1724015 (Refugee) - [2022] AATA 4774

1724015 (Refugee) [2022] AATA 4774 (13 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724015
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Scott Clarey
DATE:13 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2022 at 11:32am
CATCHWORDS
REFUGEE – protection visa – South Africa – social group – white farmers – robbed and assaulted on stepfather’s farm – race – white Afrikaans – crime and political corruption –no family in South Africa – vague evidence – generalised violence – applicant not restricted to being a farmer – can find work in his trade – can access healthcare – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 a decision made by a delegate of the Minister for Home Affairs on 7 September 2017 to refuse to grant [the applicant]), a citizen of South Africa, a protection visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. [The applicant] was interviewed by the Department on 4 September 2017.
On 4 October 2017, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record. [the applicant] appeared before the Tribunal (via videoconference) on 20 May 2022 to give evidence and present arguments. [The applicant] was not represented in relation to the review.
In [the applicant]’s protection visa application, he stated that he is a [age]-year-old South African national born [in] Free State Province, South Africa on [date]. He stated he was not religious and belonged to the ‘Caucasian’ ethnic group. At time of protection visa application, [the applicant] stated he was an [apprentice]. He claimed he is one of three brothers, one currently residing in South Africa and one residing in Australia. His stated his father resides in [another country]. As per his protection visa application, [the applicant] completed primary school to Year 10 in South Africa, before completing years 10 to 12 in Western Australia. He has completed several Certificate 2 qualifications while residing in Western Australia, including in [named] trades. I accept these biographical details to be true.
[The applicant] first arrived in Australia [in] June 2009 on a tourist visa (Subclass TR-676) granted to him on 9 June 2009, valid until 2 March 2010. He first departed Australia once [in] July 2009, returning to Australia [in] June 2010. He departed again [in] July 2010 returning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1724015 (Refugee)

Details

AGLC: 1724015 (Refugee) [2022] AATA 4774
Case: [2022] AATA 4774
Decision Date: 13 October 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to fear harm upon return to South Africa. The applicant, who identified as a white Afrikaans individual, alleged he had been robbed and assaulted on his stepfather's farm and feared future harm due to his race, lack of family and financial support in South Africa, and generalised violence and political corruption. The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he faced persecution under the Refugees Convention or significant harm under the complementary protection provisions.

The court considered the applicant's claims in light of available country information regarding South Africa, including reports on violent crime and the situation of white farmers. The applicant's assertion of being unable to access employment, healthcare, or housing was examined, as was the claim that the South African government offered no protection to white South Africans. The court also had regard to the applicant's mental health, as evidenced by a letter and care plan from a medical practitioner.

Ultimately, the court found that the applicant had not established a well-founded fear of persecution under the refugee criterion. It was not satisfied that the applicant would be unable to access medical services or obtain treatment in South Africa, nor that his alleged mental health condition was relevant to the review. Furthermore, the court determined that the harm the applicant claimed he would suffer, such as destitution and an inability to gain employment or subsist, did not amount to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined by the Act. Independent country information suggested that white South Africans did not face specific challenges in accessing employment, education, health, or housing, and that any congestion or underfunding of services was due to the general economic state rather than an intention to cause harm. Consequently, the court affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons set out below, I have concluded that the decision under review should be affirmed. Claims and evidenceEvidence before the Department I have had regard to information on the Department’s file and the Tribunal’s file. I have considered various historic submissions to the Department that [the applicant] has submitted in support of his claims including:· A letter (dated 17 February 2017) from Dr [A], relating to [the applicant]’s mental health.· An associated ‘mental health care plan’ from Dr [A], dated 18 February 2017. [The applicant] set out his claims for protection in his protection visa application form as follows (unedited):Q88: I am seeking protection in Australia so that I do not have to return to: A:SOUTH-AFRICAQ89: Why did you leave that country/those countries?A:I LEFT SA AT THE AGE OF [age], BECAUSE MY MOTHER SADLY PASSED AWAY AFTER A LONG AND PAINFUL BATTLE WITH [AN ILLNESS]. AFTER HER PASSING I WANTED TO LEAVE SOUTH AFRICA BECAUSE I NO LONGER HAD ANY FAMILY IN THE COUNTRY AND I WANTED TO BE WITH MY FATHER WHO HAD MIGRATED TO AUSTRALIA TO ESCAPE THE DANGERS WE FACED BEING FRAMERS IN SA. I HAD WANTED TO MIGRATE TO AUSTRALIA WITH MY MOTHER AND FATHER TOGETHER, BUT UNFORTUNATELY DUE TO MY MOTHERS TERMINAL ILLNESS SHE WAS UNABLE TO LEAVE SA AND I CHOOSE TO STAY WITH HER IN HER FINAL Q90:What do you think will happen to you if you return to that country(s)?A:IF I RETURN TO SOUTH-AFRICA I WILL HAVE NO WHERE TO LIVE, NO FAMILY, NO INCOME, NO FINANCIAL SUPPORT AND WILL BE HOMELESS WITH NO WAY TO SUPPORT MYSELF WHICH WOULD LEAD TO MY LIFE DETERORIATING VERY RAPIDLY. I ALSO FEAR FOR MY MENTAL STATE IF I AM FORCED TO LEAVE AUSTRALIA AS I AM ALREADY SUFFERING DEPRESSION DUE TO MY CURRENT IMMIGRATION SITUATION. Q91: Did you experience harm in that country/those countries? A:WHILE LIVING ON OUR FAMILY FARM MY MOTHER AND I WERE VICIOUSLY ROBBED AND ASSAULTED BY A GROUP OF BLACK SOUTH-AFRICAN MEN. THEY FORCEFULLY ENTERED OUR HOME AND THEN BRUTALLY ASSAULTED US BEFORE TYING IS UP AND THREATENING US AT GUN POINT. THIS RESULTED IN ME NOT ONLY EXPERIENCING PHYSICAL DAMAGE, BUT ALSO LONG LASTING PHSYCOLOGICAL DAMAGE. Q92: Did you seek help within the country/those countries after the harm? A:AFTER THE INCIDENT ON THE FARM OCCURRED WE CONTACTED THE LOCAL POLICE DEPARTMENT TO REPORT WHAT HAD HAPPENED. THEY TOOK OUR DETAILS DOWN AND TOLD US THAT THIS WAS A COMMON OCCURANCE AND THAT THEY DID NOT HAVE THE MAN POWER OR RESOURCES TO DO ANYTHING ABOUT IT. Q93:Did you move, or try to move, to another part of that country/those countries to seek safety?A:MY MOTHER AND I LEFT OUR FARM BEHIND AND MOVED TO THE NEAREST TOWN. EVEN AFTER MOVING TO TOWN AND BURGLAR PROOPING THE ENTIRE HOUSE AND GETTING MORE GUARD DOGS, WE STILL HAD PROBLEMS WITH “THEM” TRYING TO GET INTO OUR HOUSE. Q94:Do you think you will be harmed or mistreated if you return to that country(s)?A:DEFINITELY, RETURNING AS A HOMELESS WHITE FARMER WOULD RESULT IN ME BEING AT LEAST SERIOUSLY HARMED OR EVEN MURDERED. MOST ALL BLACK SOUTH-AFRICANS POSE A SIGNIFICANT RISK TO MY PERSONAL WELL BEING IF I AM TO RETURN TO SA. UNDER THE NEW ANC GOVERNMENT THERE IS NOW A STRONG, MOVEMENT PROMOTING VIOLENCE AGAINST WHITE PEOPLE. WHITE SOUTH-AFRICANS NO LONGER HAVE PROTECTION FROM THE GOVERNMENT.Q95:Do you think the authorities of that country/those countries can and will protect you if you go back?A:THE CURRENT ANC GOVERNMENT HAS NO SYMPATHY TOWARDS WHITE SOUTH-AFRICANS AND THE POLICE ARE CORRUPT. AND ARE MOSTLY BLACK SOUTH-AFRICANS WHO HOLD A STRONG RESENTMENT AND HATRED TOWARDS WHITE SOUTH AFRICAN PEOPLE.Q96:Do you think you would be able to relocate within that country(s)? A:I WOULD NOT BE ABLE TO RELOCATE. I HAVE NO FAMILY OR FRIENDS THAT I COULD DEPEND ON. IALSO WILL HAVE NO WORK, SOURCE OF INCOME OR ANYWHERE TO LIVE!

Decision

Reasons for decision

Given the available evidence, I am not satisfied that [the applicant] has a medical condition (including any condition relating to his mental health) that is relevant to the review at hand nor am I satisfied that [the applicant] would be unable to access medical services and obtain medical treatment in South Africa for any reason if it were required. I do not consider that [the applicant] was hindered by his health in his ability to give evidence at the hearing.Conclusion – refugee grounds Having considered [the applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to South Africa for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).Does the applicant meet the complementary protection criteria? Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I will now consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to South Africa, there is a real risk that he will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she 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. In considering whether there is a real risk that the applicant would suffer significant harm if returned to South Africa, I have noted that 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 relation to the ‘refugee’ criterion.[25] [25] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]. I note that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I am not satisfied that the harm [the applicant] claims he would suffer – destitution and ability to gain employment or subsist – would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Independent country information, as noted above, suggests that white South Africans do not face specific challenges or threats, including a lack of access, with regard to employment, education, health or housing.[26] Further, although hospitals and other medical services in South Africa can be congested and may be underfunded, this is not because of any intention of the government. Rather, the quality and provision of various services are impacted by the state of the general economy in South Africa rather than an intention to cause harm.[26] Immigration and Refugee Board of Canada, ‘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 any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

Ratio Decidendi

Legal Principle Established

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.Country information I have considered [the applicant]’s claims against various sources of country information relating to the situation in South Africa, summarised below. I note that the Australian Department of Foreign Affairs and Trade (DFAT) does not have a country information report on South Africa, therefore I have had regard to various other relevant sources of country information, including a DFAT report titled ‘Situational Update: South Africa Farmers’, published on 31 January 2021. As noted above, I have also had regard to various country information submissions made to the Tribunal by [the applicant]. Violent crime in South Africa Chronic violent crime is endemic in South Africa according to the DFAT Situational Update Report (dated 31 January 2021): There were 21,325 murders in South Africa between 1 April 2019 and 31 March 2020 – up from 20,022 the year before – a 1.4 per cent increase.1 On average, 58 people are murdered in South Africa each day, representing a murder rate of 36 people per 100,000 people – well above a global average of seven people per 100,000. In 2018, Police Minister Bheki Cele described the country’s murder rate as close to that found in a war zone, and criminologists agree that violent crime is pervasive in South Africa and affects every sector of society.[1][1] Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021. On 3 June 2022, the South African Police Service released crime and policing data that showed an alarming 22% surge in murder, equating to 40 people per 100,000 residents or seven times the global average. Other categories of serious violent crime have also increased.[2] This places South Africa third as the most violent and dangerous place on earth and getting worse, notably with high rates of assaults, rape, homicides, and other violent crimes.[3][2] Institute for Security Studies, New SA crime trends are bleak, but at least we have the data, 13 June 2022. [3] World Population Review, Crime Rate by Country 2022, 2022.