1928685 (Refugee)

1928685 (Refugee) [2024] AATA 3265 (5 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1928685
MEMBER:Fraser Robertson
DATE:5 March 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 March 2024 at 10:02am
CATCHWORDS
REFUGEE – protection visa – South Africa – race – white South African – Afrikaner – Boer – inability to obtain employment – Black Economic Empowerment Act (BEE) – risk of violent crime – lack of police protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716
GLD18 v Minister for Home Affairs [2020] FCFCA 2
Gunaseelan v Minister for Immigration & Multicultural Affairs [1997] FCA 434
Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; 113 FCR 541
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
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.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
For these reasons, the decision under review should be affirmed.

BACKGROUND

The applicants in this review application are related by marriage. They are both from South Africa. The first applicant is a [age]-year-old male and the second applicant is a [age]-year-old female. The applicants are married and both applicants last arrived in Australia on [date] November 2018.
The first applicant lodged a protection visa application on 23 November 2018. The second applicant relied upon the claims made by the first applicant.
In connection with their claims, the applicants use the terms ‘black’ and ‘white’ in their discussions of race in South Africa. Those terms are also employed in country information. I will use language consistently adopted by the applicants, without endorsement or judgement, and with no intended disrespect to any person or group of persons by doing so.

PROTECTION VISA APPLICATION

The protection visa application claimed, in summary, that the applicants left South Africa because following the introduction of the ‘black economic empowerment scheme’, white people are at a major economic disadvantage. They claimed that as a result ‘people are unable to care for their families and ensure survival’. The applicants claim that they could not relocate because the laws applied everywhere. The applicants further claimed that they could not seek protection because ‘the authorities [do] not care to help the white population and the law follows you everywhere’.
The applicants claimed that if they were to return to South Africa, they would be unlikely to obtain employment and may end up in the slums. They claimed that water and electricity is restricted in the ‘white slums in South Africa’. The applicants included with their protection visa application various documents in support of their claims; I address these documents in more detail below.

DEPARTMENT INTERVIEW

The first applicant was invited to and attended an interview with the Department on 26 August 2019.
During the interview, the first applicant raised several concerns about life in South Africa. He claimed that they had to sell their house and move to a secure complex due to safety issues. He claimed that the house that he sold was broken into, resulting in the theft of their daughter’s scooter and the second applicant’s jewellery.
The first applicant described being accosted in the street with an attempted robbery. The first applicant claimed that their living standards declined, which lead to needing to sell their second car and their caravan.
The first applicant claimed that the second applicant no longer felt safe walking to the shops. There were incidents at the mall where the second applicant and her daughter felt intimidated by black South Africans. The person voiced concerns about job prospects upon returning to South Africa, citing age and race as potential barriers.
The first applicant feared potential financial struggles and homelessness. He believed that they would be targeted for violent crimes by black South Africans and had no confidence in the South African Police’s ability to protect them.

DELEGATE’S DECISION

The delegate refused to grant the applicants a protection visa on 3 October 2019. The delegate held concerns about the first applicant’s credibility regarding future harm feared in South Africa due to his extensive travel history. The delegate summarised the extensive travel undertaken by the first applicant, including travel to Australia.
The delegate referred to the first applicant’s explanation, given at the interview, about why he had not sought protection on any of his previous trips to Australia. The delegate observed as follows:
At interview, when asked about the travel and why he hadn’t sought protection on any of his previous trips to Australia, he stated:
“all the crime and everything that happened to us, you get used to it. But it builds up and builds up until you decide it is just getting worse and there is no light at the end of the tunnel… Last year, Peter Dutton started to acknowledge to an extent, that Australia could start helping the white South Africans. The other reasons is because we didn’t know we could do it and we chose Australia because of our son. In the rest of the world, we have no support system… I don’t know if other countries have a Protection visa…”.[1]
[1] Delegate’s decision, p 5-6.
The delegate then summarised the first applicant’s claims about the sale of his home, the death of his nephew and the inability of the applicants to obtain employment before concluding that:
I acknowledge the applicant’s lodged their Protection visa application within two weeks of arriving in Australia in 2018. However, I consider they had ample opportunity to apply for a Protection visa on each of their previous travels to Australia. I find this is relevant in my assessment of the applicant’s credibility and of the urgency and immediacy of the claimed fear of harm in South Africa. I find they do not weigh in the applicant’s favour in my assessment of the applicant’s claims.[2]
[2] Delegate’s decision, p 6.
The delegate then found that the first applicant was ‘largely’ motivated by economic factors and a desire to remain in Australia, rather than a fear of returning to South Africa. The delegate also found that the first applicant had exaggerated or embellished his claims for protection and his experiences in South Africa.
However, the delegate accepted that the first applicant was a South African citizen and an ‘older white South African’ from Gauteng who was a victim of general crime there.
After surveying country information, the delegate held that the persecution feared by the first applicant relating to discrimination, employment, and accommodation, did not involve ‘serious harm’ and was incapable of amounting to a well-founded fear of persecution.
The delegate further held that violent crime in South Africa was ‘pervasive’ and ‘affects everyone’ in South Africa. The delegate considered that such violence was ‘more likely than not’ motivated by ‘opportunistic greed rather, than having a systematic, religious or politically motivated objective’. The delegate also held that any denial of protection would be based on availability of resources and affects all South Africans regardless of race.
The delegate found that the persecution feared by the applicants did not involve systematic and discriminatory conduct as required by s 5J(4)(c), before finding that the first applicant's ‘fear of violent crime and denial of police services based on his race is not a well-founded fear of persecution pursuant to s 5J of the Act’.
The delegate further found that the applicants were not owed complementary protection because:
(a)the harm feared in relation to any short-term difficulty in finding employment and accommodation would, when considered together with the availability of the first applicant’s personal network, access to social security and housing meant that there was no real risk that the applicant would suffer significant harm if he were removed to South Africa; and
(b)the risk of violent crime and lack of police protection is a risk faced by the population of South Africa generally and is therefore taken to not be a real risk of significant harm.

REVIEW APPLICATION

The first applicant applied to the Tribunal for review of the delegate’s decision on 10 October 2019. The first applicant provided a copy of the delegate’s decision record and a copy of the notification of the refusal to the Tribunal. The first applicant was represented in respect of the review application by their registered migration agent, Gerrit Jansen Van Rensburg, of Soft Landing Migrations.
The review application was constituted to a Senior Member of the Tribunal in August 2022 who heard the matter in October 2022. The applicants attended that hearing and gave evidence. The Tribunal also took evidence from their son. The applicants’ representative did not attend the hearing, but it was indicated that availability would be by telephone if necessary.

Reconstitution

At midnight on 31 January 2024, the Senior Member who was conducting the oral hearing ceased being a member of the Tribunal. The review application was constituted to me on 5 February 2024.
The oral hearing in this matter was held more than 16 months ago. That a decision was not made earlier is highly regrettable. I apologise to the applicants for what I regard as an unacceptable delay in the determination of this application.
I have read the transcript and listened to the audio recording of the hearing held on 7 October 2022. I have also listened to the interview with the Department.

Necessity for further hearing

Where a Member who constitutes the Tribunal for a particular review stops being a Member after there has been an oral hearing and the Tribunal is reconstituted by another Member to finish the review, the second Member is not generally required to invite the applicants to appear and give evidence and present arguments in accordance with s 425 of the Act.[3] However, the Tribunal always retains a discretion to invite the applicants to a further hearing in these circumstances.
[3] Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; 113 FCR 541 (Black CJ, Hill and Weinberg JJ) (‘Liu’); AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131; 244 FCR 328 (McKerracher, Griffiths and Perry JJ).
After advising the applicants of the reconstitution of the Tribunal, the Tribunal sought submissions about whether a further hearing was required in the circumstances.
Following that invitation, the applicants’ representative lodged 2 documents with the Tribunal, one comprising a medical record for the first applicant and the second being a page with links to 2 videos. No submissions were made about a further hearing.
The resolution of this review application does not turn on the credibility of the applicants or the other evidence given by their son. I do not consider that I needed to ‘see’[4] the witnesses give evidence in order to determine the review application.
[4] State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588 at 617 (Kirby P).
Rather, the resolution of this matter largely turns on the consideration of country information in relation to, again in broad terms, issues of crime and racial tension in South Africa. This has been comprehensively addressed in material provided to the Tribunal by the applicants. Moreover, based on my review of the transcript and hearing recording, the matters which might have been regarded as dispositive by the Senior Member, and which I also regard as dispositive, were raised with the applicants at the hearing so that they could address them.
I recognise that inviting the applicants to a further hearing would not result in any undue delay in the determination of the review application. However, in weighing that against all of the other factors I have referred to, I have determined to exercise my discretion against inviting the applicants to a further hearing.

RELEVANT LAW

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 extract of key provisions of the Act is set out in the attachment to this decision.
An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they are a person in respect of whom Australia has protection obligations either:
(a)under the ‘refugee’ criterion in s 36(2)(a);
(b)on other ‘complementary protection’ grounds; or
(c)because they are 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.[5]
[5] Migration Act 1958 (Cth), s 5H(1)(a).
A person has a well-founded fear of persecution if:[6]
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);
(b)on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
[6] Migration Act 1958 (Cth), s 5J(1).
A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[7]
[7] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[8] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[9] Further, the persecution must involve serious harm to the person[10] and systematic and discriminatory conduct.[11]
[8]     Namely, race, religion, nationality, membership of a particular social group or political opinion.
[9]     Migration Act 1958 (Cth), s 5J(4)(a).
[10]    Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[11]    Migration Act 1958 (Cth), s 5J(4)(c).
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).[12]
[12] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[13]
[13] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A).[14] A person will suffer significant harm if they will:
(a)be arbitrarily deprived of their life;
(b)have the death penalty carried out on them;
(c)be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
[14] Migration Act 1958 (Cth), s 5(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision. Sections 36(2A)(d) and (e) deal with significant harm comprised of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. In that regard ‘cruel or inhuman treatment or punishment’ means:
(a)an act or omission by which, among other things, ‘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’.
The remaining type of significant harm, ‘degrading treatment or punishment’, means ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[15] These arise where:
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[16] that the applicant 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 applicant personally.
[15] Migration Act 1958 (Cth), s 36(2B).
[16] The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).

The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[17]
[17] BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
Section 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

Mandatory considerations

I must take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.[18]
[18] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

ANALYSIS, FINDINGS AND REASONS

The issue in this application is whether the applicants, or either of them, meet the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act. In determining those issues, the critical question is whether the harm feared by the applicants involves systematic and discriminatory conduct; and is feared for a s 5J(1)(a) reason.
In respect of the complementary protection criterion, the critical question is whether the risk of significant harm is a risk that applies to the population generally such that s 36(2B)(c) applies to provide that there is taken not to be a real risk of significant harm.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[19] The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
[19] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[20] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[21]
[20] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[21] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal first took evidence from the first applicant.[22] The Tribunal commenced by taking evidence about the first applicant’s personal background, including his employment history.[23]
[22] Transcript of Proceedings on 7 October 2022 (‘TS’), p 7.
[23] TS 7.
After the first applicant finished high school, he commenced working for a [Industry 1] company for a period of 6 months.[24] Following this, the first applicant spent 2 years undertaking his compulsory military service, after which he returned to [Industry 1].[25] The first applicant worked in that industry for [number] years between [year] and 2007.[26] The company that he was employed by was ‘run…into the ground’ and the first applicant lost his ‘pension money’.
[24]    TS 15-16.
[25]    TS 15.
[26]    TS 16.
The applicants have 2 children, a son and a daughter. Their son is an Australian citizen, having originally come to Australia on a sponsored work visa.[27] He was almost [age] years old at the time of hearing.
[27] TS 8.
The applicants’ daughter is married and lives in Gauteng, South Africa.[28] She was [age] years old at the time of the hearing[29] and worked for [a company] as a sales representative.[30] She has [number] children with her husband. Her Husband is employed [by] a company located in [Country 1] but that operates in South Africa.[31]
[28]    TS 8.
[29]    TS 8.
[30]    TS 9.
[31]    TS 9.
The applicants have an extensive travel history between Australia and South Africa. As was observed by the delegate in their decision:
the applicant has travelled to [Country 2] in 1998, [Country 3] in 2002, [Country 4] in 2004 and [Country 5] in 2008. He travelled to [Country 2], [Country 4] and [Country 5] with his wife for holidays and work, and [Country 3] himself for work. The applicant did not seek protection in any of those countries. Additionally, the applicant travelled to Australia in 2015, 2016 and 2017 for periods of approximately one month, while his wife (Applicant 2) travelled to Australia on seven occasions between 2015 and 2018. Neither applicant sought protection on any of these occasions.
The applicants’ travel history was discussed during the Tribunal hearing. The travel to Australia was paid for by the applicants’ son.[32] The second applicant travelled more frequently because she would assist with the care of her grandchildren[33] and was not working.[34]
[32]    TS 18.
[33]    TS 18.
[34]    TS 18.
The first applicant gave evidence that before they travelled to Australia in November 2018, he spoke to a migration agent who explained that he could apply for a protection visa which ‘will result in permanent residency for us’.[35]
[35] TS 18.
After giving that evidence, the first applicant was asked why he decided to leave South Africa and seek protection.[36] The first applicant responded:[37]
First of all, the living condition in South Africa is not - it’s not very safe - put it that way - for - I don’t want to say racist or whatever - for white - for white people it’s not very safe there anymore. And because of all the - the three times that I’ve been here and I see what Australia’s got, how safe it is, first-world country. How awesome it is to be here, and then go back and - yes. Feel - basically live in fear. If you go out at night you do that very, very carefully. Rather do not go out and - that was the main reason, the safety factor. And also - and for the last while we still lived there, the last five years my wife couldn’t get work. She couldn’t get any employment. And I know - I was fortunate I had employment, and when I left it, I know, should anything happen when I go back, I will never get employment again because of my age and my skin colour, because they - unfortunately, they’ve got a system now, BEE, black employment equity, so white people don’t really - if you’ve got a job now as a white person, as a - you need to keep job, because if you leave it you’re not going to get anything else. But yes, so that’s the main reason is the safety factor. And I’ve seen what first-world country looks like and should - should be like, if everything works here and it’s - in South Africa, public transport. Trains. You don’t get on trains anymore. There is basically no more buses, so yes. If you put all that together, that’s the main reason what - I will say what I - like, we decide to come to Australia.
[36] TS 19.
[37] TS 19-20.
The first applicant added that his daughter had been ‘hijacked’ and expressed a hope that his daughter, her husband and children would eventually be able to come to Australia in the future.[38] The first applicant was asked about the claims made in his protection application about the legislation in South Africa and about a document which was submitted with the protection application entitled ‘The Four Pillars of South African White Protection Claim’ (‘Four Pillars document’).
[38] TS 20.
In relation to the Four Pillars document, the first applicant responded that: ‘[w]ell, just for starters, that document there. The agent must have [sent][39] it on our behalf. I can’t remember that’.
[39] I note that the transcript reads ‘settled’, but having listened to the audio recording, the first applicant said ‘sent’.
The Senior Member suggested to the first applicant that there were ‘2 principal themes’[40] of ‘racism against white people…having an impact on [their] economic position’ and ‘the safety risk from crime in South Africa’. The first applicant appeared to agree with that summary.
[40] TS 21.
The first applicant referred to Julius Malema having rallies sing ‘Kill the Boer. Kill the farmer’ which the first applicant claimed meant killing white people. He claimed that a white group in South Africa tried to stop them singing that song, but the song was legalised. The first applicant claimed that the second applicant’s sister’s husband’s uncle was killed on his farm. He claimed that 4 black people had broken in and demanded that he open the safe later killing him.
The first applicant said that ‘they’ll say it is opportunistic’ but that he disagreed. He considered that it was cruel and was targeted against white people. The Senior Member put to the first applicant that it may have been a random act of violence by criminals. The first applicant disagreed suggesting that because 4 farmers were murdered in the same week, then it wasn’t random.
The Senior Member put to the first applicant that country information available to her[41] suggested that in 2018 and 2019, ‘farm killings’ represented only 0.2% of killings in the country at that time. The first applicant’s response to that was to say:
No, no, no. I can’t - I can’t say, no, it’s definitely - it’s for this reason or that reason. No, it’s just - it’s - it makes you scared, and … No. I can’t pinpoint and say, ‘Okay, this is the reason or that’s the reason’, unfortunately. No.
[41] TS 22.
The first applicant discussed having experienced 2 break-ins at his home and an occasion where a person tried to snatch the second applicant’s jewellery from her neck.[42] The first applicant also gave evidence about an unsuccessful attempt by 6 or 7 people to ‘apprehend’ the applicants. The first applicant also referred to one of his nephews having been shot and killed 15 or 16 years before the hearing.[43] The first applicant explained that when he was stopped on a street, someone on the street shot him at point blank range. The first applicant was not aware of any reason for the shooting.[44]
[42]    TS 23.
[43]    TS 25.
[44]    TS 26.
The first applicant gave evidence about his daughter being hijacked. He claimed that 2 or 3 men stole her car and handbag at gunpoint. The first applicant claimed that they fired 4 or 5 shots at his daughter but unfortunately missed. The first applicant claimed that this occurred in 2004 or 2005.
The Senior Member put to the first applicant that the harm which he had claimed to have experienced, or that his family had experienced, was not set out in his protection visa application or his statement dated August 2019. The Senior Member noted that the claimed harm was ‘direct threats to livelihood due to legislation’.[45] The Senior Member put to the first applicant that the information which was included in their protection visa application was ‘general’ and not specific to the applicants.[46] The first applicant responded by accepting that they "could have" provided information that was more specific to them, but accepting that they had not.[47]
[45]    TS 20.
[46]    TS 27.
[47]    TS 27.
The Senior Member raised with the first applicant whether the crime that he had referred to amounted to systematic and discriminatory conduct.[48] The Senior Member explained that to be discriminatory, the conduct had to be motivated by one of the reasons in s 5J(1)(a) of the Act. The first applicant did appear to claim that it was because of race, but then appeared to accept that it was random and not systematic.[49]
[48] TS 27-28.
[49] TS 28.
The Senior Member raised with the first applicant his claims to be unable to obtain employment because of his race and, in particular, the effect of the ‘black economic empowerment’ legislation. The first applicant claimed that labour brokers refuse people employment for being ‘the wrong race’ or being too old.
The Senior Member put[50] to the first applicant a report from the Immigration and Refugee Board of Canada which indicated that:
Sources indicate that white South Africans do not face any specific challenges or threats in society in terms of access to employment, education, in health or housing.
[50] TS 29.
The first applicant indicated that he did not agree with that statement. The Senior Member observed that it related to a period where he claimed that the second applicant was experiencing discrimination.[51]
[51] TS 29-30.
The Senior Member also put to the first applicant country information[52] about, inter alia, poverty levels being highest amongst black people and other information about affirmative action legislation benefiting previously disadvantaged racial groups. The first applicant’s response to this information was to claim that there were more black wealthy people but that now the wealth is fairly equal between blacks and whites.[53]
[52] The Guardian, Justice Malala, ‘Why South African cities still so segregated gated 25 years after apartheid’? 21 October 2019.
[53] TS 30.
The Senior Member also put to the first applicant country information about South Africa discrimination laws, including the 'Equity Act'. The first applicant responded to note that the information was from 2021 and he had been out of South Africa for 3 years. He reiterated that ‘in [his] opinion, preference was still given to non-white people for employment’. The first applicant conceded, however, that things might have changed since he had left.[54]
[54] TS 31.
The first applicant claimed that if he was returned to South Africa, he would live in Gauteng. The first applicant’s evidence was that a pension was available to them in South Africa once they were over 60 years old.[55]
[55] TS 33.
The first applicant claimed that if he returned to South Africa he would attempt to seek employment or perhaps start a business.
The Senior Member put to the first applicant whether the risk of harm that he would experience would be different to the population more generally.[56] The first applicant appeared to agree that ‘his case was no different' to ‘everybody else’.[57]
[56] TS 33-34.
[57] TS 33.
When asked about why the first applicant did not claim protection earlier, he claimed that they were not aware that it was a possibility. That is why they had not claimed protection on any of their earlier trips. Neither applicant pointed to a particular event that motivated them to apply for protection on their most recent travel to Australia.
Following the hearing, information was provided to the Tribunal which contended that the first applicant has [three medical conditions].

Second applicant

The second applicant also gave evidence in support of the application. After dealing with aspects of the second applicant’s personal background,[58] the second applicant gave evidence about her work history. The second applicant worked between 2009 and 2014 as an independent consultant. She also worked in sales for a short time in 2014.
[58] TS 37-41.
The second applicant claimed that she had applied for between 3 and 5 jobs a week from newspapers. She claimed that she found that her age was a significant barrier to employment.
The second applicant claimed to have been unaware of her ability to apply for protection.
The second applicant gave evidence about having her jewellery snatched from her, however, could not recall when that occurred.[59] She otherwise gave evidence which was broadly consistent with that given by the first applicant in relation to other harm experienced by their family in South Africa.
[59] TS 43-44.
The second applicant gave evidence about the murder of her brother-in-law’s uncle. She claimed that it occurred the week before the hearing and that he was attacked at home and murdered with a [tool]. When asked if she knew why he was attacked, she said:
He lived alone. He was one of the - one of our famous [Occupation 1] that we had when we lived in [Town 1]. He was the guy, was the [Occupation 1] there. And he had just a farm outside of [Town 1]. And he lived alone on his farm. So he wasn’t a farmer as such. He had just a sort of a plot, a nice big plot area, with a little pond and a house and things like that. So it was basically his residence.
The second applicant’s evidence was that the police had indicated that the motive for the death was likely theft.[60]
[60] TS 46.
It was suggested to the second applicant that the physical harm that she had described were random isolated instances of criminal activity. The second applicant said that she did not ‘think’ that crimes are random against white people. The second applicant was firm that she considered she would be targeted because she was a white person.
When asked how her fear was different to everybody else in South Africa, the second applicant responded that ‘I think it’s not different. I think everybody does fear that in South Africa. I don’t think I’m any different’. When asked again about why her fear involved systematic and discriminatory conduct, the second applicant claimed that it would be because of her race or maybe because she was an Afrikaans person in South Africa. She then claimed that she would be exposed to that harm as a white South African because it was a political issue.
The second applicant also claimed that white South Africans might not experience more crime, but that the crime they did experience was more brutal.
Country information was discussed with the second applicant.[61] The second applicant submitted that the reports are designed to present South Africa in a good or positive light. The submissions made by the applicants’ representative were also discussed with the second applicant.[62] It was observed that various claims with suggestions that references or other material was available to support that material but it had not been provided.
[61] TS 48-50.
[62] TS 50-51.
The second applicant claimed that when you are over 60 in South Africa, you cannot work. She claimed that the chances of getting a job are ‘probably zero’. She claimed it was a ‘compulsory requirement’ to retire at 60.
The applicants’ son gave evidence. He gave evidence about the harm experienced by himself and his parents in South Africa which was broadly consistent with the evidence given by his parents. He asserted that they will not be able to obtain employment.
At the conclusion of the hearing, the first applicant indicated that he did not see any reason why his representative should be called.[63]
[63] TS 58.

Country information and submissions from the applicants

Together with their protection visa application, the applicants provided:
(a)a written submission dated 29 August 2019 (‘2019 Submission’); and
(b)a letter addressed to ‘the Case Officer’, dated 10 September 2019, on letterhead which refers to the Springbok Relief Charity and signed by ‘The Team at Springbok Relief’ together with 3 annexures (‘Springbok Information’);

2019 Submission

The 2019 Submission begins by referring to the first applicant’s interview which was held on 26 August 2019. That submission refers to the transition of South Africa from apartheid towards democracy. It claims that over the last ‘5 to 8 years’, South Africa had experienced ‘gross labour unfairness, crime and racial problems against the white people of South Africa’. It claimed that the first applicant was targeted because of his skin colour.

The 2019 Submission also submits that:
(a)the first applicant had been living ‘hand to mouth’ and that his wife was refused employment because of the colour of her skin. It refers to the applicants being reduced to having only one car;
(b)it was too dangerous for the second applicant to walk in the streets. It claimed that ‘the towns’ have all ‘been taken over by the black people and gangs and drug lords’. Police have lost control and now turn a blind eye to crime;
(c)‘load shedding’, a practice whereby power is turned off from time to time, occurs because of the financial position of the supplier, Eskom;
(d)driving is dangerous and there is a ‘50% chance’ of hijacking by assailants armed with military rifles who are not afraid to shoot and that the need for workshops on protection from crime should not be the norm in any country. The first applicant also submits that he would not be permitted to own a weapon by the government;
(e)the first applicant is a ‘soft target’ because of his age, as are women;
(f)that the applicants live in fear in South Africa because of the crime that they have experienced, which also affects their sleep;
(g)South African laws are to benefit black people and exclude minorities, including ‘white people’ who are a minority, based upon their race and ethnicity;
(h)‘white people’ are the subject of racism when it comes to crime, jobs and owning property or having a business. ‘White people’ are in extreme danger, the government is corrupt and do nothing about ‘crime against the whites, no jobs for whites’. That government continues to demand ‘everything be taken from the White people’ who are suffering from poverty; and
(i)in Australia, the applicants are safe.

The Springbok Information

The Springbok Information is voluminous, comprising 26 pages of mostly text which I have read. It is addressed to the "Case Officer" and is dated 10 September 2019. It appears to refer to a ‘family’, (other than the applicants) who were applying for an Onshore Humanitarian Visa and makes submissions about why that visa should be granted and why the Team at Springbok Relief should be permitted to provide "expert evidence at the interview / Hearing". The interview that the first applicant participated in with the Department had already taken place on 26 August 2019.
I infer that the redaction on the document is to redact the name of the family, the subject of the submissions. Notwithstanding this, I have approached the Springbok Information as being a submission in respect of country information.
The Springbok Information is described as a paper ‘outlining the challenges, uncomfortable truths and nuances of the persecution of South African minorities in our old homeland’ and is noted to have been provided to the then Immigration Minister in July 2019.
The author of the paper is expressed to be ‘The Team at Springbok Relief’. The Team at Springbok Relief is described in the Springbok Information as a:
Not for Profit, charity organisation whose mission is to provide charitable support and services to persecuted minority South Africans who have been seriously discriminated against by providing them sanctuary; free of escalating racial hate, harassment and fear of attacks, protected from cruel and barbaric deeds, safe from sexual violence and rape, and relief from prejudice, intimidation or degrading treatment. (footnotes omitted)
The Springbok Information challenges the proposition that the violence against South African minorities is actuated by the ‘random choice or personal whim’ of criminals and instead suggests that their, albeit self-described, ‘meticulous independent research’ suggest that the crime has a significant racial and ethnic undercurrent.
The Springbok Information advances an argument that there has been a long-term strategic approach to both political and racial policies designed to marginalise and discriminate against ‘white people’. It refers to the South African government approach to restricting the ability of white farmers and settlers from owning firearms or claiming that self-defence is a valid reason to own a firearm.
The Springbok Information suggests that ‘white-on-black’ racism is more likely to be reported whereas ‘black-on-white’ racism is likely to be ignored. It suggests racial ‘propaganda’ is widespread and, at times, weaponised for political gain. It refers to comments of other organisations suggesting that ‘black’ South Africans are more violent towards ‘white’ South Africans rather than the reverse.
I have a number of concerns about the reliability of the Springbok Information. It does not read to me to represent a balanced assessment of the issues that it purports to address. Rather, it appears that it has been written with a particular agenda.
The Team at Springbok Relief is described as having a mission of providing charitable support and services, including advocating on behalf of minority South African Asylum Seekers, to ‘persecuted minority South Africans’ by which the paper suggests means, or substantially includes, ‘white South Africans’.
I have concerns about whether it truly presents a well-researched ‘independent’ or balanced view of the situation in South Africa, as it appears to suggest, or whether it is really a piece of ‘advocacy’ directed towards achieving particular outcomes or advancing a particular narrative which suits the persons whom it supports.
The Springbok Information contends that:
The escalating violence against SA minorities; that is both savagely cruel and inhuman, may appear to be the by-product of criminals ‘random choice or personal whim’ however, the alarming levels of degrading treatment, brutal torture, rape, attack and murders have a significant racial and ethnic undercurrent and Springbok Relief has spent the past 2 years undertaking meticulous independent research to understand the true, status quo.
What the information does not do is describe, in any way, what the ‘meticulous’ research undertaken over 2 years actually involved. Various individuals are quoted, without any source being provided for those quotes. The paper does not consider, let alone analyse, any competing hypothesis for crime.
The Springbok Information cites a former Judge of the Supreme Court of South Africa as having said:
Almost entirely ignored by the selective moralists are all the innumerable examples of black racialism, with whites as the targets. There has also been a selective process of law-enforcement by the various law-enforcement agencies ...
Whilst not specifically cited in the Springbok Information, that quote appears to have been taken from a news article dated 22 January 2017 authored by him.[64] The rest of that article is, however, ignored by the Springbok Information. When regard is had to the entirety of that article, however, Judge van Schalkwyk is commenting that racism is not the significant issue that it is often made out to be. That issues of unemployment, crime and housing are greater concerns. Indeed, it suggests that most black South Africans believe race relations have improved.
[64]    News24, ‘Rex van Schalkwyk: Anti-white racism – why does it go unpunished in SA’? 22 January 2017, [>
Another example is the citation of the F.W de Klerk Foundation’s comment that ‘black South Africans are far more violent and racist towards their white compatriots than vice versa’. No reference is provided, but the information available suggests that the comments were made in the context of 45 social media posts.[65] It does not indicate any analysis about actual crime statistics. Moreover, the namesake of the foundation was the leader of an ‘all-white’ National Party who in 2020 attempted to claim that apartheid was not a crime against humanity, before walking back from those comments.[66]
[65]    IOL, ‘Blacks more racist than whites’, 16 January 2016 [    See Eureka Street, ‘Outgrowing Apartheid’, 23 November 2021, [>
The Springbok Information relies on material authored by James Myburgh (Myburgh) to suggest that white South Africans are disproportionately affected by crime perpetrated by black South Africans. That proposition was explored in an article dated March 2016, which examined Statistics South Africa (Stats SA) mortality data. The authors of that report candidly noted that their data was incomplete and their research involved some inconclusive evidence. However, it nevertheless reasoned that the burden of serious crime is ‘disproportionately absorbed by black and poor South Africans’.[67] That article also discusses the flaws in the reliance on victimisation surveys by Myburgh to support his reasoning.
[67]    Geffen, N & Silber, G, ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’’, Institute for Security Studies, SA Crime Quarterly [>
I am not satisfied that I can place significant, if any, weight on the country information contained in the Springbok Information. I consider that 'the Team' at Springbok Relief are not balanced and independent. Rather, it has its own interest in advocating on behalf of white South Africans who claim to fear persecution. Indeed, the common identification between The Team at Springbok Relief and white South Africans claiming persecution is demonstrated on page 6 of the document:
At Springbok Relief, we believe three such non-derogable rights of our minority are being violated, namely… (emphasis added)
I also observe that the Springbok Information, despite including material critical of positive discrimination laws, does not refer to, or engage with, the country information to which I refer below about the disproportionate rates of poverty and unemployment amongst black South Africans as opposed to white South Africans. In conducting that criticism, Springbok Information suggests that white South Africans are precluded from ‘92.2% of the available jobs’. That assertion, again unsupported by any reference, is simply inconsistent and implausible in context of the country information about unemployment rates as discussed below.
A further claim, again in the context of employment, was to claim that (among other claims):
By 2014, black South Africans held 84% of top management posts. They also constituted 78% of senior management, 82% of at middle management, and 90% of skilled personnel.
That information is directly inconsistent with the information from Statistics SA as discussed below.
The Springbok Information also claims a murder rate suggesting that white South Africans are murdered at almost double the rate of black South Africans per 100,000 of the population. No references or sources are cited for that conclusion either.
Overall, I am not prepared to place significant weight on the Springbok Information and prefer the country information that I have referred to below.

OTHER COUNTRY INFORMATION

There is no DFAT Country Report in relation to South Africa.
The Immigration and Refugee Board of Canada (IRBC) has compiled a report dated September 2018 on country conditions in South Africa for white South Africans.[68] That report concluded that ‘white South Africans do not face any specific challenges or threats in society’. It observed that there were black empowerment programs which it likened to the affirmative action programs in the United States of America.[69] It noted a significant difference in the unemployment rate for white South Africans as opposed to black South Africans.[70]
[68]    ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/o’, Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333.
[69]    ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/o’, Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333, p 3.
[70]    ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/o’, Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333, p 3.
It notes that views expressed by parties such as the Economic Freedom Fighters (EFF) will openly express rhetoric in racial terms, giving the example of references to ‘the capitalized economy’ being referred to ‘as a white monopoly economy’ by the EFF.[71] The report indicates that:
By no means is it a majority held rhetoric. There is no indication or evidence that there is violence that has resulted on the basis of this rhetoric.
[71] ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/o’, Canadian IRB: Immigration and Refugee Board of Canada, 21 September 2018, OG690C1A333, p 4.
The same report discusses farm attacks and killings. It observes that:
According to the Guardian, "[t]here is fierce debate over the reason for the increase in attacks on farms in recent years. Some suggest it is in line with a general increase in violent crime. Others say it is a consequence of growing tensions between communities". (The Guardian 26 June 2018)
…
a CBS reporter is cited as stating that there has been a well funded campaign by white rightwing South Africans to promote the idea that white farmers are being deliberately killed at higher rates than people of other skin colors, and that this constitutes a 'white genocide.' There is no such thing in South Africa.
It also observes that a lack of current data on the number of overall farmers in South Africa and what proportion are white, makes it ‘impossible to say whether white farmers are more at risk than black farmers or more at risk than the population at large’.
Country information indicates that there is no evidence to support the notion that white farmers were targeted more than anyone else in the country.[72]

Crime

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

Crime is a serious problem in South Africa. It has been a serious problem in South Africa for some time.[73] During the third-quarter of 2023, South Africa’s per capita murder rate was the highest that it had been in 20 years at 45 per 100,000 people.[74] That represented a 50% increase as compared to the 2012/13 period.[75] The country experiences around 68 murders per day.[76]
[73]    See, for example, ‘South Africa debates crime rates’, British Broadcasting Corporation (BBC), 05 February 2007, CX173531; ‘South Africa faces crime challenge’, British Broadcasting Corporation (BBC), 09 February 2007, CX252162.
[74]    The Conversation, ‘South Africa’s Police are losing the war on crime’, 18 November 2023, [ 218048#:~:text=South%20Africa%27s%20crime%20statistics%20for,compared%20to%202012%2F13)].
[75]    The Conversation, ‘South Africa’s Police are losing the war on crime’, 18 November 2023, [    ‘7 burned to death in South Africa township ‘mob’ attack: police’, ZimLive, 05 December 2023, 20231206152052
Police Minister Bheki Cele in 2018 described the statistics as being close to those found in a war zone, while criminologists agree that, while poor areas are particularly affected, violent crime is pervasive in South Africa and affects every sector of society.
The Overseas Security Advisory Council, in their December 2022 report, made the following observations:[77]
Violent crime remains an ever-present threat in South Africa and impacts people where they live, work, shop, and while in-transit. While crime decreased during 2020 and 2021 due to strict coronavirus-related lockdowns and curfews, the first half of 2022 showed a marked increase, particularly in violent crime. Criminals do not necessarily single out U.S. citizens for criminal activity because they are Americans, but rather for their perceived relative wealth as most crimes are opportunistic in nature. Common crimes include murder, rape, armed robbery, carjacking, home invasion, property theft, smash and grab, and ATM robbery. Armed robbery is the most prevalent major crime in South Africa, most often involving organized gangs armed with handguns and/or knives.
Home invasion, robbery, and carjacking are prevalent throughout South Africa. These crimes are often violent and can occur at any time of day. In many cases, criminals prefer to attack when the occupants are home or arriving/leaving the premises. While major hotels and resorts mitigate violent crime through access restrictions and security guards, other temporary lodging like bed and breakfasts, short-term rentals, apartment buildings, and stand-alone residences may not. Layered physical security including gates, hardened doors, window grilles, electric fences, and alarms are truly necessary in many of the large cities to mitigate against violent armed residential crime. Due to load shedding (blackouts), backup power is also necessary to maintain alarms, security lighting, and electric fence capabilities.
Smash and grabs, as well as carjackings occur primarily at on-ramps/off-ramps and stoplights. Do not leave valuables on a visible and unoccupied seat in the car or cell phones on a docking station visible from the outside of the vehicle. Drivers must maintain heightened vigilance and keep a distance from other vehicles to allow for an escape route when stopping their vehicle at traffic lights or ramps. Many carjackings occur when the victim arrives at home and pulls into the driveway or entrance gate; the carjackers pull up behind the victim to block an escape path. Carjackers may kill or seriously injure victims who resist or fail to comply with demands. In many scenarios, robbers force the victim into the house, rob them of their valuables, and take the vehicle. Driving at night increases chances for carjacking with the practice of gangs laying tire spikes on the road or dropping items from overpasses to force damaged vehicles to pull over. Avoid proximity to cash-in-transit vehicles, which are frequent targets of armed criminal gangs both while parked and while driving, including on the highway.
According to the South African Police Service’s (SAPS) latest crime statistics, almost 6000 vehicle hi jackings were reported between April and June, approximately one vehicle stolen every 22 minutes. Private security companies have reported the most commonly stolen vehicles in 2022 are: Toyota Hilux, Volkswagen Polo, Toyota Quantum, and Nissan NP200. Four-wheel drive vehicles continue to remain in high demand on the illicit market. According to SAPS, Gauteng Province is the hijacking hot spot, with over 3000 thefts or hijackings between April and June.
[77] ‘South Africa Country Security Report’, Overseas Security Advisory Council (OSAC), 12 December 2022, 20230223145519.

That information is consistent with the current United Kingdom travel advice which notes that:[78]
There is a high crime rate, including carjacking, ‘smash and grab’ attacks on vehicles house robbery, rape, sexual assault and murder. Violent crime can take place anywhere, including in tourist destinations and transport hubs. Most violent crimes occur in townships on the outskirts of major cities or in isolated areas. The threat is higher in central business districts of major cities and increases after dark.
[78]

Race

South Africa undoubtedly has a racist past.[79] The economic prosperity of whites in South Africa is, or at least was, based on the racist exploitation and impoverishment of blacks.[80] Even now, it has been reported that lifetime earnings from work for whites are, on average, 4 times higher than for Africans.[81]
[79]    See Frederick A Johnstone, White Prosperity and White Supremacy in South Africa Today, African Affairs, Volume 69, Issue 275, April 1970, pp 124–140.
[80]    See Frederick A Johnstone, White Prosperity and White Supremacy in South Africa Today, African Affairs, Volume 69, Issue 275, April 1970, pp 124–140.
[81]    Jacob R Boersema, Can We Unlearn Racism? What South Africa Teaches Us About Whiteness, University Press, 2022.
The economic prosperity of whites in South Africa is based on the racist exploitation and impoverishment of blacks that occurred during apartheid.[82] I note that, according to Statistics SA:[83]
the labour market experiences of different population groups in South Africa continue to diverge substantially, and still reflect the strongly persistent legacies of apartheid policies. For example, black Africans have the highest unemployment rates, in excess of 30,0% in 2016 and 2017, while for whites the unemployment rate peaks in 2014 at 7,4%. Thus, black African unemployment rates are between four and five times as high as they are amongst whites.
Indians/Asians and coloureds have labour market experiences in-between the white and black African groups, with Indians/Asians bearing more similarity to whites, while the trends for coloureds indicates a greater similarity with black Africans. Note that the differences in unemployment rates are in fact muted somewhat due to the lower rates of [labour force participation] amongst black Africans relative to whites.
[82]    See Frederick A Johnstone, White Prosperity and White Supremacy in South Africa Today, African Affairs, Volume 69, Issue 275, April 1970, pp 124–140,
[83]    Statistics South Africa, ‘Inequality Trends in South Africa, a multidimensional diagnostic of inequality’, p 59 (accessible: >
Statistics SA posed, and answered, the question – ‘what determines who gets a job and what wages they receive’? The answer given by that organisation is:
Population group matters a lot, with black Africans being the most disadvantaged in finding employment, and earning substantially less when they are employed, relative to their white counterparts. Sex matters too, with women being less likely to have a job and earning on average substantially less than men, conditional on being employed. Finally, geography plays a big role too, whereby those living in rural areas are less likely to have formal sector employment and are more likely to earn lower wages when they do find employment.[84]
[84]    Statistics South Africa, ‘Inequality Trends in South Africa, a multidimensional diagnostic of inequality’, p 6 (accessible: >
More recent unemployment data suggests that unemployment for black South Africans is around 40% as compared to 7.5% in relation to white South Africans.[85] That same article also demonstrates a level continuing inequality, notwithstanding the legislation that the applicants suggest is persecutory of them:
[b]lack people who make up 80 percent of the employable population account for 16.9 percent of top management jobs, while white people who comprise about 8 percent of the employable population hold 62.9 percent of top management jobs
[85]    Al Jazeera, ‘South Africa’s controversial ‘race quota’ law stirs debate’, [>
The applicants refer to ‘Kill the Boer’, a song often sung by EFF leader, Julius Malema. There is fierce debate[86] about whether the song is intended to incite violence or whether it is not intended to be taken literally. It is argued that the song is about standing against discrimination and apartheid as opposed to inciting violence. Even Julius Malema himself has claimed that it is a ‘struggle song’ that is not meant to be taken literally.[87]

Refugee Assessment

[86] Forbes, ‘What to know about South Africa’s Kill the Boer chant as Elon Musk sounds alarm’, [ See Times of Israel, ‘After Musk prods ADl, says kill the boer song can be seen as a call for violence’, [ of nationality

The applicants claim to be nationals of South Africa. They travelled to Australia on passports which appear to have been regularly issued by that country. I am satisfied that South Africa is the applicants’ country of nationality and the receiving country.

Do the applicants have a subjective fear of persecution?

The criterion in s 5J(1)(a) requires an applicant to hold, as a matter of fact, a subjective fear of being persecuted. Further, s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.

I am satisfied that the applicants have a subjective fear of persecution.

Do the applicants face a real chance of serious harm?

What is serious harm is to be determined by reference to the examples of serious harm contained in s 5J(5) of the Act. Those examples include:
(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; and
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The applicants’ claim to the Tribunal involved 2 aspects that might qualify as serious harm, each of which might be said to arise for different reasons. On one hand, the applicants claimed to fear serious harm, even death, as a result of the high levels of crime and violence that are prevalent in South Africa. On the other hand, the applicants claim to fear harm, from an economic perspective, by reason of their inability to obtain employment for various reasons.

Serious harm resulting from crime and violence

I am satisfied that if the applicants were to return to South Africa now, or in the reasonably foreseeable future, that they would face a real chance of serious harm as a result of the high levels of crime and violence in South Africa.
The country information to which I have referred above suggests that crime and violence is endemic in South Africa. There is a very real chance that persons in South Africa would experience that crime. The chance of that crime involving significant violence, is very real. I have no hesitation in finding that the there is a real chance that when becoming a victim of crime that the it would involve serious harm having regard to the examples set out in the Act.

Serious harm arising from inability to obtain employment

The applicants have claimed that they will be denied employment in South Africa and will struggle to support themselves. They claim that denial will arise from one or more reasons, being their age, sex (in the case of the second applicant) and race.
It cannot be denied that the South African government has enacted laws in relation to what is sometimes referred to as ‘positive discrimination’ or affirmative action. In Gunaseelan[88] Justice French (as his Honour then was) observed how the Tribunal should determine whether positive discrimination constituted persecution:
In my opinion the establishment of a State policy of positive discrimination in favour of a particular ethnic group will not necessarily amount to persecution of other groups not the beneficiaries of that policy. The resolution of that question may depend, in each case, upon the nature and extent of the adverse or detrimental impact of the policy upon the non-advantaged groups.
…
Even if positive discrimination is not able to be brought within the benevolent ambit of affirmative action, it does not follow that its negative impacts on groups or individuals within groups will constitute persecution for the purposes of the Convention. Whether it does or does not in a particular case will depend upon an evaluation of its nature and operation, its impacts on the applicant who applies for refugee status and, as an element of the consideration of the existence of a well founded fear, its impact upon the group, if there be a group, adversely affected by the policy.
[88] Gunaseelan v Minister for Immigration & Multicultural Affairs [1997] FCA 434 (French J).
I am satisfied that affirmative action and laws such as the Black Economic Empower policy and the 'Equity Act' are laws which involve ‘positive discrimination’. They are not intended to persecute white South Africans, but rather to attempt to ‘rehabilitate’ or achieve a measure of reconciliation against the effects of the rampant discrimination that occurred during apartheid. I do not consider that the race-related-rhetoric of some politicians or political parties, including the ‘Kill the Boer’ chants or songs, suggest that those laws are designed to persecute white South Africans. I am not satisfied that the impact of any ‘positive discrimination’ in South Africa has risen to the level of persecution of white people in South Africa.
Indeed, country information readily satisfies me that white people can and still do obtain employment notwithstanding positive discrimination policies and laws. The country information is clear that white South Africans have a significantly lower level of unemployment as compared to black South Africans.
Both applicants are returning to South Africa with additional employment history and skills that they did not previously have. Those additional skills would, in my view, assist the applicants in locating employment – if they choose to do so. Based on the evidence before me, I am not satisfied that the second applicant has been refused work for the essential and significant reason of either her race or her sex. I do not accept her evidence in this regard. Even if I did, I would not have considered the refusal of some employment opportunities on account of the second applicant's race or sex to have risen to amount to serious harm in the circumstances.
In the circumstances, I am not satisfied that they will be unable to obtain employment because of either one or more reasons, being their sex, age or race. I am not satisfied and do not accept that persons are unable to be, or incapable of being, employed after reaching 60 years of age. Contrary to the evidence given by the second applicant, country information suggests that there is no mandatory retirement age in South Africa.[89] The availability of pensions would also provide a safety net against the applicants facing a real chance of serious harm based on the economic and employment circumstances on return to South Africa. Their daughter still lives in South Africa and they spent almost their entire lives in South Africa. I am satisfied that they will be able to reintegrate into life in South Africa.
[89] See ‘South Africa: Working Beyond Retirement Age – The LAC Confirms the Legal position’ [ Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103; (2022) 43 ILJ 2326 (LAC) (27 September 2022) [>
I am not, in all the circumstances, satisfied that the applicants would face serious harm having regard to the examples given in s 5J(5) of the Act. I am not satisfied that the applicants would be denied access to basic services or be unable to support themselves at a basic level of subsistence. I am not satisfied that any inability to access employment would involve an arbitrary deprivation of their lives.
I have also considered whether the risk of, or experiences of crime, would impact those findings. I am not satisfied that the risk of crime which would apply to the applicants when considered together with the risk of unemployment, or underemployment, would mean that the economic harm they fear amounts to a real risk of serious harm. I am not so satisfied. I have no doubt that it would be unwelcome and would, in general, make life more difficult for them but I am not satisfied that it would be so frequent, particularly having regard to the rough cadence of their past experiences of harm, that it would rise to the level of serious harm.

Serious harm arising from lack of medical treatment

Information provided to the Tribunal in February 2024 indicates that the first applicant has [three medical conditions]. That information was provided without any particular submissions as to whether it amounts to a separate claim to protection, increased the chance of harm in respect of their other claims or for another reason.
No evidence was provided which indicates that there are any particular adverse day-to-day effects on the first applicant as a result of his diagnosis. The [diagnosis of one condition] appears to have been from July 2020, before the hearing took place.
The use to which this evidence can be put is limited because the fact of a diagnosis says nothing about the impact, if any, it may have on a person’s day to day life. Moreover, I note that the applicants, who were represented, did not seek an opportunity to have a further hearing to present additional evidence. In those circumstances, I infer that beyond the information that was provided the applicants did not seek to provide any further evidence about this issue.
I am not satisfied, based on the limited evidence before the Tribunal, that the medical conditions experienced by the first applicant are such that they would result in either of the applicants facing a real chance of serious harm in South Africa. I am also not satisfied, again based on the limited evidence before the Tribunal, that the first applicant’s medical [conditions would have an appreciable impact on my assessment of whether the applicants would face a real chance of serious harm or any other aspect of my reasoning set out herein. Specifically, and to avoid doubt, I am not satisfied on the evidence before me that the first applicant's medical conditions would have any appreciable effect on either his ability to find, engage in and continue in employment, if he chooses to do so. No such link has been established on the evidence.

Series harm arising from racial tension

The document, 'the Four Pillars of South Africa White Protection Claim', identifies 4 matters which are said to eleven Australia's protection obligations. They are "blatant discrimination against white minorities", "dehumanisation by the Media and government and fellow citizens", "public threats to be killed" and "crime wave against white people".
I have largely dealt with each of those matters above, albeit at a greater level of generality. Some of the claims in that document are entirely unsupported by evidence. For example, it is claimed that "[b]lack children gets [sic] chosen for sport teams not because they practised hard, but because they are black (even if they are the children of wealthy parents." No credible evidence establishing that proposition as a matter of fact was provided, nor was it articulated why that amounts to serious harm either generally, or more specifically, to the applicants.
Another example is where it was contended that:
"[a] white person is not allowed to speak up against any injustice done to him/her by a black person, then he is a racists [sic: racist] and is threatened to be sentenced to 3 years prison. (a real case) while a black student can write in an exam paper "one bullet one settler" and is praised for his patriotism (also a real case)."
No further information about these "real case[s]" was provided. I have not located any credible country information which supports the contention that white persons in South Africa cannot speak up against any injustice done to them by a black person.
I am not satisfied that there is a crime wave against white people. Indeed, the country information supports a conclusion that the risk of crime to white people is disproportionately lower than the risk of crime for black South Africans. I am also not satisfied that Jacob Zuma is calling for the murder of white people or that there is a real chance that the applicants, or either of them, will be killed as a result of that rhetoric.
I am not satisfied that 'dehumanisation' by the Media, government and fellow citizens amounts to serious harm. Rather, I am satisfied that it is all part of the racial rhetoric that pervades South African politics. However, that rhetoric does not occur unchallenged. As demonstrated by the speech submitted by the applicants, the leader of opposition is actively challenging that rhetoric (see below at [165]) and instead laying the blame for South Africa's problems at the feet of the ANC.
I have considered all the matters raised in the 'four pillars' document. I am not satisfied that they individually or cumulatively involve a real chance of serious harm to the applicants.

Is the harm feared for the essential and significant reason of one or more of the reasons in s 5J(1)(a)?

The applicants identify as white, or white South Africans, and I accept that they would be recognised as being ‘white’ throughout South Africa. Although not farmers, I would also accept that the applicants would be considered ‘white boers’ in the context in which that term is used in South Africa according to the country information.
I accept that the applicants are white South Africans, white Afrikaners and Boers. I accept that those are races for the purpose of the Act. The applicants are not, nor do they claim to be, white farmers. I do not accept that they are white farmers or that they would be imputed as such.
I have had regard to the extensive country information, including the Springbok Information, which I have referred to above. I have also had regard to the 2 videos sent by the applicants’ representative in February 2024.
One of the videos provided is from John Steenhuisen MP, a South African politician and leader of the opposition. It was posted on his X (formerly Twitter) page on 13 February 2024. The text accompanying the post was:
The people of South Africa understand that, in 2024, the single greatest threat to our democracy, to our freedom, and to the South African dream, is the African National Congress. In this election, if you want to rescue our South African dream, vote for the DA.
The video is of a speech, or perhaps part of a speech because the video is only 140 seconds long, delivered to a large room of people. During the speech, Mr Steenhuisen rallies against the ANC, which he describes as the single biggest threat to the African people. Mr Steenhuisen then rallies against things including ‘a Labour market where 7 out of 10 young people cannot find work’, ‘load shedding’, ‘water shedding’, ‘rampant crime’, and ‘childhood malnutrition’ describing all of them as an ‘existential threat to our freedom’. The video concludes with a call to the ‘people of South Africa’ to ‘rescue the South African dream’ using their vote.

The other video is a video from ‘TikTok’ published by Colonel Chris Wyatt entitled ‘Colonel Chris Wyatt: White Farmer survives brutal shooting & robbery’. He comments about lawlessness in South Africa. He suggests that claims by the ANC that crime is being dealt with is ‘nonsense’ and calls for the reinstitution of a ‘commando’ system. That system enabled local militias to respond to crime locally which was dismantled by the ANC as being part of the apartheid. At the conclusion of the video he talks about ‘white genocide’, seemingly dismissing that it is ‘white genocide’ but asserted that the chasing of people off the farms is political and that criminal syndicates have much to gain.
The animosity towards white farmers by black South Africans is longstanding. It has a significant and complex history. Black South Africans were systematically and often violently dispossessed of land during the apartheid era. I note that information is available which suggests that around the time that the applicants left South Africa, although black South Africans account for more than 80% of the population, they own about 13.5% of arable land. In contrast, white South Africans own about 73% of farmland.
However, it is not necessary to examine, in any detail, that history other than to observe that level of risk to white farmers, as a group, is somewhat different to that of white residents of urban areas, like the applicants in this application. The applicants are not white farmers. It is not clear why so much of the material relied on by the applicants relates to white farmers. Whilst I do not ignore it, it is material to which I attach only slight weight.
I am not satisfied that the previous harm experienced by the applicants was motivated by any reasons relating to their race, religion, nationality, membership of a particular social group or political opinion. In relation to their prior experience of harm, there is no evidence that the applicants were personally targeted.
Rather, it appears that on each occasion it was a case of them being in the wrong place, at the wrong time. The crimes appear opportunistic, particularly having regard to the high prevailing level of crime in South Africa. Nothing in the evidence of the applicants satisfied me that their race, or membership of any particular group, was the reason for that harm.
Insofar as they speculated that it might have been the reason, I am not satisfied that the mere fact of their race results in or supports a conclusion that the previous harm they experienced was because of their race. I am not at all satisfied that the applicants were ever targeted because of their race.
I have considered whether, on return to South Africa, the applicants would be persecuted because of their race. I am not satisfied that is the case.
The available country information satisfies me that despite longstanding and ongoing racial tension within South Africa, white South Africans are not directly targeted for harm either by the authorities or members of the public because of their race. Rather, I am satisfied that the country information indicates that the risk of harm is from criminal elements and is high for all citizens in the nation irrespective of race or ethnicity due to the high rates of crime across South Africa.
The country information satisfies me that most crime is opportunistic in nature. That crime is, in turn, driven by poverty and greed. It is, perhaps, understandable why some, or perhaps many, ‘white’ South Africans perceive that they are targeted by ‘black’ South Africans at a higher rate because they are more likely to be 'heard'. Many people in South Africa may genuinely believe that the crime which is occurring is predominantly ‘black’ on ‘white’ and motivated by racism. However, based on my assessment of the country information, that represents a superficial analysis which attempts to mask the underlying reasons for crime.
Rather, the country information satisfies me that what is the motivation for crime is usually self-interest. Often, that self-interest is avoiding poverty. Sometimes, it can be classed as greed. What is clear is that, as a group, ‘black’ South Africans are the most affected by that poverty with ‘white’ South African’s being less affected. Moreover, the country information is also clear that, in general, white South Africans are wealthier than ‘black’ south Africans. It is that greater wealth which, on my assessment, makes white South Africans a more frequent target for crime. What is sought is personal enrichment, not racial revenge. That conclusion is supported by country information which suggests that the vast majority of violence committed by black people in South Africa is against other black people.[90]
[90] See South African Police Service, ‘Annual Crime Statistics, 2022/2023’, [>
For completeness, I have also considered whether as white South Africans at, or nearing, retirement age they would be targeted because of their membership of that particular social group. I am not aware of any credible country information which suggests that elderly white South Africans are targeted for reasons of their membership of that particular social group.

The harm feared does not involve systematic and discriminatory conduct

Section 5J(4)(c) requires that the serious harm faced by the applicants involves systematic and discriminatory conduct. The serious harm which I have found the applicants would be exposed to is systematic, in the sense of deliberate, pre-meditated or intended.
However, the conduct must also be discriminatory. That question looks to the motivation of the putative persecutor. As I have explained above, the motivation for the crime to which the applicants would be exposed to is pecuniary. It is not because of their race, gender or ages. I am not satisfied that the crime from which the applicants face a real chance of serious harm can be described as discriminatory in the relevant sense.
The second applicant’s evidence is instructive:
You live behind closed doors, you live behind burglar bars, you live behind high six foot walls, you live with alarms in your house. You live with a fear of hijacking every time you leave your house. You have electronic gates.[91]
[91] TS 43.
It was not suggested that people live this way in South Africa because they are white. The evidence suggests that white people are more likely to live that way, because they are more likely to be able to afford those protections. However, it is tolerably clear that the reason why people live in that way is because the general prevalence of crime in South Africa is unabated.
For completeness, I am also not satisfied that the applicants would be denied state protection for any s 5J(1)(a) reason. Rather, the country information indicates that any gap or shortfall in protection would be caused by the lack of resourcing[92] not because of the applicants’ race.
[92] ‘South Africa 2020 OSAC Crime & Safety Report’, US Department of State, 03 March 2020, 20200319123816; see also ‘South Africa elections: Are crime rates rising’? BBC News, 5 May 2019, 20190627165436; ‘Old solutions won’t fix South Africa’s deteriorating police service’, Institute for Security Studies, 25 February 2020.

DO THE APPLICANTS MEET THE REFUGEE CRITERION?

For the above reasons, I am not satisfied that the first applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, it is not necessary for me to determine whether s 5J(2) or (3) apply to the first applicant.[93]
[93] ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J)
In summary, I find that:
(a)there is a real chance of serious harm to the applicants from the high levels of crime prevailing in South Africa;
(b)the economic harm feared by the applicants does not amount to serious harm either in isolation or when considered together with the high levels of crime;
(c)the real chance of serious harm that the applicants would be exposed to, would not be for the essential and significant reason of a ground specified in s 5J(1)(a) of the Act or involve systematic and discriminatory conduct as required by s 5J(4)(c) of the Act; and
(d)there would not be any withholding of state protection from the applicants for any s 5J(1)(a) reason.
In those circumstances, I find that the applicants do not have a well-founded fear of persecution as defined by the Act.

The applicants do not meet the refugee criterion for protection

For the reasons set out above, I am not satisfied that the first applicant is a refugee within the meaning of s 5H(1) the Act. It follows that the first applicant does not meet the criterion in s 36(2)(a) of the Act.

DO THE APPLICANTS MEET THE COMPLEMENTARY PROTECTION CRITERION?

Having determined that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa).
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk that they will suffer significant harm.[94]
[94] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Putting to one side the serious harm arising from crime in South Africa, I have found that the applicant's do not face a real chance of serious harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[95] When considering the complementary protection criterion under s 36(2)(aa), I refer to and rely on my relevant findings above.[96] In those circumstances, I am not satisfied that the applicant's face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia for any reason other than the endemic crime in South Africa.
[95] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
[96] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.

Crime

Where a real risk of significant harm is a risk faced by the population of a country generally, s 36(2B)(c) of the Act provides that there is taken not to be a real risk of serious harm. The reference to population of the country generally refers to the commonly understood concept of the general population. There is no requirement that the risk is faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[97]
[97] BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; 241 FCR 150 at [32] (Buchanan J).
I have already found that the applicants face a real chance of serious harm in South Africa because of the high levels of crime.
Their claims to be refugees on this account, however, failed because that harm was not directed at them for the essential and significant reason of one, or more, of the reasons set out in s 5J(1)(a).
However, the complementary protection criterion does not require the applicants to demonstrate a nexus between the serious harm and a s 5J(1)(a) reason. Significant harm can enliven Australia's protection obligations regardless of the motivation for the harm.
I have already referred above to the prevalence of crime in South Africa. That crime is, I find, something that affects the general population of South Africa. Statistically, white people in South Africa are affected by a lower crime rate than the general population. If anything, the country information to which I have referred supports a conclusion that the applicants have a lower risk of being exposed to that crime than the general population.
That observation does not, however, change the conclusion that the real risk of significant harm which the applicants would face on return is one that is faced by the population generally living in South Africa today.
In these circumstances, s 36(2B)(c) applies with the result that the applicants are taken not to face a real risk of significant harm.

The applicants do not meet the complementary protection criterion

For the reasons set out above, I am not satisfied that the applicants are owed complementary protection or otherwise satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Protection visas are not available because it would be unfair to return persons to their home country. They are limited to circumstances where applicants engage Australia’s protection obligations. The observations of Allsop CJ and Mortimer J (as her Honour then was) in GLD18 v Minister for Home Affairs are instructive:[98]
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.
[98] GLD18 v Minister for Home Affairs [2020] FCFCA 2 at [50] (Allsop CJ and Mortimer J).

CONCLUSION

The applicants are not persons in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that either applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, other than each other. Accordingly, the applicants do not satisfy the criteria in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.
Fraser Robertson
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

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

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.
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.
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.
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.
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.

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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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

[2024] AATA 3265

5 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction