1933315 (Refugee)

1933315 (Refugee) [2023] AATA 3600 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Gerrit Jansen Van Rensburg (MARN: 1175375)
CASE NUMBER:  1933315
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Peter Katsambanis
DATE:7 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 07 August 2023 at 12:06pm
CATCHWORDS
REFUGEE – Protection Visa –South Africa –religion – Christian – race – Afrikaner – white race – xenophobic violence – membership of the particular social group – a white female facing legislative discrimination – a woman or an elderly woman with little support in South Africa – effective protection measures are not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of South Africa, applied for the visa on 13 December 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: 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).
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.
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.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance that if the applicant returns to South Africa she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In her application form, the applicant stated that she was born on [date] in [City 1], Gauteng, South Africa. She stated that her birth surname was [name]. She stated that she was a widow as her husband was deceased. She had two adult daughters living in South Africa. An adult son and an adult daughter were living in Australia.
The applicant claimed that she could speak, read and write English and Afrikaans. She listed her ethnicity as Afrikaner and her religion as Christian.
The applicant claimed that she was in receipt of a pension in South Africa, which amounted to A$1373.64, but she did not specify a time period for this payment.
The applicant outlined her significant travel history, having spent time in [Country 1] in 2001 and from December 2002 to March 2003 and in [Country 2] from November 2006 to May 2007, from December 2007 to May 2008 and again in June 2008. She had first travelled to Australia in May 2008 on a visitor visa. She subsequently returned to Australia on visitor visas in August 2009, October 2011, August 2015 and September 2017. She last arrived in Australia on a valid visitor visa on [date] July 2018.
The applicant listed her primary address in South Africa for most of the period of time she had been travelling between there and Australia as being [address].
The applicant claimed that she had been employed as a [occupation] for the [Employer 1] from March 1989 to November 2002. She had previously been employed in various roles as [deleted]. From 1984 to 1989 she had been employed in various government departments before commencing her role at the [Employer 1] in 1989. She retired in December 2002 and was currently living off her pension.
The applicant stated that she had completed a [degree] in 1975 at [a university] and [another degree] in 1978 at the same university. In 1987 she completed a [degree] at [a] [University].
In her protection visa application form the applicant stated that she was an elderly lady who cannot fend for herself in South Africa anymore and referred to her attached statement. It was claimed that the applicant had been held at gunpoint in a church and the police seemed to stall when called for help, so they were of no use in the situation. Reference was made to home invasions, shootings and robberies in South Africa.
It was claimed in the application form that reports of incidents that occur to white people are not taken seriously, and nothing comes of such reports. It was stated that the applicant did not have the funds to relocate in South Africa and even if she could do so, it would not help as the law is the same everywhere and black people in South Africa are intent on taking over. It was claimed that the elderly are the first to go because they cannot defend themselves.
It was claimed that the applicant feared she would be killed, raped, abused or robbed in South Africa because she was old, white and female. It was claimed that the authorities have no regard for white folk and publicly announce a planned genocide of white people in South Africa. Relocation was not an option because the applicant was old and would not receive much money if her house was sold.
In a statement accompanying her application for a protection visa, the applicant expanded on her claims for protection. She claimed that she left South Africa because she wanted to visit her son before her current visa expired. She pointed out that she had been living with her son in Australia for six months nearly every year for a long time.
The applicant stated that in South Africa she lived with her daughter, [Ms A], who lost her job due to retrenchment. She claimed that it was difficult to find a job in South Africa and white jobseekers were further disadvantaged due to various affirmative action laws including BEE and AA.
The applicant claimed that her daughter’s husband was living in an institution due to dementia, and his pension was only sufficient to pay for his care, so her daughter was the main breadwinner for her family since 2009. The applicant claimed that she would use her pension to pay certain costs for her daughter and her family.
The applicant claimed that her daughter had also left South Africa hoping to restart her career in a country that would not discriminate against her.
The applicant stated that she could not live in South Africa on her own as her other two daughters were both divorced and were living with partners who did not have the responsibility of also supporting the applicant. She claimed that in the current aggressive climate towards Caucasians she could not live on her own.
The applicant claimed that if her daughter returned to South Africa, she would be unemployed with little hope of employment and because of proposed expropriation laws she may end up both unemployed and homeless. The applicant feared that she would end up homeless with her daughter.
The applicant claimed that she was in receipt of a government pension in South Africa but was uncertain for how long this pension would continue as some of the funds had been used to finance government investments.
The applicant claimed there were constant calls through social media and during public political campaigns to slaughter and wipe out white people, and there was encouragement for radicals to commit home invasions and to attack and rob white people. On this basis, the applicant feared that her daughter, the daughter’s children and the applicant may be murdered.
The applicant claimed that on 31 July 2009, during a prayer meeting at her church, two black men wearing balaclavas held her at gunpoint demanding all her valuables. She claimed that there was a group of two elderly men, three elderly ladies including the applicant, a couple in their 30s and the applicant’s daughter. She claimed that after one robber pressed his gun against the head of the young woman, the young woman’s husband tried to protect her, and a scuffle occurred. Shots were fired but they apparently only hit the carpet. The applicant’s daughter called the police, but the operator repeated the same questions over and over, which appeared to be stalling for time because one of the questions the operator kept asking was how to spell the name of the street.
The applicant claimed that the youngest son of one of her other daughters were shot during a home invasion. The bullet hit his forearm, shattering the bone before it entered his chest.
The applicant claimed that three ATMs in the area where she lived had been bombed in the past year and during the last of these events, the owner of the filling station that housed the ATM was shot in the stomach.
The applicant claimed that she had been robbed of her purse in the mall that she frequented to buy groceries. She claimed that her diamond pendant was also jerked from her neck when she stopped at a ‘robot’ (traffic lights) in Pretoria. She claimed that at the same mall, a policeman was shot and killed when he arrived there on his motorbike. She also claimed that two of her grandchildren’s teachers had lost their lives through senseless attacks. She stated that violence against innocent people, especially white people, was commonplace and happened around any corner, and hope of protection or justice was non-existent.
The applicant claimed that during the church incident, they tried to call police, but they were dispatched far too late to catch the culprits and they never heard from the police again. After the attack, they all spoke to a counsellor provided by the church. The applicant claimed that she was a Christian and could not stay away from the prayer meetings, but it was not safe for her to go to these meetings because they were held at night. She claimed that she did not report her purse being stolen in the mall or her pendant being jerked from her neck because nothing would have come from the complaint. She claimed that her daughter did report the shooting of her son, but nothing ever came of the complaint.
The applicant claimed that she did not have the funds to relocate to another part of South Africa to seek safety and added that there was no safe part of the country in South Africa so there was no place to relocate to even if they had the money to do so.
The applicant claimed that she feared that she would be harmed or mistreated if she returned to South Africa because white South Africans are generally bullied everywhere they go, whether it is a visit to the municipal offices or walking down the street. She claimed that people living in her neighbourhood had tried to force her grandsons to give them their bicycles and last year one of her black neighbours decided that he could take bricks from the wall separating their driveway from his, to create paving for his driveway. Even when he was told that the bricks did not belong to him, he just shrugged it off and carried on, knowing that the applicant’s daughter was unable to do anything about it and nobody was going to care. The applicant claimed that the black neighbours in the new low-cost housing complex behind her back wall were constantly throwing garbage over the wall into her yard, they were openly teasing her dogs and playing their music loud enough to make the windows in her house vibrate, regardless of the day or night. She claimed there was nobody she could complain to that would actually care.
The applicant claimed that the example set by the politicians in South Africa, including the former president, were not inducive of any respect for white citizens. She claimed that the former president even took part in the singing on the stage that farmers and Boers should be killed.
The applicant claimed that the authorities in South Africa would not protect her because the government openly denies any white targeted violence, intimidation and murder. She stated that hate speech against whites was always denied as being part of the black culture and it was never addressed. She claimed that the police turn a blind eye to threats and intimidation against white people and in many cases the culprits of intimidation, violence and theft are policemen.
The applicant claimed that she would not be able to relocate within South Africa because her daughter would need to sell her house and would not get a lot for it, which meant that they would have difficulty paying for a new place for herself, the applicant and her sons to live. She stated that the area in which her daughter was able to find a job and keep the kind of salary she receives would dictate where they live and added that there were no safe areas left in South Africa.
The applicant provided the Department with a number of identity documents including her South Africa passport, her driver’s licence, her birth certificate, her national ID card, a divorce certificate evidencing her divorce from [name] on 12 November 1963 and a marriage certificate evidencing her marriage to [name] on 17 December 1966.
The applicant also provided the Department with a document titled ‘The Four Pillars of South African White Protection Claim’. The document outlined the four pillars as follows:
·Blatant discrimination against white minorities
·Dehumanisation by the media and government and fellow citizens
·Public threats to be killed
·Crime wave against white people
This document provided examples of the claimed treatment in relation to each of the four pillars.
Interview with Department
The applicant was interviewed in relation to her claims for protection by a delegate from the Department on 20 August 2019.
The decision record notes that at this interview the applicant made a series of further claims of fearing harm if she returned to South Africa including on the basis that she was an Afrikaner and a Christian, that she once challenged a black South African woman who was letting people cut in front of her in the line and the woman responded that she should have brought her own chair, that once in South Africa she was taken to hospital and wasn’t given a quilt overnight until someone else asked for it because she is a white South African, white South African customers who are served by black South Africans are treated with disrespect and made to stand and wait, the justice system is unequal and black South Africans are able to get away with a lot more than white South Africans, and that while she was employed she had lost a job opportunity to a black South African woman because the department she worked for wanted a black woman in the position rather than a white woman.
The decision record indicates that, at the interview, the applicant claimed that the church robbery incident she had been involved in occurred in 2017. It is also noted that the applicant discussed carjackings and being robbed while stopped at traffic lights in South Africa, as well as general disrespect from black South Africans.

At the interview, the decision record indicates that the applicant stated she had not applied for protection when visiting [Country 1] or [Country 2], or on her previous visits to Australia, because things were not as bad as they were now in South Africa and because she was staying with her daughter in South Africa and providing for her daughter. She indicated that she had to go back because she would not leave her daughter in South Africa alone. Her daughter was now also applying for protection in Australia and if the daughter did not get protection, it would not help the applicant because she would have to go back with her daughter.
The decision record notes that the applicant stated at the interview that, apart from the daughter who was now claiming protection in Australia, she also had two other daughters. One of these daughters lived in Johannesburg and the other lived in Port Elizabeth. She claimed she could not reside with those daughters because they lived with their partners and neither of her daughters worked.
When asked about her fear of harm based on the fact that she was a woman in South Africa, the decision record notes that the applicant stated that every woman was a target, regardless of colour or race, and that two women living alone were targets for anything. She also stated that an elderly person was a target and she had even seen elderly people being targeted in Australia. She claimed that in South Africa it was similar and that you could not do much if you were an old woman.
Further Statement from Applicant
In a statement signed by the applicant and forwarded to the Department by the applicant’s representative on 10 September 2019, the applicant stated that she experienced anxiety symptoms related to past traumas whilst living and working in South Africa. As a result, she claimed that she was apprehensive about recounting her traumatic experiences and knew that she would invariably forget or confuse dates and places or even sequences of events.
In this statement the applicant highlighted that her claims for protection were based on:
·her white race
·her conservative Christian values
·her ethnicity as a member of the minority Afrikaner (Boer) community who are persecuted by an African majority
·as a white female facing legislative discrimination which would prohibit or seriously restrict her ability to secure gainful employment
·her gender as a female because women were beset and exposed to sexual violence and rape in South Africa and the dynamics that shape the power relations between men who target European women as easy prey
In this statement the applicant claimed that although every race in South Africa was exposed to crime, the barbaric nature of the home invasions, farm attacks and targeted assaults were often politically and racially motivated and were growing at disproportionate levels against whites and other minorities. She claimed that it was common practice for female drivers to never stop the traffic lights at night for fear of being hijacked, kidnapped, raped or murdered. She also made reference to anecdotal reports of attacks and threats made to women in South Africa. The applicant also made reference to discrimination suffered by white people, including her daughter and grandson, in employment in South Africa.
The applicant claimed that she felt safe in Australia and through contact with friends and extended family in South Africa she was regularly told that things had got even worse back home and it was just a matter of time before these people were killed. She also made reference to hate speech comments such as ‘kill the whites’ and ‘kill the Boer’ that are made by politicians in South Africa.
In her submission the applicant referred to a website operated [containing] a ‘wiki’ with country information relating to her claims. The Tribunal has not been able to access this information.
The applicant provided the Department with a letter dated 10 September 2019 from [a] Charity in Queensland supporting the applicant’s claims of protection and providing relevant country information in support of these claims. The Tribunal has read and considered this letter prior to making its decision in this matter.
The delegate refused to grant the applicant a protection visa on 13 November 2019.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 22 November 2019.
In an undated submission provided to the Tribunal on 9 September 2022, the applicant discussed how she had adapted to life in Australia, including involvement in her local church and supporting various charities. The applicant also provided further country information and arguments in support of her claims. The applicant also raised additional claims relating to fears of forced land expropriation without compensation in South Africa and fears relating to xenophobic wars between black people in South Africa and immigrants from other countries who were taking their jobs.
On 17 September 2022, the applicant provided the Tribunal with a lengthy document containing country information in support of her claims and providing arguments against the findings made in the delegate’s decision on 22 November 2019.
In this submission, the applicant stated that she was not arguing that the police would deny her protection because she was white, as the incompetence and corruption of the police affects the rest of the population as well. However, she believed that the corruption and inefficiency of the South African police force contributed to the high number of murders and rapes in South Africa. She further believed that she could be seriously harmed or even murdered because she was an elderly woman, and the police were incapable of protecting her. She feared that murderers were targeting older people, especially women, because they were easily overcome and could not really fight back. She claimed that the motivation for the police to be corrupt was mostly to enrich themselves and when they are discriminating against whites they are reacting to the President’s plan and statements about killing white people.
The applicant also claimed that she feared that the extreme corruption in South Africa may impact her government pension fund. She also stated that she was concerned that the court system had turned against white people and radical politicians encouraged black people to kill white people, especially farmers. The applicant was also concerned about people who sang songs like ‘Kill the Boer’, which she considered to be hate speech even though the courts in South Africa had found these songs not to be hate speech.
The applicant accepted that recent riots and unrest in South Africa had impacted on all ethnic groups, including black people who had their businesses and houses demolished and lost their lives in the riots, however she believed that this was one more example where people like herself would face harm if riots and looting broke out. She also feared being caught up in xenophobic violence between black people in South Africa and immigrants from other countries.
The applicant claimed that discrimination impacted her dignity and self-worth as a white Afrikaner and she feared that the heritage of Afrikaners in South Africa would disappear, including the removal of statues and monuments and the changing of town and street names. She also feared that the Afrikaner language may disappear from South Africa, despite being one of the official languages of South Africa.
The Tribunal was also provided with a letter of support for the applicant from [a] senior pastor at [a] [Church].
Tribunal Hearing
At the hearing the applicant confirmed her date of birth and stated that she had grown up and went to school in [City 1], where she was born. She then stated that she moved to Pretoria around 1985 or 1986.
The applicant claimed that her husband had died on 16 October 2004. She had four children, but her oldest daughter had died last year. She had one son who had been living in Australia since 2007 or 2008 and was an Australian citizen. Her second oldest daughter, [Ms B], lived in a suburb of Johannesburg. Her other daughter, [Ms A], was currently in Australia and was also applying for protection.
The applicant claimed that before she came to Australia, she was living in a house in a suburb of Pretoria which she shared with her daughter, [Ms A]. She claimed that the house was originally owned by her son, but he had sold it to the applicant and the applicant’s husband. They then sold it to [Ms A] and her husband, who was now deceased. The applicant returned to live in the house with [Ms A] after she had returned from a visit to [Country 2].
The applicant claimed that this property had been sold by her daughter, [Ms A], after they had both come to Australia. The applicant stated that she was not involved in any way in the sale of the property and had not signed any documents relating to the sale of this property. She also confirmed that she had not received any proceeds from the sale of the property. She initially stated she had no idea what the sale price was and then claimed that it was probably around R400,000.
The applicant was asked why her daughter would choose to sell a property she owned in South Africa when both the daughter and the applicant had no certainty that they would be granted an Australian visa. In response, the applicant stated that this was a good question. She added that her daughter was afraid that people might take over the property and become squatters because this was a common occurrence in South Africa.
The applicant then told the Tribunal that she used to work for the South African government in the period when the ANC first took over the government and she could not understand how the country had got itself into an economic mess with so much corruption. She claimed that the first ANC Minister for Finance was extremely good but after he had departed, others had allowed the economy to slide. She added that the current president had recently accepted that corruption was rife in South Africa.
The applicant stated that she retired in 2002 when she turned [age] and qualified for her pension. She added that she would have stayed longer if she had been given the [position]’s post but stated that she was considered ‘too white’ for this role. The applicant confirmed that prior to her retirement she was a [position] of the [Employer 1] in South Africa and stated that this was a very senior role.
The applicant indicated that she was still in receipt of a pension from South Africa which she claimed was around R23,400 per month and stated that this pension was indexed annually every April. She claimed that the amount she received was a combination of her own pension and a part pension that she was entitled to after the death of her husband. She then stated that she may receive around R25,000 per month but was not exactly sure. She added that she still paid some expenses in South Africa including car insurance for a motor vehicle she had given to her grandson and other bills. She would also transfer money to Australia to fund her living costs whilst she was here.
The applicant was asked to outline to the Tribunal what problems she had experienced in South Africa in the past. In response, the applicant stated that she did not feel that she was free to come and go and as an elderly woman she would not go out at night. She claimed it was always a danger to go out into the streets even during the day, but she was a positive person, and she did what she wanted to do.
The applicant stated that she had once been robbed of her purse in a shopping mall. The applicant also claimed that at church one night she had a revolver held to her head but luckily, she was not harmed in this incident. She added that her grandson had been shot in the arm before his final exams and many other little incidents had occurred in South Africa.
The applicant was asked when the purse snatching incident in the mall occurred. She responded that she could not remember the date, but she was shopping, and she was cornered by two men and had her purse stolen from her bag. She added that she could not recall when this occurred but believed it was around 2017 or 2018. When asked if she could recall between which period of travel outside South Africa this incident may have occurred, the applicant stated that it was hard for her because she travelled to Australia a lot. She had also travelled to [Country 2] with her son when he was living there and had explored the option of obtaining a residency permit in [Country 2] as part of her son’s family. However, she was told that she did not qualify for residency in [Country 2] because she had children living in South Africa. She then returned to South Africa to live with [Ms A] and the two of them helped each other out.
The applicant stated that Australia was great because in 2015 she received a visa that was valid for three years which allowed her to stay in Australia for a year at a time if she wanted to. She stated that she returned to Australia in 2018 before that visa expired and had been here since.
The applicant was asked when the incident at the church where she was held at gunpoint occurred. The applicant responded that she was not good with dates and sometimes things feel like they happened last week. She added that this incident occurred a few months before she came to Australia in 2018. She claimed that her daughter, [Ms A], was also with her during this incident. The applicant claimed that the incident was terrifying for her because one of the young men from her parish reacted badly to the gunmen, a scuffle occurred, and shots were fired. The applicant again stated that this incident happened in 2018 a couple of months before she came to Australia for the last time. She also confirmed that this incident was the only time she had ever been held at gunpoint in a church in South Africa.
When asked if she had experienced any other specific incidents of harm in the past in South Africa, the applicant stated that on one occasion a lady followed her home shouting and screaming at her. However, the applicant told this lady that she would open the gate and unleash the applicant’s dog at her. The lady then went back to her car and disappeared.
The applicant added that she had no idea why she had been shunned in South Africa. She stated that she had never suffered any physical harm but so many farmers had been murdered and people were always singing songs like ‘Kill the Boer’, which upset her because she was a Boer. The applicant repeated her claim that she had never had anybody hurt her, but she couldn’t guarantee that she would not be harmed if she returned to South Africa. She added that the police were no protection.
The applicant confirmed that she had not reported the purse snatching incident at the mall to the police. When asked why she had not done so, the applicant responded that she had never had much luck with the police. She claimed that when the incident at the church happened the police only attended the scene long after the perpetrators had gone. She added that there had been a couple of other incidents that had been reported but nothing came of them. She then claimed that one day someone was breaking the wall at her property to steal the bricks, but she could not say anything because she and her daughter were two women living alone.
The applicant confirmed that she had travelled extensively to [Country 1], [Country 2] and Australia over many years. She claimed that her son used to live in Melbourne but had now settled in Perth and added that every time she travelled it was to visit her son who had also lived in [Country 1] and [Country 2].
The applicant confirmed that she had stayed in Australia from [date] September 2017 to [date] February 2018 and then returned to South Africa. She stated that this was the last time she had returned to South Africa. When asked why she chose to go back to South Africa in February 2018, the applicant stated that it was because of her daughter, [Ms A], as they were supporting one another. When asked if there was a particular reason why she returned at that time even though her Australian visa had not expired, the applicant responded that she was a citizen of South Africa, so she went back when ‘my visiting was done’.
The applicant confirmed that she returned to Australia in July 2018 in order to ensure she could be in Australia before her three-year visa expired. She also added that she needed to be in Australia before she turned [age] but provided no details about why this was the case.
The applicant was asked why she chose to apply for a protection visa in Australia. She responded that things were pretty bad in South Africa and added that her daughter was in Australia at the time and the applicant did not know what she would do if she went back to South Africa without her daughter. She stated that she could not live with her other daughters. One of her other daughters was now deceased. Her daughter, [Ms B], was living in South Africa and this daughter’s partner was a very affluent man [who] had a great business and the family lived well.
The applicant was asked if she feared any harm in South Africa if her daughter, [Ms A], returned there with her. She responded that she did not know what would happen to them and did not know where she would live. She stated that she did not want to live in a squatters’ camp and added that her son would like her to stay here.
It was pointed out to the applicant that she was in receipt of a significant pension from South Africa which would indicate that she could afford to rent a property and live in South Africa if she returned there. The applicant responded that she could do so on her own, but she may not be able to afford the cost of medical aid or hospitals. When it was pointed out to the applicant that South Africa had public hospitals and also had a private health insurance system, the applicant stated that the private system was expensive and the state hospitals in South Africa were very bad.
The applicant was asked to outline what she feared may happen to her if she returned to South Africa now or in the reasonably foreseeable future. She responded that she feared that people were being murdered. She added that it was not only white people who were being murdered but there were murders left, right and centre. She stated that was so much corruption in South Africa and money was even being stolen from hospitals. She feared that as an elderly white woman she would be targeted and added that in South Africa they say things like ‘Kill the whites’ and ‘Kill the Boers’. She also stated that she did not know what was wrong with people in South Africa. She claimed that her husband had been a [occupation] who was [working] at the time when Winnie Mandela and her soccer team would ‘necklace’ people.
The applicant stated that farmers were being tortured and then murdered in South Africa. She claimed that she knew a family that had been attacked and robbed in their own home, which was in a city and not a farm. She also stated that some of the articles she had submitted to the Tribunal showed elderly women in old age homes were being raped and murdered, which terrified her. She claimed that the government did not offer any protection and the police were just as corrupt as everybody else. She claimed the police lie in court to get farmers imprisoned, so they would not care about her. She added that she was dispensable because she was old.
The applicant was asked who she particularly feared harm from. She responded that she feared harm from murderers. She added that she feared black people who had no empathy for anybody. She claimed some people use words, but others don’t use words. She stated that these people want what you have, and they would target her because she was old and was an easy target as she could not fight back. She stated that she was a white woman, and they are trying to remove whiteness from South Africa.

The applicant was asked why she feared she would be targeted for harm. She responded that she did not have much they could take but she did have a computer and a printer. She added that maybe some of these people just like killing and have bloodlust.
The applicant confirmed that she had never been a farmer in South Africa and was not making any claims on the basis of being a farmer.
The Tribunal pointed out to the applicant that she had been in Australia for almost 6 months between September 2017 and February 2018 but chose to return to South Africa without making any claims for protection. Her choice to return to South Africa may indicate that she did not have any fear of harm about returning to South Africa. In response, the applicant stated that she returned to South Africa because she had three daughters there at the time. She was living with her daughter, [Ms A], and was helping her with household expenses, with the cost of care for the daughter’s husband (who was still alive at the time) and with chores around the house. She claimed that she never went out at night, and they had bars around the house. She stated that crime level was so high in South Africa because you always have people who want what you have got. She claimed that she and her daughter would care for one another not just financially but with all household duties. The applicant added that in Australia she primarily lives with her daughter but sometimes she also likes to stay with her son who lives in a different suburb.
The Tribunal pointed out to the applicant that the fact that she chose to wait for more than five months after she had arrived in Australia in July 2019 before she applied for a protection visa may indicate that she only applied for protection in order to obtain an Australian visa, rather than because she had genuine fears about returning to South Africa. The applicant claimed that she did not originally know about a protection visa, and it is only after you hear things that you realise you are eligible to apply. She claimed that her representative was also of South African background, and he had been recommended to her.
It was pointed out to the applicant that in her evidence at the hearing she had stated that the incident at her church where she was held at gunpoint had occurred around 2018, just before the applicant came to Australia for the last time. The applicant responded that she was not sure when it was because she did not write down dates in a diary but confirmed that it was before she came to Australia for the last time. When asked if this would place the incident sometime between February 2018 and July 2018, the applicant stated that she was not certain, and she could not really remember.
The Tribunal stated to the applicant that in the statement she had provided to the Tribunal that accompanied her application for protection she had claimed that this incident had occurred on 31 July 2009, which was significantly different to the claims she had made at the hearing. In response, the applicant appeared surprised that this date had been provided. She stated that days were like hours these days for her and maybe she could remember things in the past that she could not remember now. She again expressed surprise at the 2009 date and added that she could not rely on her memory.
When asked if she had any medical diagnosis relating to the unreliability of her memory or any other medical issues, the applicant stated that she did not. She added that her daughter had assisted her with the submission and claimed that although she could remember lots of things and all of the incidents that had occurred to her, she could not recall the dates.
The Tribunal discussed country information with the applicant relating to crime in South Africa which indicated that the crime rate was very high, but criminal behaviour appeared to be opportunistic rather than targeted and there was no evidence in this country information that white people or older white people were targeted disproportionately in relation to crime. The Tribunal also stated that there was some evidence to indicate that if there was any racial element to the crime statistics, it would suggest that black people were more likely to be victims of crime than white people in South Africa. In response the applicant stated that there were 49 million black people in South Africa and only 7 million white people which would impact on the statistics.

100. The Tribunal pointed out to the applicant that she had been a senior officer in the [Employer 1] and would be aware that such statistics distinguished the percentages between each racial group. In response, the applicant agreed with the Tribunal that enrichment of the perpetrators was a major motivating factor in crime. She stated that there was no point in stealing from black people if they did not have any possessions. She added that she did not know why they had targeted her friends who were two old people and had suffered terrible injuries. The man died from his wounds and the woman was still a wreck.
101. The Tribunal discussed country information with the applicant that confirmed claims that crime and violence against women were high in South Africa but there was no evidence in such country information to suggest that white women or elderly white women were specifically or disproportionately targeted or affected by such crime and violence. In fact, the country information would suggest that crime appears to be random, opportunistic and motivated by motives such as personal enrichment rather than being targeted at any particular group of people in society. In response, the applicant agreed this was true but added that the exception was in circumstances where people were swept up, got together and did destructive things. She claimed that people would sing hate songs and then go on a rampage. She added that you should not get in their way when they are doing this.
102. The Tribunal discussed country information with the applicant that highlighted that songs or chants such as ‘kill the whites’ or ‘kill the Boer’ were clearly insulting but there was no evidence in the country information to indicate that such verbal insults had escalated to any form of physical violence, and it was also pointed out to the applicant that verbal insults do not constitute harm for the purposes of protection. In response, the applicant stated that there was one incident where they did it. She claimed that a court had recently ruled that these chants were not hate speech and then people went on a spree of killing farmers.
103. The applicant agreed that she was not a farmer but stated that she could get in the way if she was in the wrong place at the wrong time. She added that black people in South Africa had now become xenophobic against recent immigrants and were killing other black people as well.
104. The Tribunal also discussed country information relating to Christianity and freedom of religion in South Africa. The applicant stated that religion had never been a problem apart from some hate speech against ministers. She agreed that there was no religious persecution against Christians in South Africa and added that she enjoyed working with black people.
105. The Tribunal discussed country information with the applicant which indicated that although South African police may lack capacity and resources, and despite some corruption within the police force, some of this information indicated that there was an effective police presence in South Africa that responded to criminal activity and there was also an effective justice system in South Africa that dealt with criminal matters. Some of the country information provided by the applicant to the Tribunal highlighted that the police regularly apprehend perpetrators of crime in South Africa and bring them to justice. It was also pointed out to the applicant that there was no evidence in this country information that the police or the justice system discriminated against white people when dealing with crime or that they denied protection to white people.
106. The applicant responded that they would never say that they denied protection to white people, but they just don’t do anything. She claimed that people do not report things to the police because there is no use. She claimed that the police never do anything and added that maybe they think some crimes are not severe enough to respond to. She claimed that she subscribed to an online newspaper but reading it upsets her. She added that they used to report the names of the perpetrators but now they don’t, and they seem to concentrate on reporting only the crimes that the police have solved. She stated that ‘the country has gone to the dogs’ and added that they want to break and destroy whatever belongs to white people, including statues and war memorials.
107. The Tribunal discussed with the applicant country information from the OECD and other sources that tended to indicate that the pension the applicant received in South Africa was significantly higher than the average household disposable income in South Africa. In addition, similar country information indicated that housing costs in South Africa were around 18% of household income, which was slightly lower than the OECD average. On the basis of the applicant’s pension and this country information it was stated to the applicant that it would appear that she would be able to return to South Africa, rent a property and be able to afford to live a comfortable life. The applicant stated she could not do this with the way prices were going up, including things like water and electricity. She claimed that water shedding was also being threatened in South Africa. She stated that if she was on her own, she could find a house, but it would be expensive.
108. The applicant was asked if she had anything else she wanted to state to the Tribunal. In response, the applicant said that when they base providing help on BEE laws in South Africa it simply ruins the country. She stated that they now want engineers to come back to sort out the electricity crisis, but they should not have got rid of them in the first place because it was simply discrimination against white people. She claimed that businesses in South Africa were at risk because they cannot appoint the person they want to appoint. However, the applicant confirmed she would not be seeking employment if she returned to South Africa as she was in receipt of a pension and added that she did not believe she would be considered employable due to her age.
FINDINGS AND REASONS
109. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
110. There is no issue as to identity. The applicant arrived in Australia on a valid South African passport and as the holder of a valid Australian visitor visa. The Tribunal therefore accepts that the applicant is a national of South Africa and has assessed her claims accordingly.
111. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
112. The applicant is an [age]-year-old widowed female who previously worked as a senior executive at the [Employer 1] and receives a regular South African pension. Prior to her last arrival in Australia and her application for protection, she was living with her daughter in South Africa but spending significant time living with her son whilst he was living and working in [Country 1], [Country 2] and Australia. The daughter who used to live with the applicant in South Africa is currently also in Australia and has filed a separate application for protection. The applicant has one other living daughter, who still lives in South Africa. Her son lives in Australia.
113. The applicant has claimed that whilst living in South Africa in the past she has been subjected to some harm including having her purse stolen at a shopping mall, having her diamond pendant snatched from her neck by robbers when she stopped at traffic lights and an incident where shots were fired after gunmen allegedly came into her church and took her and others hostage.
114. However, in relation to the incident with gunmen at her church, the applicant has provided inconsistent evidence over time as to when this incident occurred. In her statement accompanying her application for protection she clearly stated that this incident took place on 31 July 2009. At the interview with the delegate, the decision record notes that she claimed this incident took place in or around 2017. At the Tribunal hearing, the applicant clearly stated that this incident happened in 2018 during her last visit to South Africa and before her last return to Australia, which would place the incident as having occurred sometime February 2018 and July 2018.
115. The Tribunal accepts that the applicant is an elderly lady who may have trouble remembering some dates and the sequence of some events. It also accepts the submission made by the applicant to the Department that apprehension about her past traumatic experiences may make her forget or confuse some details including dates, places or the sequence of events. However, as discussed with the applicant at the hearing, she has never had any medical diagnosis about the unreliability of her memory or any other related issues. Accordingly, given no evidence of any such medical impediment, the Tribunal would expect that the applicant would have some consistent recollection of when a particular serious and traumatic event occurred even if she could not recall specific dates or specific sequences of events. Given the applicant’s own evidence places this incident at the church either 8 years or 9 years apart in each of the three separate versions provided over time, the Tribunal is not satisfied that this incident at the applicant’s church ever occurred as claimed.
116. In relation to the applicant’s claims that she had her purse stolen at a shopping mall and had her diamond pendant snatched from her neck when stopped at traffic lights, the Tribunal has considered the applicant’s consistent evidence over time in relation to these claims.
117. In addition, the Tribunal has considered country information that highlights the extremely high crime rate that exists in South Africa. At the release of crime statistics for South Africa in February 2023, the South African Police Minister highlighted the significant problem that the country faces in dealing with unacceptably high crime rates by stating[1]:
While the crime figures we are releasing today don’t paint an overall positive picture of the crime situation in our country. They do, however, show that police are pushing back on criminality, through visible policing and disruptive operations.
[1] South African Government, Minister Bheki Cele: Quarter 3 Crime Statistics, Minister Bheki Cele: Quarter 3 Crime Statistics | South African Government ( accessed 4 August 2023.

118. Recent official crime statistics published by the South Africa Police Service[2], for the quarter of October 2022 to December 2022, show that the incidence of many types of crimes substantially increased from the level of crime in the same quarter of 2021. For example, murders increased by 10.1%, sexual offences by 9.6%, rape by 9.8%, common robbery by 21.2% and robbery with aggravating circumstances by 10.8%[3]. When aggravated robberies were broken down by sub-categories, carjacking increased by 2.8%, robbery at residential premises increased by 8.6% whilst robbery at non-residential premises decreased by 3%[4].
[2] South African Police Service, Police Recorded Crime Statistics October 2022 to December 2022, Long version 2022-2023 - 3rd Quarter (October 2022 to December 2022) (saps.gov.za), accessed 4 August 2023.
[3] Ibid, p 3, accessed 4 August 2023.
[4] South African Police Service, Police Recorded Crime Statistics October 2022 to December 2022, Long version 2022-2023 - 3rd Quarter (October 2022 to December 2022) (saps.gov.za), p 3, accessed 4 August 2023.
119. The same statistics show that the incidence of crime when measured by a ratio per 100,000 of the population is also extremely high. Murder is measured at 12.4 per 100,000, rape at 20.3 per 100,000, assault with an intent to inflict grievous bodily harm is at 82.8 per 100,000, common assault is at 86.4 per 100,000 and common robbery is at 20.9 per 100,000[5].
[5] Ibid, accessed 4 August 2023.
120. Given the very high and somewhat alarming crime rate in South Africa and given the applicant’s consistent evidence over time about the theft of her purse and her diamond pendant, the Tribunal accepts that in the past in South Africa the applicant did have her purse stolen at a shopping mall and that she did have her diamond necklace stolen whilst stopped at traffic lights as claimed.
121. However, there is no evidence before the Tribunal that this harm experienced in the past in South Africa by the applicant was motivated by any reasons relating to the applicant’s race, religion, nationality, membership of a particular social group or political opinion and there is no evidence that the applicant was expressly targeted personally by the perpetrators. Instead, as discussed at the hearing, these crimes appear to have been opportunistic in nature, motivated by the desire of the perpetrators to enrich themselves and committed in the context of the high levels of crime generally prevalent in South African society. Therefore, on the evidence before it, the Tribunal is not satisfied that the harm suffered by the applicant in the past in South Africa was for reasons of her applicant’s race, religion, nationality, membership of a particular social group or political opinion.
122. The applicant has claimed over time that if she returns to South Africa now or in the reasonably foreseeable future she fears that she would face serious harm because of her ethnicity or race as a white South African or a white Afrikaans South African, because of her religion as a Christian, because she would be denied employment opportunities due to positive discrimination laws such as BEE that favour black South Africans and because she is a woman or an elderly woman with little support in South Africa who would be exposed to the risk of assault, sexual violence and rape due to her vulnerability and the prevailing high incidence of sexual violence and rape in the country.
123. At the hearing the applicant clarified that she had never experienced any issues in the past in South Africa because of her Christian religion. She stated that religion was not a problem in South Africa and agreed that there was no religious persecution of Christians in South Africa. Accordingly, based on this evidence from the applicant at the hearing, the Tribunal accepts that the applicant has withdrawn any claims that she fears serious harm on return to South Africa because of her Christian religion.
124. At the hearing the applicant also clarified that she was retired and did not have any intention of returning to paid employment. Accordingly, based on this evidence from the applicant at the hearing, the Tribunal accepts that the applicant has withdrawn any claims that she fears serious harm on return to South African because she may be denied employment opportunities through the application of positive discrimination laws such as BEE.
125. In relation to the claims based on the applicant’s ethnicity and race as a white South African or as a white Afrikaans South African (which the Tribunal considers to be interrelated and overlapping claims), the applicant fears that she would be harmed by black South Africans who would commit crimes against her, including property crimes and assault-type crimes, because of enmity between black people and white people in South Africa.

126. The Tribunal accepts that the applicant is a white South African of Afrikaans descent and also accepts that the applicant would be readily identifiable as such within South African society.
127. In this context, the Tribunal is cognisant of the complex and difficult ongoing history of race relations in South Africa from the apartheid era through to the return to majority democratic rule and through to the present day.
128. In a recent report on South Africa, the independent foundation, Bertelsmann Stiftung described the deeply ingrained divisions in South African society as follows[6]:
South African society remains deeply divided along lines of race, class and gender due to its historical legacies of structural inequality and the failures of post-apartheid governance to diminish these inequalities.
[6] 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung, 23 February 2022, BTI 2022 South Africa Country Report: BTI 2022 (bti-project.org), accessed 4 August 2023.

129. The latest report on human rights from the United States Department of State outlines some of these ongoing racial tensions within South African society as follows:
Systemic Racial or Ethnic Violence or Discrimination
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. Authorities enforced antidiscrimination provisions in some cases. In November a woman from Gauteng Province was arrested and charged with crimen injuria, an act that injures the dignity of another person, after her racist rants were widely viewed on-line. She was due to appear in court in March 2023.
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.[7]
[7] United States Department of State, 2022 Country Reports on Human Rights Practices: South Africa, p 22.

130. Having considered a variety of sources, the Immigration and Refugee Board of Canada (IRBC) made the following observations in September 2018:
Sources indicate that white South Africans do not face any specific challenges or threats in society, "for example, in terms of access to employment, education, health or housing". In correspondence with the Research Directorate, the Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, explained that:
‘In terms of accessing public health care and public education, white South Africans face the same issues that black South Africans do. However, black South Africans are burdened more because of their access to resources. For example, black South Africans do not have the same resources as white South Africans to buy private health care.

In correspondence with the Research Directorate, a representative from AfriForum, a non-governmental "Afrikaner interest organisation and civil rights watchdog" that aims to "protec[t] the rights of minorities" (AfriForum n.d.), stated that there is "[n]o legislation…that specifically discriminates against white South Africans" in terms of health care (AfriForum 7 Sept. 2018).[8]
[8] IRBC Response to Information Request ZAF106171.E, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 21 September 2018, accessed 4 August 2023.

131. The same IRBC report made the following additional commentary:
"[t]he South African government is explicitly non-racial" (Campbell [John Campbell, Ralph Bunche Senior Fellow for Africa Policy Studies, Council on Foreign Relations], 30 Aug. 2018). The Vice-Chancellor similarly stated that "[p]ublic services and policies apply to many and to all" (Vice-Chancellor 4 Sept. 2018). The AfriForum representative indicated, however, that Afrikaans language rights and education are "under attack," as language policies are being changed, for example, at universities, to exclude the use of Afrikaans, adding that "efforts to protect the language rights of students is … vilified as … efforts to protect 'white privilege'" (AfriForum 7 Sept. 2018).[9]
[9] Ibid, 21 September 2018, accessed 4 August 2023.

132. In relation to crime, there is a general acceptance (and perhaps resignation) that South Africa is a high-crime nation.
133. The Tribunal has already outlined above the comments made about high crime rates by the South African Police Minister in February 2023 and the high and increasing crime rate identified in the official crime statistics published by the South Africa Police Service for the quarter of October 2022 to December 2022. These statistics showed that there were 12,419 rapes, 2,154 sexual assaults and 763 attempted sexual offences in this quarter alone.[10].
[10] South African Police Service, Police Recorded Crime Statistics October 2022 to December 2022, Long version 2022-2023 - 3rd Quarter (October 2022 to December 2022) (saps.gov.za), p 3, accessed 4 August 2023.
134. A survey dealing with victims of crime conducted by Statistics South Africa for the 2018/19 year revealed that 5.77% of the South African households had experienced housebreaking or burglary over the previous 12 months where there had been no contact between the perpetrator and the victim and a further 1.09% of the population had experienced a home robbery over the same period where there had been contact between the perpetrator and the victim. This survey found that 5.58% of black African households, 7.28% of white households, 4.74% of coloured households and 9.09% of Indian/Asian households had experienced a housebreaking or burglary over the previous 12-month period[11].
[11] Statistics South Africa, Governance, Public Safety and Justice Survey: 2018/19, Statistical release (statssa.gov.za), pp 20-21, accessed 4 August 2023.
135. This survey found that the number of people who had reported sexual offences as occurring to them during the past 5 years had recorded a fall over a five-year period from 127,935 in 2014/15 to 97,938 in 2018/19.[12] Survey participants reported 14,885 sexual assaults in the twelve-month period during 2018/19.[13] However, the same report suggests that over the same period the number of sexual offences reported to police remained relatively stable with 53,617 such reports in 2014/15 and 52,420 reports in 2018/19, with an increase between 2017/18 (50,108) and 2018/19[14].
[12] Ibid, p 16, accessed 4 August 2023.
[13] Ibid, p 20, accessed 4 August 2023.
[14] Statistics South Africa, Governance, Public Safety and Justice Survey: 2018/19, Statistical release (statssa.gov.za), p 53, accessed 4 August 2023.
136. The survey report provides the following commentary on the discrepancy between these figures and also highlights the issue of underreporting of sexual offences:
GPSJS uses a narrower definition of sexual offences limited to intentional sexual violation of individuals through grabbing, touching, rape or sexual assault. The SAPS definition of sexual offences is broader and includes attempted sexual offences. Therefore, statistics provided by these two organisations do not measure the same thing. Given the sensitive nature of this crime and the context of household-based interviews, sexual offences are thought to be underreported in the GPSJS, and it is likely that most of those individuals who have already reported sexual offences to the police will proceed to also report it to the survey officer who is collecting the data.[15]
[15] Ibid, p 52, accessed 4 August 2023.

137. Although providing a breakdown of many other types of crimes by age group and by racial group, the survey does not provide any such breakdown for sexual offences. However, the statistics referred to above in relation housebreaking or burglary indicate that there are not marked discrepancies between racial or ethnic groups in relation to the propensity to be a victim of such crimes.
138. The previously discussed IRBC report referenced sources that commented that while state resources to deal with crime were ‘not as efficient as they need to be’, the impact of this lack of resources affected all South Africans regardless of race.[16]
[16] IRBC Response to Information Request ZAF106171.E, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 21 September 2018, accessed 4 August 2023.
139. The Tribunal accepts that the applicant may hold a subjective fear that she may be targeted for specific crimes, including rape or sexual assault, or other types of harm because of her ethnicity and race as a white South African or as a white Afrikaans South African. This is especially so given the high rates of crime in the country, including high rates of rape and sexual assault.
140. The Tribunal also accepts that the complex long-standing issue of race relations in South African society has yet to be resolved which creates ongoing tensions between various racial groups. Available country information highlights that some of these tensions are exacerbated by ongoing inequality within South African society.
141. However, an objective analysis of the available country information indicates that despite ongoing tensions on racial grounds within South African society, white South Africans are not directly targeted for harm either by the authorities or members of the public because of their ethnicity. This country information instead highlights that the risk of being harmed by criminal elements for both crimes against person and crimes against property is high for all citizens in the nation irrespective of race or ethnicity due to the high rates of crime across South Africa. From the wide range of country information accessed and considered by the Tribunal, these crimes appear to be opportunistic in nature rather than targeted at any particular group or individual. Further, in relation to property crimes, they appear to be motivated by the desire of the criminals for personal enrichment rather than any ethnic or racial element. In addition, an analysis of the crime statistics referred to above shows that the incidence of crimes committed against different ethnic or racial groups is not significantly different across black, white, coloured and Asian/Indian racial cohorts.
142. Accordingly, on the evidence before it, the Tribunal finds that if the applicant returned to South Africa now or in the reasonably foreseeable future there is no real chance that she would suffer any harm because of her ethnicity or race as either a white South African or as a white Afrikaans South African or both.
143. In relation to the applicant’s claims that she fears harm on return to South Africa because she is a single woman with little support in South Africa or a single elderly woman with little support in South Africa who would be exposed to the risk of assault, sexual violence and rape due to her vulnerability and the prevailing high incidence of sexual violence and rape in the country, the Tribunal must first consider whether women or elderly women would constitute a particular social group as defined in section 5L of the Act. Section 5L requires that to be a member of a particular social group a person must have, or be perceived to have, a characteristic that is shared by each member of the group and that the characteristic must be an innate or immutable characteristic or so fundamental to the member’s identity or conscience that she should not be forced to renounce it or that the characteristic distinguishes the group from society. In addition, the characteristic must not be the fear of persecution itself.
144. In this case, the applicant is a woman and therefore shares that innate characteristic with other members of that group. The characteristic is not the fear of persecution itself. The applicant is also a widowed, elderly [age]-year-old woman who has little support in South Africa, given that her only remaining relatives in that country are one daughter and the daughter’s family and given the applicant’s evidence at the hearing that her daughter’s husband may not be willing to offer her a place to stay at their home. It is accepted that the daughter would be in a position to offer some support to the applicant but that this support would be somewhat limited and would not provide protection from the kind of harm the applicant fears from general criminality including the threat of sexual assault.
145. Accordingly, given the applicant’s personal characteristics and circumstances and given the status of women in South Africa, the Tribunal finds that if she returned to South Africa, she would be a member of a particular social group of single women with little support or single elderly women with little support for the purposes of s 5L of the Act.
146. Therefore, the Tribunal has considered country information from a wide range of sources in relation to the treatment of these particular social groups, of which the applicant would be a member upon return to South Africa.
147. The Tribunal has already referred to country information highlighting the very high rates of crime in South Africa. Available country information consistently highlights that in the context of these very high levels of crime, violence against women is a very serious problem in South Africa. Although men are more likely than women to be victims of some types of crime including murder, South Africa has amongst the highest rates of rape and domestic violence against women in the world. The United States Department of State reports as follows:
Rape and Domestic Violence: 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 child 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, which contributed to a reluctance to press charges. NGOs stated that cases were underreported, especially in rural communities, due to stigma, unfair treatment, fear, intimidation, and lack of trust in the criminal justice system. There were numerous reports of rapes by police officers of: sex workers; lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons; incarcerated persons; and others.
According to SAPS crime statistics, in 2019/2020, there were 42,289 rapes reported and 7,2749 sexual assaults. In July a gang of gunmen forced their way into a music video shoot near a mine dump in Krugersdorp, a city west of Page 17 Johannesburg. The gang members raped eight young women from the cast and crew while they were offloading equipment and preparing the set. Authorities arrested members of the gang.
The Department of Justice operated 96 dedicated sexual offenses courts throughout the country. Although judges in rape cases generally followed statutory sentencing guidelines, women’s advocacy groups criticized judges for using criteria, such as the survivor’s behavior or relationship to the rapist, as a basis for imposing lighter sentences.
The government provided funding for, and the National Prosecuting Authority operated, 51 rape management centers, addressing the rights and needs of survivors and vulnerable persons, including legal assistance. A key objective of the centers was prosecution of sexual, domestic violence, and child-abuse offenders. Approximately 75 percent of the cases they took to trial resulted in convictions.
…
The government financed shelters for abused women, but NGOs reported a shortage of such facilities, particularly in rural areas, and that women were sometimes turned away from shelters. A November 2021 report by Human Rights Watch criticized the government for not providing adequate or timely funding for existing shelters. [17]
[17] United States Department of State, 2022 Country Reports on Human Rights Practices: South Africa, pp 17-18.

148. In 2019, Amnesty International reported that gender-based violence continued to increase in the country.[18]
[18] Amnesty International, ‘South Africa 2019’, 2020, accessed 4 August 2023.
149. In 2020, the NGO Freedom House stated that despite a robust legal framework criminalising domestic violence and rape, both are ‘grave’ problems.[19]
[19] Freedom House, ‘Freedom in the World 2020’, South Africa, 2020, accessed 4 August 2023.
150. The Tribunal notes some of the commentary that some, or even ‘most’ rapes and incidents of domestic violence in South Africa are committed in circumstances where the victims are known to the perpetrator. However, given the anecdotal nature of this commentary amidst very high rates of rape and sexual assault generally in South Africa and given the applicant’s own personal characteristics of being a widowed (single) elderly woman with limited support in South Africa, the Tribunal is satisfied that the risk the applicant would face of being subjected to rape or sexual assault in South Africa would be more than remote, which would satisfy the real chance test as required by s 5J(1)(c).
151. For the purposes of s 5J(4)(a), the essential and significant reason for this harm would be the applicant’s membership of a particular social group being single women with little support or single elderly women with little support. It is accepted by the Tribunal that rape or sexual assault are types of harm that can be categorised as significant physical harassment (s 5J(5)(b)) or significant physical ill-treatment (s 5J(5)(c)) and therefore constitute serious harm for the purposes of s 5J(4)(b). Given the very high rates of rape and sexual assault in South Africa and given that the victims of these crimes are vulnerable women who are targeted for this harm because of their status as vulnerable women, this conduct appears to be systematic and discriminatory against the cohort of women it is directed against which satisfies the requirements of s 5J(4)(c).
152. The applicant spoke at the hearing about modifying her behaviour in the past in South Africa to avoid the harm that she fears by not going out frequently and almost never at night. This type of modification would somewhat reduce the risk of harm that the applicant fears. However, given that sexual offences do not only occur in public places but also occur during home break-ins and also given that the applicant would not be expected to completely and permanently eliminate going out of her home into broader society, this type of modification of her behaviour would not offer the applicant the type and extent of protection from potential offenders that would reduce the likelihood of harm to remote and therefore less than a real chance. Accordingly, s 5J(3) does not apply to the applicant.

153. The Tribunal has found that the applicant faces serious harm on return to South Africa for membership of a particular social group and the potential perpetrators of that serious harm are not the state of South Africa but are members of the public who are prone to committing serious criminal offences such as sexual assaults and rapes that are targeted at vulnerable women. Therefore, pursuant to s 5J(3), the Tribunal must consider whether effective protection measures are available to the applicant in South Africa. The definition of ‘effective protection measures’ is exhaustively defined in s 5LA.
154. Based on the country information referred to above, including the report from the United States Department of State, it is accepted that the state of South Africa has enacted strong criminal laws to protect people from sexual assault, rape and domestic violence.
155. However, this report also states that ‘the government did not effectively enforce the law’. This commentary reinforces the findings of a 2015 South African Human Rights Commission report discussing the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent’.[20]
[20] South African Human Rights Commission, ‘Safety and Security Challenges in Farming Communities’, 27 November 2015, p.81.
156. The United States Department of State 2019 South Africa Crime and Safety Report stated that police have made a strong effort to decrease their response time to incidents in recent years, and that there are effective detective programs at all police stations, with detectives on duty at all times. However, the report also highlighted that while there has been an improvement in community policing, many South Africans mistrust police and see them as corrupt.[21]
[21] United States Department of State, ‘South Africa 2019 Crime & Safety Report’, 6 March 2019.
157. The previously discussed report from the IRBC quotes the Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, who comments that the state provides all South Africans who are victims of crimes the same services, irrespective of race. However, he says that ‘while the crime rate remains high, police stations and the appropriate infrastructure to address the high crime rate are not always available’.[22]
[22] IRBC Response to Information Request ZAF106171.E, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 21 September 2018, accessed 4 August 2023.
158. In relation to effective protection matters, the Tribunal has also considered the comments that have previously been referred to from the IRBC report where it is clearly stated that resources to deal with crime in South Africa were ‘not as efficient as they need to be’.[23] Although using the term efficiency rather than effectiveness, the Tribunal considers these independent third-party comments as strongly indicating a lack of effectiveness of the South African criminal justice system, including the police force, in dealing with crime including crimes of a sexual nature.
[23] IRBC Response to Information Request ZAF106171.E, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 21 September 2018, accessed 4 August 2023.
159. The Tribunal notes the comments from the South African Minister for Police referred to above that the police are pushing back on criminality. However, the Tribunal finds that these comments are in direct contrast to the statistics highlighting ever-increasing crime rates (including for crimes like rape and sexual assault) and independent third-party commentary that highlights a lack of appropriate infrastructure within the police force, mistrust of the police by the public, a perception that police are corrupt, acknowledgement that many crimes including sexual offences are underreported and a concern that the resources to deal with crime are not as efficient as they need to be. Having considered the information before it, the Tribunal is not satisfied that when it comes to providing protection from the type of harm that the applicant fears that there is a reasonably effective police force available in South Africa to provide effective protection as envisaged by s 5LA(2)(c). Accordingly, the Tribunal finds that in the applicant’s personal circumstances effective protection measures would not be available to her in South Africa pursuant to s 5J(2).
160. Having considered the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant would have a well-founded feared of persecution if she returned to South Africa now or in the reasonably foreseeable future for reasons of her membership of a particular social group being single women with little support or single elderly women with little support.
161. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
162. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Katsambanis
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.
…

[2023] AATA 3600

7 August 2023

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