1931741 (Refugee)

[2024] AATA 1580

1931741 (Refugee) [2024] AATA 1580 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Adrian Phillip Joel

CASE NUMBER:  1931741

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Wayne Pennell

DATE:15 February 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(aa) of the Migration Act.

Statement made on 15 February 2024 at 2:34pm

CATCHWORDS
REFUGEE – protection visa – South Africa – ethnicity and membership of particular social groups – white South African – violent crimes and harassment, trauma and anxiety – workers dismissed and replaced by less-skilled people – employment opportunities and capacity to subsist – government policies and corruption and police corruption or inaction – education and health care – gender-based violence – level of state protection available – extensive new evidence, information and submissions – country information – attacks on whites falls short of ‘white genocide’ – Convention protects from persecution, not discrimination – relocation not available – complementary protection – real risk of significant harm – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
ABT16 v MHA [2019] FCA 836
AGA16 v MIBP [2018] FCA 628
AVQ15 v MIBP [2018] FCAFC 133
Chand v MIEA [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo Wei Rong (1997) 191 CLR 559
MIAE v Wu Shan Liang (1996) 185 CLR 259
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
MZYPB v MIAC [2012] FMCA 226
MZYXS v MIAC [2013] FCA 614
Randhawa v MILGEA (1994) 52 FCR 437
Re Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZBQJ v MIMIA [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZLVZ v MIAC [2008] FCA 1816
SZQZT v MIAC [2012] FMCA 640
SZTEQ v MIBP (2015) 229 FCR 497
VBAO v MIMIA (2006) 233 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant protection visas to the applicants under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicants on 18 October 2019.

2. The applicants claim to be citizens of South Africa and applied for protection visas.[2] When assessing the application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, there was a real risk they would suffer significant harm. Therefore, the delegate refused to grant the visas[3] on the basis that they were not refugees as defined by the Act[4] and they were not persons in respect of whom Australia has protection obligations.[5]   

   [2]The Department of Homes Affairs received the applicant’s application on 16 April 2019.

   [3]The delegate’s refusal was made on 18 October 2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

3. The applicants filed an application with the Tribunal for a review of the delegate’s decision.[6] At a subsequent time,[7] the Tribunal sent a letter to the applicants and advised that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone. They were invited to attend an in-person review hearing scheduled for 4 October 2023. The applicants accepted that invitation and attended the scheduled hearing.

   [6]The applicants’ review application was filed with the Tribunal on 7 November 2019.

   [7]On 19 July 2023.

4. The applicants were represented at the time of the review hearing.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the applicant 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.

   [8]Migration Act 1958 (Cth), s 36.

   [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

   [10]Migration Act1958 (Cth), s 36(2)(a).

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.[11] 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.[12]

   [11]Migration Act1958 (Cth), s 5H(1)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]

   [13]Migration Act 1958 (Cth), s 5J(1).

   [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]

   [15]Migration Act 1958 (Cth), s 36(2)(a).

   [16]Migration Act 1958 (Cth), s 36(2)(aa).

   [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]

    [18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY

12. The applicants claim to be citizens of South Africa and they have provided copies of their passports and birth certificates to authenticate this claim. The Tribunal accepts their identities and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that South Africa is their country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[20]

    [20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[21]

    [21]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[22] 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.

    [22]Migration Act 1958 (Cth), s 499.

    APPLICANTS’ BACKGROUND AND CLAIMS

15. [The first applicant] is married to [the second applicant]. They provided to the Tribunal a marriage certificate confirming that they were legally married in South Africa [in] November 2004 and the Tribunal is satisfied that they are in an ongoing spousal relationship.

16. The birth certificates referred to in paragraph 12 of these Reasons for the third and fourth applicants confirm that the first and second applicants are the biological parents of [the third and fourth applicants]. Therefore, the Tribunal is satisfied that the second, third and fourth applicants are members of the family unit of the first applicant as defined in the Regulations[23] and therefore they are all members of the same family unit for the purposes of the Act.[24]

    [23]Migration Regulations 1994 (Cth), Regulation 1.12.

    [24]Migration Act 1958 (Cth), s 5(1).

17. The first applicant was born and raised in the city of Johannesburg, South Africa. She was educated in Johannesburg and after she completed her schooling she worked in [Work sector 1] from March 2001 to April 2016. The second applicant was born in Durban, South Africa. At [Age], his parents relocated to Johannesburg. After he completed his schooling in Johannesburg he gained employment in Johannesburg and other areas of Gauteng province between April 1996 and April 2016. Prior to travelling to Australia, the applicants lived in rented accommodation which they relinquished when they left South Africa.   On the basis of their evidence, the Tribunal accepts that the first and second applicants lived and worked during their adult life in South Africa.

18. In respect to the applicants’ home region, the Tribunal appreciates and acknowledges that while racial identification terms such as ‘black’, ‘white’ and ‘coloured’ are problematic, it is important for the purposes of these reasons that this type of terminology be used to describe the circumstances of the applicants’ claims and the situation within South Africa. Furthermore, these words of description continue to be used within post-apartheid legislation in South Africa,[25] and are terminology the applicants have submitted in relation to their application.

    [25]Broad-Based Black Economic Empowerment Act 2003, Act No 53, Republic of South Africa Government Gazette, Volume 463, Number 25899, 9 January 2004 provides that the term “black people” is a generic term which means Africans, Coloureds and Indians.  

19. The Tribunal is therefore satisfied (and so finds) that based on the physical appearance of all the applicants, and the documentary evidence they have provided, that the applicants are all white South Africans.

    Documentary evidence before the Tribunal

20. Very careful consideration has been given to the voluminous country information contained within the numerous documents provided by the applicants relating to their claims for protection. Included in those documents were many references to various reports, news articles and other documents on the internet which the Tribunal accepts is relative country information.

21. Those documents are (but are not limited to) the following:

    (a)The implementation of the Broad-Based Black Economic (B-BBEE) Policy in South Africa: a myth or a reality in SMEs?;[26]

    (b)Global Experience of Black Economic Empowerment and Indigenisation Policies;[27]

    (c)On-line news article, Minister Mondli Gungulele reiterates commitment to State Security Agency, South African Government;[28] 

    (d)On-line news article, Jacob Zuma’s State Security Agency secretly funded embassy of Central AFRICAN Republic in Pretoria since 2014;[29] and

    (e)Various and numerous other on-line articles contained within 215 pages of documents.

    [26]The implementation of the Broad-Based Black Economic (B-BBEE) Policy in South Africa: a myth or a reality in SMEs?, Australian Accounting, Business and Finance Journal, Volume 16, No 1, 2022, Musabayana G, Mutambara E, and Private Sector, Professional Evidence and Applied Knowledge Services, Oxford Policy Management, Uppal V, February  2014,

    [28]Minister Mondli Gungulele reiterates commitment to State Security Agency, South African Government, 7 March 2022,

    [29]Daily Maverick,

    Applicants’ Claims

22. The claims raised by the applicants relate to the circumstances of the first and second applicants who are the parents of the third and fourth applicants. The applicants had previously presented to the Department for an interview in regard to their protection visa application,[30] and the Tribunal is satisfied that their disclosures during that interview were consistent with their claims. The Tribunal is also satisfied that their evidence at the review hearing is consistent with their previous disclosures to the Department.

    [30]On 28 August 2019

23. Initially, the applicants’ claims for protection included claims relating to the increase of ‘white genocide’ in South Africa due to acts of violence against farmers. Because of that increase of violence, they have a well-founded fear of persecution because they are white South Africans. They also claimed that they themselves have been victims of violent crimes, including robbery, assault and harassment and arising from those crimes, they claim that they were targeted and victims because they are white, and from those experiences they suffer from associated trauma and anxiety. An additional claim they raised related to the first, third and fourth applicants being white females, and because of this, they have a well-founded fear that they will be targeted for gender-based violence. The Tribunal accepts that the applicants have been victims of violent and systematic criminal activity from the perpetrators of that violence when they lived in South Africa.  

24. There has been a significant drop in the standard of education in South Africa and the opportunities for employment have significantly decreased because of the Black Economic Empowerment (B-BBEE), and without employment they will not be able to subsist and risk being homeless if they return to South Africa.

25. In respect to state protection, they claimed that the South African police are corrupt and ineffective, and they provided an example of the first and second applicants reporting to the police that they were victims of violent crimes but the police took no action and the applicants were not provided with any trauma counselling.  

26. In regard to the applicants’ claim about white genocide, in particular in the rural farming, they rely upon the contents of numerous articles of country information which shows that in 2007, the South African Police Service stopped releasing homicide statistics relating to farm murders. Instead, the statistics were merged with all homicide figures thus increasing the assessment of reliable statistics. Most studies of farm murders now rely upon the statistics of the Transvaal Agricultural Union of South Africa (‘TAUSA’).[31] It is suggested that statistics provided by TAUSA significantly under reports the number of violent attacks on farmers. This is because TAUSA are not told about incidents on smallholdings which is estimated to account for forty per cent of all violent farm attacks. This suggests that statistics on farm attacks since 2007 are likely to be under reported.[32]

    [31]Dubula ibhunu (shoot the boer): A psycho-political analysis of farm attacks in South Africa, Pretorius J, University of the Western Cape, Bellville, Cape Town, Psychology in Society, 2014, pages 21 – 40, accessed 3 February 2024.

    [32]Farm Attacks and Farm Murders Remain a Concern, Institute for Security Studies, Burger J, 17 October 2012, accessed 5 February 2024.

27. In 2003, the South African Freedom Front political party stated that farmers were being murdered at a rate of 274 per 100,000 people. When this is compared against the national murder rate of South Africa, the rate at that time was 61 per 100,000 people. The Freedom Front party alleged that Afrikaners were being specifically targeted in the attacks.

28. Media reports placed the deaths of South African farmers as of December 2011 to be in the range of approximately 3,158 to 3,811, while TAUSA’s self-reported data gave an estimation of 1,544 people killed in farm attacks between 1990 and 2012.[33] In 2012, the South African Institute of Race Relations estimated that farmers were 13 times more likely to be attacked than other families, and two to three times more likely to become murder victims than other members of society[34] and between 2010 and August 2023, there were 4,308 recorded attacks on South African farmers which resulted in 806 murders.

    [33]White farmers being wiped out, The Times, London UK, McDougall D, 28 March 2010, accessed 4 February 2024; Are SA whites really being killed ‘like flies’?, Africa Check, 24 June 2013, accessed 3 February 2024.

    [34]Research and Policy Brief: Farm attacks in South Africa – a new analysis, Cronje F, Holborn L and Sethlatswe B, accessed 5 February 2024.

1. In a recent report, it was argued that the South Africa Police Service were losing the war on crime and the police service must rethink its outdated strategies as the rate of violent crime in South Africa surges. The South African crime statistics for the third quarter of 2023 show that people continue to face a serious problem of violent crime, especially murder and attempted murder. The country’s per capita murder rate over the recent decade showed that the period of 2022 to 2023 was the highest rate murders in 20 years at 45 people per 100,000 murdered. This is a 50 per cent increase compared to the corresponding period of 2012 to 2013.[35]   

   [35]SAPS are losing the war on crime: Must rethink outdated strategies as violent crime rates surge, Biz News, Lamb G, 20 November 2023, accessed 30 January 2024. 

2. The South African government has rejected reports of specific attacks on white farmers and claimed that there were no reliable figures that suggested white farmers are at greater risk of being killed than the average South African. It is claimed by the South African government that white genocide in South Africa has been promoted by right-wing groups in South Africa and the United States and is a frequent talking point among white nationalists.[36] However, according to an assessment by Gregory Stanton who is the founder and president of Genocide Watch[37] and former research professor in Genocide Studies and Prevention at the George Mason University in Virginia, USA, there are early warnings of genocide still deep in South African society, although genocide has not begun.

   [36]Bury them alive!: White South Africans fear for their future as horrific farm attacks escalate, Chung F, 25 March 2017, accessed 5 February 2024.

   [37]>

   Genocide is described as the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group. Although the Tribunal is satisfied that there is a significant crime rate in South Africa, in particular murders, and there are examples of members of the white farming community being targeted for attacks of violent crimes including murder, the Tribunal is of the view that the country information falls short of solidifying any argument that there is specific genocide taking place against members of the white community.

3. At the review hearing, the applicants’ argued, and relied upon the evidence that complementary protection with respect to significant harm[38] primarily that ‘degrading treatment’ with respect to issues surrounding contamination of the B-BBEE’ employment issue, as was canvassed by the delegate in the decision record.[39] They also relied upon an argument that they fell within being members of a particular social group.

   [38]Migration Act 1958 (Cth), s 36A(2)(e) .

   [39]Delegate’s decision record, page 7.

4. A further claim raised by the applicants is that because of the B-BBEE policy of the South African government, the first and second applicants would not be able to find work because of that policy, and without work they risk being homeless if they were to return to South Africa.

5. The applicants said that in particular, the second applicant displayed a number of innate characteristics, that is, he was [an occupation] with established skills with respect to [Work sector 2] who has, along with his previous employer, a reputation for integrity. Regardless to the B-BEEE principles, those characteristics are and continue to be prejudicial to his employment and as a consequence of a factual pattern established within the various articles of country information they relied upon, a principle has been ruthlessly applied for the self-enrichment of the political elite connected to the African National Congress in South Africa. There has been a significant drop in the standard of education in South Africa and the opportunities for employment have significantly decreased because of the B-BBEE, and without employment they will not be able to subsist and risk being homeless if they return to South Africa.

6. The applicants further suggest that the country information they provided emphasises that the B-BEEE policy has been hijacked and repurposed by factions within the ruling African National Congress. They particularly drew the Tribunal’s attention the country information relating to the attempted murder of former Eskom Chief Executive who has since fled South Africa for his own safety.

7. The applicants further proposed that a foundation of their claims is based upon the contamination and corrosion through theft of the budget of the South African Police Service and the character of violent crime generated by the State. They said that the State Capture has been formulated and maintained by Government officials at the highest levels, as established by Country Information regarding contamination of the B-BBEE, “the extent of the inter-linkage between state and business providing conditions for emergence of a corrupt and nepotistic governance system”.

8. According to the official website of the South African Government’s Department of Trade,[40] Industry and Competition, South Africa’s first democratic government was elected in 1994, with a clear mandate to redress the inequalities of the past in every sphere: political, social and economic. Since then, the South African government has embarked on a comprehensive programme to provide a legislative framework for the transformation of South Africa’s economy. In 2003, the B-BBEE Strategy was published as a precursor to the B-BBEE Act. The fundamental objective of that legislation was to advance economic transformation and enhance the economic participation of black people in the South African economy. The Act also provides a legislative framework for the promotion of black economic empowerment, empowering the Minister of Trade and Industry to issue codes of good practice and publish transformation charters, and paving the way for the establishment of the B-BBEE Advisory Council.

   [40]

9. The website went on to explain that in order to fulfil the legal mandate as outlined in the Act, South Africa’s President, Mr Jacob Zuma, appointed members to the B-BBEE Advisory Council on 3 December 2009. The aims of the Advisory Council were to provide guidance and overall monitoring of the state of B-BBEE performance in the economy, with a view to making policy recommendations to address challenges in the implementation of this transformation policy. The B-BBEE Codes of Good Practice emerged in February 2007 as an implementation framework for B-BBEE policy and legislation, and after the implementation thereof, institutional mechanisms were established for the monitoring and evaluation of B-BBEE in the entire economy.

10. It was also explained on the website that the Minister of Trade and Industry announced the release of the revised B-BBEE Codes of Good Practice. Minister Davies says the refined Codes symbolise a new beginning in the re-orientation of the transformation policy to focus more on productive B-BBEE and the growth of black entrepreneurs through Enterprise and Supplier Development elements.

11. The applicants also claim that a foundation of their claims are referrable to ‘serious harm’[41] and are also based upon the contamination of relevant State structures referrable to the personal circumstances of the applicants, not just the B-BBEE. They went on to say that the corrosion through theft of the budget of the South African Police Service and this has led to the character of violent crime generated by the State. The applicants also said that state capture in South Africa has contributed to the risk of serious harm should they return to South Africa.  

    [41]Migration Act 1958 (Cth), s 5J(5).

12. The classical definition of state capture refers to the way formal procedures (such as laws and social norms) and government bureaucracy are manipulated by government officials, state-backed companies, private companies or private individuals, so as to influence state policies and laws in their favour. State capture seeks to influence the formation of laws, in order to protect and promote influential actors and their interests. In this way it differs from most other forms of corruption which instead seeks selective enforcement of already existing laws.[42]

    [42]Seize the State, Seize the Day, State Capture, Corruption, and Influence in Transition, Hellman J S, Jones G and Kaufmann D, September 2000, Policy Research Working Paper, World Bank,

13. Within South Africa, state capture relates to what has been described as a scandal erupting in 2016 in South Africa with the release of a damaging report on state capture by the outgoing Public Protector of South Africa who recommended the appointment of the Zondo Commission of Enquiry (‘Zondo Commission’) in January 2018 to investigate state capture by the South African President and his association with a well-known wealthy crime family who immigrated to South Africa in 1993.^. The 2022 Zondo Commission report focused on how appointments were made to various boards and expressed strong views on the system of political deployment. That South African President resigned and the new South African President responded by committing the Government to implement most of the Commission’s recommendations.[43]

    [43]How and Why Did State Capture and Massive Corruption Occur in South Africa, IMF Public Financial Management, Momoniat I, 10 April 2023, accessed 5 February 2024.

14. The applicants further propose that such contamination has acted as the catalyst for the corrupt recruitment of a so-called “cadre deployment”, and as such the first and second applicants being persons of white South African ethnicity with an honest working background with honest employers and contractors would experience prejudice in respect to employment opportunities. That prejudice is influenced by the corrupt cadre. The applicants claim that this may be viewed as a matter of concern that as of June 2023, the purported crime fighting unit known as the Hawks have concluded two successful cases as a result of the Zondo Commission recommendations which resulted in suspended sentences for high ranking officials. The country information relied upon by the applicants support that proposition, and in broad terms, it is reported that the South African parliament has not implemented the recommendations of the Zondo Commission Report and still does not have the ability to stop State Capture.

15. The applicants further said that there is a failure of the South African Government to provide state protection. In terms of violent crime in that country, they said that the violence they experienced is a consequence of the poverty and violence and their subjective fears are well founded because they fear systematic and discriminatory conduct, that is non-random, selective, pre-meditated and intentional acts. What they claim is unique in respect to that well-founded fear is that the State can be properly recognised as having an inability to provide effective protection.

16. As already discussed, the applicants say that in respect to state protection, there is significant corruption within the South African police organisation and because of this, essentially law enforcement is ineffective. When they reported to the police the crimes committed against them, no action was taken and the applicants were not given any counselling.

17. The Tribunal has very carefully considered all of the country information referenced above and accepts, and is so satisfied, that the country information supports the claims made by the applicants. 

18. The Tribunal particularly observes that when the delegate made an assessment of the applicants and their case, the delegate was critical of their previous representative and the manner and method of which material was provided to the Department. Reference was made within the delegate’s decision record that the applicants’ previous representative’s submissions and statements lacked academic rigour and the documents contained spelling and grammatical errors. Overall, the impression given by the delegate was that the presentation of the applicants’ case was substandard, in that there was evidence of a lack of academic rigour, including poor drafting and incorrect referencing of legislation.

19. The Tribunal recognises and accepts that from time to time there can be particular circumstances which arise in cases where at the time of the review hearing, the applicant or applicants have established and gathered much more information and evidence than that which was presented to the delegate before a primary decision is made. This is one of those such cases.

20. The applicants have provided the Tribunal with a substantial amount of new information, evidence and claims over and above that which was made available to the delegate. The Tribunal does not consider that this is detrimental to the applicants’ case as it is particularly noted by the Tribunal that they have sourced new and different representation to what they had at the time of their earlier engagement with the delegate.

21. The Tribunal has considered the applicants’ argument in respect to why the new claim was not raised with, or presented to the delegate prior to the primary decision being made, or at some other earlier occasion. The applicants hold no special qualifications or skills to adequately understand and interpret Australian legislation, policies and procedures and all that gave a strong indication that they were originally poorly represented and possibly ill-advised as to their position. With that in mind, the Tribunal is satisfied that the circumstances as already discussed lean heavily in favour of the applicants having a reasonable excuse why the claims and the evidence were not presented earlier.   

22. The applicants’ new evidence and claim in respect to the impact of the State Capture was not raised at an earlier time by them and they explained to the Tribunal that at the time of making the application, and being interviewed by the delegate, they remained ignorant of the relevance and the true extent of what they now understand to be state capture and how that has become easy to identify since their arrival in Australia, particularly from 2020. However, when their new claims and evidence were discussed with the Tribunal at the review hearing, as it is noted by the Tribunal, the information relating to the Zondo Commission and state capture did not exist at the time of the primary decision being made by the delegate, and it only became available after the delegate’s decision was made to refuse their application. 

23. The Act provides that because the applicants have raised a new claim and produced new evidence, there is an obligation for the Tribunal to draw an unfavourable inference as to the credibility of that claim and the evidence if the Tribunal is satisfied the applicants do not have a reasonable excuse why the claim was not raised, or the evidence was not presented earlier.[44] For the reasons just given, the Tribunal accepts that the applicants have a reasonable excuse for not raising the claims and the evidence at an earlier occasion, and therefore the Tribunal is satisfied (and so finds) that they have a reasonable excuse.

    [44]Migration Act 1958, s 423A.

24. The second applicant told the Tribunal that for approximately an eight year period from April 2008, he was employed in South Africa as a senior [occupation] for [Company 1] in Johannesburg. His employer was [Mr A]. [Company 1] was subcontracted to another contractor called [Company 2], and [Company 2] was directly contracted to [Service provider], which is the [service provider] to the whole of South Africa. He said that he worked on a number of government projects connected to [Service provider] and the technical nature of his duties related to the installation of infrastructure for [services] as well as [job tasks]. This infrastructure enabled the functioning of [Service provider], as it enabled [a Service function] with their network.

25. The second applicant described that he was experienced in [a field of work], and had travelled around South African and sometimes [Country] in regard to employment. Over that period of employment, he developed specialist knowledge and has advanced skills in his field of expertise. [People in his field] were used in planning, rollout and subsequent support and testing was also an important part of the development process and he was able to ensure quality control. He said that his co-workers were both black and white and he had a good working relationship with his work colleagues and supervisors. He went on to say that the knowledge he developed over that period do not translate to any other industry.

26. The second applicant described that over a significant period of time, he became suspicious of the collapse of services, mainly through what he said was the obvious theft of resources and the dismissal of honest contractors who were replaced by people of less skill. Those replacements were part of the B-BBEE policy. He had formed the view that with the introduction of the           B-BBEE, which he understands to be part of post-apartheid South Africa, it could be subject to corruption. He observed the deterioration of services caused by obviously unqualified workers engaged in government departments and NGOs as part of the B-BBEE. Eventually [Company 1] lost the government contracts. There was no explanation at the loss of contracts and he knew [Service provider] was losing the capacity to provide services, and the continued provision of [Service] could not be subject to a market downturn.

27. The second applicant went on to tell the Tribunal that the destruction of the [Service] supply within South Africa continues and all of this is a direct consequence of what he described as ‘the Government backed looting’ of [Service provider] through the corruption of the B-BBEE. The B-BBEE has been corrupted and it has become a front for self-enrichment of powerful members of Government, along with corrupt supporters whereby such groups are employed within B-BBEE as a cover and has little to do with fixing the problems of apartheid.

28. The second applicant went on to say that contractors and employees have continued to be arrested for fraud and he relied upon the opportunity to provide to the Tribunal the many recent examples within his country information to validate that claim. The Tribunal is satisfied (and accepts) that the country information does reflect what he claimed.

29. The second applicant went on to explain to the Tribunal that should he and his family have to return to South Africa, he would face permanent, structured, deliberate unemployment as [Service provider] and the contractors have been contaminated by continuing Government sponsored crime, which has recently been supported by a report by the former Director of [Service provider]. Again, he relied upon the country information as a support for that claim. He said that his basic right of employment in South Africa has or will be destroyed by the criminal activities instigated by the Government and leading to the effective collapse of the [Service] system, which is known as, or referred to in South Africa as [Terminology].

30. If the second applicant returned to South Africa, he claimed that although he has specialist skills as [an occupation] with long-term experience in [Work sector 2], he would be excluded from employment opportunities as corrupt people would be deliberately hired as part of the B-BBEE policy. In conclusion, he said that he was a direct victim of State sponsored organised crime and the facilities that could be provided to assist his daughter have been wilfully destroyed through theft of the health budget, and the explosion of the crime rate and the collapsing state security is a direct result of stealing from the police budget. Again, the Tribunal accepts that the country information the applicants provided supports those claims.

1. The second applicant faces disruption to his employment on a permanent basis because of the recognised contamination identified within the country information in respect to the B-BBEE process. When asked if that was the only place in South Africa that he could find employment, he told the Tribunal that if he had to return to South Africa he would have difficulty finding work because over the passage of time that he has been in Australia he has lost all contact with people who worked in the same field as him. When careful consideration is provided to the evidence relating to B-BBEE, the Tribunal accepts that his, and therefore his family’s ability to subsist is heavily impacted by the current policies of that country. The applicants told the Tribunal that because of those concerns and claims just identified, the mental health of both the first and second applicants has been impacted through symptoms associated with post traumatic stress disorder and associated anxiety disorders.  

   CONSIDERATION OF THE APPLICANTS’ CASE

2. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[45]

   [45]Migration Act 1958 (Cth), s 36(2).

3. The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because they claim that they will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicants to satisfy the Tribunal that all the statutory elements are made out.

4. In conducting a review hearing, the Tribunal undertakes an ‘inquisitorial’ process and has the discretion to seek out evidence it requires in order to reach a determination. However, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[46] After all, the obligation is upon the applicants to present their case, and to specify all the particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claims.

   [46]ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

5. The Tribunal does not have a responsibility or an obligation to specify or assist in specifying any particulars of the applicants’ claims, or to establish or assist in establishing their claims.[47] This is consistent with the established principle that proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.

   [47]Migration Act 1958 (Cth), s 5AAA.

6. It is for the applicants to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution if they were to return to South Africa. The Tribunal must then decide whether those claims are made out[48] and the Tribunal is not required to uncritically accept any or all of the allegations made by the applicants.[49]

   [48]Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14, [187]

   [49]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

7. Inevitability as with cases such as this, the Tribunal is required to undertake an assessment of the credibility of the applicants. Any assessment is an inherently difficult process and can be based on imperfect perceptions of truth.[50] When undertaking that assessment in this matter, the Tribunal has given significant regard to the determinations of the Courts[51] and notes further that it has been a well-established principle that any assessment of the reliability and credibility of evidence is not an exact science and should be undertaken carefully, thoughtfully, fairly and reasonably.[52] In that regard, the Courts have determined that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[53] A similar approach is taken in the Department’s Refugee Law Guidelines[54] and in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection,[55] which provides a useful guide for this Tribunal in regard to the principle of the benefit of the doubt.

   [50]Fox v Percy (2003) 214 CLR 118.

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

   [52]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, [23].

   [53]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816, [25] citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

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

   [55]United Nations High Commissioner for Refugees Handbook, re-issued February 2019, page 44, paragraphs 203 – 204, accessed 5 February 2024.

8. The Tribunal takes this opportunity to provide an assessment in respect to what is considered the credibility of the applicants and the veracity of their evidence. The Tribunal is satisfied that during the review hearing and the evidence given by the first and second applicants, they displayed a straight forward, direct and forthright demeanour which leads to the Tribunal to be satisfied as to their credibility. The Tribunal also accepts the veracity of their evidence. 

9. The applicants’ argued, and relied upon the evidence that complementary protection with respect to significant harm as per the provision of the Act, primarily that “degrading treatment” with respect to issues surrounding contamination of the B-BBEE employment issue, as was canvassed by the delegate in the decision record.[56] They also relied upon an argument that they fell within being members of a particular social group. The Tribunal accepts that the evidence supports that claim.

   [56]Delegate’s decision record, page 7.

10. The applicants said that in particular, the second applicant displayed a number of innate characteristics, that is, he was [an occupation] with established skills with respect to [Work sector 2] who has, along with his previous employer, a reputation for integrity. Regardless of the B-BEEE principles, those characteristics are and continue to be prejudicial to his employment and as a consequence of a factual pattern established within the various articles of country information they relied upon, a principle has been ruthlessly applied for the self-enrichment of the political elite connected to the African National Congress in South Africa. The applicants further suggest that the country information they provided emphasises that the B-BEEE policy has been hijacked and repurposed by factions within the ruling African National Congress. They particularly drew the Tribunal’s attention to the country information relating to the attempted murder of former Eskom Chief Executive who has since fled South Africa for his own safety.

11. The applicants further proposed that a foundation of their claims is based upon the contamination and corrosion through theft of the budget of the South African Police Service and the character of violent crime generated by the State. They said that the State Capture has been formulated and maintained by Government officials at the highest levels, as established by Country Information regarding contamination of the B-BBEE, “the extent of the inter-linkage between state and business providing conditions for emergence of a corrupt and nepotistic governance system”.

12. The term State Capture relates to what has been described as a scandal erupting in 2016 in South Africa with the release of a damaging report on state capture by the outgoing Public Protector of South Africa who recommended in January 2018 that the Zondo Commission be appointed to investigate state capture.[57]

    [57]How and Why Did State Capture and Massive Corruption Occur in South Africa, IMF Public Financial Management, Momoniat I, 10 April 2023, accessed 5 February 2024.

13. The applicants further propose that such contamination has acted as the catalyst for the corrupt recruitment of a so-called “cadre deployment”, and as such the first and second applicants being persons of white South African ethnicity with an honest working background with honest employers and contractors would experience prejudiced in respect to employment opportunities. That prejudice is influenced by the corrupt cadre. The applicant claim that this may be viewed as a matter of concern that as of June 2023, the purported crime fighting unit known as the Hawks have concluded two successful cases as a result of the Zondo Commission recommendations which resulted in suspended sentences for high ranking officials. The country information relied upon by the applicants support that proposition and in broad terms, it is reported that the South African parliament has not implemented the recommendations of the Zondo Commission Report and still does not have the ability to stop State Capture.

14. The applicants further said that there is a failure of the South African Government to provide state protection. In terms of violent crime in that country, they said that the violence they experienced is a consequence of the poverty and violence and their subjective fears are well founded because they fear systematic and discriminatory conduct, that is non-random, selective, pre-meditated and intentional acts. What they claim is unique in respect to that well-founded fear is that the State can be properly recognised as having an inability to provide effective protection. The applicant’s also told the Tribunal that for those reasons already explained, this threatens their capacity to subsist.  

15. The concept of subsistence symbolises the ability to continue to exist or remain in being[58] whereas the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being.[59] What must be decided when undertaking an assessment of the applicants’ case is a decision about the risk of future harm, not the risk of future communications.[60] The Courts have determined that the hardship to be experienced by an applicant must be such that it would actually threaten their capacity to subsist[61] and the reference to a denial of a person’s capacity to earn a livelihood is not limited to denial of legal capacity to earn a living.[62]      

    [58]SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143, [11].

    [59]SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725, [23].

    [60]VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1.

    [61]MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226, [13].

    [62]SZQZT v MIAC [2012] FMCA 640, [40].

16. While the examples of serious harm each involve a physical dimension, or threat to subsistence, the list is not exhaustive.[63] The High Court addressed subsistence in determining that the Convention protects persons from persecution, not discrimination. The infliction of harm for a Convention reason does not always involve persecution as much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. The High Court went on to find that similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[64]

    [63]Migration Act 1958 (Cth), s 5J(5).

    [64]Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, [55].

17. When assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities[65] and an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.[66] 

    [65]AGA16 v Minister for Immigration and Border Protection [2018] FCA 628, [35].

    [66]SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497, [153].

18. The impact and circumstances surrounding the application of a national policy may impact differently on different persons so that in one instance the impact may constitute persecution but in other cases the impact may not be so substantial as to amount to persecution.[67]

    [67]SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143, [21].

19. The Tribunal is satisfied that the applicant’s personal circumstances would be relevant to whether the forms of economic harm or denial to services they referred to threaten their capacity to subsist.

20. The Tribunal has also given serious consideration to whether the applicants could relocate to another part of South Africa for their own protection, the Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk of suffering significant harm.[68] The question that arises in this case is whether there is an area of the country where, objectively, there would not be a real risk that the applicant will suffer significant harm. That is, is the real risk of harm localised rather than nation-wide.[69] A relevant issue is also whether it would be reasonable to expect the applicants to relocate to another area where there is not a real risk of significant harm. What is reasonable depends on the particular circumstances of the applicants and the impact upon them relocating within South Africa.[70] Having considered all of the relevant circumstances relating to the applicants, the Tribunal is satisfied (and so finds) that relocation within South Africa is not an option available to them for the protection as the substantial risk of significant harm exists across the country.  

    [68]Migration Act 1958 (Cth), s 36(2B)(a).

    [69]MZYXS v MIAC [2013] FCA 614, [37].

    [70]SZATVv MIAC (2007) 233 CLR 18, [24].

21. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[71] the Tribunal has considered the alternative criterion.[72] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that she will suffer significant harm as it is defined in the Act.[73]

    [71]Migration Act 1958 (Cth), s 36(2)(a).

    [72]Migration Act 1958 (Cth), s 36(2)(aa).

    [73]Migration Act 1958 (Cth), s 36(2A).

22. Because of the findings already outlined in these Reasons, the Tribunal is satisfied that there is substantial grounds for believing that in the reasonably foreseeable future there is a real risk that the applicants would suffer significant harm for any of the reasons they claim if they returned to South Africa. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[74]

    [74]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

23. Having considered all of the applicants’ claims, individually and cumulatively, along with the evidence, the Tribunal accepts that if the applicants returned to South Africa now or in the reasonably foreseeable future, they would suffer significant harm. Therefore, for the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion as set out in section 36(2)(aa) of the Act.

    Wayne Pennell
    Senior Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958 (Cth)

    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.

    …