2000491 (Refugee) - [2023] AATA 2736

2000491 (Refugee) [2023] AATA 2736 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nabeel Lang (MARN: 0601921)
CASE NUMBER:  2000491
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Simone Burford
DATE:6 April 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 06 April 2023 at 12:50pm

CATCHWORDS
REFUGEE – protection visa – South Africa – race – Afrikaner – imputed political opinion – white person perceived to have supported or benefited from previous apartheid government – particular social group – single white woman with no male children or relatives to support her – victim of crime – fear of harm by black people – effect of medical condition on inconsistency of evidence and claims – mental condition renders applicant vulnerable to environment of generalised crime – complementary protection – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
BAJ16 v Minister for Home Affairs [2019] FCCA 1598
MIAC v MZYYL (2012) 207 FCR 211
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRTC v MIBP (2014) 224 FCR 570
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
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 dependant.
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 17 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant (the applicant) is a [age]-year-old citizen of South Africa. She was born in [town], Free State, South Africa. According to her application for protection she was living in Somerset West, Western Cape, South Africa prior to her last arrival in Australia in 2018. She had moved to Western Cape from Free State in 2002. She speaks, reads and writes English and Afrikaans. She identified herself as a Christian and her ethnicity as Caucasian.
The applicant was granted a Visitor visa on 1 October 2015 valid until 5 August 2018. She made several visits to and from Australia between December 2015 and her last arrival in Australia [in] May 2018. She was in South Africa from January 2016 until May 2018. She has not departed Australia since that arrival. She applied for a protection visa on 25 July 2018.
She was assisted by a registered migration agent in making her application for…

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.

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Details

Case: [2023] AATA 2736
Decision Date: 6 April 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a protection visa. The applicant, a citizen of South Africa, claimed she feared harm due to her race and gender, and also sought complementary protection due to a diagnosed medical condition that rendered her vulnerable.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the refugee criterion) and, alternatively, whether she met the criteria for complementary protection under section 36(2)(aa) of the Act. The Tribunal was required to consider the applicant's claims of persecution based on her identity as a white woman in South Africa, and the impact of her diagnosed medical condition on her vulnerability and ability to access state protection.

The Tribunal found that the applicant did not meet the refugee criterion. However, it was satisfied that Australia had protection obligations towards the applicant under the complementary protection criterion. This conclusion was reached after considering the applicant's vulnerability, exacerbated by her medical condition, which created a real risk of significant harm if she were removed from Australia. The Tribunal noted that her medical condition, which included cognitive impairment, made her particularly susceptible to the generalised crime in South Africa and compromised her ability to seek or receive effective state protection.

The Tribunal remitted the decision for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant (the applicant) is a [age]-year-old citizen of South Africa. She was born in [town], Free State, South Africa. According to her application for protection she was living in Somerset West, Western Cape, South Africa prior to her last arrival in Australia in 2018. She had moved to Western Cape from Free State in 2002. She speaks, reads and writes English and Afrikaans. She identified herself as a Christian and her ethnicity as Caucasian. The applicant was granted a Visitor visa on 1 October 2015 valid until 5 August 2018. She made several visits to and from Australia between December 2015 and her last arrival in Australia [in] May 2018. She was in South Africa from January 2016 until May 2018. She has not departed Australia since that arrival. She applied for a protection visa on 25 July 2018. She was assisted by a registered migration agent in making her application for protection and with respect to her application for review. On 17 December 2019 the delegate refused to grant the applicant a protection visa. At the Tribunal’s request the applicant’s representative provided a copy of the delegate’s decision noting that this was done ‘on the express understanding that this document does not form part of the Applicant’s documents and that it has been supplied purely as a result of the request to do so from the Tribunal.’ In September 2021 the applicant’s represented requested, and was granted, elevated priority for the application on the basis that the applicant had been diagnosed in February 2021 with [Medical Condition 1] the relevant medical report noted that the applicant’s condition was ‘complicated by MVA [Motor Vehicle Accident] resulting in head injury. Possible contribution by alcohol ingestion”. It was submitted that the applicant’s medical condition was degenerative and that there was a need for her to be admitted into a residential care facility as she is no longer able to properly care for herself. It was submitted that her behaviour was putting her in danger of serious harm. It was submitted that the applicant cannot be placed in a residential care facility in Australia because of her visa status and while she was eligible for Medicare, she is not eligible for assistance under the NDIS provisions. The applicant’s medical condition is considered further below. The Tribunal notes that the applicant has retained the same migration agent since the application for review was lodged and that her engagement of her migration agent predates her dementia diagnosis. While issues of her capacity to give evidence were raised (and as discussed further below) the Tribunal was satisfied that the migration agent retained authority to act on her behalf with respect to the application including with respect to making submissions on her behalf.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence [Ms A] declared that she was the younger sister of the applicant. She emigrated to Australia with a husband and 2005 and is an Australian citizen. They own a property [in] Western Australia. In oral evidence she told the Tribunal she had last visited South Africa in 2017. [Ms A] and her husband have a [farm]. She has also worked at a local [employer] in administration since around 2008. She told the Tribunal that the applicant was living [on] the property [Ms A] and her husband owned. In a statement [Ms A] indicated that the applicant first came to Australia on her invitation in December 2012. At that stage the applicant was living in near Cape Town in the Western Cape province of South Africa. She was working but [Ms A] was concerned about her safety as a lone woman travelling on the roads in South Africa. [Ms A] stated that the levels of crime in South Africa is significantly higher than Australia and she was concerned that the applicant would become a victim of violent crime and could be attacked or raped or killed. The applicant returned to South Africa and came to Australia for another visit in December 2015. The third visit was in May 2018. [Ms A] indicated that at that stage the applicant’s circumstances had changed and she had begun reporting incidents of violence that she had been involved in including indicating should be knocked off a bicycle by a black motorist had racially approved abused her and had made threats to kill her because of a race and gender as a white woman. In oral evidence she said she had been speaking to her sister regularly and was concerned it wasn’t safe for her in South Africa and she wanted her to come to Australia where she could be safe. [Ms A] indicates that shortly after arriving in Australia the applicant applied for protection in July 2018. She indicated the applicant had been staying in a property since she arrived in Australia and still is there today. She worked as a [occupation] at [employer] where the web [Ms A] works. [Ms A] reports that she began noticing some changes in the applicant’s behaviour which concerned her including that she had begun not dressing as neatly as usual and no longer behaving regularly. She also began behaving strangely including the loss of a social inhibitions and acting in appropriate ways. [Ms A] indicates that she would approach strangers to get in and get into situations where personal safety could be compromised. [Ms A] indicates the concerns of the registered migration agent heightened following a protection visa interview with the case officer on of the Department on 2 December 2019. As a result of those concerns and an appointment was arranged with [Dr C]. In her statement [Ms A] describes [Dr C] as a psychiatrist. However, the Tribunal notes that [Dr C] is report indicates that she is a clinical psychologist.

Decision

Reasons for decision

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).DECISION

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence [Ms A] declared that she was the younger sister of the applicant. She emigrated to Australia with a husband and 2005 and is an Australian citizen. They own a property [in] Western Australia. In oral evidence she told the Tribunal she had last visited South Africa in 2017. [Ms A] and her husband have a [farm]. She has also worked at a local [employer] in administration since around 2008. She told the Tribunal that the applicant was living [on] the property [Ms A] and her husband owned. In a statement [Ms A] indicated that the applicant first came to Australia on her invitation in December 2012. At that stage the applicant was living in near Cape Town in the Western Cape province of South Africa. She was working but [Ms A] was concerned about her safety as a lone woman travelling on the roads in South Africa. [Ms A] stated that the levels of crime in South Africa is significantly higher than Australia and she was concerned that the applicant would become a victim of violent crime and could be attacked or raped or killed. The applicant returned to South Africa and came to Australia for another visit in December 2015. The third visit was in May 2018. [Ms A] indicated that at that stage the applicant’s circumstances had changed and she had begun reporting incidents of violence that she had been involved in including indicating should be knocked off a bicycle by a black motorist had racially approved abused her and had made threats to kill her because of a race and gender as a white woman. In oral evidence she said she had been speaking to her sister regularly and was concerned it wasn’t safe for her in South Africa and she wanted her to come to Australia where she could be safe. [Ms A] indicates that shortly after arriving in Australia the applicant applied for protection in July 2018. She indicated the applicant had been staying in a property since she arrived in Australia and still is there today. She worked as a [occupation] at [employer] where the web [Ms A] works. [Ms A] reports that she began noticing some changes in the applicant’s behaviour which concerned her including that she had begun not dressing as neatly as usual and no longer behaving regularly. She also began behaving strangely including the loss of a social inhibitions and acting in appropriate ways. [Ms A] indicates that she would approach strangers to get in and get into situations where personal safety could be compromised.