1934123 (Refugee)

[2023] AATA 3787

1934123 (Refugee) [2023] AATA 3787 (31 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934123

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Katherine Harvey

DATE:31 August 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 31 August 2023 at 3:33pm

CATCHWORDS

REFUGEE – protection visa – South Africa – fear of criminal gangs – knowledge of attacks by police – fear of killing – corruption – deaths in custody – mental health issues – effective state protection – request for Ministerial lntervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 411, 417, 499
Migration Regulations 1994, Schedule 2; r 2.12

CASES

GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of the Republic of South Africa (South Africa) and is [age] years old. He most recently arrived in Australia [in] August 2017, travelling on a South African passport as the holder of a visitor visa.

3. On 30 October 2017, the applicant applied for a protection visa.

4. On 4 November 2019, a delegate of the Minister refused to grant the visa.

5. On 2 December 2019, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.

6. The applicant appeared before the Tribunal on 22 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s Australian citizen wife]. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.

7. The applicant was not represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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

14. The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

16. The applicant’s personal details were set out in his application for protection. He is [age] years old and was born in [City 1], Free State, South Africa. At the time he made his application, he stated that he was married with a daughter. He claimed that his father, mother and [specified family members] lived in South Africa and his wife’s parents [and specified family members] lived in Australia. At the hearing he explained that his mother had died five years and one day before the hearing, that his father had died five years and four days before the hearing, and that one sister now lives in [Country 1].

17. In his protection visa application, he claimed that he had been refused permission to enter [Country 2] due to the South African police, and that he was refused a visa for [Country 2] and [Country 1]. He claimed that he was deported from [Country 3] in about 1998 after being arrested for [an offence]. He claimed that he was refused entry into [Country 4] in 2003 and he had previously overstayed his one-year working visa in [Country 4]. The applicant visited Australia four times from April 2003 to March 2004 and last arrived in August 2017.

18. The applicant claimed that he had been found guilty or convicted for housebreaking, ‘stolen goods’ and grievous bodily harm in approximately March 1991 and for damage to property in November 2016. In an attachment to the protection visa application, the applicant claimed that the [stolen] goods offences happened in about 1990 and he received suspended sentences. He also claimed that in November 2016 he was charged with damage to property and that he paid [an amount] forced bribe for the matter to be dropped. The applicant did not provide any corroborative evidence to support these claims, such as court decisions or a record of conviction.

19. The applicant claimed that he holds a [vocational] Certificate, certification for [specified jobs].

    Country of reference

20. The applicant claims that he was born in [City 1], Free State, South Africa and is a citizen of South Africa. He provided a copy of the biodata page from his South African passport.

21. I am satisfied that the applicant is a citizen of South Africa and that South Africa is the receiving country for the purpose of s 36(2)(aa) of the Act. 

    Summary of claims

22. The applicant’s claims are set out in the application for protection.

23. He claimed that he, his wife and daughter left South Africa to preserve their lives. He claimed that he was being hunted by the Nigerians, the white gangsters and the policing authorities and that if he stayed in South Africa, he would surely be a dead man.

24. He claimed that if he were to ever return to South Africa, his life would be taken and that he is only alive because of his street smarts and the grace of God. He claimed that next time they would not miss.

25. He claimed that he experienced true terror on several occasions. He claimed that the South African police attempted to kill him and that the Nigerians and white gangsters were hunting him down. He claimed that these people have complete control as they are endorsed by the authorities. He claimed that they have ‘death rooms and death squads’. He claimed that he knows their secrets and how these syndicates use all manner and means to achieve their goals.

26. He claimed that this corruption goes very high up and all of the big players are employed by the South African government.

27. He claimed that he moved from his hometown but to no avail as these people have ‘a great arms reach’. He claimed that nowhere is safe and that people he thought he could trust are also players. He claimed that he went bush and slept in his car because he was afraid that someone would shoot him.

28. He claimed that if he returned to South Africa he would most definitely be harmed. He claimed that there is very little doubt that he would be killed. He claimed that the South African police, the Nigerians and white gangsters would kill him.

29. He claimed that there is no way he would receive protection from the authorities as they are the problem.

30. He claimed that there is no way he could relocate or hide from these people, they would kill him.

31. With his application, the applicant provided:

    ·   a letter dated 8 October 2017 from his wife

    ·   a letter dated 3 October 2017 from his sister

    ·   a letter dated 29 September 2017 from [Friend A], a friend living in [Country 2]

    ·   a photo of the applicant, his wife and daughter

    ·   a copy of the applicant’s birth certificate, and

    ·   a copy of the applicant’s marriage certificate.

32. On 12 June 2023, the applicant provided:

    ·   a copy of his marriage certificate

    ·   a copy of his daughter’s birth certificate

    ·   a copy of his daughter’s Australian citizenship certificate

    ·   a copy of his Australian Taxation Office (ATO) notice of assessment for 30 June 2022

    ·   a copy of the Australian Securities and Investments Commission Record of Registration for Business Name for [Business 1] dated [in] February 2021

    ·   html links to country information: Human Rights Watch, South Africa report 1994 on police lockups; The Conversation, Thabo Bester’s escape from a privately run South African prison raises questions about corruption 12 April 2023; United Nations Committee against Torture examines the situation in South Africa 1 May 2019, and

    ·   the results of a refworld.org search on ‘South Africa’ providing html links to 14 Amnesty International documents: Report of prison abuse in South Africa must lead to urgent investigation (28 October 2013), Amnesty International Annual Report 2013 – South Africa (23 May 2013), Brutal reign by South African police claims another victim (1 March 2013), Death of Mozambican man at hands of South African police ‘shocking’ (28 February 2013), Amnesty International Annual Report 2012 – South Africa (24 May 2012), South Africa: Key human rights concerns in South Africa: Amnesty International’s submission to the UN Universal Periodic Review, May–-June 2012 (7 February 2012), Amnesty International Annual Report 2011 – South Africa (13 May 2011), Amnesty International Annual Report 2010 – South Africa (28 May 2010), Amnesty International Annual Report 2009 – South Africa (28 May 2009), Amnesty International Annual Report 2008 – South Africa (28 May 2008), Amnesty International Rapport 2008 – Afrique du Sud (28 May 2008) (document in French), Amnesty International Annual Report 2007 – South Africa (23 May 2007), Eritrea: ‘You have no right to ask’ – Government resists scrutiny on human rights (19 May 2004), and Africa: In search of safety – the forcibly displaced and human rights in Africa (20 June 1997).

33. On 21 June 2023, the applicant provided:

    ·     an undated letter from the applicant stating that he fears persecution from the government agency, the police, because he talked about their corruption and violation of human rights and requesting Ministerial intervention

    ·     a letter from [Psychiatrist A], Psychiatry Registrar dated 17 May 2019

    ·     a letter from [Doctor A], [from a named] Medical Centre dated 21 June 2023

    ·     a letter from his daughter dated 20 June 2023

    ·     his daughter’s Term 4, 2022 school report

    ·     a letter from his Australia business partner [named], [Business 1], and

    ·     a Google maps image of [Police Station 1].

34. After the hearing, on 3 July 2023, the applicant provided:

    ·   screenshots of [social media] conversations with [Officer A], a friend and former police officer, on 17 and 24 August 2017 and [Officer B], a friend and [specified] Officer, on 20 September 2017. The applicant advised that after these conversations he ‘decided to leave the matter buried and not report to the South African officials’

    ·   screenshots of [Officer C’s] [social media] posts. The applicant hoped that the images may give credence to the type of man he is. The screenshots showed a man with guns

    ·   an invoice from [Hospital 1] dated 31 October 2017 for an overnight stay on 12–13 August 2017, and

    ·   a YouTube link to an SABC News report on Independent Police Investigative Directorate report to parliament from April to September 2020.

35. On 11 July 2023, the applicant provided:

    ·     reference from his former employer [Employer A], [Business 2] dated 27 March 2018

    ·     an [Bank 1] notice of payment of [amount] to [Employer A] dated [in] April 2017, [a Bank 1] Online Notice of Payment of [amount] to [Employer A] dated [in] April 2017 and an email from the applicant’s wife dated [in] April 2017 to the applicant and [Employer A] advising ‘Please find balance of R[amount]’

    ·     a Google image of the [named] service station at [a location], and

    ·     screenshots of [social media] conversations with [Employer A] with commentary from the applicant.

36. On 18 July 2023, the applicant provided:

    ·   five pages of undated and incomplete extracts of the applicant’s patient Progress Notes from [Health Service 1]. The latest date that appears in the extracts is 25 October 2018, and

    ·   a letter of support from [name], the applicant’s cousin-in-law, dated 17 July 2023 reporting a conversation with the applicant on 8 August 2017 and that someone has since told her he is suffering from PTSD and is on medication for it.

37. On 20 July 2023, the applicant provided screenshots of:

    ·   [social media] conversations with [Friend B], a mutual friend of the applicant and the applicant’s friend [Friend C] on 12 August and 11 November 2017. The applicant advised that these conversations were him fishing for information relating to [Friend C] and warning [Friend B] to stay away from the [Venue 1] and [Friend C].

    ·   a [messaging] conversation with [Sister A], the applicant’s sister in July 2023 asking if she can access her South African bank records and her advising that she closed them all when she left in 2019 and suggesting the applicant contact the garage owner, and

    ·   [social media] conversations with [Niece A], the applicant’s niece on 23 June 2017, 11 August 2017 and 15 August 2017. The applicant advised that these conversations include him warning her to stay away from [Venue 1] and [Friend C] and [Officer C]. She advised that she does not frequent [venue] or talk to those people.

38. On 24 July 2023, the applicant provided pages 1, 5, 9 and 10 of his visit record for his visit to [Hospital 1] from 19.15 on 12 August to 03.21 on 13 August 2017.

39. On 16 August 2023, the applicant provided an entire visit record for his visit to [Hospital 1] from 19.15 on 12 August to 03.21 on 13 August 2017. The 159-page document comprised 14 pages of the applicant’s part B documents, 140 pages of part A non documents, 4 pages of part C vital signs and 1 page of part D intake output. No further information was provided with the record.

40. In an email dated 2 July 2023, the applicant advised that ‘the missing link is proof of court case’ and that he had a good friend who could perhaps obtain the court records but he is loath to ask him. On 23 July 2023, the applicant advised that he does not believe there is a safe way for him to obtain the court documents.

    Mental health

41. The applicant claims to have bipolar mood disorder and post-traumatic stress disorder.

42. I have before me a letter from [Psychiatrist A], a letter from [Doctor A], extracts of the applicant’s Progress Notes and the [Hospital 1] visit record.

43. In his letter, [Doctor A] advised that the applicant has been suffering from chronic post-traumatic stress disorder for the last six years and has been on medication regularly with stable mental health. He provided a copy of [Psychiatrist A’s] letter. He did not provide information about what medication the applicant has been prescribed.

44. In his letter dated 17 May 2019, [Psychiatrist A] advised that although the applicant has a historic diagnosis of bipolar mood disorder made in South Africa and more recently suspected during input from [Health Service 2], there is no evidence of mood disturbance at the present time. [Psychiatrist A] advised there are no concerns about harm to the applicant or others at this time and he is functioning reasonably well at his current workplace. [Psychiatrist A] advised that the applicant does have features of PTSD and cluster B personality traits, that the applicant is not interested in pursuing psychotherapy and has only shown an interest in medication to assist with his initial insomnia. [Psychiatrist A] advised that he provided a script for 100 mg quetiapine nocte and will not be making further appointments at this stage but if there are any issues in the future they would be happy to see him with a referral.

45. I note that the correspondence from [Doctor A] and [Psychiatrist A] postdates the visit record from the [Hospital 1] and appears to postdate the undated and incomplete extracts from progress notes from [Health Service 1]. The applicant was advised that the [Hospital 1] and [Health Service 1] records he provided were incomplete and he was invited to provide complete records to the Tribunal. On 16 August 2023, he provided the complete [Hospital 1] records. He did not provide the [Health Service 1] records. I accept that the applicant was a patient at the [Hospital 1] from 12 to 13 August 2017. I place little weight on the evidence from [Health Service 1] as the progress notes are incomplete and undated and I place greater weight on the more recent information from [Psychiatrist A] and [Doctor A].

46. I accept the diagnosis, within their professional experience, of [Psychiatrist A] and [Doctor A] that the applicant has features of PTSD, cluster B personality traits and a historic diagnosis of bipolar mood disorder. I do not accept that the fact that the applicant suffering psychological symptoms confirms his claims to be true and I note that psychological symptoms may have a range of causes.

47. As discussed with the applicant at the hearing, based on the medical information he provided, he is on medication and has stable mental health. The applicant responded that he takes Seroquel that helps quiet his mind and helps him sleep in the evenings and he does not think he needs psychotherapy. I accept that the applicant takes Seroquel in the evening and has stable mental health.

1. At the beginning of the hearing, I asked the applicant if there were any medical or accessibility issues that would prevent him from participating fully in the hearing. He said no but that his mental health had not been very good lately. I advised that if he did not think he could participate fully we could reschedule the hearing and he said that he would like to get the hearing done today if we can. I advised him to let me know if he had any issues as the hearing proceeded and to let me know if he would like a break at any time, and we had a short break during the hearing. Having regard to his ability to detail his claims and to respond appropriately to questions and concerns raised at the hearing, I am satisfied that in the context of his mental health symptoms as accepted that the applicant was give a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.

   Assessment of claims and evidence

2. The applicant advised that he stood by the claims in his application and there were no claims that he wished to change but there was a lot of emphasis on gangsters and Nigerians in his application and he does not think that is relevant any more to this case.

3. I asked the applicant what he thought would happen if he returned to South Africa. He said that the gangsters and the Nigerians will not remember what he looks like and besides, he could move to other places in the country besides Johannesburg. He said his challenge is if the police know he’s in the country, or if he is red flagged at the airport, he will not feel safe. He thinks if he is red flagged at the airport the police at the airport would take him aside and the relevant police could come and fetch him.

4. The applicant said that it has got to do with the whole story of what developed in South Africa and what he knows of the police and what the police know of him.

5. He said that he had a run in with the police, they took him to a holding cell and in this holding cell he saw evidence of shooting – bullet holes in the wall, blood splatter, brain splatter – and he realised that it was an ‘assassination room’, a ‘death cell’.

6. He said that he and his wife were having some small issues. He went to a gambling room in [Venue 2] and won a substantial amount of money; [amount] rand, which made quite a big wad. He said that he stupidly waved it around saying ‘woop, woop’. The applicant said maybe a week or 10 days later he went back to the gambling place and when he’d finished gambling a Nigerian ‘fella’ who he had befriended invited him back to his place for a few drinks. He said at the time it sounded like a great idea. As they entered the man’s house, there were eight people sitting down waiting for the applicant to arrive. He said there were machetes, hammers, knives and water and he thought ‘oh [applicant name], what’s going on here?’. The Nigerian ‘bloke’ invited him upstairs and he went. He said he heard them speaking outside in Afrikaans saying tomorrow we will take his money and then we will kill him. He said that he was pretty sure they did not know he had heard them. He said that they kept him for the night and in the morning the Nigerian bloke said let’s go and withdraw that money.

7. The applicant explained that he had run out of money while gambling and pawned his phone to a bloke. He thinks he got 200 rand for the phone and had to pay 250 back the next day to get his phone back. He said that he was a bit of a mess at that stage and the man was just a random who hangs out at these gambling places and loans money.

8. The applicant said that in the morning, they walked to a ‘servo’ 3 kilometres from the house. He said that he knew his sister’s number and borrowed a phone. He called his sister and asked her to transfer 500 rand. He said that he knew what was coming and what was going to happen. He started walking back and when they got to the first servo he could see Nigerians walking up and down. He said that the Nigerian was not with him at the servo and he started talking really loudly. He said he saw other Nigerians busily walking past and filming him.

9. The applicant said that he walked out, gave him 300 rand and kept 200. He said he stopped at another servo and got a drink and walked further. Then he ran back to the servo and ran into the kitchen area. He took a bread knife, a pair of scissors and a fire hydrant. Thereafter he saw the Nigerian, two cars with gangsters in the servo area and ‘a black man’ – a South African – and he knew what was happening. He said when he arrived there he asked the cashier – who sits behind bulletproof glass – to call his sister. He said he saw the gangsters with the Nigerians and local Africans and he was stuck there, cornered in the servo.

10. He said the ‘South African black gentleman’ walked up to the door and said I’m going to kill you now [applicant name]. The man had a big knife in his hand and walked up to the applicant and the applicant hit the fire extinguisher and said ‘I’m going to fucking kill you’ and smoke dispersed and the man went out.

11. The applicant saw a few random vehicles pull into the service station; they were not buying gas and not buying from the servo. He said there were ‘some white and some black’ people and they started talking to the Nigerians and the gangsters from the night before. The applicant said that he realised these people knew each other.

12. He said during all this time the cashier was talking to his sister. He said that there are private security companies in South Africa – that this is going on for hours and they are not responding.

13. The applicant said that he saw the white gangsters talking to the other ‘randoms’. He said he had a friend – [Officer C] – who is a police reservist. They used to party together. He said it is hard to say without me seeing it but things work differently in South Africa, it is really, really harsh. He said he believes [Officer C] is a police reservist in order to carry an R5 rifle in his boot. He said that if he showed me [Officer C’s] [social media] profile, I will see how tough he is. The applicant said that he was his go-to bloke so to speak. While they were all milling around, he said to the lady in the kiosk to ask his sister to call [Friend C], a friend of his, and ask [Friend C] to ask [Officer C], their mutual friend, to come to the servo.

14. The applicant said that he was inside the servo and there is a kiosk that is fully bullet proof. On the outside was ‘a white gentleman’ who he later realised is a policeman. He heard the applicant ask to call [Officer C] and he called ‘don’t worry I’ve got this’. The applicant said it went on for a little while, that some randoms walked in and used the ATM. The applicant said he heard ‘wacht voor de sign’ (wait for the signal) and the same white policeman walked to the front door and said [applicant name] you need to come out now. The applicant said that he knows the gangs and police know each other. He said he told the man if someone from another police station comes, he’ll go with them. He said that the man stood up, turned around and made a gun sign with his hand. He said there was smoke everywhere and the applicant put his hands up and walked out slowly. He said that people know something was going down.

15. The applicant said that he twisted the handcuffs off so they put cable ties on to tie his hands behind his back and he was on the ground. He said that they tried to put cars around him so people couldn’t see what was going on. He said the guy with the glasses – the hitman – put his hands in his pocket. So the applicant stretched and lifted his head off the ground – people were driving past and looking and asking what the hell is going on here. He said he made eye contact with a woman with a kid in the car and he shook his head. He said that this went on for a little while – they opened the boot of the car and he thought they’re going to shoot him and chuck him in the boot.

16. Then he heard the hit-man and the main cop say the metro are here. (The SAP and the metropolitan police are different divisions.) He said the main cop said there were seven different people who called it in and this is well known and he (the applicant) was on the phone to his sister.

17. The applicant said there is a rule that if both police divisions are on the scene together (SAP and metropolitan), one from each branch must transport someone back to the police station. He said that the lady from the kiosk accompanied him to the police station. 

18. Earlier in the hearing, the applicant had recounted that at the police station he was put in a cell with bullet marks. He said that he saw what was going on. He could hear them talking out of his prison cell. He was at a loss, he thought that this was it. He said they were speaking Afrikaans and asking who is going to finish them.

19. The applicant said that he thinks that someone stands on a platform above the cells and shoots into the cells. He said the holes on the bottom of the cell wall are small calibre and 9 mm on the upper wall. The applicant said that he heard steel on steel, which he thought was moving the shooting platform on the roof. He said there was one spot inside the cell that you can’t see from the roof. He said there was a faucet built into the wall with a tap and the applicant sat down right below that, so that someone from the roof couldn’t see him.

20. He said that it really seems ridiculous that he could hear in the course of the day and going into the night a really loud car. At one stage he was worried about them looking in and hung clothes over the window. The applicant heard someone say he must be on the ground when I come into the cell.

21. The applicant said that he did not know what to do. He was stuck. He thought if he acted like he was crazy that might be an out. He said the gangsters were talking outside and police were nominating who is going to shoot him. He started wailing – ‘[Doctor name] help me, where am I?’ He said that he did the whole crazy thing.

22. He said in the morning a black lady came and pulled him and a rapist (who had been locked up in the cell as well) out of the cell. He said when he started going crazy the rapist asked to be removed from the cell. He said the woman didn’t process them, just asked if they had any physical injuries.

23. The applicant said that while this was happening, his cell door opened and a guard walked in with pap (maize meal) and three other people, one from the gangster’s house, like they want to eat a meal with him. He said a guy picked up his boots and was looking at them. The applicant showed no recognition. He thought they came to share breakfast to see if he recognised them or not, so he acted like he had never seen them before.

24. The applicant said that subsequent to that, they took them to the charge office. A police lady in uniform said ‘[Applicant name], what’s going on, what are you going to do?’ and the applicant said he didn’t know why he was there. He said they made them hold hands, about four or five other blokes, and they got into the back of a police wagon. He said they took them to [a specified] courthouse in Johannesburg and he was charged with damage to property – from the fire extinguisher and all of the smoke at the service station. He said that he was charged by the owner of the servo.

25. He said that the Magistrate released him on his own recognisance. He said he was worried about leaving the court. He paid a security guard to call his sister and asked her to get [Friend C] to pick him up from [a location]. He said [Friend C] came and he told him what was happening, what he suspected, what he saw and what he knew. He said [Friend C’s] dad has a B&B and he went there and slept. After that is when he went a bit rogue and was drifting around.

26. He said that [Officer C] is in private security and a police reservist. He said that after he woke up at [Friend C’s] father’s B&B, [Friend C] said he had spoken to [Officer C] and [Officer C] said there’s only one court case against you. He said that [Friend C] and [Officer C] had a discussion about what the applicant witnessed in the cells and that [Officer C] and the senior policeman and woman at [Police Station 1] know each, meaning that the police know the applicant knows of the death cell or kill room.

27. The applicant said that subsequent to that, he was visiting [Friend C] and a woman arrived, who he later recognised as one of the police members. He said that they were messaging all of the time and he could not work out what was going on. He looked out of the window and saw a uniformed police officer looking over the wall. He told [Friend C] and the policewoman (who he did not realise was a policewoman at the time) that the police were there and they showed no concern.

28. The applicant said that he ran to the front door and recognised the police hitman who was walking down the road looking at him at the front door. He said that he took [Friend C’s] 9 mm pistol and sat in [Friend C’s] room. He said [Friend C] ran in and demanded his pistol, which the applicant returned. He then ran into the second bedroom and barricaded himself in as best he could.

29. The applicant said a time after that he heard a lot of movement in [Friend C’s] house. It started at 6 pm. He believed that the police were there to finish the job and he pretended to be on a phone call. On this fictitious call he was telling the person that if they breached the room to send the email to the addresses he had provided. The applicant said that he did not know what else to do or where to go because he thought they were there to kill him. He also thought that they believed that his fictitious call was legitimate.

30. The applicant said that in the early hours of the morning it was quiet and he believed that the police had left, so he called his wife to come and fetch him. He said she took him to a hotel in [Town 1] and then it became really sketchy. He said that he tried to live off grid and slept a few days here and a few days there and even in his car for a few nights. He said that his wife would come and meet him with their daughter and bring a home cooked meal.

31. He said that he has not been in touch with [Friend C] after the police came to [Friend C’s] house.

32. The applicant said that he settled with [Mr A], the owner of the service station, to pay [amount] rand to cover the damages and [Mr A] would drop the charges. He said that [Mr A] arranged for the manager of the servo to meet the applicant at the court on his next court date and the manager told the prosecutor that they were withdrawing the charges. The applicant provided a copy of an email he sent on [a day in] March 2017 to [an email address] with the subject: ‘Damage to service station’ and addressed to [Mr A] thanking [Mr A] for the time he was affording the applicant to settle the matter. The applicant said that the case was withdrawn and then everything was a bit of a blur. He said that he lived between houses and friends and was working on and off with his boss selling security.

33. The applicant said that his wife sent two payments of [amount] rand to his boss [Employer A] and he provided a copy of an [Bank 1] Notice of Payment and an [Bank 1] Online Notice of Payment showing a payment of [amount] rand to [Employer A] on [a day in] April 2017. The applicant said that his wife could not find the second payment. I asked why the applicant’s wife would transfer the money to his boss if it was a payment for [Mr A] and he said that he did not know why. He said that he did not even know if she was in the country at the time.

34. At the hearing, the applicant said he thought he was in court on [a day in] November 2016 and [in] February 2017.

35. As discussed at the hearing, the applicant had not provided any independent information, such as court orders or records of court hearings or his criminal record, to support his claims that he has been of interest to the South African police or that he attended court in 2016 and 2017. The applicant said he did not know how sensible it would be to obtain the court records because the police and courts work very closely together. I explained that this information was relevant because it may be the reason or part of the reason for affirming the delegate’s decision not to grant a protection visa because it indicates that he manufactured his claims for protection. After the hearing, the applicant advised that ‘the missing link is proof of court case’, then he informed the Tribunal that he had decided not to provide any court documents as he does not believe there is a safe way for him to obtain the court documents.

36. I asked the applicant why the police would have any interest in him. He said that they know that he knows about the death cell. I asked again why the applicant would be of any interest to the police. He said hypothetically he has some police friends in South Africa. If he told them that in [Police Station 1] there is a cell where they kill people his friend could say, I’m going to contact the Hawkes[1] and then the Hawkes would raid the cell and take DNA. I asked the applicant why he did not contact the Hawkes. He said he just wanted everything to go away and everyone is so corrupt. He wanted to crawl up into a hole and disappear. He said the whole thing was really traumatising and he was a wreck.

    [1] The Hawks are the Directorate for Priority Crime Investigation. It is an independent directorate within the South African Police Service and responsible for combating, investigation and prevention of national priority crimes such as serious organised crime, serious commercial crime and serious corruption

37. I asked what he had done since he left South Africa. He said absolutely nothing because he wanted it to go away.

38. I asked the applicant why other people would not have this information. He said that maybe people don’t recognise the room for what it is. He said this is a fact, not a story he has concocted. He believes without any doubt they would find the DNA of hundreds of people. He said that he and his wife lived [distance] away and they would hear shots and say they’re at it again. He said that other people must hear these gun shots.

39. I asked the applicant why he did not report the death cell to the Independent Police Investigative Directorate (IPID), which is charged with independent oversight of the South African Police Service and Municipal Police Service. He said that he only found out about them 10 days ago. I asked him if he had read the decision record of the delegate, which discusses the IPID, and he said no, he glanced at it.

40. I asked the applicant why the police would still be interested in him. He said that he told [Friend C], [Friend C] told [Officer C] and the police know that he knows that the room is there.

41. I asked him, given that he has done nothing for seven years, why would the police be interested? The applicant asked how they would know with certainty that he wouldn’t tell people. He said that if they knew he was there and they could get rid of him easily without anyone knowing, they would do it. He said that if that room was investigated and they found all the evidence, it would be a really big thing for these people and they would be criminally charged and go to jail because everyone has covered it up. He doesn’t believe they would take a chance if they could get rid of him, and there are many ways they could get rid of him. It’s not something he wants to take a chance on.

42. I asked the applicant if he had heard from his attackers after the phone call (in [Friend C’s] house). He said no, he dropped off the grid. I asked if he worked for his old boss and he said yes. I suggested that if the police wanted to find him they could have found him. The applicant said he wasn’t sure. He said his boss paid him in cash at that time and it wasn’t a 9-to-5 job. His boss would give him leads and he’d go out and give quotations; it was a sales job and it was not office bound. He also said he told many people about the death cell and if he had suddenly disappeared people would have asked questions. But now there has been a time lapse and people would have forgotten, so the police could resolve the issue forever now and he thinks they would take that opportunity.

1. The applicant said that he had reported his concerns to the Australian [Security Agency 1] as he was concerned the guys were going to do a hit on him in Australia and he needed protection. He said the [Security Agency 1] gave him the number for the tactical guys if he gets in strife – if you call this number they will be with you ASAP with their big guns. At the hearing, I asked him for the telephone number they had given him. The applicant gave two telephone numbers: [specified]. I note these numbers are the land line for [a specified Adelaide] Police Station and the general number for non-urgent police assistance. I do not accept that the [Security Agency 1] thought the applicant’s claims were credible.

2. The applicant said that from the get-go he has been told he would not get a protection visa because he does not fall into the right category. He said that he does not want to flog a dead horse and he did not know if he should appeal to the Minister for compassion for his wife and daughter.

3. The applicant’s wife is an Australian citizen. I asked the applicant why he had not applied for a partner visa. He explained that everything was so up and down. As soon as his wife and daughter could leave the country, they left. He said at that stage he did not have the funds for it. He stayed with his mother for a couple of days and with friends for a couple of days and he was suffering from really severe depression. He said it was all raw and he just wanted to get out of the country.

4. I asked the applicant about the country information he had provided and its significance to his case. He said he thought that the delegate’s decision alluded to deaths in police custody not happening in South Africa, so several of the links substantiate that there are deaths in custody. He said in reality people die every day in police cells, which gives credence to the death room. He said not all of them are hanged, backing up the fact that there was a lot of death in police custody. I asked the applicant if any of the information was specific to him. He said that it was general information because people die every day in police cells and the country information gives credence to the deaths, which makes it specific and particular to him, because he is the one it could happen to.

5. I invited the applicant to take me to the information in the Amnesty International Annual Reports that he wanted me to consider. He said the important information was about the police being a government institution that has it out for him and corruption in the police.

6. I considered the screenshots the applicant provided after the hearing of conversations with [Officer A], [Officer B], [Employer A], [Friend B], [Sister A] and [Niece A] on [social media] and [messaging]. I note that the screenshots were selected by the applicant and the conversations do not include explicit or specific information that support the applicant’s claim that he had discovered a death cell in [Police Station 1] or that he feared the police.

7. Amongst the screenshots provided were conversations with [Employer A] from 8 November 2017 about real estate and selling [Employer A’s] business; 17 February 2018 about real estate; 1 May 2018 about the applicant and his family and [Employer A] trading crypto; and 21 February 2021 about domain names and on 25 June 2023. The screenshots show that on 25 June 2023, [Employer A] contacted the applicant about websites and SEO[2] and the applicant responded on the same day about SEO and then asked for evidence to support his claims. The applicant wrote:

   [2] Search engine optimisation.

   [My wife] and I attended my appeal at the Administrative Appeal Tribunal on Thursday, it has been difficult to say the least. Truth is on our side and the Senior Member believes the argument. She has asked us for the facts and has given us some time to gather this info. The question was asked about what went down with me at the service station and subsequently with the Saps after that. I mentioned that you were aware of the dramas but you gave me a car and I subcontracted for you and [Business 2]. On the [date]/04/2017 [my wife] sent you two transactions of R.[amount]. Probably two days later you made a payment to the owner of the service station. Once this was done, as I’m sure you may remember the charges of Damage to Property were dropped against me. A short while later you bought me a plane ticket to Australia.

   So, here goes. If you could send me confirmation of the payment of R.[amount] to the service station owner and some form of letter affirming the above would be huge…

   We are getting much additional information together but this is probably the most relevant link. This is highly confidential and only the Senior Member will see this letter and proof.

   Boss, Mate, Brother, do you think that you could help?

   [Employer A] responded:

   Hey [applicant name], the problem is that there is no proof of bank transactions on my side and if it goes any further, I get dragged into something that I would like to avoid.’

   The applicant replied:

   I understand completely. It shall go no further. This is the very last hurdle. This is the make or break. Again I say that this is highly confidential. This will never be mentioned again unless you and I discuss it over a beer.

   The applicant’s commentary about the [social media] exchange included, ‘I find this relevant as [Employer A] has accommodated me many times over the years, however, with this issue he wants nothing to do with’ and ‘‘it is clear that [Employer A] has no interest in getting involved with this due to potential negative ramifications’. The applicant did not elaborate on what the potential negative ramifications were.

8. I have considered all of the screenshots provided as far as they relate to the applicant’s claims and I find that they do not provide explicit or specific information that supports his claims.

   Other evidence

9. In her letter of 8 October 2017, the applicant’s wife said that ‘a terrible incident occurred in South Africa and [the applicant] was being hunted to be killed’. At the hearing, when I asked her about this, she said that her sister-in-law had called her to say that the applicant had been taken to the police station. She thought that was on a Sunday. The next day, she got a call from [Friend C] saying that the applicant was hiding at [Friend C’s] dad’s B&B. She took him clothes, a toothbrush and met [Friend C] by the place. She said that [Friend C] told her to just stay away, that they needed to separate the family from the risk of the police coming after the family. She said that she found her husband a backpackers in [Town 1] and she and her daughter stayed at home. She was unable to say when the event happened other than it being a Sunday in October 2016.

10. I note that in her letter dated 3 October 2017, the applicant’s sister did not provide clearer evidence as to timing of the service station incident; she referred to it occurring ‘one Sunday at around midday’, and in his letter of 29 September 2017, [Friend A] did not raise the incident.

100.   The applicant’s wife was unsure of the dates that the applicant appeared in court, but she thought it was [in] November 2016 and [February] 2017. She said that she attended the court in February 2017, where the applicant was charged with damage to property. She thought the applicant and the owner had an agreement about a payment to be made for damages. I asked if that was the end of the court case and she said she believes so but she can’t really recall.

101.   She said that nothing had happened to her or her daughter in South Africa.

Country information

102.   As detailed in the decision record, a copy of which the applicant provided to the Tribunal, according to the IPID Act, the IPID is obligated to investigate any deaths in police custody, deaths as a result of police actions, incidents relating to the discharge of an official firearm by any police officer, any complaint of assault or torture by a police officer, and systematic corruption involving police.[3] Additionally the South African Police Service and Metropolitan Police Service are required to immediately notify the directorate and provide full cooperation in terms of investigating, if any of the above issues are identified.

[3] Independent Police Investigative Directorate Annual Report 2018/2019 Financial Year, 31 October 2019.

103.   In its Annual Report 2021/2022, IPID reports it received 5295 cases in 2021–22, including 223 deaths in custody cases (4 per cent of cases) and 59 corruption cases (1 per cent of cases). The majority of cases were assault (3407 cases, 64 per cent) and complaints of discharge of an official firearm (744 cases, 14 per cent). Of the 223 deaths in custody, 11 died by shooting: 3 were shot with a private firearm and 5 were shot with a service firearm prior to custody; 2 shootings are recorded as shooting suicide in custody and 1 as a shooting suicide prior to custody. In the applicant’s province of Gauteng there were 44 deaths in custody in 2021–22. Of the 59 cases of corruption, the highest number related to extortion or soliciting a bribe (48 cases, 82 per cent), followed by theft and/or disposal of exhibits (4 cases, 7 per cent).[4]

[4] Independent Police Investigative Directorate Annual Report 2021/2022 Financial Year, 30 August 2022, pages 37, 39, 41–42 and 48–49 on credibility

104.   I carefully weighed the claims made by the applicant against my concerns detailed below. For the following reasons, I have concluded that the applicant’s claims are not credible.

105.   At discussed at the hearing, the applicant’s failure to provide independent information, such as court orders or records of court hearings or his criminal record, to support his claims that he has been of interest to the South African police or that he attended court in 2016 may be the reason or part of the reason for affirming the delegate’s decision not to grant a protection visa because it indicates that he manufactured his claims for protection. I am satisfied that the applicant understood the importance of this independent information because he advised the Tribunal on 2 July 2023 that ‘the missing link is proof of court case’. The applicant claimed that he did not believe that there is a safe way to obtain the court documents and that the courts and police work very closely together, however he did not provide any evidence to support his assertions and I find that they have not been made out. The evidence from the applicant and his wife about the court dates and the court process was vague and imprecise. I considered the accepted diagnosis about the applicant’s mental health but this does not provide an explanation for the lack of detail from both the applicant and his wife. In the absence of independent information, such as correspondence from the court about hearing dates, court orders, records of court hearings or the applicant’s criminal record, to support his claims, and in the absence of a reasonable explanation for not providing the information, I find that the applicant was not charged with criminal damage in October or November 2016 and that he did not attend court in October or November 2016 or February 2017.

106.   The applicant claims to have paid [Mr A] [amount] rand as a bribe or in compensation for the damage to his service station to get him to drop the charges. As supporting evidence for this claim, he provided evidence of the transfer of [amount] rand from his wife to his employer [in] April 2017. The applicant was not able to explain why the payment was made to his employer and his employer claimed in the [social media] correspondence provided that he has no proof of the bank transactions. I do not accept that a payment of [amount] rand from the applicant’s wife to [Employer A] is evidence that the applicant paid [amount] rand to [Mr A]. Based on the information before me, I do not accept that the applicant paid [amount] rand to [Mr A].

107.   The applicant claimed to fear the police after the alleged incident yet he continued to work for [Employer A] from November 2016 until he left South Africa in August 2017. I do not accept that the police would have been unable to locate the applicant if they had wished to do so. I find that the applicant was not a person of interest to the police.

108.   Based on the country information, I accept that there are deaths in police custody in South Africa however I do not find the applicant’s evidence about a death cell in [Police Station 1] to be credible. I do not accept that the applicant has been held in a death cell in the [Police Station 1] and I do not accept that he is at risk from the police or anyone else because he has discovered the existence of a death cell in the [Police Station 1].

109.   In the letter he provided on 21 June 2023, the applicant claimed to fear persecution from the police because he talked about their corruption and violation of human rights. At the hearing, he explained that he had not contacted the Hawkes or any other South African body when he was in South Africa or since he left South Africa. I asked the applicant why he did not report the death cell to the IPID, which is charged with independent oversight of the South African Police Service and Municipal Police Service. He said that he only found out about the IPID 10 days before the hearing. I asked him if he had read the decision record of the delegate, which discusses the IPID, and he said no, he glanced at it. Based on the applicant’s evidence, I do not accept that the applicant has raised police corruption and violation of human rights with any official body and I do not accept that the applicant has any profile with the police or any government agency because he has talked about police corruption and violation of human rights. I do not accept that the applicant is of interest to the police in South Africa. I find that the applicant has manufactured his claims for protection. It follows that I am not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm from the police if he returns to South Africa now or in the reasonably foreseeable future.

110.   At the hearing, the applicant said that the gangsters and the Nigerians will not remember what he looks like, and besides, he could move to other places in the country besides Johannesburg. Based on the evidence from the applicant, I do not accept that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm from white gangsters or Nigerians if he returns to South Africa now or in the reasonably foreseeable future.

Mental health

111.   Having accepted the diagnosis, within their professional experience, of [Psychiatrist A] and [Doctor A] that the applicant has features of PTSD, cluster B personality traits and a historic diagnosis of bipolar mood disorder and that the applicant takes Seroquel and has stable mental health, I considered whether he would have access in South Africa to Seroquel. Country information indicates that Seroquel is available in South Africa on prescription[5] and I find that the applicant could access Seroquel in South Africa. The applicant advised that he and his business partner [supply products] in Australia and he worked in [related] sales in South Africa. Based on the evidence before me, I am not satisfied that the applicant’s mental health will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to South Africa now or in the foreseeable future. 

Separation from family

112.   In her letter dated 20 June 2023, the applicant’s Australian citizen daughter said that she and her mother cannot go back to South Africa. At the hearing, the applicant’s wife said that she does not want to go back to South Africa. I accept that the applicant’s wife and daughter would remain in Australia. I asked the applicant how he would feel if he were separated from his wife and daughter, if he returned to South Africa and they remained in Australia. He said that he would die, that he cannot live without them and that he can’t even handle it when they go to the farm. I asked what he meant. He said that it makes for a long weekend and when they are not around, he feels like he has lost something. He said that he doesn’t like being apart from them.

113.   I accept that the applicant would be distressed if he returned to South Africa and was separated from his wife and daughter. I considered the non-exhaustive list of the type and level of harm that will meet the serious harm test set out in section 5J(5) of the Act. I am not satisfied that the distress the applicant would experience reaches the threshold of serious harm. I note the judgements in SZRSN v MIAC[6] and GLD18 v MHA[7] confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A) of the Act. I am not satisfied that the distress the applicant would experience is significant harm as defined in s 36(2A).

[5] The Generics Dictionary

[6] SZRSN v MIAC [2013] FCA 751 at [47]–[49].

[7] GLD18 v MHA [2020] FCAFC 2 at [36]–[58].

Conclusion

114.   After considering all of the applicant’s claims, both individually and cumulatively, I find that there is no real chance that the applicant will face serious harm in South Africa for the reasons of his race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criteria set out in s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I considered the alternative criterion in s 36(2)(aa). After considering all of the applicant’s claims, both individually and cumulatively, I am not satisfied that 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 he will be suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   Applicant requested referral to Minister

117.   The applicant has requested that I refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

118.   In his letter to the Tribunal sent on 21 June 2023, the applicant advised that he believed there were unique and exceptional circumstances in his case. He said his Australian citizen wife and daughter would suffer serious, ongoing and irreversible harm and continuing hardship if he was forced to return to South Africa as they would be worried about his safety and deprived of his financial and emotional support.

119.   On 26 June 2023, I wrote to the applicant advising that I am of the view that Ministerial intervention should not be considered if there is a pathway for a substantive visa available and invited the applicant to make submissions to the Tribunal on whether he may be eligible to apply for one of the classes of visas prescribed in Regulation 2.12 or alternatively why he would not be eligible. The applicant was invited to provide a response by 24 July 2023. The applicant did not provide a response by 24 July 2023, he did not request an extension of time to provide a response and he did not provide a response by the time this decision was finalised.  

120.   I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ and have decided not to refer the matter. As advised at the hearing, the applicant can still make a request directly to the Minister.

DECISION

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

Katherine Harvey
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

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36     Protection visas – criteria provided for by this Act

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(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.

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