1725261 (Refugee)

[2020] AATA 1588

1725261 (Refugee) [2020] AATA 1588 (28 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725261

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Joseph Lindsay

DATE:28 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 28 April 2020 at 3:51pm

CATCHWORDS
REFUGEE – cancellation – protection visa – South Africa – Federal Circuit Court remittal – non-disclosure certificates – ground of cancellation – incorrect information in the visa application – applicant’s identity – other names known by – country of citizenship – consideration of discretion – deliberate and intentional act – contribution to the community – non-refoulement obligations – imputed nationality – particular social group – a Somali-descent person in South Africa – reports of violence against foreigners – involvement in Spazas – no past harm or violence suffered – effective state protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 375A, 438
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was initially granted a protection visa on 9 June 2010. However, on 18 November 2014, the delegate cancelled the applicant’s protection visa on the basis that he did not comply with sections 101(a) and 101(b) of the Act.

3. The applicant applied to the Tribunal for review, and on 2 June 2015 the Tribunal affirmed the delegate’s decision to cancel the applicant’s protection visa.

4. The applicant appealed the Tribunal’s decision to the Federal Circuit Court. On 13 October 2017, the Federal Circuit Court remitted this matter to the Tribunal for reconsideration. In summary, the Federal Circuit Court found that there were two certificates issued pursuant to section 375A of the Act on 8 December 2014 that were not disclosed to the Applicant in the course of the review by the Tribunal, and that there was one certificate issued pursuant to section 438(1)(b) of the Act on 16 December 2014 and the existence of the certificate was not disclosed to the Applicant in the course of the review by the Tribunal. The Court found that a jurisdictional error occurred where, in the Court’s view, at least some of the documents subject to the certificates were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

5. The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The applicant had support people in attendance, including [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    The Hearing

11. At the hearing the applicant indicated that he would speak to the Tribunal in English and that he was comfortable to do so and that if he needed the interpreter he would do so.  He confirmed that the persons present (names) were support persons only, and they were not at all witnesses to his application and they were not going to give evidence to the Tribunal and they had nothing to do with the review application. He confirmed they were only there to support him.

    Certificates

12. The Tribunal put to the applicant that, as he was reasonably aware, the Federal Circuit Court had remitted the matter to the Tribunal in respect to certificate issues.

13. The Tribunal referred to the judgement from the Federal Circuit Court, and noted that the matter was remitted to the Tribunal essentially because the three certificates identified that were not disclosed to the applicant in the course of the review.

14. The Tribunal then discussed the certificates with the applicant, those certificates being two certificates issued pursuant to section 375A of the Act on 8 December 2014 and one certificate issued pursuant to section 438(1)(b) of the Act on 16 December 2014.

15. The Tribunal first discussed the certificate dated 16 December 2014 and issued under s.438 of the Act with the applicant. The Tribunal explained that the certificate stated that the delegate had notified the then Refugee Review Tribunal (as it existed then) that section 438(1)(b) of the Act applies to information in folios 168 and 177 of file number [number]. The Tribunal put to the applicant that the Tribunal had the relevant file at the hearing and picked up the file to show the applicant that this was so. The Tribunal noted the certificate said that disclosure of the information would be contrary to the public interest because, essentially, the documents were given to an officer of the Department in confidence. The Tribunal noted the delegate said that the information should not be disclosed to the applicant or the applicant’s representative and indicated that the use and disclosure of the information was subjected to s.438 of the Act.

16. The Tribunal put to the applicant that the Tribunal had to consider whether the certificate was valid, and noted that the certificate appeared to be valid.

17. The Tribunal then put to the applicant that the material that was the subject of all three certificates was, essentially, investigatory material about the applicant.

18. The Tribunal put to the applicant that the crux of the issue was the investigatory material in respect to the applicant. The Tribunal put to the applicant that he had already agreed to the essential facts in respect to the content of the investigatory material, and in response the applicant said “yes.” The Tribunal again put to the applicant that he had already agreed to the important information arising out of the investigatory material, and in response he said “yes.”

19. The Tribunal put to the applicant that, given he had already agreed to the important information arising out of the investigatory material, dealing with the contents of the information covered by the certificate did not materially take the Tribunal any further and, accordingly, the Tribunal did not propose to place any weight on any of the information covered by any of the three certificates. In response the applicant said “yes, alright.” The Tribunal asked the applicant if he understood why he thought the Tribunal was proposing to take this action and in response he said “because I agree with the information.”  The Tribunal indicated to the applicant that it did not appear to advance the matter in any way to put any weight on the certificates, but that the certificates did appear to be valid.

20. The Tribunal put to the applicant that, in accordance with s 438 of the Act, the release of the information appeared to be discretionary.

21. The Tribunal put to the applicant that it was considering folio 168 and 177 of the file and asked “is it relevant to the review” to which the Tribunal indicated it was relevant to the review. The Tribunal asked “is it adverse information”, to which the applicant said “yes” and the Tribunal agreed that it was adverse information but noted that the applicant had already agreed to the crux of the information. Accordingly, the Tribunal put to the applicant that it did not propose to disclose the information in the folios to the applicant because he had already essentially agreed to the crux of the information, to which the applicant responded “yes, I did.”  Accordingly, the Tribunal put to the applicant that, for those reasons, the Tribunal had decided not to disclose the information in folios 168 and 177 of the file to the applicant.

22. The Tribunal then turned to consider the matter of the information covered by the certificates being two certificates issued pursuant to section 375A of the Act on 8 December 2014. The Tribunal again read out the contents of the two certificates issued pursuant to section 375A of the Act on 8 December 2014, noting that the folios referred to investigation methodology and disclosure of which would reveal investigation methodology and may impact on the ability of the Department to obtain information using these investigation methods in the future. The Tribunal put to the applicant that the two certificates pursuant to section 375A of the Act on 8 December 2014 appeared to be valid, and asked the applicant if he wished to say anything. In response, the applicant indicated that he did not wish to say anything in respect to the validity of the certificate. The Tribunal indicated to the applicant that section 375A of the Act disclosure of the material covered by the certificate was prevented. The Tribunal put to the applicant that the material covered by the certificates appeared to be relevant and adverse, because the delegate obviously used that information to put together the notice previously issued to the applicant under s.107 of the Act to cancel his visa, and in response the applicant said “yes.” The Tribunal put to the applicant that these issues appeared to the fundamental issues that the applicant needed to address (in the s.107 notice), and these issues had been distilled from the information as covered by the two certificates issued under section 375A. In response, the applicant said “yes, my understanding is they fnd this information, and when they represented this information to me I agreed with them.” The Tribunal then indicated to the applicant that the Tribunal had to comply with its obligations and that where there was a valid certificate issued 375A of the Act, that prevented release of the information but, in any event, the Tribunal was not going to put any weight on the information covered by any of the three certificates. In response the applicant said “ok.” That applicant said, ”the information is right, its all about me.” The Tribunal asked the applicant if he considered that the Tribunal had dealt with all the issues raised regarding the certificates and the applicant said “yes.”

23. Finding: In regard to the certificate issued pursuant to section 438(1)(b) of the Act on 16 December 2014 and the two certificates issued pursuant to section 375A of the Act on 8 December 2014, the Tribunal finds that the certificates are valid but places no weight on the information to which the certificates have application.

24. The Tribunal then turned to the substantive matter as to whether or not the applicant’s protection visa should be cancelled.

    Was there non-compliance as described in the s.107 notice?

25. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(a) and s.101(b) in the following respects:

    Evidence of non-compliance:

    On 20 August 2009, [the applicant] lodged an application for a Protection (Class XA) visa at one of the department's onshore office.

    [The applicant] authorised an agent exempt from registration, [Ms C] to act on his behalf.

    As part of this application [the applicant] provided completed forms 866B and 886C.

    On form 886B Application for a Protection (Class XA) visa - Persons included in this application and family composition, [the applicant] declared the following:

    Details of persons included in this application

    Applicant 1:

    Family name: [Family name 1]

    Given names: [Given names 1]

    Date of birth: [Date 1]

    On 11 August 2009, [the applicant] signed the following declaration (in parts) in form 886B:

    ‘Warning: Giving false or misleading information is a serious offence.

    I declare that:

    The information I have supplied on or with this form is complete, correct and up-to-date in every detail

    I understand that if I have given false or misleading information, my application may be refused, or any visa issued may be cancelled.'

    Form 886C is an Application for an applicant who wishes to submit their own claims to be a refugee.

    [The applicant] provided the following details in the form (in parts):

    Details of applicant

    1. What is your full name?

    Family name; [Family name 1]

    Given names: [Given names 1]

    4. What other names have you been known by? (such as name before marriages previous married name, alias)

    You did not provide an answer to this question.

    Citizenship

    25. Country(s) of former habitual residence or transit before arrival in Australia.

    Country 1: Somalia [day]/5/09

    Country 2: [Country 2] [7]/09

    Country 3: [Country 3] [7/]09

    Country 4: [Country 4] [day]/7/09

    26. Date of departure from that country

    Country 1: [day]/5/09

    Country 2: [7]/09

    Country 3: [7]/09

    Country 4; [day]/7/09

    What was your status in that country?

    Country 1: Citizen

    Country 2-4: No lawful status

    Travel to Australia

    Did you enter Australia as a Unauthorised

    29, Date of arrival in Australia: [day]/07/2009 (entered Australia on false documents)

    32. Have you ever had or used, any other passport or travel document? No

    33, Did you ever travel outside your home country or country of residence before your current journey to Australia? No

    Previous addresses

    35. Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last ten years

    Country: Somalia

    Dates lived there: [Date 1] — [day]/05/2009

    Address (specify city/town/village/refugee camp/country):

    [Addresses deleted]

    40. I am seeking protection in Australia so that I do not have to go back to Somalia.

    46. When did you leave your home country? [day]/05/2009

    56. Have you ever applied for refugee status in any country other than Australia? No

    60. Do you have a right to enter or reside in, whether temporarily or permanently, any county(s) other than your country(s) of nationality or your former country(s) of habitual residence? No

    On question 67 the Declaration of form 886C, [the applicant] declared the following in the form of Statutory Declaration:

    -Note: Section 11 of the-Statutory-Declarations-Act 1959 provides that ‘a person must not wilfully make a false statement in a statutory declaration', and provides a maximum penalty of 4 years imprisonment.

    Warning: Giving false or misleading information is a Serious offence.

    Declaration

    I, [the applicant], of [address] do solemnly declare:

    - The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.

    …

    - I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.'

    [The applicant] provided the following information in a statutory declaration (in parts) to explain his arrival as a refugee:

    I flew from [Country 2] to [Country 3] [in] July 2009. I was in [Country 3] for about 20 hours and then I flew from [Country 3] to [Country 4]. I was in [Country 4] for less than a day. I flew from [Country 4] to Melbourne, arriving [in] July 2009.

    I travelled from [Country 2] with my agent. He accompanied me to Melbourne. My agent took me through customs. I did not hold the documents at any time and the agent retained the documents, After we passed through customs, the agent told me there are Somali taxi driver who will take me to the Somali community. I approached a Somali taxi driver who was standing outside his cab, I spoke with him and I explained to him my situation and how I had no documents, He telephoned someone who picked me up in a private car. This person took me to someone in [Suburb 1] who is a member of the Somali community. He arranged somewhere for me to sleep and in the morning he took me to the [welfare organisation].'

    As part of this application, [the applicant] submitted a completed form 80 — Personal particulars for character assessment.

    On question 11 of the form [the applicant] was asked 'Are you a dual citizen, or have you held any other citizenship? [The applicant] ticked 'No' as his answer.

    The department was unable to confirm [the applicant]’s arrival details and noted the below in the decision record dated 26 October 2009:

    ‘At interview, the applicant was questioned on details of his travel to Australia. He stated that his "agent" collected the boarding pass from the transit desk at [the Country 4 airport], He was not stopped by security personnel for the purposes of a fact to passport check or questioning.

    When asked to describe the uniforms worn by flight attendant the applicant responded that they were "blue or red", he thought they were mid length and the ladies wore a scarf This description is not consistent with the corporate wardrobes of any of the airlines flying from [Country 4] — Melbourne,

    The applicant was unable. to describe flight boarding procedures in [Country 4], or arrival procedures in Melbourne, stating that his agent did everything for him and he never saw or held the passport he travelled on to Australia. He could not explain why he was not required to attend immigration clearance with customs officer when everybody arriving in Australia must present their own travel document on entry.

    Nor could he remember what time he arrived in Melbourne airport, stating that he arrived in winter "so there wasn't much sun".

    He states that his "agent" told him to approach a Somali taxi driver who would help him so he walked to the taxi rank and approached a Somali taxi driver who phoned a community member and arranged for him to be collected He waited outside the airport for a few hours and someone from the Somali community collected him and took him to stay with another member of the Somali community.

    The delegate put to the applicant her concerns about aspects of his evidence and issues that she had with his evidence. The delegate put to the applicant that it was unfeasible that he was able to clear immigration in [Country 4] and Melbourne without ever holding a travel document and being subjected to security checking The delegate put to the applicant it would be impossible to enter Australia without personally presently a travel document to a Custom's officer for immigration clearance purposes. The delegate put to the applicant that he would be unable to pass through [Country 4] airport check-in and boarding gate without being stopped by [Country 4] Airlines security staff who screen passengers on every flight to Australia.

    The delegate also put to the applicant that not every taxi driver in Melbourne was of Somali background and it seemed extremely coincidental that a Somali taxi driver was the first waiting in the queue when he approached, and that once he explained his situation this driver would assist him rather than reporting him to police for being an unlawful entrant to Australia.'

    Notwithstanding the department's inability to confirm his arrival details; [the applicant]’s Protection visa was refused on 26 October 2009. The delegate was not satisfied that [the applicant] was a person to whom Australia has protection obligations for the grant of the visa.

    On 12 November 2009, [the applicant] made an application for a review of this decision at the Refugee Review Tribunal (RRT) and it was remitted to the department for reconsideration on 13 January 2010.

    On 9 June 2010; [the applicant] was granted the subclass 866-visa.

    Since the grant of the visa, the department received the following adverse information on [the applicant]’s identities.

    The department has determined that [the applicant] is known by another identity in the name of [Alias 1], date of birth [Date 2].

    On 27 May 2009 [Alias 1], lodged an application for a [Tourist] visa at the department's Pretoria office.

    On the application form 48R — Application for general tourists to visit Australia for tourism or other recreational activities, [Alias 1] provided the following details:

    4. Family name: [Family name 2]

    Given names: [Given names 2]

    Date of birth: [Date 2]

    8. Place of birth:

    Town/City: [Town 1]

    Country: Somali

    9. Details of your passport

    Passport number: [number]

    Country of passport: South Africa

    Date of issue: [date in 2006]

    Date of expiry: [date in 2018]

    Issuing authority/Place of issue as shown in your passport Dept of Home Affairs

    10. Details of identity card or identity number issued to you by your government (if applicable) e.g. National identity card.

    Identity number: [number] Country of issue: South Africa

    11. Of which countries are you a citizen? South Africa

    12. Country of usual residence: South Africa

    [Alias 1]'s South African citizenship and passport were confirmed as genuine by the Department of Home Affairs, Pretoria.

    On 22 June 2009, [Alias 1] was granted the [Tourist] visa. The visa was valid for one year, multiple entries with three months' stay each visit.

    [In] July 2009, [Alias 1] entered Australia on this visa in his South African passport number [number] and he was-allowed to stay in Australia [until] October 2009

    However, [Alias 1] remained in Australia and did not depart.

    It was during the stay as [Alias 1] that he assumed another identity of [the applicant] and lodged a subclass 866 visa application with the department on 20 August 2009.

    On 21 September 2012, a facial image comparison was conducted on the images the department has on both identities and the Facial Image Comparison Specialist concluded that [Alias 1] and [the applicant] are highly likely to be the same person. As a result the department considers that [Alias 1] and [the applicant] are the same person. As highlighted in the department's refusal decision record, the uncertainties surrounding his entry as [the applicant] supports its findings that he was already in Australia using the identity of [Alias 1].

    On 3 April 2014, [the applicant] attended an identity interview with a departmental officer from National Identity Verification and Advice VIC.

    27. At the interview [the applicant] admitted that his true identity is [Alias 1], born [Date 2], and that he is a citizen of South Africa. [The applicant] also admitted that he arrived at Perth Airport in July 2009.

    Given the evidence explained above, I consider that [the applicant] has not complied with section 101(a) of the Act because he did not provide an answer to Question 4 of Part C of the application form. [The applicant] did not provide a name that he has been known by.

    Additionally, I consider that [the applicant] has not complied with section 101(b) of the Act because he provided incorrect answers to the following questions on form 866:

    • Question 25 of Part C of the application form when he did not provide the correct information that South Africa was his former habitual residence before his arrival in Australia.

    Question 26 and 27 of Part C of the application form in response to his date of departure and his status from the countries of Somalia, [Country 2], [Country 3] and [Country 4].

    Question 28 when he stated he entered Australia as an unauthorised person.

    Question 29 of the date of his arrival in Australia.

    Question 32 of Part C of the application form in which he did not declare that he also hold travel document issued from South Africa.

    Question 33 of Part C of the application form in response to which he did not declare South Africa as his country of residence before his current journey to Australia.

    Question 35 of Part C of the application form in response to which he did not provide information about his residential addresses in South Africa where he holds citizenship.

    Question 46 of Part C of the application form in response to which he did not provide the correct date on when he left his home country.

    Question 60 of Part C of the application form in response to which he did not declare his right to reside in South Africa.’

1. In the hearing, the Tribunal put to the applicant that it could consider the information the applicant had given to the Tribunal in 2015 as well as any further information before the Tribunal, and in response the applicant said “yes.”

2. The Tribunal indicated to the applicant that his previous representatives had given a copy of the delegate’s decision to the Tribunal, and in response the applicant said “yes.”

3. The Tribunal asked the applicant whether he agreed with the information in the s.107 notice dated 11 April 2014 that was provided to him and in response the applicant said “I agree Sir, yes.” The Tribunal asked the applicant whether he admitted to the non-compliance as described in the s.107 notice dated 11 April 2014, and in response the applicant said “yes.”

4. The Tribunal put to the applicant that, given he had admitted to the non-compliance as described in the s.107 notice, the Tribunal may find that there was non-compliance in accordance with s 101(a) and s.101(b) of the Act as described in the s.107 notice dated 11 April 2014, and in response the applicant said “yes I did.”

5. Finding: Given the applicant’s admissions to the non-compliance as described in the s.107 notice, the Tribunal finds that there was non-compliance with s.101(a) and s.101(b) by the applicant in the way described in the s.107 notice.

6. The Tribunal then discussed the issue as to whether the visa should be cancelled, and that there were several issues the Tribunal needed to consider.

   Should the visa be cancelled?

7. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

8. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations and form the basis of the analysis below.

   The correct information

9. At the hearing, the Tribunal then discussed the issue as to what was the correct information. The Tribunal asked the applicant if he had anything to say about what was the correct information before the Tribunal started to discuss the matter, and in response he indicated he had nothing to say.

10. The Tribunal noted that in the applicant’s written submission dated 14 March 2019, the submission also indicated that the applicant had accepted that the information he had provided to the Department in relation to his identity had also been incorrect, and in response the applicant said “yes.”

11. The Tribunal asked the applicant if his name was of [Alias 1], and he said “yes, that’s my name.” The applicant asked the Tribunal not to call him [the applicant] anymore because his real name was [Alias 1]. The Tribunal asked the applicant whether he was using the name [the applicant] for purposes outside the Tribunal, and he indicated he was only using the name [the applicant] for his Medicare card but for no other forms of identification at all, including employment or driver licence documentation. He confirmed his date of birth was [Date 2] and he was currently living at the address on his drivers licence.

12. The Tribunal asked the applicant whether he made up the name [the applicant] and he said “yes I did.”

13. The applicant confirmed that the name [Alias 1] was the name given to him at his birth and the name he had used all his life apart from when he submitted his protection application. He indicated that the name [the applicant] had no legal basis but was derived from a family name.

14. The Tribunal asked the applicant whether he was a citizen of South Africa and he said “yes, Sir.”

15. The Tribunal noted that on the applicant’s file there was a copy of the applicant’s South African passport issued [in] 2008, and the applicant agreed this was a copy of his passport.

16. The Tribunal noted that on the applicant’s file there was a copy of identity papers showing his name to be [Alias 1], his country of birth Somalia and his date of birth was [Date 2] – all of which the applicant agreed to.

17. The Tribunal noted the visa grant notice that contained details of the applicant’s children - all of which the applicant agreed to.

18. The Tribunal noted that the applicant gained South African citizenship in 2008 because he married a South African woman – to which the applicant responded – “yes, Sir.”

19. The Tribunal asked the applicant what the status was of his marriage. In response he indicated that he was still legally married but he had not seen his wife for 10 years. He indicated that he had further relationships in Australia but was not currently with a partner.

20. He said he went to South Africa as a refugee and was recognised as a refugee in 1995. He said that he then got married and then got South African citizenship.  He indicated that there was no reason why he did not have a legal right to return to South Africa, given he was a citizen of South Africa.

21. Finding:  The Tribunal finds that the correct information therefore is that the applicant is also known as [Alias 1], who is a citizen and passport holder of South Africa and has a right to return there.

    Content of the genuine document

22. Not directly relevant. 

    The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

23. The Tribunal referred to the delegate’s decision from 2014 that that it is likely that if the correct information was known, that the applicant would not have been granted a protection visa, on the basis that he may not have satisfied the decision maker that he was a person to whom Australia has protection obligations under the Refugees Convention. In response, the applicant indicated that these facts were correct.

24. Finding: The Tribunal finds that it is likely that if the correct information was known,  the applicant would not have been granted a protection visa on the basis that he may not have satisfied the decision maker that he was a person to whom Australia has protection obligations under the Refugees Convention.

    The circumstances in which the non-compliance occurred

25. The Tribunal put to the applicant that the non-compliance occurred when the applicant provided incorrect information in his subclass 866 visa application form that he was not known by another name of [Alias 1], who is a citizen of South Africa. In response, the applicant said “yes, Member.”

26. The Tribunal put to the applicant that he had previously said that he was naïve in believing that if he notified the Department of his South African citizenship, his visa application would likely be refused. He was, it is claimed, desperate to flee South Africa where he had faced persecution and discrimination since 1995. The Tribunal put to the applicant that he had previously said that he thought that nobody would believe him to be a refugee is he held a South African passport, so he desperately devised a story and a different identity and claimed to have travelled directly from Somalia. In response, the applicant said “yes, Member” and indicated that these facts were correct.

27. The Tribunal put to the applicant that he had previously said:

    -He had arrived [in] July 2009.

    -He had flown from Johannesburg to Perth.

    -He came to get a safe place to live.

    -He was worried that if he said he was straight from South Africa that he would not be believed, so he devised this story, changed his name and date of birth, went to the [welfare organisation], the migrant resource centre, who referred him to [Organisation 1] ([Mr D]) where he devised this story and his lawyer ([Mr D]) wrote it down, he went back so many times to the lawyer.

    -He did this as he thought that if he said he came from South Africa he would not be allowed and so he devised this lie.

28. In response, the applicant said “yes, Member” and indicated that these facts were correct.

29. Finding: The Tribunal finds that the applicant had previously said:

    -He had arrived [in] July 2009.

    -He had flown from Johannesburg to Perth.

    -He came to get a safe place to live.

    -He was worried that if he said he was straight from South Africa that he would not be believed, so her devised this story, changed his name and date of birth, went to the [welfare organisation], the migrant resource centre, who referred him to [Organisation 1] ([Mr D]) where he devised this story and his lawyer ([Mr D]) wrote it down, he went back so many times to the lawyer.

    -He did this as he thought that if he said he came from South Africa he would not be allowed and so he devised this lie.

    The present circumstances of the visa holder

30. The Tribunal put to the applicant that he has lived in Melbourne since 2010, however he indicated that he has lived in Melbourne since July 2009.

31. The Tribunal put to the applicant that he had previously provided supporting documentation and that previously a large number of witnesses at the previous hearing all attested to the applicant’s involvement in the Somali community. In response, the applicant said “yes, Member” and indicated that these facts were correct.

32. The Tribunal put to the applicant that he had previously said that following his studies in Somalia and South Africa (where he had studied but did not complete a [Qualification 1 at University 1]), when he came here, as he had changed his name and could not provide these qualifications, he went to TAFE and got several qualifications in [Discipline 1] up to an [Qualification 2]. In response, the applicant indicated that these facts were correct.

33. The Tribunal put to the applicant that he had previously said that:

    -For a year in 2012-2013 he was employed as an [Occupation 1] at [Employer 1].

    -He was made redundant and was looking for other jobs when the identity concerns came to light.

    -In between this work he was a [Occupation 2] but after his visa was cancelled he was told he could not work or study.

34. In response, the applicant indicated that these facts were correct. He said that since June 2018 he had permission to work. He said he had got a [permit] and worked [in Occupation 2]. 

35. The Tribunal asked the applicant if he was sending money overseas to his family, and he said “sometimes.”

36. The Tribunal asked the applicant if he still had a lot of involvement with the Somali community, and he said yes.

37. The applicant indicated he still would go to a mosque or cafeteria, get information from the community about who is sick, who has a problem, any activities that come up like marriages, and they all help out, as a community they do this together. The applicant said that he would help with interpretation and any other requirements. He said this help was based on their religion and culture, the community was an integral part of his life. He said he did not have a title but is an active member.

38. The Tribunal asked about the applicant’s health situation. He said that some 2002 he went on to antidepressants ([Medication 1]). He said he was still on antidepressants and he [has a medical condition]for which he takes tablets and does some exercise. He said he was not taking any other medication. He said he used to get counselling but he had stopped getting counselling some time ago. The applicant acknowledged that he was able to access his medicines in South Africa but that they were expensive. He did not want to say anything further about his current circumstances.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

39. The Tribunal put to the applicant that the delegate noted that the applicant continued to provide the incorrect information regarding his identity to the department on his citizenship application and in his proposal to sponsor his children overseas on a subclass 202 visa. In response, the applicant indicated that these facts were correct.

40. The Tribunal put to the applicant that he had previously admitted he had provided the wrong information, and he said “yes, I provided the wrong information to the Department.”  The applicant indicated that the information he was now providing was true and correct.

    Any other instances of non-compliance by the visa holder known to the Minister

41. The Tribunal asked the applicant if there were any other instances of non-compliance, and the applicant indicated there were no other such instances.

    The time that has elapsed since the non-compliance

42. The Tribunal put to the applicant that the delegate noted that the applicant was granted his subclass 866 Protection visa on 9 June 2010, and that the non-compliance was detected in 2012 when the department's Forensic Facial Comparison Specialist determined that he is the same person as [Alias 1]. In response, the applicant indicated that these facts were correct.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

43. The Tribunal asked the applicant if there were any breaches of the law since the non-compliance, and in response the applicant indicated that there were no such further breaches. The applicant indicated that he had not been charged for or convicted of any offences in Australia.

    Any contribution made by the holder to the community

44. The Tribunal asked the applicant about his contribution to the community and asked if the information he had previously given the Tribunal was correct, and in response the applicant indicated that this information was still correct. That is:

    -His witnesses, including [Mr E], [Sheikh F] and others attested to the applicant’s contribution to the community and his good character. Many of the witnesses stated that he was a model to the youth, and that he was doing good for the community, and was needed. [Mr G] said that the applicant had volunteered his time as a [Occupation 3]. Many such as [Mr H] spoke of the applicant’s organising of [sports] games for youth of African background, some of whom had come from interstate to play. It is a testament to the position of the applicant in the community that twelve people attended and waited patiently to give evidence of his good character and his position in the community.

    -It was submitted that the applicant was a tireless worker for youth and an organiser for young people from the Horn of Africa so that young people do not join radical movements, and that the applicant is an integral part of that and his absence would be felt very strongly, as he is a strong part of the community, especially with the youth, organising [sports] tournaments for the youth and trying his best to assist the Islamic community in Melbourne.

45. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

46. The Tribunal put to the applicant that the delegate:

    -noted that the applicant’s Protection visa was granted on the basis that he satisfied the Minister that he engaged Australia's protection obligations under the Refugee's Convention as amended by the Refugee's Protocol;

    -considered whether he still engaged Australia's protection obligations;

    -found the applicant to be a Somali born South African citizen;

    -noted that the applicant has made claims to fear harm from racist South Africans due to his Somali ethnicity; and

    -indicated that as per current departmental policy, a thorough International Treaties Obligation Assessment (ITOA) has been undertaken to assess whether Australia has non-refoulement obligations to the visa holder under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, aiming at the abolition of the death penalty, and that on 22 October 2014, it was determined under that process that the applicant was not a person in respect to whom Australia has obligations under the abovementioned treaties.

47. In response, the applicant indicated he was aware of this information and that the information was correct. The Tribunal put to the applicant that it would make its own assessment.

48. The Tribunal asked the applicant whether his protection claims were the same or had changed since his original protection claims were submitted, and he said “no, they are still the same.” The Tribunal put to the applicant that his representative, on his behalf appeared to have made further claims. In response the applicant indicated that no further claims were being made, and that any information provided was consistent with his previous claims because they were about South Africa.

49. The applicant maintained that he had read his representative’s submissions and he agreed with the content of those submissions.

50. The Tribunal noted the applicant’s statutory declaration dated 12 March 2019 and the applicant indicated that this information was still correct. The statutory declaration stated as follows:

    1.I make this statement in support of my appeal to the Administrative Appeals Tribunal in relation to the decision by the Department of Home Affairs to cancel my protection visa.

    2.I am not sure of the exact date that I was born on. I do know that I was born in [Town 1], Somalia.

    3.I believe I was born in [year]. My name is [Alias 1]. My parents named me [Name 1] and in Somalia you adopt the names of your paternal ancestors. My father was [Name 2] and my grandfather was [Name 3].

    4.I lived [Town 1] for approximately [number of] years before moving to Mogadishu. I lived in [Town 1] with my mother and father.

    5.The reason I left [Town 1] was to go to school in Mogadishu. When I was about [age] years old, I went to live with my two [relatives] [Mr I] and [Mr J]. The older of the two `[Mr J]' had his family live into that house two.

    6.In order for me to enroll in a school I needed a birth certificate. To get a birth certificate my [relative] [Mr I] made up my birthday as [Date 2]. The [date] had a significance as it is [a special day in] Somalia. [Significance of day explained]. This must have been why my [relative] chose that day.

    7.From [year], for a period of approximately four years, I attended middle school (standard4 to standard 8) in Mogadishu. Then from 1979 onwards went to [School 1] to study standard 9 to standard 12.

    8.After that I studied a [Qualification 3] at [School 2] for approximately two years. After this I was a [Occupation 4] for about a year, I was [working] at [Employer 2]. All this time I was in Mogadishu.

    9.       I got married in approximately 1986 to [Ms K].

    10.      We had our first child, a son, on [date] in Mogadishu.

    11.In the mean time I completed a [Discipline 2] course. After that I worked for the [government] at [Department 1].

    12.In 1990 civil war broke out. It was mayhem for a while, I couldn't travel. It was approximately 1993 when I went to [Country 5] in the hope of working and supporting my family.

    13.When I was in [Country 5] another war broke out in [Country 5] so I came back to Mogadishu.

    14.Around 1994 I went to [City 1] and [City 2] in [Country 2]. This was to get work and help my family. I found that it was not possible to get any work. The humanitarian crisis meant that there was nothing for people like me.

    15.      In July 1995 I went to South Africa.

    16.From July 1995 until 1999 I was doing [specified] work and other temporary jobs. I was very stressed and anxious, as in South Africa there was no proper documentation or anything to maintain my life. I did not have enough money to send back to Somalia and help my family there.

    17.      I was not able to provide for my children in Somalia, this lead to my wife moving on.

    18.In 1999, having not been able to provide for my family in Somalia, I got married to a Somali girl [Ms L].

    19.We had a son on [date] . His name is [Child M]. About six months after the child was born [Ms L] and I divorced.

    20.      In September 2002 I got married to a South African lady called [Ms N].

    21.      All those years I was doing [specified] work here and there. This was from 2002 to 2008.

    22.      We had a child on [date], a boy named [Child O].

    23.In 2003 I got Permeant Residency in South Africa through marriage and then citizenship in 2008.

    24.All that time in South Africa, it was not a peaceful life. There were a lot of gangs who targeted civilians. Often I was mugged, I was spat at and my house was targeted for robberies. This was happening to me because I was a foreigner. Xenophobia was rife in South Africa.

    25.I was living in Johannesburg at the time and foreigners were being targeted everywhere. I was being targeted for being, in their eyes, a foreigner generally and specifically for being of Somali descent.

    26.In 2005 I was walking in the city Centre on my way to work [in] the morning in broad daylight, a gang of five or six thugs grabbed me by the neck so I could not move and stole my wallet, my phone and my house keys. I did not resist because I did not want to provoke them and get hurt. This was a common occurrence for me.

    27.I was targeted because I am a person of Somali descent, and others who witnessed these incidents and attacks did not help me.

    28.In the lime I lived in Johannesburg, between 1998 to 2008, I was only ever doing temporary jobs. The longest jobs I held lasted 2 years. The other jobs lasted 6 months or less. I was never given a permanent position, I believe that this was because of my Somali background.

    There is distrust and suspicion of foreigners in South Africa, especially other black foreigners from other parts of Africa, especially Somalia.

    29.They knew I was a person of Somali descent of my facial features, my language and my accent. They targeted all Somalis having South African citizenship can not help me, those who target me cannot tell from looking at you that you have South African citizenship. All they see is a Somali person.

    30.In 2008 when I got my citizenship and passport I knew I could get out of South Africa so I came to Australia.

    31.I applied for a tourist visa in 2009. I travelled from Johannesburg to Perth. Then from Perth I came to Melbourne sometime in July [2009].

    32.This is when I made the biggest mistake. I was so afraid of having to go back to my old life where I was beaten, harassed, robbed, and spat on all the time I changed my name and told immigration that I came straight from Somalia.

    33.It was no one's idea but mine to give a different name. I was going through a dark time whilst in South Africa. I needed a new life and a new start in Australia and this is why I gave a different name to create a new persona. I was afraid at the time that I would be returned to South Africa to face harm if I was honest about my identity. I thought if the Australian authorities knew I was a South African citizen, I may not be granted protection because they may not believe my story of persecution in South Africa.

    34.      In June 2010 I was issued a protection visa under the name of [the applicant].

    35.I applied for Australian citizenship in 2013. In April 2014 they called me for an interview and told me that they are going to cancel my visa.

    36.The first day I go back, either I will be robbed and left alone if I am lucky, beaten badly if I am unlucky.

    37.If I by to fight back I will get killed. I came to Australia because I was afraid for my safety in South Africa.

    38.In 2008 there was a period of great xenophobia in Johannesburg. All foreigners were targeted: Nigerians, Zimbabweans, Ethiopians and Somalians because the locals thought the foreigners were taking their jobs. The local gangs identified foreigners through word of mouth, and the foreigners' different features and accents. The gangs looted shops and homes, they beat people to death. This happened again in 2014 and 2015 and continues to this day.

    Fears on return

    39.      Every day in South Africa there are killings and robberies and muggings.

    40.I no longer have the support of my wife in South Africa, I have not connections left as I have been away from South Africa for such a long time. If I was to go back to South Africa I would have to start a fresh. I would need to find a job, earn money, find a place to live, and if I get sick have enough money for medical bills. The previous AAT found that I am a `middle class' South African, this is not too.

    41.Regardless of class, I would not be safe travelling on roads or at home. I have been the subject of xenophobic attacks in the past and I am afraid that I will continue to be targeted. Being a person from Somali origin and with my new advanced age, I may not be able to find any form of work. This could mean that I end up having to live on the streets.

    42.If I am unable to work I would not be able to support myself, feed or clothe myself, I would not be able to get medicine if I fall ill, and I would be more susceptible to xenophobic attacks on the streets.

    43.Currently a Somali South African website provides updates on all the recent violence suffered at the hands of locals, the website says that Somalis are often robbed and killed. The website reports that just in the month of February 2019 there have been 10 killings of Somali people.

    44.Life for Somalis in Johannesburg is very difficult and dangerous. My son [Child M] who is [age] years old, lives with his mother (my ex-wife, [Ms L]) who is also Somali. My son was born in [a] hospital and he has not yet been granted any official papers, the government in South Africa say they do not know how to register him. All he has is a certificate stating his date of birth. All his life he has lived as a prisoner to stay safe, in a house with bars in the windows. He needs to be escorted to school: he rides on a bus driven by a South African driver and he does not venture outside on his own. It is too dangerous.

    45.I am afraid of going back to South Africa, anywhere in the country not just Johannesburg, because I am Somali and I will be targeted by the local criminal, gangs, and other xenophobic people.

    46.There are violent gangs everywhere in South Africa. The police and the authorities will not give me any protection. White police officers still assume that people of colour are trouble makers and they will not assist me, black police officers are also unlikely to help because I look Somali, they may give some help if they receive a bribe. I do not have money to pay the bribes they ask for.

    47.When I lived in South Africa, I had to be very cautious about where I went and what I did because it was too dangerous for me to be out and about. I would ensure I was home by 6 pm and I did not venture out at nighttime. I would need to do the same if I am forced to return, but this time I may not even be able to find a place to sleep at night upon return. In any event, even with these precautions I was targeted and harmed before I left, and I fear that I would be again.

    48.Somalia is a failed state, most of the country is ruled by an Islamic extremist group, Al Shabab. There is mass exodus of Somalis as refugees to other countries such as Canada, Europe and USA. I cannot go back to Somalia, in any event I do not believe I have a right to enter and reside in Somalia.

    49.South African gangs, organized crime syndicates etc. I don't know who they are but they come to city in a group.

    50.The black nationalist South Africans see me as a threat thinking that I will be taking their work, taking their resources etc. For this reason I believe I would be targeted.

    51.Xenophobic attacks are rife in South Africa, I would easily be identified as a Somali south African from my facial features, and my accent, and the way I speak English. I only speak Somali and English. I can't speak any other South African languages like Afircaan, Zulu etc, if someone tries to talk to me in those languages and I can't respond they will know straight away I am not from there.

1. The Tribunal asked the applicant about whether, if he went back to South Africa, he would stay with [Ms N]. In response he said no. When asked why not, he said that [Ms N] had moved on, it had been 10 years and she had her own child. He said that even though they had not gone through the divorce process, [Ms N] had a new relationship and had a child from that new relationship. The Tribunal asked the applicant if there was any reason why he remained married.  In response he said she did not ask him for a divorce. When asked if he wanted a divorce or did not want a divorce he said he did not know but that she had moved on and was living with another man who he did not know.

2. The Tribunal asked the applicant where he would go and what he would do if he returned to South Africa in the foreseeable future. In response he said he was not sure but that in the time he had lived there, it was not easy and said he was not safe.

3. The Tribunal asked the applicant what work he would do if he went back and he said he used to do [specified] work, and only had temporary work, but he did not know what he would do now.  

4. The Tribunal spoke to the applicant about the harm he claimed to have suffered in South Africa, where he indicated he only had a few bruises, to which he said “yes.” He said that it was lucky that nothing major happened to him but referred to the statistics about the people dying in South Africa.

5. The Tribunal referred the applicant to paragraphs 39 and 40 of his statutory declaration. He again asserted he was not middle class.

6. The Tribunal referred the applicant to paragraph 41 of his statutory declaration and asked the applicant whether he he had been the subject of xenophobic attacks. In response, the applicant did not directly answer the question but said that he could not say yes or no to the question and then he said “yes…in a way.” When asked how, he said when he got a job, his job would not last long. The applicant confirmed that he had never been physically attacked. The applicant indicated that it was more that he was subjected to discrimination than any “attack”. He indicated that when he used public transport he felt, by the way he was looked at and the way he was treated, that he was being discriminated against. The applicant again indicated that no-one ever hurt him, but that people had been hostile to him.   

7. The applicant indicated that he was [age] years old, and that because of his age he may not be able to find work. The Tribunal asked the applicant that given he already said he had worked in South Africa and he had worked in Australia, why he thought he would not be able to get work if he returned to South Africa. In response, he said “yes maybe, may not.”

8. The Tribunal referred the applicant to paragraph 43 of his statutory declaration and asked about the website. The applicant indicated that he had not provided the website, and thought it was a [social media]account called “Somali Refugees in South Africa.”

9. The Tribunal referred the applicant to paragraph 47 of his statutory declaration where he said “in any event, even with these precautions I was targeted and harmed before I left, and I fear that I would be again.” The Tribunal put to the applicant that he had said in the hearing he was never harmed but had some bruises. In response the applicant said “luckily nothing happened to me while I was there, but if you look at the statistics and what is happening in South Africa it is a dangerous place.” 

10. The Tribunal asked the applicant whether there was anything more he wanted to say about anything in his statutory declaration and he said “no, Sir.”

11. The Tribunal asked the applicant whether he had been targeted by criminals, vigilantes or anti-immigrant groups. He said that twice his telephone was taken but indicated that was all. He said he remained inside his house for any such events and did not go outside for those events.

12. The Tribunal asked the applicant whether he had ever been to the South African police for any reason, or whether he ever had anything to do with the South Africa justice system. In response he said “no.” He said he had never been charged or convicted of any offence in South Africa.

13. The Tribunal asked the applicant about whether he had a shop, and he said “from time to time.” He indicated that for most of the time he was doing a [specified] job.

14. The Tribunal put to the applicant that he had previously indicated that there were a number of incidents, in 2007, 2008 and 2009, where his shop was attacked and looted.  In response, he said this was true where he used to partner with someone and do this kind of business from time to time.

15. The Tribunal put to the applicant that he had told the Tribunal at the hearing that he had not ever been to the South African police for any reason, or ever had anything to do with the South Africa justice system, but that he had previously told the Tribunal that, after the incidents where the shop was looted, the police would come and used to write down something, and after that no one was following up, he did not want to waste his time to ask them what had happened as he knew nothing would come of it. In response, he said he never went to the police because he knew what the outcomes would have been. He confirmed that he did not go to the police.

16. The Tribunal put to the applicant that he may have given inconsistent information to the Tribunal, that he had previously given information that his shop had been looted and that he had reported the matter to police, but at the current hearing he said he did not go to the police. The applicant again said he did not go to the police.

17. The applicant indicated that his legal wife, [Ms N], was still in [Town 2], South Africa.

18. The Tribunal asked the applicant if there was any person, in particular, that he had a fear of in South Africa. In response he said “no.”

19. The Tribunal put to the applicant that the test was a forward-looking test about what would happen to the applicant in his circumstances if he returned to South Africa. The Tribunal noted the previous reports in relation to violence against Somalis in South Africa. The Tribunal noted that the Tribunal had been provided country information that the Tribunal would consider. The Tribunal put further country information to the applicant, including an article published 15 February 2018 with the title “UNHCR Special Envoy for Somalia commends South Africa for generously hosting thousands of Somalis.”[1]  The article stated:

    [1] Reliefweb, 15 February 2018, UNHCR Special Envoy for Somalia commends South Africa for generously hosting thousands of Somalis, accessed 20 August 2019.

    PRETORIA, South Africa – The generosity of the South African government has ensured that over 300,000 refugees and asylum-seekers live in the country in a free and safe environment, noted UNHCR Special Envoy to the Somalia Refugee Situation.

    “South Africa has a generous policy that grants asylum seekers and refugees free movement, access to jobs and public services,” said Ambassador Mohamed Abdi Affey during a recent visit to South Africa.

    The Special Envoy visited Pretoria and Cape Town from 05 to 09 February and met with Government officials, the Ambassador of Somalia to South Africa and representatives from UNHCR, the UN Refugee Agency, donors and partner agencies.

    He also gave media interviews and met with Somali refugee leaders who gave him first-hand information on the challenges that Somali refugees and asylum-seekers are facing in South Africa including xenophobia, difficulties in accessing the asylum documentation as well as long asylum processes.

    During his meeting with the Deputy Minister for Home Affairs, Hon. Fatima Chohan, Ambassador Affey expressed UNHCR’s gratitude to South Africa for providing asylum space for hundreds of thousands, including nearly 32,000 Somali refugees and asylum-seekers. He especially lauded the Government for its progressive policies that “UNHCR is also promoting with other countries in the region.”

    “Somalia should not be forgotten,” he urged as he appealed to the South African Government to support the ongoing peace and reconstruction efforts inside the war ravaged country.

    Nearly three decades since the start of the Somalia crisis, close to one million Somalis are exiled in the Horn of Africa region.

    “Despite many positive developments in Somalia, the country remains fragile and requires continued support from the international community,” added the Special Envoy.

    He noted that Somalia not only requires financial aid to rebuild shelters, schools and other infrastructure inside the country but also durable solutions for Somali refugees in the region through local integration and third country resettlement.

    Although the situation in Somalia is not yet conducive for large scale voluntary repatriation, UNHCR is providing assistance to those individuals who have made the decision to return. Some Somalis in South Africa have expressed interest in eventually returning to Somalia; however, most of them prefer to wait until the situation in the country stabilizes.

    UNHCR provides technical support to the Government of the Republic of South Africa to enhance the protection of refugees, asylum-seekers and stateless people by working within national, political, economic and social structures to bring policies, practices and laws into compliance with international standards.

    The Special Envoy applauded the cohesive nature of the Government’s partnership with UNHCR and other aid agencies, particularly in helping refugees to find jobs and various sources of income. The livelihood support programmes in place help refugees with micro-grants for businesses, empowerment of women’s skills, local language training and vocational skills training.

    “This kind of support is crucial as it assists refugees and asylum-seekers to integrate locally and contribute productively to the local communities.”

20. The Tribunal also spoke to the applicant about an article published 25 March 2019 with the title “South Africa Launches Plan to Combat Xenophobia and Racism.”[2]  The article stated:

    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 protection for victims, and increase anti-discrimination efforts to help achieve greater equality and justice.

    But the Action Plan fails to address a key challenge fueling the problem: South Africa’s 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.

    Inflammatory public statements – such as those made by Johannesburg mayor Herman Mashaba in December 2016, blaming illegal immigrants for crimes and calling on them to leave the city – should be strongly condemned. As South Africa prepares for national elections on May 8, 2019, political leaders should not incite xenophobic violence or promote discrimination.

    The National Action Plan is a welcome development indicating the South African government’s intent to fight xenophobia, racism, and all forms of discrimination and prejudice. Now it should fully implement that plan, and work to stem the dangerous tides of intolerance for good.

    [2] Human Rights Watch, 25 March 2019, South Africa Launches Plan to Combat Xenophobia and Racism, , accessed 20 August 2019.

21. The Tribunal also spoke to the applicant about an article published 5 April 2019 with the title “South Africa: Authorities must tackle longstanding impunity to end xenophobia.”[3]  The article stated:

    In response to the “follow-up” meeting between the Minister of International Relations and Cooperation Lindiwe Sisulu and the Minister of Police Bheki Cele with Heads of the Diplomatic Missions represented in South Africa “to find a lasting solution” to xenophobic attacks in the country, Shenilla Mohamed, Executive Director of Amnesty International South Africa, said: “Longstanding criminal justice failures and populist rhetoric are some of the reasons behind the latest round of xenophobic violence against refugees, migrants and asylum seekers in South Africa.”

    “Longstanding criminal justice failures and populist rhetoric are some of the reasons behind the latest round of xenophobic violence against refugees, migrants and asylum seekers in South Africa.

    “For many years, South African authorities have largely failed to address past outbreaks of xenophobic crimes that have been seen in the country since at least 2008, including bringing those suspected to be responsible to justice.

    “Political leaders must stop making discriminatory and inflammatory remarks about migrants and foreign nationals especially during their election campaigns ahead of the polls.

    “Rather than making comments that risk fanning the flames of xenophobia, the authorities must act to counter stereotypes, eradicate discrimination and foster greater equality and social cohesion in South Africa.

    “South African authorities must ensure effective protection for refugees, migrants and asylum seekers against xenophobic attacks. The government must take concrete steps to hold suspected perpetrators to account. That begins with tackling impunity for past xenophobia-related crimes.”

    Today’s meeting is a follow-up gathering by the stakeholders following their first encounter on 1 April. The meetings were prompted by the recent spike in attacks in Durban, KwaZulu-Natal Province.

    South Africa has been battling with recurring incidents of xenophobia since 2008, in part fueled by impunity.

    [3] Amnesty International, 5 April 2019, South Africa: Authorities must tackle longstanding impunity to end xenophobia, , accessed 20 August 2019.

22. The Tribunal put to the applicant that the country information indicated that the South African government appeared to be taking some action to deal with the issues of xenophobia and violence in South Africa. In response the applicant indicated that the South African government acknowledges that the problems of xenophobia and violence have existed and do exist, and have taken steps to contain the problem. However the applicant indicated that he thought that the South African government has not successfully dealt with the problems. He expressed concern that attacks on foreigners had continued.

23. The Tribunal then referred to the UK Home Office publication, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation.[4] The Tribunal referred to section 2.2 of the report as follows:

    2.2 Protection

    2.2.1 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 (see South African Police Service).

    2.2.2 The SAPS is under the control of the government and is subject to independent oversight. However, individual police officers have committed human rights abuses including arbitrary arrest, torture and the use of lethal and excessive force. Although there are reports of police impunity, mechanisms are in place to investigate police abuses, and some security service members who have committed human rights violations have been prosecuted (see Security apparatus, South African Police Service; Abuses by the police; and Police oversight bodies).

    2.2.3 The law provides for an independent judiciary and the government generally respected this: the courts operate with autonomy. Criminal defendants have a legal presumption of innocence and the constitutional bill of rights provides for due process and equal protection. The judiciary is, however, understaffed and underfunded, and some civil society groups allege corruption is a problem (see South African Police Service, Judiciary, Independence and Judiciary, Fair trial). Despite this, the courts continue to process large numbers of cases. The criminal courts received more than 900,000 new ‘dockets’ and ‘progressed’ over 500,000 cases leading to a court judgment or were resolved through alternative dispute resolution mechanisms between April 2016 and March 2017. The large majority of criminal cases resulted in a conviction, although this varied between the courts and for different types of crime (see South African Police Service, Judiciary, Independence and Judiciary, Fair trial).

    2.2.4 South Africa has a functioning criminal justice system which makes attacks by non-state actors punishable and the government has shown a reasonable willingness and ability to enforce the law. In general, a person fearing non-state actors (including rogue state actors) is likely to be able to obtain effective state protection although each case must be determined on its own facts. The onus is on the person to demonstrate that the state is not willing and able to provide effective protection.

    [4] UK Home Office, December 2017, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation, accessed 20 August 2019.

24. The Tribunal put to the applicant that South Africa that, in respect to the information in the UK Home Office report, the Tribunal noted the issues with the South African Police including corruption but that it appeared likely that the applicant would be able to obtain effective protection from the South African authorities should he return to South Africa in the foreseeable future. In response the applicant indicated that the South African Police were too corrupt to provide the requisite level of state protection.

100.   The Tribunal then spoke to the applicant about a UNHCR report dated 21 March 2017 with the title “Somali refugee leader insists local integration in South Africa is best solution of all.”[5]

[5] UNHCR, 21 March 2017, Somali refugee leader insists local integration in South Africa is best solution of all, , accessed 20 August 2019.

JOHANNESBURG, South Africa – As Amir Sheik, the National Chairperson of the Somali Community Board of South Africa (SCBSA), walks into his office, the stricken look on the faces of his countrymen fuels him with the determination to promote local integration, one of three durable solutions offered by UNHCR, the UN Refugee Agency, a reality for most of them.

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.