1927882 (Refugee)

1927882 (Refugee) [2023] AATA 4323 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1927882

COUNTRY OF REFERENCE: South Africa
MEMBER:David James
DATE:20 September 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 20 September 2023 at 4:34pm
CATCHWORDS
REFUGEE – protection visa – South Africa – race – white South Africans – particular social group – workers working night shifts and/or alone in remote locations – attacks on business premises – business robberies – home invasions – fear of killing – attacks on white famers – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of the Republic of South Africa (South Africa), applied for the visas on 13 May 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 3 October 2019. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants protection visas having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicants appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
The applicants were not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act 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, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to South Africa they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Africa, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicants to the Department and the Tribunal relating to the applicants’ claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·The applicants’ protection visa application, submitted on 13 May 2018;
·Applicants’ application for review, lodged 3 October 2019 and the attached decision record of 30 August 2019;
·Applicants’ written submissions of 3 October 2019 replying to the Department’s decision and annexing personal letters from the applicants outlining their background and claims together with internet media posts and reports including articles as to: white squaller camps; South Africa post-Apartheid; Farm attacks; South African racism; South African Police leadership; South African Police Service; South Africa’s crime rate; South Africa’s murder statistics; dress rehearsal for civil war in South Africa and the Black Land First (BLF) movement; land seizures; racial tensions in South Africa; Australia’s proposed fast track visas for South African farmers; South African land reforms; and a report on corruption in the South African Police Service;
·Letters of support submitted with the written submissions of 3 October 2019 attesting to the violence in South Africa, general security situation in South Africa and the applicants current circumstances;
·Email submissions of 12 September 2023 providing links to social media reports of violence in South Africa including a report of a robbery at a shopping centre where the first applicant previously ran her [service 1] business - of support emailed on 12 September 2023 supporting the applicants, attesting to their good character and speaking of the prevalence of violent crime and farm attacks in South Africa; and
·Administrative and movement records of the Department relating to the applicants.
In the second applicant’s letter of 3 October 2019, he stated that:
My wife and I arrived in Australia April 2018 for our second visit to family, while on holiday here we heard that the [premises] where most of my work is done was burned down. I have always been aware of the violence and lived in fear but this was when the fear of returning to South Africa became a reality.
It was also while on holiday that we learnt that help was available. After making the decision, we notified our adult children. Making the best out of a very sad situation, they were happy for us. They have recently started making arrangements to immigrate. My job as [an occupation 1] has become very dangerous as all my work is done [in remote locations] and a lot after dark. With protesting and striking on the main roads and we being targeted, getting to jobs alone became a challenge. Going back to South Africa means becoming subjected to violence and accepting a real risk of being killed.
In South Africa I am unable to protect my wife, or myself. In one of cases, 500m metres from home, all I could do was watch as a gun was pointed at my wife’s head as I had a gun held at my chest. As a provider and protector I am left helpless…
We do not want to be a burden to the country, we do not want any handouts or freebies, I would just love to live without the fear we have in South Africa and be able to provide security for my wife and myself…
Claims for protection
The first applicant in the application for the visas provided information supporting that she and the second applicant are married. She stated that she is [an occupation 2] who lives in the village of [Town 1] and that her and her husband, the second applicant, had previously lived on a farm in the [Town 1] area prior to moving to the village in 2009 for safety reasons. She states that her husband is [an occupation 1] and that between them they have [number] adult children who reside in South Africa.
She stated that they (the first and second applicants) had travelled to Australia arriving [in] April 2018 to visit family in Australia.
The first applicant later at her interview with the Department confirmed that she lived in the village of [Town 1] having previously lived outside of the village on a farm where they farmed [animals]. She explained that she had lived in that area for about 30 years. She said that [this] Village is about a [time] drive from Durban and is surrounded by farmlands. She stated that she and her husband do not currently live on a farm but own their own house in the village.
She stated that she and her husband first became aware of Australia’s protection program when on their visit to Australia in 2018. Although they had previously travelled to Australia in 2017 for [a relative’s] wedding, they had not then formed the view that it was unsafe to return home.
It was on their most recent trip to Australia (2018) that they felt it was unsafe for them to return to South Africa.
The first applicant in the visa application claims that;
·They had experienced numerous break-ins, home invasions and armed robberies in their home by black South Africans leaving them traumatised and living in fear;
·The local Police Force had been called after each of these incidents but very little, if any, assistance was received by them;
·This violence is a nationwide problem and there is nowhere where they feel safe in South Africa;
·After witnessing first-hand, the force of violence, they believe there is a strong chance that they will be murdered, raped and tortured because of the hatred for whites that has been installed in the minds of the majority of the blacks,
·The threat of losing their home has now become a reality with the land claims;
·The South African Police Force together with the army are black South African controlled and the personnel are predominantly black. The few authorities that wish to help are way outnumbered and suppressed by the majority masses and don’t have the resources to help; and
·They do not believe that there is any safe area in South Africa as this is a nationwide problem.
The second applicant did not make any individual and/or separate claims in the application.
Later at her interview with the Department she further claimed that:
·Her husband is an [occupation 1] who services [equipment] within a 200 – 300 km radius and that he is often in danger when he is called out to work at night;
·The applicants were robbed in their home just before they travelled to Australia in 2018 along with a string of other home invasions and robberies prior to this, too many for the applicant to remember;
·They were robbed almost daily on their farm, often coming home to find bottles of wine open and evidence of people having cooked in their home while they had been out as well as the theft of personal items; and
·They do not feel safer living in the village and are at risk due to the anti-white rhetoric from the government and fear that the current land reclamation policies aimed at farmland will extend to residential homes.
Department interview
The first and second applicants were interviewed together by the Department on 16 July 2018.
Delegate’s decision
The delegate’s decision of 30 August 2019 to refuse the protection visas was made on the information before the delegate. The delegate accepted that the first applicant held fears of generalised crime in South Africa and that she was intimidated by race based political rhetoric and that these fears became apparent to the applicant when she came to Australia in 2018. However, the delegate did not accept that those who are white are being targeted due to their ethnicity, but as white South Africans earn significantly more income on average than their indigenous counterparts, they may be at a greater risk of financially motivated crime than the general population. Therefore, the delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and therefore they were not refugees. The delegate for the same reasons found that the real risk of significant harm was not faced by the applicants personally but rather faced by the population of the country at large and thus was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, that there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 15 August 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 19 September 2023 at 9:30 am. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 19 September 2023
The Tribunal explained to the first and second applicants that the Tribunal would consider the applicants’ application for the protection visas afresh. The first and second applicants when questioned by the Tribunal as to their understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that they did not really understand the criteria.
Given the applicants’ response as to their understanding of the criterion and as they were appearing before the Tribunal without representation, the Tribunal queried the first and second applicants as to whether they would like the criteria explained to them by the Tribunal. Upon their request the Tribunal provided an outline of the refugee and complementary protection criteria to the applicants, who then acknowledged that they understood the criteria.
The first applicant told the Tribunal she and her husband had come to Australia in April 2018 on holidays and to see her sister and brother-in-law. She explained that they had earlier in 2017 travelled to Australia for [a relative’s] wedding and as they had not had much of an opportunity to spend time with her sister and brother-in-law, they had come back to Australia in 2018. She explained that after they arrived in Australia in 2018, they had stayed with her sister and brother-in-law at their home in [Town 2].
It was the first applicant’s evidence, which was in accordance with the applicants’ earlier statements, interviews with the Department, and letters of support, that she and her husband had been farmers in South Africa in the [Town 1] area outside of Natal. The had left their farm and moved to the township of [Town 1] about 10 years ago because of the increase in violent attacks and home invasions being committed against white farmers in the area. After moving into their own home in the township where they were well known amongst the population as former white farmers, the first applicant obtained work as [an occupation 2] and the second applicant as a specialist [occupation 1]. She told the Tribunal that her husband’s work saw him often work alone at night in remote locations within a two hundred to three hundred, kilometre radius of their township.

She said that while visiting her sister and brother-in-law, they had been told by family and friends in South Africa that her husband’s work depot and the [business vehicles] had been attacked and burnt. As her husband worked as [an occupation 1] who attended after hours [clients] outside of their village, they had decided that with these recent attacks it was becoming too dangerous for them to return to South Africa.
She told the Tribunal that after deciding to stay in Australia because they feared being the subject of further serious violence in South Africa, they made their application for the visas whilst they were staying with her sister at [Town 2] via Brisbane. She explained in accordance with the letters of support that had been provided to the Tribunal that she had within twelve months of arriving in Australia obtained employment as [an occupation 2] at [two locations]. She said that her husband had since 2020 been employed as [an occupation 1] for a local company.
She told the Tribunal that her sister and brother-in-law and another sister all resided permanently in Australia and that they had been supportive of her and her husband while they had been living here in Australia. She explained that they currently lived in rental accommodation and that there house, in [Town 1], had been repossessed by the Bank in South Africa as they had been unable to maintain their mortgage payments while supporting themselves in Australia.
Under further questioning the first applicant provided a history of attacks upon her and her husband in accordance with their earlier submissions and statements to the Tribunal of 3 October 2023, including an attack upon their farm where by they were both held at gunpoint during a robbery and an armed attack and robbery upon the shopping centre adjacent to the fist applicant’s then [service 1 business] in [Town 1] (the aftermath of this robbery was the subject of a social media recording that the first applicant had provided to the Tribunal on 12 September 2023).
The first applicant told the Tribunal that she had [specified children] from an earlier relationship and that her [age] years old son presently lived and worked in [Country 1] and was in the process of making application for a protection visa in [Country 1]. She told the Tribunal that her [other specified children] who were now [specified ages] remained in South Africa where they operated a [business] in Natal that supplied specialised [products]. She said that [these children] were in the process of obtaining their [Country 2] passports as their father, the first applicant’s first husband, who was now deceased was a [Country 2] passport holder. She explained that it was her understanding that [these children] intended to migrate to [Country 2] once they had obtained their [Country 2] passports.
The first applicant also told the Tribunal that her husband the second applicant also had [children] who were eligible for [Country 3] passports through their family and that they were also in the process of obtaining those passports so that they could also leave South Africa.
Under questioning as to her fears of harm in South Africa the first applicant repeated her personal history of experiences of violence in South Africa and explained to the Tribunal that it is dangerous to walk down the street or to work in any isolated locations in South Africa as you are targeted for violence and robberies when you are alone and/or otherwise isolated or outnumbered by the criminals.
In reply to the Tribunal commenting that this violence appeared to be country wide and not targeted specifically against her and her husband, the applicant told the Tribunal that it was widespread and agreed that there was nothing specific about her and her husband but for her husband’s work often having taken him to remote locations after-hours. She said that it was just a dangerous place.
As to the earlier attack upon their farm and the later instances of violence in the township of [Town 1] and the numerous break-ins of their house in [Town 1], she told the Tribunal that they had reported all these attacks and robberies to the police, but that nothing had happened as a result of their complaints. She explained that the police were under resourced and often corrupt and involved with the criminal gangs who committed these crimes.
In reply to the Tribunal highlighting country information from the Immigration and Refugee Board of Canada (IRBC) that reported that crime in South Africa was a serious problem but that there were no areas that are more dangerous for white South Africans per se;[1] the first applicant stated that she disagreed with this statement, and said, that white South Africans were targeted by black South Africans. She explained that the opposition political party in South Africa had been very vocal during recent years about encouraging revenge attacks against the whites because of the earlier apartheid policies and the disposition of the blacks from their traditional farmlands.
[1] IRBC Response to Information Request ZAF106171. E Responses to Information requests – Immigration and Refugee Board of Canada (irb-cisr.gc.ca.
She explained that there were a lot of things that were not reported in the media about targeted attacks upon white members of the South African community. She further said that South Africa is getting scarier and scarier because of all the violence being committed by black members of the community against white members of the community and that much of the violence was motivated by sentiments of revenge against the whites and was racially motivated.
However, under further questioning she agreed she had not recognised any of the attackers from the robberies that had been committed against her, but she said that was not because they had not been targeting her and other whites but rather because there had been so many attacks over such a long period of time that she had not been able to recognise any repeat offenders.
She continued outlining violent attacks that she was aware of personally in South Africa and highlighted that the police stations in South Africa were guarded by private security contractors and as such, if the police could not protect themselves, how could they provide any support or security to the community including the applicants. She further explained that the criminal gangs were mobile and moved about the country so there was nowhere safe for her and her husband. She also explained that when these criminal gangs came to villages and townships like [Town 1], they found out through other black residents, who was who, and the background of their potential victims. As such she believed that she and her husband had often been targeted because of their farm ownership background.
The second applicant also gave evidence in accordance with the evidence of the fist applicant and their earlier submissions and statements as to their history of being victimised in a series of attacks, robberies and home invasions over many years in the [Town 1] area.
He told the Tribunal that he had worked as [an occupation 1] in South Africa after leaving farming. He explained that he had become a specialised [occupation 1] and had been employed in that role which required him to attend to after-hours [clients]. He explained that his work often required him to [work in] isolated [locations]. He recounted several occasions where he had arrived, to [attend clients], only to find the [clients] and security [at the location] had left or where in hiding from criminal gangs who had attacked and raided the [location] money and other items. He explained that he had often requested security support when he responded to after-hours requests for assistance, especially at night, but that often there was no security personnel available, and he would have to attend the [emergency] job alone. He said that since leaving South Africa the [occupation 1] who replaced him had refused to attend after-hours callouts for assistance, due to the danger of targeted attacks upon persons working at night and alone [in remote locations] within the [Town 1] area.
He also told the Tribunal that he also believed that much of the violence and criminal attacks upon himself, his wife and other whites was racially motivated and often in response to the political rhetoric of the current opposition in South Africa who encouraged vigilante vengeance, motivated violence and robberies against whites and in particular white farmers.
In that regard he said that as he and his wife were well known in their former community as former farmers his profile was accentuated through his past. He stated that he feared further targeted attacks and robberies because of his profile and vulnerability as an [occupation 1] who often was working alone, in remote locations, [examples], for extended periods of time often in darkness. He explained that as he was white, he faced a heightened risk of serious racially motivated violence by the criminal gangs who targeted workers and/or persons in isolated locations.
FINDINGS AND REASONS
Country of reference
According to the protection visa applications, the applicants claim to be citizens of South Africa. The applicants provided copies of their South African Passports to the Department. Based on this material the Tribunal finds that the applicants are who they say they are, and nationals of South Africa. South Africa is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.
Analysis
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[2] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[5] Fox v Percy (2003) 214 CLR 118
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[9] UNHCR, re-issued February 2019 at [203]–[204].
Racially motivated crime and harm
The first applicant on behalf of the applicants claims that they, their family and other whit members of their community have experienced numerous break ins, home invasions and armed robberies by black South Africans both at their former farm outside of [Town 1] and at their home in [Town 1]. They claim that the local police have been called to these incidents but that very little, if any, assistance was received and that no arrests and prosecutions resulted from the investigations of the applicants’ complaints. The applicants claim that this violence is a nationwide problem and that there is nowhere safe for them in South Africa. The applicants claim that this widespread criminal violence is targeted at white South Africans like themselves, because of the hatred for whites that has been installed into the minds of the majority of black South Africans and is fuelled by racist political rhetoric by black South African politicians and activists.
Although the first applicant outlined a series of attacks, violent home invasions and robberies where she and her husband had been the victims, together with her knowledge of similar attacks and robberies that had occurred within their rural community and the township of [Town 1], she agreed that this violent criminal offending was something that was not only widespread but that the community at large faced within South Africa.
However, it was the applicants’ evidence at the hearing that this violence was more often committed against white South Africans by black South Africans and as such they were at a greater risk being white South Africans than other black South Africans. Further they, having been known to have been former farmers in their community were at a greater risk of violence because of the targeting of white famers by these black criminal gangs who were not only committing robberies for profit but additionally were making a political statement in support of the government’s farmland acquisition policies.
Harpers Magazine in the article ‘The Myth of White Genocide’ reported that the murders of white farmers which were often senselessly violent did at times contain a racial motivation.[10] However, it noted that there were almost 20,000 people murdered in South Africa in 2018, but that the majority of those killed were black and that there were only 62 farm murders. The article also reported the South African opposition, the Economic Freedom Fighters (EFF) led by Julius Malema had called for the widespread land redistribution of white owned lands by the government and often promoted the words ‘Kill the Boer’. However, the article notes that; ‘according to the country’s largest agricultural associations, murders of farmers are at a twenty-year low. And not all of the victims are even white.’[11]
[10] The Myth of White Genocide, by James Pogue (harpers.org) – ibid

This article also reported that; ‘But farmers are only one of the broad host of people in South Africa who are at risk of being murdered – night-shift workers and Uber drivers, for example, are in greater statistical danger.’[12]

[12] ibid

The Immigration and Refugee Board of Canada (IRBC) when reporting on farm crimes in South Africa in 2018, noted that, statistics show that violent crimes against white farmers is lower today than 15 years ago. If there was genocidal intention against white South Africans, these statistics would be the opposite.[13]The report provided that:

Sources indicate, however that police statistics on farm murders are not recorded “by race” (Africa Check 8 May 2017; BBC 3 Nov. 2017). The BBC explains that given the lack of current data on the number of farmers in South Africa and “what proportion of people on South Africa’s farms is white,” it is “impossible to say whether white farmers are more at risk than black farmers – or more at risk that the population at large” (BBC 3 Nov 2017)…
Sources indicate that rural communities are more vulnerable to crime (CBS with AFP 23 Aug. 2018; Vice Chancellor 4 Sept. 2018; Agri SA 2018 5), because of the remoteness of properties (CBS with AFP 23 Aug. 2018; Agri SA 2018 5) with “little protection” (CBS with AFP 23 Aug. 2018). According to Al Jazeera, however, there is “no evidence to suggest that farmers as a group suffer more attacks than any other demographic in the country (al Jazeera 20 Aug. 2018). The Guardian indicates that “[t]he isolation of farms and the limited protection provided by police are… factors often cited to explain the level of violence in [farm] attacks” (The Guardian 26 June 2018)…
[13] IRBC Response to Information Request ZAF106171. E Responses to Information requests – Immigration and Refugee Board of Canada (irb-cisr.gc.ca.

The Tribunal after carefully considering the applicants’ evidence both from the hearing and the documents and media material including the social media videos that the applicants submitted to the Tribunal and the country information as outlined above, is not satisfied that the applicants if they return to South Africa, would be at risk of harm for the reason of their race.

Although the Tribunal is satisfied that South Africans face a risk of becoming victims to serious crimes throughout the country, and that those living in smaller rural communities through their isolation and the limited available police and security resources face a heightened risk, the risk is one that is faced by the population at large. The Tribunal was not made aware of any evidence to support the applicants’ claims that they are at a higher risk of harm because of their race, being white South Africans.

In this regard the Tribunal notes that s 36(2B)(c) of the Act, provides that there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

It is further noted, as outlined above at paragraphs 60 and 61, that although farmers are one of a broad host of people in South Africa who are at risk of being murdered, and, that some farm attacks are racially motivated, the applicants are no longer farmers having left their farm over 10 years ago. As there is no evidence before the Tribunal that the applicants have any intention to return to farming if they were to return to South Africa, the Tribunal is not satisfied that the applicants would face a real chance of serious harm or a real risk of significant harm, on account of being former white farmers if they were to return to South Africa in the foreseeable future.

Therefore, the Tribunal finds that the applicants do not face a real chance of persecution involving serious harm on account of their race if they were to return to South Africa in the reasonably foreseeable future.
The applicants’ fears’ as to their race, ‘White South Africans’ and/or ‘Boers’ is not well-founded.
Land acquisition
The first applicant claimed that the threat of losing their home has now become a reality. At the hearing the first applicant told the Tribunal that the applicants had lived in their home in the township of [Town 1] before coming to Australia. However, she stated that after traveling and remaining in Australia they had been unable to keep up with their mortgage payments. She told the Tribunal that their former home in [Town 1] has since been repossessed by their bank and that they no longer own any property and/or or a home in South Africa.
Noting that the applicants no longer own a home in South Africa and that no evidence was placed before the Tribunal to suggest there was any political moves and/or legislative changes proposed in South Africa for the existing land redistribution policies to extend to homes and properties other than farmland, the Tribunal finds that the applicants do not a face a real chance of their former home being the subject of any government redistribution.
The applicants’ fears in this regard are not well founded.
Membership of a particular social group (PSG) of ‘workers working night shifts and/or alone in remote locations in South Africa’
The first applicant claims that her husband as an [occupation 1] often attends remote locations which can be 200 to 300 kilometres away from his place of work and their home in [Town 1] and that he is often in danger of serious harm at these locations.
It was the second applicant’s oral evidence at the hearing that he is a specialist [occupation 1] and has many years of experience in this field. He described his job in South Africa as involving him being tasked from his workshop depot or home in [Town 1] to various isolated locations often several hundred kilometres from his home and/or work depot to [serve clients in emergency situations]. He explained that he is often tasked after business hours and more often than not in the night to attend these locations where he has often found that the [clients] has left the [location] or is in [hiding] after having been assaulted and robbed. He further explained that he would always request that he be accompanied by security to callouts but that often, security personnel, were not available given the unscheduled and unpredictable nature of the time and location of his callouts.
He explained that when attending callouts alone, and as a white man, and often the only person present or only being in the company of the [individual client], they were easy targets for criminals. He said that given the isolation of these callouts and [the high value of jobs], he was always in danger of attack, robbery and possibly murder.
The second applicant told the Tribunal that given some of the criminals that committed these attacks on [clients] were not only motivated by greed and/or need, but equally racially motivated by a sense of hate of the whites, he was at a heightened risk of facing serious harm if not death during these attacks.
Under questioning he told the Tribunal that if he was to return to South Africa, given the poor state of the economy, he would not be able to support himself and his wife without returning to his former work. He explained having attained his specialist skills in [his specialist field], he would more than likely only be able to find employment in that field. He further explained that the [occupation 1] who had replaced him had refused to attend late night, out of town, [jobs] with or without security because of the danger of attack, robbery and being seriously harmed if not killed.
Noting the Harpers’ Magazine article that has been discussed above at paragraphs 60 and 61, in which it was stated, ‘that farmers are only one of a broad host of people in South Africa who are at risk of being murdered – night-shift workers and Uber drivers, for example, are in greater statistical danger’[14], the Tribunal has considered whether the second applicant would be at a greater risk of being specifically targeted for harm because of the nature of his employment.
[14] The Myth of White Genocide, by James Pogue (harpers.org) – >
In that regard, the Tribunal has considered the provisions of s 5L of the Act, which provides that a person is to be treated a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. And that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
In its consideration the Tribunal finds that the second applicant is a member of a PSG being ‘workers working night shifts and/or alone in remote locations in South Africa’.
The Tribunal accepts given the specific work history and work-related skills of the second applicant that if he was to return to South Africa in the reasonably foreseeable future he would most likely return to his former community in [Town 1] and return to his former employment as a [specialist] [occupation 1]. Additionally, even if the second applicant was to relocate within South Africa, he would most likely only be able to secure employment given his skills and experience as a [specialist] [occupation 1] and thus he would the same risk of serious harm as he would in [Town 1].
The Tribunal is also satisfied that the second applicant’s risk profile is elevated in his occupation of a [specialist] [occupation 1] by him being a white male given that some generalised violence does involve at times some racial motivation as has been identified in some farm attacks, refer paragraphs 60 and 61 above.
Noting that the United States State Department in their Overseas Security Advisory Council’s report ‘South Africa 2017 Crime and Safety Report’ provides in part that:
South African Police Service Z(SAPS) continues to address poor response time and officer indifference with an effort to improve their sector policing capabilities in many neighbourhoods. While SAPS attempts to respond to emergency residential calls and other developing crimes, real improvements are still forthcoming. Property crimes are a lower priority. Police response may take 2-3 days after a break-in to respond or take a report. Perpetrators are seldom successfully prosecuted.[15]
The Tribunal finds that the second applicant cannot rely upon the South African Police and/or any other South African authority to provide sufficient protection to him so as he would not face a real chance of serious harm when performing his work-related duties.
[15] United States State Department, Overseas Security Advisory Council (OSAC) ‘South Africa 2017
Crime & Safety Report’, 5 May 2017
Therefore, the Tribunal is satisfied that the second applicant does face a real chance of persecution involving serious harm if he was to return to South Africa in the reasonably foreseeable future on account of his membership of the PSG of ‘workers working night shifts and/or alone in remote locations in South Africa’.
Refugee criterion
The Tribunal, having considered all of the applicants’ claims both individually and cumulatively, does accept that the second applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of being a member of the PSG of ‘workers working night shifts and/or alone in remote locations in South Africa’ in all areas of his receiving country, South Africa: s 5J(1)(c). The Tribunal also finds on the evidence before it that the second applicant in this regard cannot rely upon the South African authorities to provide protection to him and as such there are not effective protection measures available to the second applicant from the South African authorities: s 5J(2).
Therefore, the Tribunal finds that the second applicant’s fears of persecution arising from his membership of the PSG of ‘workers working night shifts and/or alone in remote locations in South Africa’ are well-founded as required by s 5J of the Act, and therefore, the second applicant is a refugee within the definition of s 5H of the Act.
Having found that the second applicant is a refugee the Tribunal has also considered whether the applicants have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicants do not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Additionally, as the first applicant is the second applicant’s wife, the Tribunal is satisfied that the first applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
Complementary protection
Having concluded that the second applicant does meet the refugee criterion in s 36(2)(a) of the Act, and that the first applicant satisfies s 36 (2)(b)(i) of the Act on the basis of membership of the same family unit as the second applicant, the Tribunal has not considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
David James
Senior Member
ATTACHMENT - Extract 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.
…

[2023] AATA 4323

20 September 2023

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