2000693 (Refugee)

2000693 (Refugee) [2023] AATA 4716 (3 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Joel
CASE NUMBER:  2000693
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Peter Katsambanis
DATE:3 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2023 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – South Africa – race – Boer – particular social group – white Afrikaans or white Boers – dismissed from employment in favour of black person – Black Economic Empowerment (BEE) – significant growth in crime – inconsistent evidence of employment history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 13 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of South Africa, applied for the visa on 6 March 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who is the applicant’s father.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing by telephone link.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
It is noted that there is no DFAT country information assessment for South Africa.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance that if the applicant returns to South Africa he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
The applicant applied for protection on 6 March 2019. In his application form, the applicant stated that he was born on [date] in Springs, Gauteng, South Africa. He has never been married and has no children. He stated that he was from the Afrikaner ethnic group and was of Christian religion.
The applicant stated that his father and his stepmother were living in Australia. His mother and his sister were living in South Africa.
The applicant stated that he had lived at three separate residential addresses in [Suburb 1], Gauteng, South Africa from birth until March 2018. He then lived at another residential address in Benoni, Gauteng from March 2018 until he came to Australia.
The applicant stated that he had completed a [Certificate] [Sport 1] at [University 1] from January 2010 to December 2010. He had then been employed in South Africa as a [Occupation 1] for [Company 1] from September 2011 to March 2013, as a [Occupation 2] for [Company 2] from 1 April 2013 to 30 October 2016 and as a [Occupation 3] for [Company 3] from 1 November 2016 to 1 December 2018.
The applicant stated that he had last arrived in Australia on [date] February 2019 on a valid visitor visa. He had previously travelled to Australia on a visitor visa from [December] 2018 to [January] 2019. In the past, he had made a number of trips from South Africa to Lesotho for work purposes.
In his application for protection, the applicant stated that the essential and significant reason he left South Africa was the systematic and discriminatory conduct, physical harassment and significant economic hardship that threatened his capacity to subsist and the denial of a capacity to earn a livelihood. The applicant claimed the law prevented him from having equal opportunities to jobs, with legislation such as Black Economic Empowerment (BEE), Employment Equity (EE) and Broad-based Black Economic Empowerment (BBBEE).
The applicant claimed that, as a white person, he would be considered last for a position and especially being a young white male. He stated that employers would rather leave a position vacant if there was no black person to fill it as the company stood to lose its BEE status if they filled the position with a white person. He stated that if he wanted to have his own business, he would have to get a black partner to own at least 51% of the business to even be considered for government contracts. He further stated that in sports, they forced teams to have a certain number of black players in the team.
The applicant claimed that there was no future in his country for him and if he had children there would be even less of the future for them. He referred to the ‘Four Pillars’ reasons for his protection claims.
The applicant stated that he had not experienced any harm in South Africa in the past.
The applicant stated that he could not move to any other part of South Africa to escape the harm he feared because there was no place to escape the discrimination in the workplace and the pressures from the law.
The applicant claimed that if he returned to South Africa, he would not have equal opportunity to make a living, have a job and survive on his own. He again made reference to the ‘Four Pillars’ document.
The applicant stated that the authorities in South Africa were corrupt, and they were the ones who enforce these racial discriminatory laws and practices. He claimed that there was no place to go where you could escape the law.
The applicant provided the Department with copies of his South African passport, driver’s licence and national identity card.
The applicant also provided the Department with a copy of a document titled ‘The Four Pillars of South African White Protection Claim’. The document outlined the four pillars as follows:
·Blatant discrimination against white minorities
·Dehumanisation by the media and government and fellow citizens
·Public threats to be killed
·Crime wave against white people
This document provided examples of the claimed treatment in relation to each of the four pillars.
Protection Visa Interview
The applicant was interviewed in relation to his protection visa application by the delegate on 11 December 2019.
At this interview, the delegate’s decision record notes that the applicant claimed that although he had lived with his mother in South Africa, he was no longer in contact with her because he never had a good relationship with her. He claimed that his mother did not own a property in South Africa and his sister had told him that his mother had recently moved to another town. His sister was not living with the mother but was instead living with her boyfriend. The applicant claimed he did not own any property in South Africa.
The applicant told the delegate that when he was working for [Company 2], he would travel to Lesotho for a few hours at a time to [visit] a client and would then return to South Africa. He had not visited any other countries prior to coming to Australia.
At this interview, the applicant confirmed the claims he had made in his protection visa application and stated that because of black empowerment and the BEE he could not get a permanent job, only a part-time job or contract jobs in South Africa. He claimed he could not build a future for himself, could not buy a house or a car and could not have a family. He stated that he could try to start his own business, but he did not have the capital to do so. He added that even if he did have the capital to set up his own business, he would need to have a black owner to own more shares than him in this business to be considered for government projects and tenders.
The applicant stated that he feared going home because he always needed to look behind him, as there were a lot of criminals who try to steal anything off you. He felt discriminated just for being white and claimed that even though he knew he could do a job or a sport, white males were the last ones in South Africa to be considered for anything. He claimed he could not stay in the country without being scared and he feared he was never going to have a permanent job. The applicant claimed that government officials sing ‘kill the Boer’, which was a very bad thing to hear especially if you are white.
The applicant claimed that you hear a lot of things on the news such as murders, corrupt officials and farm murders. He claimed he could not seek protection from the police because they were corrupt and were hiding most of the stuff that was happening in South Africa.
The applicant claimed that he had a job in South Africa, which was not permanent, and everything was smooth. However, they called him in one day and, although he had done nothing wrong, he lost his job because it was given to a black person. The applicant claimed that he would hear on the news every day in South Africa that white people were the reason the economy was bad. These types of statements boil you up as a person, psychologically break you down and make you question your purpose in life. The applicant claimed that he would frequently hear noises when he was sleeping and on one occasion, he heard people in his property who were either trying to steal or trying to get into the house. He claimed this happened frequently and you could not get a good night’s sleep. He also stated that he never stopped at traffic lights or stop signs in South Africa in case he was hijacked or murdered.
The delegate refused to grant the applicant a protection visa on 13 January 2020.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 15 January 2020. The applicant also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
In a submission to the Tribunal dated 10 October 2022, the applicant’s representative stated that after the applicant’s parents divorced around 2000, the applicant’s sister lived with her mother however, and at the age of 13 the applicant went to live with his father. The applicant’s father migrated to Australia in January 2015 and subsequently the applicant’s sister migrated to Australia two years ago. After completing his tertiary studies in 2010, the applicant returned to live with his father until the father departed for Australia. The applicant then went to live with his mother in rented accommodation.
The representative claimed that since the applicant arrived in Australia, he had maintained close contact with his mother, and she had been placed in a vulnerable position as a result of the continuing deterioration of the South African economy and the significant growth in crime. Despite living in a secure townhouse complex, security was insufficient and there had been numerous attempts to break in. It was claimed that movements from the house remained characterised by the perception of ever-present danger and there was a threat of armed attack at any time. It was also stated that on the way to work, his mother’s car had been stopped, a window was smashed, and items were stolen but his mother had not been attacked.
The representative outlined the applicant’s employment history in South Africa, stating that in September 2011 the applicant had been employed by [Company 1] and had then worked for around three years for [Company 2] in Johannesburg. He then obtained employment with [Company 4] in [Johannesburg]. Subsequently, the applicant became a [Occupation 3] for approximately two years.
The representative stated that the applicant’s employment at [Company 4] was arbitrarily terminated through no fault of his own, with a black person replacing him. After the loss of this employment, it was a very difficult time for the applicant, and he relied on accommodation offered by friends.
The representative stated that the characteristics of the applicant’s social group include Afrikaans/Boers who are subject to discrimination which is abusive and beyond the program of positive discrimination sanctioned by the South African government, such as BBBEE. He claimed that this group had been subject to crime and reduction in employment opportunities in circumstances where the group has been particularly affected by the continuing deterioration of appropriate services, notably police and employment.
The representative argued that the applicant’s claims could be distinguished from generic claims made by White Boers because of the vulnerability of the applicant and his mother, based on the family’s fragmentation in circumstances where employment discrimination focused on Boers against the general background of increasing violence based on economic desperation of the African population as a consequence of significant corruption, which had contaminated the growth of the country.
It was stated by the representative that the level of violent attacks in recent years with respect to the social group of which the applicant was a member had significantly worsened in the absence of the applicant since 2019. The representative claimed that there had been an uprising during 2020-2021 which involves wholesale looting and property destruction.
In the submission, the representative outlined arguments against the findings made in the delegate’s decision, including statements that the decision had been based on highly selective country information that was manifestly out of date.
In support of the applicant’s claims, the representative provided links to the following news articles and websites:
·an article from BizNews dated 20 July 2021 entitled ‘Looting and civil unrest: Damage to South Africa will be lasting, says Brian Pottinger’
·an article from the Times Live website in South Africa dated 5 October 2022 and titled ‘I’m going to defeat you again white boys: Malema on AfriForum’s leave to appeal ‘Kill the Boer’ ruling’
·a link to the South African government website containing a statement made on 20 August 2021 by Police Minister General Bheki Cele on the release of the Quarter One Crime Statistics 2021/2022
·an article from the United Nations ‘UN News’ website dated 15 July 2022 and titled ‘South Africa on the precipice of explosive xenophobic violence, UN experts warn’
·an article from the Defence Web website in South Africa dated 31 March 2022 and titled ‘South Africans have low trust in their police - here’s why’
·a link to an article in the Journal of Commonwealth Law and Legal Education dated November 2013 and titled ‘Police corruption in South Africa’
·a link to a website called Buddy Outreach (which the Tribunal was not able to access, however a copy of an article at this link was provided after the hearing)

The Tribunal has read and considered this information prior to making its decision in this matter.
In a statutory declaration dated 10 October 2022, the applicant stated that he was aware of the factual matters raised in his additional submission to the Tribunal. The applicant also stated that he did not fully understand all the legal principles presented by his lawyer, but the lawyer had attempted to explain the meaning of the submission to him.
Tribunal Hearing
At the hearing the applicant stated that he had been born in Springs, which is a suburb of Johannesburg, and had grown up in [Suburb 1], which is another suburb of Johannesburg. His father was now living in Australia and his mother was living in Benoni, Johannesburg.
The applicant stated that in South Africa, his father had been a [occupation] working for large [companies]. His mother worked as an administrator for [company]. The applicant confirmed that his mother was still employed in this role, although he was uncertain if the company had recently changed its name.
The applicant claimed that his mother was currently living in a rented property in Benoni, and that this property was a one-bedroom apartment or granny flat located in the backyard of another property. He confirmed that his mother lived alone at this property. He stated that his mother moved to this property after the applicant had come to Australia.
The applicant stated that he has one sister who was [age] years old and is currently living in Australia. He also has a stepbrother and a stepsister, who both live in Australia. He stated that his sister obtained Australian permanent residency through their father in 2015 and came to Australia with the father around that time. She returned to South Africa around December 2018, but then came back to Australia approximately two years later in 2020. The applicant stated that he was too old to be included in his father’s permanent residency application at the time his father migrated to Australia.
The applicant claimed that he was in contact with his mother every week but when asked if he had regular contact with his mother since first arriving in Australia, the applicant responded that in the beginning they were not as talkative, but they were talking more often recently. When asked to explain why he was not as talkative with his mother when he first arrived in Australia, the applicant stated that there was no real reason, but his mother was sad that the applicant had come to Australia and was living far away from her. The applicant stated that he had not been fighting with his mother at or around the time that he came to Australia.
The applicant stated that he was not married, was not currently in a relationship and had no children. He claimed that in Australia he was employed as a [Occupation 3]. He commenced this job in November 2019 and was employed at the company’s premises in [Western Australia].
The applicant stated that after his parents divorced, he lived with his mother during his primary school years but around the age of 13 he moved to live with his father, who was still in South Africa at the time. After his father moved to Australia in 2015, the applicant returned to live with his mother and continued to live with his mother until he first came to Australia in December 2018. The applicant also stated that when he returned to South Africa in January 2019, he again lived with his mother.
The applicant stated that he had attended a government high school in South Africa and had then completed a one-year [certificate] at [University 1]. During his studies at university, he lived in student [accommodation] but would return to Johannesburg on weekends because the campus was only around [number] km from his house.
The applicant stated that in South Africa he played [Sport 1] at a semi-professional level that was just below the professional level. He stated that he played for his university team and was also playing for [team], which was associated with a [Sport 1] team franchise. He had also played [Sport 1] in Australia when he first arrived, however he was currently not playing.
The applicant stated that he had been in regular employment in South Africa before he came to Australia. He claimed that after university, he obtained a job at [Company 1] where he managed 120 employees. He then worked for [Company 2] before moving to a company called [Company 4]. He then worked for a [company] called [Company 3].
The applicant claimed that he worked at [Company 2] for almost 3 years, but he could not recall the specific dates that he had worked there. He stated to the Tribunal that it was probably until 2014 or 2015.
In relation to his employment at [Company 4], the applicant stated that he worked there for around six months. When asked to outline the dates he had worked there, the applicant stated he did not know the exact dates but believed it was around mid-2016.
The applicant stated that he finished working at [Company 3] just before he came to Australia. He confirmed that he was not sacked from this job but quit in order to come to Australia. He also stated that he arrived in Australia on a holiday or visitor visa.
The applicant was asked why he would choose to quit his job in South Africa to come to Australia on a holiday when it was clear that his Australian visitor visa did not permit him to remain in Australia on a permanent basis. In response, the applicant stated that he quit his job in South Africa once he came to Australia to apply for a protection visa. When asked if his employer had kept his job open for him after he had left South Africa to visit Australia, the applicant stated that he was only employed there temporarily because it was a company owned by his friend’s dad. He added that after leaving [Company 4] he was struggling so they helped him out. He stated that he had worked at [Company 3] for over a year.
The applicant claimed that he came to Australia in December 2018 for a holiday to see his father and stayed for around one month before returning to South Africa. When asked why he chose to come back to Australia in February 2019, around one month after he had departed, the applicant responded that when he came here for a holiday he returned to South Africa because his return tickets had already been booked. He realised that things were different in Australia, so he came back here and then applied for a protection visa.
The applicant was asked what his intention was when he arrived in Australia in February 2018. He responded that his intention was to seek protection. When asked why he did not apply for protection before he departed Australia in January 2019, the applicant responded that he was not sure how he was supposed to do it and he already had return flights booked to South Africa. He claimed that after he returned to South Africa, his father told him that he had found an agent to help him so he then took the first available flight that he could afford to return to Australia. He added that he returned to Australia only a month after he his previous departure.
The applicant claimed he did not work during the month that he returned to South Africa. He stated that when he left Australia to return to South Africa, he did not know the procedures for applying for a protection visa, but he found out about them around three days after he had returned to South Africa.
The applicant was asked to outline to the Tribunal in his own words what problems he had experienced in the past in South Africa. He responded that he had experienced many different problems. The applicant claimed that it when he was working at [Company 4], he was qualified for the job, but the management sacked him and replaced him with a black person who the applicant knew did not have the appropriate qualifications. He claimed that a client later told him that the company needed to improve their BEE status, which was why they sacked the applicant.
The applicant then stated that during the night at all the properties where he had lived there would be people who would jump over the fence to steal things and would try to come into the house to steal valuable possessions. The applicant claimed that when he would hear these people, he would turn the lights on and scream at them to scare them away. He also claimed that he would call police but every time it took anywhere from two hours to 5 or 6 hours for the police to attend the scene. With such a poor response time, the applicant stated that he and his family could have been harmed. The applicant added that even at secure complexes with six-foot walls, electric fences and barbed wire offenders could not be deterred.
The applicant was asked if he could recall when these events had occurred. He responded that they happened throughout his life. He claimed that he would remember these sorts of incidents as a child and also after high school. He stated there had been more instances of these types of events than he could count on his hands.
The applicant was asked if he or his family members had suffered any harm as a result of these incidents. In response, the applicant stated that they had never suffered any personal injuries, but they always lived in constant fear of harm.
The applicant stated that one night, when his mother was driving, her car window had been smashed and the offenders stole her belongings before running away. He claimed that his sister was also in the car when this incident happened. The applicant stated that after this incident the family would drive through traffic lights when it was safe to do so even when they were red, so that they could avoid any further similar harm. When asked if he could recall the date on which this incident happened, the applicant stated that it was around 2016. He claimed that he believed his mother reported the incident to police but he stated that he did not have a copy of the police report.
The Tribunal asked the applicant if he had suffered any other harm in the past in South Africa. The applicant stated that there was one time when he was walking home from school when he was around 15 years old. He then stated that he was pushing his bike at the time because it had a flat tyre. Around 800 metres from home, he was stopped by some guys who jumped out of a taxi or minivan and tried to grab his bike. However, someone in a vehicle coming the other way stopped in front of the taxi and scared these people away. The applicant then ran home in fear of his safety.
The applicant was asked if he had suffered any other harm in the past in South Africa apart from the incidents that he had just mentioned to the Tribunal. In response, the applicant stated that it bothered him a lot that leaders of political parties would encourage the singing of hate speech songs such as ‘Kill the Boer’ because he was a Boer, and he believed the songs were targeted at people like him. The applicant stated that just the other day a court decision had been made that these types of songs were not hate speech. The applicant claimed that when he heard these types of songs and he heard on the news about attacks every day, he would wonder why they are being allowed.
The applicant then stated that since he came to Australia, he realised that things had become worse in South Africa. He claimed that last year there was widespread looting across South Africa and there was nothing done to stop the looters until a few days later when the army got involved, but it was then too late.
The applicant claimed that his main concern was that thieves would try to steal from people his own age because older people do not have new items such as modern technology. He feared that he would be attacked because he had nice stuff that the thieves would like to have. He added that a lot of his friends were losing their jobs to other races just like he had done at [Company 4], and some of his friends were stuck in South Africa without work or money.
It was pointed out to the applicant that he had been asked a question about events that had occurred to him in South Africa in the past, but instead of providing a responsive answer about past events, he had diverted to an answer about things that had occurred in South Africa after he departed the country and things that may happen to him if he returned to South Africa. It was also pointed out to the applicant that he appeared to be reading from the notes in front of him. On this basis, the Tribunal stated to the applicant that it was unsure whether he had simply misunderstood the question asked or whether he was reciting information committed to memory and from his notes without any reference to the question being asked. In response the applicant apologised the Tribunal but offered no further explanation for his non-responsive answer.
The applicant stated to the Tribunal that in Australia he had first lived with his father, but he was now renting a property with his sister who was also working full-time in Australia.
The Tribunal asked the applicant what harm he feared if he returned to South Africa now or in the reasonably foreseeable future. In response, the applicant stated that if he went back, as a young white male, he would not be able to get a job and without a job he would not be able to afford a house or food. He added that he could not live with his mother because she was now living in a one-bedroom property.
The applicant stated he feared that he would be harmed if he had to live in South Africa again and he also feared that he would be killed simply because thieves wanted to take a cell phone or other things like that from him.
When asked if he feared that somebody would target him specifically for harm, the applicant stated that this was not the case, but he felt that thieves would target his age group and people of his Boer ethnicity or race because they would think he had a lot of belongings even if he didn’t. He added that these people would want to steal these belongings.
The applicant was asked who these people were that he feared harm from. He responded that he feared harm from criminals and from a lot of unemployed people. He agreed with the Tribunal that these people would attack him out of opportunistic greed or desperation. However, he added that it may also be because of his skin colour.
The applicant was asked if he had any other fears about returning to South Africa. In response, the applicant stated that if he went back and he was harmed, he feared that he could not rely on the South Africa police to help him and did not think that they were in a position to protect him. When asked why the police would not protect him, the applicant responded that they do not have enough training to be police and the police force was now comprised of many people of other colours who would rather help their own colour first. He added that the police in South Africa were incompetent because they can take three or more hours to respond to a call for assistance. He stated that a long time ago police were very good but since the new South Africa started it had all gone downhill from there.
The applicant agreed with the Tribunal’s statement that he had a very stable and consistent work history from the time he finished university until the time he left South Africa to come to Australia. He also stated that he had accumulated a lot more skills since he had lived and worked in Australia. On this basis, the applicant was asked why he would struggle to obtain employment if he returned to South Africa, given his skills and experience and his past history of stable employment in South Africa. He responded that he knew there were not enough available jobs especially in [Industry 1], which was his career in Australia. He added that there was simply not enough employment in South Africa.
It was pointed out to the applicant that high unemployment was not a new phenomenon in South Africa and had existed for many years. However, in the past the applicant had been able to secure stable and ongoing employment despite such high unemployment rates. In response, the applicant stated that he believed unemployment was higher now. He added that some of his friends had jobs and others didn’t but those that did have jobs were on minimum wages which did not enable them to live on their own, start a family or have children.
The Tribunal pointed out to the applicant that in his application form for a protection visa he had listed all of the positions of employment he had held in South Africa, but he had made no mention that he had ever been employed at [Company 4]. He had also stated on this form that he had never experienced any harm in the past in South Africa and he made no mention whatsoever of any claim that he had ever been dismissed from employment in South Africa in favour of a black person. However, in his representative’s submission to the Tribunal and at the Tribunal hearing the applicant had raised the claim that he had been dismissed from his position at [Company 4] in favour of a black person.
Given that he had not mentioned any claim relating to any dismissal from employment and had not mentioned the fact that he had ever been employed at [Company 4] in his application form, the applicant was asked why the Tribunal should accept that this claim was genuine and that he was being a witness of truth about this claim. The applicant responded that when he filled out his application form, he let his previous agent handle everything. After he applied to the Tribunal, he realised that this agent had not told his complete story, so the applicant asked his current representative to outline his whole story. The applicant added that he could not solely blame his previous agent, but he had put a lot of trust in this person.
It was pointed out to the applicant that the previous agent had mentioned all other employers of the applicant in South Africa - being [Company 1] [Company 2] and [Company 3] - but had not mentioned [Company 4] at all. On this basis, the Tribunal asked the applicant why it should accept that he was ever employed at [Company 4]. The applicant stated that he could not remember what had happened four years ago, but [Company 4] was on his CV, and he was being honest about the things that happened to him there.
The applicant confirmed to the Tribunal that it was his current claim that after working at [Company 2] he had moved to [Company 4] before commencing work at [Company 3]. It was pointed out to the applicant that in his application form, he had stated that he had finished working at [Company 2] on 30 October 2016 and had started working at [Company 3] on 1 November 2016, which would indicate that the applicant went directly from his job at [Company 2] to his job at [Company 3]. In response, the applicant stated that this was not correct. He claimed that he went from [Company 2] to [Company 4]. He then added that he might have missed this when he completed his application form.
The Tribunal pointed out to the applicant that the fact he was prepared to return to South Africa in January 2019, after his initial visit to Australia, may indicate that he did not have the fears of harm that he claims to have in relation to returning to South Africa. In response, the applicant stated that he knew it was silly. He claimed that he was not sure how to apply and do things and his return flight to South Africa had already been booked. He added that as soon as he knew about the protection visa, he took a flight to return to Australia.
The applicant was asked if he applied for a protection visa because he had genuine fears of harm in South Africa or because he had been advised it was the most convenient visa that he could use to enable him to remain in Australia on a permanent basis. The applicant responded that he genuinely applied for protection.
The applicant was asked why he had stated at his interview with the Department on 11 December 2019 that he no longer had contact with his mother because he never had a good relationship with her but had claimed at the hearing that he had maintained regular contact with his mother since his arrival in Australia. The applicant responded that there was a period when he and his mother did not really see eye to eye. He believed that this arose from some psychological things relating to his parents’ divorce. He claimed that he and his mother never agreed on anything, there was a period when they fought a lot, and they stopped talking. He added that after he was in Australia for over a year, he came to the realisation that he should treat his mother better because she had been good to him. Now their relationship was good, and he would phone her regularly.

It was pointed out to the applicant that earlier in the hearing he had stated that he was not fighting with his mother around the time when he came to Australia, but he was now suggesting that they were fighting a lot. The applicant responded that they were arguing a lot.
The Tribunal pointed out to the applicant that earlier in the hearing he had indicated that his relationship with his mother was generally good. However, after the Tribunal raised the contradiction between his evidence at the Department interview and his initial evidence to the Tribunal, the applicant appeared to change the nature of his evidence. The applicant responded that maybe earlier in the hearing he was simply talking about how the relationship was now, but he recalled that in 2019 they were arguing.
The Tribunal stated to the applicant that country information from various sources indicated that unemployment was significantly high in South Africa. However, despite affirmative action programs like BEE, statistics still showed that unemployment was much higher amongst black people than white people in South Africa. This country information and the applicant’s experience and stable previous work history in South Africa may indicate that he would not be denied employment opportunities if he returned to South Africa. In response, the applicant referred to the fact that there were more black people than white people in South Africa. When it was pointed out to the applicant that the statistics clearly showed that the percentage of white people who are unemployed was almost 4 times less than the percentage of black people who are unemployed, the applicant stated that he still believed he would find it hard to obtain a job even with his previous career path. He added that a letter that had appeared in the South African news in the past week stated that there would be no white people appointed or promoted in one particular company due to BEE, and he believed this policy would soon spread to other companies.
The Tribunal referred the applicant to country information that confirmed that the crime rate was high in South Africa. However, this country information indicated that criminal behaviour appeared to be opportunistic rather than targeted and there was no evidence that white people were targeted directly or disproportionately in relation to attacks or to crime generally. In fact, there was some country information that indicated that black people were more likely to be victims of crime than white people in South Africa. The applicant responded that the criminals would still target certain groups. He stated that they would not target very young people because they don’t have anything of value, and they were unlikely to target pensioners because they don’t have much anymore, and they particularly do not have new technology or other modern items. However, people like the applicant were in a prime age, worked hard and had expensive things. Black people think all white people are rich so the applicant feels that he would be a target.
The Tribunal referred the applicant to country information which indicated that although South African police may lack some capacity and resources, there was an effective police presence in South Africa that responded to crime and that there was also an effective justice system in South Africa. It was pointed out to the applicant that there was no evidence in any country information the Tribunal had accessed that indicated that the police or the justice system discriminated against white people when dealing with crime or that they deny protection to white people. The applicant responded that he was not sure what country information was being used but he believed it was outdated. He stated that recent events in South Africa such as looting had occurred, a lot of white businesses had been targeted and the police did nothing.
The Tribunal pointed out to the applicant that country information relating to recent looting, including information provided on behalf of the applicant, clearly indicated that businesses had been targeted. However, there was no suggestion that businesses owned by white people were disproportionately targeted or that the looters even cared who owned the business that they were looting. The applicant responded that this was understandable, but he had no trust in the South African police force. He added that everyone gets away with looting and stealing which puts lives at risk.
In relation to chants such as ‘Kill the Boer’, the Tribunal stated to the applicant that such chants were clearly insulting but there was no country information or other evidence to indicate that these types of verbal insults had escalated to any form of physical violence in South Africa. The applicant responded that these people were still singing ‘Kill the Boer’ or ‘Kill the farmer’ and pointed out to the Tribunal that there was significant country information about farm murders in South Africa. However, the applicant confirmed that neither he nor any members of his family were farmers. He did add that he was a Boer.

100. At this point in the hearing the applicant’s representative asked the Tribunal if it could clarify with the applicant whether he believed that the equal opportunity and positive discrimination in employment laws had been properly applied in his case or whether their application had been corrupted and had been applied in a non-lawful manner. The applicant then added that he had taken his case against [Company 4] to the CCMA, which he described as being similar to the Fair Work Commission in Australia. The applicant stated that at the CCMA they had found the company was guilty and offered the applicant a month’s salary.
101. However, when asked why he had not raised this issue about the discriminatory application of these laws or about taking action for unfair dismissal earlier at the hearing and not until he was prompted by his representative, the applicant stated that he had an email about it which he would try to find and send to the Tribunal. He then added that the company had made him an offer at the first meeting at this CCMA tribunal so that the matter would not be taken any further.
102. The representative stated that it was his submission that the applicant had been dismissed from his position at [Company 4] through the discriminatory and unlawful application of the BEE laws in his particular case and asserted that this was a consistent trend in South Africa which had contaminated the spirit of equality that these laws were based on so that the laws were no longer fairly applied.
103. The witness, [Mr A], stated that he was the father of the applicant and added that he had been a member of the South Africa police force from 1989 to 2000 which covered the era before and after apartheid. The witness had welcomed the changes after the apartheid era that would give opportunities to everybody and when the ANC first came to power, they introduced the Equal Opportunity Act. This Act began well but very soon it started to be used as a tool for discrimination against white people.
104. The witness stated that the police system and the government system in South Africa had been contaminated and corruption was very prevalent within the police system. He added that people were not safe in South Africa especially people like his son because their age group was vulnerable. They were also vulnerable because they were white people who spoke Afrikaans and were considered to be Boer. The witness also stated that senior politicians in Parliament incited violence against Boers and farmers, which was simply accepted as normal.
105. The witness claimed that he feared what would happen to his son if he returned to South Africa especially because his age group was a target. The witness claimed he still had friends in the police force, and they tell him what is going on with crime against the age group of his son. He added that old people have old stuff that is not attractive to criminals, but his son’s age group had all the modern technology and new things that the thieves would covet.
106. The witness stated that he had been in Australia for eight years but had never returned to South Africa because he did not want to return given the threats to life on Afrikaans people. He stated that his brother had died in 2018 from a heart attack and his best friend had been murdered by black people in 2019 but he did not return for the funerals because he did not want to return to South Africa. He also did not want his son to go back there.
107. The applicant’s representative suggested that it was a central issue that the applicant had sufficient characteristics to be a part of a particular social group being white Afrikaans or white Boers. The Tribunal agreed that this was not a controversial matter or an issue in dispute.
108. The representative expressed concerns on the generality and the age of the country information that the delegate had relied on when making their decision and further expressed concern about the selective use of such country information. The Tribunal stated to the representative and the applicant that it had endeavoured to source information that was as recent as possible and that if the representative or the applicant had access to any country information that they believed the Tribunal should consider, they should forward it to the Tribunal as a matter of urgency.
109. The representative pointed out to the Tribunal that there was an emerging concept of anticipatory deteriorating conditions and added that a balance should be drawn between the credibility of country information in contrast to the information about an uprising in South Africa where white businesses had been attacked without any appropriate police response.
110. It was agreed that the applicant and the representative would provide any additional documents or other information to the Tribunal by 25 October 2022.
111. The Tribunal also pointed out to the representative and the applicant that, despite multiple attempts, it had been unable to access the Buddy Outreach website link that had been previously provided. The representative indicated that he would provide the Tribunal with copies of any articles or documents at that website that the applicant wished to rely on.
Post Hearing Submission
112. On 24 October 2022, the applicant’s representative provided the Tribunal with the following documents:
·An article dated 6 September 2021 titled ‘Around 400,000 live in ‘white squatter camps’ in South Africa’ (it was claimed that this article was from the Buddy Outreach website previously submitted, which the Tribunal could not access).
·A memorandum dated 19 September 2022 written by Ivan Saltzman, CEO of Dis-Chem Pharmacies, advising senior management that a moratorium will be in place on the appointment of white individuals to enable the company to comply with employment equity targets and avoid potential fines.

RELEVANT COUNTRY INFORMATION
113. Given the applicant’s claims for protection, the Tribunal has had regard to country information about South Africa, including country information provided over time by the applicant. Some of this country information that is relevant to the applicant’s claims is outlined below
Crime in South Africa
114. At the release of the crime statistics for South Africa in February 2023, the South African Police Minister highlighted the significant problem that the country faces in dealing with unacceptably high crime rates by stating[1]:
While the crime figures we are releasing today don’t paint an overall positive picture of the crime situation in our country. They do, however, show that police are pushing back on criminality, through visible policing and disruptive operations.
[1] South African Government, Minister Bheki Cele: Quarter 3 Crime Statistics, Minister Bheki Cele: Quarter 3 Crime Statistics | South African Government ( accessed 31 October 2023.

115. Official crime statistics published by the South Africa Police Service[2], for the quarter of October 2022 to December 2022, show that the incidence of many types of crimes has substantially increased from the level of crime in the same quarter of 2021. For example, murders increased by 10.1%, common robbery by 21.2% and robbery with aggravating circumstances by 10.8%[3]. When aggravated robberies were broken down by sub-categories, carjacking increased by 2.8%, robbery at residential premises increased by 8.6% whilst robbery at non-residential premises decreased by 3%[4].
[2] South African Police Service, Police Recorded Crime Statistics October 2022 to December 2022, Long version 2022-2023 - 3rd Quarter (October 2022 to December 2022) (saps.gov.za), accessed 31 October 2023.
[3] Ibid, p 3, accessed 31 October 2023.
[4] Ibid, p 3, accessed 31 October 2023.
116. The same statistics show that the incidence of crime when measured by a ratio per 100,000 of the population is also extremely high. Murder is measured at 12.4 per 100,000, assault with an intent to inflict grievous bodily harm is at 82.8 per 100,000, common assault is at 86.4 per 100,000 and common robbery is at 20.9 per 100,000[5].
[5] Ibid, p 4, accessed 31 October 2023.
117. A survey dealing with victims of crime conducted by Statistics South Africa for the 2018/19 year revealed that 5.77% of the South African households had experienced housebreaking or burglary over the previous 12 months where there had been no contact between the perpetrator and the victim and a further 1.09% of the population had experienced a home robbery over the same period where there had been contact between the perpetrator and the victim. This survey found that 5.58% of black African households, 7.28% of white households, 4.74% of coloured households and 9.09% of Indian/Asian households had experienced a housebreaking or burglary over the previous 12-month period[6]. In relation to home robbery, the figures were 1.11% for black African households and 1.5% for white households over the same 12-month period[7].
[6] Statistics South Africa, Governance, Public Safety and Justice Survey: 2018/19, Statistical release (statssa.gov.za), pp 20-21, accessed 31 October 2023.
[7] Ibid, p 25.
118. The same survey found that 0.34% of black households and 0.8% of white households had experienced motor vehicle theft over the previous twelve months[8].
[8] Ibid, p 32.
119. In relation to theft of personal property, the figures were 2.59% for black African households and 3.04% for white households over the same 12-month period[9]. By age breakdown, it was revealed that over this period of time, 3.64% of people aged 16-24, 2.76% of people aged 25-34 and 2.29% of people aged 35-54 were victims of theft of personal property. Less than 1.5% of people aged over 55 had experienced such crime during the same period[10].
[9] Ibid, p 41.
[10] Statistics South Africa, Governance, Public Safety and Justice Survey: 2018/19, Statistical release (statssa.gov.za), p 42.
Race Relations and Racial Discrimination in South Africa
120. In its most recent report on South Africa, the independent foundation, Bertelsmann Stiftung described the deeply ingrained divisions in South African society as follows[11]:
South African society remains deeply divided along lines of race, class and gender due to its historical legacies of structural inequality and the failures of post-apartheid governance to diminish these inequalities.
[11] 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung, 23 February 2022, BTI 2022 South Africa Country Report: BTI 2022 (bti-project.org), accessed 31 October 2023.

121. The latest report on human rights from the United States Department of State outlines some of these ongoing racial tensions within South African society as follows:
Systemic Racial or Ethnic Violence or Discrimination
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. Approximately 300 Equality Courts mandated by the Promotion of Equality and Prevention of Unfair Discrimination Act resolved only 600 matters a year. Authorities enforced antidiscrimination provisions in some cases. In November a woman from Gauteng Province was arrested and charged with crimen injuria, an act that injures the dignity of another person, after her racist rants were widely viewed on-line. She was due to appear in court in March 2023.
Some advocacy groups asserted white farmers were racially targeted for burglaries, home invasions, and killings, while many observers attributed the incidents to the country’s high and growing crime rate. According to the Institute for Security Studies, “farm attacks and farm murders have increased in recent years in line with the general upward trend in the country’s serious and violent crimes.”
Local community or political leaders who sought to gain prominence in their communities allegedly instigated some attacks on African migrants and ethnic minorities.[12]
[12] United States Department of State, 2022 Country Reports on Human Rights Practices: South Africa, p 22.

122. Having considered a variety of sources, the Immigration and Refugee Board of Canada (IRBC) made the following observations in September 2018:
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).[13]
[13] IRBC Response to Information Request ZAF106171.E, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 21 September 2018, accessed 31 October 2023.

123. The same IRBC report made the following additional commentary:
"[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).[14]
[14] Ibid, 21 September 2018, accessed 31 October 2023.

Unemployment in South Africa
124. The official unemployment statistics from the South African government reveal that the unemployment rate in South Africa was 32.7% in the fourth quarter of 2022[15]. Although this was a slight reduction in the unemployment rate from the previous quarter, these statistics effectively mean that one in every 3 South Africans who wish to be employed are not able to such obtain employment.

(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 4716

3 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction