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

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).
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.
On 30 October 2017, the applicant applied for a protection visa.
On 4 November 2019, a delegate of the Minister refused to grant the visa.
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.
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.
The applicant was not represented in relation to the review.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1934123 (Refugee)

Details

AGLC: 1934123 (Refugee) [2023] AATA 3787
Case: [2023] AATA 3787
Decision Date: 31 August 2023

CaseChat Overview and Summary

The applicant, a citizen of South Africa, sought a protection visa, claiming a well-founded fear of persecution. He alleged he was being hunted by criminal gangs, including Nigerian individuals and white gangsters, and feared that South African police were complicit or actively seeking to harm him. The applicant also claimed to have witnessed evidence of police brutality and corruption, including an "assassination room" within a holding cell. The decision under review was made by the Tribunal, presided over by Katherine Harvey.

The central legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a refugee nexus reason, or if he was otherwise owed complementary protection. This required an assessment of the applicant's claims against the available country information and relevant guidelines, specifically Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines. The Tribunal also considered whether the applicant was a member of the same family unit as someone who was already a refugee or owed complementary protection.

The Tribunal affirmed the decision under review, concluding that the applicant had not demonstrated a well-founded fear of persecution. While acknowledging the applicant's claims of fear and his mental health concerns, the Tribunal found that the applicant's revised claims at the hearing, where he downplayed the relevance of specific gangs and expressed a belief that he could relocate within South Africa, did not substantiate a fear of serious harm. Furthermore, the applicant failed to provide corroborative evidence for his past criminal convictions or the alleged bribery incident. The Tribunal was satisfied that South Africa was the applicant's country of citizenship and the appropriate receiving country.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background 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]. 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. 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. The applicant claimed that he holds a [vocational] Certificate, certification for [specified jobs]. Country of reference 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. 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 The applicant’s claims are set out in the application for protection. 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. 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. 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.

Evidence

Evidence Before The Court

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 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. 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. 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. 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’. 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background 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]. 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. 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. The applicant claimed that he holds a [vocational] Certificate, certification for [specified jobs]. Country of reference 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. 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