1719040 (Refugee)

This matter concerned an application for a protection visa by a child born in Australia to South African parents. The applicant's father, originally from another African country, had previously sought protection in Australia due to fears of xenophobic discrimination and harm, as well as his past role as an informant. The applicant's mother and older sibling had also had their protection visa applications refused and affirmed. The primary dispute before the Tribunal was whether the applicant would suffer serious harm if returned to South Africa, either due to their race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there was a real risk of significant harm as a necessary and foreseeable consequence of removal.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Act, which relates to the Refugee Convention, or alternatively, whether they met the complementary protection criterion under section 36(2)(aa). This latter criterion requires the Minister to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to the receiving country, the applicant faces a real risk of suffering significant harm. The Tribunal was required to consider the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act, and to assess the applicant's claims in light of relevant country information and guidelines.

The Tribunal considered the applicant's claims, including the father's past experiences of xenophobic discrimination and his former involvement with a separatist movement, as well as the mother's claims regarding discrimination due to marrying a foreigner and her conversion to Islam. The Tribunal also took into account Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments. After considering all the evidence and claims, the Tribunal concluded that the decisions under review should be affirmed, finding that the applicant did not meet the criteria for the grant of a protection visa.