1931399 (Refugee)

[2023] AATA 4318

1931399 (Refugee) [2023] AATA 4318 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ettienne de Villiers Hugo

CASE NUMBER:  1931399

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Wendy Banfield

DATE:18 September 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 September 2023 at 4:33pm

CATCHWORDS
REFUGEE – protection visa – South Africa – race – white Afrikaans Boer – particular social group – older unmarried women – difficulty finding employment – victim of physical and sexual assault – prevalence of crime – Broad-based Black Economic Empowerment (BBBEE) affirmative action policies – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of South Africa applied for the visa on 22 July 2016. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 29 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and [Ms B], the daughters of [the applicant].

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

   Refugee criteria

5. 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.

6. 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.

7. 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).

8. 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.

   Complementary protection criteria

9. 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.

   Mandatory considerations

10. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Applicant’s identity and country of reference

11. [The applicant] stated in her application for a protection visa that she was born on [date] in South Africa. She provided a copy of her South African passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts [the applicant]’s identity.

12. There is no evidence to suggest that [the applicant] has a right to enter and/or reside, whether temporarily or permanently, in any other country.

13. Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that [the applicant] is a citizen of South Africa and as such her protection claim will be assessed against South Africa as the country of reference and 'receiving country' respectively.

    Migration History

    According to the Department’s decision record, [the applicant]’s migration history is as follows:

    ·     Arrived in Australia on a Tourist visa subclass TR-676 – [date] December 2010

    ·     Departed Australia – [date] January 2011

    ·     Multiple business trips to [Country 1] - 2011–2012

    ·     Arrived in Australia on Visitor visa subclass FA-600 – [date] December 2015

    ·     Departed Australia – [date] February 2016

    ·     Arrived in Australia on Visitor visa subclass FA-600 – [date] June 2016

    ·     Application lodged for Protection visa subclass XA-866, associated bridging visa WA-010 granted - 22 July 2016

    Claims for protection

14. [The applicant] submitted her claims for protection when she made an application to the Department on 22 July 2016. Her claims at the time of application were summarised in the Department’s reasons for decision dated 24 October 2019.

    ·     The applicant is a South African citizen who is divorced and has a mother and sister residing in South Africa. She has two daughters in Australia who became Australian citizens in 2013; they arrived in Australia in 2008 with the applicant’s ex-husband.

    ·     The applicant left South Africa in order to escape ‘government-sanctioned torture, persecution, rape and crimes against the white race’. The applicant is fearful of returning to a country controlled by a ‘Black government’ which not only would not protect the applicant but actively encourages the persecution of the ‘White Afrikaans Boer race’.

    ·     The applicant has been assaulted in March 2016 when she was struck in the face while sitting in her car at a set of traffic lights. Black South African police in the vehicle behind her laughed when she called for their assistance. The applicant then went to the nearest police station; after explaining what happened to the sergeant he laughed and said there was nothing they could do and also told the applicant that she deserved ‘what is coming’ to the whites. The applicant was intimidated and humiliated as the only white person in the station.

    ·     There is a ‘deliberate secret race war’ in South Africa which is denied by the government so that they can obtain western funding and aid.

    ·     The applicant is also denied employment due to her ethnicity and cannot relocate within the country. She regularly posts her political opinions on Facebook and fears being detained due to her political expression, in addition to fearing being tortured and being killed due to being white.

    Country information

    There is no DFAT country information report for South Africa as of the date of this decision, and the Tribunal has identified alternative sources of country information produced by governments and non-government organisations.

    Government and Economy

15. According to the South African Government official website, South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the Constitution as distinctive, interdependent and interrelated.

    Operating at both national and provincial levels are advisory bodies drawn from South Africa’s traditional leaders. It is a stated intention in the Constitution that the country be run on a system of cooperative governance. It states the Government is committed to the building of a free, non-racial, non-sexist, democratic, united, and successful South Africa.[1]

    [1] Republic of South Africa, ‘Structure and functions of the South African Government’, South African Government website, Structure and functions of the South African Government | South African Government ( Africa has the most diversified and industrialized economy in Africa but has suffered several years of low growth attributable to such factors as low prices for commodity exports, weak investor confidence, policy uncertainty, and rigid local labor markets. The impacts of COVID-19 may further contribute to this low growth pattern. Key socioeconomic challenges include high rates of poverty, social inequality, unemployment, and public service access disparities—problems that disproportionately affect blacks. Unequal access to land is a notably sensitive issue. State land redistribution efforts have aimed to ensure greater access to land by blacks and other historically disadvantaged groups, but progress has been slow. Other key challenges include violent crime, periodic anti-immigrant violence, labor unrest, and protests over public service delivery and corruption. The Ramaphosa administration has made economic growth a priority, and is pursuing efforts to reduce unemployment, poverty, and socioeconomic inequality; improve public service delivery; and unite a socioeconomically, geographically, and racially divided society. It also is seeking to attract $100 billion in new investment over five years and has elicited more than $55 billion in pledges to date. The government also is pursuing an ongoing but controversial effort to amend the constitution to permit uncompensated land expropriation.[2]

    [2] South Africa: Current Issues, Economy and US Relations, Congressional Research Service, September 17, 2020.

    Broad-based Black Economic Empowerment (BBBEE)

    The ANC was elected on the promise of redistribution and development, and the state provided social housing, new schools, improved social assistance and better access to services. Economic growth in the early 2000s was roughly 5% annually, but levels of unemployment did not lower sufficiently. The bifurcated nature of the economy results in economic gains accruing primarily to the elite, while the vast majority do not experience substantial improvement. Many features of South Africa’s economy are rooted in its history of racial segregation. Levels of unemployment and poverty remain high primarily because the black majority does not have equal access to the services and resources available to white South Africans. The post-apartheid government has not sufficiently attempted to remedy this disparity and initiatives like Broad-based Black Economic Empowerment (BBBEE), a series of affirmative action policies, have only benefited a small minority of black South Africans. The structure of the economy remains exclusionary, although racial exclusion is being replaced by class-based exclusion.[3]

    South Africa’s constitution is widely regarded as among the most progressive in the world and much of this reverence concerns the constitutional protections of civil and socioeconomic rights. The country has essentially de-racialized much of the apartheid-era legislation and affirmative action policies, such as Broad-Based Black Economic Empowerment (BBBEE), to address the historical imbalances within the economy and society. BBBEE, which also acknowledges gender disparities in employment and seniority, has been an ineffective policy to address the widening class distinctions in society and only a minority of South Africans have benefited. Poor and less educated South Africans, disproportionately black, have not reaped the rewards of BBBEE.[4]

    All South Africans are formally equal under the law and legislated exclusion is outlawed. In practice, many aspects of society and the economy are highly exclusionary due to the historical legacies of apartheid and segregation. Black South Africans, especially women, are vastly under-represented in the economy, despite constituting a majority of the population. Conversely, white South Africans are overrepresented and tend to occupy many of the senior positions, especially in the private sector. Those under the age of 35 also face significant barriers to entering the labour market.[5]

    Access to Employment

    In its 2020-21 annual report, the Commission for Employment Equity cited data on discrimination by ethnicity, gender, age, and disability in all sectors of the economy. The report highlighted the dominance of the White and Indian population groups at Top and Senior Management levels (while remaining under-represented at the Semi-Skilled and Unskilled Occupational Levels) and that this continues to follow the patterns created by apartheid policies. It is also noted that the White and Indian females also continue to dominate the top two tiers of management. Thus, in terms of race and gender intersectionality, African and Coloured females continue to bear the brunt of discrimination.[6] In a 2016 report of the South African Commission Human Rights Commission on their National Hearing on Unfair Discrimination in the Workplace, it noted an analysis of the submissions received together with the complaints statistics of the Commission reflected that black individuals continued to face high levels of harassment, and differential or undignified treatment, both in the workplace and in society in general.[7]

    Women

    In January, the government passed new laws, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, the Domestic Violence Amendment Act, and the Criminal Law (Forensics Procedures) Amendment Act, to strengthen efforts to address the disturbingly high number of gender-based violence cases in the country. Despite these efforts, Police Minister Bheki Cele reported that between April and June, 855 women were killed, and over 11,855 cases of gender-based violence against women were reported, including 9,516 cases of rape.[8]

    The law criminalizes domestic violence and rape of men or women, including spousal rape, but the government did not effectively enforce the law. The minimum sentence for conviction of rape is 10 years’ imprisonment. Under certain circumstances, such as second or third offenses, multiple rapes, gang rapes, or the rape of a minor or a person with disabilities, conviction requires a minimum sentence of life imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence. Perpetrators with previous rape convictions and perpetrators aware of being HIV positive at the time of the rape also face a minimum sentence of life imprisonment, unless substantial and compelling circumstances exist to justify a lesser sentence. In most cases of rape and domestic violence, attackers were acquaintances or family members of the survivor that, together with societal attitudes, contributed to a reluctance to press charges.[9]

    Crime

    Analysis by the Institute for Security Studies, in 2021, noted that crime and violence levels in South Africa are again rising. It noted these increases are probably the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, declining police performance and high levels of police corruption. A main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks. It noted the police’s ability to solve murders has declined by 38% since 2011/12, with the result that in 2019/20, detectives were only able to solve 19 out of every 100 murders. The police’s crime intelligence capability has also declined, decimated by years of factional battles, political interference, corruption and weak police leadership. It stated this means it can probably anticipate ongoing increases in murder and robbery in the short to medium term.[10] It further analysed that the failures of South Africa’s intelligence services and police, and the uninspiring performance of the military, reveal the absence of a coherent approach to national security. It stated that each of these departments is in crisis and those responsible for the judiciary, prisons and border management also face problems. It noted reasons include lack of vision, political interference and state capture, bad management, poor coordination, weak policy and insufficient accountability such as through Parliament. It stated that South African society also faces a rule of law crisis. Citizens do not obey the rules because the governing African National Congress sets a poor example. It stated the country needs a national campaign to rebuild respect for the rule of law. Leaders from across the spectrum need to support this, including from the religious and private sectors. The campaign must be underpinned by a clear demonstration of justice that holds those who instigated and incited the recent violence accountable.[11]

    [3] Bertelsmann Stiftung, BTI 2022 Country Report — South Africa. Gütersloh: Bertelsmann Stiftung, 2022. p.5.

    [4] ibid.p.13.

    [5] ibid.p.26

    [6] '21st Commission for Employment Equity Annual Report 2020-2021', Commission for Employment Equity (South Africa), 5 July 2021,

    [7] ‘Report of the South African Human Rights Commission: National hearing on Unfair Discrimination in the Workplace 8 March 2016; 25 April 2016’, South African Human Rights Commission, (undated)

    [8] Human Rights Watch World Report -South Africa p.539-540.

    [9] US State Department 2021 Country Report on Human Rights Practices, South Africa.

    [10] 'South Africa needs a murder reduction strategy', Institute for Security Studies, 14 June 2021.

    [11] 'South Africa’s security sector is in crisis – reform must start now', Institute for Security Studies, 21 July 2021.

    Racial or Ethnic Violence

16. There were numerous reports of racial discrimination, despite the prohibition under the constitution of unfair discrimination against anyone on one or more grounds, including on the ground of race. The South African Human Rights Commission stated in June that gross inequality was fueling racism and racial polarization. The Department of Human Settlements acknowledged inequality along racial lines had affected and continued to affect the country’s segregated spatial development as well as poor communities’ access to reliable infrastructure. Approximately 300 Equality Courts mandated by the Promotion of Equality and Prevention of Unfair Discrimination Act resolved only 600 matters a year.

1. Some advocacy groups asserted white farmers were racially targeted for burglaries, home invasions, and killings, while many observers attributed the incidents to the country’s high and growing crime rate. According to the Institute for Security Studies, “farm attacks and farm murders have increased in recent years in line with the general upward trend in the country’s serious and violent crimes.”

   Local community or political leaders who sought to gain prominence in their communities allegedly instigated some attacks on African migrants and ethnic minorities (see section 2.f., Abuse of Migrants, Refugees, and Stateless Persons). The government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate. Civil society organizations criticized the government for failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreign nationals, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators.[12]

   Freedom of Expression

   There are minimal reports of constraints on freedom of political expression faced by white South Africans in opposition to the government. The US Department of State’s 2019 Report on Human Rights outlined the constitutional right to freedom of expression present in South Africa (provided by s16 of the SA Constitution). Hate speech is criminalised in South Africa under the Equality Act 2000, or PEPUDA (Promotion of Equality and Prevention of Unfair Discrimination Act), as public advocacy of hate on the basis of race.[13]  A person’s political expression must be able to be construed as a clear intention to incite harm or propagate violence to be considered hate speech.[14]

   [12] US State Department 2021 Country Report on Human Rights Practices, South Africa.

   [13] US department of State’s 2019 South Africa Crime and Safety Report.

   [14] Oxford University Human Rights Hub, Protecting Anti-Apartheid Songs Under the Rubric of Free Speech, 12 January 2023, OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Written submissions

   ·     Prehearing submission dated 22 March 2023.

   ·     Various articles and reports concerning South Africa.

   ·     Information regarding the Broad-Based Black Economic Empowerment Act

   ·     Email inbox screenshot listing emails received between 2013 and 2015.

   ·     References supporting the applicant.

   ·     Additional prehearing submission dated 23 March 2023 which includes numerous links to media articles and tiktok videos.

   ·     Additional prehearing submission date 28 March 2023 including further links to articles.

   ·     Written statement of the applicant.

   ·     Employment and personal references in support of the applicant.

   ·     Article entitled ‘Race-based policies prevented me from getting a job’.

   ·     Short video file labelled ‘Nurses Singing and Promoting Anti-Boer Sentiment’.

   ·     Copy of the Constitution of the Republic of South Africa 1996.

   ·     Article entitled ‘BBBEE Act and Codes Explained’.

   ·     Post-hearing submission dated 26 May 2023.

   ·     Psychological report by [Ms C] dated 18 May 2023.

   ·     Screenshots of phone message safety alerts, written notices described as ‘Daily Crime Warnings’, screenshot of a news headline referring to cholera, accounts of water and power outages.

   ·     Post hearing submission dated 28 June 2023.

   ·     Screenshot of an article in Afrikaans that appears to be about water licenses and is labelled ‘Rasvoorwaardes – Proposed Race-based Regulations’.

   ·     Email submission dated 3 August 2023 with links to videos depicting a large political rally and a short narrative account of farm murders.

   ·     Post hearing submission dated 17 August 2023 with video links.

   ·     Short video file titled ‘Video of South African President’.

   ·     Further reference letter in support of the applicant’s claim for protection in Australia.

3. The applicant attended a Protection visa interview with a Departmental delegate on 7 August 2019. The Tribunal has had regard to the interview in assessing the applicant’s claims.

   Evidence at the hearing

4. The applicant confirmed she came to Australia most recently on [date] June 2016 holding a Visitor Visa. She had travelled to Australia previously from December 2015 to February 2016 when her grandchild was born and first travelled as a visitor in 2010. The applicant had spoken to an agent briefly before departing from Australia in 2015 and was told she should apply for a Protection Visa. She said she left and returned to South Africa because she did not want to overstay her Visitor Visa and risk not seeing her children again. The applicant’s relatives in Australia are her daughters and grandson. She is divorced and her mother and sister continue to live in South Africa.

5. In South Africa the applicant completed matriculation and a [diploma]. The applicant said she lost her job in 2012 or 2013 and applied for thousands of jobs after that. She said emails would come back stating the position was reserved for BBBEE applicants who were encouraged to apply. She had tried to start her own company but was not successful then worked as a [consultant] for [companies] in 2014/2015. The applicant said “it did not really take off” because some of the companies had to close due to BBBEE requirements. 

6. Regarding her living arrangements, the applicant claimed she was couch surfing after 2012. She said her mother who had lived with her had to move and live with her other daughter who is [disabled] but has employment. The Tribunal asked the applicant how she paid daily expenses when she was no longer earning an income. She said she had a friend who would come around and help her, and she was living in a rental property but was not paying and the owner was trying to evict her. The applicant said at the time things between herself, and her mother and sister were not good, and she did not have their support. She said they thought she was “fine”, but she was not. The applicant said she divorced in 2001 and remarried in 2007, then divorced in 2010. After that she lived with her mother. The applicant said in Australia she works as a [sales representative].

7. The Tribunal asked the applicant why she decided to remain onshore and apply for protection in Australia after she arrived in 2016. She said she feared for her life and for the situation in South Africa which included intimidation, not having police protection, and not having anywhere to go. She said she could not take it anymore. The applicant was asked if anything had occurred that led her to apply for protection at that time. Initially she said no, she just felt protected in Australia. The applicant then related an incident where she was driving in South Africa and there are vendors who approach cars to sell things but also to steal. The applicant claimed her window was open a bit and she was hit in the face by someone who grabbed her necklace, and it was witnessed by police behind her who did nothing. The applicant said she went to the police station, but people were making remarks about her such as “Boer” then when she decided to just walk out, she heard someone say, “white bitch”. The applicant claimed the assault had occurred in April 2016 when she returned to South Africa and resulted in a mark on her face and her necklace being stolen.

8. The Tribunal asked when the applicant’s former husband and her daughters had moved to Australia. She said her daughters were 18 and 16 at the time and she thought her ex-husband had come through employment sponsorship. The applicant said she had considered applying for work sponsorship but did not think she would qualify. The applicant explained about having lived temporarily in [Country 1] where she had wanted to set up a [business], but it did not work. She referred to being introduced to certain officials who she said all wanted cuts from the work.

9. The Tribunal spoke to the applicant about her original claims for protection which included the experience of being mugged. It was noted that in recent evidence to the Tribunal details of additional events that are alleged to have happened have been submitted. The Tribunal asked why she had not given all that information to the Department. The applicant claimed she was under pressure; she had not known what to expect and everything was a blank. The applicant said everything she has disclosed did occur. She gave an account of her daughter being assaulted in South Africa while sitting in a car outside shops. The applicant claimed she was inside a shop when her daughter came running with blood on her face. It was claimed “they” had hit her and grabbed her phone. When asked who, the applicant said it was black people who walk around cars looking for things to steal. She said she tried to find the person, but they were gone, and police would not take down the details because it is a daily occurrence. The Tribunal asked the applicant why, if such incidents happened regularly, the children had not accompanied the applicant into the store rather than wait in the car. She claimed there was more danger in them coming inside, for example with a mobile phone, than waiting in the car. The applicant said that as a single parent, you cannot just go into town, there needs to be two people. She said she thought the children would be safer in the car than in the shops and that she was just going in and out to get something quickly. The applicant claimed her daughter was hit through a window which was down slightly.

10. The applicant then said it is drummed into you that you cannot drive with windows down, you must lock your doors and you must not display anything. The Tribunal asked the applicant why you would lower the window at all in that case, and the applicant said they would only do so a little, for fresh air. She was asked how someone can hit you through a window in that case. The applicant said if someone wants to break the window they can. It was submitted it is harder to break a slightly open window than a closed window. The Tribunal asked if the window had been broken when she claimed she was mugged in her car and her daughter was hit while in a car. The applicant said no, the person’s hand “came right through there” and remarked it was unbelievable how they could do it.

11. The applicant said while she was in Australia her sister was “nearly highjacked” in South Africa and had a gun put to her face in her car by people who just appeared out of nowhere. It was claimed the applicant’s sister also had a gun placed to her side when she got out of her car to go shopping and a person demanded her bag but left upon seeing a security guard. The applicant said this is a daily occurrence and happens all over South Africa. She said the incidents she described happened in Pretoria but everywhere people put rocks on the road to stop you, throw rocks off bridges and fake being the police to pull you over to mug, rape or kill you.

12. The Tribunal asked the applicant about her claim of being raped at a bike rally in 2005. She explained that she was involved in charity work at the time. The applicant said she was sure her drink was spiked as she woke the next day like jelly. She returned to her tent and in the morning found her pants were down and knew something had happened. The applicant became upset and said she was ashamed and could not look at anyone. The Tribunal asked the applicant if she was alleging her experience was related to crime and violence in South Africa generally, or if it was a racial incident. The applicant said, “it doesn’t matter if you are black or white in South Africa you get raped”. She said the people she was with at the rally were both black and white. The applicant stated her belief that it is dangerous for a woman in South Africa.

13. The applicant was asked what she feared about returning to South Africa. She said, “being a white South African Boer”. The applicant stated the Economic Freedom Fighters (EFF) sing about killing the farmer and the Boer, she will have nowhere to go, she will be raped or murdered and will be judged for the colour of her skin. The applicant said she will be held accountable for what happened in the past. The Tribunal noted the applicant’s mother and sister are still in South Africa and asked about their daily lives and ability to support themselves there. The applicant said her sister works and is lucky to have a good manager, and she lives with their mother in an apartment with bars in a complex with security. The Tribunal asked if it was an option for her to reside with them since they have secure accommodation. The applicant said no because it is full, her mother and sister live with her sister’s daughter and a girlfriend who moved back home to assist them. She said her sister is [disabled] and her mother is old and sick. Her sister works as a personal assistant for a [company]. The applicant then said her sister has [cancer] and the doctor gave her a year to live but it has been more than a year. She said her sister has pressure on the brain and requires an operation but there are too many patients in front of her.

14. The Tribunal explained the refugee criteria to the applicant and asked what her primary fear was about returning to South Africa. She said being a white South African single woman. The applicant claimed she will not get a job because of the BBEEE Act and repeated that she will have nowhere to go. The applicant again said the EFF incite young people to kill the Boer, kill the farmer and “cut the throat of whiteness”. She stated her belief that those threats were meant to be taken literally and referred to unsolved murders due to a lack of police. The Tribunal put to the applicant country information that included a study that stating farmers in South Africa are at a higher risk of violent crime but noted she was part of that demographic when she lived there. The applicant responded with reason as to why farmers are targets, including that they are perceived as wealthy. She said there is a view generally that white people have more money. The applicant was asked in that case, was violence related to economic factors rather than racial. The applicant stated her belief it was both because “they” want their country back.

15. The Tribunal then put to the applicant that according to country information, poor black women and women of colour are at greatest risk of experiencing violence in South Africa. The applicant said that may be the case in rural areas but claimed all women are at risk and it does not apply to one ethnic group. She made the comment, “it is everyone”. The Tribunal referred the applicant to a Canadian study that found all sectors of South African society are unduly affected by crime.  The applicant said she is at risk because she is a single white woman and does not have a man to protect her. The Tribunal asked about the applicant’s mother and sister and who protects them. The applicant said her sister is separated and commented “we just need to fend for ourselves”.

16. The applicant was asked if she thought the authorities could protect her in South Africa. She said there was no confidence in the police because they have been involved in supplying weapons to criminals including during riots. She was asked about areas where the white population generally live. The applicant claimed there are settlements that are primarily black but other areas are racially mixed. The Tribunal then asked about services that may be available to assist people in need and the applicant claimed there was discrimination against white people specifically for example when food parcels are delivered. Regarding the possibility of relocating within the country, the applicant said it is her belief the situation is the same everywhere. The applicant compared South Africa’s cities and surrounds including where she lived. She said it does not matter where you live there are riots, rape, rock throwing and roads being blocked. The applicant claimed her mother and sister receive warnings about roads to avoid each day and she said it was the same whether in Johannesburg, Cape Town or anywhere.

17. The Tribunal asked the applicant about any other fears she has about returning to South Africa and explained the complementary protection criteria to her. The applicant said she fears incitement to murder and kill people. She referred to her nephew (by marriage) in South Africa who was having a barbeque and was allegedly harmed during a robbery. The applicant then gave an account of an explosion that occurred in 1989 when she was working at a bank. She said windows nearby were blown in although it did not happen in her building. She said she feared further explosions at the time. The applicant claimed it was done to make a point that “we will kill you” and stated her belief it was meant to target children. The applicant said there are so many hijackings and attacks that happen currently in South Africa.

18. The Tribunal asked the applicant why she had waited until 2016 to apply for protection in Australia. The applicant said when she came to Australia in 2010, she was still married and when she came in 2015, she did not know she had that option. It was put to the applicant that she had returned to South Africa in 2016 and therefore, it appeared she was not concerned for her safety. The applicant said she had not wanted her children to know about her situation, that she was out of a job and could not survive there. She did not want to jeopardise not seeing her children by not departing from Australia. The Tribunal referred the applicant to her evidence that she had been told about applying for protection in Australia before she returned to South Africa in 2016. She agreed that was the case but said it had been a brief conversation with an agent and she had her ticket to go back the next day. She repeated that she was worried about not being able to see her children again. The applicant said her children left South Africa in 2008 and have only returned once, in 2009.

19. The applicant gave evidence about her stepfather who she was close to. It was submitted her stepfather was shot three times in the face and found beside a road. He had been a mine worker in South Africa. The applicant did not know the circumstances but presumed it was a robbery. The applicant claimed she was told by police that she and her stepbrother and their families had been followed. She said there had been a court case, but it was thrown out because police had not followed procedure. The applicant advised she was no longer in contact with any of those family members.

20. The applicant gave additional evidence about incidents that occurred while she lived in South Africa. She said she was driving home from Pretoria on a very poor road, through a settlement, while following a grain truck. The applicant claimed masses of people climbed the truck for the grain and they also came and shook her car and intimidated her. According to the applicant she could not call for help and had to push past all the people without inciting them. The applicant also claimed her uncle who was a police officer was a victim of ‘necklacing’ and was set alight by a crowd. She said this occurred when she was 16. The applicant then clarified that the person was her mother’s nephew but was referred to as uncle.

21. The applicant asked that the Tribunal not send her back because she is afraid of incitement to kill and being held accountable for things that happened in the past. She said she will not be able to fend for herself and will be destitute in South Africa. The applicant claimed she would have to go to a squatter camp as there is no social security for white people. She said she has no property or assets and would not be able to access a pension. The applicant explained she had done so when she was no longer working in South Africa because at the time she had contributed to the system through her employment. The Tribunal asked the applicant about the significance of incidents she said had occurred to her daughters in South Africa. The applicant claimed she and both of her daughters have been raped, they are not safe on the streets, and can only go out in groups.

1. At the conclusion of the hearing, the Tribunal asked [the applicant] about her claims regarding her political opinions and support for the rights of white people in South Africa. She said since being in Australia, she could not remember the last time she posted anything online in that regard. According to [the applicant] it was because she felt her voice was only a small one. The applicant conceded that “everyone in South Africa says what they want to say”.

   Evidence of the witness - [Ms B]

2. [Ms B] declared the evidence provided by her mother about the situation in South Africa is accurate and true. She said the issue is being an Afrikaans speaking South African and explained that even in Australia, she herself has been labelled a racist for that reason. [Ms B] said she grew up in a country where you have ten-foot walls and barbed wire on windows to secure you from harm. She said she has experienced attempted kidnapping, high jacking, assault, and sexual assault all before she was 15. She believed it was targeted because she is a woman and white. [Ms B] said she was once targeted at school by a group of black girls who threatened to push her downstairs and there had been an outbreak of violence on one occasion when she had left the school to go to the dentist.

3. [Ms B] said family members have been killed, assaulted, and sexually assaulted including her sister. It was put to her that according to country information, violence in South Africa is endemic and affects everyone. [Ms B] repeated her claim that being a white, Afrikaans speaking person in that country means it is “targeted”. She said there is a lot of hate in the media blaming them for the past even though she, (the witness) was born after apartheid ended. [Ms B] confirmed the dates the applicant had travelled to Australia and returned to South Africa. The Tribunal asked why the applicant had visited Australia in 2016 and [Ms B] said her stepmother was unsupportive and abusive and she had been telling the applicant about her difficulties. [Ms B] said she did not go back to South Africa as she had to move out of home due to her stepmother’s abuse and could not afford to travel. She said she had also not known about her mother’s situation and is happy she is in Australia. [Ms B] said she understood the information about protection came from an agent and she did not think there had been any plans to apply for any other visas.

4. The Tribunal asked why the applicant had returned to South Africa after being advised she could apply for protection in Australia. The witness said she did not want to risk not seeing her daughters again. The Tribunal advised it could indicate she did not fear for her safety because she left Australia and returned to South Africa. [Ms B] said that was not the case and she had just acted as per the advice she was given. The Tribunal put it to the witness that usually once a person who fears for their safety can apply for protection in Australia, they do so and do not return to their home country. [Ms B] said she was not present when her mother was given advice about applying for a protection visa.

5. The applicant then explained that she had been told she could stay in Australia and apply for protection without departing, but she had not been aware of the implications. The Tribunal asked the applicant what she returned to South Africa for, and she repeated that she did not want to risk not seeing her children again. She added that she did not want them to know how bad her situation was. The representative submitted it was his understanding the applicant had been told about the concept of applying for protection but not that it meant she should stay and not return, as she had promised the Australian authorities. He said it was in her favour that she had wanted to do the right thing and had not wanted to affect coming to Australia again. He also referred to the incident that occurred when she did go back to South Africa as being a “tipping point” that made her pursue the protection option.

6. [Ms B] related an incident when she was a child that she says was an attempted kidnapping when she and her sister were walking home with a carer. She also gave evidence about her sister being assaulted and robbed of her phone while they were in the car waiting for their mother. It was submitted that they moved often and changed schools, but [Ms B] did not know the reason for it. She claimed you cannot walk home from school and have to be picked up. Regarding her home, the witness said she lived with her father in a three-bedroom house with barbed wire on the windows and internal locks to prevent any access beyond the kitchen. [Ms B] claimed there was always tension at school because people do not like you due to who you are.

7. The witness gave evidence about her attendance at a party as a teenager where she claimed to have been drugged and sexually assaulted in a spa by five men. She said the people there were both black and white. She said she never told her father about the incident. The Tribunal noted that such an assault could equally occur in Australia. [Ms B] said it is much more common in South Africa and at the time she was becoming more independent and wanted to be social but could not. [Ms B] said she did know how that was living because it is not possible to go anywhere without something happening.

   Evidence of the witness - [Ms A]

8. [Ms A] claimed the applicant will not be able to survive in South Africa or find a job or a place to live. She referred to the general state of the country and her belief her mother would not survive a year. The witness was asked why she held those beliefs since the applicant has lived her entire life in South Africa. She said things have changed and people no longer get housing and have to live in man made sheds. It was claimed there are particular dangers for a single white woman. The Tribunal explained that part of the assessment of a protection claim is that there must be a real chance a person will suffer serious harm if they return to their home country. [Ms A] stated that as a child they had to follow rules such as wearing seatbelts, locking doors, and only opening windows slightly when driving. She said valuables need to be hidden and when driving high jacking occurs all the time.

9. [Ms A] was asked about her awareness of incidents that happened to her mother. She said she is aware of attempted high jacking but did not know the details. She said she could not think at that time. The witness then related details about her own experiences in South Africa including the alleged assault that occurred while she and her sister were in a car and the applicant was in a shop. She described how someone hit her through a partly open window and stole her phone. [Ms A] then described an incident when she had been playing outside with her sister and they saw a person running and heard gunshots. She said they followed their father to a neighbour’s house and saw a person who had been shot dead by police. [Ms A] also recounted an alleged attempted kidnapping while walking to school with her sister and a carer. She said the attempt only failed because another appeared.

10. The witness said she has a couple of uncles and aunts on her father’s side and her grandmother and aunt on her mother’s side. She said she is not in contact with family much. [Ms A] advised her mother had travelled to Australia in 2016 because she, the witness was pregnant. The Tribunal asked why her mother had not left South Africa earlier. [Ms A] said she believed it may have been for financial reasons, because she could not find a steady job because she is white and because of her age. She said she needed to get out of the country for her safety and her fear of living there. The witness was asked why the applicant had returned to South Africa before coming back to Australia and applying for protection. She said her visa required her to.

11. [Ms A] stated she had not attended a school reunion in South Africa partly because she was pregnant but also because she believed she would not come back as she would be killed. She said she would have only returned if something had happened to her mother. She advised that in preparing for hearing they had to revisit many bad memories. The witness then described security arrangements she has place in her home (in Australia) and how her fears were recently triggered by dogs on the property that caused her to be concerned for the welfare of her young son. She also described the security people have in their homes in South Africa including locked internal doors to prevent access to bedrooms and bars on windows.

    Representative’s submission

12. The representative submitted the following oral arguments at the hearing on behalf of the applicant:

13. There is a generalised problem with crime in South Africa, and everyone is affected. However, there is a particular social group who are targeted and are more vulnerable. If the Tribunal does not find the applicant is a refugee for that reason, there are strong grounds she is owed complementary protection.  While there is effective state protection because South Africa has a progressive legal system and constitution with a bill of rights that protects everyone irrespective of race or gender but there is a disconnect. For the white minority there is cause for concern around safety and security. There are examples of bribery and widespread corruption such as money found in the home of the former president. Due to disenfranchisement and anger of the black population at the lack of improvement since apartheid, the minority white population is at risk. There are numerous accounts of corruption at all levels, failure of infrastructure, impacts on the economy that creates security concerns. There are economic failures including high levels of unemployment and the blame falls to the white settlers who enriched themselves and impoverished the general population. If militant younger generation seek solutions it is directed to taking back what they see as theirs. The Afrikaans had the political power and legalised segregation is attributed to the white Afrikaans community. Black and white suffer from unemployment and despite South Africa has the third largest economy in Africa, 31% of people live under the poverty line. There is discontent if a small majority is perceived as having the wealth.

14. Crime is out of hand, murder, sexual offences, robbery are up in 2022. The black population is 89% black and only around 7% white (and decreasing). Crime against white Boer farmers is incited by political groups such as the EFF who chant and make gunfire threats. The EFF is the third biggest political group in parliament which may increase in elections next year. The young, disenfranchised group of predominantly black supporters are not happy with their past and with the ANC who have not delivered and in fact gone backwards. Recently in 20 March 2023 [Julius] Malema of the EFF made statements about “shutting down the country” closing shops, factories and universities as a display of political might which led to mobilisation of security forces by the government. This shows the impact a political party can have in South Africa. There have been calls for restitution from the population with the blame laid with them and this incites the masses to target whites, and specifically Afrikaans.

15. Economic disparity in other countries is not necessarily along race lines but in South Africa the white population have historically been privileged and someone like the applicant as a white female is a soft target and is perceived as wealthy. There was worldwide condemnation of apartheid which leads to a perception of white South Africans being racists. Similar to the Nazis in Germany, they were associated with something evil. Regarding real risk of serious harm to the applicant, everyone is equally in danger of violence in South Africa which may be opportunistic. However, in the applicant’s case, there are specific political leaders inciting people to take back what they see as theirs from the white population. The applicant is not only white but is from Afrikaner heritage. The family have been subjected to harm and as a female you are particularly vulnerable, and the risk is very high rather than a distant chance. There is disregard in South Africa for protection of the rights of women and especially in the applicant’s case.

16. The South African bill of rights includes a “right to life” as well as “freedom and security”. It is one thing to have that in print, but it did not protect any of the witnesses in this case. It includes a clause that discrimination is unfair “unless it is fair” such as when it concerns fixing discrimination from the past. For example, the BBEEE where the government promotes the black population and discriminates against the applicant. This is not going to help the applicant if she goes back to South Africa. The emergency phone number is not manned and there is no effective police protection. The option to have private security is only available for people who have money. The judiciary finding that Mr Malema [of the EFF] did not perpetrate hate speech because he changed the wording of “kill” the farmer to “kiss” was childish.

17. Regarding relocation in South Africa, the situation is the same everywhere. In terms of tourism and the appearance of safer areas, they are managed and secure and visitors would not be targeted in the way [the applicant] would. There was a recent interview with Mr Malema where he differentiated between foreign visitors who would not be targeted for being white because they are not part of the history. The delegate decision refers to land holders and the elderly being seen as soft, lucrative targets, and the police in South Africa are ineffective. The country information in the Department’s decision indicates violence against women is seen as endemic in South Africa and the applicant and her daughters have been victims in the past.

    Findings on refugee criteria

18. The Tribunal considered the evidence, submissions and arguments presented in the applicant’s case to determine whether she is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa).

19. The Tribunal considered whether [the applicant] has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. In assessing whether the applicant has a “well-founded fear of persecution”, 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 though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

20. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

    Refugee claims

21. The applicant’s claims for protection are that she has a well-founded fear of persecution due her race, ethnicity, and membership of a particular social group. In her statements to the Department, the applicant claimed South Africa harbours ‘government-sanctioned torture, persecution, rape and crimes against the white race’ and there is a ‘deliberate secret race war’ in South Africa. The applicant claimed that because she regularly posts her political opinions on Facebook, she could be detained due to her political expression. [The applicant] further claims that in South Africa she would be at particular risk of harm and deliberately targeted because she is white and an Afrikaans speaker of Boer heritage; she is an older, unmarried woman without family support; she would not be able to find employment or support herself due to race based discrimination; and there is no effective protection available.

22. In evidence to the Department and the Tribunal, [the applicant] and her daughters gave evidence about being the victims of violence in the past while living in South Africa. This included allegations of being threatened as well as actual physical and sexual assault. In the accounts given by [the applicant] she described having been threatened and intimidated while driving as well as being physically assaulted during a robbery while in her car in traffic. Some of these incidents were described as perpetrated by black people and included claims of a lack of action by police and verbal abuse when allegedly reporting a crime. [The applicant] also gave details of what she believed was a sexual assault while she was attending a charity bike ride event. The applicant said she believed her drink was spiked as she woke up and “knew something had happened”. She did not appear to be aware what specifically had occurred or by whom. When asked if she thought she had suffered a racially motivated assault, the applicant said both black and white people attended the rally, and she believes it does not matter whether a woman in South Africa is black or white, they can be raped. [The applicant]’s evidence was that South Africa is dangerous for women generally.

23. [Ms B] and [Ms A] gave evidence about their own experiences in South Africa. This included being the victims of an attempted kidnapping and having on one occasion being subjected to threats from fellow school students. [Ms B] described attending a party as a teenager where she alleged said she had been drugged and raped by a group of males. [The applicant] and her daughters all gave evidence about an incident in which it was claimed [Ms A] was physically assaulted while waiting in the car with her sister and their mother was shopping. The evidence from [the applicant]’s daughters was provided to support the claims made about the risk of violence in South Africa and to women in particular.

    Accepted facts

24. The Tribunal accepts the following regarding the applicant, [the applicant]:

    ·     The applicant is a white South African of Boer heritage.

    ·     The applicant is divorced with two adult children who are Australian citizens.

    ·     The applicant’s mother and sister live in South Africa.

    ·     The applicant lived and worked in South Africa including being self-employed before applying for protection in Australia.

    ·     The applicant experienced some threatening and violent behaviour while living in South Africa.

    Assessment – Refugee criteria

25. The Tribunal assessed the evidence provided to determine whether there is a real chance the applicant will suffer persecution if she returns to South Africa. Country information indicates, and the representative for the applicant acknowledged, that crime and violence in South Africa is endemic, pervasive and has been increasing due to a range of political and socio-economic factors. It was claimed [the applicant] would be at greater risk of harm due to her race, ethnicity and gender and a perception that she bears some responsibility for the history of apartheid and inequality in South Africa. To support her claims, [the applicant]’s representative submitted numerous media reports, video links, and written articles that relate to social and political issues in South Africa.[15] The media evidence and the representative’s oral submissions at the hearing were provided to support [the applicant]’s claims that the government either sanctions or does not control violence and that [the applicant] is at particular risk of harm due to her personal attributes and circumstances.

    [15] Tiktok is not permitted on Commonwealth devices, but the Tribunal was able to open the Tiktok links provided on a personal device.

1. The Tribunal recognises that many of the media articles depict matters of genuine concern to sections of the South African population including [the applicant]. These include speeches by the EFF leader Julius Malema who is critical of the South African government and society post-apartheid. The news articles and short tiktok videos of Mr Malema include the EFF leader delivering speeches to his followers, appearing at rallies, speaking in parliament, and testifying in court. The Tribunal accepts Mr Malema is a divisive and sometimes inflammatory figure in South African politics who openly expresses his disapproval of the country’s government and president. He also criticises social inequality and what he sees as South Africa’s failings. However, the Tribunal notes that in cases where Mr Malema has been particularly provocative such as engaging in racially charged speech, he has been the subject of investigations and legal action. This indicates such behaviour is not tolerated in South Africa and is not without consequences.[16] The applicant’s evidence makes clear Mr Malema is not supported by the government of South Africa. This includes videos where he openly criticises the president of South Africa Cyril Ramaphosa in parliament, and in a speech to his followers, complains that a protest organised for March 20, 2023, is not sanctioned by the African National Congress (ANC). While the March 20 demonstrations over unemployment and a lack of services went ahead, any violence that occurred resulted in offenders being arrested.[17] The evidence provided to the Tribunal includes other examples of issues facing South Africa and includes references to the racial makeup of the country, sometimes critical, in historical and contemporary contexts. The Tribunal is not satisfied the evidence submitted supports [the applicant]’s claims of government-sanctioned persecution against the white population, or that persecution of people with a white Afrikaans Boer heritage is encouraged by the government. The Tribunal is not satisfied the evidence supports [the applicant]’s claims that she would be persecuted due to her race, ethnicity, or membership of a particular social group.

   [16] Rorisang Kgosana, Court sets aside SAHRC decision that exonerated Malema of hate speech, Times Live, 14 July, 2023, Court sets aside SAHRC decision that exonerated Malema of hate speech (timeslive.co.za).

   [17] Tim Cocks and Anait Miridzhanian, South Africa's EFF marches to demand Ramaphosa's resignation, Reuters, 21 March 2021.

2. The Tribunal was unable to give weight to some of the applicant’s submissions because they could not be deciphered, they were edited to exclude context, or they were not considered relevant to the applicant’s claims. The Tribunal cannot give weight to a video file said to be of nurses chanting racial hatred (the chants do not appear to be in English) or a video of people running down a street to the sound of gunfire (there is no context to the visuals). The Tribunal places no weight on a screenshot of a headline submitted in isolation entitled ‘New Gauteng cholera cases’ taken from a complete news article about four cholera cases linked to baptism in rivers.[18] The full news article that gives context to the disease outbreak and includes steps taken by authorities to address the situation have been omitted. A video provided in a submission dated 18 August 2023 consists of an interviewer in Australia questioning people about their views on accepting white South Africans as refugees which was not considered relevant to [the applicant]’s claims. Articles about former president Jacob Zuma and the opinions of Elon Musk about the situation in South Africa were also not considered relevant. This is because [the applicant]’s claims are assessed on their own merits and the Tribunal is not satisfied the news and social media content submitted counters reliable information found in country information from government and non-government sources.

   [18] Onthatile Mahlangu, Metro urges vigilance after new Gauteng cholera cases, Pretoria Rekord, 6 April, 2023, Metro urges vigilance after new Gauteng cholera cases | Rekord.

3. The Tribunal is not satisfied there is evidence the South African government condones or sanctions the torture, persecution, or rape of white South Africans. In addition, the Tribunal does not accept there is a deliberate or secret race war in South Africa. The applicant’s representative relied heavily on the behaviour of the EFF leader Julius Malema, but the Tribunal is not satisfied the activism and dissatisfaction expressed by Mr Malema and his supporters means [the applicant] would be persecuted for a refugee reason in South Africa. The Tribunal understands there are a great range of issues affecting South Africa including crime, violence, economic hardship, and inequality that have an impact on most sections of the population. It is also clear that violence against women is widespread. The Tribunal has had regard to the personal experiences of the applicant and her daughters but places weight on country information from reliable and balanced sources. The Tribunal is prepared to accept [the applicant] experienced some harm as she claims but is not satisfied it was due to her race, ethnicity, or membership of a particular social as a white, older woman of Boer ancestry. The incidences of robbery reported by [the applicant] and her daughters appear to have been opportunistic since items were allegedly grabbed and stolen from her and one of her daughters. The Tribunal had concerns about the account provided of a sexual assault that the applicant believed had occurred at a charity bike rally since the details were vague and in giving her evidence, [the applicant] did not appear to be certain specifically what if anything had occurred, when, or by whom. The Tribunal is prepared to accept an assault did occur, but notes [the applicant] stated both black and white people were at the event, and it was not described as being related to a refugee reason. In addition, [the applicant] acknowledged that South Africa can be dangerous generally.

4. The Tribunal finds [the applicant] may experience a level of discrimination and some hardship if she returns to South Africa, but the Tribunal does not find that individually or cumulatively the possible difficulties would amount to persecution. The Act requires that persecution involve systematic and discriminatory conduct. It refers to conduct, which is deliberate, rather than random, and applied discriminatorily for one of the reasons set out in the legislation. The Tribunal is not satisfied crime in South Africa, or any financial difficulty the applicant fears would involve systematic and discriminatory conduct, instead, if it occurred it would be random and not directed towards the applicant for a refugee reason.

5. Having accepted [the applicant] witnessed and experienced some episodes involving violence as she described in South Africa, the Tribunal is not satisfied she was or would be targeted specifically for a refugee reason. The Tribunal is satisfied [the applicant] has a subjective fear of harm if she returns to her home country because of the crime and violence that is endemic in the country. The Tribunal is not persuaded that there is a real chance she will suffer persecution over and above the risk to any member of the population in South Africa.

6. Regarding [the applicant]s mental health, the Tribunal has had regard to the psychologist’s report by [Ms C] dated 18 May 2023. The report gives a provisional diagnosis of Post-Traumatic Stress Disorder and includes an opinion that [the applicant]’s mental state will deteriorate if she is forced to return to South Africa. It is reported that the refusal of her protection visa application by the Department and the uncertainty of [the applicant]’s visa status has had a negative effect upon her. [Ms C] reports that the applicant was able to convey her concerns sufficiently and concludes that she needs to continue treatment for her psychological condition and have access to safe living circumstances. The Tribunal accepts [the applicant] suffered some distressing incidents in South Africa that may have affected her mental health and wellbeing but notes her current circumstances as an applicant for protection in Australia have also contributed to her mental health condition. The Tribunal considers it would be open to [the applicant] to continue treatment from a psychologist in South Africa if required. Regarding the recommendation that [the applicant] have access to safe living conditions, this would be the optimum situation for anyone living in South Africa. As stated in this decision, [the applicant] has family members and friends in South Africa. She lived there for many years as a single, divorced woman after her children migrated to Australia and was able to work and support herself. The Tribunal is not satisfied she would be without support of any kind in future such that her capacity to subsist would be threatened.

7. [The applicant] submitted evidence about disruptions to services such as water and power as well as alerts said to have been sent to her mother about safety concerns in their local district in South Africa. The Tribunal understands and accepts there are social issues in the applicant’s home country that include the reliability of infrastructure and a high level of crime and violence. These issues affect the general population and would not be targeted towards [the applicant] for any reason if she returned to South Africa.

8. The Tribunal considered the applicant’s claims that she has been, and would in future, be disadvantaged and discriminated against in South Africa due to the BBBEE. During the hearing, and in written evidence to the Tribunal, [the applicant] expressed fears about not being able to find employment in South Africa and not having any financial resources or support in her home country. She gave evidence about her background before travelling to Australia in which she claimed she had not been able to continue renting a property and had been “couch surfing”. Although her mother and sister live in South Africa, [the applicant] claimed that at times their relationship was not good, and they were not aware of how difficult her circumstances were. It was also claimed that her mother and sister were not able to help her with either accommodation or financial support.

9. The Tribunal is not satisfied the applicant was as lacking in support in South Africa as she claims. Written evidence indicates she had a history of being employed including as a single woman since her second divorce in 2011. According to details of employment provided to the Department, from 2005 to 2011 [the applicant] was employed as a sales [executive]. She advised that in 2011 she decided to start her own business and thereafter was primarily self-employed until she left South Africa and applied for protection in Australia. Her endeavours included travelling to [Country 1] between 2011 and 2012 attempting to develop a [business] in that country and for two years from October 2013 and December 2015, was self employed with a [business]. Despite claims her attempts at being self employed with her own business were ultimately not successful, there is no evidence before the Tribunal to indicate it was due to her race or ethnicity or any other form of discrimination.

10. The Tribunal received evidence from [the applicant] that was said to support her claims of being denied employment due to discriminatory employment policies. This consisted of email inbox screenshots listing emails received between 2013 and 2015. The accompanying description states “this substantiates the fact that our client had unfortunately faced significant joblessness in South Africa as a result of the government policies”. The Tribunal notes the subject line that can be seen on the screenshots suggests the correspondence is indeed employment related but without the substance of the emails, their content and context cannot be determined. In addition, the emails as they appear by their subject are varied and include numerous job alerts, registrations, acknowledgements, confirmations, and correspondence. From October 2013, it appears the applicant was also communicating with agencies and/or employers regarding employment in Australia. This is evident from some email addresses as well as references to Australian employers or agencies. It indicates the applicant was looking for employment in Australia as well as South Africa as early as 2013. Although there is evidence the applicant was indeed applying widely for jobs during 2013 to 2015, the Tribunal is not satisfied it supports the applicant’s claim that she was without an income and struggling to survive for that period since her evidence indicates she was self-employed. Importantly the Tribunal is not satisfied the email listings support the claim that the applicant was denied employment because of discriminatory government policy such as the BBEEE Act. There is no evidence before the Tribunal that the applicant was advised as such in any email or correspondence from a potential employer or agency.

11. According to her own evidence, [the applicant] had friends who provided her with assistance with accommodation and necessities when they were needed. In addition, [the applicant] said she had been living with her mother before her mother moved in with her other daughter which indicates they have had a close relationship in the past. The Tribunal also received evidence said to be from [the applicant]’s mother that was provided to support her claims for protection. The Tribunal does not accept [the applicant]’s claim that her mother and sister were, or would be, unable or unwilling to assist her in future if necessary. The Tribunal finds the applicant has a long history of employment and a significant amount of work experience both in South Africa and Australia. She has proven herself to be a resourceful and capable person with the ability to find employment in South Africa and Australia and establish her own businesses in South Africa. She provided numerous personal and employment references from friends and colleagues in Australia which indicates she is sociable and readily able to make personal and professional connections. While she may be at a disadvantage due to her current age in seeking a position in her home country, the Tribunal is not satisfied the applicant will be denied employment due to her race or ethnicity. Any hardship she may face in that regard would be similar to any other person of her age. The Tribunal is not satisfied the applicant would face significant economic hardship that would threaten her capacity to subsist or that she would be denied the capacity to earn a livelihood of any kind, where the denial would threaten her capacity to subsist.

12. The Tribunal considered [the applicant]’s original claim at the time of application that she regularly posts her political opinions on Facebook and fears persecution in South Africa for that reason. At the Tribunal hearing, [the applicant] stated she could not recall when she last posted anything in relation to her views. She said she did not think her voice would matter but also commented that “everyone in South Africa says what they want to say”. Based on [the applicant]’s own statements, the constitutional right to freedom of expression in South Africa and the proliferation of media and social media commentary critical of South Africa, the Tribunal finds she is not at real risk of persecution for reasons of her political opinion.

13. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

    Assessment - complementary protection

14. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

15. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[19] The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

    [19] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]

16. [The applicant] did not specifically claim that she is at risk of being arbitrarily deprived of her life; or that the death penalty will be carried out, but she did claim to fear being murdered in South Africa. In assessing her evidence in this regard, the Tribunal considered whether there is a real and personal risk to [the applicant] as an individual. It was not claimed that [the applicant] would be killed by the state. Where the threat is from non-state actors, the Tribunal must first be satisfied that there are extremely widespread conditions of violence and second, that there is a particular risk to the individual in question.[20] The Tribunal finds that [the applicant] does have a subjective fear of violence due to the prevailing conditions in South Africa but is not satisfied she is at any greater risk than the general population.

    [20] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.1 (generally) and 3.4.1.2, as re-issued 29 February 2020.

17. The Tribunal is not satisfied the harm the applicant claims she would suffer, which may include economic hardship and an inability to secure employment, would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Independent commentaries about South Africa suggest that white people do not face specific challenges, threats, or lack of access to employment, education, health, or housing. Instead, access to sectors and services are impacted by the state of the economy, a lack of resources and underfunding rather than an intention to harm.

18. [The applicant] claimed in her evidence that she did not receive an adequate police response or protection in the past in South Africa including when she was allegedly robbed in 2016. It was claimed that instead of helping, police were dismissive and racially insulting comments were made by those in attendance at a police station. Based on available country information, the Tribunal is not satisfied there is systematic breakdown of law enforcement or that laws are routinely not enforced, although there is poor police reaction in many areas. According to the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa, the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise stated that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident. It can be surmised that it would be the same for all South Africans indicating the problems of underfunding and lack of resources are widespread rather than being pertinent to particular people or areas.[21] The Tribunal is not satisfied that [the applicant] is at risk of significant harm because of arbitrary action or inaction by the state.

    [21] Immigration and Refugee Board of Canada, ‘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 any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the 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. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Wendy Banfield
   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.

   …