1714479 (Refugee)

[2022] AATA 2493

1714479 (Refugee) [2022] AATA 2493 (23 June 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714479

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Wendy Banfield

DATE OF DECISION:  23 June 2022

DATE CORRIGENDUM

SIGNED:30 June 2022

PLACE OF DECISION:  Canberra

AMENDMENT:  The following corrections are made to the decision:

1. The words ‘The Tribunal considered whether any discrimination the applicants may encounter in Malaysia’ at paragraph 88 should be replaced with ‘The Tribunal considered whether any discrimination the applicants may encounter in South Africa’.
   
   

Wendy Banfield
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714479

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Wendy Banfield

DATE:23 June 2022

PLACE OF DECISION:  Canberra

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

Statement made on 23 June 2022 at 3:59pm

CATCHWORDS
REFUGEE – protection visa – South Africa – ethnicity and nationality – refugee from third country granted citizenship – harassment and discrimination against refugees and migrants from home country among others – threats to applicant and attack on church – members of family unit – secondary applicant children South African citizens by birth – separated wife applying for protection visa separately – threats by wife’s family – ritual circumcision practiced by wife’s tribe – country information – general socio-economic and law and order conditions – xenophobic attitudes and violence – variable effectiveness of state protection measures – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424A

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB (2013) 210 FCR 505

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of South Africa, applied for the visas on 30 June 2015. The delegate refused to grant the visa on the basis that the applicants were not persons in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. [The primary applicant] appeared before the Tribunal on 28 February 2022 to give evidence and present arguments. The other applicants, [the primary applicant]’s two children did not attend the hearing. The hearing was held in person at the Tribunal premises in Canberra.

   CRITERIA FOR A PROTECTION VISA

   Refugee criteria

4. 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.

5. 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.

6. 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).

7. 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.

8. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

9. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

   Complementary protection criteria

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.

11. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Mandatory considerations

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

    Applicant's Identity and Country of Reference

13. The applicant stated in his application for a protection visa that he was born in the Democratic Republic of Congo. The applicant went to South Africa as a refugee and had been granted citizenship. The applicant provided a copy of his South African passport to the Department. There is no evidence to suggest it is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

14. The Tribunal considered whether the applicants have dual citizenship which would make the application for protection invalid in accordance with the Migration Act. The applicant advised he left Congo during the civil war in 1997 and was granted refugee status in South Africa and obtained citizenship in that country. According to information regarding citizenship laws in the Democratic Republic of Congo, dual citizenship is not recognized.[1] Therefore, the applicant no longer holds citizenship in Congo and his application for protection is valid.

    [1] >

    Based on the documents provided by the applicant and relevant country information, the Tribunal finds that the applicant is a citizen of South Africa and as such his protection claim will be assessed against South Africa as the country of reference and 'receiving country'.

    Migration History  

15. The applicant first arrived in Australia [in] April 2008 holding a [Visitor] visa. He departed and reentered Australia [in] September 2010. He departed and then reentered [in] August 2011 and departed again. The applicant returned to Australia [in] March 2012 and has not departed since.

    Claims for protection and supporting documentation

16. The applicant submitted claims for protection when he made an application to the Department on 30 June 2015. The applicant’s claims were summarised in the Department’s decision record dated 5 July 2017:

    ·     The applicant is a Pastor from Congo, the former Zaire. He is from a family of [number] in which [number] have died including his parents as a result of war in 1997 and the others are dispersed to this day.

    ·     His father and mother served in the [government] as [an Occupation 1] and his mother as [an Occupation 2]. This brought a lot of problems to the family such as persecution and displacement from the government that took over.

    ·     He left his home country as a refugee and fled to South Africa where he has lived for 15 years. He got married to a South African lady and they have two children from the marriage. His children are also South African citizens.

    ·     Despite this he struggles so much to receive genuine acceptance from his fellow South African communities because of discrimination, bullying and being called names which was demeaning and emotional. Also, xenophobia is present throughout the country.

    ·     South Africans claim that their jobs and women are taken by foreigners which made his wife and children feel insecure.

    ·     The applicant is afraid of returning to South Africa. He will endanger his family and himself due to the xenophobic attacks which keep rising from time to time. He does not have any confidence of protection mechanisms available within the country.

    ·     For more than 3 years the applicant has been living and preaching the gospel of good news in the Australian community. He came to love Australia to the point of feeling at home.

    ·     The applicant feels secure and protected as the community has helped him to integrate very well into Australia.

17. In support of the application, the applicant provided the following written evidence to the Tribunal:

    ·     Letter of support from [Mr A], [Church 1] submitted on 21 February 2022.

    ·     List of addresses in South Africa described as [the applicant]’s rental history.

    ·     Applicant’s written statement regarding Formal Recognition of Refugee Status from South Africa dated [February] 2022.

    ·     Department of Home Affairs South Africa refugee status letter and identification in the name of the applicant dated [May] 2018.

    ·     Letter from [Law firm] dated 12 September 2018 advising the applicant his wife had filed for divorce on 7 September 2018.

    ·     Letter of support from [Mr B], Director of [Charity organisation] Canberra dated 16 February 2022.

    ·     Applicant’s ACT driver’s licence and Working with Vulnerable People identification.

    ·     Certificate of Incorporation and extract for [Church 2] dated 1 August 2019.

18. The Tribunal also considered the information provided to the Department at the time of application. This included the applicant’s birth certificate from the Democratic Republic of Congo (the Congo); South African birth certificates for the secondary applicants; Applicants’ passport information; South Africa Police Clearance Certificate in the name of the applicant; applicant’s South African Certificate of Naturalisation; applicant’s South African permanent residence permit; applicant’s Certificate of Good Conduct – the Congo; Certificate of Ordination; Personal Evangelism Certificate of Achievement; educational certificates in the name of the applicant; National Register of Independent Churches certificate; Australian bank statements; Protection visa application forms; marriage certificate of the applicant and his former wife.

    Interview with the Department on 2 June 2017

19. The Tribunal considered the applicant’s interview with the Department that took place on 2 June 2017 in which the applicant explained his protection claims as considered by the delegate.

    Evidence at the Tribunal hearing

20. The applicant confirmed he had travelled to Australia in 2008 as a pastor for missionary purposes. He said he was looking for a country to relocate to because of the circumstances in South Africa. At the time he held a tourist visa but had the idea of making contacts and finding a sponsor in Australia. After he gained a South African passport, and a tourist visa to Australia he was able to come and go, which he did about two or three times.

21. The applicant advised he was originally from Congo but went to South Africa because of war and became a citizen. The applicant said his marriage fell apart, but his children are still part of the application. He said his former wife is making her own application. The applicant said his children are aged [age] and [age] and were born in South Africa. He said he thought that in South Africa, if you are a citizen and leave for more than 7 years you have to provide an explanation. In 2012 the applicant arrived in Australia as a visitor. He had applied for a Subclass 428 visa and was preaching around Australia.

22. Apart from his children and former wife, the applicant said he has no family in Australia. He said his parents and siblings passed away in Congo and he has no relatives in South Africa.  Regarding his education, the applicant said he studied theology in Congo, but in South Africa it was difficult to study. In South Africa he had been a pastor for 17 years. He said he lived in Port Elizabeth after arriving in Durban, through [Country 1]. The applicant confirmed he is still a church pastor and is also employed as [an Occupation 3] for a [workplace].

23. The Tribunal put to the applicant that he arrived in Australia in 2012 but had not applied for protection until 2015. He said originally, he did not want to “give stories from the past” and had hoped that he would be sponsored through a religious visa. However, it did not work out and when he tried to apply on his own, it was rejected by the Department. The applicant said he was given options and a protection visa applied to his circumstances.

24. The Tribunal explained to the applicant the requirements to be granted a protection visa. The applicant confirmed he was applying for protection on the grounds of race and ethnicity. He said it was big problem not to be able to speak the language in South Africa. The applicant speaks French and local Congo languages as well as English, which is what he used in South Africa.

25. Regarding his fear of harm in South Africa, the applicant said that from when he arrived in South Africa, he always wanted to go back to Congo when it was possible to do so. He said living in South Africa was not easy because of not being able to speak the language, and he learnt English there. The applicant said he went to Home Affairs in South Africa, explained his situation and was given a three-month renewal notice. He said he was in Durban at the time and finding a job was very difficult, as well as staying in their community. According to the applicant, it became an issue of “jobs and wives”, especially since he married a South African woman. The applicant said there was resistance from the family and the community. He said he tried to establish a church, but it never worked. He said he moved to the city because he was told if he stayed where he was, he would lose his life.

26. The applicant advised he started living in Durban but moved to Port Elizabeth which is where he lived the longest. He said when he rented a house as a foreigner the owner would take the deposit then come and tell him he had to leave. He said it happened constantly and he lived in 17 addresses in five years. The applicant claimed it had always been the case. 

27. The applicant was asked if anything had happened to him that caused him to fear harm. He said he remembered taking his car to a mechanic and it was purposely “destroyed”. The applicant claimed he was threatened with a gun and he had to move to another place. When asked how the car was destroyed, the applicant said he never got the car back, and the mechanic and his friends told him to leave. He said this happened in 2005 and he reported it to the police but was just told to go back home. The applicant said he believed it was because he was a foreigner.

28. The Tribunal asked the applicant if he suffered any other threats or harm. He said it was mainly the car and the house but regarding places to stay, sometimes he did not have the money for bond to find another place, and he had to finish his lease. The applicant explained that sometimes he wanted to leave but could not. He added that he was constantly having to start all over again. The applicant agreed he continued living there after 2005 but said he did not have the money to leave. He was asked why he had not applied for protection in countries he had visited for religious purposes after 2005. The applicant claimed he had always wanted to return to Congo. When he travelled to other countries, he was a missionary, and it was too far to come back home. The applicant said when he decided to leave South Africa, he chose Australia because he had been here before. He had seen that things were getting worse in Congo and South Africa and he needed a place to bring his two children.

29. The applicant said the other problem he faced was religion because of issues with other churches. He said the churches represent the entire culture of South Africa whereas his church was not about culture but interpreting the bible. The applicant said some people, including children joined his church in Motherwell. He claimed that when he went to his church one morning in 2006 it was chained up and closed. The Tribunal questioned his claims and put to him that South Africa is quite culturally and religiously diverse, but the applicant claimed it is also divided into different communities.

30. The Tribunal asked if the applicant was threatened or harmed, and he claimed he did receive threats and was told to get out of the community. The Tribunal put to the applicant that Port Elizabeth is a tourist city and is relatively safe. The applicant agreed it was “the best” in South Africa and for this reason, he did not consider moving elsewhere. The applicant said his children went to school in Port Elizabeth. He advised his children currently live with their mother in Australia. The applicant said he is not divorced yet but has been separated for five years.

31. Regarding what he fears if he returns to South Africa, the applicant said his citizenship is compromised, and he is now separated from his wife. He claimed his wife’s people are “mobilised” and her brother is [an Occupation 4]. The applicant said his former wife told him to never set foot in South Africa and her sister made allegations against him. The applicant claimed he was threatened that he would be arrested and tortured for two years, then when his was about to die he would be sent to Congo. The applicant claimed he was contacted online by a “magistrate” offering to help him and his wife, but he noticed the name was South African. When he asked the person’s location, he found they were in Adelaide. The applicant claimed he knew it was “her people”, but he no longer has the messages. In addition, the applicant said he received friend requests on [social media] from his wife’s acquaintances. The applicant claimed he has genuine fears about his wife’s threats and South Africans can say “you took our sister” as a reason.

1. The applicant was asked if he could live somewhere else, in the country but he said the South African police can go anywhere. He was asked why he would be of such interest to South African police, just because of his marriage. He claimed that would still be a reason. Regarding protection from authorities, the applicant said they do not help or take his reports, and he is told to go back home. He denied there are any Congolese community groups or organisations that could provide support. The applicant advised he has never been arrested or detained by police, except when he first arrived in South Africa as a refugee. The applicant alleged his former wife has a group of friends who are politicians with the African National Congress (ANC) who are capable of anything. He said they are a strong and scary group and he is concerned about them. He claimed: “everyone is carrying a gun”.

2. The Tribunal asked the applicant to comment on country information that indicated while law and order is a problem throughout South Africa it is primarily generalised criminal behaviour rather than being due to xenophobia. The applicant said people in South Africa are angry and violent, and it is not just criminals, but behaviour developed due to apartheid including the need to resist and fight. It was put to the applicant that since it is general behaviour, he may not be at greater risk of violence than anyone else. The applicant insisted the treatment he has received is due to his being from Congo. The applicant said his wife has not threatened him or caused any harm to him in Australia because the law is stronger. The applicant said from the beginning of their relationship in 2003 his former wife’s family wondered why she wanted to marry a foreigner.

3. The Tribunal asked the applicant about his claims to the Department of being bullied and intimated in South Africa. He said foreigners live in fear and you have to go in another direction when there are African men coming. He confirmed he was called names and it was difficult to make friends in the community. It was put to the applicant that he had lived in South Africa for 15 years, had become a citizen, and he must have integrated or adapted to some extent, unlike more recent migrants. The applicant claimed when he first arrived in South Africa, he had to travel to Durban from Port Elizabeth to review his temporary residency because authorities would not transfer his file. He said this was required every three months for 10 years, and as a result it was difficult to settle. The Tribunal put to the applicant that living in Port Elizabeth for many years must have allowed him to settle to some extent. The applicant referred to a list of addresses that he said were places he had lived and had to move from. He said he had to move from a small community called Motherwell to the city and as most buildings were owned by South Africans, they forced foreigners to move from place to place.

4. The Tribunal asked the applicant about his children living in South Africa. He said it was not good for them because they do not speak the local language and there were bullies. The applicant said this was before they went to a white school that was arranged through church. The applicant explained that regarding his son, there is a tradition where boys are sent into the bush and roughly circumcised. He said his former wife and in-laws believe the applicant’s son needs to be circumcised this way, according to their culture. The applicant claimed he wanted to have his son circumcised as a baby, but his former wife refused.

5. The applicant said the type of harm he fears in South Africa is physical violence, including being killed. He said it would be difficult to continue his work in ministry and had been attacked and warned in the past. He claimed to have been attacked physically in the past, in Motherwell. According to the applicant after his church was locked, he found another place but was warned to get out of that place or he would be “in a casket” if he persisted. He said they can kill him or do anything. The applicant said a white church mentor had helped him preach in black communities and he told them all his problems. He said he had wanted to preach in certain areas but had been told not to go.

6. The applicant said when he spoke to an immigration officer in Sydney, he thought it went well and the only question he was asked was to provide evidence he was a refugee in South Africa. He said he had been told if he did “it would be ideal”. The applicant said he had not thought he needed it after gaining South African citizenship. According to the applicant, he contacted the same officer and said the evidence was taking time to obtain and was told again it would be ideal if it was provided. The applicant claimed in the meantime, the decision was made. The Tribunal noted that the Department had accepted he was a refugee in South Africa because he had evidence of his Congolese background.

7. The Tribunal advised the applicant that it would be assessing him against the refugee and complimentary protection criteria and invited him to make any further submissions. The applicant said it was very difficult to live in South Africa, but he stayed because he really wanted to return to Congo. He said he had only been able to stay for a short time in Congo, and was attacked because of his surname, and his parents who worked for the former government. He claimed he had been staying in a house in Congo before a church event when the military came. The applicant said they saw his name and claimed to have been looking for him, but the homeowner said the applicant was not there. The applicant alleged the military had come to arrest him so he was taken to the border with [Country 2], returned to South Africa and eventually came to Australia.

8. The applicant requested his case be considered due to his experience of life in Congo and South Africa. He repeated he first tried going to Congo when he left South Africa, but he had a traumatic background having lost his parents and siblings. The applicant claimed people in Congo were very angry with the former government which is why he returned to South Africa and tried to integrate into the community in Motherwell. He said he tried but it never worked. The applicant said his explanation is very common in South Africa and he had so much fear in heart and spirit. He said he does not see himself going back to South Africa and does not know where he would go.

9. The Tribunal asked the applicant if he still fears harm, even though he has been in Australia since 2012. He said he does because of media reports and because it is worse now in South Africa than when he was there. The applicant claimed since his visa was rejected, he has suffered fear and trauma. He stated he has lived here for 10 years; he now knows people that he ministers to and has employment.

   424A letter

10. On 29 April 2022 the Tribunal wrote to the applicant inviting him to comment on the Department’s reasons for decision dated 5 July 2017.

    The particulars of the information that were put to the applicant were:

    ·The Department of Home Affairs (the Department) stated in its decision record of 5 July 2017 that it was satisfied you fear persecution in South Africa for reasons of nationality and race.

    ·The Department was also satisfied the feared persecution involves serious harm and systematic and discriminatory conduct.

    ·However, the Department was not satisfied that there is a real chance of persecution and for that reason, you are not a refugee.

    ·The Department also found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Africa, there is a real risk you will suffer significant harm.

    ·It was found that consequently, you are not a person in respect of whom Australia has protection obligations.

    ·As [the secondary applicants] are members of the same family unit as you, the Department concluded [the secondary applicants] are also not persons in respect of whom Australia has protection obligations.

11. The Tribunal put the Department’s decision to the applicant for comment as it was information before the Tribunal that was adverse to him. The applicant was invited to comment or respond to the Department’s reasons for refusing the application for a Subclass 866 (Protection) visa. The applicant replied to the invitation to comment.

    Applicant’s response to the 424A letter

12. The applicant submitted the following claims and information:

    ·     Applying for protection from one country to another is enough to be persecuted and suffer significant harm in South Africa.

    ·     The President of South Africa accuses foreigners of criticism and has “ramped up control and scrutiny”.

    ·     As a foreigner he has spoken out about South Africa’s behaviour towards other nationalities. He will be stopped at the airport, questioned, and may be assaulted or killed in prison.

    ·     The applicant’s children suffered discrimination, persecution, and physical harm at school in South Africa.

    ·     The applicant wants to protect his son from ritual circumcision which is practiced by the tribe the child’s mother belongs to.

    ·     The applicant’s ex-wife has threatened to have him arrested by her [Occupation 4] brother and his government official friends if he returns to South Africa. He would be tortured in prison and sent to the Congo to die.

    ·     The police in South Africa are biased and never assisted him in the past. They will be against him because he is another nationality.

    ·     The applicant established a church in South Africa over seven years, but it was “destroyed” in one day.

    ·     The applicant was told to go back to the Congo to preach as foreign churches are associated with apartheid.

    ·     He was locked out of his church; his musical instruments were stolen, and the building was burned down.

    ·     News reports said the church was destroyed by robbers when it was community members, the police failed to investigate the incident, and the applicant had to move to the city while preparing to leave South Africa.

    ·     The applicant and his children feel at home in Australia and want to contribute to society.

    ·     The applicant is running a church on Sundays, he teaches [subject] on Saturdays and works with [specified people] during the week.

    Xenophobia

13. Xenophobic violence is a perennial phenomenon in South Africa, driven by frustrations about limited economic opportunities and high unemployment, and the belief that poor migrants – particularly from other parts of Africa – are in part to blame.

14. In terms of the primary targets of xenophobic violence in South Africa, a March 2017 Washington   Post article cited in an April 2018 Immigration and Refugee Board of Canada response says that xenophobic violence specifically targets African and Asian migrants who are seen as ‘encroachments’   or ‘threats’. A March 2018 Mail & Guardian article, also cited in the Immigration and Refugee Board of Canada response, likewise says that xenophobia is ‘” reserved mainly for poor black foreigners” from Africa who face “Afrophobia, hostility, threats, violence, looting, displacement and even murder”’[2]

    [2] South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018), Immigration and Refugee Board of Canada, 30 April 2018

15. In terms of the primary motivation behind xenophobic violence, a September 2019 The Washington Post article states frustrations about South Africa’s struggling economy and high unemployment have been linked with immigration.[3]  Researchers at the Human Sciences Research Council, a South African research institute, revealed in April 2019 that a significant proportion of South Africa’s population hold anti-immigrant views and blame foreign nationals for many of the socio-economic challenges facing the country.[4]  A September 2019 article by the Institute for Security Studies, A South African think-tank, says that ‘levels of public violence in general are rising, and foreign nationals in under-developed and crowded areas are particularly vulnerable when the poor face increasing hardship and frustration’.[5]

    [3] ‘What’s driving anti-immigrant violence in South Africa? It’s not just economic anxiety’, The Washington Post, 10 September 2019

    [4] “What Research Reveals about Drivers of Anti-immigrant Hate Crime in South Africa’, Inter Press Service, 9 September 2019.

    [5] ‘South Africa’s problems are not caused by foreigners’, Institute for Security Studies, 5 September 2019

16. The US Department of States 2018 South Africa human rights report says that incidents of xenophobic violence are generally concentrated in areas characterised by poverty and a lack of services.[6]  Similarly, Sharon Ekambaram, who runs the refugee and migrant rights programme for Lawyers for Human Rights, a human rights advocacy organisation, is quoted in an April 2019 BBC news article as saying that the causes of xenophobic violence are the entrenched poverty that has its roots in South Africa’s history of apartheid. The article also says that xenophobic violence is often triggered by local disputes.[7]

    [6] Country Reports on Human Rights Practices for 2018 – South Africa, US Department of State, 13 March 2019

    [7] ‘South Africa – How common are xenophobic attacks?’, BBC News, 7 April 2019

17. A number of sources indicate concerns among foreign residents in South Africa about the extent and prevalence of xenophobic violence.  For example, a 2019 Freedom House report says that ‘for many foreigners, the threat of xenophobic violence impedes freedom of movement’ and that ‘xenophobic violence against immigrants from other African countries has broken out sporadically in recent years’[8] while an April 2019 Deutsche Welle article says that ‘attacks against foreigners and foreign-run businesses have erupted regularly in the past decades in South Africa”.[9]

    [8] ‘Freedom in the World 2019 – South Africa’, Freedom House, 2019

    [9] ‘South Africa’s politicians feed anti-foreigner violence’, Deutsche Welle, 2 April 2019

18. According to the April 2019 BBC News report, the South African government does not collect statistics on the number of attacks on foreigners.  However, the report says that figures from the African Centre for Migration and Society at the University of the Witwatersrand suggest violent attacks peaked in both 2008 and 2015.[10]  A March 2019 report by Xenowatch, a group based within the African Centre for Migration and Society, says that xenophobic violence has become a ‘perennial feature’ in post-Apartheid South Africa, and since 1994 ‘tens of thousands of people have been harassed, attacked or killed because of their status as outsiders or foreign nationals”.[11]

    [10] ‘South Africa: How common are xenophobic attacks?’ BBC News, 7 April 2019

    [11] ‘Xenophobic violence in South Africa: 1994 – 2018: an overview”, Xenowatch, March 2019

19. Hostility towards foreign nationals is still pervasive and remains a serious threat to outsiders and local communities’ lives and livelihoods.  It indeed continues to result in rising cases of murder, injuries, threats of mob violence, displacement, looting and the destruction of residential property and businesses.  Since May 2008, attacks against outsiders – most notably foreign shopkeepers and workers – have resulted in an ever-growing number of murders and injuries at the hands of members of their host communities.[12]

    [12] Ibid.

20. The US Department of State’s 2018 South Africa human rights report says that since 2013 the South African authorities have ‘significantly reduced’ the number of assaults and deaths by evacuating foreign nationals from communities affected by xenophobic violence, although little has been done to protect their property.[13]  The US Department of State’s 2020 South African human rights report says that xenophobic violence was a continuing problem across the country, especially in Gauteng Province.  In August and September 2019, a spate of looting and violence in Johannesburg and Pretoria targeted foreign nationals, principally Nigerians and refugees from Somalia, Ethiopia and the Democratic Republic of Congo.  Those targeted often owned or managed small, informal grocery stores in economically marginalised areas that lacked government services. It is further reported that on social media immigrants were often blamed for increased crime and the loss of jobs and housing.  Between January and November, there were at least 48 incidents of xenophobic violence.  Somali refugees continued to be among the most targeted groups, especially in the Eastern Cape, Western Cape and Gauteng Provinces.  NGOs reported perpetrators of violence included ordinary citizens and law enforcement officers.  According to the African Centre for Migration and Society, perpetrators of crimes against foreign nationals were rarely prosecuted. Other information indicates that refugees, asylum seekers and poor migrants may be more vulnerable than other foreigners. [14]

    [13] Country Reports on Human Rights Practices for 2018 – South Africa’, US Department of State, 13 March 2019

    [14] ibid

    Incitement by politicians

21. Foreigners living in South Africa have at times been the target of political leaders.  A 2019 Freedom House report says that political leadership in countering xenophobic violence has been lacking, and that in some cases political leaders have used foreign nationals as scapegoats for their own failure to deliver of political promises.[15]

    [15]    Freedom in the World 2019 – South Africa’, Freedom House, 2019

22. Similarly, the US Department of State’s 2018 human rights report says that local community or political leaders seeking to gain ‘notoriety’ in their communities have allegedly instigated some xenophobic attacks.[16]

    [16]    Country Reports on Human Rights Practices for 2018 – South Africa’, US Department of State, 13 March 2019

23. More broadly, sources also accuse authorities of not taking the threat of xenophobic violence sufficiently seriously.  The US Department of State’s human rights report says that civil society organisations have more generally criticised South Africa’s government for ‘failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreign nationals, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators.[17]  However, there is also information which demonstrates that South African authorities have been willing and able to intervene to protect migrants and prevent or stop xenophobic violence.  The US Department of State says that the government sometimes responds quickly and decisively to xenophobic incidents, sending police and soldiers to communities to quell violence and restore order.[18]  The April 2018 Immigration and Refugee Board of Canada report says that in 2017 the South African Human Rights Commission condemned July 2017 comments made by Deputy Police Minister Bongani Mkongi describing them as xenophobic.[19]

    [17]    ibid

    [18]    Ibid

    [19]    South Africa – Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents: state protection available (2017-April 2018) Immigration and Refugee Board of Canada, 30 April 2018

    Availability of state protection

24. A 2015 South African Human Rights Commission report refers to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent.[20]  However, the US Department of State’s 2019 South Africa crime and safety report says that police have made a strong effort to decrease their response time to incidents in recent years and that there are effective detective programs at all police stations, with detectives on duty at all times. Nevertheless, the report says that while there has been an improvement in community policing, many South Africans mistrust the police and see them as corrupt.[21]  These views are similar to those reported in the US Department of State’s 2020 human rights report which states that the government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate. 

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

    [21]    South Africa 2019 Crime and Safety Report, US Department of State, 6 March 2019

1. John Campbell, a senior fellow for African policy studies at the Council on Foreign Relations quoted in a September 2018 Immigration and Refugee Board of Canada report, notes that there are state protection measures available to South Africans who are victims of violence irrespective of gender or race.[22]

   [22]    South Africa: Situation of white South Africans, including treatment by government and society: state protection available to white South African victims of violence: information on the white South African community, as well as political and/or rights groups (2014-September 2018), Immigration and Refugee Board of Canada, 21 September 2018

2. A Human Rights Watch (HRW) report, South Africa Launches Plan to Combat Xenophobia and Racism, dated 25 March 2019, states:

   Today, South Africa launched its National Action Plan to combat xenophobia, racism, and discrimination, marking an important step towards addressing the widespread human rights abuses arising from xenophobic and gender-based violence and discrimination that continue to plague South Africa.

3. The five-year plan, developed in a consultative process between the government and civil society, aims to raise public awareness about anti-racism and equality measures, improve access to justice and better protections for victims, and increase anti-discrimination efforts to help achieve greater equality and justice.

4. But the action plan fails to address a key challenge fuelling the problem: the lack of accountability for xenophobic crimes.  Virtually no one has been convicted for past outbreaks of xenophobic violence, including the Durban violence of April 2015 that displaced thousands of foreign nationals and the 2008 attacks on foreigners, which resulted in the deaths of more than 60 people across the country.

5. To effectively combat xenophobia, the government and police need to publicly acknowledge attacks on foreign nationals and their property as xenophobic and take decisive action.  This should include ensuring proper police investigations of xenophobic crimes and holding those responsible to account.[23]

   [23]    HRW, ‘South Africa Launches Plan to Combat Xenophobia and Racism’, 25 March 2019

   Crime

6. South Africa has high crime rates and a very high murder rate.   Crime statistics for 2019/2020 indicate that the number of murders in South Africa increased by 303 from 21,022 in 2018/2019 to 21,325 in 2019/2020.  On average 58 people were murdered every day.  In 2018/2019 some 162,012 common assaults were recorded.  This increased to 165,494 in 2019/2020.  On average 453 people were victims of this type of assault every day.  On average 142 common robberies were recorded each day and 394 robberies with aggravating circumstances were recorded each day.  In 2019/2020 21,130 incidents of house robbery were reported and there were 205,959 house burglaries reported to the police. Other significant crimes include carjacking, theft of cars and motorcycles and cash in transit heists.[24]

   [24]    Africa Check, South Africa’s crime statistics 2019/2020

7. The South Africa 2020 Crime & Safety Report[25] states that violent crime remains an ever-present threat in South Africa.  Common crimes include murder, rape, armed robbery, carjacking, home invasion, property theft, smash and grab and ATM robbery.  Most of these crimes are opportunistic in nature. South Africa also has one of the highest rates of rape in the world. While rapists do not specifically target foreigners, foreigners have been victims.

   [25]    South Africa 2020 Crime & Safety Report (osac.gov)

   Traditional Circumcision

8. The tradition of circumcision and initiation rites occur throughout Africa with ceremonial procedures developed over a long period. Traditional male circumcision involves matters of culture and religion and is performed at specific periods in life. The main purpose is integrating male children into society according to cultural norms and has been practiced for generations. It is among the most secretive and sacred of rites practised by the Xhosa speaking people of South Africa.[26] Circumcisions undertaken in non-clinical settings can have significant risks of serious adverse events, including death.[27] Studies indicate adolescents and young men have suffered complications due to unqualified practitioners and the irresponsibility of others involved in the initiation process.[28]

   [26]    Banwari, Meel. “Dangerous to mix: culture and politics in a traditional circumcision in South Africa.” African health sciences vol.

   15,1 (2015): 283-7. doi:10.4314/ahs.v15i1.38

   [27]    Peltzer, K., Nqeketo, A., Petros, G. et al. Traditional circumcision during manhood initiation rituals in the Eastern Cape, South Africa: a pre-post intervention evaluation. BMC Public Health 8, 64 (2008).    Ibid.

9. Ritual circumcision is a difficult issue for the post-apartheid government in South Africa. One provincial government has enacted legislation, the Application of Health Standards in Traditional Circumcision Act of Eastern Cape South Africa 2001, and other health measures. However, traditional leaders alleged this was a violation of cultural rights as enshrined in the constitution. Nationally in South Africa there is the Children's Act 38 of 2005 enacted to address the violation of the rights of children and includes provisions related to the conduct of circumcisions.[29]

   [29]    Ibid.

10. According to the provisions of the Children’s Act, circumcision of a male child older than 16 for social or cultural purposes may only be performed after the child has given consent and after proper counselling of the child by a parent, guardian, caregiver, or social service professional. It may only be carried out by a medical practitioner or by a person with knowledge of the social or cultural practices of the child concerned and who has been properly trained to perform circumcisions. Independent studies refer to the existence of unauthorised and untrained providers of services for profit, however, monitoring and inspection of traditional practices are undertaken.[30]

    [30]    Ibid.

11. In the case of circumcision for religious purposes, the Children’s Act states that for a child under the age of 16, consent must be given by both parents of the male child and where more than one person has guardianship of the child or where a parental responsibilities and rights agreement exists, both of those persons. If the child is older than 16 years consent must be given by the child concerned.[31]

    [31]    Children’s Act 38 of 2005.

12. In one notable case, a South African university student obtained a settlement against his father and traditional leaders after being abducted and subjected to forced circumcision. The victim alleged he was unfairly discriminated against on the grounds of his Christian beliefs and his human dignity was seriously undermined. A settlement was reached, and an order made by the Equality Court. The Congress of Traditional Leaders of South Africa accepted the right of adult males to choose whether to attend traditional circumcision schools according to their religious beliefs. In addition, the Congress apologised for comments made by its former chairman encouraging the ostracism of teenagers who refused to undergo traditional circumcision.[32]  In delivering the order, the judge stressed that consent was essential if the practice was to be both lawful and constitutional, stating:

    “people should understand that the case is not about declaring traditional circumcision unlawful. Nothing prevents individuals making their choice. What is important in terms of the Constitution and law is that no one can be forced to submit to circumcision without his consent.”[33]

    [32]    Nichola de Havilland, ‘Traditional Circumcision: Custom vs the Constitution’, Centre for Constitutional Rights, November 2009.

    [33]    Ibid.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Accepted Personal Circumstances

14. The Tribunal accepts the following information about the applicant’s circumstances:

    ·     The applicant was a refugee from Congo living in South Africa.

    ·     He acquired South African citizenship.

    ·     The applicant lived and worked as a Christian pastor in the Eastern Cape region of South Africa.

    ·     The applicant was married to a South African woman with whom he had two children.

    ·     He experienced incidences of harassment and discrimination due to his Congolese ethnicity and background as an immigrant in South Africa.

    Refugee claims

15. The Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion relating to all areas of the relevant country.

16. To meet the refugee criteria, the applicant must have a well-founded fear of persecution and the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill treatment of the person; significant economic hardship that threatens the person's capacity to subsist (ability to survive); denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive) or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive).

    Well-founded fear of persecution

17. The expression 'well-founded fear of persecution' was considered in the High Court case of Chan v MIEA[34]. It was held that this expression required not only that the fear be 'genuinely' held by the applicant (for example, a subjective element) but that there is also an objective justification or basis for that fear (the objective element). Therefore, while fear is held to be a subjective feeling, this fear must not all lie in the mind.

    [34]    Chan v MIEA (1989) 169 CLR 379.

18. This requirement that the notion of 'fear' in Article 1A should contain both an objective and subjective element has remained unchanged in the opinions of the High Court. For example, the Court reaffirmed this principle from Chan in MIEA v Wu Shan Liang & Another[35] and in MIEA v Guo Wei Rong & Another[36]. In Guo, having cited Mason CJ and McHugh J for approval, the Court stated, “An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a “well-founded” fear. This requirement adds an objective element to the need that an applicant must in fact hold such a fear on a subjective level.

    Xenophobic violence and discrimination

    [35]    MIEA v Wu Shan Liang (1996) 185 CLR 259.

    [36]    MIEA v Guo (1997) 191 CLR 559.

19. In his written and oral evidence, the applicant claimed he struggled to be accepted in South Africa because of discrimination and bullying which he found demeaning. He said South Africans believe their jobs and women are taken by foreigners which made him, and his family feel insecure. He asserted that just applying for protection from another country is enough to suffer persecution in South Africa. The applicant is afraid of returning to South Africa due to the xenophobia and has no confidence in protection mechanisms within the country. The applicant gave specific examples to the Tribunal of difficulties he faced in South Africa. He said he was not accepted by the local community because he and his family did not speak the local language. The applicant described being fearful of other African men on the street. He claimed that in 2005 he had taken a car for repairs, but his vehicle was “destroyed”. The applicant did not explain what he meant by “destroyed”. He went on to claim the mechanic and his friends threatened him with a gun and did not return the car. He stated his belief that he was treated this way because he was a foreigner. Additional claims made by the applicant were that his church was forcibly closed, and he was threatened with violence if he did not leave the area. In his written response to the Tribunal’s invitation to comment or respond to information, the applicant alleged his possessions in his church were stolen and the building was burned down. He claimed the media reported that the church was destroyed by robbers which was false and that police failed to investigate the incident. The applicant also made claims that due to threats and violence related to his church and Ministry work, he would not be able to continue preaching in certain areas of South Africa. In this regard he referred to advice given to him by a church associate that he should not go to areas that he had wanted to travel to.

20. The Tribunal accepts the applicant may have been verbally harassed and threatened as described while living in South Africa. He may also have experienced discrimination as he has claimed. The Tribunal agrees, based on the above country information, that xenophobia has been and remains a persistent problem and that non-native Africans from other parts of the continent have been attacked, had their property stolen and destroyed and, in some instances, lost their lives during violent flare-ups across the country. Notwithstanding this, the Tribunal is not satisfied that the applicant or the secondary applicants face a real chance of falling victim to a physical attack based on xenophobia if they return to South Africa. The applicant did not provide any evidence of property damage that he claimed had occurred, forcing him to move from Motherwell to the city of Port Elizabeth. This is despite claiming there were news report about the destruction of his church. The Tribunal was unable to find any such media reports from the period when the applicant was still in South Africa.

21. Unlike recent refugees and migrants, the applicant is a South African citizen of many years, holds a South African passport and lived in South Africa for from 1997 to 2012. Country information indicates that just having applied for protection from another country does not necessarily make a person a target of threats or harm. It is more likely to affect recent immigrants who are identifiable as such by their socio-economic status and where they are residing. There is no verifiable evidence that the applicant suffered any physical violence because of his race or ethnicity. The applicant was able to find and maintain work as a pastor and was married to a native-born South African. Although he claimed to have been discriminated against by landlords, he nevertheless was able to secure accommodation widely and often. The Tribunal considers his circumstances to be quite different to those of other non-native Africans who have, according to the above country information, reportedly been most at risk of xenophobic attacks due to them being either undocumented, resident in poor and marginalised areas and dependent on informal trade or small business for an income.  The Tribunal does not consider the applicants fall within the category of persons who are more likely to fall victim to violent xenophobic attacks.  The Tribunal considers the possibility of the applicants being seriously harmed and/or killed in a xenophobic attack in South Africa, and the children encountering hardship because of this, to be remote in the circumstances despite that xenophobia remains a problem in the country. Regarding the applicant’s claim that he was advised not to travel to areas where he had wanted to preach, the Tribunal notes there are dangerous areas where generalised violence may occur in every region of South Africa. Such advice does not demonstrate the applicant is likely to be persecuted due to his race or ethnicity if he returns to South Africa.

22. The Tribunal has also considered the risk of harm to the applicants arising from other non-violent forms of xenophobia, such as verbal abuse, harassment and social ostracism as claimed.  In this respect, the Tribunal accepts the applicant may have been singled out and harassed on occasion in the past on account of him not appearing South African and that he might have faced discrimination from landlords and others in the community. The Tribunal also accepts that he may have been perceived as a foreigner when he first emigrated to South Africa and may have had difficulty accessing services and being accepted by the local community. The Tribunal understands events like these occur and are motivated by ill-feelings toward non-native South Africans for the reasons discussed in the country information outlined above. However, the applicant lived in South Africa for approximately 15 years and referred in his evidence to having a congregation of community members at his church and support from another church with a religious mentor. He gave examples of assistance he received such as supporting his children to attend a different school. The Tribunal accepts that the secondary applicants may have been subjected to discrimination to some extent in South Africa because of their father being from Congo and their features and surname perhaps being different to native born children. The Tribunal also accepts the applicants could again encounter verbal insults and even some societal ostracism in South Africa on account of xenophobic attitudes which exist in the community and within segments of the police force.  The Tribunal accepts such treatment may well be upsetting and that the applicant does not want his children’s lives to be marred by such treatment.  However, the Tribunal does not accept that any harm arising from the behaviour of others will be sufficiently serious as to amount to serious harm to either the primary or secondary applicants. 

23. The applicant provided a list of addresses in the Port Elizabeth and Motherwell areas of South Africa that he said were places he had lived in the last five years. His explanation was that when he rented accommodation, he was made to leave after paying a deposit. At the same time, the applicant gave evidence that on occasions he wanted to move but did not have the funds to do so and had to complete a lease. The Tribunal found the applicant’s evidence to be contradictory in this respect and notes in his original application, the applicant provided details of his previous addresses that indicate he remained at some locations for several years, most notably when he was a more recent immigrant. The Tribunal is unable to place weight on a written list of addresses as evidence the applicant had to relocate constantly due to harassment based on his race or ethnicity. If the applicant does have difficulty with accommodation in future, or has to move because of unethical conduct by landlords, it would not amount to serious harm.

    Traditional Circumcision

24. The Tribunal considered the applicant’s claims that his former wife is from the Xhosa tribe that practices traditional male circumcision, and he wants to protect his son from undergoing the ritual. The Tribunal is prepared to accept the applicant’s former wife is from the ethnic group in South Africa whose young men undertake rituals that include circumcision for social and cultural reasons.  However, as outlined in this decision, South Africa has legislation to protect the wellbeing of children and young people which includes traditional circumcision. The applicant’s former wife provided a statement at the time of application indicating she does not support her son taking part in the practice, and it has caused conflict with her family. The applicant’s son, [the third-named applicant] is currently [age] years old and while he could take part in traditional practices if he chose to, it would require his consent as a participant. The courts in South Africa have found that no one can be forced to submit to circumcision without his consent. For these reasons, the Tribunal is not satisfied [the third-named applicant] is at risk of serious harm in South Africa.

    Threats from the applicant’s former wife’s family members and others in South Africa

1. The applicant alleged his spouse, from whom he is separated, has prominent family members and friends in South Africa, in the police force and the ANC. He claimed to have spoken out about South Africa’s behaviour towards other nationalities and believes he will be stopped at the airport and questioned and could be assaulted or killed in prison. According to the applicant, his former wife’s family did not approve of his marriage and did not accept she wanted to marry a “foreigner”. The applicant stated he had been separated for the last five years but is not yet divorced. His evidence was that his former wife is still in Australia and is making her own application for a visa. He claimed to have received friend requests and messages from people associated with her for threatening reasons.

2. The Tribunal considered the applicant’s claims but is not satisfied he is at risk of serious harm from his former wife’s family in South Africa. The applicant has been absent from South Africa since 2012 and according to him, separated for five years. He was married in 2003 and had two children with his wife. He did not report any conflict with his wife’s family during his marriage. There would be no reason for the applicant to associate with his ex-wife’s family in South Africa and the Tribunal is not persuaded the applicant would be detained and jailed without cause. It follows that the Tribunal is also not satisfied the applicant would be harmed or killed in jail.

3. Regarding the applicant’s claim that he had “spoken out” about the behaviour of South Africans towards other nationalities, the applicant did not explain when or how he had voiced an opinion about the subject, or why he believes he will be stopped at the airport and questioned. The Tribunal is not satisfied on the evidence that the applicant has a profile in South Africa that will lead him to be detained by authorities if he returns.

4. For the above reasons, the Tribunal does not accept that there is a real chance the applicants will suffer serious physical or emotional harm if they return to South Africa now or in the reasonably foreseeable future due to xenophobia or because they look and speak differently to native South Africans or have different surnames to South African born people.  Nor does the Tribunal accept they will suffer significant harm for these reasons.

   Complementary protection

5. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

6. For the reasons set out above the Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm if they are removed from Australia to their home country either from society at large, or any individual person now or in the reasonably foreseeable future.  In MIAC v SZQRB The Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[37] The Tribunal accepts that the test for ‘real chance’ is the same as that for ‘real risk’.

   [37]    MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

7. ‘Significant harm’ is defined as follows: the person will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. For the reasons outlined in this decision, the Tribunal is not satisfied the applicants will suffer significant harm as defined due to the primary applicant’s Congolese ethnicity, his status as an immigrant in South Africa, or for any other reason. The Tribunal does not accept the primary applicant is at any greater risk of being arbitrarily deprived of his life than any other South African. There is no evidence the death penalty will be carried out on him for any reason, or that he would be subjected to torture. The Tribunal did not accept the applicant has a profile in South Africa that would lead to him being arrested or detained by authorities. The circumstances and potential circumstances of the applicants in South Africa do not indicate they are at risk of being subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment.

8. The Tribunal considered whether any discrimination the applicants may encounter in Malaysia due to the primary applicant’s Congolese ethnicity, and the secondary applicants being identifiable as the children of a non-native South African would amount to significant harm. Although the applicants may face a level of discrimination in South African society, the Tribunal finds it would not result in significant harm as defined in the Act.

9. Therefore, for the reasons discussed above the Tribunal is not satisfied that there is a real risk that the applicant will be suffer significant harm if they return to South Africa.

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

    DECISION

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

    Wendy Banfield
    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.

    …