal referred the applicant to Department’s assessment of her claims[5] and asked specific questions concerning some of the Department’s conclusions on her claims.

    [5] see, Decision record of delegate, at pp. 13 to 14.

20. Specifically, referring to paragraph [36] of the Department’s assessment, it stated:

    The applicant has described living in a mentally, physically, emotionally and spiritually abusive marriage perpetrated by her husband. Her family were not supportive of her situation as their culture did not allow her to disobey her husband’s wishes and her mother told her it was her duty as his wife to be with him [the applicant’s now deceased husband]. She does not believe her family would support her if she returned and that her mother would force her to return to her husband. I note [the delegate] that her husband stated prior to his departure from Australia that he did not want her to contact him and to leave him alone so I find it [the delegate] implausible that her mother would force her to return to her husband when he does not want her to be part of his life.

21. The applicant told the Tribunal that what she had done while in Australia, having an affair with another man was and being found out by her husband was not considered a ‘good thing’ by her family who were very traditional. An element of ‘disgrace’ was seen to have engulfed not only the husband and his family but the applicant’s family also. Therefore, the support that could be expected from her family and her mother, was not considered a given.

22. Referring to paragraph [37] of the Department’s assessment, the delegate stated:

    The applicant did not seek any help or support with any authorities in relation to her abusive relationship while she lived in South Africa as she was not aware any assistance existed plus it would have brought shame upon the family from a cultural perspective. I note that she was able to seek assistance from the police and medical professionals at times of need when she resided in Australia and made contact with the Women’s Refuge in [Town] when she needed somewhere to stay in an emergency.

23. The applicant told the Tribunal that it was very difficult for her to seek help while in South Africa. The difficulty the applicant encountered was that if she had sought ‘assistance’ whatever assistance was available, her family would have considered this a ‘disgrace’ being placed on the family as a whole and she hesitated in doing so. However, in Australia, the situation was different according to the applicant. While in Australia, she had available assistance she could access without consideration of family or cultural perspectives and when the need arose, the applicant did not hesitate to seek that available assistance.

24. At paragraph [44] the delegate stated:

    At the Protection visa (PV) interview the applicant was asked whether she used [Social media], she claimed that she had stopped using it after her husband departed to South Africa as she was concerned, he would stalk her through it. She was repeatedly questioned as to whether she had ceased using it as advised, to which she claimed that she had. Only after the applicant was provided with evidence to support [this conclusion] that she had been using [Social media] did she admit to having continued to use it and the reasons why. In supplying such contradictory information, it places into doubt her credibility.

25. The applicant explained to the Tribunal at the time of her interview with the Department she was extremely ‘depressed’ with her failed marriage and the abuse she had lived through both in South Africa and while she was here in Australia and did ‘not realise’ what was being said to her concerning her [Social media] account.

26. At paragraph [45] the delegate stated:

    The applicant made contradictory claims about her relationship with her family in South Africa. She claimed to have been cut off from them as they believed she was an unfit mother and had abandoned her daughter. She also claimed that she had received a message from her sister after [Mr D] left to South Africa, claiming he was planning something should she return. She further claimed that her mother had recently been diagnosed with Cancer and while she wanted to be with her, she was too afraid to return to South Africa. Her written application declared that she spoke to her mother once a month by phone. The applicant’s contradictory statements in this regard further question her credibility.

27. Again, the applicant explained to the Tribunal that her failures to recollect were not because she wished to mislead but had difficulties because of the circumstances she had lived through over many years – the continuous abuse from her husband in South Africa and in Australia and the abuse by his family – all this made it difficult for to recollect what happened and when. The applicant told the Tribunal that because of her family’s traditional Indian Hindu background, the family tended to place a distance between the applicant and themselves on issues concerning the applicant’s married life. The applicant’s family knew her state-of-affairs – the abuse, she experienced but advised her to solve that issue with her husband and his family.

28. At paragraph [48] and [49] the delegate stated:

    The applicant described an incident whereby [Mr D]’s sister-in-law sent her children to shoot [Mr D] however he was spared when his brother, the children’s father stood in the way and was shot instead. She expressed being scared whenever she and [Mr D] went out after the incident. She also claimed that one of [Mr D]’s brothers took to his wife with a firearm. A police report was taken, and the brother was locked up but then bailed. They are now separated. The applicant has not provided any evidence to support this claim.

    The applicant provided a newspaper article attesting to the death of one of [Mr D]’s nieces, [Ms F]. She had been murdered by her husband, [Mr G] after he found out she was having a relationship with a cousin of his. After he was arrested and appeared in court, he was found hanging by his own scarf in a waiting cell. The applicant believes that [Mr D]’s family had arranged for [Mr G] to be murdered as a sign of revenge for the loss of their niece. There is however no evidence to support this.

29. The applicant told the Tribunal that what she had described to delegate was true and she raised the issue of her husband’s nieces to illustrate that the entire [Mr D] was easily disposed in using violence against others and had done so and would do so even now that her husband had died. The applicant explained to the Tribunal that her husband’s family have not and will not forget what the applicant did in Australia (that is, having an affair with a ‘white man’) which had (in their eyes) a direct affect on her husband’s family’s standing within the community. ‘Revenge’ as retribution was a possibility if the applicant returned to Durban.

30. The applicant told the Tribunal that going back to South Africa was very difficult for her to contemplate. The applicant explained that not a day goes by without her ‘thinking what would happen to her if she returned’. According to the applicant, the ‘fear’ is ‘ongoing’ and ‘never stops.’ Though, she acknowledged, she faced no direct threats from her husband, who was now deceased, the threat continued from his family members – his brothers in particular (who were described as violent) and his family in general.

31. The Tribunal asked the applicant if she was currently undergoing therapy for the abuse she suffered in her marriage? The applicant told the Tribunal that the ‘therapy stopped two months ago’. The applicant said that she had taken several medications in the recent past but in recent times she believed that she was successfully coping with everything that had happed and did not require further medical and psychological assistance but understood the important role such interventions play in the rehabilitation of a person like her. The applicant presented as having a good understanding of the whereabouts of such services and how to avail of their services in a time of need.

32. The applicant provided no further oral evidence to the Tribunal concerning her claims.

    Consideration of the Applicant’s written submissions

33. The applicant’s Counsel submitted the following:[6]

    [6] see AAT File written submission by [Ms H], [Law firm] dated, 9 February 2022

    §The applicant has a well-founded fear of persecution, as defined by s.5J of the Act because the applicant fears being persecuted for the essential and significant reasons of inter alia her gender, her member of a particular social group comprised of widows, her membership of a particular social group comprises of victims of domestic violence and sexual assault, and her membership of a particular social group comprised of single women.

    §The applicant fears that if forced to return to South Africa, she will be persecuted, and the applicant could not modify her behaviour to remove that real chance of persecution.

    §This persecution amounts to serious harm.

    §There are no effective protection measures available to the applicant, and

    §The real chance of serious harm faced by applicant applies to all of South Africa.

    §Whilst the husband passed away in 2019, the applicant still fears harm at the hands of his immediate and extended family. The husband’s family contributed to the domestic abuse that the applicant suffered whilst she was in South Africa. The applicant is afraid that if she returns to South Africa, her husband’s family would target her for the perceived shame that she brought on their family by separating her husband and having an affair with a ‘white man’ and neglecting to be present at his funeral.

    §The applicant also faces a real chance of harm and mistreatment from the broader South African population and authorities for reason of her membership of a particular social group including women, single women, widows, survivors of domestic violence and survivors of sexual abuse.

    §The applicant’s personal vulnerabilities are significant, the fact that the applicant has experienced prolonged domestic violence, in addition to sexual assault at a young age, continues to impact and inform the applicant.

    §The isolation and stigmatisation of people like the applicant’s identified particular social groups, should be found to constitute serious harm considering the applicant’s vulnerable mental health state. 

    §The applicant’s gender is a fundamental part of her identity and one which she cannot conceal.[7]

    Are effective measures available to the Applicant in South Africa so as to avoid a real chance of persecution?

    §Police protection in South Africa is inadequate.

    §The ‘policing’ and ‘prosecution’ of domestic violence is less rigorous than one would expect with major deficiencies prevailing.[8]

    The applicant also made submissions regarding complementary protection considerations[9] as provided for by s.36(2)(aa) of the Act.

    [7] Ibid, applicant’s written submission at pp.20-21.

    [8] Ibid, at pp.22-23 in particular, paragraphs [134] to [142].

    [9] Ibid, see written submission, at pp. 24-30 and paragraphs [143] to [169].

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreter, nervousness and anxiety in a Tribunal setting, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this considered and taken into account in the Tribunal’s findings that follow.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[11]

   [10] see, s.5AAA of the Migration Act 1958 (as amended).

   [11] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[12] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

   [12] Minister for Immigration and Ethnic Affairs and McIIhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p. 482.

4. If the applicant’s appears credible, he or she should unless there are good reasons to the contrary, be given the benefit of the doubt.[13] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   Accepted Facts

   [13] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, (1992) at paragraph [196].

5. Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:

   a.the applicant was born on [Date] in South Africa[14]

   [14] see Applicant’s South Africa Passport [Number] and see, also the Applicant’s application for Protection visa for personal details in Department’s File [Number].

   b.the applicant is of an ethnic Indian background.

   c.the applicant was originally of the Hindu religion but converted to Christianity to marry.

   d.The applicant has two sisters and a brother, who all reside in South Africa

   e.the applicant’s mother and father are deceased.

   f.the applicant received her primary school education in Durban, South Africa.

   g.the applicant was married in [Year]. This marriage was an arranged marriage and remained married to her husband though separated from him since 2015 the husband living in South Africa and the applicant in West Australia.

   h.the applicant’s husband died in November 2019.

   i.the applicant has one daughter from the marriage, (aged [Age]) living in South Africa with her partner and two young children.

   j.the applicant is currently working as [an Occupation 2] with [Employer 1] at [Town], WA.

   The Applicant’s Refugee Claim

6. The applicant claims to have a well-founded fear of persecution within the scope of Article 1A (2) of the Convention as a member of a ‘particular’ social group (PSG) as a result of her gender, her status as a single woman, a widow and importantly, a survivor of domestic and sexual assault.

7. It has been held that the phrase ‘particular social group’ should be given a broad interpretation. Nevertheless, the category was not intended to provide a general safety net or ‘catch all’ to cover any form of persecution.[15] In Morato v MILGEA Lockhart J said:

   The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons…

   [15] (1997)190 CLR 225 at 241, 260.

8. The meaning of the expression ‘for reasons of…membership of a particular social group’ was considered by the High Court in Applicant S. In Applicant S[16] Gleeson CJ, Gummow and Kirby JJ stated:

   First, the group must be identifiable by a characteristic or attitude 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 in Applicant A, a group that fulfills the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.

   [16] Applicant S v MIMA (2004) 217 CLR 387 at [36].

9. Justice McHugh in Applicant S offered the following summary in broadly similar terms:

   To qualify as a particular social group, it is not enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.[17]

   [17] Applicant S v MIMA (2004) 217 CLR 387 at [69].

10. A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.[18]

    [18] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264-266, 285.

11. Therefore, whether a supposed group is a ‘particular social group’ will depend upon all 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 a particular social group.

12. In this case, the applicant claims that she is a single woman, a widow and survivor of domestic and sexual assault. The Tribunal accepts that her gender and the domestic and sexual assault she has sustained for a long period of time in her marriage is a characteristic shared by all members of the group and that it distinguishes the group from society at large. As such the Tribunal accepts that as a woman who has suffered domestic and sexual assault the applicant is a member of a particular social group (PSG).

    The Applicant’s ‘well-founded fear’

13. In Chan v MIEA the Court held[19] that a ‘well-founded fear’ involves both a substantive and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[20]

    [19] (1989) 169 CLR 379 at 396.

    [20] (1989) CLR 379 at 396; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

14. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether the applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal does accept that the applicant has a subjective fear of being persecuted if she is returned to South Africa.

15. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA Dawson J stated:[21]

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

    [21] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p. 397.

16. In MIEA v Guo, the High Court stated that:[22]

    Conjecture or surmise has no part in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

    [22] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

17. The applicant claims that, in the event she is returned to South Africa, there is a real chance she will suffer serious harm because of her membership of as PSG. For the reasons outlined below, the Tribunal accepts that the applicant displays a subjective and objective fear of being seriously harmed by reason of her gender, being a woman who has suffered domestic violence and sexual abuse.

    The applicant’s claim as a ‘refugee’

18. The applicant claims that she will be serious harmed if she returns to South Africa by reason of her gender, being a woman but one that had endured domestic violence and sexual abuse inflicted upon her by her late husband and members of his family. Even though, the applicant’s husband [Mr D] passed away in 2019, the applicant still fears harm at the hands of her late husband’s family – immediate and extended. As the Tribunal noted in the applicant’s statutory declaration, her husband’s family contributed to the domestic abuse that the applicant suffered whilst she was in South Africa.

19. The applicant in her evidence to the Tribunal told of her husband’s family being dismissive of any initiative she may have taken for her family and were ‘controlling’ in that they monitored her movements and her ability to see her own family (her parents and siblings). The husband’s family also encouraged the deceased husband to be ‘abusive’ towards her. The applicant recalled that even while she and her late husband were in Australia, the abusive from the husband’s family continued via the telephone. Following her husband’s death, in 2019, the applicant telephoned the husband’s brother’s to express her respects and was confronted with ‘verbal abuse’ describing her as a ‘bitch’ and ‘slut’ and a ‘disgrace to [their] family. The applicant was also warned by one of the brothers (‘[Mr I]’), that, if she ‘ever came back to South Africa’ she ‘would [have to] deal with the consequences.’[23]

    [23] see, Applicant’s bundle of documents [BD 1569].

20. The applicant also referred the Tribunal to her statement, where she described the [D] family as prone to violent behaviour and a history of violence. The applicant stated that in 1999, following a family dispute between her late husband, his mother and sister, the husband’s sister ‘sent her sons to shoot [Mr D]’. As a result of that confrontation, the applicant’s husband’s brother was shot. Indeed, such incidents of violence, when considered with the [D]’s family’s abusive and controlling behaviour, suggest that the if the applicant was to return to South Africa, she would face a real chance of harm from members of her late husband’s family.

21. The applicant told the Tribunal that if she was to return to South Africa, the [D] family would target her for the ‘shame’ they believed she had placed on their family name because she separated from her late husband and had an extra-marital affair with another man – he is a ‘white man.’ The Tribunal also noted what was said in the evidence of the applicant at the hearing, that the increased risk of harm at the hands of her husband’s family (if she returned to South Africa) is made all the more real and possible, when one considers the applicant’s actions – leaving her husband and having an affair while married, would be considered by persons of her ethnicity as major transgressions of social, cultural and religious norms. The applicant also told the Tribunal that the [D] family was wealthy and influential in the local Durban Indian community and would utilise every means available to them to locate and deal with her as they choose. The applicant fears that returning to South Africa and to her community in particular, it would be a matter of time before her whereabouts would be found. The Tribunal accepts these concerns. The applicant is not made of money and would be very limited in what she would be able to do in order to place some distance between herself and her husband’s family in a community that was distinct and small as is the South African Indian community.

22. The Tribunal also noted that the Applicant’s personal vulnerabilities are significant. In particular, the fact that the Applicant has experience prolonged domestic violence, in addition to a sexual assault at a young age, this continues to impact the applicant. Indeed, the applicant, the Tribunal noted, has had a number of mental health issues for which she was receiving treatment for. [Dr J] assessed that the applicant has a reactive depression (adjustment disorder), complicated by a ‘a post-traumatic stress disorder consequent on longstanding domestic violence and emotional abuse at the hands of her husband and also adolescent sexual abuse.’ The Tribunal was told that up and until recently, the applicant had been attending the [Town] Medical Centre for mental health treatment since July 2015. Also, [Dr K] of the same medical centre notes in his report that the applicant has been diagnosed with ‘PTSD, history of childhood sexual abuse, domestic violence, isolation, lack of family support, insomnia, restless if someone triggers the symptoms.’ The applicant has also struggled with ‘suicide ideation.’ These mental health issues have been linked (and the Tribunal accepts the evidence as submitted) with the applicant’s history of physical and sexual trauma and make the applicant vulnerable to harm, which includes those of a sexual kind, as well as mental harm.

23. The applicant, in the Tribunal’s opinion based on the submitted written and oral evidence, faces a real chance of harm and mistreatment from the broader South African community and the authorities for reason of her PSG. The prevalence of gender-based violence in South Africa, in addition to permissive attitudes towards gender-based violence, and the lack of resources and support for victims of such violence steers the conclusions of the Tribunal that if the applicant was to return to South Africa, there was a real chance that she will face such violence if she were force to return. Numerous sources were provided to the Tribunal by the applicant’s legal counsel which documented South Africa in a ‘crisis of gender-based violence.’[24] For example, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) ‘Inquiry concerning South Africa’, found that there were ‘extremely high levels of gender-based violence in South Africa.[25] The United States Department of State (‘USDS’) notes that ‘discrimination against women remained a serious problem.’[26] Amnesty International highlighted the extent to which gender-based violence continued to be a significant problem in South Africa, noting that the rate of gender-based violence in South Africa was nearly five times higher than the global average.[27] Similarly, the UK Home Office, referring to the NGO Africa Check, noted that ‘high rates of gender-based violence are a huge concern for South Africa.’[28] The UK Home Office reported that in the year 2018/19, the police recorded 179, 683 contact crimes against women.[29] Furthermore, in 2019/20, the number of reported rapes totalled 42,289 – representing an increase from the previous year.[30]

    [24] Applicant’s written submission see bundle of documents [BD800].

    [25] Ibid [BD667]

    [26] Ibid [BD1360]

    [27] Ibid [BD204]

    [28] Ibid [BD697]

    [29] Ibid [BD1294]

    [30] Ibid [BD1360]

24. Amnesty International recorded that almost 144 sexual offences are committed every day.[31] ‘In South Africa: the economic cost of sexual harassment’, Botes notes that ‘conservatively estimated, one in four women will experience sexual harassment.’[32] Human Rights Watch noted that between 2019 and 2020, ‘the rate of reported sexual offences in South Africa increased by an average of 146 incidences a day, 116 of which were cases of rape.’[33] It is important to note, that while reported numbers of gender-based violence are extremely high, the Medical Health Council estimated that only 1 in 9 incidents of sexual violence were actually reported,[34] suggesting that the actual incidences of gender-based violence are likely to be significantly higher. Human Rights Watch noted that ‘immediate, medium and long-term impacts from South Africa’s Covid-19 lockdowns have increased the risk for women and girls of domestic violence and other forms of gender-based violence’.[35] As recorded by Human Rights Watch, between 27 March and 31 March 2020, there were over 2,300 complaints of gender-based violence.[36]

    [31] Ibid [BD1294]

    [32] Ibid [BD1040]

    [33] Ibid [BD 790]

    [34] Ibid [BD 712]

    [35] Ibid [BD 1026]

    [36] Ibid [BD 790]

25. As a female and a ‘widow’ the applicant submitted, she faced a real chance of harm and mistreatment. The Tribunal, in considering the available country information finds sympathy with this fear having in mind the applicant’s relationship with her deceased husband and his entire immediate and extended family. The Tribunal noted the information provided by the Department of Statistics South Africa which recorded that women who are divorced or separated are more likely to have experienced physical or sexual violence and further noted that 40% of divorced/separated women had ever experienced physical violence.[37] Also, Dube in ‘Widowhood and associated risks in under-resourced communities: A Social Work Perspective’ noted that:[38]

    Literature has shown that there are various risks associated with widowhood in African contexts without formidable and sustainable recourse to the widows’ plight. In the instance of widowhood, there is a great deal of qualitative and anecdotal evidence of social stigma, property grabbing, forced displacement, denial of child custody, degrading widowhood rites, and allegations of having caused the death.

    [37] Ibid [BD 712]

    [38] Ibid [BD 1443]

26. This research indicates that widows in South Africa face numerous risks and a degree of social stigmatisation and possibly degradation that would be more than likely to increase the risk of suffering harm in the context of already high levels of gender-based violence in South Africa. The applicant, as a survivor of domestic abuse and sexual assault, is made further vulnerable to harm if she returns to South Africa when one considers the reality of the situation in that country from the information considered by the Tribunal. She has experienced a sustained and long period of domestic violence from her late husband. The Tribunal noted that the delegate also in his decision, accepted this as fact. This abuse had taken the form of physical restraint and verbal insult, restrictions placed on the applicant’s ability to see her family and friends and her submission to all of these demeaning and degrading circumstances was made certain by threats of unrestrained violence, forceful removal (re-location) and threats to her life. The applicant had also experienced sexual abuse, which occurred at the hands of her brother-in-law when at a young age. Therefore, as a victim of this violence – having a history of experiencing violence, the country information referred to seems to suggest in the opinion of the Tribunal that if the applicant returned to South Africa, she would be vulnerable to gender-based violence. Indeed, the information submitted by the applicant’s counsel, is reveals some very disturbing conclusions concerning the ‘stigmatisation’ of rape victims in South Africa. In the research submitted, ‘Pathways to and factors associated with rape sigma experienced by rape survivors in South Africa’, the conclusions are as follows:

    Analysis of baseline data from a rape cohort, Jewkes et.al considered the stigmatisation of rape survivors in South Africa. They found that: in respect of external stigma, about half of the women had been blamed for the incident, to the extent that they were expected to have done more to prevent it (50.1%). More than 40% had experienced rude or insensitive remarks, and nearly a third said that they had experienced people avoiding talking to them because of the rape.[39]

    [39] Ibid [BD899].

1. Given that the applicant has suffered prolonged trauma in the form of domestic violence and sexual assault when young, the Tribunal concedes the point made by the applicant’s legal counsel, and agrees, that it is likely that she would experience stigmatisation and discrimination because of her experiences within her community if she was to return to South Africa.

   Do the applicant’s experiences amount to persecution?

2. In her submission to the Tribunal, the applicant’s legal counsel argued that considering the plethora of country information concerning women, the status of women and their treatment in South Africa, the applicant fears of experiencing significant gender-based violence, discrimination because of her immediate past experiences was real and significant.[40]

   [40] see, written submission of applicant’s counsel in AAT File, at pp. 19-20.

3. The applicant’s personal vulnerabilities are many in the Tribunal’s opinion. In particular, the fact that the applicant experienced many years of domestic violence, in addition to sexual assault at a young age, has impacted greatly on her mental state and character. The Tribunal witnessed this at the hearing when the applicant recalled the very low points of her life. Indeed, the medical assessments of [Dr J] and [Dr K] are accepted by the Tribunal as describing clearly the mental and physical state of the applicant. What one takes from these reports is the reality that the applicant is significantly improved in her mental state but because of her hurtful past remains vulnerable – very vulnerable. A return to the South Africa may accentuate her vulnerabilities to point of no return – injuring for good her mental state. The Tribunal accepts this evidence (expert) on the applicant. The applicant has experienced years of domestic violence – persisting approximately two decades and subjected to a sustained environment of uncertainty coupled with forced movements as demanded by an abusive husband. As someone who has endured many traumatic events, the experience of further gender-based harm is likely to ignite the applicant’s previous trauma, as well as forcing her to confront new ones which might engulf upon her return to an uncertain future in South Africa. The Tribunal agrees with the information referenced and submitted which stated that individuals with PTSD are vulnerable to experiencing increasing PTSD symptoms following a subsequent traumatic event.[41] This ‘harm’ resulting from the stigmatisation, isolation and mistreatment of victims of domestic violence and sexual assault and the stigmatisation of mental health issues in the South Africa as described by the country information submitted, factors which  are associated with the applicant’s persona would, if triggered by some unfortunate event, amount to her suffering serious harm.

   [41] Ibid [BD 808].

4. In Australia, the Applicant has been able to access psychological and medical support and has been able regularly to consult professionals about the domestic violence she has endured. The Tribunal noted, that in her statutory declaration, the applicant stated that she was only able to understand what she had experienced at the hands of her husband (which was abuse) after seeking help in Australia. It was submitted to the Tribunal that if the applicant was ‘forced to return to South Africa, the applicant would be forced to conceal’ her experiences in a moment of personal recollection resulting in a mental and physical crisis without any real and effective support and this would be extremely harmful on the applicant and would render her incapable of avoiding serious harm. The Tribunal accepts this. In Australia, the applicant has all the necessary support she needs and has successfully engaged with this support and has been helped to help herself something that would not be possible to this extent, in South Africa.

   Are effective protection measures available to the Applicant in South Africa as to avoid a real chance of persecution?

5. Finally, the Tribunal’s consideration was drawn to the question of whether the applicant if returned to South Africa would if she needed it be provided with effective protection measures.

6. Section 5LA(2) of the Act prescribes that the relevant State, party (in this case, South Africa) is taken to be able to offer protection against persecution if the applicant can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

7. Numerous sources describe the South African government and authorities as unable to offer protection to women from gender-based violence. Indeed, CEDAW goes far as to note that ‘NGOs observed that the political system condones gender-based violence’ and that ‘there was a lack of political leadership and oversight needed to hold the government accountable for eliminating gender-based violence.’[42]

   [42] Ibid [BD667]

8. Police protection is particularly noted as inadequate. CEDAW notes that police officers often lack the training necessary to combat gender-based violence. They further highlight that ‘officers are frequently influenced by stereotypes, consider domestic violence a private matter and return victims to the perpetrator or mock them.’[43] OHCHR notes that ‘South Africa’s low levels of prosecution and conviction in domestic violence cases and the frequent failures by the police to serve and enforce protection orders, exposed survivors to repeated abuses and resulted in the violation of women’s fundamental rights’.[44] Human Rights Watch raised further fears with the South African Police, noting that ‘serious concerns remain about the conduct and capacity of the South African Police Services (SAPS), particularly its compliance with lawful use of force’. They continued that ‘authorities have yet to end the rampant impunity that encourages abusive behaviour by the police.’[45]

   [43] [BD 667]

   [44] [BD 896]

   [45] [BD 800]

9. Foreign Policy noted that the South African Police are ‘one of the most brutal policing systems in the democratic world.’[46] It was noted that according to the Independent Police Investigation Directorate, there were more than 42,000 criminal complaints made against the police between 2012 and 2019, including of rape, killings, and torture. This equates to approximately 14 criminal complaints a day for the past eight years. Amnesty International similarly recorded that ‘the use by security forces of excessive and lethal force increased during the COVID-19 lockdown’ and that ‘incidents of gender-based violence soared’.[47]

   [46] [BD 1068]

   [47] [BD 1068]

10. The UK Home Office Report provided the following in relation to alleged human rights violations by the police:

    The Freedom House Freedom in the World 2020 report, published in 2020, commenting on events in 2019, stated:

    ‘Despite constitutional prohibitions, police torture and excessive force during arrest, interrogation, and detention are commonly reported. The Independent Police Investigative Directorate (IPID) legally required to investigate allegations of police offenses or misconduct. In its annual report for the 2018–19 fiscal year, the IPID reported 607 deaths either in police custody or as a result of police action, 124 rapes by police officers, 270 incidents of torture, and 3,835 assaults. Overall, there was a 3 percent increase in total reported incidents over the previous fiscal year.’

    The USSD 2018 Human Rights Report stated:

    ‘Although the constitution and law prohibit such practices, there were reports police torture and physical abuse occurred during house searches, arrests, interrogations, and detentions and sometimes resulted in death. The NGO Sonke Gender Justice reported that almost one-third of sex workers interviewed responded they had been raped or sexually assaulted by police.’

11. The Committee against Torture (CAT)’s ‘Concluding observations on the second periodic report of South Africa’, expressed concern at the ‘numerous reports of acts of torture committed by police officials, including […] 217 cases of torture and 3,661 cases of assault recorded during the period 2017/18, as well as reports of 112 rapes committed by police officers.’[48]The CAT was further concerned by the lack of prosecution of these offences. The CAT was also concerned about:[49]

    the continuing prevalence of all forms of violence, including gender-based and domestic violence, primarily against women and girls, which encompasses murder, attempted murder and sexual offences that may be committed at the instigation, or with the support, of State actors. It is also concerned that a large number of cases continue to be unreported, with few cases opened by the police and a failure to investigate the crimes and gather forensic evidence, which has resulted in less than 20 per cent of cases going to trial and only 8.6 per cent of cases resulting in a guilty verdict. The Committee is concerned that victims of violence, in particular in rural areas, may not have access to White Door Safe Space facilities, Khuseleka One-Stop Centres, Thuthuzela Care Centres and shelters. It is also concerned at reports that the manner in which victims of violence are questioned by the police leads to their traumatization.

    [48] [BD 528]

    [49] [BD 655]

12. Furthermore, the impact of ‘stigma, unfair treatment, fear, intimidation, and lack of trust in the criminal justice system’ suggests that the Applicant would not be able to access meaningful protection in South Africa.[50]

    [50] [BD 655]

13. Having considered this information it seems to the Tribunal that despite the existence of legislative provisions and some attempts at providing specific law and order protections actual protection and the prosecution of gender-based violence is not sufficient to offer the applicant (if she required it) durable protection. The Tribunal therefore accepts the applicant’s counsel’s submissions and information on this aspect of the applicant’s protection claim and finds and concludes that the South African authorities are unable to offer durable protection or protection to the extent required by s. 5LA(2).  

    CONCLUSIONS

14. As a result and having considered all the evidence – written and oral, the Tribunal finds that because of being removed to South Africa, there is a real chance that the applicant will suffer serious harm by reason of her being a woman having experienced domestic violence and sexual assault and vulnerable and exposed to further violence and assaults. The Tribunal therefore is satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and as the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Peter Vlahos
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

    (2A)A non‑citizen will suffer significant harm if:

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

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

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

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

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

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

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

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

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

    …