1926802 (Refugee)

[2022] AATA 5215

1926802 (Refugee) [2022] AATA 5215 (8 December 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’)

APPLICANT’S REPRESENTATIVE:        Angela de Silva, solicitor

CASE NUMBER:  1926802

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Kate Chapple

DATE:8 December 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 December 2022 at 10:13am

CATCHWORDS
REFUGEE – protection visa – South Africa – ethnicity – White South African – well-founded fear of persecution – applicant subjected to violence and employment discrimination – applicant found to be a credible witness – no effective protection measures available– decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K-LA, 36, 65,
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
CID15 v MIBP [2017] FCA 780
DZADQ v MIBP [2014] FCA 754
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR
NBKT v MIMA [2006] 156 FCR 419
Ponnundurai v MIMA [2000] FCA 91
SZTWQ v MIBP [2015] FCA 950
SZURA v MIBP [2015] FCCA 1539

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

1. The applicant, a white South African [age deleted], was born in Cape Town, South Africa and later moved to Johannesburg with his parents and two siblings after his sister was raped. The crime seriously impacted the whole family, resulting in the parents’ alcoholism and insecure employment, the children having to take on caring and earning responsibilities prematurely, and long-term financial and emotional hardship. These significant family challenges occurred in the context of increasing violence and crime rates in South Africa, and incidents of violence, crime and discrimination experienced by the applicant, family members and close friends over some three decades, which the applicant believes were racially motivated. Determined to get away from his experiences and fears in South Africa and build a better life for himself, the applicant spent seven years working in[Country 1], and travelling extensively. The applicant returned to South Africa hoping for improvements and intending to have another go at life there, however his view was that the situation had worsened, in particular the violence and employment discrimination against white people, which he increasingly feared. The applicant visited family in Australia in 2009 and 2011, and again in late 2018 planning to stay for around a month, however he could not face returning to South Africa, and applied for protection in early 2019. The applicant has gained certificate qualifications in different fields while in Australia to upgrade his skills and enhance his work opportunities. The applicant believes that if he returns to South Africa he will be the target of violence, crime and discrimination because of his skin colour regardless of where he lives, and there is no prospect that the police will protect him.

   EVIDENCE BEFORE THE TRIBUNAL

   Timeline

2. Departmental and Tribunal records disclose these key dates:

   2.1.Applicant’s previous visits to Australia: [in] February 2009; [in] August 2011.

   2.2.Applicant’s last arrival in Australia: [in] December 2018.

   2.3.Application for protection visa: 28 January 2019.

   2.4.Applicant’s protection visa application with Department: 20 August 2019.

   2.5.Delegate’s decision to refuse to grant protection visa: 27 August 2019.

   2.6.Application for review: 23 September 2019.

   Protection visa application

3. The applicant’s protection visa application set out the following protection claims and referenced a number of online news and reporting sources in support:

   3.1.After endless and senseless attempts of crime and attacks incurred on my family and I over the years, I chose to look for opportunities outside the country where I could live and work in a safe environment, albeit temporarily.

   3.2.Victimisation through crime has marred my family for many years in the Western Cape as well as Gauteng. From the late 1980's onwards and up to today there have been continual incidents of crime and absurd conditions to life, including:

   -    Applicant’s sister: [year deleted], raped due to the colour of her skin as was stated and documented by authorities at the time, prompting eventual move to Johannesburg.

   -    Applicant’s father:1997 and after, robbed multiple times at knife and gunpoint and suffered serious bodily harm. The company he was working for was robbed at gunpoint but he escaped death due to the gun jamming at point blank range.

   -    Applicant’s sister: 2000 to 2007, had multiple job rejections due to the colour of her skin.

   -    Applicant: 2000/2002, robbed at knife point and belongings stolen; forced to walk home from the city (5 km through dangerous part of town). Nobody offers assistance.

   -    Applicant: 2000/2003, robbed at gunpoint and stripped to underwear; forced to walk home.

   -    Applicant’s brother: early 2000s, attempted hi-jacking resulting in injury to his hand from being stabbed while trying to defend himself and get away.

   -    Applicant: 2003 to 2004, one car stolen and second an attempted theft.

   -    Applicant’s sister: 2007, neighbour shot in driveway during car hi-jacking.

   -    Applicant’s brother-in-law’s brother and close family friend: 2007, carjacking of 2 cars at gunpoint with daughter in the car.

   -    Applicant’s cousin: 2011, raped while waiting for school transport.

   -    Applicant’s brother: 2014, robbed whilst family was asleep in household, in a 'secure' complex.

   -    Applicant’s brother in-law’s father: 2016, his 80-year-old neighbour and close friend was tied-up, raped and murdered while robbing her.

   -    Applicant’s sister-in-law's aunt by marriage: 2016, brutally murdered.

   -    Applicant’s brother-in-law’s cousin and close friend: 2017, murdered/stabbed to death in the Eastern Cape.

   -    Applicant’s mother's aunt's granddaughter: 2018, paralysed after being caught in the cross fire of an attempted carjacking at shopping complex car park [in], Johannesburg.

   -    Applicant’s brother-in-law’s father: 2019, items stolen from luggage at the OR Tambo International Airport on arrival back home from visiting family in [City 1].

   -    Applicant’s sister-in-law and other staff members in her company, currently require bodyguards to escort them to and from the work's parking area or when they leave the building for lunch breaks, due to high crime rate in the area.

   3.3.I have been attacked and robbed on two separate occasions by groups of African men. These incidents were no doubt a result of me being white and a result of me travelling alone. These attacks have scarred me for life to the point that I fear everyday life in South Africa.

   3.4.With the state of policing in South Africa and the nature of the crimes, my cases would not be deemed serious enough, as seen as a regular occurrence. Even with reporting of the crimes, bribery and corruption are rife within the police department. itself, resulting in lost dockets and poor outcomes. As a result of the high crime rate and occurrence, the country does not have the capacity to support or assist victims adequately. United Nations’ suggestion of police to population ratio should be one police officer for every two hundred and twenty people, whereas in South Africa the current ratio is one police officer for every three hundred and eighty-three people.

   3.5.Crime in the country was and still is spread throughout the whole of South Africa. Crime statistics show that certain cities and provinces have different levels of crime compared to Gauteng, none of the areas however were low enough to warrant a move. Moreover, given the continual state of unemployment in South Africa; a move to a 'safer' area would be difficult, with Gauteng being the economic hub. The most dangerous provinces, according to police statistics, are Gauteng, KwaZulu-Natal and KwaMashu north of Durban, especially with respect to murders and carjacking. With a population of 500,000, Kwa-Zulu Natal had 235 murders last year. Sandton in Johannesburg and Gauteng are in the lead position for house robbery in South Africa. South African police service. An object of concern in the South African system is the Police Service. The observation of the members of the Criminal Justice Policy Unit at the Centre for the Study of Violence and Reconciliation (CSVR) is that police officers are sometimes incapable of doing routine work, like taking proper statements and carrying out thorough investigations. Judges have expressed great concern about the quality of statements taken by the Police. They are not the only ones who have doubts regarding the Police. More than 50 percent of the people who were victims of crime felt the Police were not "adequate enough" in controlling crime.

   3.6.Given the crime rate, current state of affairs relating to land redistribution without compensation (taking land from "Whites" and giving to "Blacks") and rants by BLF(Black Land First) leader calling "for every 1 black person killed, we will kill 5 whites", I fear for my life.

   3.7.I fear a civil war will break out over the land redistribution issue which is a heated topic in the media at the moment. BLF (Black Land First) leader is directly inciting racial hatred and I fear for my life. The racial tension in the country is palpable and retaliation is eminent, with physical danger only months away from reaching my doorstep. Added to this, hi-jacking, being robbed at my place of work, being robbed when leaving a bank, my home being broken into at night or being the victim of a smash and grab are still daily issues.

   3.8.With gangs of thieves, syndicates operating in the malls, thieves from the neighbouring townships (shanty towns) and poorer areas (people struggling to support themselves and family have no other options but to resort to crime) makes living a nightmare. As a result I'm living in constant fear. I am in danger because of the colour of my skin. White people (Europeans) are still blamed for the hardships of the poor and previously disadvantaged; feeding the perpetrators' belief that crimes committed towards white people are fair, deserved and a way of gaining retribution for the past.

   3.9.The Police force in South Africa are not winning the fight against crime. In addition, they don't have adequate manpower and resources to attend to the needs of the public. Their corruption and ineptitude are well known amongst South Africans and as a result, many disregard their help in matters. Sadly, South Africans have lost their faith in the South African Police force.

   3.10.Given the statistics and news in the country, there is no safe haven in South Africa. Each Province has its own set of criminality with which it suffers. If not for the crime (Gauteng/Western Cape), the unemployment rate (Free State with highest provincial rate of 36.3% & Kwa-Zulu Natal with 23%) or the cost of living an issue (Pretoria/Cape Town).

4. Other departmental records:

   4.1.Decision record relating to the delegate’s refusal decision.

   4.2.Interview audio file.

   4.3.Case file.

   4.4.Internal records relating to the applicant.

   Application for review

5. The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 14 November 2022 and to provide pre-hearing submissions.

6. Prior to the hearing, the applicant’s representative provided to the Tribunal:

   Confirmation that the applicant intended to participate in the hearing with the assistance of his representative.

   Submission dated 7 November 2022 addressing the applicant’s claims, country information, credibility, and assessment of the refugee and complementary protection requirements, and appending various online media articles regarding government corruption, racial classification, racial divisions, attacks on white farmers, anti-white public speech by the leader of the Economic Freedom Fighters party and Black First Land First movement, and black economic empowerment employment measures in South Africa dated from 2018 to 2022; and an Application to Lease State Farm form (‘the 7 November 2022 submission’).

   The Hearing

7. The applicant appeared before the Tribunal at a hearing conducted via video link on 14 November 2022. The applicant elected not to have the assistance of an interpreter, and the hearing was conducted entirely in English. The applicant’s representative was present at the hearing via video link.

8. The applicant gave the following evidence:

   The applicant was born in Cape Town and lived there with his parents, older sister and younger brother until he was 8 or 9 when they moved as a family to Johannesburg. The move was prompted by the earlier rape of his sister at age 10 by a black man in Cape Town and the need to move to a safer place. The family was traumatised by the crime. Initially, they lived with the mother’s brother, however that became untenable, so they moved into a respite home for struggling families. The family experienced very difficult times emotionally and financially. The father was mostly unemployed, doing odd jobs from time to time to support the family. The mother never worked outside the home. Both parents developed problems with alcohol. After a year or so in the respite home, the family moved to accommodation that assisted rehabilitation. The applicant started working in various jobs from age 16 to support himself and build a future as there was no money to fund his further education after school. In time, he and his brother bought a house together. To help the parents recover from their alcoholism, the children decided to share responsibilities: the applicant and his brother cared for their father, and the sister cared for the mother.

   The Tribunal referenced the incidents of violence and harm the applicant had listed in his protection visa application as having been experienced by himself, family members and close friends from 1986 through to 2018. The Tribunal explained that when assessing what is likely to happen in the future, and whether there is a well-founded fear of persecution as required by the Migration Act, an assessment of what has occurred in the past provides a rational basis and guide for looking forward. In this context, the Tribunal invited the applicant to comment on the incidents, in terms of the circumstances in which they occurred, the perpetrators, and what he perceived their motivations to be.

   Apart from his sister’s rape, all incidents occurred in Johannesburg. The applicant believes the majority were racially motivated as they lived in white areas and they were therefore targets. He also believes many incidents were opportunistic, in that perpetrators see an opportunity for getting what they want from a person they perceive to have money or goods and they commit the crime to achieve that.

   The most traumatic incident was when the applicant was held at gun and knife point by a group of black men while travelling between work and home, on public transport and on foot, stripped to his underwear and forced to hand over his belongings. He recalled feeling terrified and alone as nobody stopped to help him or give him money to get home. White people are considered to be deserving of harm and not worthy of help. Later, when he owned a car, assailants would try to attack with guns while he was driving.

   Police are ineffective and corrupt; it’s futile to involve them or report these incidents to them. The applicant and his family members and close friends who experienced these incidents would never bother reporting to police, especially because they are white.

   If a person is harmed in a violent incident, they could not rely on being treated in a public hospital, they would need to pay for private medical. Emergency workers wear bullet proof vests.

   In response to the Tribunal asking about his early adult life in general in Johannesburg, the applicant stated that despite his family’s significant challenges, he saw it as a time when he developed resilience and hope; he worked hard, he was productive and rose out of poverty; and he was able to care for his father. However, he needed to get away from South Africa, and the dangers and fears he faced everyday while driving and in his workplace as there wasn’t protection available to a young white male.

   The applicant left Johannesburg in 2007, aged 26, and worked in [Country 2]. He returned in 2008, but was unable to find work. Through contacts, he was able to secure employment in the[Country 1], so relocated and lived there from 2008 to 2015, renewing his work visa every couple of years. Before leaving South Africa the applicant and his brother sold the house they jointly owned. During his time in the [Country 1], the applicant travelled extensively to[Country 3], [Country 4], the [Country 5], the [Country 6], [Country 7], [Country 8], the [Country 9], and ]Country 10], and made a couple of return visits to South Africa. The applicant’s father died during this time.

   It didn’t occur to the applicant to seek asylum in any of the countries he visited where protection may have been available as he felt free being away from South Africa, he was enjoying life for the first time. He never intended to stay in the [Country 1]; living there long term is very difficult when you can’t speak the language, you don’t belong, you can’t assimilate, and you’re considered second or third rate.

   After 7 years in the [Country 1], with a range of work experience and positive outlook, the applicant returned to South Africa to give it another go in the hope life had improved there. He lived with his brother and family, and from time to time, his mother would also live with them when she wasn’t visiting the applicant’s sister and family in Australia or her own sister elsewhere in Johannesburg. The applicant’s brother was, and is, a [occupation 1]with a [company], and his wife was then completing her accounting qualifications.

   The applicant believed life in South Africa had worsened during his absence. Violence and disrespect for law and authority had increased. Finding a job was harder even though he had more work experience. It felt dire; people appeared desperate.

   The applicant managed to get a job in [occupation 2] working in a shopping mall in[location 1], some distance away from where they lived. During this time, there was a spate of robberies in jewellery stores nearby his workplace; he feared being at work given the dangers of being caught in crossfire. Travelling to and from work by car he witnessed drivers being pulled from their cars at gun point, and having no means of protection. The applicant’s brother had his [injury deleted]with knives as he fended off assailants trying to open his car door while driving. Also, the brother’s house was burgled at night while their young daughter was sleeping. Poverty is often the motivator of these attacks; perpetrators perceive that white people have money or other things of value, so they are attacked.

   The applicant’s sister left South Africa and resettled in Australia having been deeply affected by her rape as a child. The applicant’s brother and wife, and now two children, remain in Johannesburg stuck in the cycle of working and surviving; they have recently moved to a different neighbourhood in the hope it will be safer. Having never worked outside the home, the applicant’s mother has never seen the violence and crime first hand. She is aged [age deleted] now, and each year spends time living for extended periods with her daughter in Australia, and her son and sister in Johannesburg.

   The applicant came to Australia in December 2018 to spend Christmas with his sister and family and to attend his niece’s wedding in January 2019. He took leave from his work in Johannesburg and planned to stay 3 to 4 weeks. As the time approached for him to return to South Africa, he became more anxious and depressed. Ultimately, he could not face returning and considered that seeking protection made sense for him given his experience of living in South Africa, his fears of day-to-day life and being blamed for the colour of his skin.

   The applicant lived in [City 1]initially and got a job in retail. He has since trained in[occupation 2], [job description deleted], and was employed as a front-line worker doing [information deleted]through the COVID-19 pandemic. He has moved to the [Region 1] of [State 1]and is employed by a [company 1]. He is also completing an [course 1]certificate. His long-term goal is to study[course 2], however for now the shorter courses allow him to upgrade his skills quickly so he can take up better work opportunities.

   The applicant remains in touch with his brother and family, and with his mother. Because life was so difficult for the family as he was growing up, relationships between them were strained, there was no time for emotion, they just had to survive the pain and harm; he and his siblings became strong-willed and independent. Now that he is older, he’s learning to move on from the resentment he felt towards his parents for not protecting them. His brother understands why he has stayed on in Australia and doesn’t expect him to return to South Africa.

   Asked by the Tribunal what he thinks would happen to him if he returned to South Africa, the applicant stated that if he managed to get a job, he’d be working in a shopping mall in Johannesburg, he’d very likely be carjacked and burgled, he doesn’t know if he’d make it to old age. Being white you are seen as having something of value: if you’re in a car, or have a mobile phone, or taking money out from an ATM, you’re targeted .

   Nowhere is safe in South Africa for white people. Those living close to the central business districts are even more of a target of crime and violence because it is expensive to live there and they are perceived as having money.

   Everyone knows it is a useless effort trying to engage the police to provide protection against crime and violence. There is a culture of accepting that nothing can be done, crime happens, you just have to survive it; people don’t think to make a police report. If a white person complained about being mugged, the police would laugh in your face. The perpetrator of the sister’s rape was never found.

   Country information – applicant’s comments

   The Tribunal put the following country information to the applicant and invited him to comment:

   8..1.2018 sources indicate that violent crime is a serious problem in South Africa affecting every sector of society, particularly poor areas. John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations, is quoted as stating that ‘there are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody. 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’. Statistics demonstrate that young black men in townships experience the highest murder rate in the country.

   In response, the applicant stated that black people are commonly victims of violence and murder in the townships and squatter camps. Because they are a majority overall, the rates are higher among black people.

   8..2.John Campbell (quoted above) notes that there are state protection measures available to white South Africans who are victims of violence. For instance, the South African Police Service and the judiciary (which is quite independent) offer protection. 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. The Vice-Chancellor of Witwatersrand University in Johannesburg states that the state provides all South Africans who are victims of crimes the same services, irrespective of race.

   In response, the applicant stated that in practice this does not happen, this is not his experience or the experience of his family and friends as victims of crimes and violence.

   8..3.Despite government affirmative action policies in favour of black South Africans, which are designed to address some of the imbalances from the country’s history of apartheid, white South Africans are not generally discriminated against at work and experience rates of unemployment lower than the general population as well as continuing to disproportionately fill senior management positions in all sectors of the economy.

   In response, the applicant stated that given the higher proportion of black people in the South African population, this affects the overall statistics. He believes the Black Economic Empowerment Program causes an imbalance because white people with merit for positions are disqualified based on their skin colour. In his own experience, he knows he has missed out on jobs because he is white skinned.

   8..4.Asked by the Tribunal about the Black First Land First and Economic Freedom Fighter movements, the applicant stated that a lot of blame has been attributed to white people in relation to land, and these movements are about returning land to black people. Associated hate speech in the public domain puts white people at risk. Politicians shouldn’t be able to spew hate and discriminate. The applicant has never been politically active in South Africa, he’s always tried to focus on improving himself and his life.

   8..5.A 2021 study on levels of racism in South Africa found that 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, the Tribunal invited the applicant to comment.

   The applicant didn’t specifically respond other than to say that when his sister was raped, she was at the time with a coloured girl, and the black man targeted his sister because she is white, thus showing the level of hatred.

   Oral submissions by applicant’s representative

1. The applicant’s representative made the following oral submissions to the Tribunal:

   The applicant presents as a credible witness.

   That the Tribunal consider the applicant’s lived experience in South Africa, and the significant harm experienced by the applicant and his family members. This is not just an idea or something he has read about; he has lived it.

   That the Tribunal take into account that official country information may not be up to date and may not reflect a changing situation in South Africa; that published crime rates don’t necessarily reflect the position for white people being targeted given they are part of a 7-8% minority; that post-apartheid tensions still exist and there has been a long period of over-correction and reverse discrimination; and that John Campbell was a US ambassador, not a South African local with lived experience.

   That the Tribunal take note that land ownership preference and incentive programs in favour of black people are government endorsed and reflect an over-correction post-apartheid; official endorsement fosters views that assist the targeting of a white minority with impunity.

2. At the request of the applicant’s representative, the Tribunal agreed to receive post-hearing written submissions by 28 November 2022 addressing assumptions and conclusions from whole population statistics that don’t accurately reflect the position of the white minority; and providing further insights into the applicant’s lived experience in South Africa.

   Post-hearing submissions

3. The applicant’s representative provided to the Tribunal a further submission dated 28 November 2022 addressing the applicant’s experiences of violence and discrimination as a white South African, South Africa country information on anti-white violence and discrimination, victims of crime statistics for South Africa, anti-white political rhetoric of the Economic Freedom Fighters party leader, perceived weaknesses in the DFAT country information, credibility, and assessment of the refugee and complementary protection requirements (‘the 28 November 2022 submission’).

   Country information – provided by applicant’s representative

4. The applicant’s representative provided country information in the 7 November 2022 submission and the 28 November 2022 submission, summarised as follows:

   12.1.South Africa has a significantly high crime rate as compared to other nations. A snapshot of key statistics: 3rd highest crime rate worldwide: 76.86 per 100,000 in 2022; 3rd highest rate of rape worldwide: 72.10 per 100,000 in 2022; 8th highest homicide rate worldwide: 36.4 per 100,000 in 2022. (World Population Review, ‘Crime Rate by Country 2022’).

   12.2.Broad-based black economic empowerment (BBBEE) specifies incentives in the public and private sector based on racial categories. White men face the greatest discrimination. (Fair Observer, ‘South Africa’s Enforced Race Classification Mirrors Apartheid, 11 March 2022); (ABC News, ‘White South Africans complain affirmative action policy is causing them to face discrimination’, August 2016).

   12.3.Example of a BBBEE incentive: 18 August 2021 advertisement for an Application to Lease a State Farm (administered by the Department of Agriculture, Land reform and rural Development for the Republic of South Africa) which states: Applicants must be Africans, Indians or Coloureds who are South African citizens. “Africans” in this context includes persons from the first nations of South Africa.

   12.4.In an Australian news article, the problem of the racial ‘farm murders’ was described as follows: On a bare hillside near Polokwane, in South Africa's Limpopo Province, stand more than 2,000 white crosses. From the air, they can be seen to form a giant cross. At the top of the hill, in huge letters visible from the highway a kilometre away, are the words Plaas Moorde— Afrikaans for "farm murders". Each cross represents someone murdered in the course of a farm attack since 1994. The private landowner who owns the site has added 75 crosses in the past 12 months. (ABC News, ‘The white minority took our land. Enough is enough’, 19 September 2018).

   12.5.The proliferation of the Black First Land First political group, by founder Andile Mngxitama continues to stir racial discord in South Africa. The BLF party continues to be recognised as a formal political party in South Africa by the Independent Electoral Commission, despite multiple instances of documented hate speech and targeted acts of harassment as follows:

   a.Spokesperson Lindsay Maasdorp told The Citizen reporter Daniel Friedman that as a white person his existence is "a crime". Maasdorp also posted on his now-suspended Twitter account, in 2018, "I have aspirations to kill white people, and this must be achieved!" (The Citizen, White Existence is a crime, says BLF Spokesperson, 17 September 2018);

   b.Mngxitama asserted at a BLF rally that "For each one person that is being killed by the taxi industry, we will kill five white people", giving rise to the BLF slogan "1:5". Mngxitama went on to say, "You kill one of us, we will kill five of you. We will kill their children, we will kill their women, we will kill anything that we find on our way." (Sowetan Live, ‘Mngxitama trying to take SA back to ‘dark ages of apartheid’, says ANC’, 12 December 2018).

   12.6.The Equality Court of South Africa in March 2022 ordered BLF members to pay R200,000 in damages and make a public apology for “celebrat[ing] the tragic deaths” of four white children on social media. (Daily Maverick, ‘Court Orders Black First Land First to pay up for hate speech social media posts that vilified white people’, 7 March 2022).

   12.7.The Economic Freedom Fighters (EFF), the third largest political party in South Africa, has explicitly expressed anti-white rhetoric on multiple occasions, including:

   a.In July 2022, the EFF’s president, Julius Malema, spoke at a press conference in Johannesburg warning that an uprising in South Africa was imminent. In an interview with the BBC, Malema stated: “The violence that is going to happen in South Africa is because the elite is disappearing and the poor are becoming more [sic] poorer.” And “When the unled revolution comes…the first target is going to be the white people”.

   b.Following the death of former Zimbabwean President Robert Mugabe, Malema tweeted several anti-white quotes from Mugabe, including “The only white man you can trust is a dead white man”.

   c.During a 2016 political rally, Julius Malema stated, “We are not calling for the slaughter of white people, at least for now”.

   12.8.Julius Malema was not prosecuted for hate speech but rather prosecution was sought by the Afrikaans Trade Union evidencing state actors who are not willing to protect their minority citizens. (Fair Observer, ‘South Africa’s Enforced Race Classification Mirrors Apartheid, 11 March 2022).

   12.9.A 2019 report by Corruption Watch found that South African police were the most corrupt public servants in the country, having overtaken other sectors such as health and local government. Public trust in the police reached an all-time low of 27% in 2021, which has declined from a high of 47% in 1999. ( >

   The applicant’s representative made submissions accompanying the above country information, summarised as follows:

   13.1.The country’s history is marked by the apartheid era in which persecution was based on an arbitrary system of race classification under the Population Registration Act of 195. (New Scientist, ‘Forum: Watching the ‘race’ detectives – The results of South Africa’s race classification laws (1991). This has created a deep divide in South African society whereby race and ethnicity continues to be at the core of social democracy.

   13.2.Anti-white violence and discrimination is now often viewed as justified given the dominant position white people previously held in the era of apartheid. It is this veil under which the Applicant’s claims must be viewed.

   13.3.Much of the country information for South Africa confirms that the national crime statistics indicate a high violence rate. Whilst this is not contested, it is submitted that the crime statistics do not provide a micro-level analysis of the experience of white south Africans. This is supported by the fact that much of the data being used is incomplete and does not quantify racial ethnicity (when using South African Government crime statistics which are not broken down by ethnicity). (‘Silber, G. and Geffen, N., ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’:, SA Crime Quarterly, no. 30 December 2009).

   13.4.Black South Africans may be disproportionately represented in victims of crime data simply because they disproportionately make up the major ethnic group in South Africa. Statista graphical representation showing total population if South Africa in 2022, by ethnic groups: Black African 49 million; Coloured 5.3 million; White 4.6 million; Indian/Asian 1.55 million.

   13.5.Empirical evidence of a more accurate representation when statistics are collated and analysed based on ethnicity: 2019 research paper that examined homicides in Johannesburg between 2001 and 2010 found that, amongst the elderly population (defined as those aged 60 and over), 43.2% of homicide victims were white despite white South Africans only making up 12.3% of the total population of Johannesburg. (Swart, L; Buthelezi, S and Sedat, M. The incidence and characteristics of homicides in elderly compared with non-elderly age groups in Johannesburg, South Africa. SAMJ, S. Afr.med.j. [online]. 2019, vol.109, n.6 [cited 2022-11-28], pp.437-442).

   13.6.Even if white South Africans are not overrepresented as victims of crime across South Africa, it would be erroneous to then infer that they are not targeted with anti-white violence. That is, whilst black South Africans face higher levels of crime, it remains equally true that white South Africans still face targeted prosecution and violence based on their race.

   13.7.The fact that Julius Malema remains as president of the EFF despite his anti-white rhetoric and that the EFF is currently the third largest political party in South Africa demonstrates that the anti-white political rhetoric goes unpunished and is legitimised in South Africa.

   13.8.The statistics and information being cited for South Africa is dated and doesn’t take account of the additional layer of tension that exists for the minority in South Africa. This is supported by the fact that DFAT country information reports do not have a publication for South Africa.

   13.9.The core country information regularly cited is the work of John Campbell, a US National who was a consular official in South Africa in the 1990s. Therefore it is natural that his writing and academia comes from a base of experiencing South Africa during the transition from apartheid. His experience doesn’t come from a lived one as a white South African national. He has expressed this sentiment in his book, “Morning in South Africa”: I was probably too optimistic on Nelson Mandela’s inauguration day…Nevertheless more than 20 years into the new South Africa, and following many subsequent visits, I am hopeful while still acknowledging the challenges still to be overcome.

   13.10.Noting the above, when Mr Campbell is cited within a 2018 Immigration and Refugee Board of Canada report noting that ‘white South Africans do not face any specific challenges or threats in society’, one must take into account that this was referenced in the context of access to health, housing, employment and education, not as the subject of targeted violence.

   Country information – sourced by Tribunal

5. The Tribunal sourced the following country information:

   Safety of white South Africans

   14.1.Numerous sources indicate that violent crime is a serious problem in South Africa.[1] For example, according to a September 2018 Africa Check[2] 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]

   [1] For example: ’FACTSHEET: South Africa’s crime statistics for 2017/18’, Africa Check, 11 September 2018; ‘South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018; ‘Accurate statistics are needed for the SA farm murder debate’, Institute for Security Studies, 11 December 2017

   [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

   [4] ’FACTSHEET: South Africa’s crime statistics for 2017/18’, Africa Check, 11 September 2018

   [5] South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018

   [6] South Africa: murders surge by more than 7% in a year’, The Guardian, 12 September 2018

   [7] Accurate statistics are needed for the SA farm murder debate’, Institute for Security Studies, 11 December 2017

   [8] Ramaphosa’s ‘killings of white farmers’ comment: What the president meant’, News24, 27 September 2018

   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]

   [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

   [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

   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]

   [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

   [12] South Africa criticises Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018

   Availability of state protection for white South Africans

   14.2.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’.[13] 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.[14] However, the report says that while there has been an improvement in community policing, many South Africans mistrust police and see them as corrupt.[15] 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’:[16]

   [13] Safety and Security Challenges in Farming Communities’, South African Human Rights Commission, 27 November 2015, p.81

   [14] South Africa 2019 Crime & Safety Report’, US Department of State, 6 March 2019

   [15] South Africa 2019 Crime & Safety Report’, US Department of State, 6 March 2019

   [16] ‘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

   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).[17]

   [17] ‘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

   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’.[18]

   [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

   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)

   14.3.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.

   White farmers in South Africa

   14.4.In its most recent report on Human Rights Practices in South Africa in 2021, the United States Department of State noted that some advocacy groups had asserted that white farmers were racially targeted for burglaries, home invasions, and killings, whilst many observers attributed the incidents to the country’s high and growing crime rate.[19]

   [19] '2021 Country Reports on Human Rights Practices: South Africa', United States Department of State, 12 April 2022

   14.5.A 2020 New York Times article reporting on farm killings, noted that tension is particularly high in rural farming areas where white people still own a vast majority of the farms and black people still serve as their often impoverished laborers.

   14.6.A 2017 government survey found that white farmers control nearly 70 percent of farms held by individual owners in South Africa. Groups representing white farmers accuse the South African government of deliberately failing to protect them, but critics saw this as a deeply distorted narrative promoted by the white beneficiaries of apartheid to drum up international sympathy. They point out that violent crime is common in South Africa and the vast majority of the victims are black. It noted, of 21,325 murder victims in 2019, 49 were white farmers — accounting for much less than 1 percent of the country’s total, according to police statistics. White South Africans make up about 9 percent of the country’s 58 million citizens.[20]

   [20] 'Killing of White Farmer Becomes a Flash Point in South Africa', New York Times, The, 16 October 2020

   14.7.Gareth Newham at the Institute for Security Studies, one of South Africa’s authorities on crime statistics, said there was no evidence to support the notion that white farmers were targeted more than anyone else in the country. The highest estimates of farm murders stand at 133 per 100,000 people, and that includes both black and white murder victims. Newham said crime rates in general were going up, and the trend was not specific to white farmers.[21]

   [21] 'South Africa criticises Australian plan to fast-track white farmer visas', Guardian, The, 15 March 2018

   14.8.A 2018 BBC article noted that right-wing groups had spread the myth of a white genocide abroad but there is no genocide but there is genuine fear of physical attack and dispossession.[22]

   [22] 'South Africa's 'toxic' race relations', BBC News, 18 December 2018

   14.9.A 2019 article by the Pulitzer Center stated that there is an element of racial vitriol to some murders of white farmers and noted the attacks are often elaborately and senselessly violent. But it also stated that farmers are only one of a broad host of people in South Africa who are at a high risk of being murdered—night-shift workers and Uber drivers, for example, are in greater statistical danger. It stated in 2018, in a country where almost 20,000 people were slain, most of them black, there were only 62 farm murders, according to government statistics. It notes, according to one of the country's largest agricultural associations, murders of farmers are at a 20-year low. And not all of the victims are white.[23]

   [23] 'The Myth of White Genocide', Harpers, 15 February 2019

   Broad-Based Black Economic Empowerment

   14.10.The South African Parliament enacted equality legislation to redress the imbalances caused by apartheid in South Africa. The Broad-Based Black Economic Empowerment Act 53 of 2003 (‘B-BBEEA’) is the legislative framework which governs black economic empowerment (‘BEE’) and is a series of affirmative action policies that benefit the black population.[24] In its most recent ‘2022 Country Report South Africa', the independent foundation, Bertelsmann Stiftung recently commented that initiatives like Broad-based Black Economic Empowerment (BBBEE), have only benefited a small minority of black South Africans and the structure of the economy remains exclusionary, although racial exclusion is being replaced by class-based exclusion.[25]

   [24] Jeannine van de Rheede, ‘The Broad-Based Black Economic Empowerment  Act 53 of 2003 and the ways in which the commission of fronting practices  affects the achievement of its objective’,  African Journal of Democracy & Governance / Revue africaine de la démocratie & de la Gouvernance, Vol. 7, No 1, 2020, available at 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung, 23 February 2022

   [25] 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung, 23 February 2022

   14.11.In its 2020-21 annual report, the Commission for Employment Equity cited data on discrimination by ethnicity, gender, age, and disability in all sectors of the economy. The report highlighted the dominance of the White and Indian population groups at Top and Senior Management levels (while remaining under-represented at the Semi-Skilled and Unskilled Occupational Levels) and that this continues to follow the patterns created by apartheid policies. It is also noted that the White and Indian females also continue to dominate the top two tiers of management. Thus, in terms of race and gender intersectionality, African and Coloured females continue to bear the brunt of discrimination.[26] In a 2016 report of the South African Commission Human Rights Commission on their National Hearing on Unfair Discrimination in the Workplace, it noted an analysis of the submissions received together with the complaints statistics of the Commission reflected that black individuals continued to face high levels of harassment, and differential or undignified treatment, both in the workplace and in society in general.[27]

   [26] '21st Commission for Employment Equity Annual Report 2020-2021', Commission for Employment Equity (South Africa), 5 July 2021, available at

   [27] ‘Report of the South African Human Rights Commission: National hearing on Unfair Discrimination in the Workplace 8 March 2016; 25 April 2016’, South African Human Rights Commission, (undated), available at

   14.12.Statistics reveal that between 2003 and 2018 saw a decline in the percentage of white people occupying positions at the levels of both top management and senior management and on the professionally qualified and skilled technical and professional levels. The percentage of African people at both the levels of top management and senior management and skilled technical level had increased; however, they remain under-represented and there has not been a substantial improvement at the professional and skilled technical levels.[28]  Some enterprises have also been accused of contravening the B-BBEEA deliberately by misrepresenting facts about the extent of their compliance. [29]

   One article noted that the policy is not working as intended. It has not been effectively monitored to ensure compliance, the government itself has not enforced the policy in state contracts, there has been a lack of commitment from employers and many instances of a few people benefitting while the large majority remain without work.[30]

   14.13.A 2016 ABC News (Australia) article reported that white South Africans say it has become harder for them to get a job because of a black economic empowerment policy aimed at helping to rectify past apartheid wrongs. Danie Brink, the chief executive of an Afrikaner aid organisation called Solidarity, Helping Hand, said affirmative action was "driving our people out of positions. "[It] prevents our people Afrikaners, white people specifically to get into jobs, specifically in the public sector," Mr Brink said. In response, South Africa's Institute for Race Relations said while white poverty levels have increased, they still pale in comparison to black poverty levels.[31]

   14.14.In 2018 it was reported that South Africa’s mainly white Solidarity union planned a strike at petrochemicals firm Sasol over a share ownership scheme offered exclusively to black staff.[32]  In the 2018 Immigration Board of Canada report, according to John Campbell, who is the Ralph Bunche Senior Fellow for Africa policy studies at the Council on Foreign Relations (CFR) in Washington, there are complaints from some white South Africans that various black economic empowerment programs make it difficult to access employment. According to the AfriForum representative, " [a] policy of affirmative action is applied in South Africa that [does not have a] sunset clause. As a result, white South Africans are often not even considered for positions, whether they have the necessary skills, qualifications and experience, or not".[33]

   14.15.In 2022 it was reported that AfriForum’s campaign officer for strategy and content, posted on Twitter, accusing “big” corporations and the government of discriminating against him based on the colour of his skin. The tweet report further ignited the debate around BEE, race in the workplace, racism and white privilege.[34]

   14.16.A 2019 article by News24 (South Africa) reported on the reasons why so many young South Africans were leaving the country and referred to unemployment as one factor but also that young white South Africans were equally discouraged by the BBEEE regulations that in many cases explicitly bar them from being eligible for a position.[35]

   14.17.Other reliable recent sources also report that the legacy of apartheid continues to segregate the population and restrict non-white opportunity for employment and education.[36] Bertelsmann Stiftung stated the economy is marked by the legacies of apartheid and racial discrimination, with black South Africans most likely to be poor and unemployed and white South Africans experiencing low levels of poverty and unemployment. It noted the post-apartheid state has reformed several aspects of the labour market, but the economy remains exclusionary not by race but by class. An individuals’ level of education is the best predictor of future income and the vast majority of children do not finish their secondary schooling, let alone complete tertiary education. Although there are more black graduates each year, they are still a demographic minority and white and Indian people are over-represented in skilled, well-remunerated jobs. White South Africans are overrepresented and tend to occupy many of the senior positions, especially in the private sector.[37] A 2022 media article reported that most of the complaints received by the SA Human Rights Commission (SAHRC) over the past year were race-related and that the majority of complaints were related to allegations of racial discrimination against black South Africans.[38]

   14.18.Sources cited in the previously cited 2018 Immigration and Refugee Board of Canada report also indicate that white South Africans are in a privileged position in South African society. It noted sources indicate that white South Africans do not face any specific challenges or threats in society, "for example, in terms of access to employment, education, health or housing". The AfriForum (which represents the interests of Afrikaners)[39] representative indicated, however, that Afrikaans language rights and education are "under attack," as language policies are being changed, for example, at universities, to exclude the use of Afrikaans.[40]

   14.19.In 2021, it was reported that data analysed by the Institute for Security Studies shows that police performance has been steadily deteriorating, including when it comes to serious offences such as murder and armed robbery.[41] In 2021 the International Crisis Group noted that patronage networks and political interference crippled the security sector, notably the police and secret service, compromising the state’s ability to uphold the rule of law and prevent crime. [42]

   14.20.Analysis by the Institute for Security Studies, in 2021, noted that crime and violence levels in South Africa are again rising. It noted these increases are probably the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, declining police performance and high levels of police corruption. A main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks. It noted the police’s ability to solve murders has declined by 38% since 2011/12, with the result that in 2019/20, detectives were only able to solve 19 out of every 100 murders. The police’s crime intelligence capability has also declined, decimated by years of factional battles, political interference, corruption and weak police leadership. It stated this means it can probably anticipate ongoing increases in murder and robbery in the short to medium term.[43]

   [28] Jeannine van de Rheede, ‘The Broad-Based Black Economic Empowerment  Act 53 of 2003 and the ways in which the commission of fronting practices  affects the achievement of its objective’,  African Journal of Democracy & Governance / Revue africaine de la démocratie & de la Gouvernance, Vol. 7, No 1, 2020, available at

   [29] Jeannine van de Rheede, ‘The Broad-Based Black Economic Empowerment  Act 53 of 2003 and the ways in which the commission of fronting practices  affects the achievement of its objective’,  African Journal of Democracy & Governance / Revue africaine de la démocratie & de la Gouvernance, Vol. 7, No 1, 2020, available at ‘No, BEE is not racist. But it does need some work’, The South African, 24 June 2020, available at

   [31] ‘White South Africans complain affirmative action policy is causing them to face discrimination’, ABC News (Australia), 1 August 2016 available at

   [32] ‘White workers at South Africa's Sasol to strike over race exclusion share scheme’, Africa News, 2 September 2018, available at

   [33] '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/o', Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018

   [34] ‘‘I am being discriminated against by big corporations on the basis of my skin colour’’, Independent Online (South Africa), 17 October 2022, available at

   [35] ‘ANALYSIS: Young people are leaving SA. Here's why’, News24 (South Africa), 28 April 2019, available at

   [36] 'Freedom in the World 2022 - South Africa', Freedom House, 28 February 2022; 'Why are South African cities still so segregated 25 years after apartheid?', The Guardian, 21 October 2019

   [37] 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung, 23 February 2022

   [38] ‘Racism in South Africa: why the ANC has failed to dismantle patterns of white privilege’, The Conversation, 4 August 2022, available at

   [39] ‘About Us’, AfriForum, (undated), available at

   [40] '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/o', Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018

   [41] 'More public order police is no easy answer for South Africa', Institute for Security Studies, 05 August 2021

   [42] 'Riots reveal South Africa's enduring rifts', Pauline Bax, International Crisis Group (ICG), 23 July 2021

   [43] 'South Africa needs a murder reduction strategy', Institute for Security Studies, 14 June 2021

   Applicant’s lived experience

1. The applicant’s representative made submissions in the 7 November 2022 submission and the 28 November 2022 submission regarding the applicant’s lived experience, summarised as follows:

   15.1.The applicant has personally been targeted with violence and harassment due to his white ethnicity.

   15.2.Between 2000 and 2002, the applicant was robbed at knifepoint, his belongings were stolen, and he was forced to walk home for five kilometres through the city. Despite asking for assistance for a taxi ride home, no one was willing to help because the applicant was white.

   15.3.Between 2000 and 2003, the applicant was robbed at gunpoint and stripped of all but his underwear. He was forced to walk home without being able to get assistance from anyone because he was white.

   15.4.In addition to these personal experiences of robbery and harassment, the applicant has many family members and close acquaintances who have also experienced violence. These include:

   15.4.1.The applicant's sister. She was raped in [year deleted] due to the colour of her skin, which was documented by the authorities at the time

   15.4.2.The applicant's father. He was robbed multiple times at knife and gun point and suffered serious bodily harm in multiple incidents from 1997 onwards. His company was robbed at one point and he only escaped death due to the gun jamming at point blank range.

   15.4.3.The applicant's brother. He was stabbed in the hand during an attempted carjacking in the early 2000s. He was also robbed in 2014.

   15.4.4.The applicant's cousin. She was raped in 2011 while waiting for school transport.

   15.4.5.The applicant's brother-in-law's brother. In 2007, his car was hijacked twice at gunpoint whilst his daughter was in the car.

   15.4.6.The applicant's sister-in-law’s aunt. She was murdered in 2016.

   15.4.7.The applicant's brother-in-law's cousin. He was stabbed to death in 2017.

   15.4.8.The applicants grand-aunt's granddaughter. She was paralysed after being shot during an attempted car hijacking.

   15.5.The cumulative effect of the applicant’s personal experience of targeted violence as a white South African, as well as the incidents of violence against his family members and close acquaintances has created a reasonable fear of persecution and violence against the applicant because of his race.

   15.6.Notably, these experiences of targeted violence were the primary motivating factor for the applicants decision to leave South Africa and live and work in a safer environment.

   15.7.The applicant further recounted during the hearing his experience of two incidents of [shootings] when working at [location 1]in Johannesburg. In the applicant’s recount, he described these incidents as you hear shots or people running and then you know that you have to close the door and hide. There is sufficient external evidence documenting these in support of the applicant's experiences.

   15.8.The applicant’s experience of persecution was not limited to physical violence, but also to economic disadvantage. The South African government continues to use a racialized economic policy known as broad based black economic empowerment (BBBEE). This government policy provides economic incentives across both the public and private sector based on racial categories with the explicit goal of giving advantage to black South Africans.

   15.9.The applicant noted that he was prevented multiple times from applying for jobs due to the BBBEE prioritising black South African employment over white South Africans. The applicant confirms that he was applying for rolls through employment agencies and would be continually told that companies were looking to fulfil these through the BBEEE policy. As such the applicant would not be progressed to further rounds as he could not meet the gateway criteria (ie black South African). This is supported by country information which confirms that a policy of affirmative action is applied in South Africa that does not have a sunset clause. As a result, white S Africans are often not even considered for positions, whether they have the necessary skills, qualifications and experience, or not.

   15.10.The lived experience of the applicant, as well as the many other instances of reported anti-white violence, testifies to this anti-white persecution that the applicant and other white South Africans have faced. The racial tensions and anti-white sentiment that has proliferated since the time the applicant has been away from South Africa adds fuel to his fear of persecution upon return to his country of origin.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The Tribunal considers the applicant gave a credible account of his lived experience in South Africa, in his written and oral evidence.

3. The Tribunal accepts the applicant’s account of his lived experience in South Africa.

4. The Tribunal accepts the applicant fears that if he returns to South Africa he will be a target of violence, crime and employment discrimination because he is white.

5. The central question for the Tribunal to determine is whether the applicant’s fears are well-founded under the law.

6. The Guide to Refugee Law in Australia (last updated February 2022) provides at page 3-5 that:

   For a fear to be well-founded, there must be a factual or objective basis for that fear.[44] Thus, ‘a well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified.[45]

   Assessment of the objective element will usually involve consideration of general information about conditions in an applicant’s country, as well as an assessment of the applicant’s own claims in light of any material provided in support of such claims.

   [44]    Chan v MIEA (1989) 169 CLR 379 at 412, 396, 406, 429. As Dawson J stated at 396, ‘Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear’.

   [45]    Chan v MIEA (1989) 169 CLR 379 at 429.

7. The Guide to Refugee Law in Australia provides at page 3-7 that:

   There is no requirement that an applicant be particularly at risk of persecution above others who are also at risk, only that there can be said to be a real chance of the applicant being persecuted.[46]

   [46]    Ponnundurai v MIMA [2000] FCA 91 at [12], cited with approval by Heydon J in SZQDG v The Honourable Nick Nicholls, Federal Magistrate & MIAC [2012] HCATrans 96.

8. The Guide to Refugee Law in Australia provides at pages 3-14 to 3-15 that:

   While it is clearly permissible to assess whether an applicant’s fear is well-founded by reference to general information about people in a similar position to the applicant,[47] great care is needed in doing so. When considering how persons like the applicant have been or are being treated, the critical question is ‘how similar are the cases that are being compared’.[48] In Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that:

   It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group.[49]

   Thus, while it will usually be necessary to classify an applicant or his or her claims for the purpose of identifying the Convention reason for which he or she may face persecution, it is important that the categorisation is according to a feature of the applicant that makes him or her distinguishable from other persons, and that the potential persecutors also make that distinction.[50]

   In addition, where the evidence is that persons of a particular group ‘generally’ are or are not persecuted, it would be wrong to draw a conclusion about whether a particular applicant will be persecuted without paying close attention to the effect of the qualification provided by the word ‘generally’. The question is whether there is anything in the applicant’s circumstances to take him or her outside the ‘general’ situation.[51]

   While the decision maker may consider evidence relating to a group of which the applicant is a member, the decision maker’s factual inquiry should always be by reference to the applicant’s individual circumstances.[52] In assessing the real chance of harm, it will not be adequate to simply conduct a numerical analysis of the risk of harm without consideration of the applicant’s particular circumstances.[53] While a statistical or computational approach may have some probative value, it is inappropriate to confine the evaluative process on assessing ‘real chance’ to only such a data set or quantitative analysis.[54] Similarly, confining the evaluative process to a comparative analysis will also not suffice.[55]

   [47]    See Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [8].

   [48]    Appellant S395/2002 v MIMIA; Appellant S396/2002 v MIMIA (2003) 216 CLR 473 at [75]; Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [161].

   [49]    Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58]. Similarly, in MIMA v S152/2003 (2004) 222 CLR 1, McHugh J explained at [82] that in determining whether an asylum seeker has a well-founded fear of persecution, the decision maker usually needs to know a good deal more than that other persons holding similar beliefs, opinions or membership of races, nationality or particular social groups have been persecuted. It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those the asylum seeker is likely to face. Only then will the experience of other members of the relevant category throw light on whether there is a real chance that the asylum seeker will be persecuted.

   [50]    Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35].

   [51]    Applicant NABD of 2002 v MIMIA [2005] FCA 29 at [35].

   [52]   NBKT v MIMA [2006] 156 FCR 419 at [75]. However, it is not correct to say that there must be evidence pertaining to the applicant personally, as a particular applicant may face a real chance of persecution even though he or she has suffered no harm in the past: MZXQU v MIAC [2008] FMCA 15 at [47].

   [53]    DZADQ v MIBP [2014] FCA 754 at [65]. Finding error in the Tribunal’s approach, the Court stated that it will not be adequate for a decision-maker to reason that although a significant number of a group will be harmed, because the group is numerous, the chances of any particular member of the group being harmed is not a real one. Note, however, that a statistical approach will not necessarily be erroneous where an applicant does not claim to be at particular risk based on his or her specific circumstances. In SZURA v MIBP [2015] FCCA 1539 at [26] and [29], the Court found no error in the Tribunal’s conclusion that attacks on Christians in Indonesia were not occurring on a scale and frequency that indicated the risk to the applicant was anything more than remote. It stated that there was a logical connection between the probability of an event occurring to a member of a group and both the size of the group and the frequency with which other members of the group had been harmed in the past, particularly where there was nothing to distinguish the applicant from other members of the group. Similarly, in SZTWQ v MIBP [2015] FCA 950, the Court found no error in the Tribunal making an assessment based on the population of Shia Muslims relative to the total population of Pakistan, where he made no claim to be at particular risk other than on the basis of claims which had been rejected.

   [54]    MZAAD v MIBP [2015] FCA 1031 at [43], with reference to MIMA v S152/2003 (2004) 222 CLR 1 at [80] and DZADQ v MIBP [2014] FCA 754. In MZAAD the applicant argued that the Tribunal had erred by making a numerical calculation of risk based on the appellant’s having twice safely travelled on a road on which he claimed to fear harm, and his brother having travelled on that road over a longer period without incident. The Court rejected that argument, finding that the Tribunal considered other information and did not rely solely upon a statistical or qualitative analysis. Although considering ‘real risk’ for the purpose of s 36(2)(aa), the Court’s observations are equally applicable to ‘real chance’.

   [55]    In CID15 v MIBP [2017] FCA 780 the Court held that Tribunal erred by adopting a relative, rather than an objective, approach in applying the real chance test by reasoning that the applicant could safely relocate to elsewhere in Pakistan where it was ‘relatively free’ from violence. See also SZVJE v MIBP [2016] FCCA 594 at [28]–[30] where the Court held the Tribunal erred when it reasoned that because the level of violence was less severe in Lahore compared to other parts of Pakistan, there was not a real chance of harm, rather than analysing the degree of risk in Lahore itself.

   Country information

9. As set out in this decision record, there is considerable country information before the Tribunal, both provided by the applicant’s representative and sourced by the Tribunal.

10. The Tribunal notes that the range of country information discusses and expresses opinions on whether white South Africans are the target of violence, crime and discrimination because of their race and colour.

11. The Tribunal considers that there are equally credible reports that, taking into account whole-of-country population figures and ethnicity breakdowns, white South Africans are not so targeted, and that, in particular instances having regard to the facts and circumstances, white South Africans have been or are likely to have been so targeted.

12. The Tribunal acknowledges that issues regarding race and racially motivated violence, crime and discrimination in a country such as South Africa with a long history of racial division and conflict are complex, nuanced and changing. The Tribunal considers that these issues are best understood by taking into account a range of perspectives and assessing the lived experience of the particular individuals involved.

13. The Tribunal does not consider it appropriate for the Tribunal in this case to reject one set of credible reports in favour of another, nor to conclude that a set of credible reports is definitive either way as to the issue of persecution of white people in South Africa.

14. When assessing whether the applicant’s fear is well-founded, the Tribunal must take great care in referencing general information about people in a similar position to the applicant. The Tribunal’s factual inquiry should always be by reference to the applicant’s individual circumstances. The question is whether there is anything in the applicant’s circumstances to take him outside the general situation.

15. The Tribunal considers that it is possible and reasonable, having regard to the facts and circumstances of the case, to determine that a particular applicant has been persecuted and has a well-founded fear of being persecuted in South Africa by reason of being white without making a determination that the applicant is at a higher risk of persecution than other whites in South Africa or that all whites are at risk of persecution in South Africa.

    Applicant’s lived experience

16. The Tribunal considers that the extent and severity of the applicant’s lived experience in South Africa over three decades as set out in this decision record, beginning with his sister’s rape, which was the trigger of long-term significant trauma and hardship for the applicant and his family, is compelling evidence of the applicant’s circumstances taking him outside the general situation.

17. The Tribunal considers that the applicant’s lived experience in South Africa and his long-held fears of violence, harm and discrimination were his central motivation for moving to the [Country 1]in his mid-twenties. The Tribunal accepts as reasonable that the applicant didn’t seek protection elsewhere at that stage as it was enough for him to be away from South Africa, albeit on relatively short-term work visas renewed every couple of years. His return to South Africa some years later as an older, more mature person was, in the Tribunal’s view, an attempt by the applicant to put his experiences and fears behind him and give his home country another chance. However, his fears only continued to heighten and overwhelm him, culminating in his inability to return to South Africa from a visit to Australia and making an application for protection.

18. The Guide to Refugee Law in Australia provides at page 3-9 that:

    In most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past. Such findings provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a Convention reason is well-founded.

    The extent to which past events can be a guide to the future was explained in Guo’s case. As the High Court observed:

    Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.[56]

    Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:

    In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[57]

    Assessing what is likely to happen in the future on the basis of past events involves questions of degree. The Court in Guo explained:

    The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[58]

    [56]    MIEA v Guo (1997) 191 CLR 559 at 574.

    [57]    MIEA v Guo (1997) 191 CLR 559 at 575.

    [58]    MIEA v Guo (1997) 191 CLR 559 at 574–5.

19. Having accepted the applicant’s evidence of his lived experience in South Africa, the Tribunal considers that it is a reliable guide as to what will happen in the future if the applicant returns to South Africa.

20. Under the law, persecution must involve serious harm to the applicant and systematic and discriminatory conduct. Selective harassment, which discriminates against a person for a Convention reason is inherent in the notion of persecution.[59] The Guide to Australian Refugee Law states at page 4-13 states that the conduct must be non-random in the sense of being deliberate, pre-meditated or intended. Further, on the following page, the discriminatory element involves an element of motivation on the part of the persecutor. In the well-known passage in Ram v MIEA, cited with approval by the High Court and Federal Court on a number of occasions, Burchett J said:

    Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.[60]

    [59]   MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99].

    [60]     Ram v MIEA (1995) 57 FCR 565 at 568.

1. The Tribunal considers that the applicant’s lived experience in South Africa included racially motivated acts of persecution for the reason that he is white.

   Return to South Africa

2. The Tribunal considers that if the applicant returns to South Africa, his fears of persecution, and any experience of persecution, would be significantly debilitating to his wellbeing, and capacity to live, be employed and support himself financially and emotionally.

3. The Tribunal considers it is likely that the applicant’s fears of persecution and limited financial resources would necessitate him living with his brother or mother in Johannesburg, however the Tribunal does not consider that this would lessen his exposure to persecution as he would still need to seek and maintain some form of employment in a workplace outside the residence or risk significant financial hardship.

4. The Tribunal further considers that if the applicant were not able to live with his brother or mother, it is likely he would be forced to live in insecure or substandard accommodation in Johannesburg or elsewhere, which would increase his exposure to persecution and be further debilitating to his wellbeing, and capacity to live, be employed and support himself financially and emotionally. There is no evidence before the Tribunal indicating that the applicant would be less exposed to persecution in a particular area or areas of South Africa.

5. The Tribunal considers that there is credible evidence, from the applicant’s lived experience and country information, that it is unlikely the South African police authorities would be willing or able to offer the applicant protection from persecution.

   Other considerations

6. In considering the claims and evidence, the Tribunal has also taken account of:

   40.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

   40.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.

   Application of law

7. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

8. 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:

   42.1.The applicant is a non-citizen in Australia.

   42.2.The applicant fears being persecuted in South Africa for the reason that he is white.

   42.3.If he returns to South Africa, there is a real or substantial, and not remote or far-fetched, chance that the applicant would be persecuted for the essential and significant reason that he is white.

   42.4.There are no effective protection measures available to the applicant in South Africa.

   42.5.The applicant is unable to take reasonable steps to modify his behaviour to avoid the real chance of persecution because he cannot deny or conceal his white heritage and ethnicity.

   42.6.The real chance of persecution relates to all areas of South Africa.

   42.7.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.

   42.8.As required by s 5H(1)(a) of the Act, the applicant is outside South Africa, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of South Africa.

   42.9.The applicant does not have a right to enter and reside in, temporarily or permanently, any country other than South Africa.

   CONCLUSION

9. Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   decision

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    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.