1926802 (Refugee)

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.