1931763 (Refugee)

This matter concerned an application for a protection visa by a person claiming to be stateless in South Africa. The applicant had previously visited Australia on multiple occasions, holding a South African passport, and last arrived in April 2014 on a passport that expired in 2014. The applicant lodged his protection visa application in January 2016, asserting that South African authorities had refused to renew his passport because they believed he should not hold citizenship, given his deceased father was a foreigner. He further claimed this refusal was due to xenophobia and that he feared arrest, physical or psychological harm, and victimisation by mobs upon return to South Africa.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or under section 36(2)(aa) as a person facing significant harm as a necessary and foreseeable consequence of removal to South Africa. The Tribunal was required to consider the applicant's claims regarding the refusal to renew his passport, his asserted statelessness, and the alleged risks of harm in South Africa, including the impact of xenophobia. This involved assessing the credibility of his claims and determining whether any feared harm constituted persecution or significant harm as defined by the Act.

The Tribunal considered the applicant's evidence, including his account of being told by a South African official that there was an "issue that can't be fixed" and that he should "stay wherever he is." While acknowledging the applicant's research into xenophobia in South Africa and his interpretation of the official's statement as a threat, the Tribunal was not satisfied that the applicant had established a well-founded fear of persecution or a real risk of significant harm. The Tribunal noted that the applicant's father had lived in South Africa his whole life, and his sister and children remained citizens there, which cast doubt on the claim of statelessness. Furthermore, the Tribunal found that the applicant had not demonstrated that he could not obtain protection from the South African authorities or that he could not reasonably relocate within South Africa to avoid any potential risk.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth). As a result, the applicant was also unable to satisfy the criteria under sections 36(2)(b) or (c) and was therefore ineligible for the visa.