1928818 (Refugee)

[2023] AATA 4130

1928818 (Refugee) [2023] AATA 4130 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Johanna Jacoba Barnard (MARN: 1277481)

CASE NUMBER:  1928818

COUNTRY OF REFERENCE:                   South Africa

MEMBER:David James

DATE:27 September 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 27 September 2023 at 8:55am

CATCHWORDS
REFUGEE – protection visa – South Africa – ethnicity – White South African – retrenched as employer receiving government incentives to employ more Blacks – abducted, robbed and threatened by corrupt police – country information – corrupt and criminal activities by police – likelihood of encountering or being located anywhere in country – no evidence of being specifically targeted because of ethnicity – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 5L, 36(2)(a), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of South Africa, applied for the visas on 27 August 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

3. The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 11 October 2019. On 24 August 2023 the applicants provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants protection visas having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.

4. The first applicant appeared before the Tribunal on 21 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.

5. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

9. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

12. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

14. The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to South Africa they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Africa, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.

    Documentary evidence before the Tribunal

15. The Tribunal has before it documents submitted by the applicants to the Department and the Tribunal relating to the applicants’ claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:

    ·The applicants’ protection visa application forms, submitted on 27 August 2018 and the annexed identification documents of the applicants;

    ·Applicants’ South African Police Service ‘Clearance Certificates’;

    ·Applicants’ representative’s written submissions to the Department, received 28 August 2018 and the annexed social media reports on violence in South Africa;

    ·First applicant’s personal statement, received by the Department on 28 August 2018;

    ·Applicants’ submission to the Department, titled ‘Our lives are in grave danger’, submitted to the Department on 19 August 2019;

    ·Applicants’ application for review, lodged 11 October 2019;

    ·Department’s decision record of 20 September 2019;

    ·Applicants’ written submissions/outline of claims and statement of events of 17 September 2023 and the annexed social media articles including articles titled ‘kill the Boer’ and articles reporting on South African murders, rapes and police violence and corruption;

    ·Administrative and movement records of the Department relating to the applicants;

    ·Undated letter of support and confirmation of employment under the hand of [Mr A] of [Employer 1], tendered by the first applicant at the Review hearing of 21 September 2023; and

    ·Email of post hearing submissions/documents including South African Police Service Case File number ([City]) [Reference] in relation to the first applicant’s report and statement to police as to his abduction and his robbery and a series of screen shots identifying withdrawals from the applicants bank accounts in accordance with the ATM withdrawals that occurred during the first applicant’s abduction and robbery, provided to the Tribunal by the first applicant on 21 and 25 September 2023.

    Claims for protection

16. The first applicant in his claims for protection outlined his background as having been born in [Town 1] in the Mpumalanga province of South Africa. He stated that he and his wife owned a home in [Town 2], a town 15 kilometres from [City] in the Gauteng province of South Africa where he lived from 2006 until 2017.

17. In the application for the visas the first applicant referred to his personal statement where he provided that his wife left South Africa on a Student visa [in] January 2017 to start her studies in Brisbane. He explained that he initially stayed behind in South Africa to sell their belongings to fund her studies and their accommodation and living expenses in Australia before he followed his wife to Australia [in] April 2017.

18. He further stated in his application that he sought safety in Australia as he had been attacked at gunpoint and that when he reported the attack to police, they had laughed at him and that nothing was done. He stated that he explored living in a different area to be safer but as his identity was known he did not feel safe anywhere in South Africa. He stated that he was convinced that if he returned to South Africa that he will suffer harm and he fears for his life.

19. The first applicant in his personal statement made the following claims for protection, that:

    ·White South Africans are being wiped out systematically. These attacks are planned, funded and executed by the Government and Government affiliates. These attacks are not focussed on Farmers only. The chanting of “kill the Boer, the Farmer” is self-explanatory. Invasions of properties which turns to serious bodily harm, rapes and murders happen everywhere and the motives are to firstly invade, humiliate, degrade, inflict maximum pain and suffering and eventually take as many lives as possible by the most brutal way possible;

    ·He was retrenched in 2016 and his job is now shared by three black workers. He was unsuccessful in 73 job applications in South Africa due to the government’s ‘Black Economic Empowerment’ (BEE) policies. As a white South African he has no chance of finding employment if he was to return to South Africa; and

    ·In March 2017 the applicant tried to sell his car in South Africa on an online platform and disclosed that he was leaving South Africa. While taking a potential purchaser for a test drive he was intercepted, assaulted and robbed by a group of men who took his mobile phone and other property. His phone contained his personal details and that of his wife, together with photos of he and his wife and others. He reported this attack to police, but no action was taken. He was later told by some white police that his attackers were a criminal gang of South African police; and

    ·He fears returning to South Africa as he believes this criminal gang of police are monitoring him and will attack him again if he returns to South Africa.

20. In the second applicant’s application, she states that she feels unsafe because of the attack on her husband, and that if they returned to South Africa, she believes her husband will be attacked and possibly killed.

    Department interview 

21. The applicants were interviewed by the Department on 19 August 2019.

    Delegate’s decision

22. The delegate’s decision of 20 September 2019 to refuse the protection visas was made on the information before the delegate. The delegate accepted that the first applicant held fears of generalised crime in South Africa and that he was intimidated by race based political rhetoric and that these fears became apparent to the applicant when he came to Australia in 2018. However, the delegate did not accept that those who are white are being targeted due to their ethnicity, but as white South Africans earn significantly more income on average than their indigenous counterparts, they may be at a greater risk of financially motivated crime than the general population. Therefore, the delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and therefore they were not refugees. The delegate for the same reasons and that as the real risk of significant harm was not faced by the applicants personally but rather faced by the population at large of the country, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, that there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.

    Invitation to attend hearing

23. On 9 August 2023 the Tribunal wrote to the applicants’ representative requesting they submit a pre-hearing information form which in part queried the availability of the applicants and their representative to attend a review hearing in the next three-month period. In their reply to the Tribunal on 15 August 2023 the applicants and their representative indicated that they did not have any availability issues in that period.

24. On 31 August 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 21 September 2023 at 9:30 am. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.

25. On Monday 4 September 2023 the Tribunal received an email from the applicants’ representative in which she stated:

    I am offshore from [date] September to [date] September.

    Can you please postpone to early October.

    (Happy to provide international flight evidence)

26. The Tribunal on 4 September 2023 refused the request of the applicants’ representative to postpone the hearing noting that in the hearing availability form submitted by the applicants and their representative on 15 August 2023 there had been no issues raised with their availability for a hearing in the August, September and October period of 2023. Additionally, the Tribunal also requested information as to the timing of the representatives’ travel bookings.

27. On 8 September the Tribunal received a further email from the applicants’ representative in which she stated that:

    Hallo AAT

    October is fine for all to attend.

28. On 14 September 2023 the Tribunal sent a SMS reminder to the applicants’ recorded mobile number stating that:

    Reminder – Your AAT hearing is on 21/09/23. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

29. Later, on 14 September 2023, at 2.00 pm, the applicant’s representative telephoned the Tribunal indicating that she was overseas in South Africa and would be flying to Botswana for a safari in the delta swamp area during the scheduled hearing and as such would not be able to attend the hearing. The presiding Senior Member’s Associate then contacted the applicants’ representative by telephone at 2.44 pm that day. The applicants’ representative told the Senior Member’s Associate, a Tribunal Officer, that she felt that the Tribunal’s refusal to grant the postponement application was harsh because she was overseas and that she could not send emails due to load shedding in Africa. She further that she would have her partner send her travel details to the Tribunal.

30. In a further phone call to the representative by the presiding Senior Member’s Associate at 3.20 pm on the same day, the applicants’ representative told the Tribunal she was in the process of sending screen shots of her travel arrangements and she further stated that she was unsure of when she had made her arrangements for her trip to Africa, but that she had been in contact with [deleted] arranging the trip since 22 June 2023. She also requested the Senior Member review her travel information once it was received by the Tribunal.

31. During the evening of 14 September 2023, the Tribunal received a series of emails from the applicants and separately their representative all of which contained the same screen shots from the applicants’ representative, which indicated that travel inquiries and arrangements had been made by the applicants’ representative for her travel to Africa in June and July 2023 without any indication and/or notification having been made to the Tribunal.

32. On 15 September 2023, the Tribunal emailed the applicants’ representative informing her and the applicants that the presiding Senior Member had after revieing the application for postponement and the supporting travel documents had decided not to reverse his earlier decision to not grant the application for postponement. The Tribunal followed up this email with a telephone call to the applicants’ representative in which the decision of the presiding Senior Member was confirmed.

33. On 17 September 2023 the Tribunal received an email that attached the applicants’ pre-hearing written submissions (apparently prepared by the applicants) and in the covering email the applicants’ representative’s mobile phone number was provided for her telephone link into the hearing on 21 September 2023. Additionally, a further application for postponement was made relying on the earlier reasons that the applicants’ representative’s assigned agent was overseas and may not be contactable by telephone at the hearing. It was also submitted that the applicants’ representative, Ms Johanna Jacoba Barnard of Call Australia Migration P/L ‘wants to voice her objection to the refusal to postpone’ and that ‘The Botswana internet issue was not known upfront otherwise she would have been available as always in spite of travels’.

1. The Tribunal notes that the issues of the internet reliability in Botswana was only raised in this correspondence and her earlier telephone call to the Tribunal on 14 September 2023 and not in the earlier formal postponement requests as outlined above.

2. On 18 September 2023 the Tribunal again in correspondence to the applicants’ representative refused the application for the ongoing postponement request relying upon its earlier reasons as outlined in its correspondence of 4 September 2023 as described above. This correspondence in part provided that:

   However, it can be gleaned from the material that has been provided that your Representative was involved in correspondence in relation to her travel arrangements as early as June / July 2023.

   Given your Representative’s failure to inform the Tribunal in a timely fashion of these travel commitments and the reply to the pre-hearing form on 15 August 2023, indicating that all parties were available until mid-November 2023, the Tribunal, given its workload and its obligations to provide timely reviews and decisions, is unable to grant this postponement request.

   The presiding Senior member also notes that your representative’s availability issues are of her own making and could have been avoided had the Tribunal been given sufficient notice and time to reschedule other hearings, which would have allowed this matter to be considered for a postponement of the hearing date.

   Review hearing – 21 September 2023

3. The first applicant informed the Tribunal at the commencement of the hearing that the second applicant would not appearing at the hearing to give oral evidence as the applicants’ representative had told the applicants that she should not appear and give oral evidence at the hearing. The Tribunal queried the first applicant as to whether he and the second applicant wanted the second applicant to appear and give oral evidence at the hearing, and if so, the Tribunal would either make arrangements for the second applicant to appear by telephone and/or by video link or adjourn the hearing to allow her to appear and give oral evidence. The second applicant in reply said that as their claims were about what had happened to him in South Africa, she probably did not have anything further to add.

4. The Tribunal then told the first applicant that they would revisit the second applicant’s absence from the hearing at the conclusion of his evidence when the first applicant could make an application for an adjournment if he then thought the second applicant should appear and give oral evidence.

5. The Tribunal then told the first applicant that it would consider the applicants’ application for the protection visas afresh. The first applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that he did not really understand the criteria as he and the second applicant had received very little detail and/or an explanation from their representative.

6. Given the first applicant’s response as to his understanding of the criteria and as he was appearing before the Tribunal without his representative being present by telephone as arranged (notwithstanding the multiple attempts of the Tribunal to contact the representative via the contact mobile telephone number that had been provided to the Tribunal), the Tribunal proceeded to provide an outline of the refugee and complementary protection criteria to the first applicant. The first applicant then acknowledged that he then had an understanding of the criteria.

7. The first applicant told the Tribunal that his wife had left South Africa for Australia [in] January 2017 on a student visa to pursue a change of career in [Subject 1]. It was her intention to obtain her English Level 4 and then specialist [Subject 1] qualifications in Australia.

8. He explained that prior to leaving South Africa his wife had owned and operated a [business] in [Town 3] which was about 70 km away from their home in [Town 2], South Africa. Before that he said she had been the manager of [a] section at a large [workplace 1]. He further explained that he had been [a] Manager with [Employer 2] where he had worked for 5 ½ years prior to being retrenched in March 2016 because the company was receiving government incentives to employ more black employees.

9. He told the Tribunal that he and his wife had decided to focus their attention on his wife’s education and career aspirations in [Subject 1] and so she had come to Australia to pursue her career aspirations and training. He explained that his wife had completed her English course in 2018 but had been unable to secure a training placement in [Subject 1] but had since obtained a [Subject 2]’s apprenticeship which she was presently completing at a [workplace] in [Suburb] at Brisbane. He explained that since following his wife to Australia he had obtained employment at [Employer 1] at [Work facility] where he led a small team of specialist [employees] and also performed [Specified duties]. The first applicant during this evidence tendered a letter of support confirming his employment at [Work facility].

10. The first applicant explained to the Tribunal that prior to leaving South Africa it had been his and his wife’s intentions that they would return to South Africa and start up a [Subject 1] business at his wife’s mother’s hometown of [Town 4] once his wife had completed her planned studies and training. However, after he had been abducted and robbed by corrupt criminal South African police officers, they had formed the view that it was unsafe, firstly for him, to have remained in South Africa, and secondly, for him to in the future return to South Africa where he could be identified and located by these corrupt criminal police. He explained that they feared that these corrupt criminal police would likely kill him so as to protect themselves from being identified as being the robbers who had attacked him and likely other victims in South Africa.

11. The first applicant then told the Tribunal about his abduction. His evidence in this regard, was consistent with his earlier written statements and his interview with the Department. His evidence in summary was that prior to leaving South Africa to join his wife in Australia he went about selling their belongings to obtain funds to pay for his wife’s studies and to support themselves in Australia. He explained that they had sold their house for 97,000 rand but that those proceeds were taken by their bank to payout their loan. He also sold [a specialised vehicle] and three cars together with some furniture and his personal gun (pistol) for various amounts. However he explained, that given the exchange rate and their expenses they had very little (money) left after paying for travel, accommodation and the quarantine costs for their pets to enter Australia.

12. As to his abduction he told the Tribunal that [Day 1] March 2017, he had received a phone call from a prospective buyer of one of his cars. He made arrangements to meet this buyer at a filling station in a nearby township on [Day 2] March 2017. He went to this meeting without his firearm which he usually carried with him, but as he had sold it the day earlier, he attended the meeting unarmed. He met this prospective buyer at 10.30 am, who identified himself as ‘[Mr A]’. He then agreed to take ‘[Mr A]’ for a test driver in his vehicle with ‘[Mr A]’ in the passenger seat while he drove the vehicle. Shortly after leaving the filling station a white car cut in front of his vehicle cutting them off. Three men got out of the white car brandishing pistols and identifying themselves as members of the police narcotics unit. While two of these police searched him and questioned him about drugs the third took his passenger, ‘[Mr A]’ away. He observed that one of the officers who was questioning him took a phone call and appear to receive instructions from other unknown persons. He was told that ‘[Mr A]’ had diamonds on his person and that he (the first applicant) was suspected of being involved in smuggling and was then arrested by these police. He was placed back into his car in the passenger seat with one of the officers in the driver’s seat and the second officer got into the back seat of his car. He did not see what had happened to ‘[Mr A]’ who had been taken away by the third officer. He was told by the two officers in his car that he was going to be locked up in a Soweto jail and likely be gang raped by other inmates. Following a range of racist remarks and threats of harm the police pulled into another filling station in the outskirts of Johannesburg.

13. He was then told at gunpoint to give his ATM card and PIN to one of the officers. He became very concerned then, as he realised he was being robbed by police officers and feared for his life. After the officer who had taken his ATM card could not get any money from the ATM he returned to the car where the other officer pistol whipped him (the first applicant) in the ribs. He provided the PIN again, this time the correct number was entered by one of the police and they took the maximum amount of cash that was able to be withdrawn from his account from the ATM. After a series of phone calls to one of the officers in which the officer in the back seat of the car referred to the person on the phone as Lieutenant, he saw that a police ute was driving behind them and that the police officer in the rear of his car was in contact with other police in this Police marked [ute].

14. He was then taken to [a] Bank in either Soweto or Sebokeng and instructed to enter the bank and change his daily limit for ATM withdrawals. He then entered the bank with one of the police officers who discreetly held a pistol against him. After making the necessary changes to his account’s ATM withdrawal limit and transferring other funds into the ATM account he was made to withdraw the balance of his funds and give them to these police.

15. He was then forced back into his car and driven to a remote location. At this time, it was late afternoon, and the sun was going down. He noticed that the police ute was still following them and that one of the police in his car was still speaking to other police in the police ute. After the last of these calls the two police in his car, threw his wallet, phone and car keys into the nearby bushland, and left him in his car. They left the area with the other police who had been following his car in the police ute as he believed they had been interrupted or disturbed because they all left in a bit of panic and rushed away.

16. Throughout this ordeal with the police, he had been threatened by the police that if he made any complaint that he would be located and killed as they had his details from his phone and wallet.

17. He told the tribunal that he suspected that he had been targeted by these corrupt criminal police because he had used a social media platform to advertise the sale of his car and that he had also explained that he was selling the car because he was leaving South Africa.

18. The following day, [Day 3] March 2017 he was afraid and in pain from his rib injuries arising from being pistol whipped in the ribs. He explained he was too scared to report his abduction and the theft of their money to police as he did not know who to trust. He discussed what happened to him with his wife as she had received a series of text updates on her phone in Australia as to the withdrawals from their bank accounts and the transfers from their accounts the day before (copies of which were provided to the Tribunal post hearing).

19. The first applicant told the Tribunal that later that day he had attended the dealership where he had originally purchased his car, in an attempt to sell his car to the dealer. During discussions about the sale of his car he told the dealer what had happened to him, and the dealer contacted two white South African Motor Bike police who attended the dealership and spoke to the first applicant. He said that these police made arrangements for him to attend a police station and speak with their Colonel the following Monday. He further said that these police expressed concern for his welfare and gave him their personal mobile numbers in case he needed any further assistance over the weekend.

20. He told the Tribunal that on the following Monday he attended the Police station as arranged and was met by the two Moto Bike police who escorted him into the police station and to their Colonel. He was then questioned about his abduction and why he had not earlier made a compliant about these corrupt criminal police. He was also told that there had been similar reports made about supposed police abducting other persons and taking their money via their ATM cards. He explained that while he was with the Colonel a call came in about the abduction of another older man in similar circumstances and the Colonel and some other police then left. After the Colonel left, he was taken downstairs at the police station where another officer took a statement from him as to his abduction and the robbery by these corrupt criminal police.

21. In response to questioning from the Tribunal the first applicant told the Tribunal that he had copies of the text messages confirming the transfer of funds and the withdrawals from his bank account at the ATM’s as he had described. He also told the Tribunal that he had provided this information to their representative together with the details of his complaint to the police about his abduction and the Police reference number which he could forward to the Tribunal after the hearing. (This information was later received by the Tribunal).

22. Under questioning the first applicant explained that if he returned to South Africa, he feared a chance meeting either through some official interaction with police in South Africa or otherwise where one of these corrupt criminal police would recognise him. He explained that these police had thought he was leaving South Africa and that he believed that the only reason he was jot killed during the robbery was that they (the police) had been interrupted in some manner and then had left him. He stated, while become clearly emotional and upset, that otherwise, he believed they would have killed him after they had taken all his money through the ATM withdrawals.

23. He further explained that notwithstanding he had made a complaint to police and that the police had his current contact details these corrupt criminal police had not yet been identified and arrested. He told the Tribunal that if he was to return to South Africa and notwithstanding the passage of time, he was still at risk of being killed by these corrupt criminal police as he could identify them and give evidence against them in relation to his complaint and other similar complaints that he had been told of by other police. He said that he did not know where these officers were now, and so he could not ensure he would not come into contact with them as police are routinely transferred around the country within the South African Police Service (SAPS).

24. Under further questioning the first applicant agreed it was unlikely that these corrupt criminal police were monitoring returning South Africans to see if he returned to South Africa. However, he again told the Tribunal that his fears were that he could simply come into contact with one or all of these officers in South Africa. He further explained that it would be in their (the police) interests to silence him and ensure that he did not identify them as criminals. As such he explained he could not relocate within South Africa to avoid this risk as he did not know where these officers are, and he could not rely on the South African Police Service to protect him as they have not yet identified who these officers are, arrested them, and called upon him to give evidence as a witness against them.

25. In conclusion the first applicant told the Tribunal that even if these officers were identified and arrested, he was not confident that the police could protect him as they themselves have private security companies protecting their police stations. He told the Tribunal that if they cannot protect themselves how could they protect him. He further explained that it was not the general violence and crime in South Africa that he feared but rather these specific police who had targeted him through the sale of his car on a social media platform where he had indicated he was leaving South Africa. He explained that if they found him, met him by chance and/or intercepted him through their duties, which could easily happen in South Africa, they would have to protect themselves and kill him.

26. In reply to the Tribunal querying the first applicant as to whether he wanted the second applicant to be contacted so as she might give oral evidence, he indicated that as their claims all related to his abduction and the robbery of their money by these corrupt criminal police his wife could not offer any further evidence but for the documents, he would forward to the Tribunal showing the notifications of the ATM withdrawals. He told the Tribunal he was satisfied that the Tribunal had heard all that it needed to hear in relation to their matter.

    FINDINGS AND REASONS

    Country of reference

27. According to the protection visa applications, the applicants claim to be citizens of South Africa. The applicants provided copies of their South African Passports to the Department. Based on this material the Tribunal finds that the applicants are who they say they are, and nationals of South Africa. South Africa is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

    Analysis

28. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of protection visas.

29. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

30. The Tribunal further notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]

    [1] Section 5AAA of the Act.

    [2] Ibid (with effect from 14 April 2015).

    [3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

31. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out.  A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

32. The Tribunal also notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [4] Fox v Percy (2003) 214 CLR 118

    [5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

1. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.

   [6] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

   [8] UNHCR, re-issued February 2019 at [203]–[204].

2. The Tribunal found that the first applicant was a reliable and consistent witness whose evidence was detailed and consistent with his earlier statements and interview with the Department and was corroborated by the documentary evidence which has been tendered to the Tribunal.

   Membership of a particular social group (PSG) being ‘a victim of South African Police Service (SAPS) corrupt criminal conduct’

3. The applicants claim that after the first applicant was retrenched the second applicant came to Australia to study and the first applicant remained in South Africa to sell their property so as they could afford the second applicant’s tuition costs and their accommodation and living expenses while they stayed in Australia. They claim that the first applicant was abducted and robbed by criminals who they believe were corrupt criminal police who targeted him when he advertised the sale of a car on a social media platform where he disclosed that he was leaving South Africa.  

4. Given the detailed description of his five-hour abduction and the robbery of the applicants’ bank accounts, the Tribunal having had the benefit of observing the first applicant give his oral evidence and noting that he often became distressed, and, having reviewed the corroborative documents; the Tribunal is satisfied that the first applicant was the victim of an abduction and robbery as claimed by either corrupt criminal police or criminals purporting to be police.

5. However, noting the description of the police ute, that throughout the robbery regularly appeared to follow and support the criminals who abducted and robbed the first applicant, and that the white police officers that the applicant later spoke to, who had firstly expressed concern for the first applicant’s safety after the robbery, and, secondly had spoken of their knowledge and/or suspicions as to the criminal activities of suspected corrupt criminal police to the first applicant. Together with the first applicant having been taken to meet with their police Colonel who apparently accepted his complaint as reliable and serious and had to leave this meeting to attend to a similar complaint but still had a complaint and statement taken from the first applicant. The Tribunal is satisfied that the South African Police Service officers that the first applicant spoke to about his abduction and robbery did take seriously the likelihood and/or possibility that these criminals were police officers.

6. Given the high levels of corruption in the SAPS as reported in the 2017 Bribery survey[9] and the United States Department of State’s 2018 South Africa Human Rights report which provided that the SAPS remained understaffed, ill-equipped, poorly trained and that corruption remains a problem within the service[10]; together with the Institute of Security Studies 2019 report of SAPS anti-corruption investigations[11] which identified successful prosecutions of SAPS officers for corruption, it is accepted that corrupt and criminal activities have and are being committed by members of the SAPS.

   [9] ‘South African Citizens Bribery Survey 2017’ the Ethics Institute, 2017, p 2.

   [10] ‘Country Reports on Human Rights Practices for 2018 – South Africa’, US Department of State, 13 March 2019, p6.

   [11] ‘Time to boost the Hawks anti-corruption capacity’, Institute for Security Studies, 21 August 2019

7. Therefore, the Tribunal accepts as most likely that the first applicant was a victim of the corrupt criminal actions of some members of the SAPS who abducted and robbed him as he has claimed.

8. The Tribunal having considered the provisions of s 5L of the Act, which provides that a person is to be treated a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. And that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society; finds that the applicant is a member of a PSG being ‘a victim of SAPS corrupt criminal conduct’

9. Therefore, the Tribunal is satisfied on the evidence before it that the applicants’ fears that the first applicant if in the reasonably foreseeable future was to return to South Africa, could meet and/or be located and/or be confronted by the corrupt criminal SAPS members who abducted and robbed him is not a remote possibility but a possible likelihood. Given these officers have not yet been identified, arrested and/or prosecuted by the South African authorities and given their positions of authority the first applicant cannot rely upon the South African authorities who have not yet been able to identify these officers to be able to protect him. Additionally, given the SAPS is a national force and these officers could be stationed anywhere within South Africa the first applicant would not be able to relocate within South Africa so as to avoid this risk of harm.

10. As such the Tribunal finds that the first applicant does face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to South Africa on account of his membership of the PSG of being ‘a victim of SAPS corrupt criminal conduct’.

11. The applicants’ fears in this regard as to the first applicant’s membership of the PSG of being ‘a victim of SAPS corrupt criminal conduct’ is well-founded.

    Race

12. The first applicant claims that he was and would be persecuted because of his race if he was to return to South Africa. He relies upon his retrenchment and the employment and work relations policies of the South African government and claims that he would be unable to obtain employment if he was to return to South Africa. He also claims that white South Africans are being systematically targeted for violence especially farmers.

13. The Tribunal firstly notes that the applicants have not claimed to be white farmers, nor did they claim to have been former farmers or having had any connection to farming in South Africa. However, Harpers’ Magazine in the article ‘The Myth of White Genocide’ reported that the murders of white farmers which were often senselessly violent did at times contain a racial motivation.[12] However, it noted that there were almost 20,000 people murdered in South Africa in 2018, but that the majority of those killed were black and that there were only 62 farm murders. The article also reported the South African opposition, the Economic Freedom Fighters (EFF) led by Julius Malema had called for the widespread land redistribution of white owned lands by the government and often promoted the words ‘Kill the Boer’. However, the article notes that; ‘according to the country’s largest agricultural associations, murders of farmers are at a twenty-year low. And not all of the victims are even white.’[13]

    [12] The Myth of White Genocide, by James Pogue (harpers.org) – ibid

As to employment, the Immigration and Refugee Board of Canada in September 2018 reported that when considering the access to employment of white South Africans to black South Africans it was clear that white south Africans are not generally discriminated against when seeking to secure employment. With reference to reports from John Campbell a Senior Fellow for Africa policy studies at the Council on Foreign Relations the report identifies that the unemployment rate for white South Africans is lower than that of black South Africans.[14]

[14] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South Africans victims of violence, information on the white South African community and political and/or rights groups’, Immigration and Refugee Board of Canada, 21 September 2018

Therefore given the relevant available country information as outlined above, together with the applicants past work history, and that there was no evidence placed before the Tribunal of the applicants having been previously specifically targeted for violence because of their race (white South Africans); the Tribunal is not satisfied that the applicants face a real chance of persecution involving serious harm if they in the reasonably foreseeable future returned to South Africa on account of their race and their ability to obtain employment.

The applicants’ fears in this regard are not well-founded. 

Refugee criterion

The Tribunal, having considered all of the applicants’ claims both individually and cumulatively, does accept that the first applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of being a member of the PSG of ‘a victim of SAPS corrupt criminal conduct’ in all areas of his receiving country, South Africa: s 5J(1)(c). The Tribunal also finds on the evidence before it that the first applicant in this regard cannot rely upon the South African authorities to provide protection to him and as such there are not effective protection measures available to the first applicant from the South African authorities: s 5J(2).

Therefore, the Tribunal finds that the applicants’ fears of persecution arising from the first applicant’s membership of the PSG of being ‘a victim of SAPS corrupt criminal conduct’ are well-founded as required by s 5J of the Act, and therefore, the first applicant is a refugee within the definition of s 5H of the Act.

Having found that the first applicant is a refugee the Tribunal has also considered whether the applicants have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicants do not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.

For the reasons given above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Additionally, as the second applicant is the first applicant’s wife, the Tribunal is satisfied that the second applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Complementary protection

Having concluded that the first applicant does meet the refugee criterion in s 36(2)(a) of the Act, and that the second applicant satisfies s 36 (2)(b)(i) of the Act on the basis of membership of the same family unit as the first applicant, the Tribunal has not considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

DECISION

The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

David James
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…