2001850 (Refugee) - [2024] AATA 4193

2001850 (Refugee) [2024] AATA 4193 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Joel
CASE NUMBER:  2001850
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Donald Gordon
DATE:7 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 07 August 2024 at 4:21pm
CATCHWORDS
REFUGEE – Protection Visa – South Africa – a member of particular social group – a frail elderly sick woman alone with no accommodation and support – being an elderly – medical condition including PTSD – a white female – no other familial or monetary support – having the sole care of her disabled daughter – there is a real risk the applicant will suffer significant harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 423, 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 review of a decision made by a delegate of the Minister for Home Affairs on 31 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 7 April 2019.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 2 August 2024 to give evidence and present arguments.
The Tribunal also received oral evidence from Miss [A].
The applicant was represented in relation to the review by her solicitor Mr Joel. Her solicitor attended the Tribunal hearing and made submissions on the applicable law.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
ISSUE
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of South Africa, which is also their receiving country for the purpose of their protection claims and assessments.
The Tribunal queried with the applicant whether she has a right to enter and reside in [Country 1] which she answered in the negative.
In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than South Africa, and therefore s 36(3) of the Act is not applicable.
TERMINOLOGY
The Tribunal foreshadows the reasons given below employs strong descriptive terms such as ‘[a type of disability]’, ‘black’ and ‘white’ to analyse the applicant’s claim.
These terms are not words of disrespect, discrimination, insensitivity or racism.
These words arise from the realpolitik of South Africa, the abhorrent practice of apartheid and colonialism, corruption, gendered violence, crime and the applicant’s personal life.
The Tribunal means to cause no offence or disrespect and must engage logically with these terms to ensure a correct decision is made on the application of law and facts.
PROTECTION APPLICATION AND TRIBUNAL PRE-HEARING INFORMATION FORM
The applicant’s protection visa application form sought protection based on fearing harm in South Africa including rape and murder. The applicant had been involved in break-ins to her home between 2015 to 2017, a carjacking on 30 May 2017 and also was targeted as part of the [staff] during the violent riots at [Workplace 1] from 2015 to 2018. Implicit in this claim were relevant integers such as her being an elderly, her medical condition including PTSD, a white female, no other familial or monetary support, having the sole care of her [disabled] daughter, and that her past harm were from black people.
In the Tribunal Pre-hearing information form, the applicant put her claims as also based on new country information concerning the doctrine of ‘state capture’ that has arisen since the 2022 Zondo Commission Report whereby the breakdown in certain state services such as the police has now led to a failure of state protection against the harm she feared.
APPLICATION OF S 423A – NEW CLAIMS AND EVIDENCE
Where an applicant presents new claims and evidence that was not made before the primary decision was given, the Tribunal is required to examine the application of s 423A of the Act.
Section 423A is concerned therefore with whether there is a reasonable explanation for making the new claims and evidence after the primary departmental decision date.
In EQU19 v MICMSMA the Federal Circuit and Family Court of Australia (Division 2) dealt with s 423A in determining what may amount to a reasonable explanation and expressed the view that there was no established or formal procedure to determine what may amount to a reasonable explanation, stating:
Unlike sections such as s 424AA, s 423A does not impose on the Tribunal a method by which it is to obtain the explanation, nor prescribe any preconditions to its operation (see for example s 424AA(1)(b)).[1]
[1] EQU19 v MICMSMA [2022] FedCFamC2G 609 at [100].
The primary decision here was made on 31 January 2020.
The Zondo Commission Report on State Capture was issued on 22 June 2022.
Therefore, the applicant could not have relied on the country information with respect to the doctrine of state capture espoused in the Zondo Commission Report at least until after 22 June 2022 and well beyond the date of the primary decision.
The Tribunal finds that the applicant has a reasonable explanation for raising the doctrine of state capture after the primary decision date.
SUR PLACE CLAIM
The High Court’s decision in Minister for Immigration and Citizenship v SZJGV provides guidance on dealing with sur place claims.[2] A person who becomes a refugee after leaving their country of nationality is called a refugee ‘sur place’. These may be due to changes in the conditions of that country after departure or due to a person’s own activities after their departure because those activities may come to the attention of authorities in their country.
[2] Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 238 CLR 642 at [40].
The Tribunal must therefore turn to consider the application of s 5J(6) of the Act which provides that in determining whether a person has a well‑founded fear of persecution, 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.
The Applicant relies on the doctrine of state capture arising from events and findings discussed in the Zondo Commission Report issued on 22 June 2022.
The events and findings in the Zondo Commission Report do not attract the application of s 5J(6) of the Act as they deal with findings made in South Africa after the Applicant arrived in Australia and are not connected with the applicant’s relevant conduct in Australia.
The Tribunal finds that the findings of the Zondo Commission Report give rise to a viable sur place claim by the applicant.
HEARING BEFORE THE TRIBUNAL
The applicant appeared before the Tribunal to give evidence and make submissions in support of her claims for protection.
The applicant also called Miss [A] to give evidence.
EVIDENCE OF THE APPLICANT
The applicant was born in Pretoria, South Africa.
The applicant confirmed she did not have a [Country 1] passport.
He older brother [Mr B] died in 2004. Her younger brother [Mr C] is alive. The Tribunal asked whether she could go back to South Africa and live with her brother [Mr C]. The applicant replied that she and [Mr C] were estranged for the last 30 years and he was an old aggressive man. She had some intermittent contact but nothing denoting a strong bond.
Her brother [Mr B] has two boys, one that commutes between South Africa and [Country 2] and another that lives in South Africa.
Her brother [Mr C] has a daughter and son. The son is in [Country 1], and she does not know much about the daughter.
The Tribunal asked whether the applicant could leave Australia stay with her niece or nephews. The applicant responded that each of them had their own family and lives and would not be able to look after her.
After completing high school, she did a year of [specified] studies.
In 1989 she married her first husband, [Mr D].
Her daughter Miss [A] was born in [year]. She was born premature as a result of the violent abuse and beatings the applicant suffered. The premature birth and resulting treatment led to Miss [A] suffering [a disability] during her infancy which persists.
Her first husband, [Mr D] was an extremely violent man and an alcoholic, who would often beat her and rape her. He is still alive.
In 1992 she was divorced from her first husband [Mr D].
In 1994 she married Mr [E].
The marriage to[Mr E]was described as chaotic as he was without means and an undischarged bankrupt. He opened various [businesses] in the applicant’s name, and often would not pay her for her contributions to the business.
After 17 years of marriage to [Mr E] the applicant in October 2011 filed for divorce and protection.
The applicant also sought protection from [Mr E] as he had become violent and had threatened to kill her and Miss [A]. He had on an occasion tried to strangle Miss [A].
The applicant stated she was not officially divorced but only separated. She did not know of the whereabouts of [Mr E].
From 2012 the applicant rented a [flat] in [Johannesburg]. She also undertook a paid [role] at [Workplace 1].
While she worked at the [workplace], her daughter Miss [A] completed her studies including her [degree]. Her daughter came to Australia and completed her [qualification] at [a] University and is working in Australia casually on a temporary [visa].
The Tribunal invited the applicant to give evidence as to her fear of suffering harm if she were to return to South Africa.
The applicant described her involvement in the [Workplace 1] riots spanning 2015 to 2018. She was part of the [staff] that was required to be [on site] during these years. She was exposed to explosive devices, beatings and witnessed the killing of a security guard. She would often have to hide and lock herself into a room when the riots were at their peak. The resulting after-effects included her suffering continuing PTSD for which she takes medication. Her medical report is on the Tribunal record.
The applicant gave evidence that she had been carjacked before in South Africa.
She stated she was old and frail now, and as a single woman alone with no support she was fearful she would be raped or murdered if she had to go back to South Africa.
The Tribunal asked the applicant questions to identify why the applicant would be targeted and seriously harmed.
The applicant explained that she did not own a house or have any accommodation awaiting her in South Africa. Before arriving, she had rented a small single [flat]. She did not own a car in South Africa.
The applicant explained that if she landed back in South Africa, upon exiting the airport she would be alone and without support. She would need to somehow find immediate safe accommodation and transport. It would not even be possible to walk down the streets and buy groceries. Even if she found a rental, she would be fearful of living alone and the regular power outages would expose her to break-ins. She needed care and support.
The applicant was of the view that the police would not be able to assist her due to the failure in state protection. Reference was made to this inability of state protection.
The applicant stated it was not possible for her to relocate to due to her age, lack of funds, lack of employability, PTSD, and not having any support.
EVIDENCE OF MISS [A]
Miss [A] is the daughter of the applicant.
Miss [A] discussed her mother’s trauma and PTSD due to the past harm she suffered.
She gave evidence of how they both were reliant on each other and supported each other. Notably Miss [A] is [disabled]. Her medical record is also on the Tribunal file.
She gave evidence that if her mother were to return to South Africa, she would have no place to go, no accommodation and no access to the daily necessities such as water or electricity. Miss [A] stated that her mother would not be able to afford private security or the means to protect herself.
Miss [A] explained the lack of durable and effective state protection in South Africa due to the bankruptcy of the state security system.
IDENTIFYING THE PROTECTION CLAIMS
The applicant is seeking protection from suffering harm in South Africa due to a failure of state protection.
The applicant also submits that her past harm and her unique personal situation of being old, frail, PTSD, and a single woman, excepts her from the general population in South Africa.
COUNTRY INFORMATION RAISED WITH THE APPLICANT
The Tribunal put relevant country information about South Africa to the applicant for her comment and response.
That in relation to reports of violence and crime in South Africa, there is general agreement that violence is pervasive in South Africa. Statistics suggest very high levels of gender-based serious violence, rape and sexual assault against women, and assaults and murders across the South African population perpetrated in homes, on the roads and even in churches and schools. These reports do not talk about these crimes being racially motivated. Rather, reports say the crimes are opportunistic, and often motivated by poverty. The applicant responded by commenting about the inability of police to respond to crime because of state capture.
That the recent South African Victims of Crime reports state that housebreaking and burglary as being the most common crime experienced by households in South Africa, with a continuing upwards trend. Car hijacking is also on the rise. Across the breakdown of crimes, the most common focus was on the vulnerability of females to these crimes. That households headed by whites are more likely to experience housebreaking. That females feel more unsafe than males walking alone when it’s dark. The applicant responded by commenting that a female friend of her does not drive into town alone.
That there is the 2022 Zondo Commission Report on state capture, which ultimately found that state capture took place in South Africa on an extensive scale. The Gupta family have left South Africa. The report deals with corruption that cuts across government affecting all areas of civil society in South Africa. The applicant responded by commenting that she agreed that there was a failure of essential services such as water, electricity, social services, and state protection. The applicant commented that due to power cuts which is termed ‘load shedding’ she was afraid of break-ins during power outages at late nights.
Various reports also acknowledge that police are poorly resourced, and weakened by corruption, but these reports are not definitive. Furthermore, the Zondo Commission Report does not expressly state that the police cannot provide adequate protection to victims of violence and crime. The applicant responded by commenting that police is completely bankrupt and cannot provide durable state protection.
ANALYSIS OF RELEVANT COUNTRY INFORMATION

The World Economic Forum’s ‘The Global Risks Report 2022’, 17^th Edition Insight Report suggests that South Africa risks state collapse with relevantly record high crime rates and corruption. Page 106 of the Report highlights the failure of public infrastructure and state collapse.[3]
[3] World Economic Forum’s The Global Risks Report 2022, 17^th Edition Insight Report <
Harvard University, The Harvard Kennedy School of Government in its 2023 publication ‘Growth Through Inclusion in South Africa’ identifies the collapse of state capacity in South Africa including the collapse of security at pages 8, 33, and 39. That urban crime is very high and has undermined the functioning of many national infrastructure systems.[4]
[4] Growth Through Inclusion in South Africa < 8.
Violence against women in South Africa remains pervasive.[5]
[5] ‘Preventing Violence Against Women and Children in South Africa’, Wilson Center, 01 May 2018, p.1, CIS7B839411294.
An August 2019 Human Rights Watch Report suggested that elderly women and women with disabilities faced increased vulnerability to violence.[6] The report focused on sex workers but made the following general statement: “Certain groups of women face increased vulnerability to violence, including women and girls with disabilities, elderly women, poor women, and lesbian, bisexual, transgender, and gender nonconforming women.”
[6] ‘Why Sex Work Should be Decriminalised in South Africa’, Human Rights Watch (HRW), 07 August 2019, p.19, 20190809124626.
In 2021, it was reported that data analysed by the Institute for Security Studies shows that police performance has been steadily deteriorating, including when it comes to serious offences such as murder and armed robbery.[7] In 2021 the International Crisis Group noted that patronage networks and political interference crippled the security sector, notably the police and secret service, compromising the state’s ability to uphold the rule of law and prevent crime.[8]
[7] 'More public order police is no easy answer for South Africa', Institute for Security Studies, 05 August 2021, 20210806114608.
[8] 'Riots reveal South Africa's enduring rifts', Pauline Bax, International Crisis Group (ICG), 23 July 2021, 20210914165437.
The police’s crime intelligence capability has also declined, decimated by years of factional battles, political interference, corruption and weak police leadership. This means it can probably anticipate ongoing increases in murder and robbery in the short to medium term.[9]
[9] ‘South Africa needs a murder reduction strategy', Institute for Security Studies, 14 June 2021, 20210618114546
As to the issue of the Zondo Commission Report not directly referring to the police, it would be inappropriate and beyond scope for a judicial commission to find an outright failure of the police as such a finding without its own formal inquiry and evidence could have understandably widespread consequences for state sovereignty, and internal law and order.
IMPRESSION OF THE APPLICANT’S EVIDENCE
The applicant spoke clearly and set out the harm she feared she would be exposed to if she were to return to South Africa. Her evidence had a deep visceral quality to it.
Her evidence did not seem planned or rehearsed. She spoke genuinely with emotion.
The Tribunal also takes into account the applicant’s gender, age, frailty, illness, background, financial means, the patriarchal structures of her prior relationships and norms in assessing their claim.
The Tribunal also gives consideration to the particular challenges facing asylum seekers in giving their evidence per AVQ15 v Minister for Immigration and Border Protection.[10]
[10] [2018] FCAFC 133 at [28].
The Tribunal is also mindful of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status which states that ‘if the applicant’s account appears credible, he (or she) should, unless there are good reasons to the contrary, be given the benefit of the doubt’ and ‘the benefit of the doubt, should, however only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility . The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts’.[11]
[11] United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196] and [203], available at >
The Tribunal found the applicant to be a credible witness and accepted her evidence. This finding is based on corroborating country information discussed above and the account given during her evidence bearing in mind the context which was also supported by the witness.
IMPRESSION OF THE WITNESS EVIDENCE
The witness evidence of Miss [A] was significantly important. Her presence and testimony corroborated the applicant’s evidence.
The Tribunal was impressed by Miss [A]’s evidence. Despite being her daughter, she did not embellish or excessively attempt to give evidence.
The Tribunal found Miss [A] to be a credible witness and accepted her evidence.
PARTICULAR SOCIAL GROUP ANALYSIS
For the applicant to first come within the ambit of s 36(2)(a) of the Act, she must fear persecution due to her race, religion, nationality, membership of a particular social group or political opinion.
The applicant did not claim to fear serious harm on account of her race. Her claim was based on her membership of a particular social group.
Membership of a particular social group other than family is set out in s 5L of the Act. It relevantly provides that a person is to be treated as a member of a particular social group if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
The applicant claims fear of persecution arising from being a frail elderly sick separated woman alone with no accommodation and support in South Africa thus placing her at risk of serious harm which would not be protected by the present state of the security services.
The Tribunal accepts that the applicant as a frail elderly sick separated woman alone with no accommodation and support fundamental to her identity or conscience, and she should not be forced to renounce or conceal it.
The Tribunal accepts that the applicant is a member of particular social group, namely that of a frail elderly sick woman alone with no accommodation and support.

100. The Tribunal also accepts that the mutual reliance and support the applicant and Miss [A] have on each other could form a salient part of this particular social group.
INTEGER OF CLAIMS
101. The Tribunal is required to consider the applicant’s claims and their component integers, per Htun v Minister for Immigration and Multicultural Affairs.[12]
[12] [2001] FCA 1802 at [42] per Allsop J.
102. The applicant’s claims if analysed in isolation or in a piecemeal manner may suggest that she would not personally suffer harm as the general population of South Africa would face similar isolated random risks.
103. However, the risk of violence against women especially someone in the uniquely vulnerable position of the applicant and access to state protection is much more granular and nuanced.
REFUGEE CRITERION ASSESSMENT

To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly, this requires the applicant to come within the definition of s 5H(1)(a) of the Act, which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further 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, along with the requirements set out in ss 5J(2)–(6) and ss 5K–LA of the Act.

105. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.[13]
[13] (1989) 169 CLR 379.

The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.

107. Section 5J(5) of the Act defines instances of serious harm as including but not limited to a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist, and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
108. All of the applicant’s claims are required to be assessed against the refugee criterion as follows. This also includes giving proper consideration to all the integers of each claim and considering the claims separately and cumulatively.
Failure of refugee criteria – s 5J(4)(c) ‘systematic and discriminatory conduct’
109. The Tribunal refers to s 5J(4)(c) of the Act which provides that if a person fears persecution for one or more the reasons mentioned in s 5J(1)(a), the persecution must involve systematic and discriminatory conduct.
110. In Chan v MIEA, McHugh J stated:
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.[14]
[14] Chan v MIEA (1989) 169 CLR 379.
111. In MIMA v Haji Ibrahim it was further stated that ‘systematic conduct’ denoted non-random.[15]
[15] MIMA v Haji Ibrahim 2000 [HCA] 55.
112. The serious harm that the applicant fears is causally connected to acts of violence for which she is not personally targeted but would arise randomly such as a housebreak in, a carjacking, opportunistically being attacked whilst in public or initially settling in.
113. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as the persecution feared does not involve systematic and discriminatory conduct.
114. The Tribunal is not satisfied that the applicant meets the refugee criterion under s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.

116. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to South Africa, there is a real risk she will suffer significant harm.
117. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
118. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[16]
[16] [2013] FCAFC 33 at [246].
Significant harm assessment
119. The applicant claims she would suffer harm and gave evidence going to the harm she feared. The issue is whether this harm would be significant harm per s 36(2A) of the Act.
120. The applicant also gave evidence that she feared harm in the form of carjacking, break-ins, rape and murder as she would arrive into South Africa alone, sick, without any familial support, accommodation, transport and means to financially support herself.
121. There is a real risk the applicant as a frail elderly sick woman alone with no accommodation upon arriving into South Africa would find herself in a situation exposed to significant harm.
122. The applicant gave evidence she would have no place to go and no place to stay. She may be able to ask her estranged brother or her nephew for temporary accommodation but there is no guarantee or security of tenure and longevity. The charity of family and friends can only stretch so far.
123. The credible and objective country information states that crimes against women are particularly pervasive in South Africa. The country information also suggested that elderly women were more susceptible to gendered violence.
124. The applicant does not own a home or a car in South Africa. Her only means of support is a daughter who herself is [disabled]. She gave evidence of being previously carjacked. The Tribunal notes that while past harm is not determinative of future harm, it may lend weight to the applicant’s subjective fears of recurrence per the High Court in Abebe v Commonwealth.[17] The applicant did fear being carjacked again.
[17] [1999] HCA 14 at [191]–[192]. Note the discussion was in the refugee criterion context.
125. In the applicant’s uniquely personal vulnerable condition, were she removed to South Africa, she would be an alone, elderly woman, suffering from PTSD, destitute, without support, and be placed in a situation where she could be raped or murdered or severely harmed.
126. The Tribunal is satisfied that there is a real risk the applicant will suffer significant harm in accordance with s 36(2A) of the Act as the applicant will suffer arbitrary deprivation of her life, be subjected to cruel treatment, and degrading treatment by rape, severe beatings, or murder.
Necessary and foreseeable harm on being removed from Australia assessment
127. The Tribunal refers to EJC18 v MICMSMA, where the court analysed the concept of ‘necessary and foreseeable’ and whether the applicant had a choice in conducting themselves in a certain way on return that would put them in harms way.[18]
[18] [2020] FCCA 3171 at [62]-[64].
128. Here the applicant has no choice in her innate personal attributes or a reasonable ability to modify or avoid which are discussed below. An integer of innate factors affect her.
129. The applicant gave evidence that she has no effective familial support in South Africa.
130. The applicant presented as a frail elderly sick woman alone with no accommodation and no means of financial support. She is beyond the employment age.
131. Her only mutual support is her daughter Miss [A] who herself is [disabled].
132. On a binary analysis, the applicant would be removed to South Africa alone where she would as a frail elderly sick woman alone with no accommodation and no support have to herself make arrangements to exit the airport, find rental accommodation or temporary board, and navigate the present daily life in South Africa, most likely in Johannesburg.
133. Alternately, the applicant would be removed to South Africa, and this would trigger Miss [A] to accompany or later follow the applicant so they both can continue to mutually assist each other. The evidence was that Miss [A] provided support and care in the form of staying in the same room and attending to the applicant’s medication. Miss [A] is [disabled].
134. On either binary analysis of removal, either the applicant would be removed to South Africa alone in her vulnerable condition, or she would be removed in her vulnerable condition and Miss [A] would accompany her, however Miss [A] herself is [disabled] and would be also vulnerable in South Africa without a place to stay and disability arrangements in place on her arrival leading to two vulnerable women being placed in a very precarious situation of harm.
135. The applicant would have no reasonable option but to arrange for temporary accommodation and temporary taxi or later on perhaps purchase a used car. She is over [age] years of age and presented as frail with PTSD which would make regular long-term driving difficult. The evidence and information suggested carjackings in South Africa and the applicant was previously carjacked and did fear being carjacked again.
136. Even if by compassion and charity, the applicant located some temporary accommodation on arrival, past evidence suggested she rented a one-bedroom flat. She would most likely have to move into some form of a one-bedroom flat again. However, on this occasion alone. There is also the evidence that she may not be able to afford the rental or security expenses that she would need to reasonably incur as a single frail elderly woman living in South Africa.
137. There is a risk that the applicant might land and exit the airport and have no one to help her. With her age and frailty and vulnerable condition, it would present an open opportunity of her being exposed to significant harm. She would present as a unique target on the ground.
138. The Tribunal is satisfied that 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 she will suffer significant harm either now or in the reasonably foreseeable future.
Can the applicant relocate?
139. The applicant gave evidence that she is over [age] years of age, frail, elderly woman, alone and suffering from PTSD. These integers are cumulative and cannot be unravelled and dissected.
140. The applicant is also beyond the age of gainful employment.
141. Even if the applicant could relocate, country information suggests that violence against women is prevalent across the nation. The inability of state protection is also not localised.
142. Even if the applicant could relocate, this would take time. It does not factor the real risk of significant harm the applicant would be placed in upon her immediate arrival into South Africa and her initial settling in phase.
143. It would be unreasonable to expect an elderly woman who is medically unwell, unemployable and alone to attempt a relocation in a country such as South Africa.
144. The Tribunal is satisfied it would not be reasonable for the applicant to relocate with respect to s 36(2B)(a) of the Act.
Is the real risk one that is faced by the population generally?
145. The population of South Africa is not over [age] years of age, alone, frail woman, elderly and suffering from PTSD. The population does not have a daughter who herself is [disabled].
146. It is not the general everyday risks of living in South Africa which everyday South Africans would be used to and would cope and deal with. It is the unique personal and innate circumstances of the applicant that would place her at real risk of significant harm.

147. This is not a matter of random generalised violence. The applicant presents as being easily identifiable, targeted and preyed upon due to her unique personal circumstances.
148. The applicant also gave evidence that she feared significant harm in the form of rape and murder as she would arrive into South Africa without any support, accommodation, transport and means to support herself. She also suffers from PTSD.
149. There is a real risk the applicant as a frail elderly sick woman alone with no accommodation upon arriving into South Africa would find herself in a situation of significant harm. She would have no place to go, no suitable safe secure transport and no assured place to safely stay.
150. The population would have an established home. The applicant does not. She would need the compassion and charity of someone or urgently find a rental flat.
151. The population would have a mode of readily accessible transport. The applicant does not or would not be able to access transport that would be safe. Even taken at its highest, the applicant’s ability to drive would be limited as she gets older and her present driving skill would be impacted by her prior harm of being carjacked in the past and suffering current PTSD.
152. The population would have extended family, brothers, sisters, daughters, sons, and other familial support. The applicant does not. She has no parents. One brother is deceased. Another brother is estranged for over 30 years. She is separated from an abusive husband. Her only daughter is [disabled].
153. The applicant is uniquely vulnerable, and the real risk of significant harm is not generalised but manifests due to her particular vulnerabilities. It is her personal attributes that place in her a situation of a real risk of significant harm if she is removed from Australia and to South Africa.
154. The Tribunal is satisfied the real risk not one faced by the population generally but is faced by the applicant personally with respect to s 36(2B)(c) of the Act.
Can the applicant obtain protection from the authorities?
155. The Tribunal acknowledges the courteous and diligent submissions by the applicant’s solicitor Mr Joel with respect to updated country information and its relevancy to the applicant’s claim.
156. The DFAT Country Information, the findings of the Zondo Commission Report and the referred global and academic research satisfy the Tribunal that there is a lack of security that could protect the applicant. The salient concern is one of inability and not unavailability. Although the local police available, the country information suggests they are ineffective and unable to help.
157. The applicant would need access to durable and effective state protection on arrival into South Africa, protection whilst seeking transport, and protection during her temporary accommodation. Her unique personal vulnerability would require protection. The information does not support a finding that the state authorities would afford such durable and effective protection to her.
158. The country information suggests crimes rates are increasing, and that women and especially elderly women are particularly at risk. State law enforcement is not effective countrywide.
159. The applicant’s unique personal circumstances would expose her to a real risk of significant harm that on the objective information would not be able to be protected by the authorities.
160. The Tribunal is satisfied the applicant could not obtain protection from the authorities against the real risk of significant harm that she would suffer with respect to s 36(2B)(b) of the Act.
161. The necessity of exiting the airport alone, hunting for accommodation and transport, having no support and being an elderly sick woman in South Africa with no protection is palpable.
Conclusion – complementary protection obligation is owing to the applicant
162. The Tribunal is satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
163. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
164. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Donald Gordon
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.
…