2001531 (Refugee)

2001531 (Refugee) [2024] AATA 2610 (31 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Phillip Joel
CASE NUMBER:  2001531
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Wayne Pennell
DATE:31 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(aa) of the Migration Act.

Statement made on 31 March 2024 at 9:20pm
CATCHWORDS
REFUGEE – Protection Visa – South Africa – a white South African – experienced significant domestic violence over a long period during marriage to former husband – applicant has been a victim of violent and concerning criminal action from the perpetrators – substantial risk of significant harm exists across the country – would suffer significant harm, along with cruel or inhuman treatment or punishment – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant a protection visa to the applicant under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 3 January 2020.
The applicant claims to be a citizen of South Africa and applied for a protection visa.[2] When assessing her application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Africa, there was a real risk she would suffer significant harm. Therefore, the delegate refused to grant the visa on the basis that she was not a refugee as defined by the Act[3] and she was not a person in respect of whom Australia has protection obligations.[4]
[2]The applicant lodged her application on 16 January 2017.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[5] At a subsequent time, the Tribunal sent a letter to her and advised that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone. She accepted an invitation to attend an in-person review hearing scheduled for 4 December 2023, and she was represented throughout the review process.
[5]The applicant’s review application was filed with the Tribunal on 29 January 2020.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of South Africa and she provided a copy of her passport and birth certificate to authenticate this claim. The Tribunal accepts her identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that South Africa is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[20] 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.
[20]Migration Act 1958 (Cth), s 499.
APPLICANT’S BACKGROUND AND CLAIMS
The applicant was born in Bloemfontein, South Africa. After graduating from high school, she had been employed in a number of positions prior to travelling to Australia. Although there were the occasional brief periods when she was not employed, overall she has enjoyed full time employment within the South African community, including working in [specified fields]. and later on she worked for 25 years as an [occupation] for a company.
In respect to the applicant’s home region, the Tribunal appreciates and acknowledges that while racial identification terms such as ‘black’, ‘white’ and ‘coloured’ are problematic, it is important for the purposes of these reasons that this type of terminology be used to describe the circumstances of the applicant’s claims and the situation within South Africa. Furthermore, these words of description continue to be used within post-apartheid legislation in South Africa,[21] and are terminology the applicant has submitted in relation to her application.
[21]Broad-Based Black Economic Empowerment Act 2003, Act No 53, Republic of South Africa Government Gazette, Volume 463, Number 25899, 9 January 2004 provides that the term “black people” is a generic term which means Africans, Coloureds and Indians.
The Tribunal is therefore satisfied (and so finds) that based on the physical appearance of the applicant, and the documentary evidence she provided, the applicant is a white South African.
Applicant’s Claims
The applicant claimed that when she lived in South Africa, she experienced significant domestic violence over a long period during her marriage to her former husband. She married him in [year]. She was only at the time. In 1997, she initiated and obtained a divorce from him, but continued to live in the same residence with him until 2016.
She said that during that period, she obtained between 20 to 30 domestic violence protection orders. On each occasion she was the aggrieved and he was the respondent. She further indicated that notwithstanding the orders, he frequently ignored those orders and continued to be domestically violent towards her. When she reported this to the police, no action was taken against him.
The applicant left her former husband on many occasions but returned to their relationship because he made threats to kill members of her family. She said that he was a controlling and manipulative individual and he persistently did both of those things to her and members of her family. She also said that he is politically well-connected within South Africa and continues to monitor her and she fears he will assault or kill her if she returns to South Africa.
At the hearing, the applicant also raised claims with regard to the Broad-Based Black Economic (‘B-BBEE’) Policy in South Africa and the Tribunal will return later in these Reasons to explain the B-BBEE and discuss the applicant’s claim as to how the B-BBEE impacts upon the applicant.
The applicant had provided statement in which she described the systematic domestic violence she experienced by her former husband. The applicant described that she lived with abuse from a very young age through witnessing an alcoholic father physically abusing her mother. As a child, she and her siblings were exposed to various types associated domestic violence, particularly when her father arrived home intoxicated and started abusing her mother. She acknowledged that on reflection, her childhood was extremely difficult for many years and because of the domestic violence in family home, there were many occasions when she and her siblings were sent away to stay with other family members.
The applicant explained that her mother eventually left her father after he kidnapped the applicant’s younger brother from his day care centre. Eventually, the applicant, her mother and her siblings lived with another family, however the applicant and her two sisters were sexually abused by a member of the family they were staying with. Her mother later remarried into another abusive relationship and the applicant and her siblings continued to endure further domestic violence throughout their childhood. She described that abuse was an everyday occurrence for her and her siblings.
She went on to say that she was [age] years of age when she married her husband. Even after she got married, the abuse did not subside as she and her husband moved into live with her mother. She claimed that her husband started abusing her as well. It seems that he had a similar upbringing to her in that he was also physically abused as a child and by abusing the applicant was his way of dealing with his own childhood trauma. Often her and her husband were asked to leave her mother’s house, and they ended up on what she described as ‘the streets’. She disclosed that during these times, she and her husband slept in parks, on balconies in back rooms of vacant houses, and even in alley ways between houses. She now realises that she married her husband thinking he would be her saviour and rescue her from her abusive childhood because she was drawn to him as figure of authority, but as it has turned out, he was just as manipulative and controlling as my mother's husband.
The applicant went on to provide significant and detailed information relating to incidents which happened over a long period of time. She sought help from the South African Police Force, and she secured numerous domestic violence orders against her husband and opened at least three cases against him. However, regardless of the number of domestic violence orders in place, as well as reports she made to the police, he continued to be domestically violent towards her.
The first significant incident she discussed was what she described as her husband assaulting and raping her. This came about during a very violent argument between them. He was extremely angry and he started slapping her around the face. He then started kicking and punching her ‘everywhere’. She described that he punched and kicked her ‘anywhere on her body he could. The abuse took place over a prolonged period, and during that time he dragged her to the bed so that he could have sex with her. When she refused, he assaulted her again. After a period of time, during which she was repeatedly assaulted, he again too her to the bed for sex. When she pleaded with him not to, he told her that it was her duty to please him. He held her down with an arm across her throat and raped her. The next morning she spoke to a family friend about what had happened and her friend encouraged her to make a complaint to the police.
She went to the police station and reported what happened. She also underwent a forensic and sexual assault examination by the district surgeon who conducted tests on her to document the various physical injuries she had received form her husband. Physically, her injuries included two broken ribs, bruised kidneys and various bruises. She was granted a domestic violence order and her husband was supposed to keep away from her. However, she explained that there was no enforcement from the police as they just considered it a domestic situation, meaning that it was something to be dealt with between both the applicant and her former husband in the privacy of their own home. She said that her complaint did not go any further because of that and ultimately she paid the price for complaining to the police as her husband’s assaults on her continued.
A further incident she described involved him depriving her liberty. She explained that after two days of what she called ‘beatings and mental abuse and being confined to the house’, she waited until her husband needed to go to the toilet before she fled the house. She ran down the street, but he chased her in a car, catching up with her and then dragging her into the car and handcuffing her. She was taken to his sister's house where subjected her to further physical abuse. Members of his family were present, however her pleas to them for help went unanswered. He engaged in other acts of domestic violence that day but threatening her with a knife and a firearm, and placed rope around her neck and threatened to hang her. She said that eventually he took her back to their own home where they were found by the police. She made a complaint about what happened by claims that the compliant never went any further.
At a subsequent time, the applicant learnt her husband been sexually active with a [age] year old female child. Because she approached the parents of the child and confirmed his involvement with the child, she was later repeatedly assaulted by him in retaliation for her getting involved. She claimed that she was punched, kicked and threatened with a knife. At one point he handcuffed her to the bed and straddled her and assaulted her around the head. He also at some point played ‘[a game]’ on her with a firearm to her head, and she recalls that when he pulled the trigger of the gun the firearm did not discharge. Later on, her brother collected her and took her to the police station where she made a complaint.
The applicant claimed that those were the incidents where she actually got sought help from the police. She claims that nothing happened from her complaints so far as the police investigating her husband. She claimed that he had ‘connections’ with senior ranking police officers and her files (complaints) kept disappearing. It is noted that the delegate when considering all of the facts relating to her claims was not convinced that she had experienced the domestic violence to the extent that she claimed, and was susceptible because of the lack of domestic violence orders or courts orders to substantiate this. The Tribunal has a different view and as discussed later in these Reasons, the Tribunal is aware of certain information which is publically available on the internet about Trevor Noah (‘Mr Noah’). Mr Noah is a South African national now living in the United States of America (‘USA’). Mr Noah’s mother was killed by his step-father who was known to and connected to the police hierarchy. Mr Noah highlighted an issue of corruption within the South African Police Force, claiming that his mother had reached out for years to police for help, but her complaints went missing and cases never went to court. The suggestion of missing complaints is not too dissimilar to the applicant’s claims and the circumstances surrounding Mr Noah are discussed in greater detail later in these Reasons.
In disclosing those numerous examples of domestic violence which she had endured over a long period of time, she described herself as always being a nervous wreck as a result of the abuse she experienced. She claimed that she has been beaten up, bashed up and lived her life in fear. She claims that if she were to return to South African she would be return to a place where her ex-husband has threatened to kill her.
In regard to other violence that the applicant endured in South Africa, she described to the Tribunal that about three years prior to arriving in Australia she was living in Johannesburg. She was a victim of a number of burglaries. She described one incident when three perpetrators who were armed with hand guns removed tiles from her roof and broke through the roof and gained access to her house. The three men threatened to harm her and they demanded money, jewellery and mobile phones from her.

Another incident took place which she described as a ‘home invasion’. Two men, who were armed with hand guns came into her yard. She retreated to the house and as they approached her house and entered into her yard. Although she had retreated into her house, the men entered her house and demanded valuables, phones, televisions and anything else of value. She was threatened to be raped and killed, and fortunately for the Applicant, that threat was never carried out.
A further incident took place when the applicant was out in the community by herself. She was driving her car but had stopped at a set of traffic lights behind another car. A male person who was unknown to her was driving that vehicle. A group of men then converged on the car in front of her and one of the men shot the driver. The group then got back into their vehicle and left. She immediately reversed her car away and fled the scene.
Apart from the claims she made about being subjected to the significant and prolonged domestic violence, she also claimed there was an increase of ‘white genocide’ in South Africa because of an increase of violence against white South Africans. It was because of that increase of violence that she had a well-founded fear of persecution because she is a white South African. Already referenced were examples of the applicant being a victim of personal and violent crimes including home invasion type offences and burglaries and she was targeted because she was white. The Tribunal accepts that the applicant has been a victim of violent and concerning criminal action from the perpetrators of that violence when she lived in South Africa.
In respect to her claim about genocide, available to the Tribunal was country information about South Africa which revealed that in 2007, the South African Police Service stopped releasing homicide statistics relating to farm murders. Instead, the statistics were merged with all homicide figures thus increasing the assessment of reliable statistics. Most studies of farm murders now rely upon the statistics of the Transvaal Agricultural Union of South Africa (‘TAUSA’).[22] It is suggested that statistics provided by TAUSA significantly under reports the number of violent attacks on farmers. This is because TAUSA are not told about incidents on smallholdings which is estimated to account for forty per cent of all violent farm attacks. This suggests that statistics on farm attacks since 2007 are likely to be under reported.[23]
[22]Dubula ibhunu (shoot the boer): A psycho-political analysis of farm attacks in South Africa, Pretorius J, University of the Western Cape, Bellville, Cape Town, Psychology in Society, 2014, pages 21 – 40, accessed 3 February 2024.
[23]Farm Attacks and Farm Murders Remain a Concern, Institute for Security Studies, Burger J, 17 October 2012, accessed 5 February 2024.
In 2003, the South African Freedom Front political party stated that farmers were being murdered at a rate of 274 per 100,000 people. When this is compared against the national murder rate of South Africa, the rate at that time was 61 per 100,000 people. The Freedom Front party alleged that Afrikaners were being specifically targeted in the attacks.Media reports placed the deaths of South African farmers as of December 2011 to be in the range of approximately 3,158 to 3,811, while TAUSA’s self-reported data gave an estimation of 1,544 people killed in farm attacks between 1990 and 2012.[24] In 2012, the South African Institute of Race Relations estimated that farmers were 13 times more likely to be attacked than other families, and two to three times more likely to become murder victims than other members of society[25] and between 2010 and August 2023, there were 4,308 recorded attacks on South African farmers which resulted in 806 murders.
[24]White farmers being wiped out, The Times, London UK, McDougall D, 28 March 2010, accessed 4 February 2024; Are SA whites really being killed ‘like flies’?, Africa Check, 24 June 2013, accessed 3 February 2024.
[25]Research and Policy Brief: Farm attacks in South Africa – a new analysis, Cronje F, Holborn L and Sethlatswe B, accessed 5 February 2024.
It has been recently reported that the South Africa Police Service were losing the war on crime and the police service must rethink its outdated strategies as the rate of violent crime in South Africa surges. The South African crime statistics for the third quarter of 2023 show that people continue to face a serious problem of violent crime, especially murder and attempted murder. The country’s per capita murder rate over the recent decade showed that the period of 2022 to 2023 was the highest rate murders in 20 years at 45 people per 100,000 murdered. This is a 50 per cent increase compared to the corresponding period of 2012 to 2013.[26]
[26]SAPS are losing the war on crime: Must rethink outdated strategies as violent crime rates surge, Biz News, Lamb G, 20 November 2023, accessed 30 January 2024.
In responding to reports about attacks on white South African farmers. the South African government rejected the notion that white farmers were specifically attacked and said that that there were no reliable figures to suggested white farmers are at greater risk of being killed than an average South African. The government went on to say that white genocide in South Africa has been promoted by right-wing groups in South Africa and the United States and is a frequent talking point among white nationalists.[27] However, according to an assessment by Genocide Watch[28] and the George Mason University in Virginia, USA, there are early warnings of genocide still deep in South African society, although genocide has not begun.
[27]Bury them alive!: White South Africans fear for their future as horrific farm attacks escalate, Chung F, 25 March 2017, accessed 5 February 2024.
[28]>
Genocide is a description given to the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group and although the Tribunal is satisfied that there is a significant crime rate in South Africa, in particular murders, and there are examples of members of the white farming community being targeted for attacks of violent crimes including murder, the Tribunal is not satisfied that the country information supports the claim that specific genocide is taking place against members of the white community. Although the Tribunal accepts her claim that she is a white South African, the Tribunal is satisfied (and so finds) that the evidence does not support her claim of genocide in South Africa.
In respect to her employment prospects should she return to South Africa, the applicant said that she would be returning to what amounts to structured unemployment against a background of state induced lawlessness. She said that because of the B-BBEE introduced by the government, there has been a significant drop in employment opportunities for white South Africans, and without employment she will not be able to subsist and will be exposed to a risk being unemployed if she returned to South Africa. She also said that in respect to state protection, the South African police are corrupt and ineffective and given the significant domestic violence she experienced at the hands of her former husband, she fears that she could be attacked in her own home because there is no guarantee of a response for a call of help to the police. She also claimed that if the police do respond and arrest the perpetrator of the violence, the culprit can be arbitrarily released back into the community thus placing her at further risk. When assessing that claim, and weighing that against the country information available to the Tribunal as to the circumstances relating to Mr Noah, the Tribunal does not discard the potential for those fears to be a reality.
Returning to discuss the B-BBEE, this is a government initiative to advance economic transformation and enhance the economic participation of Black people (African, Coloured and Indian people who are South African citizens) in the South African economy. The principle objectives of the B-BBEE Act is to promote economic transformation and enable meaningful participation of black people in the South African economy, through increased participation in ownership and management structures, increasing the involvement of communities and employees in economic activities and skills training. The B-BBEE Act defines "black people" as a generic term which means Africans, Coloureds and Indians who are citizens of South Africa by birth or descent; or those who became citizens of South Africa by naturalisation before 27 April 1994. The B-BBEE Act seeks to increase the participation of black people in the South African economy by requiring that every organ of state and public entity must apply any relevant code of good practice issued in terms of the B-BBEE Act when, amongst other things, determining the qualification criteria for the issuing of licenses, permits or other authorisations, when determining their procurement policies and when developing criteria for entering into partnerships with the private sector, and enabling the Minister of Trade, Industry and Competition to gazette codes of good practice to regulate the measurement of B-BBEE.[29]
[29]Guide to Broad-Based Black Economic Empowerment, 2023 Edition, McKenzie B, accessed 15 March 2024.
The applicant claimed that the characteristics of the B-BEEE principles continue to be prejudicial to the chances of employment for white South Africans and it is a principle ruthlessly applied for the self-enrichment of the political elite connected to the African National Congress in South Africa and without employment she will not be able to subsist in South Africa. The applicant further submitted that the contamination and corrosion through theft of the budget of the South African Police Service and the character of violent crime generated by the State. The ‘state capture’ has been formulated and maintained by Government officials at the highest levels, as established by country information regarding contamination of the B-BBEE.
Available to the Tribunal was an amount of country information relating to the B-BBEE and according to the official website of the South African Government’s Department of Trade,[30] Industry and Competition, South Africa’s first democratic government was elected in 1994, with a clear mandate to redress the inequalities of the past in every sphere: political, social and economic. Since then, the South African government has embarked on a comprehensive programme to provide a legislative framework for the transformation of South Africa’s economy.
[30]
In 2003, the B-BBEE Strategy was published as a precursor to the B-BBEE Act. The fundamental objective of that legislation was to advance economic transformation and enhance the economic participation of black people in the South African economy. The Act also provides a legislative framework for the promotion of black economic empowerment, empowering the Minister of Trade and Industry to issue codes of good practice and publish transformation charters, and paving the way for the establishment of the B-BBEE Advisory Council. The website went on to explain that in order to fulfil the legal mandate as outlined in the Act, South Africa’s President, Mr Jacob Zuma, appointed members to the B-BBEE Advisory Council on 3 December 2009.
The aims of the Advisory Council were to provide guidance and overall monitoring of the state of B-BBEE performance in the economy, with a view to making policy recommendations to address challenges in the implementation of this transformation policy. The B-BBEE Codes of Good Practice emerged in February 2007 as an implementation framework for B-BBEE policy and legislation, and after the implementation thereof, institutional mechanisms were established for the monitoring and evaluation of B-BBEE in the entire economy. It was also explained on the website that the Minister of Trade and Industry announced the release of the revised B-BBEE Codes of Good Practice. Minister Davies says the refined Codes symbolise a new beginning in the re-orientation of the transformation policy to focus more on productive B-BBEE and the growth of black entrepreneurs through Enterprise and Supplier Development elements.
The applicant said that the corrosion through theft of the budget of the South African Police Service and this has led to the character of violent crime generated by the State. The applicant also said that state capture in South Africa has contributed to the risk of serious harm should she return to South Africa.
The applicant submitted that the formal procedures of state capture, such as laws and social norms and government bureaucracy are manipulated by government officials, state-backed companies, private companies or private individuals, so as to influence state policies and laws in their favour. State capture seeks to influence the formation of laws, in order to protect and promote influential actors and their interests. In this way it differs from most other forms of corruption which instead seeks selective enforcement of already existing laws.[31]
[31]Seize the State, Seize the Day, State Capture, Corruption, and Influence in Transition, Hellman J S, Jones G and Kaufmann D, September 2000, Policy Research Working Paper, World Bank,
Within South Africa, state capture relates to what has been described as a scandal erupting in 2016 in South Africa with the release of a damaging report on state capture by the outgoing Public Protector of South Africa who recommended the appointment of the Zondo Commission of Enquiry (‘Zondo Commission’) in January 2018 to investigate state capture by the former South African President and his association with a well-known wealthy crime family who immigrated to South Africa in 1993. The 2022 Zondo Commission report focused on how appointments were made to various boards and expressed strong views on the system of political deployment. That South African President resigned and the new South African President responded by committing the Government to implement most of the Commission’s recommendations.[32]
[32]How and Why Did State Capture and Massive Corruption Occur in South Africa, IMF Public Financial Management, Momoniat I, 10 April 2023, accessed 5 February 2024.
The applicant went on to say that the South African government, in particular the Police Force do not adequately, or failed to provide state protection. She relied upon her experiences with the police who she said failed to provide her protection from the domestic violence she experienced because of her former husband’s connection to, and the significant corruption within the South African Police Force. When carefully assessing her claim that the police had been ineffectual in protecting her, the Tribunal has very carefully considered all of the country information referenced above, as well as the other available information relating to Mr Noah and accepts, and is so satisfied, that the country information supports the claims made by the applicant with respect to state protection.
CONSIDERATION OF THE APPLICANT’S CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Africa, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[33] In reaching a decision in this matter, the Tribunal is generally obliged to have regard to the best and most current information available.[34]
[33]Migration Act 1958 (Cth), s 36(2).
[34]Shi v The Migration Agents Registration Authority (2008) 235 CLR 286, [41].
The mere fact that the applicant claims to have a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
In conducting a review hearing, the Tribunal undertakes an ‘inquisitorial’ process and has the discretion to seek out evidence it requires in order to reach a determination. However, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[35] After all, the obligation is upon the applicant to present her own case, and to specify all the particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claims.
[35]ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
The Tribunal does not have a responsibility or an obligation to specify or assist in specifying any particulars of the applicant’s claims, or to establish or assist in establishing her claims.[36] This is consistent with the established principle that proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.
[36]Migration Act 1958 (Cth), s 5AAA.
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution if she was to return to South Africa. The Tribunal must then decide whether those claims are made out[37] and the Tribunal is not required to uncritically accept any or all of the allegations made by the applicant.[38]
[37]Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14, [187]
[38]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Inevitability as with cases such as this, the Tribunal is required to undertake an assessment of the credibility of the applicant. Any assessment is an inherently difficult process and can be based on imperfect perceptions of truth.[39] When undertaking that assessment in this matter, the Tribunal has given significant regard to the determinations of the Courts[40] and notes further that it has been a well-established principle that any assessment of the reliability and credibility of evidence is not an exact science and should be undertaken carefully, thoughtfully, fairly and reasonably.[41] In that regard, the Courts have determined that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[42] A similar approach is taken in the Department’s Refugee Law Guidelines[43] and in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection,[44] which provides a useful guide for this Tribunal in regard to the principle of the benefit of the doubt.
[39]Fox v Percy (2003) 214 CLR 118.
[40]Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[41]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, [23].
[42]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816, [25] citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
[43]Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[44]United Nations High Commissioner for Refugees Handbook, re-issued February 2019, page 44, paragraphs 203 – 204, accessed 5 February 2024.

The Tribunal takes this opportunity to provide an assessment in respect to what is considered the credibility of the applicant and the veracity of her evidence. The Tribunal is satisfied that during the review hearing and the evidence she gave, there was nothing within the manner in which she delivered her evidence that gave any cause of concern about her credibility. The Tribunal also accepts the veracity of her evidence.
The applicant argued, and relied upon the evidence that complementary protection with respect to significant harm as per the provision of the Act, primarily in regard to two specific area. Firstly, that she has a well-founded fear of returning to South Africa because she fears being persecuted for reasons that she belongs to the membership of a particular social group, and there is a real change that, if she returned to South Africa, she would be persecuted because she belongs to that particular social group. Additionally, the real chance of persecution relates to all areas of South Africa.[45]
[45]Migration Act 1958 (Cth), s 5J.
In respect to this matter, the Tribunal accepts that the applicant identifies as a member of a social group of ‘women in South Africa’ as she shares characteristic of this group in that her gender is the same.[46] Although the characteristic is not a fear of persecution,[47] those shared characteristics are innate;[48] and the characteristic distinguishes the group from society.[49] The High court said in Applicant S v Minister for Immigration and Multicultural Affairs that:
….to determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.[50]
[46]Migration Act 1958 (Cth), s 5(a) and s 5(b).
[47]Migration Act 1958 (Cth), s 5L(d).
[48]Migration Act 1958 (Cth), s 5L(c)(i) noting the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), page 178 at [1220].
[49]Migration Act 1958 (Cth), s 5L(c)(iii); Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 that a particular social group can be distinguished from the society at large.
[50]Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, 394.
Consistently, the Courts have determined and accepted that the definition of ‘particular social group’ should be interpreted broadly[51] and women, or a subgroup of women, can comprise a particular social group, and women in any society are a distinct and recognisable group.[52] For the purposes of these Reasons, the Tribunal is satisfied (and so finds) that the applicant falls within the definition as prescribed within the Act for a particular social group.
[51]Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401; Minister for Immigration and Ethnic Affairs v Respondent “a”, Respondent “B” and Janet Wood, the Refugee Review Tribunal (1995) 57 FCR 309; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.
[52]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.
The applicant has made a claim in regard to what the Tribunal accepts is horrific and degrading domestic violence perpetrated upon her by her former husband. In South Africa, the Domestic Violence Act 116 of 1998 is the law that deals with domestic violence in that country and this law exists to give people who are experiencing domestic violence the best possible protection and it commits the government to stopping domestic violence. Similar to the domestic violence laws enacted by the various states of Australia, domestic violence is described as any form of abuse which includes physical, sexual, emotional, psychological or economic harassment; damage to property; stalking; entering a person’s property without consent; or any other abusive or controlling behaviour where such conduct causes harm or may cause harm to a person’s health, safety or wellbeing.
Domestic violence in South Africa has been viewed as a taboo subject until recently. In 2012, just over one-third of violent crimes committed against women ended in criminal prosecution. By 2019, domestic violence was still considered to be problematic in South Africa with the World Health Organisation establishing that approximately 60,000 women and children in South Africa were victims of domestic violence. South Africa is said to have the highest statistics of gender-based violence in the world.
In 2019, the South African President indicated that violence against women and children had reached epidemic proportions. Total crimes committed against women increased, by 15.6% from 155,062 in year 2020-2021 to 179,208 in the year 2021-2022. Murder, sexual offences, common assault and attempted murder contributed to the increase, and crimes committed against children increased, by 13.3 per cent from 39,878 to 45,197 for the same period.[53] In the following year, for the period of 2022-2023 there was a further increase of 8.1 per cent for crimes against women and 2.1 per cent for crimes against children was recorded.[54] In the Tribunal’s mind, those statistics reveal an increasing level of threat towards women and children within South Africa, and when very carefully assessing those statistics, the Tribunal has a concern as to whether the applicant could be afforded adequate state protection should she return to South Africa.
[53]South African Annual Police Report 2021 – 2022, page 162.
[54]South African Annual Police Report 2021 – 2022, page 49.
It was touched on earlier in these reasons that when the delegate considered the applicant’s claims, a cloud hovered over what was perceived as her credibility in respect of her claim of police corruption involving the files relating to her complaint going ‘missing’. The Tribunal is aware of country information which relates to circumstances very similar to the applicant’s claims, and within these Reasons an earlier reference had been made to Mr Noah. Mr Noah is a South African comedian, writer, producer, political commentator, actor, and television and talk show host and he has publically disclosed that he grew up in a household where for a significant period of time his mother faced abuse from his step-father. In 2009, his step-father pleaded guilty to attempting to murder his mother. He shot her a number of times in the head.
Because of the number of death threats he received from his step-father, Mr Noah has since moved to the USA where he now lives.[55] Prior to moving to the USA, he highlighted corruption within the police system, claiming that for years his mother had reached out to the police for help, but the complaint dockets went missing and her complaints or cases never went to court. The Tribunal is satisfied (and so finds) that this has a significant ring of familiarity to the applicant’s claims about the complaints she made to the police about her husband, and also accepts her evidence about her complaints being ignored an her case documents went missing.
[55]Trevor Noah ‘fled’ to Hollywood, City Press, 11 March 2012, accessed 18 March 2024.
With respect to issues surrounding contamination of the B-BBEE employment issue, the applicant also relied upon an argument that she also fell within being a member of a particular social group and there is a failure of the South African government to provide an adequate system where employment opportunities are consistent across all spectrums of society. For those reasons this threatens her capacity to subsist.
The concept of subsistence symbolises the ability to continue to exist or remain in being[56] whereas the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being.[57] What must be decided when undertaking an assessment of the applicant’s case is a decision about the risk of future harm, not the risk of future communications.[58] The Courts have determined that the hardship to be experienced by an applicant must be such that it would actually threaten their capacity to subsist[59] and the reference to a denial of a person’s capacity to earn a livelihood is not limited to denial of legal capacity to earn a living.[60] While the examples of serious harm each involve a physical dimension, or threat to subsistence, the list is not exhaustive.[61] The High Court addressed subsistence in determining that the Convention protects persons from persecution, not discrimination. The infliction of harm for a Convention reason does not always involve persecution as much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention, but the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. The High Court went on to find that similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[62]
[56]SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143, [11].
[57]SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725, [23].
[58]VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1.
[59]MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226, [13].
[60]SZQZT v MIAC [2012] FMCA 640, [40].
[61]Migration Act 1958 (Cth), s 5J(5).
[62]Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, [55].
When assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities[63] and an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.[64] The impact and circumstances surrounding the application of a national policy may impact differently on different persons so that in one instance the impact may constitute persecution but in other cases the impact may not be so substantial as to amount to persecution.[65]
[63]AGA16 v Minister for Immigration and Border Protection [2018] FCA 628, [35].
[64]SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497, [153].
[65]SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143, [21].
CONCLUSION AND REFUGEE FINDINGS
The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Upon careful consideration of the applicant’s evidence, along with the claims she has expressed, the Tribunal has given very serious consideration to those factors as outlined in section 5J(1)(a) of the Act and is not satisfied that she experienced persecution in South Africa because she was targeted because of her religion, nationality or political opinion. Turning to the remaining factors, whilst the Tribunal is satisfied that she falls within the ambit of the remaining factors of race and membership of a particular social group, the Tribunal is not satisfied that her evidence meets the threshold of section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion as provided by the Act,[66] the Tribunal has seriously considered the alternative criterion of complementary protection.[67] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Africa, there is a real risk that she will suffer significant harm as it is defined in the Act.[68] The Tribunal accepts, and so finds, that the applicant was subjected to significant, prolonged, serious and multiple episodes of domestic violence and that she was subjected to cruel and inhuman treatment and punishment. The Tribunal also accepts her evidence that her former husband was the person responsible for that significant harm.
[66]Migration Act 1958 (Cth), s 36(2)(a).
[67]Migration Act 1958 (Cth), s 36(2)(aa).
[68]Migration Act 1958 (Cth), s 36(2A).
The Tribunal has also given serious consideration to whether the applicant could relocate to another part of South Africa for her own protection. The Act provides that there is taken not to be a real risk that a non-citizen 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 of suffering significant harm.[69] The question that arises in this case is whether there is an area of the country where, objectively, there would not be a real risk that the applicant will suffer significant harm. That is, is the real risk of harm localised rather than nation-wide.[70] A relevant issue is also whether it would be reasonable to expect the applicant to relocate to another area where there is not a real risk of significant harm. What is reasonable depends on the particular circumstances of the applicant and the impact upon her relocating within South Africa.[71] Having considered all of her relevant circumstances the Tribunal is not satisfied (and so finds) that her relocation within South Africa is not an option which is available to her for her own protection. The Tribunal accepts her evidence that her former husband has made threats of harm towards her, and that the police are ineffectual in protecting her. Therefore the Tribunal accepts that the substantial risk of significant harm exists across the country.
[69]Migration Act 1958 (Cth), s 36(2B)(a).
[70]MZYXS v MIAC [2013] FCA 614, [37].
[71]SZATVv MIAC (2007) 233 CLR 18, [24].
Because of the findings already outlined in these Reasons, the Tribunal is satisfied that there is substantial grounds for believing that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to South Africa. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[72]
[72]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal accepts that if she returned to South Africa now or in the reasonably foreseeable future, she would suffer significant harm, along with cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment.
Therefore, for the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion as set out in section 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(aa) of the Migration Act.
Wayne Pennell

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.
…

[2024] AATA 2610

31 March 2024

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