1713519 (Refugee)

1713519 (Refugee) [2021] AATA 779 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713519
COUNTRY OF REFERENCE:                   South Africa
MEMBER:David McCulloch
DATE:8 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2021 at 10:39am

CATCHWORDS
REFUGEE – Protection visa – South Africa – religion – convert from Islam to Christianity – fear of being harmed by Al-Qaeda – inconsistent evidence – applicant was not a credible witness – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of South Africa, applied for the visa on 7 April 2016. The delegate refused to grant the visa.
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams computer application. The hearing was held on 1 February 2021 at 10am. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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) of the Act. 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).
Under s.5J(1) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
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
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes that there is no DFAT Country Information Report for South Africa.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant first arrived in Australia [in] August 2012, and departed [in] September 2012. The applicant again came to Australia [in] February 2013 and departed Australia [in] March 2013. The applicant last came to Australia [in] February 2016, and applied for the protection visa on 7 April 2016.
Prior to coming to Australia, the applicant went to [Country 1] in June 2006 to visit his sister. The applicant visited [Country 2] [in] January 2013, [in]April 2013, [in] March 2014, and on an unclear date in November 2014. The applicant states that he was refused a visa for [Country 2] on 18 June 2015. The applicant states that he was excluded, deported, or removed from [Country 2] [in] November 2014 after his visitor visa expired.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Port Elizabeth, Eastern Cape, South Africa. The applicant is a convert from Islam to Christianity of coloured ethnicity, who speaks, reads, and writes English, Afrikaans, and Dutch. The applicant married [in] December 1994 and divorced [in] October 2014 in Port Elizabeth. The applicant’s former wife and three children reside in South Africa, and the applicant is in contact with them by public phone, email, and text messages. The applicant lived in [Port] Elizabeth from November 1990 until October 2002. The applicant then lived at [another suburb], Port Elizabeth from October 2002 until February 2016. The applicant states that he has received parking tickets and speeding fines in South Africa.
The applicant studied [a course], Port Elizabeth from March 1992 until December 1994. The applicant then studied [another course] from February 1995 until June 1995. The applicant studied [a higher level course], Port Elizabeth from March 1996 until September 1997. The applicant studied [another higher level course] at [University 1] from January 1998 until February 2003. The applicant studied [a course] at the [University 1] from April 2015 until June 2015. The applicant studied [a higher level course] at the [University 1] from June 2015 and withdrew in December 2015.
The applicant worked as a [Occupation 1] for [a company], South Africa from January 1996 until June 1998. The applicant then worked as a [Occupation 2] for [another company] from August 1998 until February 2016.
In the application forms, the applicant claims that he left South Africa because his life was in danger, as the applicant had become a Christian and left Islam. The applicant claims that ‘they’ tried to kill him, shot at him, and the applicant feared for his life. The applicant states he lost everything, including his job and family.
The applicant claims that a price was put on his head by gangsters, and that hitmen tried to kill him. The applicant claims that he developed nerves, was unstable, and could not sleep for a week. The applicant claims that he could not seek help in South Africa as the government is corrupt, and you can buy police officers, and that the police will only help you if you are black, and that it otherwise costs money to be protected.
The applicant claims that his family are all over South Africa, and that he moved to a farm in a small town to get away, but gangsters checked his number plate, and there is a ZAR100,000 price on his head.
The applicant claims that he fears being killed because he has converted to Christianity. The applicant states that Islam does not accept apostasy. The applicant claims that becoming a Christian is the worst crime in Islam, and that he cannot return or he will be harmed. The applicant claims that he was warned not to return or his family will get it, and that the police are on ‘their’ side due to political support.
The applicant provided a range of documents to the Department in the course of his application. These documents are, broadly:
·Certificates, transcripts, and testamurs regarding the applicant’s education and subsequent training as a [Occupation 2];
·personal character references and work references;
·South African police clearance certificates;
·Various identity documents for the applicant from workplaces, regulators, and government departments, including licences, passport, birth marriage certificates; and
·medical documents regarding the applicant’s health.
Most relevantly, the applicant provided an undated letter from Priest [A] of [a] Church, South Africa stating that the applicant is a good man who has been actively involved in the community. There is also a letter from [a religious] Centre dated 13 May 2015 stating that the applicant and his wife have been much involved in the church community, and that he is always ready to help other members. The applicant also submitted an undated letter from Mrs [B] stating that the applicant has been involved with donations for various churches and mosques, that the community can always depend on him, and that he is a strong leader for his family and community. There is a letter from Executive Pastor [C] of [a] Church dated 7 March 2016, stating that they have assisted the applicant since his arrival in Australia, that the applicant is very involved in the church community and has attended weekly. The applicant also provided a letter from [a named reverend] dated 8 March 2016, stating that the applicant is a delightful man who maintains his dignity.
The Tribunal notes the following evidence given by the applicant in the interview with the delegate of the Minister which took place on 19 May 2017. The relevant information is provided in the sequential order that was given by the applicant in the interview.
The applicant indicated that he converted to Christianity on his birthday, [in] 2013. He had a lot of drinks the previous night and the day of his birthday he just quit and has never had a drop since.
The applicant indicates that he only gradually became aware that his wife was no longer a Muslim and had converted to Christianity.
The applicant initially says that his first instance of harm as a result of his conversion occurred in 2015. Individuals wanted to kill the applicant, and drove him off the road and shot him. This is because a price had been put on the applicant’s head by his family. The applicant indicated that he was told he was not allowed to return to his Muslim worship and that he was in disgrace.
The applicant indicates that his wife and he have been Christians close to five years.
The delegate notes that the applicant has been to [Country 2] three times since he became a Christian and asks whether he attempted to apply for asylum in [Country 2]. He indicates that he did not. The applicant indicates that his trips to [Country 2] involved transits in Australia.
The applicant then indicates the he first became fearful for his safety in South Africa when the family had to leave their home because there was a threat that they were going to burn the house down. This was conveyed by a phone call in, he thinks, June 2014. They said they will burn the house down and kill the applicant’s wife and children. They went to [Town 1] for two weeks and there were told by gangsters that there was a problem, that they heard the applicant’s story and that they do not want him here and he had to leave. The applicant indicates he has had many threats.
The applicant indicates that they attempted to kill him twice. He refers being attacked on the freeway causing him to stop the car and run in and out of a shopping centre. The applicant indicates that he had to go back at night to get his car. The applicant refers to walking and going to the [building] and that two coloured guys were chasing him.
The applicant refers to having the fear of harm for two years.
The applicant indicates that ‘we’ went to Cape Town to escape harm but was immediately told not to show his face. He indicated that his disgrace is like a wildfire. The applicant also indicates going to Pretoria and Johannesburg to escape harm but was warned that they would stab him there. Indicates that he was warned by his brothers and sisters, that they sent messages on his phone that he mustn’t attempt to come to them, to communicate with anybody.
The applicant refers to having to send his daughters to psychiatric help because of issues relating to the conversions.
The delegate asked that given that his wife has also converted from Islam to Christianity why she hasn’t been stabbed or killed. The applicant refers to his wife looking like a European. He indicates that she stays away from the applicant’s family out of town. The applicant is asked then why he could not stay out of town to be safe. He indicates that this is not possible because he is known all over South Africa.
The applicant refers to reporting an incident to the police but the police didn’t even bother to come to the house when they phoned. The applicant then indicates that they reported ‘so many’ times to the police in South Africa but they are corrupt.
The applicant refers to his wife living in fear and having to watch herself wherever she goes.
The applicant says that gangsters told him that there was ZAR100,000 bounty on his head. This was told to him by a guy who used to be a bikie but left them. This was on a beach in [Suburb 1].
The applicant indicates that he first became fearful in South Africa when a brick was thrown in his car when the applicant was with his daughter. This was early in 2014.
The delegate notes to the applicant that he subsequently went to [Country 2] in March 2014 and November 2014, and notes that he did not apply for asylum there. The applicant refers to going to [Country 2] for work and that his wife said it’s too cold to go there, so he just left it. The applicant then indicates his wife would not go there because of the earthquakes. The applicant then indicates that he does not know anyone in [Country 2].
The applicant refers to fearing for his children’s lives.
The applicant indicates that he can show an injury on his [body part] that occurred when he was being chased and they threw a knife at the applicant, and that he hurt himself by falling. The applicant got up with fear and pain and just carried on.
The applicant provided a further statement of claims in a submission to the Tribunal dated 19 November 2020 which included claims as follows:
1) The applicant is [name deleted], a [Occupation 1], residing at [address deleted].
2) The applicant is a citizen of the Republic of South Africa. He does not have a right to citizenship or a right to reside permanently in any other country.
3) The applicant was born on [date of birth], in South Africa.
4) The applicant was born in a Muslim family. In December 2015, the applicant converted from Islam to Christianity.
5) The applicant converted to Christianity during a period when he was abusing drugs and alcohol. One night when he was drunk after drinks at the bar, he left his car at the bar and walked home. When he arrived home his wife prayed for him. Since that day he has not used drugs or alcohol. He felt the power of Jesus come over him and has felt this power ever since.
6) The applicant has [a number of siblings]. The elder brother lives in South Africa. [A number live overseas]. [A number] live in South Africa and one lives in [Country 1]
7) The applicant was married to [Ms D]. His wife's mother was from [Europe] and has Christian and Muslim heritage. [attached final decree of divorce].
8) The applicant has 3 children. His eldest daughter [is] [a] student, the youngest daughter [is] a [student], and his son [is] in [school].
9) In South Africa the applicant attended [a] Church in Port Elizabeth.
10) In Sydney the applicant attended [Church 1].
11)The applicant qualified as a [Occupation 2] from the [University 1], South Africa.
12) He previously worked as a [Occupation 2] with the [workplace], in South Africa
The country to which he fears returning:
13) The applicant fears returning to South Africa.
Why the applicant left South Africa:
14) He fled South Africa because he feared for his life.
15) The applicant claims that he fears harm in South Africa because he had converted from Islam to Christianity.
16) In December 2015, the applicant converted from Islam to Christianity. Prior to this date he was a Muslim, and he claims that his family is a descendant of The Prophet Mohammad. The applicant also read the Al-Quran (Tahfiz) and had travelled throughout South Africa in a religious capacity.
17) The applicant attended [mosques] in Port Elizabeth and had some duties such as reading prayers during Fridays and Ramadaan periods.
18) After becoming a Christian, he never attended Friday prayers at the local mosque with other members of his family, Initially, the applicant kept his conversion to Christianity as a secret.
19) The applicant started to receive calls from Sheik/Imam from the mosque requesting him to see me him. He lied to the Sheikh that he was busy with work and personal matters at home.
20) One day when he attended the church In Port Elizabeth, he parked his car outside in the main road close to the church. However, someone spotted his car and informed his elder brother. The applicant was questioned by his elder [brother], but he denied very strongly that he had attended the said church.
21) Thereafter, when he attended the church, he parked his car in a different street away from the Church.
22) The applicant's younger brother [came] to his house and started to ask the applicant whether he has started to attend services at the Church. The applicant denied that he went to church and said maybe someone has a got the same car as him.
23) When my younger brother left, my wife approached me and said, ‘I must stop denying Jesus.’ Then the applicant promised to his wife that he would tell the truth next time.
24) A week later when the applicant's younger brother visited him, he told him that he is no longer a Muslim and he has converted to Christianity.
25) The applicant's brother was very angry and said that he is going to tell his whole family. He further said that the applicant has betrayed Islam and their family. His brother also said that ‘from now onwards I disown you as my brother.’
26) The same afternoon the applicant received several calls from his family members, and he decided to take the phone off the hook and switched off his mobile phone.
27) The applicant panicked and asked his wife for advice. The wife said as a family they could move to overseas or relocate to a different town.
28) One day later the applicant's elder brother ordered the applicant and his family to move out from the family home because he considered the applicant as a ‘traitor and disbeliever’
29) On a Saturday night around two in the morning someone threw a brick at the applicant's front window of the house with a note stating that ‘You are infidels, and you will pay for your actions.’ The applicant claims that he made two police reports of this incident.
30) The following week while the applicant was driving to work, he was shot at about 4 times. The applicant managed to drive fast and escaped from being killed.
31) Then on Thursday afternoon three unknown individuals tried to stab the applicant. The applicant believes that the Imam of the mosque had hired some gangsters to attack him. However, the applicant managed to give a fight and escaped to a nearby post office.
32) Thereafter the applicant became frightened and moved from Port Elizabeth to [Town 1]. The applicant left his children with his mother-in-law.
33) In [Town 1] the applicant met an old [schoolmate]. [He] warned the applicant that it was dangerous for him to stay in [Town 1] and he should move out immediately. [He] said in [Town 1], news was spreading that the applicant had a bounty of ZAR 100,000, payable for his death.
34) The applicant's wife wanted to return to Port Elizabeth. The applicant went to stay with his mother -in-law, and he did not return to his home. Then the applicant's wife strongly advised the applicant to leave the country to save his life.
35) The applicant sold his car and some valuables and purchased a flight ticket to Australia.
36) In Sydney the applicant lived with [a Reverend] who was part of a church in [a suburb] that the applicant attended in Sydney.
37) When the applicant was in Sydney his family members approached his wife and said that 'they would get back everything if the applicant was prepared to return to mosques and seek forgiveness and state that it was all a mistake and deny Jesus.' The applicant's family stated that the applicant had committed the worst kind of crime and it is more serious than murder.
38) The applicant and his family were further warned by some members of the mosques that if the applicant refused to return to Islam he will be punished by Al-Qaeda. Some members of the Al-Qaeda also treated the applicant's family badly. They were told that the applicant has committed a crime by leaving the Islamic faith and they will be made to pay by their blood.
39) The applicant received bad news from his wife that his daughter [was] molested by an Al-Qaeda member. The Al -Qaeda member warned the family that next time ‘she will end up in a body bag.’ if she does not renounce Jesus.
40) The applicant states that he and his family are not safe to continue to live in South Africa.
What the applicant fears may happen to him, if he returns to South Africa.
41) The applicant fears being physically harmed or killed in South Africa because he converted from Islam to Christianity.
42) The applicant fears being targeted specially for converting from Islam to Christianity and claims that some private individuals and members associated to certain groups will try to kill him. He was previously shot when he was staying in Port Elizabeth.
43) The applicant fears that previously there was an attempt to stab the applicant and he believes that these people could do it again.
44) The applicant fears that he has a price on his head (ZAR 100,000) ransom payable for his death.
45) The applicant fears that he would be attacked by his family members and local Islamic Community in South Africa.
46) The applicant fears that he will be harmed by the Al-Qaeda members.
47) The applicant fears that his name will easily be identifiable as a Muslim. He further fears that he will be spotted easily because he comes from a well known Muslim family in South Africa.
48) The applicant further believes that he would not get state protection from the local police and relocation is not a possible option.

The submission dated 19 November 2020 also submits the following.
It is stated that the applicant fears harm due to conversion to Christianity, and that the applicant is unable to practise his religion in South Africa. While accepting that South Africa provides for freedom of religion, it is submitted that the Islamic community in South Africa sees converts from Islam as enemies and considers the applicant to have committed a serious crime worse than murder. It is stated that the applicant’s situation is more dangerous because his family is considered to be descended from the Prophet Muhammad. The submission states that the Islamic community in South Africa would not tolerate the applicant’s conversion due to his family’s profile. Reference is made to the delegate accepting that the applicant may face harm should he return to Port Elizabeth.
The submission states that the representative is unable to provide country information indicating the systematic and targeted persecution of a convert from Islam to Christianity in South Africa. It is submitted that the case’s facts are unique, and that the seriousness of the consequences of the applicant’s conversion as a known Muslim should be considered.
Reference is made to the applicant’s claims of being shot at and stabbed in Port Elizabeth, as well as the bounty for his death. Mention is made of the applicant’s fear that family members and members of the Islamic community in South Africa would attack him, as well as an incident when a brick was thrown through his window. It is stated that the applicant’s ex-wife supports the claims. It is submitted that the applicant has suffered acts of persecution for Convention reasons, and that there is a real chance the applicant would suffer further acts. It is submitted that the attacks on the applicant and the incident of the brick-throwing were not random criminal attacks but targeting the applicant due to his conversion.
Reference is made to the applicant’s fear of being harmed by Al-Qaeda. Mention is made of Al-Qaeda presence in South Africa. It is submitted that the applicant could possibly be a target of this group. It is stated that the applicant’s daughter, [was] molested by an Al-Qaeda member.
Reference is made to the delegate accepting that the applicant had been attacked and threatened in South Africa, including by two ‘coloured men’. It is submitted that the applicant was attacked due to his conversion.
It is submitted that conversion is a crime in Islam, and the applicant’s life is thus in danger. It is submitted that, given the applicant’s history, he faces a real chance of persecution.
Reference is made to corruption in the South African government and police force, and that the police will only protect and work for black people. It is submitted that, due to widespread police corruption, the applicant would be exposed to harm. It is submitted that the applicant is easily identifiable as a Muslim due to his name, that he comes from a well-known Islamic family, and that he is a well-known Muslim who had previously travelled to other cities in South Africa in a religious capacity. It is stated that the applicant’s family are spread out in South Africa, including in Cape Town, Johannesburg, and Durban. Reference is made to the applicant attempting to relocate to [Town 1],but being informed by a schoolmate that it was too dangerous for the applicant due to a bounty on his head. It is submitted that there is nowhere in South Africa in which the applicant would be safe.
The submission states that the applicant has a well-founded fear due to his religion and membership of a particular social group. It is stated that the applicant fears serious harm and persecution in South Africa. It is submitted that, if the applicant is found not to be a refugee, then there is a real risk the applicant will suffer significant harm in South Africa. The submissions state that the applicant is unable to modify reasonably his behaviour to avoid persecution due to his innate characteristics, such as his Christianity.
The applicant also provided the following additional documents to the Tribunal:
·A support letter from [a named person] of [a welfare organisation], dated 9 June 2017, stating that the organisation runs transitional homes. It is stated that the applicant has stayed with them, and has explained his conversion to Christianity and the discrimination he faced, resulting in him fleeing South Africa. It is stated that the author and other members in the organisation believe the applicant’s claims, and regard him as a friend. The letter states that the applicant is caring, has a good work ethic, and is making a contribution to Australia on several levels.
·A support letter from the applicant’s ex-wife, [Ms D], dated 19 November 2020, stating that the applicant was born into a strict Islamic family and studied the Quran as well as being very involved in his mosque. The letter states that [Ms D] led the applicant to Christianity, and the applicant kept his conversion quiet at first, but soon wanted to be free from fear and guilt and thus sold his car and went to Australia for a safer life. It is stated that the applicant suffered trials and attacks due to his conversion, including someone throwing a brick through their window as well as being shot at. It is stated that the applicant was assaulted by three guys but he managed to escape to a post office. The letter states that, after the applicant’s conversion, Tablighi Jamaat (Al-Qaeda) became hostile to the applicant and his family, and they were badly treated and faced disrespect. It is stated that this made the applicant uncomfortable and fearful resulting in his decision to seek refuge.
·A support letter from [a named person], of [Church 1], dated 3 September 2020, stating that the applicant travels extensively around Australia for work but that [the] Church is his spiritual home, which he attends regularly when in Sydney. The letter states that the applicant is a highly-valued member of the community, and has provided donations to assist elderly or disadvantaged members, and shows concern for the welfare of those around him. It is stated that the applicant is in regular communication with his family for whom he cares, and that the church recommends the applicant be granted residency.
·A South African divorce order for the applicant and [Ms D], dated [date] February 2014, and an accompanying deed of settlement by consent. It is stated that [Ms D] will have custody and the applicant is to have contact with them. The divorce then notes the financial arrangements.
·Email dated 18 January 2021 from [the] applicant’s daughter, indicating that she has not seen her father since 2016 when he came to Australia. He converted his faith and did not feel safe in South Africa. It is indicated that the decline in the applicant’s health with him suffering [medical conditions] has been distressing for the family.
·Email dated 18 January 2021 from [a named person] indicating that she has known the applicant’s family for many years and grew up in terms of his Muslim faith strictly. After becoming a Christian he became concerned for his life as many times he was intimidated, as a result of which he left for Australia for his safety.
·Email dated 18 January 2021 from [a named person] indicating that he met the applicant in September 2015 as he had become friends with the family. The applicant became a Christian at the end of 2015 and experienced countless threats on his life. He stopped attending the mosque after which he feared for his life. He left for Australia for his safety.
·A letter of support from [a Reverend] dated 1 February 2021 which states that he has known the applicant for over five years, has offered the applicant support, that the applicant is a caring individual, and that he has gotten to know the applicant’s family via video link. The letter states that the applicant has skills as a [Occupation 2] and has worked in remote areas or Northern Queensland. The reverend states that he himself is a migrant. The reverend has ‘no hesitation’ recommending the applicant and his family for residency in Australia and believes they will contribute to our community.
·A character reference letter from [a named person] of [Church 1] dated Monday 1 February 2020 that states that the applicant works many and varied [Contracts], and whilst working away keeps in regular touch via phone or zoom and attends Church Meetings regularly. The letter states that the applicant has become a highly valued member of the church and tries to help others, especially elderly or disadvantaged Church Members. The letter states that the applicant keeps in regular contact with his wife and children abroad. The letter states that the [Church 1] Leadership has no hesitation in recommending the applicant and his immediate family be granted permanent residency, and states that they will make a positive and valuable addition to the wider Australian community.
Independent information
The Tribunal made a request of the Country of Origin Information Services Section (COISS) of the Department seeking information concerning the attitude of Muslims towards Muslims who have converted to Christianity in South Africa. COISS responded that they have not been able to find much in the way of relevant information, but provided the following response on 19 November 2020:
No specific information was found about the attitude of Muslims towards former Muslims who have converted to Christianity.
A 2010 Pew Research Center report on the role of Christianity and Islam in sub-Saharan Africa says that there is little evidence that either Christianity or Islam is growing in sub-Saharan Africa at the expense of the other – including in South Africa – suggesting that few individuals convert from one faith to the other (‘Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa’, Pew Research Center, April 2010, p.12, 20201119131301).
The same report says that 63 per cent of South Africans (or at least those South Africans surveyed for the report) believe that Islam and Christianity are ‘very different’, although this finding is not broken down by the religion of the individual respondent (Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa’, Pew Research Center, April 2010, p.40, 20201119131301).
Muslims constitute about 1.7 per cent of the South African population, while about 81 per cent of South Africans are Christian ('2019 Report on International Religious Freedom - South Africa', United States Department of State, 10 June 2020, p.1, 20200612163939).
While more recent US Department of State international religious freedom reports do not address the issue, older reports note that there were no reports of forced religious conversion in South Africa (E.g. 'South Africa - International Religious Freedom Report Oct 2009', US Department of State, 26 October 2009, 20140924163012).
A February 2019 Pew Research Center report about the extent of religious restrictions in the world’s 25 most populous countries notes that South Africa was among those with the fewest religious restrictions or social hostilities involving religion (‘A Closer Look at how Religious Restrictions Have Risen Around the World’, Pew Research Center, 15 July 2019, p.62, 20201119132632).
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of South Africa and accordingly his claims will be assessed against South Africa.
The Tribunal has numerous and significant credibility issues with the applicant’s claims, particularly based upon inconsistencies between evidence in the interview with the delegate with the subsequent detailed written statement provided and the applicant’s evidence in hearing.
Towards the end of the hearing, the Tribunal put to the applicant the following inconsistencies. The Tribunal put the applicant that in the interview with the delegate he indicated that his conversion to Christianity happened on his birthday [in] 2013, as compared with evidence in the hearing and in subsequent written statements that his conversion happened in December 2015. In the hearing, the applicant indicated that he had been attending his mosque up until December 2015. The Tribunal put to the applicant his evidence in the interview of suffering various adverse physical encounters as a result of his conversion, which predate his later claim of the conversion not occurring until 2015. This includes evidence in the interview that he became fearful in early 2014 when a brick was thrown into his car with his daughter. This includes evidence in interview that he became fearful in June 2014 when there was a threat to burn down his house as a result of which the applicant fled to [Town 1] for two weeks. This includes evidence in the interview that there was harm in 2015 when individuals drove the applicant off the road and shot at him because a price had been put on his head.
The Tribunal noted to the applicant in the hearing the inconsistency between his evidence at interview that he went to the police ‘so many times’, as compared to his evidence in hearing that the sole occasion on which he went to the police was when a brick with a note was thrown into a window of his family home.
The Tribunal noted to the applicant the inconsistency with his evidence in the interview that he relocated from Port Elizabeth to a number of other locations in South Africa to escape harm as a result of the conversion, including to Cape Town and Pretoria, as compared to his evidence in the hearing that the only place that he relocated to for a weekend was to [Town 1].
The Tribunal noted to the applicant the inconsistency between his evidence in the interview that there was an occasion when a knife was thrown at him and he was injured when he fell down as compared to his evidence in the hearing that the only occasion on which he was threatened with a knife was when men chased him through city streets with a knife, but that he managed to run away very quickly without suffering injury.
The Tribunal noted to the applicant the inconsistency in evidence between that in the interview that he was told by a bikie in [Suburb 1] that there was a bounty on his head, as compared with evidence in the hearing that he had learned about the bounty from a friend in [Town 1] when the applicant and his wife relocated there for a weekend to avoid harm in Port Elizabeth.
The applicant provided the following various responses. As to the date of conversion, the applicant indicated that he may have made a mistake in evidence to the delegate as to the date of his conversion. The applicant indicated that there was an incident where a stone, rather than a brick was thrown at his car after he had converted in December 2015. The applicant indicated that there was a later threat to burn his house down after he converted in December 2015, but the applicant not indicate why he had subsequently indicated a much earlier date. The applicant and his representative explained other discrepancies in dates as to harm having been faced by the applicant before he actually converted in December 2015, as being a product of memory difficulties suffered by the applicant, compounded by the many difficulties he has faced together with having suffered [medical conditions] in Australia.
The Tribunal is not satisfied that the many claimed difficulties faced by the applicant or other health issues would explain the stark inconsistencies in evidence as to when it was the applicant converted (which is at the heart of his claims) or confuse on multiple occasions incidents of harm by mistakenly referring to them as having happened prior to the date on which he now claims to have converted in December 2015. The Tribunal notes that at the beginning of the hearing the applicant indicated that there were no physical or mental health impediments to him giving evidence to the Tribunal. These inconsistencies are very significantly undermining of the applicant’s credibility.
The applicant provided the following response in relation to the inconsistency as to the number of police reports. The applicant indicated that whilst he only went in person to make a report to the police on one occasion, after the brick was thrown in the window of the family home, he did in fact make police reports by telephone in relation to other incidents of harm.
The applicant in the hearing was clear that he only made one police report, without qualifying that he in fact made multiple police reports, including by telephone. The Tribunal is not satisfied that if the applicant was being truthful that he would not have revealed the multiple police reports by telephone in the Tribunal hearing in relation to its questions as to instances of police reports.
In relation to the inconsistency as to other locations in South Africa that were relocated to, the applicant indicated that he and his wife had considered relocating to the other stated locations in South Africa to avoid harm but these relocations had not eventuated. The Tribunal is not satisfied that this explains the fact that the applicant in the interview gave clear evidence that he did actually relocate to these places. This is undermining of the applicant’s credibility.
In relation to the inconsistency concerning the details of the knife attack, the applicant indicated that in fact when he had been chased by persons with a knife, they had stabbed him in the [body part], but that as he did not feel the impact or pain of this stabbing he had indicated in the hearing that he had escaped from this encounter without injury.
The Tribunal considers that this is an absurd explanation which it does not accept. This is undermining of the credibility of the applicant.
In relation to how the applicant learned of the bounty on his head, he said that in fact that there were multiple sources by which he learned of this. Whilst the Tribunal accepts that this could well be the case if there had been a bounty on the applicant’s head. The Tribunal does not draw adverse credibility inferences in relation to this particular issue.

A further claim by the applicant of which the Tribunal has credibility concerns is the claim that the applicant’s daughter was molested by a member of Al Qaeda. In the hearing, the Tribunal explored with the applicant details of this claim. The applicant indicated that the assault was by a fellow student at his daughter’s school. When questioned about the details of the assault, the applicant said that she was raped and that the perpetrator made threats in relation to the families conversion.
The Tribunal asked the applicant if a report was made to the police. In response, the applicant indicated that there was no police report because of family embarrassment. The Tribunal is not satisfied that if the applicant’s daughter had been raped that this very significant crime would not have been reported to the police.
The Tribunal also noted to the applicant that credibility issues as to claimed harm faced as a result of converting from Islam to Christianity are reinforced by the lack of any independent evidence finding no evidence of any instance or widespread occurrence of individuals facing harm due to religious conversions and the fact that the evidence indicates that South Africa has some of the fewest social hostilities involving religion. In response the applicant and his representative submitted that there may not be reports of such occurrences and that the applicant faces a particular risk of being targeted because of his important role in the mosque and that he is a direct descendant of the Prophet Mohammed.
The lack of supporting independent evidence to indicate a risk to the applicant based on his conversion buttresses more direct credibility concerns.
The applicant’s migration agent at the end of the hearing made oral submissions as to why protection criteria are met, and making explanations, referred to above, as to adverse credibility issues.
The Tribunal considers the credibility issues cumulatively. The credibility concerns are multitudinous, some relating to key issues in relation to the applicant’s claims. Cumulatively considered they are significantly undermining of the applicant’s credibility. The Tribunal is not satisfied that the applicant is a credible truthful witness. The credibility concerns result in the Tribunal not being satisfied as to key substantive claims by the applicant, other than the fact that the Tribunal does accept that at some point the applicant has converted from Islam to Christianity.
The Tribunal is not satisfied that the applicant or his family have suffered any degree of serious or significant harm has a result of either the applicant’s or the family’s conversion from Islam to Christianity. The Tribunal is not satisfied as to any of the claimed specific incidents of harm claimed in the interview, the hearing or in his written claims. The Tribunal is not satisfied that there is any adverse intention towards the applicant by his family or former fellow Muslims or Al-Qaeda to cause the applicant or his family serious or significant harm. The Tribunal is not satisfied that the applicant’s daughter was assaulted/raped as claimed, including as a result of the family’s religious conversion.
The Tribunal, in making these credibility assessments, as taken into account the various supporting statements provided corroborating the applicant’s claims as to what happened to him in South Africa in relation to his conversion. Those statements, which could easily have been concocted, do not persuade the Tribunal of the truth of the applicant’s claims given the many other credibility concerns.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Africa, there is a real risk that he will face serious harm for any of the reasons claimed.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2021] AATA 779

8 February 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness