2000491 (Refugee)

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 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.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be remitted for reconsideration.
Protection claims
Protection visa application
The applicant outlined her original claims for protection application for the protection visa, statement dated 22 July 2018. She was interviewed by the Department on 4 December 2019. Her claims were also supported by written submissions from her representative provided to the Department on 4 December 2019. The applicant’s initial claims were, in summary:
·As a single, older, white South African Afrikaner woman, she would be targeted for serious harm upon return to South Africa;
·She would be unable to find employment and is unable to seek assistance from the police if she were to return to South Africa;
·She would have an imputed political opinion as ‘a white person who is perceived to have supported or benefited from the previous apartheid government’;
·all of South Africa is dangerous;
·she will be killed because all white South Africans are in danger;
·her parents have passed away and she has little contact with her sister who remains in South Africa;
·she has been encountering problems in South Africa for a while, but the first life threatening incident was in November 2017 when she was driving on the highway to Cape Town when her car was shot at by a group of black people. Her windows were broken and she ‘narrowly escaped with her life’;
·also in November 2017, she was driving her car when black people threw rocks off a bridge through her windscreen causing to seek medical attention for cuts and bruises;
·in December 2017 she was stopped at a traffic light when a black person pointed a gun at her demanding her car. She escaped by driving away;
·every time she drives her car she is threatened by black people showing her signs threatening to slit her throat;
·while cycling in January 2018, she was knocked of her bike by a black person while cycling and suffered concussion, broken ribs and a fractured wrist. In that month she was again threatened at traffic lights by a black person holding a gun who demanded her bike. She escaped by riding away but she heard the person pull the trigger but the gun jammed;
·in February 2018, she was riding in a group when a black truck driver tried to run them over and threatened to kill their group if he saw them on the road again;
·also in February 2018, two women living in the same complex as the applicant were attacked and raped. The same month she was held at knifepoint by a black person who demanded her handbag and car keys before a white man intervened, slamming a car door into her attacker and giving her time to get away;
·in March 2018, a couple living in close proximity to the applicant were shot and killed in a home invasion and their belongings were stolen;
·most nights there are black people lingering around her apartment who attempt to open her doors and windows causing her to fear for her life;
·she was stressed, could not eat and did not want to go out;
·she reported the first incident to the police but when she told them “a black person” harmed her, they declined to assist because she is ‘racist’ and got what she deserved. They told her not to attempt to report any incidents in the future because they would lock her up for being a racist;
·she left South Africa because she was stressed out and did not want to die alone;
·She is white and Christian and does not support the ANC so is seen as a threat;
·She cannot access protection due to her race and her sex;
·She had to resign her employment because she feared for her life travelling on the roads. She cannot earn a livelihood as no white people are employed anymore;
·Because she is a ‘scared, stressed out, jobless person’ she will be ’emotionally and physically traumatised’ if returned to South Africa.
Her statement indicated that she left on her own passport without paying a bribe on her holiday visa from her previous visit which was still valid. She came to Australia because her sister is here and she needed to be close to her for emotional support. She had her sister in Australia and ‘did not have any other family in another Country’. She left South Africa because ‘as a single, white female, I am in constant fear for my life, as I have no protection from wither the Government or the Police in South Africa. I also have no income and therefore have been asked to vacate my apartment. I have nowhere to go’.
She claimed that ‘as a white person in South Africa, it will just be a matter of time before you will be killed. Furthermore, I am a single white female, so there is 100% chance that I will be brutally raped and killed. I will suffer emotional stress due to the constant fear for my life and as I have no way of supporting myself anymore, I have no place to live and I will die of hunger. The haem will come from the government and the black people. The Government is supporting the killing of White people and I will not get any protection from them. The Police will not protect me.’
The applicant’s statement included references to country information regarding violence and crime in South Africa. This material included screenshots from Facebook sites making threats to kill and rape white people in South Africa. The information cited incidents of rape in Cape Province (unidentified source), and claimed that more than 40,000 cases of rape are reported in South Africa every year with most victims white females. Femicide is 5 times higher than the global average;[1] white South Africans are being denied job (unidentified source); crime statistics from 2017/2018 showing a 14.5% increase in hijackings (unidentified source).
[1] Medical Research Council 2009 study; Stats SA Demographic and Health Survey.
At her interview with the Department on 4 December 2019, the applicant added the following claims:
·while she was working for [her employer], she had to drive frequently and she would see black South Africans standing beside the road with guns and stones who wanted to kill wSouth Africans while they are driving;
·if she returns to South Africa, she won’t be able to get a job, buy a house, buy a car, or buy food, and she would probably die of hunger;
·she won’t be able to cycle anymore; and
·she wouldn’t want to relocate because she loves Cape Town, and it would be the same everywhere.
In written submissions to the Department prepared by her representative the applicant claimed that she fears that if she returns to South Africa, she will suffer persecution on the basis of her race, as a Afrikaner, her imputed political opinion as a ‘white person who is perceived to have benefitted from the previous Apartheid government’ and also as a member of a particular social group as a ‘single white woman, with no male children or relatives to support her and of an age where she would find it difficult, if not impossible, to find a job to support herself’.
It was submitted that the applicant’s sister who remains in South Africa lives in the north-east of South Africa ‘approximately 2000 kilometres away from where the Applicant lives in the Western Cape’. She has no relatives in the Western Cape who could protect or support her.
It was submitted that the applicant was at risk due to her:
·Race
·Ethnicity
·Gender as a ‘woman at risk’.
In submissions the applicant claimed that country information regarding South Africa supported her claims suggesting there was a high incidence of rape and gender-based violence in South Africa. It was further submitted that country information suggests that high unemployment and violence in South Africa impedes the enjoyment of basis human rights by South Africans.
The applicant submitted she had experienced past instances of persecution and discrimination based on her race, ethnic background and imputed political beliefs.
It was submitted that if the applicant’s prior employment had required her to travel extensively in South Africa on the roads and were able to obtain employment on return she would similarly have to travel on the roads and would be exposed as a ‘lone white woman in a car’ to greater risk of persecution and random acts of violence. She was also at risk when riding her bicycle. He submissions referred to the incidents in the applicant’s statement and an additional incident in January 2018 when she was clipped by a side mirror of a truck which it was claimed had attempted to knock her off her bike. She was not seriously injured in this incident.
It was submitted that the incident’s recorded were attempts to kill or seriously injure a group of people because of their race. The submissions also referred to reports from the applicant’s cycling friends in South Africa who reported a cyclist had been shot and killed and they now only train on indoor facilities and cycling tracks.
It was submitted that the applicant had attempted to relocate but had been unable to find a job and could not relocate if she could not support herself.
Evidence submitted to the Department
In addition to her statement and submissions, the applicant submitted the following documents to the Department in support of her application:
·South African Police Service Clearance Certificate (No. [number]), issued [in] August 2018 by the National Commissioner of the South African Police Service;
·copy of the applicant’s Curriculum Vitae, Academic Record from [University], [occupation] Training Certificate, and [named] Education Department Senior Certificate;
·Birth Certificate of [Ms A – maiden name] (applicant’s sister), issued on [date] by the Birth Registrar;
·Australian passport and Western Australian [Driver’s Licence] for [Ms A – married name] (applicant’s sister);
·various news articles about violence in South Africa, the treatment of white South Africans;[2]
·the Last Will and Testament of [Mr B] (applicant’s father);
·a bank statement from [named] Bank South Africa dated 13 July 2018 showing two salary deposits from [organisation];
·South African Marriage Certificate of [Ms A – maiden name] (applicant’s sister) to [name] (applicant’s brother-in-law);
·an article, titled “Land Reform in South Africa: Fact and Fiction”, dated 6 September 2018;
·a Human Rights Watch World Report for the Events of 2018 in South Africa; and
·a Human Rights Watch Letter to President Matamela Cyril Ramaphosa, dated 23 September 2019.
[2] ‘We hate whites’ Brit killed as masked gang shoot and beat up expats in South Africa’, Daily Star, 21 April 2018; ‘Cape Town is one of the most violent cities in the world’, Business Tech, 7 December 2018; ‘Crime Stats: Western Cape is the murder centre of South Africa’, News 24, 24 October 2017; ‘DOUBLE #MURDER: Update: Afrikaner couple Jaco van Eeden and Elsabé Muller, shot dead in front of Klerksdorp home by black gunmen’, White Genocide in South Africa, 17 November 2015; ‘Malema: 'We Have Not Called For The Killing Of White People... At Least For Now'’, Huffington Post, 7 December 2018;’ Murder rates in South Africa's provinces’, unsourced; ‘Rape cases in Cape Province’, unsourced; screen-shots of various Facebook pages; Off-duty officer shot and killed in Cape Town’, IOL, 5 July 2018; ‘Prominent SA strawberry farmer killed’, IOL, 24 June 2018; ‘Victim texts for help before murder in Western Cape’, The Citizen, 6 July 2018; ‘WC ANC slams murder of Stellenbosch farmer Jeffrey Zelther’ IOL, 27 June 2018; ‘#BlackMonday – is it a case of black and white?‘, IOL, 30 October 2017; ‘21 people arrested as protests spread to Riebeek Valley’. News 24, 11 July 2018.
Review application
The delegate refused the application on 17 December 2019. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 January 2020. Following a request from the Tribunal Registry she provided a copy of the delegate’s decision to the Tribunal on 5 March 2020. In an email accompanying the decision the applicant’s representative noted that it was provided ‘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’.
As noted above, before the Tribunal the applicant’s representative submitted that she had been diagnosed with [Medical Condition 1] since the decision to refuse her visa. Updated written submissions accompanied a request for priority submitted on 15 September 2021.
Those submissions reiterated the submissions made before the Department. The applicant’s representative also claimed that:
The Applicant demonstrated signs of suffering mental-health issues which were of sufficient concern for her Registered Migration Agent to seek specialist medical intervention.
The Applicant appeared unable to focus and had difficulty in appreciating the gravity of her situation or relating the incidents which had happened to her in a clear and logical manner.
The Applicant has been examined by a Clinical Psychologist, [Dr C], who has prepared a report on the psychological and mental health of the Applicant. The report is attached to this submission.
the Applicant suffers, as a result of her experiences in South Africa, from clinically-diagnosed mental health conditions which would make it difficult for her to live and work in South Africa. This includes a diagnosis of Post Traumatic Stress Disorder (supported by the report of [Dr C]);
Following a car accident and while hospitalised, the applicant was diagnosed with “[Medical Condition 1] complicated by MVA resulting in head injury. Possible contribution by alcohol ingestion” (supported by the report of [Dr D] and Professor [E]);
The medical condition suffered by the applicant is degenerative and will worsen over time. There is an urgent need for her to be admitted into a residential care facility as she is no longer able to properly care for herself. Her behaviour is putting her in danger of serious harm. She was recently found some 25 kilometres away from her home, having apparently ‘hitch-hiked’ to get there and with no transport or means of getting back;
The applicant is already unable to properly look after herself and function independently in society. Her sister, her only family in Australia, will not be able to provide adequate long-term care for the Applicant; and
The applicant would be unable to survive in South Africa, given her medical condition.
On 21 September 2021 the Tribunal wrote to the applicant’s representative seeking further information in relation to:
·The applicant’s capacity to participate in the proceedings and give oral evidence at a hearing in view of her diagnosis of dementia and cognitive impairment;
·Whether the applicant has an enduring guardian or a guardian has been appointed or required by the State Administrative Tribunal of Western Australia to give legal instructions on her behalf.

In response to this request the Tribunal received an email dated 23 September 2021 from Professor [E] which stated:
I have been forwarded your request by the migration agent.
I am the attending physician in regards to [the applicant]. [The applicant] has quite a rare type of dementia labelled [Medical Condition 1]. This results in virtually no insight into the consequences of her actions or the effects on other people. She has extremely poor judgement in regards to risks in her environment.
So in regards to this question
The applicant’s capacity to participate in the proceedings and give oral evidence at a hearing in view of her diagnosis of dementia and cognitive impairment;
She would be able to attend the hearing, and would not be at all concerned by the proceedings. But the information she would provide would be unreliable. She has no insight or concerns whatsoever about her condition. She has no ability to reason about the type of illness or its severity.
It is my opinion that [the applicant] is fast approaching the time when she will require full-time supervision for the safety of herself and others.
By email of the same day and attaching the email from Professor [E], the applicant’s representative stated:
I did not anticipate Professor [E] addressing the Tribunal directly. His email makes it abundantly clear that my Client, while apparently able to respond to questions, is not capable of responding in a reasoned manner because of her degenerative mental condition and that any “evidence” would be unreliable.
I have contacted [the applicant]’s sister concerning the issue of guardianship for [the applicant]. The difficulty is [the applicant]’s visa status. [The applicant] does not have permanent residence in Australia. Her status, as a person on a Bridging visa, precludes her family from approaching the SAT to appoint a guardian. In the event that [the applicant] is granted a permanent visa, the family will then institute proceedings to have a guardian appointed for [the applicant] and, more urgently and importantly, get [the applicant] placed in care so that she is no longer a danger to herself or anyone else.
The applicant appeared before the Tribunal on 29 November 2021 accompanied by her representative and her sister, [Ms A]. The hearing was held in person at the Tribunal’s Registry in Perth. A further hearing was held by telephone on 5 October 2022 during which the Tribunal took evidence from the applicant’s sisters, [Ms A] who lives in Australia and [Ms F] who lives in South Africa. At the commencement of that hearing the applicant’s representative asked if the applicant’s sister could translate for her into Afrikaans on the basis that the applicant’s mild dysphasia may make it easier for her to understand in Afrikaans. The Tribunal noted that prior to that point there had been no indication that the applicant required an Afrikaans interpreter (including at the prior hearing in the report of Dr [E] referring to her dysphasia) and that if one was required the hearing would need to be adjourned so one could be obtained. The represented indicated that an interpreter was not required. At that pint the Tribunal stressed to the applicant that if she had any difficulty understanding questions from the Tribunal in English and felt she would understand better with the assistance of an Afrikaans interpreter she should let the Tribunal know immediately and one would be arranged. The applicant indicated she spoke English and did not need an interpreter.
The Tribunal took some oral evidence from the applicant at the first hearing. Mindful of the evidence regarding the applicant’s capacity this evidence was limited in scope to a discussion of her background and her current circumstances. The applicant was open and responsive though in the Tribunal assessment her responses confirmed Professor [E]’s assessment that any information she could provide regarding her fears of return to South Africa or her prior evidence and claims would be unreliable. The Tribunal discussed with the applicant and her representative that it would seek further information from the applicant in writing through her representative and that a further hearing may be held for the Tribunal to talk to other witnesses but that the Tribunal did not regard that anything could be gained by any further oral evidence being provided by the applicant. The applicant’s representative agreed with this suggested approach.
Following the hearing, on 24 February 2022, the Tribunal invited the applicant to provide the following information in writing:
·Medical evidence or a report from Professor [E], your treating physician, regarding your diagnosis and including addressing your prognosis, capacity and functionality in the reasonably foreseeable future and the relevance, if any, of your earlier diagnosis of Post-Traumatic Stress Disorder (PTSD) in relation to Professor [E]’s diagnosis of your current condition;
·Statement from [Ms A], her sister in Australia;
·Written submissions, including with respect to the adverse information included in the delegate’s decision record (dated 17 December 2019) and the treatment of your mental health claims under the relevant refugee or complementary protection criteria in the Migration Act 1957 (Cth); and
·Any relevant country information concerning your claims, if any, regarding access to health or other required support services in South Africa.
The applicant’s representative responded on 10 and 11 March 2022, providing the following:
·Statutory Declaration of [Ms A] dated 9 March 2022;
·Letter from Professor [E] dated 3 March 2022;
·Written submissions dated 10 March 2022;
·Statutory Declaration from [Mrs F] dated 11 March 2022.
In supplementary written submissions the applicant claimed to be persecuted or suffer serious harm by being killed, seriously injured or unable to work to support herself because of her:
·Race;
·Ethnicity as an Afrikaner;
·Imputed political views;
·Membership of a particular social group of single women with not family or male relatives who would be able to support or protect them; and
·Membership of a particular social group of people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin.
Following the hearing the Member became unavailable for a period, delaying consideration of the application.
In order to take evidence from the applicant’s sister’s, the Tribunal invited the applicant and her proposed witnesses to a further hearing on 5 October 2022. That hearing was held via MS Teams. The applicant’s sisters [Ms A] and [Ms F] both gave evidence at the hearing. [Ms F] gave evidence from her home in South Africa.
Following the hearing the applicant’s representative submitted a copy of an email said to be from Dr Joe Phaala, Minister of Health in South Africa dated [in] February 2022 indicating they were unable to accommodate the applicant.
On27 March 2023 the applicant’s representative provided an update to the Tribunal indicating the applicant’s condition had deteriorated and that her family ‘have serious concerns for her health and well-being because she needs to be admitted into a care facility as soon as possible’. No additional medical evidence was provided.
Evidence submitted on behalf of the applicant is considered further below.
ISSUES
The issue in the review is whether the applicant has a well-founded fear of persecution in South Africa from African authorities or black South Africans due to her race, ethnicity as an Afrikaner, imputed political opinion as a supporter of the Apartheid system, membership of a particular social group of ‘single women with not family or male relatives who would be able to support or protect them’; or as a member of a particular social group of ‘people who suffer from a clinically diagnosed mental condition which renders them incapable of supporting themselves or surviving in their country of origin’, or from any other person for any other reason, or whether complementary protection provisions apply.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence
[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.
[Ms A] notes that in October 2020 the applicant was involved in a motor accident where she suffered serious head injuries are needed to be hospitalised. In the course for treatment and recovery her mental health condition caused concern for the medical staff and she was placed under the care of Professor [E]. He diagnosed that she was suffering from a rare form of dementia. This information helps [Ms A] understand the applicant’s behaviour. [Ms A] indicates that the applicant will approach people she doesn’t know and behave in a socially inappropriate manner. She trusts strangers and has put herself in situations where she could suffer serious harm. She cites an incident where the applicant hitchhiked on the highway and ended up 30 km away with no means of returning home.
She sets another example of the applicant’s behaviour as being her behaviour in the conduct of the Tribunal hearing which [Ms A] states ‘quite clearly demonstrated [the applicant]’s lack of inhibitions, in her willingness to make inappropriate comments and a failure to understand the gravity of the situation she finds herself in”. The Tribunal notes that [Ms A]’s assessment of the applicant’s behaviour differed slightly from the Tribunal’s. The Tribunal considered that the applicant did understand the process which was underway in a general sense. She appeared to understand that her visa application was being reviewed and that if her application was not approved she would be returned to South Africa. While she approached the proceedings with a degree of informality in the Tribunal’s view her behaviour was outside the boundaries of what would be considered appropriate. However, the Tribunal accepts based on the medical evidence that the applicant is unable to comprehend fully what a return to South Africa may mean for her or to calibrate the risk that she may be returned.
[Ms A] notes that she is the applicant’s professional carer which she is unable to provide as she is not a trained nurse or health care worker. She indicates the applicant needs to be in a proper care facility in which she can be supervised on full-time basis for her own safety and the safety of others. She notes her opinion that the applicant’s other sister, [Ms F], is also unable to provide the necessary professional care required. [Ms A] states that the applicant is unable and incapable by reason of her dementia from living independently and she must either be cared for on a full-time basis by family member or be placed in a suitable care facility. [Ms A] notes that she has been unable to find suitable facility for her sister in South Africa and has concerns about the quality of care she would receive in a care facility in South Africa. She notes that the “standards are far below the standards of Australian capabilities and are likely to deteriorate even further in the future. She also notes that she worries that the applicant would find being in a care facility in South Africa a traumatic experience. She notes she has a fear of being killed by black people and would not cope with being in a care facility staffed predominantly by black people. She indicates her belief that the applicant’s behaviour would put her at risk of suffering persecution if she were forced to return to South Africa. She submits that the applicant would be perceived to be someone who holds beliefs which are incompatible with the current political environment in South Africa and would be potentially persecuted or suffer serious harm to her imputed political views arising out of her circumstances as a white woman of Afrikaner heritage.
At the hearing before the Tribunal, the Tribunal discussed with [Ms A] concerns about the applicant’s return and what enquiries she had made for care arrangements for her in South Africa. She said she had phoned and emailed the South African Department of Health and had been told they could not help someone in her sister’s position. She indicated she would provide a copy of the email response following the hearing. She said the closest place she found which might be suitable for her sister was in Johannesburg and it was more for old age and cannot deal with her current illness. She said she spoke to the authorities they said they couldn’t help her and her ethnic group counts against her. The Tribunal asked if the Health Department had said that, and she said that they had indicated they couldn’t help her. The Tribunal asked if she had asked Dr [E] for assistance is getting a referral to an appropriate health care provider in South Africa and she said they had not asked.
At the hearing the Tribunal asked [Ms A] about the concerns she had for her sister returning to South Africa. She said that what she had seen of her sister on the farm was that ‘she gets into situations’. She said the applicant gets into cars with people she doesn’t know about, not realising it is dangerous. She said that the fact she didn’t realise situations were dangerous not combined with the fact she is a single white female meant there was no area where they can place her in south Africa where she will be safe. She said there was a ‘track record for vulnerable white people’ in South African and they get attacked.
The Tribunal asked if the applicant could live with [Ms F] and [Ms A] said that she couldn’t because her sister was not home much and there was nobody at home to look after her. She said they were close to Mosambique and she might wander off and end up in Mosambique and they would not be able to find her. She said they were also close to Kruger National Park and there were crocodiles and if she wandered off she may be hurt because she does not understand the danger. The Tribunal asked if that was the same situation she was in in Australia, that she needed someone with her to keep her safe and she said that it was.

[Ms A] said her sister gets anxious when they discuss her travelling to South Africa so she doesn’t know where she would return to. [Ms A] told the Tribunal that most of the public facilities do not accommodate white people in them. The Tribunal asked if she meant they were excluded, and she said that mostly white people paid for care themselves. The Tribunal noted that there was nothing in the information before it to suggest Caucasian people were denied treatment on the basis of their race and she said that the Department (of Health) had emailed her saying they couldn’t help was a very open remark. She believes her sister’s illness ‘brings another dimension’ to the risks in South Africa and that combining with the things that had previously happened ‘she really needs protection’.
Following the hearing the applicant’s representative provided a copy of an email exchange said to be between [Ms A] and the South African Minister for Health, Dr Joe Phaala. In that exchange [Ms A] emailed the South African Department of Health ([email protected]) [in] January 2022 as follows:
I am enquiring about care facilities in South Africa.
My sister has been diagnosed with [Medical Condition 1]. She is [age] years old. The cause of the dementia is [deleted]. We are looking for a suitable facility to care for her.
If you could please send me information on who to contact regarding this, it will be highly appreciated.
In reply on [date] February 2022, the Department of Health replied:
Dear [Ms A],
Thank you for your enquiry.
We cannot accommodate someone like that.
Yours sincerely,
Dr Joe Phaahla
Minister of Health
The Tribunal notes that while the content and the format of the response was odd for Ministerial correspondence there was no reason for the Tribunal to consider the email was not genuine. Rather it appeared to be a standard departmental response to an email inquiry sent from outside South Africa and which provided very few details regarding the intended patient’s personal circumstances, including that she was a South Africa citizen. As such the Tribunal accepted the email on its face but did not regard that it added much to consideration of the applicant’s claims and circumstances. In particular the Tribunal notes there was nothing on the face of the email to suggest the applicant was being denied access to services in South Africa for any purpose or reason arising under s 5J. The Tribunal considers this information further below.
[Ms F], the applicant’s sister in South Africa, also provided a statutory declaration to the Tribunal. That declaration notes that she is from [Town 1], Mpumalanga Provence, South Africa. The [Ms F] notes that her home is 2000 km from Cape Town. In oral evidence she told the Tribunal she last visited Australia about 5 years ago. She lives in [Town 1] where she has worked at a [factory] since the 90’s. Her husband has lived in the area since the 1980’s and works for a [company]. He has a mother and sister remaining in the area and she has cousins on her parent’s side though they are not in close contact.
She told the Tribunal the applicant came to Australia because she became fearful of living in Cape Town and there was no room for her at [Ms F]’s home, which she said was small, so the decision was made she should come to Australia. The Tribunal asked if something had happened to her to make her fearful and she said that there was an incident which happened when her sister as riding her bike with others and they were robbed by people with weapons. There were also other incidents that happened.
She stated in her declaration that the applicant fears returning to South Africa as a single white woman as she may be attacked and either be killed or suffer serious harm because of a race and ethnicity is an Afrikaner. She notes the applicant has no family apart from her in South Africa who could support a protector she indicates she has not seen the applicant since she went to Australia in May 2018 but is aware she’s been staying with her sister and her sister’s husband on their farm. She is also aware that the applicant has been diagnosed with a rare form of dementia. She indicates she cannot provide professional care as required by the applicant she is not a trained nurse or health care worker and understands that the applicant needs to be in a proper care facility which can be supervised on a full-time basis for the applicant’s safety and safety of others. She indicates that she and her husband work and she travels frequently and would not be able to have the applicant living with her she would not be able to look after or supervise her 24 hours a day. She indicates that there are many wild animals living near their home which is close to Kruger National Park. She indicates it would be dangerous for the applicant to wander off in the South African bush. She indicated she may be killed by a predator such the crocodile, buffalo, elephant or could die of exposure.
She indicated that she understands the applicant has wandered off in Australia and believes she did this in South Africa she would suffer serious harm. She indicates that her understanding is that the applicant is incapable of living independently and must be cared for in a full-time basis by family member or be placed in a suitable care facility. This indicates that there is no option for social security payment to enable her to act as the applicant’s carer. She indicates that she and her sister made enquiries about a facility for the applicant in South Africa but have been unable to find one. She also indicates she is concerned about the quality of care she would receive in facility in South Africa. This she also notes in similar terms to sister that she is concerned that the applicant would find being in a care facility in South Africa traumatic experiences she has an irrational fear of being killed by black people and would not cope with being in a care facility staffed predominantly by black people.
She notes that the applicant’s behaviour would put at risk of suffering persecution or serious harm if she was forced to return to South Africa as she would be perceived as being someone who holds beliefs which are incompatible with the current political environment in South Africa and would potentially best persecuted or suffer serious harm for imputed political views arising out of her ethnicity as a white woman of Afrikaner heritage.
The Tribunal asked what [Ms F] understood about her sister’s medical condition and she said that she spoke to her every Sunday and had noticed she is deteriorating. She said she went to her own doctor so he could explain her sister’s diagnosis.
The Tribunal asked about enquires she had made about suitable arrangements for her sister and she said that she made inquiries but the places she could go were state facility and they were ‘not good’. The Tribunal asked what she meant by that and she said that in those places staffing meant you needed to provide your own medical aids and the facilities were not maintained. She said she had asked friends in the profession and they said that there are not a lot of places in South Africa that deal with people with her kind of dementia. She also said she was concerned that with what her sister went through being in a facility may trigger her anxiety and she was not sure how she will interact being placed in a situation like that.
The Tribunal asked whether the applicant could live with her and she said that travelled a lot as did her husband and the location of the property might be a problem because it as close to the border and the National Park. She said she would need someone to look after her and her work schedule would not allow it. She said that they also didn’t have the facilities, accommodate her and someone who might care for her in her home. The Tribunal asked about the size of the house and she said it was one bedroom. She indicated when her sisters had visited in the past they had been accommodated in the sitting room or on a camp bed in the bedroom.
In supplementary submissions to the Tribunal the applicant’s representative submitted that the applicant’s fear of persecution South African arises from her ethnicity is an Afrikaner, her imputed political opinion as a white person who is perceived to have supported or benefited from the previous apartheid government and also as a member of particular social group as a single white woman, with no male children or relatives to support her and of an age where she would find it difficult, if not impossible to find a job to support herself.
It was submitted that the delegate describing the applicant’s experience as being a victim of crime trivialised the incidents which had been recorded by the applicant. It was submitted that those were incidents of serious crime which had a traumatic effect on the applicant, as evidenced by her fear of driving on Halloween and being forced to give up cycling. It was submitted that ‘these were targeted clients, not simply the result of random opportunistic criminal behaviour. The applicant was specifically targeted because she was a white woman on her own. It was submitted that the harm that the applicant reported to have suffered met the criteria set out in section 5J (5) the Migration Act and was a threat to life and liberty of the applicant and “significant physical harassment” of the applicant. It was submitted that the delegates reference to the fact that young black South Africans suffer most from violent crime and that the large percentage of those murdered were black South Africans was “totally irrelevant” was submitted that country information from the Immigration and Refugee Board of Canada suggested that households headed by white or Asian/Indians were more likely to be affected by crime than other population groups. It was submitted that this was a finding in support of the applicant’s claims.
Evidence with respect to the Applicant’s mental health/medical condition
As noted above, Professor [E] provided several statements to the Tribunal regarding the Applicant’s condition.
Professor [E] diagnosed the applicant in February 2021 with [Medical Condition 1] following her referral to him by the team treating her for injuries resulting from a car accident. Professor [E] stated that ‘[deleted]. This results in virtually no insight into the consequences of her actions or the effects on other people. She has extremely poor judgement in regards to risks in her environment.’ He indicated that in his opinion she is ‘fast approaching the time when she will require full-time supervision for the safety of herself and others.’ He noted any evidence she provided would be ‘unreliable’ and that she ‘has no insight or concerns whatsoever about her condition. She has no ability to reason about the type of illness or its severity’.
With respect to the applicant’s prognosis, Professor [E] provided a supplementary report dated 3 March 2022 which noted that her definitive diagnosis of [Medical Condition 1] had been confirmed by genetic testing. He notes that ‘her speech is now becoming affected and she is mildly dysphasic although her memory remains relatively unimpaired.” With respect to the applicant’s prognosis Professor [E] notes:
the prognosis is guarded. She will continue to deteriorate at roughly the same rate that she has until now. She lacks capacity for financial, lifestyle and living arrangement decision-making. She requires supervision at all times the safety concerns. The earlier diagnosis of Post Traumatic Stress Disorder (PTSD) is irrelevant to the current clinical condition, which is very serious and will progress relentlessly.
The applicant’s representative also submitted a report from [Dr C] a clinical psychologist who reviewed the applicant at the request of her migration agent and family members in May 2020. This was prior to the applicant’s car accident and subsequent clinical diagnosis by Professor [E] of [Medical Condition 1].
[Dr C] provides an account of the applicant’s presentation and her background. She notes she worked in [industry] in South Africa and was a ‘confident, hardworking, independent person’. However, she was the victim of [workplace robberies] which traumatised her and made her feel at risk. [Dr C] forms the opinion the applicant was presenting with severe to extreme PTSD. However, the symptoms and presentations described by [Dr C] when viewed in the context of her later diagnosis of [Medical Condition 1] appear consistent with emerging signs of that condition which Professor [E]’s report indicates is genetic. For example [Dr C] describes the applicant as being ‘dependent, confused, isolated and disoriented’. She describes her engaging in child-like activities and of her being unaware of how others might perceive her behaviours. [Dr C] described the applicant’s presentations as follows:
There is projected anger and hurt and regression to “childlike “behaviours where she feels safe to be. This is again not uncommon when individuals have experienced severe trauma. Other noted presentations assessed and observed in the sessions include:
· Confabulations
· Circumstantial speech
· Passive aggressive
· Acting out
· Exaggerated suspicion in most interactions and heightened defensive alerts
· Ruminations and compulsive behaviours and
· Exaggerated need for control
· Mistrust in medical interventions and any suggestions leading to questions her decisions making. This is a reaction to several significantly important work roles she had in her life prior to the experiences and she could no longer manage them and the subsequent roles she had she services them with extreme fear and almost paranoid like behaviours where she was overly vigilant and anxious.
[Dr C] goes on to recommend she receive professional assessment and treatment and noting what she observes to be ‘a known reputation for a ‘high crime rate’’ in South Africa that she ‘not be exposed to this situation where there is constant fear and criminal and violent activities a norm in the country’. The Tribunal did not consider that [Dr C] was qualified to give an account of the security situation in South Africa and does not accept her report as evidence of the circumstances prevailing in South Africa.
Country information
The applicant provided limited county information in support of her claims. This included number articles citing incidents of violent crime where victims were white South Africans or foreign nationals, Facebook pages of individuals inciting violence against white South Africans and a report from a Human Rights Watch in South Africa.
The Tribunal raised concerns with the applicant’s representative at the second hearing that country information available did not appear to support the contention that the applicant faced a real chance of persecution on the basis of race, ethnicity, political opinion or as a member of the particular social groups claims. The Tribunal outlined these concerns and provided additional time following the hearing for further information to be submitted. The Tribunal notes in particular that no country information had been offered in support of the claims related to the applicant’s mental health and that the Tribunal had not been able to identify information which might support those claims on the information before it.
The Tribunal notes that at the hearing the applicant’s representative expressed the opinion that he would not be able to find such information as counties would be unlikely to report negatively against a black government in South Africa. The Tribunal indicated that absent information to support such a claim the Tribunal was not likely to draw such a conclusion from an inability of the applicant to provide country information supporting their claims, nor to impugn the reporting of credible organisations on this basis. The Tribunal noted in this regard that reputable country sources and independent human rights organisations had been critical of the South African government’s performance but in the Tribunal’s reading the reports did not support a conclusion that the applicant’s claims regarding persecution on the basis of race were well-founded. The Tribunal saw no basis on which to conclude that racially based persecution was not being reported on by such bodies on the basis that the government of South Africa was headed by black South Africans. The Tribunal does not accept this submission.
Rape, gender-based violence and general crime rates in South Africa
Country information states that violence against women is a serious problem in South Africa, with the country having one of the highest rates of both rape and domestic violence in the world. However, information also indicates that this is part of a broader crime problem within South African society in which men are more likely to be victims of some forms of violent crime than women.
An August 2019 Human Rights Watch report about South African sex workers says that South Africa has a well-developed legal and policy framework to address gender-based violence, including:[3]
A progressive constitution, targeted legislation such as the Domestic Violence Act and the Sexual Offences Act, and government policies designed to prevent, respond to, and eventually eradicate gender based violence all exist. South Africa has also ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), its optional protocol, and regional instruments such as the Maputo Protocol.
[3] ‘Why Sex Work Should be Decriminalised in South Africa’, Human Rights Watch (HRW), 07 August 2019, p.18.
This is supported by a May 2018 report by the Wilson Centre, a US-based think-tank, which notes that ‘the government has already passed a number of laws and policies designed to reduce violent crime, including sexual violence against women and children, intimate partner violence, and child abuse or neglect’. It says that South Africa’s National Crime Prevention Strategy (1996), National Development Plan 2030, Integrated Urban Development Framework and 2016 White Paper on Safety and Security all emphasise the need for both an effective criminal justice system and social programs that address the underlying risk factors of crime.[4] Despite this, both reports indicate that violence against women remains pervasive.
[4] ‘Preventing Violence Against Women and Children in South Africa’, Wilson Center, 01 May 2018, p.1.
The US Department of State’s 2019 Human Rights report states that in most cases of rape and domestic violence, attackers were acquaintances of family members or the victim that, together with societal attitudes, contributed to a reluctance to press charges.[5]
[5] USSD, 2019 Human Rights Report, South Africa, 11 March 2020.
The Africa Check (NGO) website noted in April 2020 that high rates of gender-based violence are a concern for South Africa. The police recorded 179,683 contact crimes against women in the 2018/2019 financial year. Of these 82,728 were cases of common assault and 54,142 were assault with the intent to cause grievous bodily harm. In that year, 2771 women were murdered, with a further 3445 attempted murders. The police do not provide motives for these murders. There were 36,597 recorded cases of sexual offences against women. This is a broad crime category that includes rape, attempted rape, sexual assault and contact sexual offences.[6]
[6] Africa Check, ‘South African police record 2,300 gender-based violence…’ 9 April 2020.
The Amnesty International 2019 Report on South Africa noted that gender-based violence continued to increase in the country.[7]
[7] Amnesty International, ‘South Africa 2019’, 2020.
The Freedom House ‘Freedom in the World 2020 Report’ stated that despite a robust legal framework criminalising domestic violence and rape, both are ‘grave’ problems. The South Africa Police Service reported 4,649 rapes during the 2018–2019 reporting period.[8]
[8] Freedom House, ‘Freedom in the World 2020’, South Africa, 2020.

While the incidence of crime against women in South Africa is high, this occurs within a society in which rates of crime, and rates of violent crime, generally are high. For example, an analysis of South Africa’s 2017/18 crime statistics by Africa Check, a South African based fact-checking organisation, found that the country’s overall murder rate was 35.8 per 100,000 people. However, the rate of murders of women and children was 15.2 per 100,000 people – while murders of women and children made up 19.3 per cent of the total murder count in South Africa in 2017/18. The June 2018 Statistics South Africa report about crime against women says that data from 2000–2015 indicates that men were three times more likely to be murdered in South Africa than women, while it also found that male-headed households were more likely to be targeted in household crimes such as robbery than female-headed households.[9] According to the report:
Evidence provided in this report also shows that the problem is the level of crime in the country rather than crime against women. In many crimes (including murder) men have been more victimised than women. If crime levels decline then crime against women will also decline. This conclusion does not suggest that there is no need for targeted interventions against crimes that victimise women. However, femicide is a term that is often misused by activists and the media. The killing of females simply because they are females is a rare phenomenon in South Africa, while the incidence of female homicide resulting from domestic violence or violence emanating from broken relationships is unacceptably high.
[9] South Africa 2020 Crime and Safety Report, US Department of State.
More broadly, numerous sources indicate that crime is a serious problem generally in South Africa. For example, according to a September 2018 Africa Check factsheet, there were 20,336 murders in South Africa between 1 April 2017 and 31 March 2018 – up from 19,016 murders the year before. The country’s murder rate also increased from 34.1 per 100,000 people to 35.8 – an average of 56 murders per day. This rise in the total number of murders is the biggest single increase since the end of apartheid and is part of a 17 per cent rise in murder over the past five years. Police Minister Bheki Cele in 2018 described the statistics as being close to those found in a war zone, while criminologists agree that, while poor areas are particularly affected, violent crime is pervasive in South Africa and affects every sector of society.
The US Department of State’s 2018 South Africa Human Rights Report says that severe penalties apply for rape and domestic violence, including up to life imprisonment for perpetrators with previous rape convictions and perpetrators aware of being HIV positive at the time of the rape.[10]
[10] Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, pp.19–20.
While South Africa has developed a strong legal and policy framework to address gender-based violence, country information indicates that the capacity of South African law enforcement is mixed and that police are viewed as often ineffective. A 2015 South African Human Rights Commission report refers to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent’.[11]
[11] ‘Safety and Security Challenges in Farming Communities’, South African Human Rights Commission, 27 November 2015, p.81.
The US Department of State says that the law requires police to protect victims from domestic violence, but police commanders do not always hold officers accountable.[12] Country information states that community and government support services are available for female victims of crime, but that these services are insufficient to meet demand.[13] Services for women offered at these shelters include accommodation, meals, toiletries or care packs, psycho-social support, skills development programmes and assistance with health and legal matters. They also assist women with applying for grants and with applying for identity documents.
Racial based violence or discrimination
[12] ‘Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, p.20.
[13] Country Reports on Human Rights Practices for 2018 - South Africa’, US Department of State, 13 March 2019, p.20.; ‘Shelter Services to Domestic Violence Victims – Policy Approaches to Strengthening State Responses’, National Shelter Movement of South Africa and the Heinrich Boll Stiftung, September 2017, p.5.
The US Department of State Human Rights Report for 2020 notes that:[14]
There were numerous reports of racial discrimination, despite the prohibition under the constitution of unfair discrimination against anyone on one or more grounds, including on the ground of race. The South African Human Rights Commission stated in June that gross inequality was fueling racism and racial polarization. The Department of Human Settlements acknowledged inequality along racial lines had affected and continued to affect the country’s segregated spatial development as well as poor communities’ access to reliable infrastructure.
…
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.
Incidents of racism cited in the 2019 report related to discrimination against black and Indian professionals. Freedom House, Freedom of the World Report 2020 notes that ‘Affirmative-action legislation has benefited previously disadvantaged racial groups in public and private employment as well as in education but racial imbalances in the workforce persist. White people, constituting a small minority, still own a majority of the country’s business assets.’[15]
[14] ‘Country Reports on Human Rights Practices for 2022 - South Africa’, US Department of State, p.23.
[15] Freedom House, ‘Freedom of the World 2020, South Africa, 2020 cited in Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 51
Based on a variety of sources, the Immigration and Refugee Board of Canada (IRBC) noted in September 2018:[16]
Sources indicate that white South Africans do not face any specific challenges or threats in society, "for example, in terms of access to employment, education, health or housing". In correspondence with the Research Directorate, the Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, explained that
‘In terms of accessing public health care and public education, white South Africans face the same issues that black South Africans do. However, black South Africans are burdened more because of their access to resources. For example, black South Africans do not have the same resources as white South Africans to buy private health care.
In correspondence with the Research Directorate, a representative from AfriForum, a non-governmental "Afrikaner interest organisation and civil rights watchdog" that aims to "protec[t] the rights of minorities" (AfriForum n.d.), stated that there is "[n]o legislation…that specifically discriminates against white South Africans" in terms of health care (AfriForum 7 Sept. 2018).
[16] IRBC Response to Information Request ZAF106171.EResponses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), Cited in Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 49
Reports suggested that most complaints to the South African Human Rights Commission were race-related however the majority were allegations of racial discrimination against black South Africans.[17]
[17] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 49
The IRBC Report cites sources stating that:
"[t]he South African government is explicitly non-racial" (Campbell [John Campbell, Ralph Bunche Senior Fellow for Africa Policy Studies, Council on Foreign Relations], 30 Aug. 2018). The Vice-Chancellor similarly stated that "[p]ublic services and policies apply to many and to all" (Vice-Chancellor 4 Sept. 2018). The AfriForum representative indicated, however, that Afrikaans language rights and education are "under attack," as language policies are being changed, for example, at universities, to exclude the use of Afrikaans, adding that "efforts to protect the language rights of students is … vilified as … efforts to protect 'white privilege'" (AfriForum 7 Sept. 2018).
The IRBC report considered information on ‘Farm Attacks and Killings’ stating that:
Sources indicate that crime is a serious problem in South Africa (CNN 23 Aug. 2018; Vice-Chancellor 4 Sept. 2018; CBS with AFP 23 Aug. 2018). According to Campbell, "[t]here are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody" (Campbell 30 Aug. 2018). The AfriForum representative stated that "[t]here are, unfortunately, very few places in South Africa where it is safe for any person of any race or gender" (AfriForum 7 Sept. 2018). In correspondence with the Research Directorate, the Chief Executive Officer (CEO) of the South African Human Rights Commission (SAHRC) [2] explained that "white people … experience less crime than other racial groups" in South Africa (SAHRC 7 Sept. 2018). The Vice-Chancellor stated that "[v]iolence is experienced more by black South Africans" (Vice-Chancellor 4 Sept. 2018). According to the Community Survey 2016 conducted by Statistics South Africa, "households headed by whites and Indian/Asians were more likely to be affected by crime than other population groups," including housebreaking/burglary, home robbery, robbery, and theft of motor vehicle/motorcycle (South Africa 2016, 94). According to the same source, "in the 12 months preceding the survey," "[a]pproximately one in ten households headed by whites experienced crime, followed by Indian/Asians (8,4%) while about 7,1% of those headed by black Africans were victimised" (South Africa 2016, 91). Sources indicate that white South Africans are heard more on crime-related issues, as they have more access to the media (Vice-Chancellor 4 Sept. 2018; SAHRC 7 Sept. 2018), and that "[p]oor rural black South Africans do not have the ability to voice themselves in the same way [as white South Africans do]" (Vice-Chancellor 4 Sept. 2018). Sources indicate that white South Africans are able to live in better areas and pay for private security services (Vice-Chancellor 4 Sept. 2018; SAHRC 7 Sept. 2018).
The applicant’s representative drew the Tribunal’s attention in written submissions and orally at the second hearing to the sentence in the report which noted the community Survey 2016 results indicating that “households headed by whites and Indian/Asians were more likely to be affected by crime than other population groups” indicating that this was a ‘finding by the Immigration Refugee Review Board of Canada (quoted immediately before the statistics on murder)’ which supported the applicant’s claims. As discussed with the applicant’s representative at the hearing the Tribunal was concerned this was a misrepresentation of the information which was not a finding of the IRCB but a reporting of country information and was not, in the Tribunal’s reading, linked to murder statistics. Indeed, the crimes listed following the statistics were property crimes (albeit it not to the exclusion of other crimes).
The IRBC report goes on to cite sources in the debate over farm crimes in South Africa:[18]
According to the Vice-Chancellor, "[s]tatistics show that violent crimes against white farmers is lower today than 15 years ago. If there was genocidal intention against white South Africans, these statistics would be the opposite" (Vice-Chancellor 4 Sept. 2018). Sources indicate, however, that police statistics on farm murders are not recorded "by race" (Afrika Check 8 May 2017; BBC 3 Nov. 2017). The BBC explains that given the lack of current data on the number of farmers in South Africa and "what proportion of people on South Africa's farms is white," it is "impossible to say whether white farmers are more at risk than black farmers - or more at risk than the population at large" (BBC 3 Nov. 2017). According to the 2016 Community Survey of Statistics South Africa, 143,361 agricultural households out of 2,329,043 agricultural households have a white household head (South Africa 2016, 83). The BBC notes, however, that there is no data on the number of people in these households or "how many of the households are racially mixed"; this then makes it difficult to assess the likelihood a white South African farmer is to be killed (BBC 3 Nov. 2017).
Sources indicate that rural communities are more vulnerable to crime (CBS with AFP 23 Aug. 2018; Vice-Chancellor 4 Sept. 2018; Agri SA 2018, 5), because of the remoteness of properties (CBS with AFP 23 Aug. 2018; Agri SA 2018, 5) with "little protection" (CBS with AFP 23 Aug. 2018). According to Al Jazeera, however, there is "no evidence to suggest that farmers as a group suffer more attacks than any other demographic in the country" (Al Jazeera 30 Aug. 2018). The Guardian indicates that "[t]he isolation of farms and the limited protection provided by police are … factors often cited to explain the level of violence in [farm] attacks" (The Guardian 26 June 2018). According to Agri SA's report, the farming community has worked alongside organizations, such as the Agri Securitas Trust Fund and the police, to devise safety plans to protect farmers (Agri SA 2018, 6).
[18] IRBC Response to Information Request ZAF106171.EResponses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca),
As discussed with the applicant’s representative, the Tribunal had difficulty with the submission that this information supported a finding that the applicant was at risk of serious harm for the essential and significant reason of her race or ethnicity in South Africa. While there was evidence that white South Africans were victims of crime, this was consistent with a generally high rate of crime in South Africa and the country information suggested that to the extent race was relevant to those statistics black South Africans were similarly impacted by crime.
The Tribunal also noted that the IRBC report cited sources indicating that while state resources to deal with crime were ‘not as efficient as they need to be’ this impacts South Africans regardless of race.’[19]
[19] IRBC Response to Information Request ZAF106171.EResponses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca),
Country information suggests that issues regarding race and racially motivated violence, crime, harassment and discrimination in South Africa with a complex history of institutional and social racial conflict are complex and nuanced.

100. While the applicant’s representative submitted that the lack of country information supporting a finding that white South Africans are targeted for the essential and significant reason of their race was due to the sources of those reports not wishing to negatively report on the performance of a Black African government, the Tribunal does not accept this submission. The Tribunal observes that almost without exception these reports are objective, impartial, attempt to show balance in often difficult and changing circumstances and appear to be credible.
Law enforcement
101. The South African Police Service (SAPS) has primary responsibility for internal security. The police service in South African is a national body that operates on a local, provincial and national level. Section 205 of the Constitution specifies the objects of the SAPS are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. The South African Police Services Act, the functions of the SAPS are as follows:[20]
[20] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 27 citing the African Policing Civilian Oversight Forum (APCOF)
·ensure the safety and security of all persons and property in the national territory;
·uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the Constitution;
·ensure co-operation between the Service and the communities it serves in the combating of crime; and
·reflect respect for victims of crime and an understanding of their needs.

102. Information indicated efforts had been made to increase police response rates and the police attempt to respond to all incidents within a reasonable time. While there are reports of corruption and human rights abuses by the SAPS an Independent Police Investigative Directorate is required to investigate allegations of police offences or misconduct and ‘extensive provision for oversight mechanisms of the police exist in South Africa, on both an internal and external level.’[21]
[21] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 29 and 30 citing the African Policing Civilian Oversight Forum (APCOF)
103. There was no information before the Tribunal that police refuse to act on reports of crime on the basis of race or ethnicity. With respect to State Protection the IRBC Reports:[22]
[22] IRBC Response to Information Request ZAF106171.E Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)
According to the Vice-Chancellor [Vice-Chancellor of Witwatersrand University in Johannesburg], "[w]hile the crime rate remains high [in South Africa], police stations and the appropriate infrastructure to address the high crime rate are not always available" (Vice-Chancellor 4 Sept. 2018). According to sources, the state provides all South Africans who are victims of crimes the same services, irrespective of race (Vice-Chancellor 4 Sept. 2018; AfriForum 7 Sept. 2018). The Vice-Chancellor explained that
state institutions … are not as efficient as they need to be. … There is state incompetence in some departments. These factors have impacts on citizens, regardless of race. Black citizens experience these impacts far more than white South Africans. (Vice-Chancellor 4 Sept. 2018)

Sources indicate that state institutions like the SAHRC ensure that human rights are respected (Vice-Chancellor 4 Sept. 2018; SAHRC 7 Sept. 2018). According to the Vice-Chancellor,
[a]nyone experiencing discrimination can report to [the SAHRC and the Public Protector]. The legal system in South Africa is vibrant. The press is robust, vibrant, alive and independent and holds political elites accountable. The media comes to [the] defence of its citizens, regardless of colour. (Vice-Chancellor 4 Sept. 2018)

According to Campbel [John Campbell, Ralph Bunche Senior Fellow for Africa Policy Studies, Council on Foreign Relations],

[t]here are state protection measures available to white South Africans who are victims of violence. For instance, the SAPS and the judiciary (which is quite independent) offer protection. To illustrate this point: if a person is attacked and robbed on the street, the police would investigate and arrest the perpetrator. The perpetrator is then tried in a court, and then sentenced to jail, without any reference to race. (Campbell 30 Aug. 2018)

Consideration and Findings
104. The Tribunal accepts, based on her earlier evidence before the delegate that the applicant was born in South Africa.

132. Further, in order for the applicant’s subjective fear of harm based on her race, ethnicity or political opinion to be well-founded in objective reality, the persecution feared must also involve systematic and discriminatory conduct by State or non-State actors. The Tribunal is of the view the applicant’s fear of serious harm is based on random and opportunistic incidents of general crime and violence and therefore find the persecution feared does not involve systematic and discriminatory conduct as required by s5J(4)(c). Accordingly, the applicant’s fear of harm based on her race, ethnicity or political opinion is not a well-founded fear pursuant to s5J.
Claims related to the applicant’s neurological condition
133. As noted above, the Tribunal accepts that the applicant suffers from a serious, degenerative neurological condition. The applicant contends that she will be persecuted as a member of a particular social group of ‘people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin’. The same considerations apply to the assessment of this social group as detailed above with respect to women at risk. The Tribunal accepts that this claim is consistent with the grounds set out in s.5J(1)(a) of the Act.
134. The Tribunal notes that this is a claim which is effectively made on the applicant’s behalf by her representative and sisters. The applicant has no insight into her neurological condition and no capacity to assess risk. As such she is unable to articulate a claim based on her medical condition or mental health. However, she clearly accepted the representative’s ongoing carriage of her application, having engaged him well prior to her diagnosis.
135. In any event, in the Tribunal’s view the claim arises on the information before the Tribunal.
136. The South Africa’s Constitution guarantees every citizen access to health services. However, access to private health services depend on an individual’s ability to pay. The majority of patients access health services through the public sector District Health System, which is the preferred government mechanism for health provision within a primary health care approach. According to country information, the private sector serves 16% of the population while the public sector serves 84%.[23]

[23] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, pp 18-19
137. According to the UK Home Office:[24]
[24] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 20.
The Foreign and Commonwealth Office travel advice for UK citizens travelling to South Africa observed: ‘South Africa has a very high standard of private medical care, comparable with the UK. Private health care can be expensive…Public medical care varies across South Africa, and standards of treatment and hygiene may not be the same as you would expect in the UK.’

138. The United States State Department (USSD) Overseas Security Advisory Council (USSD OSAC) South Africa 2020 Crime & Safety Report stated:[25]
[25] Quoted in Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office, p 20.
139. The private health care sector in South Africa ranks among the best in the world……Three private health corporations, NetCare, Mediclinic, and Life Hospitals, dominate the private health care system in South Africa. Each corporation runs approximately 60 hospitals throughout the country. Nearly every medium-sized city, including those near remote game parks, has at least one private hospital operated by one of these corporations.
140. Country information suggests mental health resources are limited in South Africa with as many as one in six South Africans suffering from anxiety, depression or substance-use problems.[26]
[26] Country Background Note, South Africa, Version 2.0, August 2020, UK Home Office.
141. There was no information that the lack of mental health services was due to any systematic or discriminatory conduct by the authorities or other groups in South Africa. There was no information to suggest that access to general medical or mental health services was restricted or prevented on the basis of gender, ethnicity, or any other reason. However, information suggests that those who can afford private health care have greater access to health care services.
142. US Department of State reports that ‘Persons with disabilities could access education, health services, public buildings, and transportation on an equal basis with others.’ The law prohibits discrimination based on physical, sensory, intellectual, and mental disability in employment or access to health care, the judicial system, and education.[27] However there were reports of Persons with disabilities were sometimes subject to abuse and attacks, and prisoners with mental disabilities often received no psychiatric care.[28]
[27] ‘Country Reports on Human Rights Practices for 2022 - South Africa’, US Department of State, p.27.
[28] ‘Country Reports on Human Rights Practices for 2022 - South Africa’, US Department of State, p.27.
143. The Tribunal notes that on the evidence, it does not appear that the applicant suffered discrimination or stigmatisation on that basis in the past. However, her neurological condition was diagnosed until she was in Australia and as such the absence of prior harm is not an indicator of the risk of future harm in her circumstances.
144. As noted above, the applicant submitted an email and response that her sister had sent to the South African Department of Health. While the applicant’s representative offer this in support of [Ms A]’s contention that the South African Health system could not support her needs and that she would be denied services on the basis of her race as a white South African. As noted above, the Tribunal did not consider that this email amounted to evidence, or country information, suggesting the applicant was being denied access to health care for a particular purpose or reason, in particular any of the grounds detailed in s 5J.
145. Further, this evidence was somewhat at odds with [Ms F]’s account of the availability of services in South Africa which focussed on the inadequacy of those services, particularly for her sister’s rare form of dementia, and the fact most white South Africans chose private health care to ensure access to quality health care.
146. Having regard to the evidence offered by the applicant’s sisters on her behalf and the available country information, the Tribunal does not accept that the applicant would face a real chance of serious harm due to her membership of the identified particular social group. The Tribunal accepts based on country information have limited access to medical resources, medications and management support in South Africa. The Tribunal that these issues impact the particular social group of ‘people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin’ of which the applicant is a member.
147. While country information suggests that mental health services are limited and there is some societal discrimination against people with mental health issues in South Africa, it does not suggest that persons are likely to be persecuted on that basis.
148. The Tribunal accepts the applicant will require fulltime care. Based on the medical information before the Tribunal such care is not for the purposes of treatment as the applicant’s condition is degenerative and incurable, but because her condition manifests itself in a way which will require round the clock care and supervision. The Tribunal accepts such care is difficult for family members to provide in a home setting. The Tribunal accepts that the applicant’s family’s home arrangements or work commitments in South Africa way render her care burdensome. This may result in her being institutionalised in facilities which do not provide a level of care equal to that she may receive in Australia. However, in this does not render the applicant’s condition a ground for persecution.
149. The Tribunal considers that the claim she will be persecuted for the essential and significant reason of her membership of the particular social group of people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin expresses a fear of the harm that may befall her as a result of her condition and not as a result of any systematic and discriminatory conduct by an agent of harm. In the applicant’s circumstances, concerns regarding her condition and her capacity are understandable. However, the fact she may require care which may not be available at the level desired by those protection her interests does not, in the Tribunal’s assessment mean those reasons give rise to a claim for refugee protection.
150. The Tribunal also notes that inadequacy of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions. This includes with respect to any risk of self-harm due to any suicidal ideation on the part of the applicant. Complementary protection considerations are addressed further below.
151. The Tribunal finds there was no credible evidence to suggest the applicant would be denied access to mental health or medical services for the essential and significant reason of her neurological condition, rare, ethnicity, political opinion or her membership of a particular social group of people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin’. The Tribunal is not satisfied that she has a well-founded fear of persecution on this basis.
Refugee assessment
152. In assessing the prospective exposure faced by a given applicant to harm in South Africa on return, the Tribunal is required to consider the applicant’s various risk profiles individually and cumulatively.
153. The Tribunal notes that the applicant is a white South African woman, she is single. The delegate accepted she was opposed to the ANC though the Tribunal was unable to make any assessment of her current political views. She has a rare and degenerative neurological condition.
154. Based on credible country information and the Tribunal’s assessment of the applicant’s prior history and circumstances on return to South Africa, the Tribunal does not accept that the applicant would be persecuted for any of the claimed reasons. The country information suggests that while South Africa has a high general crime rate, there is no real chance the applicant will be seriously harmed as a victim of crime for the essential and significant reason of her race, ethnicity, political opinion or membership of a particular social group as a women at risk.
155. Nor does the Tribunal accept, based on country information, that the applicant has a well-founded fear of persecution on the basis she is a member of a particular social group of people who suffer from a clinically diagnosed mental condition which renders her incapable of supporting herself or surviving in her country of origin’.
156. The Tribunal has assessed the applicant’s personal profile and has found that the applicant does not face a real chance of serious harm being directed at her for a Convention related reason on those bases, individually or cumulatively.
157. Accordingly, for the purposes of this assessment, the Tribunal finds that the applicant does not meet the requirements of s.36(2)(a) of the Act.
Complementary Protection assessment
158. Having found that the applicant does not satisfy the refugee criteria, the Tribunal must proceed to consider the alternative, ‘complementary protection’ criteria, at s.36(2)(aa) of the Act. The test the Tribunal must apply here is whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to South Africa, now or in the reasonably foreseeable future, the applicant faces a real risk of significant harm.
159. The Tribunal notes that ‘significant harm’ under s.36(2A) of the Act defines this in a manner that implies a standard of particularly grievous harm, committed by an agent of harm.
160. In assessing whether the applicant faces a real risk of significant harm on return to South Africa, now or in the reasonably foreseeable future, the Tribunal must consider the various risks individually and cumulatively.
161. As noted above, the Tribunal accepts that the applicant has the following profile:
·She is a single white woman;
·She has a small number of immediate family members in South Africa;
·The applicant is suffering from a degenerative neurological condition which renders her in need of constant care and supervision, removes her capacity to assess risk, causes her to display a lack of social inhibition and situational awareness and renders her unfit to work.

162. While the Tribunal did not accept that the applicant would be seriously harmed for the essential and significant reasons claimed, the Tribunal considers that the cumulative effect of these particular vulnerabilities and risk profiles is considered, the Tribunal finds that cumulatively there is a risk that the applicant would suffer significant harm on return to South Africa as a reasonably foreseeable result of her return there.
163. The applicant’s mental condition renders her particularly vulnerable to the environment of generalised crime in South Africa. The Tribunal considers her condition elevates her risk of coming to the adverse attention of criminal elements within south Africa and to be targeted for harm due to her profile and the external presentations of her condition. Further, the fact she may require institutional care but lacks the capacity to assess risk and behaves in ways which are considered social inappropriate places her at elevated risk of physical and sexual abuse in the context a public health system where resources are stretched and sexual violence against women is a widespread feature of elevated crime rates. Should she disengage with her family in South Africa, which is a possibility which is more than remote given her condition, there is a real risk that she would be unable to subsist due to an inability to work or access public services without significant guidance and assistance.
164. The Tribunal finds that the country information referred to above suggests to a satisfactory level that the harm the applicant would be exposed to would include a risk of violent crime, sexual assault and an inability to subsist which amount to significant harm. This risk applies now and in the reasonably foreseeable future.
165. In considering whether or not the applicant would have access to effective and durable state protection and the availability of relocation within South Africa, having had regard to the country information referred to above and the evidence of the applicant, the Tribunal is not satisfied that s 36(2B) applies to her.
166. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
167. The applicant’s risk arises from her personal vulnerabilities and the prevailing country circumstances which exist throughout South Africa. While she would be less at risk in the home area of her sister, her condition is such that even under the care and protection of her sister she would be exposed to a risk of harm which is not remote. The Tribunal has also had regard to the applicant’s condition which the Tribunal accepts would be exacerbated by the impact of relocating to an area without close family support. In the applicant’s case, such relocation would not only be unreasonable but virtually impossible.
168. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
169. With respect to state protection available to the applicant, the applicant submitted that South African authorities would not protect her because of her race, ethnicity or perceived political opinion. The Tribunal does not accept this. However, given the applicant’s particular vulnerabilities and the country information regarding the elevated level of general crime in South Africa and the stretched resources of South African authorities to deal with crime, the Tribunal does accept that the police force lacks the capacity to protect the applicant from a targeted attack by elevated risk of crime which the applicant would be exposed to based on the cumulative adverse elements of her profile. The police capacity in this regard is limited due to a range of factors including capabilities and resourcing. It would also be limited by the applicant’s own capacity to access resources and report instances of harm or perceive risk in order to seek protection.
170. The Tribunal finds on the available country information that having regard to the risk of significant harm to the applicant from the criminal elements in South Africa, effective and durable state protection is not available to the applicant if she were returned to South Africa, now or in the reasonably foreseeable future.
171. There is nothing to suggest the applicant can access effective third-country protection for the purposes of s.36(3) of the Act.
172. Given these finding, the Tribunal is satisfied that, on return to South Africa the applicant faces a real risk of significant harm, now or in the reasonably foreseeable future.
173. Accordingly, the Tribunal is satisfied that the applicant satisfies the complementary protection criteria, at s.36(2)(aa) of the Act.
Third country protection
174. In light of the Tribunal’s findings detailed above, consideration must then be given to whether the applicant has a right to enter and reside in third country pursuant to s.36(3) of the Act which is as follows:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

175. Section 36(4) of the Act is as follows:
However, subsection (3) does not apply in relation to a country in respect of which:

(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

176. In SZRTC v MIBP the Full Federal Court unanimously held that a temporary period of residence contemplated by s.36(3) need not be linked with protection obligations owed to an applicant, and need not be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances in his or her country of origin.[29]
[29] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28], [33] and per Flick J at [43]. This rejected the approach of Lee J (obiter) in WAGH v MIMIA (2003) 131 FCR 269 at [34], namely that while the right to reside may not be permanent, it must be co-extensive with the period in which protection equivalent to that to be provided by Australia as a contracting state would be required, should not be followed.
177. Their Honours summarised the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[30]
[30] At [25].
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the ‘gateway’, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the ‘gateway’ open.

178. The Tribunal has considered available country information relevant to economic co-operation and freedom of movement in the southern region of the African continent. There are a number of such formal regional agreements in place, including the South African Development Community (SADC). [31] South Africa is an active member of SADC.[32] The available country information relating to SADC visa conditions applied by SADC member countries indicates that non-resident, visa-free travel is possible between the countries of Botswana, Malawi, Mozambique, Mauritius, Swaziland, South Africa, Tanzania, Zambia and Zimbabwe. [33]
[31] Bertelsmann Stiftung, BTI 2020 Country Report– Zambia, Gutersloh: Bertelsmann Stiftung’s Bertelsmann Stiftung 2020, page 38; DFAT Country Brief South Africa, South Africa | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
[33] Home | SADC
179. South Africa is a member of SADC’s Protocol on Facilitation of the Movement of Persons of 2005, which seeks to progressively eliminate barriers to movement of persons, goods, capital and services amongst its 16 member states.[34] Implementation of this treaty has also been slow. The SADC protocol has not been ratified by a majority of members, however multiple SADC states have signed bilateral agreements for visa exemption on certain grounds. As such, most citizens have the ability to travel freely within the region, at least on paper and for a short period of time although there are different visa requirements.[35] SADC is progressing towards allowing visa-free travel for citizens of member countries.
[34] SADC website, Southern African Development Community: Integration Milestones (sadc.int)
[35] J Grunder, ‘Facilitating the free movement of people in Africa’, Imani Development, 18 December 2020
180. On the face of it, the available country information suggests that the applicant may have had a right to enter and reside in a third country for the purposes of s.36(3) of the Act prior to her arrival in Australia. However, careful regard must be had to her particular circumstances, together with the potential effect of s.36(4), (5) and (5A)[36] of the Act in light of available country information.[37]
[36] As per Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 and SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43.
[37] BAJ16 v Minister for Home Affairs [2019] FCCA 1598.
181. While the applicant may have ‘a right to enter and reside in’ one of the member countries of SADC in the sense contemplated by s.36(3) of the Act, the Tribunal finds that having regard to the applicant’s neurological condition, medical and supervisory needs, the applicant would be at real risk of suffering significant harm such in countries due to her personal circumstances and characteristics as detailed above. Without family support and subject to an ongoing degenerative neurological condition, she would be at risk of harm due to discriminatory attitudes to mental health condition and inadequate mental health support in other areas of Africa[38] in additional to the social risks associated with the presentations of her illness including lack of capacity to assess risk and lack of social inhibitors. Due to her personal characteristics and illness, including being a South African citizen outside South Africa, she would be unlikely to be able to avail herself of adequate state protection or avoid activity which may bring her to the adverse attention of authorities or other sections of society which may cause er significant harm. This places her at real risk of significant harm.
[38] ‘Mental Health in Africa’, Sankoh et al, The Lancet, 1 September 2018; ‘Why Africa needs to start focusing on the neglected issue of mental health’, The Conversation, 9 February 2018, Accordingly, the Tribunal finds that s.36(3) of the Act does not apply in the applicant’s circumstances.
Summary
183. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as a refugee. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

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

185. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Simone Burford
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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 2736

6 April 2023

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