1926802 (Refugee)

Case [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…

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1926802 (Refugee) [2022] AATA 5215
Case
[2022] AATA 5215
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a white South African national. The applicant claimed to fear persecution in South Africa due to his ethnicity, citing a history of violence, crime, and employment discrimination experienced by himself and his family over several decades. He argued that these incidents were racially motivated and that the South African police were unable or unwilling to provide effective protection. The applicant arrived in Australia in late 2018 and applied for a protection visa in early 2019, which was subsequently refused by the delegate. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically whether he was a refugee. This required determining if the applicant had a well-founded fear of persecution for reasons of race, if there was a real chance of such persecution upon return to South Africa, if this persecution related to all areas of the country, and if effective protection measures were unavailable. The Tribunal also considered whether the applicant could take reasonable steps to modify his behaviour to avoid persecution, and if the fear of persecution was based on essential and significant reasons involving serious harm and systematic, discriminatory conduct.

The Tribunal found that the applicant had a well-founded fear of persecution for the essential and significant reason that he is white. It accepted that there was a real and substantial chance of persecution across all areas of South Africa and that the applicant could not reasonably modify his behaviour to avoid this, as his white heritage is an immutable characteristic. Crucially, the Tribunal was satisfied, based on the applicant's lived experience and country information, that South African police authorities were unlikely to be willing or able to offer the applicant effective protection. Consequently, the Tribunal concluded that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 TRIBUNALTimeline 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 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).

Decision

Reasons for decision

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 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe 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 19585 (1) Interpretationcruel 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 familyFor 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 familyFor 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.

Ratio Decidendi

Legal Principle Established

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 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 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. 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 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 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe 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 19585 (1) Interpretationcruel 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 familyFor 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 familyFor 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.