1719040 (Refugee)

1719040 (Refugee) [2021] AATA 2070 (27 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1719040
1930148

COUNTRY OF REFERENCE: South Africa
MEMBER:Tania Flood
DATE:27 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 27 May 2021 at 11:54am
CATCHWORDS
REFUGEE – protection visa – South Africa – ethnicity – children born in Australia to South African mother and father originally from another African country – father’s experience of xenophobic discrimination and fear of harm by xenophobic violence and for role as informant to public office – fear of second applicant suffering harm by sexual violence – financial hardship – parents’ and older sibling’s protection visa applications refused and affirmed – father’s physical health and ongoing treatment – country information – general crime and xenophobic discrimination and crime – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 and 8 October 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of South Africa, applied for the visas on 27 October 2015 and 14 February 2019 respectively. The visas were refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm on return to South Africa, for reasons relating to criminal violence and xenophobic violence in connection with his parents’ mixed racial marriage. In respect of the second named applicant the delegate was also not satisfied that there is a real chance or a real risk she will suffer serious or significant harm for reason of being a young female.
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). 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), 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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants will suffer serious harm if they return to South Africa now or in the reasonably foreseeable future for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to South Africa there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Summary of claims
Applicant 1
According to information contained in his application for a protection visa, the applicant is a [Age 1]-year-old citizen of South Africa. He was born in Australia to South African parents. He is of mixed South African and [Country 1] ethnicity.
The applicant’s father arrived in Australia [in] October 2011 as the holder of a [Tourist visa]. He lodged a protection visa application on 5 January 2012. The claims for protection which were made at the time included that he would face harm in a xenophobic attack and for reason of his former involvement with the [Country 1 separatist movement]. The application was refused by the Department, and the decision was affirmed on review by the former Refugee Review Tribunal. He made an application to the Federal Court for judicial review, but subsequently withdrew the application on 13 June 2014.
The applicant’s mother and older brother arrived in Australia [in] December 2012 and lodged a protection visa application on 6 December 2012. The claims for protection included that she and her children would be discriminated against and attacked due to her having married a foreigner and fear of harm arising from her conversion to Islam. The application was refused by the Department and the decision was affirmed on review by the former Refugee Review Tribunal. Their appeal to the Federal Court was unsuccessful.
The applicant lodged an application for a protection visa on 27 October 2015. On 11 August 2017 a delegate of the Minister refused the protection visa application.
The following claims were made on the applicant’s protection visa application forms on his behalf:
His parents came to Australia to seek protection. His mother is a native South African. His father was targeted as he was born in [Country 1] and is not a native South African. In 2008 his father left the country when xenophobic attacks broke out, leaving his wife and the applicant’s brother behind.
Non-native people and Africans from other parts of Africa are attacked and discriminated against in South Africa on a daily basis.
As a child born to a [Country 1] father, he would ‘never feel like a normal child’ in South Africa. He will not be treated the same as ‘full blood South Africans’ in public and at school.
He will not be welcomed in South Africa by most people who hate non-native South Africans, because he looks more like a [Country 1 person] than a native South African.
It is ‘futile’ to seek help in a country where prominent people, such as politicians, have ‘joined in to discriminate against other Africans’. During the Apartheid rea, Mr Mongusutu Butelezi made public comments against non-natives stating that they should ‘pack their bags and go home’. It is claimed that such ‘irresponsible comments’ always trigger attacks on foreigners.
Xenophobic attacks continue to happen throughout the country and there are no safe areas for non-native Africans, as there are locals who attack in all provinces. It is claimed that law enforcement agencies, including the police, are involved in the attacks and ‘turn a blind eye’ when they occur.
His parents could not relocate to his father’s country of birth because his father lost his [Country 1] citizenship when he became a naturalised South African. They do not have a right to reside in any other country.
Applicant 2
According to information contained in her application for a protection visa, the applicant is a [Age 2]-year-old citizen of South Africa. She was born in Australia to South African parents. She is of mixed South African and [Country 1] ethnicity.
The applicant lodged an application for a protection visa on 14 February 2019. On 8 October 2019 a delegate of the Minister refused the protection visa application.
The following claims were made on the applicant’s protection visa application forms on her behalf:
She was born in Australia. Her father was born in [Country 1]; he lost his [Country 1] citizenship when he became a citizen of South Africa.
Her father was targeted because his ethnicity was recognisable. The authorities were not in situation to protect him.
Due to competition for limited resources, foreigners are perceived to have taken employment opportunities that would have generally been given to South Africans. This has resulted in xenophobic attacks against foreigners in South Africa since 2008. The upsurge of violence against foreign nationals has led to deaths and displacement.
The applicant’s life will be threatened and she might be killed or sexually assaulted because there is a perception in South Africa that if you are sexually intimate with a young virgin you will be cured from diseases like AIDS.
The authorities cannot protect her as thousands of people have been killed in xenophobic attacks and the authorities are helpless.
The attacks are widespread and there is no safe area within the country.
Documents submitted to the Department
The following documents were submitted to the Department in support of the review application in respect of Applicant 1:
·Copy of a Refugee Review Tribunal research response dated 3 December 2008 in relation to discrimination and violence against non-South African blacks including refugees in Plettenberg Bay.
·Copy of a report by the UNHCR titled ‘Protection From Xenophobia An Evaluation of UNHCR’s Regional Office for Southern Africa’s Xenophobic Related Programmes’ (undated).
·Copy of a report by the Immigration and Refugee Board of Canada dated [April] 2007 and titled ‘[Country 1]: [Citizenship laws]’
·Copy of a report by the US Department of State titled ‘South Africa 2014 Human Rights Report’.
·Copy of the applicant’s birth certificate indicating that he was born in Australia on [Date].
·Copy of the bio pages from the applicant and his parents’ passports.
·Copies of news articles published by Al Jazeera and Save the Children in relation to xenophobic violence in South Africa.
In respect of the second named applicant, her father submitted a copy of a report by Human Rights Watch South Africa and copies of news articles on the topics of rape against children, and xenophobic violence in South Africa.
Documents submitted to the Tribunal
On 30 April 2021 the applicant’s representative made a submission to the Tribunal. The submission includes a statement by the applicant’s father, [Mr A]. [Mr A] stated that he left South Africa in 2008 due to xenophobic attacks against foreigners. He stayed in [Country 2] for three years. Every six months, he returned to South Africa for a week to see his family. During these visits, he would stay inside the house out of fear that he would be recognised. He left [Country 2] in 2011 and spent one week in South Africa, and two weeks in [Country 1], where he went to visit his parents’ grave as he was unable to attend their funerals. He came to Australia in 2011 and applied for a protection visa in 2012. The visa was refused and the decision was affirmed by the RRT.
[Mr A] stated that he had lived in South Africa for more than ten years and worked as a street trader, and then volunteered to assist [an official body] in East London as an [Occupation 1]. He befriended [Mr B], an [official] from East London, and provided information to the [Office] about illegal non-citizens. He then completed [training] and was employed as [an Occupation 2] at [Workplace 1] in East London, and eventually managed the business. He stated that other employees were jealous of him and he became the target of xenophobic attacks. He stated that before the xenophobic attacks began, [Mr B] was forced to reveal his sources of information. He then advised the applicant to leave the country.
[Mr A] stated that the xenophobic attacks are still happening in South Africa and that he and his family will be killed if they return to the country. He also stated that he does not want his children to be subjected to discrimination and persecution because of their heritage or to grow up amidst the ‘racial hate’, and ‘xenophobic and criminal violence’ that is prevailing in that country.
The submission includes six links to internet websites providing information on the ‘unsafe nature of South Africa for kids.
The following documents were also attached to the submission:
A Statutory Declaration by [Ms C] dated 30 March 2021. [Ms C] stated that she is a qualified [Occupation 3]. She has known [Mr A] since 22 November 2017 and is his workplace supervisor, at [Employer]. She stated that the applicant has spoken about his experiences in South Africa as a target of ‘extreme personal and institutional racism and violence’. She stated that the political situation is unstable in South Africa. She believes that it would be unsafe for the applicant to return to South Africa as his two youngest children were born in Australia and ‘know no other country’. She stated that it would be traumatic for them to adjust to a new country.
Letter of support by [Mr D] dated 20 April 2021. [Mr D] stated that he has known [Mr A] and his family for over 9 years. He worked with [Mr A] professionally at the [Organisation] and they have remained friends. [Mr D] submitted that [Mr A] is ‘hardworking, conscientious and efficient in his approach to both education and training, and employment.’ He stated that [Mr A] and his family have important connections in the community, are involved in African Australian community events, and are ‘settled and flourishing in Sydney’. [Mr D] stated that there is continued political and inter-ethnic violence and prejudice towards people who are not originally from South Africa. He believes that if [Mr A] and his family are returned to the country, their physical and mental health will suffer. He further stated that his two youngest children will be adversely affected by the displacement, having lived in Australia since birth.
Country Information
Xenophobia
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.
Targets and motivation behind xenophobic violence
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”’[1]
[1] 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
In terms of the primary motivation behind xenophobic violence, a September 2019 The Washington Post article says that frustrations about South Africa’s struggling economy and high unemployment have been linked with immigration.[2] 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.[3] 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’.[4]
[2] ‘What’s driving anti-immigrant violence in South Africa? It’s not just economic anxiety’, The Washington Post, 10 September 2019
[3] “What Research Reveals about Drivers of Anti-immigrant Hate Crime in South Africa’, Inter Press Service, 9 September 2019.
[4] ‘South Africa’s problems are not caused by foreigners’, Institute for Security Studies, 5 September 2019
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.[5] 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.[6]
[5] Country Reports on Human Rights Practices for 2018 – South Africa, US Department of State, 13 March 2019
[6] ‘South Africa – How common are xenophobic attacks?’, BBC News, 7 April 2019
Extent of xenophobic violence
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’[7] 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”.[8]
[7] ‘Freedom in the World 2019 – South Africa’, Freedom House, 2019
[8] ‘South Africa’s politicians feed anti-foreigner violence’, Deutsche Welle, 2 April 2019
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.[9] 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”.[10]
[9] ‘South Africa: How common are xenophobic attacks?’ BBC News, 7 April 2019
[10] ‘Xenophobic violence in South Africa: 1994 – 2018: an overview”, Xenowatch, March 2019

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.[11]
[11] Ibid.
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.[12] 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. NGOs reported migrants were illegally evicted and violence against foreign truck drivers continued. 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.
[12] Country Reports on Human Rights Practices for 2018 – South Africa’, US Department of State, 13 March 2019
Other information indicates that refugees, asylum seekers and poor migrants may be more vulnerable than other foreigners. [13]
[13] ibid
Incitement by politicians
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.[14]
[14] Freedom in the World 2019 – South Africa’, Freedom House, 2019
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.[15]
[15] Country Reports on Human Rights Practices for 2018 – South Africa’, US Department of State, 13 March 2019
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.[16] 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 affected communities to quell violence and restore order.[17] 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.[18]
[16] ibid
[17] Ibid
[18] 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
A 2015 South African Human Rights Commission report refers to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent.[19] 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.[20] 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.
[19] Safety and Security Challenges in Farming Communities, South African Human Rights Commission, 27 November 2015
[20] South Africa 2019 Crime and Safety Report, US Department of State, 6 March 2019
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.[21]
[21] 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
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.
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.
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.
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.[22]
[22] HRW, ‘South Africa Launches Plan to Combat Xenophobia and Racism’, 25 March 2019
Crime
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.[23]
[23] Africa Check, South Africa’s crime statistics 2019/2020
The South Africa 2020 Crime & Safety Report[24] 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.
[24] South Africa 2020 Crime & Safety Report (osac.gov)
Rape and gender-based violence
The US Department of States 2019 Human Rights report states that in most cases of rape and domestic violence, attackers were acquaintances of family members or the victim that, together with societal attitudes, contributed to a reluctance to press charges. [25]
[25] USSD, 2019 Human Rights Report, South Africa, 11 March 2020
The Africa Check (NGO) website noted in April 2020 that high rates of gender-based violence are a huge concern for South Africa. The police recorded 179,683 contact crimes against women in the 2018/2019 financial year, in the country’s most recent crime statistics. Of these 82,728 were cases of common assault and 54,142 were assault with the intent to cause grievous bodily harm. In that year, 2771 women were murdered, with a further 3,445 attempted murders. The police do not provide motives for these murders. There were 36,597 recorded cases of sexual offences against women. This is a broad crime category that includes rape, attempted rape, sexual assault and contact sexual offences.[26]
[26] Africa Check, ‘South African police record 2,300 gender-based violence…’ 9 April 2020
The Amnesty International 2019 Report on South Africa noted that gender-based violence continued to soar in the country.[27]
[27] Amnesty International, ‘South Africa 2019’, 2020
The Freedom House Freedom in the World 2020 report stated that despite a robust legal framework criminalizing domestic violence and rape both are grave problems. The South Africa Police Service reported 4,649 rapes during the 2018-2019 reporting period.[28]
[28] Freedom House, ‘Freedom in the World 2020’, South Africa, 2020
The South Africa Crime and Safety Report 2020 stated that South Africa has one of the highest rape rates in the world. While rapists do not specifically target foreigners, foreigners have been victims.[29]
[29] South Africa 2020 Crime and Safety Report, US Department of State
A number of reports from the early 2000’s refer to an increase in the rape of infants and children which was attributed in some quarters to a belief that this could cure HIV/AIDS. For example, a 2003 Guardian article quotes the manager of a counselling service for rape and HIV/AIDS victims in Nelspruit, the provincial capital of Mpumalanga, who linked an increase in child rape to this belief.[30] Similarly, an abstract for a February 2002 article in the The Lancet says that ‘the theory behind IR (infant rape) is related to the myth that intercourse with virgin infants will enable the perpetrator to rid himself of sexually transmitted diseases’.[31] An April 2002 The New Humanitarian article says that ‘among the theories advanced to explain the phenomenon (of child rape) is the apparently accepted myth that sex with a virgin cleanse one of HIV/AIDS. However, the article notes that there is controversy over whether this theory alone explains sexual assaults against children.[32] More recent sources have expressed scepticism about the link between the rape of children or virgins and belief in a cure for HIV/AIDS. For example a 2015 The Conversation article by an academic from The Open University in the UK says that not enough research has been undertaken to clarify or test different theories surrounding the rape of infants but that research he has undertaken calls into question whether belief in a cure for HIV/AIDS is a prime motivating factor.[33]
[30] ‘South Africans rape children as cure for AIDS’, The Guardian, 29 June 2003
[31] ‘Infant Rape in South Africa’, Pitcher, G and Bowley, D, The Lancet, February 2002
[32] ‘Focus on the virgin myth and HIV/AIDS’, The New Humanitarian, 25 April 2002
[33] ‘Explainer: behind the scourge of child rape in South Africa’, The Conversation, 29 June 2015
Tribunal Hearing
The applicant’s father consented to the Tribunal conducting a joint hearing in respect of the applications made on behalf of his two children. On 13 May 2021 he appeared before the Tribunal to give evidence in support of their claims. His testimony is summarised as follows:
He said that he was born in [Country 1] but moved to South Africa in about [Year] where he was granted citizenship. He said that under [Country 1] law his [Country 1] citizenship was forfeited at that time. He confirmed his wife is a South African citizen by birth and that his two children are South Africa citizens as well.
He said that he and his wife are both Suffi Muslims. He said his wife converted prior to them meeting. He described themselves as moderate Muslims who observe their daily prayers. He said his wife does not dress in Islamic attire. He said he attends the mosque on a Friday but his wife does not. He confirmed that they observed their faith in this manner without any problem in South Africa and continue to do so in Australia. He said they are raising the children as Suffi Muslims. He confirmed that he has no fear of harm for either himself, his wife or his children in South Africa on account of their religion.
He said that prior to departing South Africa the family resided in rented accommodation in East London. He confirmed that he arrived in Australia in 2011 and his wife and their eldest child arrived in 2012.
He said that in 2008 he feared for his life in South Africa and he departed to [Country 2] where he [did a job]. He said that he made six monthly return visits to South Africa for about one or two weeks duration to visit his family. He confirmed he was not harmed on any of those occasions but said this was because of the short duration of the visits and because he kept himself hidden. He said he last returned to South Africa in 2011 before making his way to Australia.
He said that he performed a variety of work in South Africa including being a street trader, a temporary [Occupation 1], [Occupation 2], cashier and managing supervisor and owner operator of his own [business]. He said his wife formerly worked in a [Workplace 2].
He said that he completed three years of a university degree in [Subject 1] in [Country 1] but did not complete his studies. He said he studied [Subject 2] in South Africa and while he completed the course of study he did not manage to get the qualification for financial reasons. In Australia he has completed a number of Cert IV courses. His wife completed her [Subject 3] training in Australia and is working in the profession. He is employed as [an Occupation 4].
He said he speaks [Language], French and English and his wife speaks Xhosa and English. He said their children only speak English.
He said he has a [Age 3]-year-old child from another partnership in South Africa. He said his wife’s parents and [siblings] live in South Africa. He said that initially they were not happy that she married a foreigner but that they have now reconciled and are in regular contact.
He said that his children look different to other South African children and do not have South African names and do not speak any South African language other than English. He said that South Africa is a xenophobic country and in general people do not like foreigners. He said that the children will be called names and rejected by society and such treatment will cause them physical and psychological harm. He added that if he is personally harmed his children will suffer hardship as a result.
He said his first child who is now [Age 3] is living in East London with his mother. He said he was persecuted in public school and now attends a private school. He said he doesn’t have any friends because he looks different to the other children. He said his mother moved with him to a suburban location in East London because of the way he was treated in the township.
He said that many foreigners rely on operating their own businesses and they are all vulnerable to attack not just those from [Country 1]. He said the police stop foreigners on the street to check documentation and even though he holds a South African passport he said he is not considered South African. He gave an example of once being detained over a weekend because he did not have his passport with him. He gave another example of being a victim of an armed hold up just prior to departing to [Country 2]. He said he wasn’t assisted at the scene of the crime by the police and when he went to the station to make a statement he was told that he wouldn’t have had that problem if he was in his own country.
As to why he left South Africa in 2008 he said he had formed a close relationship with a white immigration officer and shared information with him about the involvement of police officers with Nigerian drug syndicates. He said that when the officer was replaced in his role he provided a report which identified him. He said the officer told him to leave South Africa as soon as possible. He said that at the time he was the managing supervisor in a shop and that the people in the community were blaming him for arrests which were made based on information he provided to the [Office]. He said that the people he worked with were also jealous of his position. He said that when the 2008 xenophobic violence erupted those people turned against him. He confirmed he was never personally physically attacked in a xenophobic incident but the fear of this caused him to leave South Africa.
He said that his wife was also once assaulted after he departed South Africa by people looking for him. He said she reported it to the police but never heard from them again. He said she and their eldest child then moved to live with her mother in the Transkei.
He said the police share the community views about foreigners and have been observed taking part in looting of foreigners’ businesses and/or standing by and watching others do so.
As to how his [Age 2]-year daughter might be subjected to sexual violence he said that he has [Medical condition 1] and his condition is aggravated by stress. He said being forced to return to South Africa will be harmful for him physically and financially and he will not be in a good position to protect his daughter. He added that he would not have the same level of health care which is available to him in Australia which will exacerbate his condition.
As to the crime rate generally the applicant agreed that even native South Africans are subject to criminal acts. He said however that he fears xenophobic violence which can be perpetrated even by your neighbours. He said that even his own wife sometimes says he is not South African when they argue.
He said that he believes the people who targeted him in the past for being an informer are still in the community. He said he believes they will still want to harm him if he returns to South Africa.

He said that he is no longer [Country 1] and ceased his involvement with the [Separatist movement] many years ago. He said that he no longer fears harm in South Africa for this reason.
He said his children will be traumatised having to return to a country they do not know. He said they will not be able to live as freely as they do in Australia and they will always be living in fear of criminal violence.
He said he is also likely to encounter financial hardship in South Africa because there are no jobs. He said he has a responsibility to provide for his family and not being able to do so will cause him stress and could lead to his marriage breaking down.
Post-hearing submission
On 24 May 2021 the applicants father submitted a letter from [A/Prof E], Clinical Academic in [Specialisation] who has treated him since 2012. The letter states that the applicants father has [Details of medical condition 1] and requires long-term treatment with [Drug] daily and regular review with blood test and [an] ultrasound. The letter states he is at risk of [disease] progression and [Medical condition 2] especially if he is not maintained on treatment with regular monitoring. His risk of [Medical condition 2] is significantly increased due to the African origin of his virus and he requires six-monthly ultrasound screening as do all African-born people living with [Medical condition 1] over the age of 20. The letter opines that if he is returned to Africa, he faces significant risk that his treatment may be interrupted and his surveillance for [Medical condition 2] may not be performed adequately. This will cause him not only to be at increased risk of morbidity and mortality but will put a significant stress on his general health with his anxiety. In addition, he is currently about to participate in Australian-based clinical research to find curative treatment for [Medical condition 1] and his ongoing participation is essential for the data quality of these studies.
FINDINGS AND REASONS
Country of reference
Based on the available evidence, including copies of their passports, the applicants’ parents are both South African citizens. The first named applicant also held a South African passport which has since expired. The Tribunal is satisfied, in the absence of any information to the contrary, that the applicants are South African citizens. Based on the information before it the Tribunal also accepts the applicants have no entitlement to [Country 1] citizenship.
Fear the applicants’ will suffer xenophobic violence and discrimination in their own right and/or arising from harm inflicted on their father
During the hearing the applicants father maintained that he would be subjected to xenophobic violence if he is required to return to South Africa with his family and in the event that occurred his children, the applicants, would also suffer harm. He also said that the children will be called names, bullied and rejected by society on account of the high incidence of xenophobia in South Africa. He said the children will be easily identified because they look different, having one parent who is [Country 1], don’t have South African names and don’t speak any native South African languages.
When the applicant’s father was asked if he had personally met with any physical violence for reason of xenophobia in all the years he lived in South Africa, he at first said yes and referred to the abovementioned occasion when he was robbed at gunpoint before his departure to [Country 2]. Later in the hearing he conceded that he had in fact never been the victim of a violent xenophobic attack but said that the fear of such an attack occurring contributed to his decision to leave South Africa.
The Tribunal accepts the applicants’ father was robbed at gunpoint in the manner described in South Africa but nothing in his description of the event indicates that the attack was motivated by xenophobic sentiments other than his claimed belief that it was. Given the very high incidence of robbery and assault which reportedly occurs in South Africa the Tribunal considers it likely the applicant was the victim of a random act of criminal violence and robbery on that occasion. Indeed, this finding is supported by the applicant’s own admission that he never personally experienced a violent xenophobic attack in South Africa.
The Tribunal accepts, 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 applicants father faces a real chance of falling victim to a physical attack on the basis of xenophobia if he returns to South Africa.
As discussed with the applicants’ father during the hearing, unlike other refugees and migrants, he is a South African citizen of many years, holds a South African passport and lived in South Africa for [Number] years from [Year] to 2008 without suffering any physical violence for the reasons claimed. He was able to find and maintain varied employment and was and is married to a native-born South African. 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 father falls within the category of persons who are more likely to fall victim to violent xenophobic attacks and his past experiences support this conclusion. The Tribunal considers the possibility of the applicants’ father being seriously harmed and/or killed in a xenophobic attack in South Africa, and his children encountering hardship as a result of this, to be remote in the circumstances despite that xenophobia remains a problem in the country. Furthermore, as discussed with the applicants’ father, there is no evidence before the Tribunal to support that children, as young as [Age 1] and [Age 2], are subjected to violent physical assault because of the presence of xenophobic attitudes in South African society.
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 which is claimed by their father. In this respect, the Tribunal accepts the applicants father might have been singled out and harassed by the police on occasion in the past on account of him not appearing South African and that he might have once spent a weekend incarcerated for failing to immediately produce his South African passport when it was demanded. The Tribunal also accepts the applicant might have been subjected to name calling by the police and others and suggestions that he ought to go back to his own country. The Tribunal also accepts his wife might have been verbally insulted on occasion for reason of the fact she married a foreigner. The Tribunal accepts 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. The Tribunal also accepts that his child from a previous relationship may have been subjected to some verbal insults and taunts and socially ostracised to some extent in South Africa on account of the fact his father is [Country 1] and his physical features and surname are different to native born children. The Tribunal accepts the applicants’ father, and in time, as they mature in age, the children, may 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 applicants’ father does not want his children’s upbringing to be marred by such treatment. However, the Tribunal does not accept that any harm arising from such treatment will be sufficiently serious as to amount to serious harm to either the applicants’ parents or the children. In respect of the applicants, the Tribunal also considers it significant that they are very young and likely to be shielded, at least for the foreseeable future, from such behaviour by their parents.
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 on account of 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.
Fear the applicants will be harmed in connection with their father being a former informant to the [Office] in South Africa
The Tribunal accepts on the strength of his evidence that the applicants father may have worked for a period of time as a casual [Occupation 1] in East London and provided information about illegal activities of certain community members and some members of the police force to an [officer] he formed a working relationship with prior to his departure in 2008. The Tribunal accepts that when that [officer] vacated his position his successor had access to his files and records which might have implicated the applicants’ father in the said activities. The Tribunal accepts the [officer] might have advised him at that point in time to leave the area out of concern for his safety.
When discussing these events with the applicants’ father during the hearing he said that people from the local area turned against him back then because they were jealous of his employment success and when his involvement in such matters became public. He said this contributed to his decision to leave South Africa notwithstanding that he previously suffered no serious harm for this reason.

100. The Tribunal accepts the applicants’ fathers’ relationships with people in the community at the time might have become strained as a result of his past actions. However, the Tribunal is not persuaded that he was threatened with or encountered any serious harm for reason of being an informer prior to 2008. In forming this opinion, the Tribunal has placed much weight on his numerous return visits to South Africa from [Country 2] between 2008 and 2011. The Tribunal acknowledges his claimed reason for doing so, that is to visit his family, but is nevertheless not convinced that he would willingly place himself and/or his family at risk of serious physical harm or even death by returning to his local area in such circumstances. In any event, the Tribunal considers that any disgruntled persons affected by his actions had ample opportunity to harm him during those return visits but did not. It was claimed during the hearing that the visits were only for one to two weeks at a time and that he kept himself hidden but the Tribunal did not find his evidence in this regard to be persuasive. More importantly, as discussed with the applicants father the Tribunal is not satisfied that in 2021, some thirteen years after his role in these events was discovered, there is a real chance that any of the [persons] who were potentially implicated by the information he provided at the time remain in the East London area or would remain motivated to harm him. Moreover, as discussed with him during the hearing there is nothing before the Tribunal to indicate that his two children, aged [Age 1] and [Age 2] years of age, would be harmed in anyway in connection with his past actions.
101. The Tribunal acknowledges the claimed physical attack on the applicants’ mother in connection with her husband’s past role as an informer. As she chose not to attend the hearing the Tribunal was unable to discuss this with her. As the Tribunal is not persuaded the applicants’ father was threatened with or suffered any serious harm for reason of him being an informer it is not satisfied that his wife was attacked for this reason. As discussed with the applicants’ father the high crime rate in South Africa appears more likely to be the reason for this random attack.
102. Having considered the claims and the available evidence, the Tribunal does not accept that there is a real chance or a real risk the applicants’ father or the applicants themselves will face serious or significant harm on return to South Africa in connection with these past events.
103. For completeness, the Tribunal also discussed with the applicants’ father his previous claims to fear members of the [Separatist movement] and the [Country 1] Security forces in South Africa with a view to determining whether the children might be at risk of harm for this reason. The applicants father indicated that he no longer has cause to fear he would be harmed by either the [Separatist movement] or the [Country 1 security forces] on return to South Africa and the Tribunal accepts this. Moreover, it is not claimed and there is nothing before the Tribunal to support that the children would be harmed in connection with these events.
104. Similarly, noting the applicants’ mother’s past claims for protection included references to her conversion to Islam, the Tribunal asked the applicants’ father if he or his family fear harm in South Africa for any reason related to their Muslim faith and he responded they do not.
Claimed financial hardship
105. In his oral testimony the applicants father stated that he will encounter financial hardship as there is no work in South Africa. He said this will cause him stress and it will exacerbate his health condition and as a result he will be unable to provide for his family.
106. According to the medical information before the Tribunal if the applicants’ father’s treatment for [Medical condition 1] and surveillance for [Medical condition 2] is interrupted he will have an increased risk of morbidity and mortality and it will put a significant stress on his general health with his anxiety. While the letter from [A/Prof E] indicates that the applicants’ father’s treatment and surveillance regime may be interrupted if he returns to Africa it does not indicate the basis on which this assumption is made. According to a 2015 African Institute of Health & Leadership Development report the majority of South Africans access health services through government-run public clinics and hospitals. Furthermore, South Africa’s Constitution guarantees every citizen access to health services. However, everyone can access both public and private health services, with access to private health services depending on an individual’s ability to pay.[34] A webpage about healthcare in South Africa published by global health insurer Allianz Care says that the standard of healthcare in South Africa is considered to be the best on the African continent, particularly in urban and coastal areas. South Africa has guaranteed universal access to subsidised public health care, for all citizens, based on a sliding scale according to income. A National Health Insurance (NHI) initiative is in a pilot phase prior to being introduced across the country in a phased approach from 2016-2025.[35]
[34] ‘Minimum data sets for Human Resources for Health and the surgical workforce in South Africa’s Health System – A rapid analysis of stock and migration’, African Institute of Health & Leadership Development, September 2015
[35] ‘Healthcare in South Afric’, Allianz Worldwide Care, 2019
107. The Tribunal accepts the applicants father has [Medical condition 1] and requires ongoing treatment and surveillance for his condition. However, in light of the abovementioned information the Tribunal is not convinced that he will be unable to obtain the medical care he requires, that his health care will necessarily be interrupted or subsequently that his ability to provide for his family will be compromised if he is required to return to South Africa.
108. Based on his oral testimony the applicants father is maintaining full-time employment in Australia despite that he has [Medical condition 1] and as the Tribunal is satisfied he will be able to continue his treatment in South Africa it concludes he will once again be able to maintain employment there. While he claims there is no work in South Africa as discussed with him during the hearing the Tribunal does not accept this. While not without constraints and inequalities South Africa has one of the continent’s biggest and most developed economies[36] and the applicants fathers past experience in South Africa indicates that he was able to secure a variety of meaningful employment there in the past including working as [an Occupation 1], [Occupation 2] and cashier/supervisor/manager. When discussing this with the applicants’ father during the hearing he maintained that he only reached managerial level by working his way up the ladder. While this might be the case the Tribunal nevertheless considers he has qualifications, skills and experience which will enable him to find work in the future. In addition, the Tribunal notes the applicants’ mother is [Subject 3] trained and currently working in the [Subject 3] profession in Australia. The Tribunal considers it likely she will be able to utilise her qualifications and experience to also find work in South Africa. While the Tribunal accepts a return to South Africa is likely to present some challenges for the family initially it is not satisfied that the applicants parents will be unable to find any employment or that there is a real chance or a real risk the children will suffer serious or significant harm on account of financial hardship if they are return to South Africa.
[36] BBC News South Africa Country Profile
Fear of second named applicant suffering sexual assault
109. It is claimed that the second named applicant will be at risk of being sexually assaulted due to the myth that sexual intercourse with a virgin can cure HIV/AIDS and because of the prevalence of rape and sexual assault in general in South Africa.
110. During the hearing the applicant’s father became very emotional when discussing his fear of harm to his daughter. It was clear from his evidence that he genuinely fears for the safety of his young daughter and his fears are borne out to some extent by the country information outlined above.
111. Notwithstanding that there is reportedly some controversy over whether the theory that sexual intercourse with a virgin can cure HIV/AIDS (as outlined in country information provided by the applicant to the Department in respect of the second named applicant) the Tribunal accepts, based on the country information outlined above, that sexual assault and rape, including of children, is a serious problem in South Africa. However, as discussed with the applicant’s father, while the country information before the Tribunal supports that gender-based violence is a problem, it does not indicate that the problem is so widespread that all young girls are at risk of harm. Also, while foreigners have been victims of rape the country information does not strongly suggest that rapists specifically target foreigners or persons deemed to be foreigners.
112. Further, the Tribunal pointed out that his daughter is only [Age 2] years old and as he and his wife are acutely aware of the dangers it is likely they would not put their daughter in a situation which is likely to make her vulnerable to a sexual assault such as leaving her alone with only one other person. The applicant’s father responded that his own personal health is compromised because he has [Medical condition 1]. He said that returning to South Africa will cause him stress which will exacerbate his condition and therefore he will not be well placed to protect his daughter. For the reasons outlined above the Tribunal is not persuaded that his health will be compromised as a result of returning to South Africa.

113. While not discounting the seriousness of the problem, in this particular case the applicant is very young and if she returns to South Africa now or in the reasonably foreseeable future she will be under the watchful eye of her parents who the Tribunal considers will be in a position to secure employment, find suitable accommodation and to provide a relatively stable and safe living environment for her. In the circumstances, the Tribunal considers the chance of the second named applicant being seriously harmed, in the form of sexual assault or rape, on return to South Africa to be remote. The Tribunal is also satisfied that there is not a real risk that she will suffer significant harm for the reasons claimed.
Fear of harm due to the children being unable to adapt to their new surroundings
114. In his oral submissions and supporting evidence the applicants’ father claims that as his children were born in Australia and know no other country it would be traumatic for them to adjust to a new country. During the hearing the Tribunal put it to the applicants’ father that the children are still very young and it can be assumed they could quickly learn the local language and would have their parents to rely on for support during the initial period of readjustment. He responded that the children will definitely be traumatised and said that they will not have the same happy and carefree upbringing which they enjoy in Australia.
115. While the Tribunal accepts the children’s daily life experience in South Africa may not be as carefree as it is in Australia it is not persuaded that this will mean they will be unable to adapt to their new surroundings or that they will be traumatised as a result of having to. While they may not as yet speak a native language, they speak English which is widely spoken in South Africa and they have caring and capable parents who the Tribunal believes will be able to provide a supportive and secure environment for them on return. The Tribunal is not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm on return to South Africa due to an inability to adapt to their new surroundings.
Fear of applicants being seriously harmed due to high levels of criminal violence generally
116. The Tribunal accepts that the applicants parents and reportedly some of their friends have fallen victim to crime in South Africa but in the case of the applicants parents the Tribunal is not satisfied that the crime was motivated by xenophobia or race or any other refugee related reason but rather was due to the high level of crime in South Africa. The Tribunal considers any chance the applicants’ parents may face of being victims of criminal violence in the reasonably foreseeable future would also be due to the crime rate generally. The crime rate in South Africa is indisputably high but there is also taken not to be a real risk that an applicant would suffer significant harm where the real risk is one faced by the population of the country generally and not by the applicant personally. In the event either of the children was at risk of criminal violence in South Africa, which in the Tribunal’s mind they would not be due to their very young age, this would be the situation here.
117. The Tribunal has had regard to the submitted links to articles which it is submitted indicate that South Africa is an unsafe country for children. In the Tribunal’s view these articles support the already mentioned high rates of crime and gender-based violence in South Africa and do not raise issues for children which haven’t already been addressed in these findings.
CONCLUDING PARAGRAPHS
118. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
119. 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). For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa there is a real risk they will suffer significant harm for the reasons claimed or for any other reason. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
120. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
121. The Tribunal affirms the decisions not to grant the applicants protection visas.
Tania Flood
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 2070

27 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction