2001531 (Refugee)

This matter concerned an application for a protection visa by a white South African woman who had experienced prolonged domestic violence from her former husband. The applicant claimed that her former husband, who she divorced but continued to live with until 2016, was politically well-connected and continued to monitor her, leading her to fear he would assault or kill her if she returned to South Africa. The Tribunal was required to determine whether the applicant met the criteria for a refugee status or complementary protection.

The court was tasked with assessing whether the applicant had a well-founded fear of persecution for reasons of race or membership of a particular social group, as defined by the Migration Act 1958 (Cth). Failing that, the court had to consider whether there were substantial grounds for believing that, upon removal to South Africa, the applicant faced a real risk of suffering significant harm, cruel or inhuman treatment or punishment. The court also had to consider the applicant's personal attributes and vulnerabilities when assessing the seriousness of any harm.

The Tribunal found that while the applicant was a white South African and had been subjected to significant domestic violence and cruel and inhuman treatment by her former husband, her fear of persecution did not meet the threshold for refugee status under section 36(2)(a) of the Act, as she was not targeted for reasons of religion, nationality, or political opinion. However, the Tribunal was satisfied that there were substantial grounds for believing that the applicant would suffer significant harm, cruel or inhuman treatment or punishment if returned to South Africa, satisfying the criteria for complementary protection under section 36(2)(aa) of the Act. Consequently, the decision under review was remitted.