1934989 (Refugee)

1934989 (Refugee) [2023] AATA 2534 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Phillip Silver
CASE NUMBER: 1934989

COUNTRY OF REFERENCE: South Africa
MEMBER:Wendy Banfield
DATE:30 June 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 June 2023 at 5:59pm
CATCHWORDS
REFUGEE – protection visa – South Africa – race – white South Africans – particular social group – older woman – farm employment – Black Economic Empowerment policies – attempted murder – land resumption without compensation – racially motivated crime – mental health issues – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 6 December 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of South Africa, applied for the visas on 12 June 2018. The delegate refused to grant the visas on the basis that the applicants were not persons in respect to whom Australia has protection obligation under s.36(2)(a) and s 36(2)(aa) of the Act.
The applicants appeared before the Tribunal on 19 April 2023 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection
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.
Applicants’ identity and country of reference
The primary applicant (the applicant) stated in his application for a protection visa that he was born on [date] in South Africa. The secondary applicant was born in South Africa, on [date]. The applicants provided copies of their South African passports to the Department. There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the identity of the applicants.
There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds that they are citizens of South Africa and as such the protection claims will be assessed against South Africa as the country of reference and 'receiving country' respectively.
Migration History
The Department decision record of 6 December 2019 includes the applicants’ migration history as follows:
·     [August] 2016 – the applicant arrived in Australia holding a Tourist visa subclass FA-600
·     [October] 2016 – applicant 2 arrived in Australia on FA-600
·     [January] 2017 – application lodged for Temporary Skilled Work visa subclass UC-457; withdrawn
·     [October] 2017 – applicant 2 departed Australia
·     22 November 2017 – application lodged for Temporary Skilled Work visa subclass UC-457; application refused 15 October 2018
·     [November] 2017 – applicant 2 arrived in Australia
·     12 June 2018 – application lodged for Protection visa subclass XA-866, granted associated bridging visa WC-010
Claims for protection
The applicants’ claims for protection at the time of application were outlined in the Department’s reasons for decision. The Tribunal accepts it is an accurate summary of the claims made:
·     The applicants are South African citizens; they have each been married before and have children from their previous marriages residing in South Africa. Applicant 1 has [an age]-year old daughter and Applicant 2 has an adult daughter and adult son. The applicants’ parents also reside in South Africa; the dependent’s parents are deceased. The applicants were married in April 2015.
·     The applicant was left for dead after a near-fatal assault conducted on a [farm]. His ‘black colleagues’ had attempted to murder him in a racially motivated attack. He was stabbed and abandoned because he is a Boer/Afrikaner; this incident happened in rural [District 1] when he was a contract worker for a rural industry. The applicant was attacked by a group of twenty and his employer did not adequately ensure his safety. Police also did not investigate the incident to ensure the guilty were deal with appropriately.
·     The applicants fear the high crime rate in their home country and claim that there have been media reports of ‘racial attacks’ being ‘skewed’ so that instead of the black perpetrators being held responsible the white victims are arrested, and are then assaulted while in detention.
·     There have also been a ‘devastating economic effect for white people’ as a result of the Black Economic Empowerment (BEE) policies which disadvantage white South Africans, in conjunction with multiple other laws. It is also impossible to engage in business as a self-employed sole trader as institutions will not do business with entities which do not have black business partners.
·     If an individual disagrees with mainstream political opinion they will be labelled a ‘racist’ and persecuted, and potentially gaoled for two years as happened recently with a South African female.
·     The applicant relocated from [District 1] to the northern Limpopo province and resided with his mother who assisted him to recover from the incident. He met his current wife, the dependent, when she employed him as a farm manager on a farm.
·     The dependent’s mother passed away as a result of negligent council workers and their poor procedures. The applicant then lost his job when the dependent and her father lost their farm due to a land claim and had to vacate due to the risk of racially motivated attacks.
·     The applicant travelled to Australia and applied for a Regional sponsor visa. During the wait for the visa to be processed the Australian government changed regional boundaries and abolished the 457 visa class, replacing it with 482. The applicant had to withdraw his application and submit a new one as a sponsored [occupation 1]. He was still awaiting as to whether his application was successful when ‘Mr Dutton raised attention on the current violent, racial attacks to white farmers in South Africa that [he] decided to plead to the Australian government for protection’.
·     If the applicant returns to South Africa he fears there is a high probability that he will once again fall victim to racially motivated discrimination, crime, and assaults, as a white man working in the farming industry.
·     He will also be harmed due to his political views, the colour of his skin, and he will be unable to maintain ‘a basic level of financial survival’ due to the BEE.
·     The dependent and her father owned a portion of a farm which grew fresh produced which they then sold at their produce market. The farm became gazetted and the subject of Land Claim Court hearings. Due to the rise in the crime rate and violent threats, along with a political party which encouraged violence against farmers, it came impossible to protect their property and family.
·     The dependent’s mother burned to death as a result of the negligence of black local council staff. The circumstances of her mother’s death are evidence of the significant decline in the living conditions of the white population under the management of councils and municipalities where staff have become ‘black’ and have no representation from local residents.
·     As a white farmer and taxpayer attempting to address issues relating to land confiscation without compensation, the dependent will be targeted as a ‘racist’ who is trying to undermine the ruling party’s decision-making and laws.
·     The applicant moved to [a town in] Western Cape to start a small business but could not survive due to the pressure of the BEE policies.
·     The dependent will be persecuted as a ‘white Afrikaner Boer’ due to her political views and opinions if she returns to South Africa.
·     The authorities will not assist them as they are predominantly black and also do not distinguish between crimes which are racially targeting white South Africans.
The applicants attended a Protection visa interview with a Departmental delegate on 18 September 2019. The Tribunal has had regard to the interview in assessing the applicants’ claims.
Country Information – South Africa
Economy
South Africa has the most diversified and industrialized economy in Africa but has suffered several years of low growth attributable to such factors as low prices for commodity exports, weak investor confidence, policy uncertainty, and rigid local labor markets. The impacts of COVID-19 may further contribute to this low growth pattern. Key socioeconomic challenges include high rates of poverty, social inequality, unemployment, and public service access disparities—problems that disproportionately affect blacks. Unequal access to land is a notably sensitive issue. State land redistribution efforts have aimed to ensure greater access to land by blacks and other historically disadvantaged groups, but progress has been slow. Other key challenges include violent crime, periodic anti-immigrant violence, labor unrest, and protests over public service delivery and corruption. The Ramaphosa administration has made economic growth a priority, and is pursuing efforts to reduce unemployment, poverty, and socioeconomic inequality; improve public service delivery; and unite a socioeconomically, geographically, and racially divided society. It also is seeking to attract $100 billion in new investment over five years and has elicited more than $55 billion in pledges to date. The government also is pursuing an ongoing but controversial effort to amend the constitution to permit uncompensated land expropriation.[1]
[1] South Africa: Current Issues, Economy and US Relations, Congressional Research Service, September 17, 2020.
Broad-based Black Economic Empowerment (BBBEE)
The ANC was elected on the promise of redistribution and development, and the state provided social housing, new schools, improved social assistance and better access to services. Economic growth in the early 2000s was roughly 5% annually, but levels of unemployment did not lower sufficiently. The bifurcated nature of the economy results in economic gains accruing primarily to the elite, while the vast majority do not experience substantial improvement. Many features of South Africa’s economy are rooted in its history of racial segregation. Levels of unemployment and poverty remain high primarily because the black majority does not have equal access to the services and resources available to white South Africans. The post-apartheid government has not sufficiently attempted to remedy this disparity and initiatives like Broad-based Black Economic Empowerment (BBBEE), a series of affirmative action policies, have only benefited a small minority of black South Africans. The structure of the economy remains exclusionary, although racial exclusion is being replaced by class-based exclusion.[2]
South Africa’s constitution is widely regarded as among the most progressive in the world and much of this reverence concerns the constitutional protections of civil and socioeconomic rights. The country has essentially de-racialized much of the apartheid-era legislation and affirmative action policies, such as Broad-Based Black Economic Empowerment (BBBEE), to address the historical imbalances within the economy and society. BBBEE, which also acknowledges gender disparities in employment and seniority, has been an ineffective policy to address the widening class distinctions in society and only a minority of South Africans have benefited. Poor and less educated South Africans, disproportionately black, have not reaped the rewards of BBBEE.[3]
All South Africans are formally equal under the law and legislated exclusion is outlawed. In practice, many aspects of society and the economy are highly exclusionary due to the historical legacies of apartheid and segregation. Black South Africans, especially women, are vastly under-represented in the economy, despite constituting a majority of the population. Conversely, white South Africans are overrepresented and tend to occupy many of the senior positions, especially in the private sector. Those under the age of 35 also face significant barriers to entering the labor market.[4]
Access to Employment
In its 2020-21 annual report, the Commission for Employment Equity cited data on discrimination by ethnicity, gender, age, and disability in all sectors of the economy. The report highlighted the dominance of the White and Indian population groups at Top and Senior Management levels (while remaining under-represented at the Semi-Skilled and Unskilled Occupational Levels) and that this continues to follow the patterns created by apartheid policies. It is also noted that the White and Indian females also continue to dominate the top two tiers of management. Thus, in terms of race and gender intersectionality, African and Coloured females continue to bear the brunt of discrimination.[5] In a 2016 report of the South African Commission Human Rights Commission on their National Hearing on Unfair Discrimination in the Workplace, it noted an analysis of the submissions received together with the complaints statistics of the Commission reflected that black individuals continued to face high levels of harassment, and differential or undignified treatment, both in the workplace and in society in general.[6]
Women
In January, the government passed new laws, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, the Domestic Violence Amendment Act, and the Criminal Law (Forensics Procedures) Amendment Act, to strengthen efforts to address the disturbingly high number of gender-based violence cases in the country. Despite these efforts, Police Minister Bheki Cele reported that between April and June, 855 women were killed, and over 11,855 cases of gender-based violence against women were reported, including 9,516 cases of rape.[7]
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 minor 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 that, together with societal attitudes, contributed to a reluctance to press charges.[8]
Crime
Analysis by the Institute for Security Studies, in 2021, noted that crime and violence levels in South Africa are again rising. It noted these increases are probably the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, declining police performance and high levels of police corruption. A main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks. It noted the police’s ability to solve murders has declined by 38% since 2011/12, with the result that in 2019/20, detectives were only able to solve 19 out of every 100 murders. The police’s crime intelligence capability has also declined, decimated by years of factional battles, political interference, corruption and weak police leadership. It stated this means it can probably anticipate ongoing increases in murder and robbery in the short to medium term.[9] It further analysed that the failures of South Africa’s intelligence services and police, and the uninspiring performance of the military, reveal the absence of a coherent approach to national security. It stated that each of these departments is in crisis and those responsible for the judiciary, prisons and border management also face problems. It noted reasons include lack of vision, political interference and state capture, bad management, poor coordination, weak policy and insufficient accountability such as through Parliament. It stated that South African society also faces a rule of law crisis. Citizens do not obey the rules because the governing African National Congress sets a poor example. It stated the country needs a national campaign to rebuild respect for the rule of law. Leaders from across the spectrum need to support this, including from the religious and private sectors. The campaign must be underpinned by a clear demonstration of justice that holds those who instigated and incited the recent violence accountable.[10]
[2] Bertelsmann Stiftung, BTI 2022 Country Report — South Africa. Gütersloh: Bertelsmann Stiftung, 2022. p.5.
[3] ibid.p.13.
[4] ibid.p.26
[5] '21st Commission for Employment Equity Annual Report 2020-2021', Commission for Employment Equity (South Africa), 5 July 2021,
[6] ‘Report of the South African Human Rights Commission: National hearing on Unfair Discrimination in the Workplace 8 March 2016; 25 April 2016’, South African Human Rights Commission, (undated)
[7] Human Rights Watch World Report -South Africa p.539-540.
[8] US State Department 2021 Country Report on Human Rights Practices, South Africa.
[9] 'South Africa needs a murder reduction strategy', Institute for Security Studies, 14 June 2021.
[10] 'South Africa’s security sector is in crisis – reform must start now', Institute for Security Studies, 21 July 2021.
Racial or Ethnic Violence

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 fuelling 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.
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 (see section 2.f., Abuse of Migrants, Refugees, and Stateless Persons). The government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate. Civil society organizations criticized the government for failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreign nationals, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators.[11]
[11] US State Department 2021 Country Report on Human Rights Practices, South Africa.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants submitted written evidence to the Department and made submissions at interview. The delegate accepted that what the applicants claimed had happened to them and their family members in South Africa was true and had occurred. However, the delegate was not satisfied that the applicants were targeted for a s5J(1)(a) reason, namely, for reasons of their race, political opinion, or membership of a particular social group. As a result, the applicants were found not to be refugees and the criterion in s36(2)(a) of the Act was not satisfied. The Department also found the applicants are not persons in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.
The Tribunal considered the documentary evidence provided to the Department, the applicants’ claims made at a Departmental interview and evidence provided to the Tribunal in writing and in person at a hearing.
Submissions at hearing
The applicant told the Tribunal he came to Australia in 2016 to work on [a specified] farm but he had to withdraw his visa application because it was not in a regional area. The applicants had lived about [distance] from Cape Town in the Western Cape. They had their own business [but] could not register on the database that would allow them to do work for government contracts. They did not have a partner and were sole traders. If they wanted to be on the vendor list, they needed to have a black partner. They said they did do work privately but could not get the bigger [contracts].
The applicant was a manager [specified business]; however, he was retrenched in 2008 because of the BBE. There was no work for him as a white male so they started [a business] but could not continue because they did not get any contracts. They wanted to find something for a better life because they could not survive. The secondary applicant said wherever she went, her children would follow so they moved to Australia. In South Africa, the secondary applicant worked as an administrator for a [specified business] for eight years. There was no opportunity to go further in the job. In Australia, once the applicants obtained work rights, they started a [specified] business.
Regarding their fears of persecution, the secondary applicant said as a female in South Africa, she cannot sleep at night or walk in the street because it is the rape capital of the world. She said it will happen due to her age and being female. Despite Cape Town being considered as having lower crime, all the houses have bars and electric fences, but the applicants cannot afford the protection. They lived there from 2007 to 2016. It was claimed everyone in South Africa wants to emigrate because it is a war zone.
The secondary applicant said she never travelled at night, and she was picked up and dropped off after work. Sometimes they borrowed her daughter’s car, but they never used public transport. When asked about their own experiences, the applicant said he had an outside area containing his tools which was broken into at least three times. He said it shows the crime rate there. The secondary applicant said when they came to Australia they could sleep, while in South Africa if there is a break in, you will be raped and murdered because of the violent crime.
The applicant gave an account of his experience working for the [named agency] in KwaZulu Natal in which he claimed he was assaulted and stabbed. He said it was a Friday when they were usually picked up and he was attacked from behind by unknown people. He did not know if it was by fellow employees, but he was forced to crawl to a road to seek help. The applicant said he had stab wounds and was in hospital for three weeks. According to the applicant there was some disquiet at work because he had a promotion and he had been called names equivalent to “white scum.” The applicant said a detective came to see him but that was it. He did not make a police report but left his job and went to stay with his parents.
The applicant was asked what he feared about returning to South Africa. He asked that the secondary applicant not be in the room. He then said he gets nervous around black people. He then became upset when talking about his wife’s mother and the incident that led to her death. The applicant said he cannot stop seeing his mother-in-law’s face. The applicant outlined what had happened to his mother-in-law when she lived in a retirement home and the couple attended the scene. The applicant stated the people responsible were the council and the council is the ANC, and the ANC is the government. According to the applicant, the council was held responsible but there were statements made that his mother-in-law was to blame. The applicant asked rhetorically what his life would be worth. He said he did not understand the legal details, but his father-in-law never received compensation that was meant to be paid.
The Tribunal asked the applicant what in particular he feared about returning to South Africa. He said, “exactly that”, in reference to the incident with his mother-in-law. The applicant indicated he would not let anything happen to him again. When asked how he had managed in South Africa after the incidents he related, he said it was very hard, he had depression and anxiety, and they did not have the money to see a psychiatrist because they could barely feed themselves. He said his wife’s salary barely covered the house, and his paid for some food.
The secondary applicant said at her age she would not get work. But she did have an annuity of 50,000 rand that she returned to South Africa to get because they did not have work rights in Australia. The applicants did not think the authorities could protect them based on their past experiences. The applicants conceded that they did have legal recourse and a party was held responsible for negligence in the case of the secondary applicant’s mother’s death. However, they said they did not get the money owed to pay for her father’s medical costs. The secondary applicant explained that the police are often too busy, their vehicles are not working, and it is not like the police in Australia. It was submitted “everything is going down the drain”. The applicant said since a court order was not enforced, what is his life worth. The secondary applicant said they did not have the money to try and enforce anything.
The applicant said he grew up in an orphanage, but he still has his mother in South Africa. He also has [specified siblings] but is not in contact with them. The secondary applicant has [specified family members] in South Africa. The applicants did not think they could relocate to another area in South Africa because it is the same everywhere. They said unemployment is very high and they could not afford to live in a major city. They did not contribute to any pension there so would not be eligible for assistance, also, they are [age range].
The applicant stated he has been seeing a professional about his mental health, and has been prescribed medication for depression, anxiety and to sleep. He described repetitive behaviours and related it to the uncertainty of his situation. The secondary applicant said they do not share the same bed because of the applicant’s disturbed sleep, and she needs to keep him calm due to his anxiety. She said she cannot do that in South Africa.
The Tribunal spoke to the applicant about statements made to his psychologist where he had felt suicidal. He said the only reason he did not do it was because of his wife. He submitted that while in South Africa, if he had to go to a hospital, he would most likely have to see a black person and he is concerned about that due to his fears, but not because of race. The applicant said his mental health was very difficult to manage when he was there.
The applicant explained he had travelled to Australia as a visitor and had first arrived with a view to migration. When the employment option did not work out, they did not have work rights and were unable to investigate other options. The secondary applicant said the applicant’s work as [an occupation 2] was not on the skills list, and farming was not their most recent employment. The secondary applicant said their fears about the financial burden and “watching their backs” are genuine. She said reports of harm are not on the news but is readily available on Facebook groups. The secondary applicant said she has never personally experienced any harm or threats of harm but said it was scary to be in South Africa. In addition, to be able to survive, it is not easy financially. She said she doesn’t know what they will do, and this is the first time they have been able to make a success of their lives and contribute. The secondary applicant then wanted to clarify that she had experienced threats in the past when she lived on a farm but said nothing had occurred when she lived in the Western Cape.
The secondary applicant’s daughter gave evidence in support of the applicants and explained how she had come to Australia in 2019. It was submitted she and her husband have a successful business and the secondary applicant helps look after the witness’ child. She also discussed how the death of her grandmother affected herself and her mother and the difficulties the applicants faced in South Africa.
The representative referred to a letter to the Minister setting out the applicant’s circumstances on arriving in Australia in which a protection visa had not been part of the plan. He explained the situation regarding the unsuccessful work visa applications and the political comments they heard suggesting white South African farmers should be granted protection.
The representative claimed the difficulties are not just economic but are based on being legislated out of work due to the Broad-Based Black Economic Empowerment Act. The representative gave examples of violence that he experienced in South Africa and said people do not report to police because there is no point. It was alleged the country information is not accurate in indicating there is an effective police force.
Findings on refugee criteria
The Tribunal considered the evidence, submissions and arguments presented in the applicants’ case to determine whether they are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa).
In assessing whether the applicants have a “well-founded fear of persecution”, 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.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
Political opinion
The applicants made claims at the time of application that disagreeing with mainstream political opinion means a person will be labelled a ‘racist’ and persecuted, and potentially gaoled. It was also claimed the secondary applicant will be persecuted as a ‘white Afrikaner Boer’ due to her political views and opinions if she returns to South Africa.
The applicants did not refer to this claim at the hearing, but the Tribunal agrees with the Department delegate that country information indicates the law in South Africa provides for freedom of expression, including for members of the press, and the government generally respects this right. An independent press, a generally effective judiciary, and a functioning democratic political system combined to promote freedom of expression and that independent media were active and expressed a wide variety of views without restrictions.[12] The applicants claimed the media in South Africa no longer report certain crimes and that such information is available on Facebook groups. The Tribunal finds that there are ample credible reports from multiple sources regarding the levels of crime in South Africa, and furthermore, the availability of social media supports the US Department of State information that the government in South Africa does not restrict or disrupt access to the internet or censor online content.[13]
Crime and violence
[12] Country Reports on Human Right Practices for 2018 – South Africa’, US Department of State, 13 March 2019.
[13] ibid.
The applicant gave evidence about an assault and wounding that he said occurred in 2000 when he was a [farm] manager working in KwaZulu Natal in South Africa. In his evidence to the Department, the applicant claimed it was a racially motivated attack by fellow workers. At the Tribunal hearing the applicant suggested it was due to disquiet amongst employees because the applicant had been promoted to a management position but admitted he did not know who the perpetrators were, or what the actual reason for it was. In his evidence the applicant provided photos and a medical report stating his injuries were consistent with being stabbed. The Tribunal accepts the applicant was attacked and injured but is not persuaded it was a racially motivated crime.
Both applicants gave evidence about an incident that claimed the life of the secondary applicant’s mother where she was killed in a fire due to the negligence of the local authorities in allowing a [fire] near the victim’s retirement home. The applicants submitted news reports about the incident and provided photos of injuries to the victim’s husband, and the scene of the fire and its aftermath. The applicants conceded they did have access to justice through a civil matter, which was ultimately unsatisfactory because of a lack of enforcement. Based on the evidence before the Tribunal, it is accepted the applicants both experienced traumatic events as they describe. However, the Tribunal does not accept the applicant’s claims at the hearing that the fatal incident involving his mother-in-law reflects upon the value of his life in South Africa. The Tribunal is not satisfied negligence on the part of a local authority that led to the unintentional death of a family member is an indication of the applicants’ chances of being subjected to harm or violence and therefore it does not support their claims for protection as refugees under s 36(2)(a) of the Act.
Other than property theft in South Africa, the applicant did not report any violent incidents happening to him since the assault in 2000 but did outline the lasting impact it has had on him, including on his mental health and wellbeing. The secondary applicant also stated she had not experienced threats or violence while living in her home country, other than when she lived on a farm, but she did describe an overall state of fear that something may happen to her, particularly due to her age and gender.
The Tribunal considered the evidence the secondary applicant provided to the Department about the circumstances in which she and her father left their farm, including that she felt intimidated and unsafe. However, the secondary applicant left farming in 2005 and moved to in a white residential area. As discussed in this decision, she remained in South Africa until arriving in Australia in 2016 and did not report any threats or harm since then.
The applicants’ claims that they are likely to be victims of crime or violence because they are white South Africans must be considered in the context of the matters raised which could be described as generalised violence and negligence. South Africa has high crime rates and poorer people bear the brunt of the issues. Nonetheless there is little to suggest that the applicants would be at risk of anything other than randomised crime. The Tribunal is not satisfied that as white South Africans they will be specifically targeted by criminals. The crime rate is universally high across all race and ethnic groups and the applicants are unlikely to be at greater risk of harm than the general population in South Africa.
Employment and economic factors
The Tribunal has considered the applicants’ claims that they have been, and would in future, be disadvantaged and discriminated against in South Africa due to the BBBEE. The Tribunal understands the concerns they have, but notes that according to country information, the South African government’s affirmative action in this regard has been flawed and unsuccessful in providing equal advantage to employment. According to his evidence, the applicant operated a [business] in South Africa but was unable to apply for government contracts [because] he did not meet the BBBEE requirements in his business. The Tribunal notes the applicant agreed he has still been able to work privately, which he did while operating the business.
During the hearing, and in written evidence to the Tribunal, the applicants expressed their fears about their ability to support themselves financially in South Africa and their lack of financial resources in their home country. The applicants point to their circumstances before arriving in Australia when the primary applicant had a business [and] the secondary applicant worked in an administrator position. They explained that [this] business suffered because they did not meet the requirements to apply for government contracts and the secondary applicant could not progress at her place of employment. These matters were attributed to the affirmative action policies in place in South Africa. The Tribunal notes that while the applicants may not have achieved a level of economic success in South Africa that they hoped for, they were both employed and able to pay for their accommodation and living costs, even if it was difficult as they claim. The Tribunal notes that although the primary applicant is still of employable age, he is likely to be disadvantaged by his age and time away from South Africa. Despite this, the primary applicant has demonstrated that he is a resourceful and capable individual who has been able to start and operate businesses in two countries, and his experience as [an occupation 2] in Australia could transfer to South Africa. The applicant claimed in his Departmental interview that if he was forced to return to South Africa, he would have to resume work on a farm and he would end up being murdered. The Tribunal is not satisfied this would be the case since the applicant has other skills, including running his own businesses, and he has not worked on a farm for many years.

The Tribunal is not satisfied the applicants would face significant economic hardship that would threaten their capacity to subsist or would be denied the capacity to earn a livelihood of any kind, where the denial would threaten their capacity to subsist.
Membership of a particular social group
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
The Tribunal is satisfied the secondary applicant is a member of a particular social group, that being an older woman. The Tribunal accepts the secondary applicant has a subjective fear of coming to harm in South Africa and took precautionary action when she lived there such as not taking public transport and getting lifts to and from work. However, apart from feeling threatened in the past when living on a farm, the applicant said she did not personally experience any actual harm or threats of harm when she lived on the Western Cape in South Africa. The secondary applicant referred to learning from Facebook groups about other people being harmed and this may have added to concerns for her own safety. The applicant gave evidence that they had experienced break-ins on their property in which tools had been stolen and the secondary applicant outlined her concerns that in South Africa, break-ins and robbery can involve rape and murder. Based on the length of time the secondary applicant lived in their home country without experiencing gender-based or generalised violence, the Tribunal is not satisfied there is a real chance she would be persecuted on that basis.
The applicant submitted a psychologist’s report by [a named psychologist] dated 24 October 2022 indicating he has been diagnosed with post-traumatic stress disorder due to events he experienced and witnessed. The report states the applicant fears he will suffer harm if he returns to South Africa. As outlined in this decision, the Tribunal accepts the applicant has experienced negative events in his life and that he suffers from a mental health condition. However, the applicant has not claimed he fears persecution or harm due to his mental health and acknowledged it was due in part to the uncertainty of his visa situation.
While accepting that there are various issues in South African society and a level of discrimination and hardship may be a reality for the applicants if they return, the Tribunal does not find that cumulatively the possible difficulties would amount to persecution. The Act requires that persecution involve systematic and discriminatory conduct. It refers to conduct, which is deliberate, rather than random, and applied discriminatorily for one of the reasons set out in the legislation. The Tribunal is not satisfied crime in South Africa, or financial difficulty the applicants fear would involve systematic and discriminatory conduct, instead, if it occurred it would be random and not directed towards the applicants for a refugee reason.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings on complementary protection
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The applicants have not claimed they are at risk of being arbitrarily deprived of their lives; or that the death penalty will be carried out. The Tribunal is not satisfied the harm the applicants claim they would suffer, which may include economic hardship and an inability to secure employment, would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Independent commentaries about South Africa suggest that white people do not face specific challenges, threats, or lack of access to employment, education, health, or housing. Instead, access to sectors and services are impacted by the state of the economy, a lack of resources and underfunding rather than an intention to harm.
The applicants claimed in their evidence that they did not receive adequate police response or protection in the past in South Africa including when the applicant was assaulted in 2000, and when they experienced property theft. It was alleged that there is no point reporting crime or violence to police or authorities because they are under-resourced and overworked.
Based on available country information, the Tribunal is not satisfied there is systematic breakdown of law enforcement or that laws are routinely not enforced, although there is poor police reaction in many areas. According to the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa, the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise stated that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident. It can be surmised that it would be the same for all South Africans indicating the problems of underfunding and lack of resources are widespread rather than being pertinent to particular people or areas.[14] The Tribunal is not satisfied that the applicants are at risk of significant harm because of arbitrary action or inaction by the state.
[14] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013.
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
Referral to the Minister
The applicant has requested that the Tribunal 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. The grounds upon which the applicants request intervention is because they came to Australia “in good faith” to investigate migration options and while onshore, applied for a Temporary Work (Skilled) (Subclass 457) visa. However, the Subclass 457 visa was abolished and replaced. According to the applicants’ evidence the person who was intending to sponsor the primary applicant did not qualify to do so. The applicants were subsequently encouraged in applying for a protection visa because of political comments they heard, stating white South African farmers should be given protection.
The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417, and s 501J)’ but has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Wendy Banfield
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 2534

30 June 2023

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