1924718 (Refugee)

1924718 (Refugee) [2022] AATA 5092 (25 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Johanna Barnard (MARN: 1277481)
CASE NUMBER:  1924718
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Kate Chapple
DATE:25 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 25 November 2022 at 11:24am
CATCHWORDS
REFUGEE – protection visa – South Africa – applicants face considerable difficulties due to age, health, isolation, financial and housing issues – likelihood of physical, mental and economic harm – widespread adverse conditions in South African society – harm does not amount to persecution – strong compassionate circumstances – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
OVERVIEW

Applicant 1, turning [age], was born in a small town southeast of Johannesburg, South Africa. Her daughter and only child, Applicant 2, turning [age], was born in another small town in the same province. Applicant 1’s husband died over 40 years ago. Some years later, Applicant 1 went to live with Applicant 2 and her family in Pretoria. Applicant 2 has two [children] who later immigrated to Australia. Around 20 years ago, the applicants moved to a small town northeast of Johannesburg where they became active members of the local church community. After Applicant 2’s husband died eight years ago, the church provided financial assistance to enable the applicants to continue renting their home. Applicant 2 has a disability and has been in a wheelchair for most of her life. Both applicants also suffer chronic genetic health conditions.
The applicants visited family members in Australia in 2010, 2012, and 2016, on each occasion staying for around three months. The applicants last arrived in Australia, again to visit family members, in November 2018, and have remained here since. Sometime after arriving, the applicants received advice from their local church that the rental assistance would cease in January 2019. They applied for a protection visa the following month.
The applicants have no remaining family in South Africa and are without the physical and financial means to care for and support themselves in South Africa. They fear the levels of violence and crime in South Africa, including towards white South Africans, and feel particularly vulnerable given their advanced age, Applicant 2’s disability, and their lack of resources and ability to protect themselves.
With the assistance of their representative, the applicants acknowledged to the Tribunal at hearing that their claims for protection do not satisfy the legislative requirements and instead they seek a recommendation from the Tribunal for ministerial intervention on compassionate grounds. The applicants elected not give evidence at hearing regarding their protection claims.
Following the hearing, the applicants’ representative provided to the Tribunal a written submission in support of this request addressing the ‘unique or exceptional circumstances’ requirement of the Minister’s guidelines on ministerial powers (s351, s417 and s501J) (‘the Minister’s guidelines’).
Under s 417 of the Act, the Minister can substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. This ministerial power is personal and non-compellable, and can only be exercised where there is an existing decision from (inter alia) the Tribunal’s Migration and Refugee Division.
The Tribunal is not required to refer a case for ministerial intervention, only to consider a request for referral. The Tribunal may refer a case to the Department if the member believes the issues involved fall within the ‘unique or exceptional circumstances’ described in the Minister’s guidelines. The Department must assess the circumstances of the case and may refer the case to the Minister where it meets the guidelines for referral.
Where the Tribunal decision affirms the delegate’s decision to refuse the applicant’s protection visa application, at the request of the applicant, the Tribunal must consider the applicant’s submission and whether the circumstances of their case fall within any of the unique or exceptional circumstances set out in the Minister’s guidelines.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
Applicant 1 made the following protection claims:
9.1.(reason for leaving South Africa) The country is dangerous and especially for the elderly, it is a risk to leave your house. One never knows who might be waiting for you. We once went to church and when we came back they had invaded the privacy of our home and stolen our possessions. They obviously knew our moves: when we were at home and when we went out. They also knew that we go to church on Sundays and that the house is an open target.
9.2.(details of harm in South Africa) They stole valuable articles when they broke into our house. Once while I was at the ATM wanting to draw money I was having some problems with my card that just didn't seem to work. A man approached me and said he'll help. He took my card before I could stop him (please remember I'm a 90-year-old retired woman) rubbed my card up and down his leg, and gave it back to me then he walked away. Later I was to discover that R2000 was taken out of my account.
9.3.(help sought) The incidents were reported to the police. Reports were filed but nothing was ever recovered and no-one was arrested.
9.4.(attempts to move) Applicant 1 did move from the capital city to a regional town called [Town 1]. The reasons for this move was firstly to be closer to family and it was getting increasingly dangerous to live in the city. There was a lot of crime happening at that time in densely populated areas. Another reason for the move was affirmative action. The applicant's son-in-law, that she was staying with, couldn't find any employment in any Government agencies or department.
9.5.(what will happen if return to South Africa) Applicant 1 is now at an advanced age having turned [age] in [2018]. She had lived with her daughter and son-in-law for the past 25 years. In 2001 when they moved to [Town 1] she went with them because she was dependent at that stage. In 2014 the applicant's daughter and her husband lived in [Town 1]. The husband passed away in December 2014 leaving the daughter a widow and Applicant 1 being the dependant and in the role of carer for her daughter. So the reason why they moved was for safety reasons. Being of advanced age they really fear for their safety, being two women on their own. They also have no more family living anywhere near them and in no other part of the country. Both the daughter’s two children have since immigrated to Australia, so there's nobody else close to them. They also cannot live with anybody else, also they have a threat of homelessness as their rental they have been renting for the past fourteen years used to be paid by their church. But the church has indicated that they will not be able to continue paying the rent for the property. The daughter being in a wheelchair can only use certain accommodation that has a big enough bathroom and a house that has no steps. It has to be accessible; it has to be spacious and there are not many rental properties available that are suitable for disabled people in [Town 1]. Applicant 1 has also fallen and is not as capable of helping her daughter into the car and picking up the wheelchair as she used to be due to her age.
Due to threats of violence against the white population in South Africa, the two applicants feel very vulnerable in their country. Their advanced age and the daughter being in a wheelchair have no defence and are not able to protect themselves or even defend themselves if there were to be a home invasion or a violent burglary or anything like that. These are not unsubstantiated claims. There are many instances where their neighbours have been attacked. Farmers have been attacked in the area and numerous violent crimes have occurred in the area. So there is a great threat happening and they feel very, very unsafe. As two elderly ladies, they never go out at night due to a restricted movement in not knowing who is watching them and not knowing who might attack them at night.
9.6.(details of harm if return to South Africa) The likelihood of being harmed is great. Various political figures have stated they wish to bring harm to the white population of South Africa; they want to kill the farmer, "kill the Boer" and these are not unsubstantiated threads. These are threats that are carried out regularly and people do live in fear. These two ladies being elderly do fear for their lives, they do not feel safe and they have no means of defending themselves or have anybody who can defend them. They are completely alone in their country and they have nowhere to go and no family to go to or to defend them.
9.7.(reason authorities won’t provide protection) The applicants are not sure if the authorities will protect them. There have been instances where police have been called and they simply have not arrived or they have taken such a long time to arrive that the perpetrators of those crimes were never found. There are also reports and newspaper articles stating that often times police are involved in these violent crimes.
9.8.(reason unable to relocate) Applicant 1 does not think that they would be able to relocate to any area in their country simply for the reasons stated above.
Applicant 2 made the following protection claims, in similar terms to Applicant 1’s protection claims:
10.1.(reason for leaving South Africa) The country is dangerous and especially for the elderly, it is a risk to leave your house. One never knows who might be waiting for you. We once went to church and when we came back they had invaded the privacy of our home and stolen our possessions. They obviously knew our moves: when we were at home and when we went out. They also knew that we go to church on Sundays and that the house is an open target.
10.2.(details of harm in South Africa) They stole valuable articles when they broke into our house. They broke the window and send a child in to rob our house.
10.3.(help sought) The incidents were reported to the police. Reports were filed but nothing was ever recovered and no-one was arrested.
10.4.(attempts to move) In December 2014 my husband passed away, leaving me as a widow and my mother had to fill the role my husband used to do for me, like driving me around to town for instance or she took on the part of carer for me. So the reason why we moved was firstly for safety reasons and secondly for employment. After my husband passed away we became very vulnerable because my mother was getting on in years and we both felt it wasn't very safe being two elderly women on our own.
We also have no more family living anywhere near to us and in no other part of the country. Both my married children have since immigrated to Australia, so there's nobody else close to us. It is also very difficult to live with other people.
We are also facing a threat of homelessness as the rental we have been renting for the past fourteen years used to be paid by their church. But the church has indicated that they will not be able to continue paying the rent for the property much longer. I am in a wheelchair and can only use certain accommodation. It has to be accessible; it has to be spacious and there are not many rental properties available that suits this description. My mother has also fallen and is not as capable of helping me into the car and picking up the wheelchair as she used to be, due to her age and the injury sustained in her fall.
10.5.(what will happen if return to South Africa) Due to threats of violence against the white population in South Africa. both my mother and I feel very vulnerable in South Africa. We are advanced in age and although we are not sickly, we feel unsafe living alone in one big house. Being in a wheelchair I have no defence and are not able to protect ourselves or even defend ourselves if there were to be a home invasion or a violent burglary or anything like that. These are not unsubstantiated claims. There are many instances where our neighbours have been attacked. Farmers have been attacked in the area and numerous violent crimes have occurred around us. So there is a great threat happening and we feel very, very unsafe. As two elderly ladies, we never go out at night due to restricted movement in not knowing who is watching us and not knowing who might attack us at night.
10.6.(details of harm if return to South Africa) The likelihood of being harmed is great. Various political figures have stated they wish to bring harm to the white population of South Africa; they want to kill the farmer, "kill the Boer" and these are not unsubstantiated threads. These are threats that are carried out regularly and people do live in fear. We two ladies, being elderly, do fear for their lives. We do not feel safe and we have no means of defending ourselves or have anybody who can come to our rescue, should we be in such a situation. We are completely alone in this country and we have nowhere to go and no family to go to or to defend us.
10.7.(reason authorities won’t provide protection) I don't believe the authorities of our country will protect or help us in any way. There have been instances where police have been called and they simply have not arrived or they have taken such a long time to arrive that the perpetrators of those crimes were never found. There are also reports and newspaper articles stating that often times police are involved in these violent crimes.
10.8.(reason unable to relocate) I do not think that they would be able to relocate to any area in their country simply for the reasons stated above.
Documents submitted in support of the applicants’ protection claims:
11.1.Reference dated 25 November 2018 from the applicants’ friend in South Africa attesting to their good character and circumstances.
11.2.Reference dated 28 November 2018 from the principal of a Christian school in South Africa attesting to their good character and circumstances.
11.3.Letter from the local church pastor to the applicants dated 31 January 2019 confirming that the church was unable to provide financial support for rent from 1 January 2019.
11.4.Links to 2018 online articles regarding farm murders, crime rates, and violence against women in South Africa.
11.5.Statement by Applicant 2 provided at the departmental interview.
Other departmental records:
12.1.Decision record relating to the delegate’s refusal decision.
12.2.Interview audio file.
12.3.Case file.
12.4.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing on 18 November 2022 and to provide pre-hearing submissions.
Prior to the hearing, the applicants’ representative provided to the Tribunal:
14.1.Statement dated 15 October 2022 by Applicant 2 regarding the circumstances and health of both applicants and the importance of their remaining in Australia with family.
14.2.Statement (undated) by Applicant 2’s son (and Applicant 1’s grandson) regarding his own ill-health and the importance of the applicants remaining in Australia with family.
14.3.Statement (undated) by Applicant 2’s daughter (and Applicant 1’s granddaughter) regarding the applicants’ family circumstances and the importance of the applicants remaining in Australia with family.
14.4.Statement (undated) by Applicant 2’s granddaughter (and Applicant 1’s great granddaughter) regarding the applicants’ family circumstances and the importance of the applicants remaining in Australia with family.
14.5.An email to the Tribunal on the morning of the hearing resubmitting the above statements with the message: Last minute personal statements (compelling & compassionate circumstances for MI recommendation).
The Hearing
The applicants appeared before the Tribunal at a hearing conducted via video link on 18 November 2022. The applicants’ representative attended via video link. The applicants were assisted by their grandson/son.
At the start of the hearing, the Tribunal sought clarification from the applicants’ representative as to how the applicants intended to proceed, given the content of the email sent on the morning of the hearing. The representative advised the Tribunal that she had consulted with the applicants who acknowledged to her that while they had many concerns and fears about returning to South Africa, they understand they do not satisfy the legislative requirements for a protection visa, and instead, they believe their best hope is to request the Tribunal to consider recommending their case for referral for ministerial intervention on compassionate grounds (‘request for recommendation’).
The Tribunal received advice from the applicants’ representative that the applicants did not wish to give evidence in support of their previous protection claims, and the applicants confirmed this advice.
The Tribunal explained to the applicants that the effect of their request for recommendation would be that the Tribunal would likely make a decision to affirm the delegate’s decision to refuse their protection visa application.
The Tribunal explained to the applicants that they are entitled to make a request for recommendation, and the Tribunal is obliged to consider their request, however it is not obliged to make the recommendation.
The Tribunal explained to the applicants that the Minister’s power to intervene sits solely with the Minister, and that it is a discretionary power only activated where there is an existing Tribunal decision, in this case a decision to affirm the delegate’s decision to refuse their protection visa application.
The Tribunal explained to the applicants that if the Tribunal does not make a recommendation for ministerial intervention, they are still entitled to make a direct request to the Department for ministerial intervention.
The Tribunal read aloud to the applicants section 4 of the Minister’s guidelines.
The applicants did not give evidence in support of their previous protection claims.
The applicants and their grandson/son spoke briefly to the contents of the statements provided to the Tribunal prior to the hearing.
The Tribunal agreed, at the request of the applicants’ representative, to receive a written submission regarding the request for recommendation seven days after the hearing.
Post-hearing submissions
On 24 November 2022, the applicants’ representative provided to the Tribunal a submission headed, Request for Ministerial Intervention Recommendation (‘the ministerial intervention submission’).
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considers that there is no substantive difference between the applicants’ claims, evidence, and circumstances as to warrant separate consideration by the Tribunal.

The Tribunal notes that, on the evidence before it, the applicants did not experience targeted discrimination or harm when they lived in South Africa.
The Tribunal accepts the statements provided by the applicants and their family members as truthful accounts of the applicants’ history and circumstances.
The Tribunal notes the applicants’ acknowledgement that they do not satisfy the legislative requirements for a protection visa, and on that basis, they elected not to give evidence in support of their previous protection claims, and instead, to make a request for recommendation.
The Tribunal has considered the country information set out in Attachment B, and notes the following in light of the applicants’ claims, evidence, and circumstances:
31.1.Racism and racial intolerance remain a central problem in South Africa, affecting millions of people. Interracial distrust remains a distinct feature of everyday life. A significant portion of the adult population reported hostile interracial contact. More than a quarter said that they did not trust racial others at all. A clear majority saw racial others as a threat to their economic, political and cultural position in society. A majority of South Africans feel threatened and victimised for their race, no matter their race, by other race groups.
31.2.Violent crime is a serious problem in South Africa. There are no areas in South Africa that are dangerous for white South Africans per se; there are areas that are dangerous for everybody. Young black men experience the highest murder rate in the country.
31.3.The state provides all South Africans who are victims of crime the same services, irrespective of race. Strong efforts have been made by police in recent years to decrease response time to incidents, however, given the high crime rate, police stations and infrastructure are not always available. Police in South Africa are viewed by South Africans as often ineffective. The criminal justice system is seen as not enough of a deterrent to criminals who believe they won’t be caught.
31.4.Violence against women in South Africa is pervasive and has become normalised, with the country having one of the highest rates of rape and domestic violence in the world. It is however part of a broader crime problem within South African society in which men are more likely to be victims of some forms of violent crimes than women.
31.5.Little progress has been made by the South African government in the implementation of the Older Persons Act passed in 2006. The challenges facing older people in South Africa go beyond social welfare. Without proper implementation of the Act, older persons remain vulnerable to abuse, violence, exploitation and ageism.
31.6.The South African Council for the Aged, now known as ‘Age-in-Action’, is the peak body in South Africa advocating for the rights of older people, undertaking research, promoting wellbeing and security programs, and providing community-based services for frail, bedridden, vulnerable and needy older people.
31.7.Health care is divided into public and private facilities, the latter dependent on an individual’s ability to pay. The medical schemes supported by wealthy South Africans leave a poorly funded and resourced public health sector. South Africa is moving towards the implementation of a national health insurance scheme, aiming to ensure that all citizens and residents of South Africa, irrespective of socio-economic status, have access to good quality health services provided by the public and private sectors.
31.8.The South African government provides social welfare to older people aged 60 and over through the Older Persons Grant and older persons’ residential facilities, subject to eligibility requirements. The Older Persons Grant is considered an important pillar of South Africa’s social protection system, however, despite a recent increase, questions remain regarding its adequacy given rising inflation and costs of basic living.
The Tribunal considers that, on the evidence before it, the applicants would face considerable difficulties returning to live in South Africa due to the following (‘primary vulnerabilities’):
32.1.The applicants’ advanced ages, Applicant 1 being [age] and Applicant 2 being [age].
32.2.The applicants’ chronic genetic health conditions.
32.3.Applicant 2’s long-term disability and wheelchair reliance.
32.4.Applicant 1’s decreasing capacity as she ages to care for Applicant 2.
32.5.The applicants’ inability to care for their son/grandson in Australia who suffers the same genetic health condition.
32.6.Separation from family in Australia.
32.7.No remaining family in South Africa.
32.8.Withdrawal of previous accommodation support provided by the local church in their former small-town community in South Africa.
32.9.Loss of connection with their former small-town community in South Africa.
32.10.No home to return to in South Africa.
32.11.Inability to earn income and limited resources.
32.12.No ready assistance and support network in South Africa.
32.13.Limited or no capacity to access government or charitable welfare, accommodation, health and social support services in South Africa without significant assistance and support.
The Tribunal accepts that the applicants’ primary vulnerabilities make them further vulnerable to physical and mental ill health and the prevailing widespread adverse conditions in South African society, including poverty, homelessness, isolation, abuse, violence and crime (‘secondary vulnerabilities’).
The Tribunal accepts that both primary and secondary vulnerabilities are the source of considerable fear and distress for the applicants.
The Tribunal does not accept however, based on the country information, that the secondary vulnerabilities would arise by reason of the applicants being white South Africans or any other reason making them the target of discrimination and harm by perpetrators, and unwillingness or failure to adequately protect by the state authorities.
Other considerations
In considering the claims and evidence, the Tribunal has also taken account of:
36.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
36.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Findings of fact
Based on the consideration of claims and evidence and supporting material set out above, and taking into account the country information and other considerations, the Tribunal finds that:
37.1.The applicants are citizens of South Africa.
37.2.The applicants’ fears are founded in their primary and secondary vulnerabilities.
37.3.The applicants are likely to suffer physical, mental and economic harm if they return to South Africa as a result of their primary and secondary vulnerabilities and the widespread prevailing adverse conditions in South Africa faced by the population generally.
37.4.The harm is not likely to involve systematic and discriminatory conduct targeted at the applicants by reason of their status as white South Africans or any other reason and would therefore not amount to persecution.
37.5.The harm is not likely to involve the applicants being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman conduct or degrading treatment or punishment.
Application of law
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. Attachment A sets out the applicable law.
Based on the findings of fact:
39.1.The applicants are non-citizens in Australia.
39.2.If the applicants are returned to South Africa, there is no real chance that they would be persecuted, and accordingly the applicants do not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
39.3.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa there is a real risk the applicants will suffer significant harm.
CONSIDERATION OF REQUEST FOR REFERRAL FOR MINISTERIAL INTERVENTION
The ministerial intervention submission seeks to address the unique or exceptional circumstances requirement set out in the Minister’s guidelines.
The Tribunal considers that the matters set out in this decision record, including the primary and secondary vulnerabilities articulated in paragraphs 32 and 33, the arguments made in the ministerial intervention submission, and the supporting statements referenced in paragraph 14, raise strong compassionate circumstances regarding the applicants and their Australian family unit that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to both the applicants and their Australian family unit.
There is no evidence before the Tribunal that suggests there are any circumstances relating to either applicant that would render their case inappropriate for ministerial consideration.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence before the Tribunal that suggests that either applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2)(b) or (c).
Having regard to the Minister’s guidelines, the Tribunal considers that there are valid unique or exceptional circumstances warranting referral of the applicants’ case to the Department for consideration by the Minister pursuant to s 417 of the Act.
decision
The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
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).
Relevant extracts 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.
ATTACHMENT B
Relevant Country Information
Safety of white South Africans
Numerous sources indicate that violent crime is a serious problem in South Africa.1 For example, according to a September 2018 Africa Check2 factsheet, there were 20,336 murders in South Africa between 1 April 2017 and 31 March 2018 – up from 19,016 murders the year before.3 The country’s murder rate also increased from 34.1 per 100,000 people to 35.8 – an average of 56 murders per day.4 This rise in the total number of murders is the biggest single increase since the end of apartheid and is part of a 17 per cent rise in murder over the past five years.5
Police Minister Bheki Cele in 2018 described the statistics as being close to those found in a war zone,6 while criminologists agree that, while poor areas are particularly affected,7 violent crime is pervasive in South Africa and affects every sector of society.8
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 in a September 2018 Immigration and Refugee Board of Canada report 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’.9
The Chief Executive Officer of the South African Human Rights Commission is quoted in the same report as stating that ‘white people … experience less crime than other racial groups’ in South Africa, while the Vice-Chancellor of Witwatersrand University in Johannesburg says that ‘violence is experienced more by black South Africans’.10
However, according to a 2016 survey conducted by Statistics South Africa – again, cited in the Immigration and Refugee Board of Canada report – ‘households headed by white and Indian/Asians were more likely to be affected by crime than other population groups’, including burglary and the theft of a motor vehicle or motorcycle.11 As regards the overall threat of violent crime in South Africa, statistics demonstrate that young black men in townships experience the highest murder rate in the country – estimated in March 2018 by the head of the Institute for Security Studies, a Pretoria-based think tank, to be between 200 and 300 per 100,000.12
1 For example: ’FACTSHEET: South Africa’s crime statistics for 2017/18’, Africa Check, 11 September 2018, CXBB8A1DA36240; ‘South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018, CXBB8A1DA36247; ‘Accurate statistics are needed for the SA farm murder debate’, Institute for Security Studies, 11 December 2017, CXC90406620670
2 According to its website, Africa Check is ‘a non-profit organisation set up in 2012 to promote accuracy in public debate and the media in Africa’.
3 ’FACTSHEET: South Africa’s crime statistics for 2017/18’, Africa Check, 11 September 2018, CXBB8A1DA36240
4 ’FACTSHEET: South Africa’s crime statistics for 2017/18’, Africa Check, 11 September 2018, CXBB8A1DA36240
5 ‘South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018, CXBB8A1DA36247
6 ‘South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018, CXBB8A1DA36247
7 ‘Accurate statistics are needed for the SA farm murder debate’, Institute for Security Studies, 11 December 2017, CXC90406620670
8 ‘Ramaphosa’s ‘killings of white farmers’ comment: What the president meant’, News24, 27 September 2018, CXBB8A1DA36246
9 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
10 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
11 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
12 ‘South Africa criticises Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018, CXBB8A1DA23903
Availability of state protection for white South Africans
Police in South Africa are viewed as often ineffective. A 2015 South African Human Rights Commission report refers to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent’.15 The US Department of State’s 2019 South Africa crime and safety report says that police have made a strong effort to decrease their response time to incidents in recent years, and that there are effective detective programs at all police stations, with detectives on duty at all times.16 However, the report says that while there has been an improvement in community policing, many South Africans mistrust police and see them as corrupt.17 John Campbell, the senior fellow for Africa policy studies at the Council on Foreign Relations quoted in the September 2018 Immigration and Refugee Board of Canada report, notes that ‘there are state protection measures available to white South Africans who are victims of violence’:18
For instance, the SAPS [South Africa Police Service] 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). 19
The Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, states that the state provides all South Africans who are victims of crimes the same services, irrespective of race. However, he says that ‘while the crime rate remains high, police stations and the appropriate infrastructure to address the high crime rate are not always available’. 20
15 ‘Safety and Security Challenges in Farming Communities’, South African Human Rights Commission, 27 November 2015, p.81, CISEC96CF110209
16 ‘South Africa 2019 Crime & Safety Report’, US Department of State, 6 March 2019, 20190603163059
17 ‘South Africa 2019 Crime & Safety Report’, US Department of State, 6 March 2019, 20190603163059
18 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
19 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
20 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333
Department of Justice South Africa, Human Sciences Research Council, Baseline Study to Determine Levels of Racism, Anti-Foreigner Sentiment, Homophobia, Racial Incidents, Inter-Racial Relations and Perceptions of National Identity (2021)
The prominent form of discrimination reported by the general population is, perhaps unsurprisingly, racism and racial intolerance. According to the SEJAS dataset, 5% of the adult population reported experiencing racial discrimination in the year prior to the survey interview. About two-fifths (43%) of racial discrimination victims said that they experienced intolerance at the workplace while 37% told fieldworkers that it happened in a public place. But by not making a particular form of discrimination salient in the wording of the question, the SEJAS data may be underestimating racial discrimination in the country. Respondents in the South African Social Attitudes Survey (SASAS) series were asked how often they felt personally racially discriminated against. In 2018 almost a third (30%) of the adult public said that they felt racially discriminated against sometimes and 15% said that they were discriminated against often or always. It is clear from this dataset that racism and racial intolerance remain a central problem in South Africa, affecting millions of people.
Interracial distrust remains a distinct feature of everyday life. A significant portion (23%) of the adult population reported hostile interracial contact. More than a quarter (26%) of the adult public said that they did not trust racial others at all. A majority feel threatened by other race groups. A clear majority saw racial others as a threat to their economic, political and cultural position in society. It is clear that a sizeable segment of the population feel that they are victims of racism. Summarising the point that a majority of South Africans feel victimised for their race, no matter their race.
Women remain a vulnerable group in South African society, and the government has committed to fighting gender-based discrimination. The vast majority of Black African women feel that the authorities are delivering on this mandate. But many continue to suffer discrimination. About an eighth (12%) of the adult female population, according to Afrobarometer data, in South Africa said that they had recently experienced gender-based discrimination with 5% indicating that this had occurred several or many times. Gender-based discrimination needs to be understood within the broader context of gender-based violence.
Gender-based targeting of crime
Country information states that violence against women in South Africa is pervasive and has become ‘normalised’, with the country having one of the highest rates of both rape and domestic violence in the world. However, information also indicates that this is part of a broader crime problem within South African society in which men are more likely to be victims of some forms of violent crime than women.
While noting the extent to which crime against women may be underreported, the South African Police Service’s 2017/2018 annual crime report – the most recent available – nevertheless provides a snapshot of crime against women in South Africa. Overall, crime against women increased 2.4 per cent in the reporting period, from 173,405 to 177,620.5 The number of murders in which the victims were either women or children increased by 12.6 per cent, 6 with the report identifying 2930 female murder victims.7
5 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, p.38, 20190814095259
6 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, 20190814095259
7 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, 20190814095259
Older women
Available sources are unclear regarding whether older women are more at risk of becoming victims of crime than other groups. An August 2019 Human Rights Watch report about South African sex workers notes that ‘certain groups of women face increased vulnerability to violence’, including women and girls with disabilities, elderly women, poor women, and lesbian, bisexual, transgender, and gender nonconforming women.45
However, data from the South African Police Service’s 2017/2018 annual crime report does not appear to support this. According to an analysis of a national sample of 962 cases of crime (involving 1004 victims) against women and children reported between July 2016 and June 2017, almost half of the women (311 or 49.3 per cent) were aged between 18 and 29 years, with a further 168 (27.1 per cent) between 30 and 39 years and 80 (12.7 per cent) aged between 40 and 49 years.46
More broadly, while not providing specific information based on gender, an analysis of 1133 domestic crime cases reported from 1 April 2016 to 31 March 2017 found that nearly three-quarters (855 or 74.6 per cent) were aged between 20 and 49 years, with 323 (28.2 per cent) aged between 20 and 29 years, 322 (28.1 per cent) between 30 and 39 years and 210 (18.3 per cent) between 40 and 49 years.47 Again, while not referring specifically to gender, the report cites statistics from the North West province which show that 2949 (37.6 per cent) of victims of assault were aged between 18 and 35 years, 2060 (26.2 per cent) between 36 and 59 years and 1558 (19.8 per cent) of victims were 17 years old or younger.48
45 ‘Why Sex Work Should be Decriminalised in South Africa’, Human Rights Watch (HRW), 07 August 2019, p.19, 20190809124626
46 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, p.38, 20190814095259
47 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, p.41, 20190814095259
48 ‘Annual Crime Report 2017/2018’, South African Police Service, 31 August 2018, p.34, 20190814095259
South African Older Persons Forum – 2022 Newsletter, Forum News
There can be no doubt, in environments where older persons lack institutionalised representation, ageism and discrimination is common.
The Older Persons Act (Act 13 of 2006) was enacted in 2006 and the Act and regulations came into effect in April 2010. Today, 11 years later, it is shocking to note just how little progress has been made by Government in regard to the implementation of the Act.
Although the Department of Social Development are the custodians of the Older Persons Act, the challenges that older persons are facing in South Africa extend far beyond social welfare.
There can be no doubt about the fact that older persons, as a vulnerable group in our society, need to be protected and supported. Without the protection offered in this Act being properly implemented, older persons will remain vulnerable to abuse, violence, exploitation, and ageism.
Age-in-Action, The South African Council for the Aged
Founded in 1956 as “The South African Council for the Aged”, now known as “Age-in-Action”, is the body representing more than 2.7 million older people. The Organisation also has over 800 NGO’s as members who provide vital services to more than 150 000 older persons in need of care. In terms of its mission, namely to protect and promote the interests and well-being of all elderly persons, we strive to:
- To initiate and promote programmes aimed at advancing the status, wellbeing, safety and security of vulnerable and needy older persons.
- To provide community -based health care services for frail, bedridden, vulnerable and needy older persons.
- To initiate prevention and educational programmes on HIV/AIDS for older persons.
- To provide empowerment programmes for vulnerable and needy older persons visa viz., adult education.
- To conduct relevant social research so as to provide and initiate effective interventions.
- To compile relevant publications and disseminate information relating to older persons.
- To initiate and implement inter-generational programmes. To lobby and advocate for the rights of older persons.
Access to healthcare
Access to healthcare is guaranteed to every South African citizen under the country’s Constitution. In practice, the provision of health services is divided into public and private facilities – the latter dependent on an individual’s ability to pay. According to a 2015 African Institute of Health & Leadership Development46 report, the majority of South Africans access health services through government-run public clinics and hospitals: 47
The public health services are divided into primary, secondary and tertiary through health facilities that are located in and managed by the provincial departments of health. The provincial departments are thus the direct employers of the health workforce while the National Ministry of Health is responsible for policy development and coordination. South Africa’s Constitution guarantees every citizen access to health services (section 27 of the Bill of Rights). However, everyone can access both public and private health services, with access to private health services depending on an individual’s ability to pay. The private health sector provides health services through individual practitioners who run private surgeries or through private hospitals, which tend to be located in urban areas. 48
A 2018 University of Minnesota School of Public Health analysis of the South African health care system says that the current system is divided into private and public sectors with an uneven distribution of funds to different regions of the country:
The private sector is made up of medical schemes or forms of voluntary health insurance designed to exclude black South Africans. These schemes were created for white miners that did not want to receive their health care with the black population. Not until 1970 were black citizens even allowed into medical schemes [5]. Currently, the cost of the medical schemes makes them inaccessible to most South Africans, and less than 15% of the population are covered by a scheme. The individuals under a medical scheme and their employers contribute an average premium of approximately US $1,571 annually. The private sector has private providers and private hospitals, where providers typically station their offices [5].49
The report says that the remainder of the population receives their care from the public sector and that ‘the medical schemes paid and supported by the affluent members of the population leave a poorly funded public health care sector’.50 It says that ‘social disparities in distribution and access to care leave a gap in mortality and death rates between races’, while ‘physician shortage and vacancies in public health roles leave a gap in health care efficiency throughout South Africa’.51
An undated webpage about healthcare in South Africa published by global health insurer Allianz Care says that the standard of healthcare in South Africa is considered to be the best on the African continent, particularly in urban and coastal areas:
The country has a number of private and public hospitals, nursing homes and clinics.
Hospitals and doctors will often require immediate payments for their health services. However, if you wish to have a consistent level of service, private health insurance is recommended. South Africa has guaranteed universal access to subsidised public health care, for all citizens, based on a sliding scale according to income. A National Health Insurance (NHI) initiative is in a pilot phase prior to being introduced across the country in a phased approach from 2016 - 2025. Private healthcare is prominent in South Africa and continues to grow rapidly driven by private medical insurance and by popular demand for personal choice and ease of access to higher quality services. This growth comes at a price of high annual inflation in private medical costs.52
National health insurance scheme
A number of sources state that South Africa is moving towards the implementation of a national health insurance scheme. A South African government website says that the scheme ‘aims to ensure that all citizens and residents of South Africa, irrespective of socio economic status, have access to good[1]quality health services provided by both the public and private sectors, thereby eradicating financial barriers to health care access’.53 The undated Allianz Care webpage noted that the national health insurance initiative was in a pilot phase prior to being introduced across the country in a phased approach from 2015 to 2025.54 However, sources have raised questions about the sustainability of such a scheme. For example, while the University of Minnesota report says that ‘in 2009, South Africa’s Department of Health initiated a form of Social Health Insurance presented as a National Health Insurance plan that was developed to reduce disease burden, improve overall health, and make health care more accessible and affordable for South Africans’, 55 it concludes that ‘the government’s plan to fund the National Health Insurance reform is unrealistic based on the income disparities in the country’.56
A September 2018 Immigration and Refugee Board of Canada report provides some information about the relative level of access to healthcare of white South Africans as opposed to their black compatriots, with the report finding that South Africans do not face any specific challenges in terms of access to health. 57
47 ‘Minimum data sets for Human Resources for Health and the surgical workforce in South Africa’s Health System – A rapid analysis of stock and migration’, African Institute of Health & Leadership Development, September 2015, p.3, 20190606095745
48 ‘Minimum data sets for Human Resources for Health and the surgical workforce in South Africa’s Health System – A rapid analysis of stock and migration’, African Institute of Health & Leadership Development, September 2015, p.3, 20190606095745
49 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.3, 20190603174318 50 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.3, 20190603174318 51 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.6, 20190603174318
50 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.3, 20190603174318
51 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.6, 20190603174318
52 ‘Healthcare in South Africa’, Allianz Worldwide Care, 2019, 20190603174855
53 ‘Health’, South African Government, 2019, 2019603175301
54 ‘Healthcare in South Africa’, Allianz Worldwide Care, 2019, 20190603174855
55 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.2, 20190603174318
56 ‘South African health care system analysis’, University of Minnesota, 30 November 2018, p.7, 20190603174318
57 ‘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 (2014-September 2018)’, Immigration and Refugee Board of Canada, 21 September 2018, p.2, OG690C1A333
Eligibility for social welfare – South African Government
**Old Age Grant – qualification requirements
·     South African citizen, permanent resident or refugee
·     Live in South Africa
·     60 years or older
·     Meet requirements of means test
·     Not be maintained or cared for in an institution funded by the state (such as prison, rehabilitation centre or state old age home)
·     Not receive another social grant.
Applying for admission to an older persons’ residential facility
If you are an older person in need of 24-hour care who wants to live in an older persons’ residential facility, you can apply at your nearest social workers’ office or older persons’ residential facility. Admission is subject to availability of beds. Your application will be processed within 14 days. You will get a response within 30 days of applying for admission.
To qualify for admission, you must be:
·     In need of full-time attendance
·     60 years or older and destitute
·     South African
·     Receiving an old-age grant or pension fund.
**Human Rights Watch 10 November 2022, 10-Rand Increase Won’t Keep Older People From Going Hungry
“I would like a life where I can buy butter, jam, and tomato sauce.”
It doesn’t seem like too much to ask for, but for a soft-spoken 80-year-old, Themba Magqadaza, it’s a distant reality. His monthly R2,010 Older Persons Grant, sometimes known as the Old Age Grant, is the only income for himself, his unemployed 28-year-old-son, and his 14-year-old grandson.
Magqadaza, like many of his generation, spent a little more than half a century of his life under apartheid, which denied him a decent education, decent work, and the ability to save for older age.
As food prices rise, many older people, and those they support, are going hungry, as are others living in marginalized situations across the country. After they pay rent, utilities, burial society and funeral plans, school fees, or transport for health care, little remains for food for one person, let alone a family.
“The groceries that we buy last a week-and-a-half and for the remainder of the month, we only have mealie meal, rice, and samp,” Magqadaza said.
The Older Persons Grant is an important pillar of South Africa’s social protection system, on which the country spends a relatively large portion of its GDP compared with other upper-middle income countries. In October, the government increased the Older Persons Grant by R10 per month to R1,990 for those 60-74 and to R2,010 for those 75 and older. However, with annual food inflation at 11.9 percent in September, this increase cannot keep the Magqadaza family’s hunger at bay.
Until the government conducts a full review and increases the Older Persons Grant so older people and their families can live and eat better, older people will not be able to enjoy their guaranteed rights, which only compounds the cumulative impact of apartheid. Given the number of people the Older Persons Grant supports, both young and old, increasing the grant would reach a large number of people and inject much needed cash into local economies.
Transportation and electricity prices are also steeply rising, with transport costs up by 17.9 percent in September from the previous year and electricity costs set to rise by 9.6 percent in 2022/23. With 60, or 65 at most, considered the normal retirement age and the government prioritizing the 66.5 percent youth unemployment, older people find it difficult to continue working if they wish—or need—to, leaving few options to increase their fixed grant income.
More than 70 percent of people 60 and older receive social grants, which is the only income for most and is now commonly used to support multiple generations of unemployed adult children and grandchildren. These older people endure inadequate standards of living, since fixing the house, replacing broken furniture and appliances, or buying new clothes are luxuries for someone living on R1,990-2,010 a month.
For some, a monthly or bimonthly food parcel from their local council or a charitable organization, or attending a daily lunch club, is how they survive. Every day, Magqadaza visits a service centre run by a non-profit organization in Dimbaza, which gets a monthly subsidy from the Eastern Cape Department for Social Development of just R250 per older person to cover the costs of food, recreational activities, administration, and nursing care. Older people often take the lunch they get at the centre home to share with their families.
Unfortunately, food parcels and daily lunch clubs are not available, or enough, for every older person. Some are forced to choose between going hungry or spiraling into debt that is hard to escape. Some borrow from family, friends, or neighbours or get credit at the local spaza. Others resort to loan sharks with exorbitant interest rates.
Magqadaza said that, because of the food shortages, every month, he has to borrow from a loan shark at 40 percent.
South Africa’s constitutional, regional, and international human rights obligations guarantee older people social security and an adequate standard of living, which should mean they have access to sufficient and nutritious food.
To meet these human rights obligations, the South African government should promptly reassess the Older Persons Grant to account for inflation so they can afford basic necessities as prices continue to rise.
But more will be needed to meet the needs of the older people and the family members who depend on them. The government should begin a comprehensive review of the system.
When I ask Magqadaza about his health, he tells me, “Even as I sit here, my body is sore, my shoulders. I know it’s stress.” And so, every month, he pays R450 he can’t afford to a doctor to treat his stress, stress that stems in part from the fact he is not guaranteed enough money to live with dignity and enjoy the little things in life: butter, jam, and tomato sauce.

[2022] AATA 5092

25 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review