1724015 (Refugee)
[2022] AATA 4774
•13 October 2022
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 affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 [in] September 2010. [The applicant] departed Australia once more [in] October 2010, returning [in] December 2010 which was his last arrival in Australia. On 23 February 2017, he lodged the protection visa application that is the subject of this review and was granted an associated bridging visa.
The following table relating to [the applicant]’s migration history is drawn from the delegate’s decision record. I discussed [the applicant]’s migration history with him at the hearing.
[June] 2009 Arrival in Australia of applicant on a Tourist (TR 676) visa. 2 March 2010 Employer sponsored (UC 457) visa granted as a dependant. [July] 2009 - [June] 2010 Return to South Africa of applicant. [July] 2010 - [September] 2010 Return to South Africa of applicant. [October] 2010 - [December] 2010 Return to South Africa of applicant. 31 August 2012 UC 457 visa cancelled due to withdrawal of sponsor. 26 September 2013 Application submitted for a Combined Partner (UK 820/BS 801), of which the applicant is a dependant. Refused: 4 August 2016. 25 August 2015 Review of UK 820/BS 801 visa cancelation decision submitted to Migration Review Tribunal (MRT). MRT affirms refusal decision on 16 December 2016. 21 January 2017 Ministerial Intervention request lodged by applicant. Not referred on 13 February 2017. 23 February 2017 Permanent Protection Visa application submitted.
On the basis of the copy of [the applicant]’s passport provided to the Department, I accept that he is a citizen of South Africa and that his identity is as he claims it to be. I accept that South Africa is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of South Africa there is a real risk he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
Claims and evidence
Evidence 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-AFRICA
Q89: 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!
I note that [the applicant] emailed the Department on 20 June 2018 and stated the following addressed to the (then) Minister for Immigration and Border Protection the Hon Peter Dutton MP (unedited):
Dear Sir,
My name is [deleted], my date of birth is [date]. I'm an immigrant from South-Africa and my South-African passport number is: [deleted].
Australia has been my home since 2010, I've been living and working in Australia since I was [age]. I moved to Australia to live with my father and start a new and positive live after my mother sadly passed away [in] August 2010. I commenced my Australian Apprenticeship in March 2014 as an [Occupation 1]. I'm in my fourth and final year of my [trade] Apprenticeship, unfortunately I can't complete the rest of my Apprenticeship due to not being on the correct Visa Subclass to enter into a training contract with the Australian Apprenticeship Office. At the moment [named company] is keeping my [trade] Apprenticeship position open, because they want me to complete my Apprenticeship as soon as possible. If this process takes too long they-have no other choice then to look for someone else to fill my position.I have been in a de facto relationship with my partner, [Ms B], for more than two years now. On the 20th-and-29th of September 2017 I've submitted my Partner Visa, it was not accepted by the Department of Immigration, because my partner was under the age of 18 at the time. I submitted my 3rd Partner Visa, when my partner turned [18]. It was an invalid Visa application, because I was a dependent applicant on my fathers [Partner] Visa which was refused on the 4th of August 2016. My father's Partner Visa was refused, because he was outside Australia when they had to-make a decision on his Partner Visa.
I've been in contact with [the] Perth Community Status Resolution. [They] mentioned that there's a Section 48 Bar in place whilst I remain in Australia. It's unfair that the Section 48 Bar is against my name because of my father's Partner Visa being refused whilst he was offshore. I was a minor, a dependent, I had no choice in what Visa to apply for.
Mr. Dutton with the greatest respect, I ask with tears in my eyes. Can you please help me and Substitute" the Section 48 bar that's in place, so that I can submit a successful Partner Visa application and continue on with my life. I want to continue my relationship with my partner, [Ms B], and I want to finish my [trade] Apprenticeship so that I can qualify as a trades person.
…
The Tribunal also received (and has had regard to) pre-hearing submissions from [the applicant] (on 19 July 2021) including a report titled ‘Farm attacks and farm murders in South Africa’ and a brief personal statement. The Tribunal also received further submissions (including a report and newspaper articles) via email from [the applicant] on 8 May 2022 relating to violent crime in South Africa (this issue is discussed at length below).
Evidence from the Tribunal hearing on 20 May 2022
[The applicant] stated that he was born on [date] [in] Free State province, South Africa. He attended various schools in South Africa, including a boarding school [and] later a [college]. [The applicant] stated that he is not religious but was nominally raised a Catholic. He said that he has never been married. [The applicant] stated that when he completed year [grade], he came to Australia in 2009 to visit his father, who lived here. [The applicant] travelled again to Australia in 2010 but said that in August that year his mother passed away, and he returned to South Africa. He last arrived in Australia in September 2010 to live with his father and has not left since. [The applicant] completed years 10 to 12 of high school in Western Australia, where he ultimately graduated in [year]. He received a scholarship for [a] trade apprenticeship at a [company] and commenced the apprenticeship in 2014. After 18 months, he was made redundant from this position in 2015 and continued his apprenticeship with another company, where he worked until March 2017. He said he currently works for [a] company in [Western] Australia.
When I asked [the applicant] what he feared if he were to return to South Africa in the foreseeable future, he stated that he feared for his life due to political unrest. He said that he had nowhere to go which is why he would never want to return there. [The applicant] gave a somewhat vague response, stating that there was ‘social unrest’ in the country due to the ‘political situation’ and that there was ‘discrimination against white people’ especially white Afrikaners. He said that he no longer had any family in South Africa (he mentioned that he had an older brother living in Perth) and that he would have no income or financial support if he were to return there. He said that he feared for his mental state, and claimed to be suffering from depression. I asked [the applicant] why he thought he would be specifically targeted if he were to return to South Africa to live. He gave a vague response, stating that he was ‘not special in any way’, and word to the effect that the situation he described in South Africa was faced by all white people. He said that even black people kill one another and said words to the effect that human life was very cheap there.
[The applicant] gave a vague description of events he said took place in 2005, when he was living on a farm owned by his stepfather. He said that a group of black men came and assaulted him and his mother. He said they were tied up while the claimed attackers stole their belongings. He said that they were assaulted but nobody was killed. He said that the incident was reported to police, but that there was no effective investigation because the police were highly corrupt in South Africa.
I asked [the applicant] why he would be considered a white farmer if he were to return to South Africa in the foreseeable future. [The applicant] gave a vague and unspecific response, stating words the effect that farm work was all he knew there. I asked [the applicant] why he would not seek work as an [Occupation 1], or in the [trades] field, given his qualifications and significant work history in that area over the last several years in Australia. [The applicant] responded with words to the effect that he did not know how he would be supported in South Africa, he did not know where he would go. He said that he would want to get away from farm attacks and murders, and that the government is corrupt because most government members are black South Africans. He stated that at political rallies a song was sung by supporters of former president Zuma that he claimed glorified shooting white people. [The applicant] stated that it was hard to get information from the government and that he did not have any direct information about the situation in South Africa. He said that unnamed sources had told him that a black person could take over a white person’s business, but said that was just what he’d heard and noted that he could not produce any evidence to support these claims.
When asked if there was any other basis upon which he feared harm if he were to return to South Africa in the foreseeable future, other than the claimed issues relating crime and political corruption in South Africa discussed above, [the applicant] said there was not.
On 25 May 2022, after the hearing, [the applicant] emailed the Tribunal attaching the historic letter from Dr [A] (dated 17 February 2017, referred to above) and a personal statement that included a reiteration of many of his previous claims and his views on South African racial politics.
THE RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.
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.
Persistent high levels of violence have been attributed to a range of factors, including poverty and deprivation, high unemployment, poor public services, a subculture of violence and tribalism that has led to the normalisation of violence and criminality, high levels of inequality, social exclusion and marginalisation, the country’s ongoing political and socio-economic transition as well as the proliferation of firearms, growth in organized crime and corruption within a criminal justice system.[4]
[4] Qaakathekile G Mathuthu Ndlela, Crime in South Africa, Crime Law and Social Change Journal, January 2020; Lindy Heinecken, What's behind violence in South Africa: a sociologist's perspective, 16 January 2020.
Transparency International’s 2021 Corruption Perceptions Index (CPI) scores South Africa 44 out of 100 where a score of 0 is highly corrupt. The CPI measures the perceptions of corruption in the public service – highlighting the extent of serious corruption.[5] Corruption Watch points to the COVID-19 pandemic and impeded access to services for millions of people, protracted armed conflicts, rising terrorist threats and systemic corruption involving public officials and substantial sums of money and resources as reasoning for the country’s poor performance. For example, former South African President Jacob Zuma recently faced multiple charges of corruption for fraud, tax evasion, money laundering, racketeering and accepting cash bribes during his time in public office.[6] President Zuma was found guilty and served time incarcerated.[7]
Are white South Africans disproportionately impacted by violent crime?
[5] Transparency International, Corruption Perceptions Index: South Africa, 2021.
[6] Jason Burke, Jacob Zuma sought to hand state assets to allies, finds corruption report, The Guardian, 2 May 2022.
[7] Kenneth Roth, South Africa: Events of 2021, Human Rights Watch, 2021.
The US State Department reported in the State Human Rights Report: South Africa 2021 that unfair discrimination on the grounds of race is prohibited under the Constitution yet there are numerous reports suggesting gross inequality is fuelled by racism and racial polarisation.
Given the country’s history of an apartheid regime and inequality along racial lines it is widely recognised communities continue to be segregated and racially defined.[8] For example, South African Police Service (SAPS) statistics show that areas of the country with the highest murder rates are township areas with black or coloured majority populations.[9] The Institute for Security Studies stated:
We have looked at several sources in an attempt to break down crime by race. Given the impossible task of accurately quantifying the level of serious crimes (including sexual offences and assault) using official statistics – due both to under reporting and poor or unavailable police data – the best indicator we have to gauge the level of violent crime is death by non-natural causes, and homicide rates in particular. Our analysis is inconclusive, but it indicates that victims are disproportionately black Africans and coloureds.[10]
[8] US Department, 2021 State Human Rights Report: South Africa, 2021.
[9] 2019/2020 Crime Statistics', South African Police Service, August 2020 cited in Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021.
[10] Nathan Geffen, Race, class and violent crime in South Africa: Dispelling the 'Huntley thesis', South African Crime Quarterly, March 2016.
It is reported political leaders and local community leaders have sought to instigate attacks on African migrants and ethnic minorities in a bid to gain prominence. The government’s response to xenophobic incidents has been quick and decisive at times but largely ineffective in quelling the violence and restoring order. The government has been strongly criticised by civil society for failing to resolve conflicts, protect property of livelihoods of foreign nationals, or investigate and prosecute such attacks vigorously.[11]
[11] Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021.
In terms of the impact of crime on the safety of white South Africans, John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations, is quoted as stating that ‘there are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody’.[12]
[12] Immigration and Refugee Board of Canada, ‘ZAF106171.E 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, 21 September 2018.
The Head of the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise said that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident.[13]
[13] 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.
Another source quoted in a Canadian Immigration and Refugee Board report observed that:
[t]here are state protection measures available to white South Africans who are victims of violence. For instance, the SAPS and the judiciary (which is quite independent) offer protection. To illustrate this point: if a person is attacked and robbed on the street, the police would investigate and arrest the perpetrator. The perpetrator is then tried in a court, and then sentenced to jail, without any reference to race. (Campbell 30 Aug. 2018).[14]
[14] 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.
The Vice-Chancellor of the University of Witwatersrand, (who is also a professor of political science) has said that while police stations and the appropriate infrastructure to address the high crime rate are not always available, all South Africans who are victims of crime have access to the same services, irrespective of race.[15]
What is the extent of farm violence and to what degree does this affect white South Africans?
[15] Immigration and Refugee Board of Canada, 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, ZAF106171.E, 21 September 2018
The South African Police Service recorded 49 murders on farms between 1 April 2019 and 31 March 2020 – up from 47 murders the previous year.[16] This however represents a decrease from the 62 farm murders in the year ending 31 March 2018. Farming groups and groups representing white South Africans, sometimes citing different statistics to those compiled by SAPS, nevertheless say that disproportionate numbers of farmers are being killed and have accused the government of downplaying the seriousness of the issue.
[16] 2019/2020 Crime Statistics', South African Police Service, August 2020 cited in Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021.
The US Department stated in in its 2021 State Human Rights Report - South Africa that:
Some advocacy groups [have] asserted white farmers were racially targeted for burglaries, home invasions, and killings, while many observers attributed the incidents to the country’s high and growing crime rate.[17]
[17] US Department, 2021 State Human Rights Report: South Africa, 2021.
According to the Institute for Security Studies, farm attacks and farm murders have increased in recent years, although this is line with a general upward trend in the country’s serious and violent crimes.[18]
[18] US Department, 2021 State Human Rights Report: South Africa, 2021.
It is noted in various reports that the South African Police Service include a number of motives for 'farm attacks' under its definition including race-related issues, land and property disputes, revenge or other grievances.[19] Further, 'farm invasions may be motivated merely by opportunism, with credible sources stating that those living in rural areas, particularly in isolated areas, are particularly vulnerable to armed attacks involving heightened levels of violence because help may take a long time to arrive and criminals see a chance to seize weapons or cash'.[20]
[19] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015.
[20] ‘Accurate statistics are needed for the SA farm murder debate’, Institute for Security Studies,Credible sources also suggest that farm attacks are often opportunistic, given the remoteness of farms and the perception that landowners are elderly and wealthy.[21] In 2020, President Ramaphosa rejected claims by pressure groups that a spike in attacks on farms amounted to ‘ethnic cleansing’. He strongly denied that farm attacks were racially motivated, instead characterising the attacks as a sad reminder that South Africa was still recovering from its dark past and that these attacks were better understood as acts of criminality which should be treated as such.
[21] Institute for Security Studies, Accurate Statistics are needed for the South African farm debate, 11 December 2017, Afriforum, Farm attacks and farm murders in South Africa – analysis of recorded incidents – 2019, 19 February 2020, South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015, News24, Farm murders on the decrease – Parliament told, 26 August 2016
A former commissioner of the South African Human Rights Commission suggests that black farmers are equally affected by farm violence and that race is not a motivating factor.[22] The Institute for Security Studies points to the effects of increased hunger and poverty resulting from the economic impacts of COVID-19 to explain any spike in rural crime; it is argued farm attacks do not warrant a specific focus when young black men in townships and rural parts of South Africa are disproportionately affected at a higher murder risk when compared to the murder rate in urban areas of young black men.[23]
[22] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015, Associated Press, Pompeo says South Africa land seizures would be disastrous, 19 February 2020.
[23] Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021.
I discussed this country information with [the applicant] at the hearing, including information relating to data that suggest that white South Africans are not disproportionately impacted by violent crime. [The applicant] indicated he agreed with reports that economically at least that white South Africans generally fare better than black South Africans. He stated that it was at times hard to get information from the government and that he had been told by ‘sources’ that black South Africans can freely take over businesses owned by white South Africans.
Analysis of evidence and findings
I accept that [the applicant] was born and raised in Free State province, South Africa. I accept that he attended boarding school during his childhood. I accept that he is not religious but was nominally raised a Catholic and that he is of Caucasian/white Afrikaans ethnicity. I accept that he came to Australia as a teenager to live with his father, and that his mother passed away in South Africa in 2010. I accept that [the applicant], for periods of his childhood, lived on a farm, including one owned by his stepfather (his mother’s partner). I accept that [the applicant] and his mother were victims of a violent crime while living at his stepfather’s farm. I accept that [the applicant] has lived a large portion of his life in Australia, starting in adolescence, and is fearful of returning to South Africa a country he has never lived in (or visited) as an adult. I accept that he holds fears related to his status as a white person returning to South Africa, including due to the high crime rate in that country and political corruption and instability there. I accept that he holds fears surrounding his future employment and his ability to earn a living in South Africa. I accept that he has little family in South Africa, and that he has lived all of his adult life in Australia. I accept that [the applicant] completed his high schooling in Australia, and has significant work experience and training in the [trade] field in Australia. His visa status was for long periods attached to, and contingent on, visas held by his father, and he has in the past applied for other visas including a partner visa, but that this was ultimately unsuccessful. I do not accept that [the applicant] was ever a farmer, given that he attended school and left South Africa as a teenager. I do not accept that [the applicant] would be considered and/or imputed to be a farmer on return to South Africa because of his claimed family history of being farmers and/or earning their living from farming. I do not accept that farm work would be [the applicant]’s only employment option if he were to return to South Africa (discussed further below). I note that [the applicant] has not claimed that he owns farmland or that his family owns agricultural land in South Africa.
I am not satisfied that [the applicant]’s fears relating to his status as a white South African, who may have historic family links to farming and/or rural communities, and the associated violence and possible death that he may face because of this status, are well-founded. I consider that the issues that [the applicant] has raised about violent crime, and incidents related to attacks on white South Africans, could be described as ‘generalised violence’ that relates to the population as a whole. I accept that South Africa has high crime rates and that lower socio-economic groups can be disproportionately affected. I also accept that there has been incidences of race -related crime and hate speech in South Africa. I find that there is little in the evidence before the Tribunal to suggest that [the applicant] would be subjected to anything other than randomised crime if he were to return to South Africa in the foreseeable future. I am not satisfied that as a white South African he would be specifically targeted by criminals or anybody else. As noted in the country information above, and as was discussed with [the applicant] at the hearing, crime rates in South Africa are universally high across all race and ethnic groups. As discussed above, I note that credible country information suggests that it is black, not white, South Africans who are disproportionately impacted by violent crime.
I note that Australian law requires that persecution involve systematic and discriminatory conduct. Systematic and discriminatory conduct is conduct which is deliberate, rather than random, and applied discriminatorily for one of the reasons set out in the legislation. For the reasons set out above I am not satisfied that generalised crime or financial difficulties [the applicant] fears would involve systematic and discriminatory conduct, instead it (if it occurred) would be random and not applied discriminatorily.
While I accept that South Africa has one of the highest crime rates in the world, the country information referred to above indicates that crime impacts all population groups, and that people in lower income black areas are the most acutely impacted. Country information suggests that although the issue of the racial motivation of the perpetrators of violence in South Africa is contested, and some property crimes may focus on wealthier, mostly white areas, most crime appears to be primarily motivated by economic disparities and issues associated with low socio-economic areas. [The applicant]’s claim that white South Africans are disproportionally affected by crime is therefore not reflected in, or supported by, reports or crime statistics. While I accept that there have been high profile incidences of murders of white farmers, country information suggests that farm murders comprise only a small proportion of total murders in South Africa. As noted above, I do not accept that [the applicant] is a farmer, was a farmer, owns farmland (or would be imputed to be a farmer), or that he would become involved in farm work on return to South Africa. Given the country information outlined above, and after considering [the applicant]’s background and personal circumstances, I am not satisfied that that there is a real chance any harm he may experience would be for the essential and significant reason of his race.
While I acknowledge it is possible that [the applicant] could face a degree of general discrimination related to his status as a white South African (including one who has lived outside of the country for a significant amount of time), given available country information, there is nothing in the evidence to indicate or suggest that this would arise to the level of serious or significant harm as envisaged in the Act. Given the country information outlined above, and after considering the evidence before me relating to [the applicant]’s race, ethnicity and personal circumstances, I find that he does not face a real chance of suffering persecution involving serious harm on return to South Africa as a consequence of his race, ethnicity, religion, political opinion, membership of a particular social group or for any reason. I find that [the applicant]’s fears of persecution on this basis are not well founded.
I discussed with [the applicant] his employment history in Australia. I note that [the applicant] has studied for several qualifications including in [various fields].[24] I note that [the applicant] has significant training and skilled work experience in the [trades] field in Australia, and that he is currently employed as a [worker] in this field. As noted above I do not accept that [the applicant] is, or ever was, a farmer, nor do I accept that he would be forced to work as a farmer, or on a farm, if he were to return to South Africa. I acknowledge and accept that it may be somewhat difficult for [the applicant] to re-establish his life on return to South Africa for a number of reasons, including the fact that he has lived in Australia for an extended period. Given [the applicant]’s personal circumstances, including in relation to his education and professional work history in Australia, I do not accept that he would be unable to find employment on return to South Africa. I do not accept that [the applicant] faces a real chance of serious harm amounting to persecution including significant economic hardship that threatens his capacity to subsist; a denial of access to basic services, where the denial threatens his capacity to subsist; or denial of a capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. For these reasons I do not accept that [the applicant] would be destitute and/or unable to subsist on return to South Africa. I find that any fears [the applicant] may hold in this regard are not well founded.
Issues related to mental health
[24] Department folio 124
I accept that [the applicant] has previously suffered from mental health issues in the past. I note that [the applicant] has submitted historic letters from a doctor (dated from 2017) stating that he suffers from mental health conditions including depression. I also note that [the applicant] stated at the hearing that he suffered from mental health issues and that he had last seen a counsellor in late 2021. He stated at the hearing that he was on medication although the Tribunal does not have any recent, documentary evidence of this.
I accept that Australia’s healthcare standards are higher than those in South Africa, and that there may be costs associated with accessing healthcare in South Africa. I have no reason to believe that [the applicant] would be unable to access health care (including mental health care) in South Africa if it were required. I note that [the applicant] has not made any claims that he would not be able to access appropriate health support services (including mental health services) in South Africa if required for any reason, including one of the five reasons set out at s.5J(1)(a) of the Act.
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.
I am not satisfied therefore that [the applicant] faces a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment because of an inability to access jobs, services or treatment as there is no intention by the state to cause such harm.
Further, I am not satisfied that [the applicant] would face a real risk of significant harm in the form of arbitrary deprivation of life due to unavailability of jobs, services or treatment. While there is no requirement for subjective intent applicable to ‘arbitrary deprivation of life’[27], an element of deliberateness can be imparted into the words ‘arbitrarily deprive’. As there is no definition in the Act, I have interpreted ‘arbitrary deprivation of life’ based on the ordinary meaning of the words.[28] ‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’[29] and in the Macquarie Dictionary as ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.[30] ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[31] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[32]
[27] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556, SZDCD v MIBP [2019] FCA 326
[28] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6]
[29] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3rd edition, 1997
[31] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3rd edition, 1997
I am not satisfied therefore that [the applicant] would face a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life, for reasons of his inability to access employment, medical treatment or government services in general.
As outlined above under the ‘refugee’ assessment, while I acknowledge South Africa suffers from a high crime rate, as noted above, country information suggests that crime is generally random and economically motivated. The real risk is one faced by the population of South Africa generally.
Similarly, I am not satisfied that there would be a withholding of state protection which would be faced by [the applicant] personally and/or that there would be an intentional withholding of state protection. The United States Department of State reported in 2018 that the police have made a strong effort to decrease response times in recent years and will generally respond to requests for help within a reasonable time. The report also suggested that the judiciary is strong and independent.[33] The UK Home Office states the following about the South African police force:
The South African Police Service (SAPS) has primary responsibility for internal security within South Africa and for enforcing the law throughout the country. The government continues to improve and professionalise the SAPS, however it is reportedly understaffed, ill-equipped, poorly trained, and corruption is a problem. Around 2 million criminal cases were recorded or ‘detected’ by the SAPS between April 2016 and March 2017. While the SAPS responsiveness and effectiveness varies, it is attempting to improve its service and does take action to combat crime. This led to over 340,000 criminal cases being prosecuted in the courts in 2016/17 with 94% of cases resulting in a conviction.[34]
[33] United States Department of State, Country Report on Human Rights Practices South Africa, 2018, UK Home Office Report, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation, December 2017 >
Further, as discussed above, country information suggests that the South African Police Service was generally equally effective in responding to all population groups regardless of racial classification.[35] I note also that the Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise stated that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident.[36]
[35] Immigration and Refugee Board of Canada, 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, ZAF106171.E, 21 September 2018
[36] 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.
Based on the above country information, I am not satisfied therefore that there is a systematic breakdown of law enforcement in South Africa, neither am I satisfied that the laws there are ‘not being routinely enforced’, although I acknowledge there are capacity and other issues (including corruption) within the police service caused by various factors including underfunding and a general lack of resources. It follows that I am not satisfied that [the applicant] would be deprived of life because of arbitrary action (or inaction) by the state.
I am not satisfied 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 would be arbitrarily deprived of his life due to crime or withholding of protection, or for any other reason.
Finding – complementary protection
I am not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to South Africa there is a real risk he would suffer significant harm. Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criteria in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
MemberAttachment - 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.
…
11 December 2017; ‘Farm attacks and farm murders in South Africa – Analysis of recorded incidents: 2019’, AfriForum, 19 February 2020, p.4; ‘Ramaphosa speaks on farm murders in South Africa’, Business tech, 12 October 2020; ‘Farm murders and rural crime: Unpacking violence, race and statistics’, news24, 20 July 2020.
Key Legal Topics
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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