2001931 (Refugee)

[2024] AATA 4379

2001931 (Refugee) [2024] AATA 4379 (12 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001931

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Stefanie Memmott

DATE:12 September 2024

PLACE OF DECISION:  Sydney

DECISION:With respect to the second named applicant, the Tribunal affirms the decision not to grant him a protection visa.

With respect to the first and third named applicants, the Tribunal remits the matter for reconsideration with the direction that they each satisfy s 36(2)(a) of the Migration Act.

Statement made on 12 September 2024 at 2:05pm

CATCHWORDS

REFUGEE – Protection Visa – South Africa – a victim of xenophobic attacks – a South African who was born in Zambia – second named applicant is not in Australia – applicants would be perceived as foreign regardless of the fact of their South African citizenship – applicants would be perceived as being African migrants – a member of a particular social group – African migrants in South Africa – effective protection measures are not available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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

1. 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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of South Africa, applied for the visas on 4 August 2016.

2. The visa applicants are family members, the second named applicant being the son of the first named applicant and the third named applicant being the daughter of the first named applicant.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department

   Protection visa application

3. The protection visa application forms included, among other things, the following personal information about the applicants:

   ·The first named applicant was born in [year] in Zambia and was a Zambian citizen at birth. He acquired his current South African citizenship in June 2004, at which point he rescinded his Zambian citizenship. He is an [Occupation 1]

   ·He indicated his wife, a Zambian citizen, was currently resident in Zambia and that they had separated in May 2008. His parents are deceased, but he has [siblings] living Zambia who he is no longer in contact with.

   ·He first arrived in Australia in late 2006 as the holder of a subclass 457 visa and after several trips to South Africa and Zambia (listed in full in the application form) he last arrived in Australia on [date] January 2016.

   ·The second named applicant was born in [year] in South Africa, and is a citizen of South Africa and no other country.

   ·The third named applicant was born in [year] in South Africa. She is a citizen of South Africa and no other country.

   ·The second and third named applicants arrived in Australia on [date] January 2016 as holders of a subclass 485 Graduate visas (dependent). They travelled as holders of South African passports issued in [2012].

   ·They had previously travelled to Australia as the holders of a subclass 457 Business visa in 2007, but travelled back to South Africa and Zambia in October 2008.

4. The first named applicant’s form set out (in summary) the following claims for protection and related information:

   ·He left South Africa because of fear of physical harassment, harm and risk to his life and that of his kids. Being a South African who was born in Zambia because his accent is different, he has always been discriminated against and have been a victim of xenophobic attacks.

   ·He left South Africa for Australia to take up a job opportunity and further his education in 2006. Before he came to Australia he had been a victim of thefts and bashings at gun point over mobile phones when he used to reside in the inner city of [Johannesburg].

   ·The harassments, threats and attacks were relentless. An innocent looking person on the street will greet you and when you greet them back they can tell you that you are a foreigner. From nowhere 3 or 4 people will join in and start assaulting you and getting any valuables on you.

   ·After being held at gun point twice he decided to relocate to [City 1] to try and run away from the violence. He bought a house and reinforced security by building a security wall fence, installing electrical fence and burglar bars on windows and doors. This did not stop the harassments and attempted break-ins both during the day and night.

   ·There were a lot of times when they would get threatening letters in the mailbox, threatening to kill them if they did not go back to their country. Sometimes they would wake up in the morning and find dead cats, frogs or lizards thrown over their fence. One time they found their dog had been killed (poisoned) and when they got a new dog it was stolen at night.

   ·The first named applicant’s house has been vandalised, attacked 3 times in 8 months. Each time the renovations are done, just when the works are complete they go back at night and vandalise everything.

   ·He was also attacked in Zambia in December 2015, when he went to pick up the children.

   ·He reported all the incidents to the police in South Africa. No action was taken and the police never attended the crime scenes to investigate. All they do is issue a case number for insurance purposes and statistics.

   ·If he returns to South Africa he will be harmed and life of himself and his kids will be in danger. He cannot go and live in Zambia because he is not a citizen of that country.

   ·The people who are involved in xenophobic attacks and vandalism do not value the lives of other people. He will be homeless and probably be killed, or petrol bombed if these people came home. The people involved in these attacks are people who feel they haven’t seen the benefits of democratic freedom, due to lack of jobs, and anyone they perceived to be a foreigner with a car or a house is a target because they are seen as having come to take their jobs.

   ·The authorities would not protect them if they returned. The authorities have their own priorities and they do not believe there is a problem. They will in most cases arrived after someone has been harmed to check and get a statement. The political will and policies are not in place to protect them.

   ·The first named applicant doesn’t think he would be able to relocate within South Africa. He already relocated once and nothing changed. With the damage to the house he is scared the bank might repossess it if the insurance refuses to settle the loss. He doesn’t have the will power or finances to relocate when he is sure that the very same thing will happen again. Xenophobic attacks are everywhere in the country. Migrants or perceived foreigners are just victims of economic problems of unemployment.

5. The visa application forms were accompanied by a hand written statement made by the first named applicant which, in summary, sets out the following:

   ·He is a South African who was born in Zambia in [year]. His late father was born in Zambia but later went to work in South Africa in the early 1950s as a migrant worker. He lived there until the late 1960s when he relocated back to Zambia and met his mother. After the end of the apartheid system in 1994 his father was very happy and encouraged him to go for further education and work in South Africa. The first named applicant did so, enrolling in June 1996 in [a] University.

   ·It was during this period that he started to experience undue discrimination and harassment due to his accent which was different from his classmates. At first he tried to ignore it, but the problem got bigger and spread to his work place and in the community.

   ·The discrimination became worse and escalated into threats and physical violence and intimidation. He was in most cases threatened on the streets with harm, robbed at gun point on two occasions and at knife point on several occasions. He was scared to go out of his flat and stayed indoors most of the time.

   ·After being attacked and robbed at gunpoint he decided to relocate to [another] suburb of [City 1]. He bought a house with a bank bond from [Bank 1] in April 2001. When he bought the house he decided to upgrade the security system by building a 2 metre brick wall around, installed burglar bars around windows and doors and an electrical gate operating system.

   ·This did not stop the harassment, intimidation and threats. They experienced a lot of sleepless nights as people would come at night and try to force the doors open. On several occasions when they woke up in the morning they would find doors and windows with forced entry signs and dead cats, rats and frogs thrown over the fence into the yard. The first named applicant decided to buy a dog. One night the dog was attacked killed using poison, they put a note in the mailbox saying ‘we can get you anytime, a dog cannot stop us’.

   ·In June 2006, the first named applicant had an opportunity to come and work and pursue further studies in Australia. He was supposed to relocate in early August but that could not happen because his car had been stolen a month before the job offer, and his passport in the car stolen. He was only able to relocate in December 2006 after obtaining a new passport.

   ·The first named applicant left his family behind to join him later. The intimidation, harassment and threats got worse to the point where his wife wanted to abandon the house. The throwing of dead animals into the yard continued, together with telling xenophobic insults and threats.

   ·He decided to bring his family over in June 2007. He arranged with an estate agent to rent their house while they were away.

   ·In April 2008 there was a big problem with migrants and suspected foreigners being attacked. The escalation was so bad that many lives were lost, properties belonging to migrants and suspected foreigners were looted, vandalised and burnt down. His wife went to check on the house and took the kids with her. When she got there, there were many problems and they did not come back.

   ·In 2015 when the first named applicant went to pick up the kids, he found the situation had deteriorated much further. A tenant had just vacated the house and he had to initiate some renovations. He was not living at the house but at motel in [City 1]. After the renovations and the house was put on the market it was vandalized – with windows broken, pipe fittings, taps and the stove stolen. The first named applicant quickly organised some repairs but the night these were completed the house was vandalised again.

   ·The applicant was shocked and devastated. He made insurance claims which took a long time to pay out. He put the insurance money back into repairs and was sending money home to fix the problems. Again after all the hard work of renovations were coming near to completion his house was again trashed on 18 July.

   ·This type of reckless vandalism has the hallmarks of hatred and people doing this cannot leave you alive if they come and find you at home. They enter through the roof by removing roofing tiles to gain access. They steal everything including doors and burglar bars. These cases have been reports to police but nothing comes of it.

6. The visa applications of the second and third named applicants set out identical claims for protection, which can be summarised as follows:

   ·They are seeking protection so that they do not have to return to South Africa and Zambia.

   ·They left South Africa to come and live with their parents in Melbourne as a family in 2007, but their mother took them back to South Africa and then Zambia in 2008. After that they started living with their mother’s relatives. It was hard to understand what was happening. Their mother didn’t want them to speak to their father. Finally they moved to live with their mother’s [parents]. The first few months everything seemed okay until their mother and grandmother started having quarrels and fights leading to breaking of household goods.

   ·They moved out to rented premises in 2010, but their mother started to leave them alone at night and drink beer. She would come back late at night and sometimes not even come back home. They were left alone at night and anything could have happened to them. In 2014 she sent them to live with their grandmother again while she went to live with a man. After 3 months she took them to live with the man, but he didn’t want them at the house while their father was still living. The first named applicant came to pick them up and they felt more secure.

   ·If they have to return to South Africa or Zambia they will have nowhere to stay and no person to live with, that will mark the end of their lives.

7. The visa application was also accompanied by a hand written letter from the third named applicant about her experiences at school and her father’s encouragement.

   Supporting documents

8. The file held by the Department of Home Affairs (the Department) contains copies of a number of identity documents, including the following:

   ·South African passports issued to the first named applicant in 2006 and 2016, which both note his place of birth as Zambia.

   ·A South African Naturalisation certificate issued to the first named applicant, issued in Pretoria in June 2004.

   ·A copy of the first named applicant’s South African drivers’ licence.

   ·A copy of the second named applicant’s birth certificate, issued by the Republic of South Africa Department of Home Affairs.

   ·A copy of the second named applicant’s South African passport, issued in 2012 and recording his place of birth as South Africa. It lists his nationality as South African.

   ·A copy of the third named applicant’s South African passport, issued in 2012 and recording her place of birth as South Africa. It lists her nationality as South African. A copy of the biodata page of a previous South African passport issued in [2006], again noting her nationality as South African.

   ·A copy of the third named applicant’s birth certificate, issued by the Republic of South Africa Department of Home Affairs.

9. It also contains a number of other supporting documents, including the follow:

   ·A note from the Zambian Police dated 5 December 2015 noting that the first named applicant reported the loss of a cell phone. It notes an address of ‘[address]’.

   ·A medical report issued by ‘The Medical Officer [named] Hospital’ which has been stamped by the Zambia Police Service at [a] Police Station, [on] 6 December 2015. It notes that the first named applicant has ‘a swollen forehead, swollen left side of the eye plus body pains’ due to being ‘assaulted by unknown people by the use of [unreadable]’.

   ·A copy of the Zambian passport of the second and third named applicant’s mother.

   ·A statutory declaration made by the mother of the second and third named applicants on 16 January 2014, confirming her consent for her children to live with their father in Australia.

   ·Copies of correspondence between the first named applicant and the mother of the second and third named applicants, including an email dated 29 October 2013 and a series of [social media] messages sent in May and June 2015. In general terms, this correspondence concerns custody arrangements for the second and third named applicants and payment of school fees.

   ·A disc which includes a number of videos of news reports concerning xenophobic acts in South Africa and other unedited footage which shows violent attacks, what appear to be protests being cleared by police, people showing wounds, property damage and fires, looting of shops.

10. The Departmental file also includes copies of numerous qualifications and certificates issued to the first named applicant concerning his schooling and professional training and several certificates issued to the second named applicant by her school in Australia.

    Departmental interview

11. The first named applicant was interviewed by an officer of the Department on 26 May 2017. The Tribunal has listened to an audio recording of that interview. The Tribunal has considered the entire recording, but notes the following points:

    ·The first named applicant’s fear of returning to South Africa is now worse than when the visa application was made. If people suspect you are a foreigner, if you don’t speak with the right accent, if they don’t accept you as South African (even if you have the right documentation) they treat you as a foreigner.

    ·His fear of returning to South Africa is very deep. He has been mugged there, including mugged at gun point. 1998 was the first time, he had been in South Africa for 3 years at that point, was mugged at gun point. There was another incident in 2000, his wife had come to visit, he went to shops nearby, someone phoned me, he was talking on my phone and some guys followed him. When they arrived at his unit, before his wife could open the gate there were some guys there pointing a gun demanding the phone, they were shouting and screaming, they took his wallet, mobile and ID, they grabbed everything and shot their guns in their air. There was another incident a year before he came to Australia, he was coming from work, it was late in the evening, as he parked to open the gate there was a car, they told him to get out of the car and don’t switch it off – his car and everything in it was stolen.

    ·His children are not dual citizens. Zambia doesn’t permit dual citizenship.

    ·He travelled back to Zambia via South Africa primarily because his children, they were not being given a good level of care by their mother.

    ·He decided to claim protection because one of the attacks on his house was very alarming, the level of damage was more than if someone just wanted to steal, he felt if had been in the house during that attack his life would not have been spared.

    Post interview submissions & evidence

12. Written submissions, dated 31 May 2017, were submitted by the first named applicant after the interview. They can be summarised as follows:

    ·When he arrived in Australia with 2 kids, he was a very devastated person, broke financially, emotionally depleted and overwhelmed with a mountain of problems and thoughts.

    ·The brutal attack in Zambia where he almost lost his life just added to the trauma suffered when his house was robbed and vandalised in a space of 2 weeks. The extent of the damage and wanton vandalism convinced him that he was at the house then there would have been nothing to stop them from harming or even killing him. The attack in Zambia still brings memory flushes and rings bells in his head of how close he was from losing his life. Sometimes he experiences nightmares and cold sweat in his sleep. The invasion and trashing of his house causes him to see mental pictures of mobs and ruthless people marauding and attacking.

    ·With a home or job and 2 kids to take care of, he pushed to ensure he found school places for the kids and a job to meet a few necessities. He approached [organisations] for assistance on the process, but the wait was too long. A colleague also tried to get him assistance through the local MP, but they only checked his visa type and left it at that.

    ·While following up on finding information and processes on how to apply for a protection visa, he had a bombshell from the agent who was helping him with an insurance claim on the theft and damages on his house. The insurance only paid out a quarter of the claimed amount, saying he’d abandoned the property. This left him very distressed. Shortly after he started getting emails from the agent he’d left to organise repairs demanding payment of the difference. He struggled to work on the protection visa application forms during this period due to lack of sleep (working [at] night and looking after children in the day), stress, insecure housing, and a lack of basic necessities such as adequate bedding.

    ·After about 75% of the repairs on the house were completed the house was attacked again, on or about 7 July 2016. Everything that had been installed was stolen or broken. The applicant felt like the whole world was against him, he experienced his darkest days.

    ·His house is located in [Suburb 1] which is an ordinary [suburb] (by South African [standards)]. It is surrounded by houses built by the [government]. Most of the attacks are organised within the informal settlement and in most cases if not all they know who the migrants are and where they live. They can attack, steal and damage properties with full knowledge that there are no consequences for their actions as the authorities turn a blind eye. Security walls and steel gates cannot stop any attacks or people from stealing or damaging a property, all they do is buy a little more time in case the police or armed response guards respond – if they even turn up. This has led to mistrust to a point where people don’t report cases.

    ·He has been the victim of xenophobic attacks, and threatened and robbed at gunpoint on 3 occasions.

    oThe first time was in around 1999, in [a neighbourhood], where money, ID cards, bank cards and his mobile phone were taken away in broad daylight.

    oThe second time was in June 2000 in [named suburb] at the access gate of his apartment, where he was accosted by 2 people who had followed him, attacked him at gun point in broad daylight. Again, the stole his wallet, mobile phone, bank cards and ID cards, and then fired 2 shots as they left.

    oHe then relocated to [City 1] in April 2001, leaving the inner city and hoping it would be safer. When they started experiencing attempted break ins he decided to reinforce security by building a 1.8m high wall fence and installing a steel gate. But he was robbed at gunpoint in his car while waiting for the gate to open one evening when coming back from work. His mobile phone, money in his wallet, bank cards, ID cards and passport were lost.

    ·All 3 of the robberies and consecutive break-ins and trashing of his house 8 months in a row were reported to police, but none were investigated and no suspect was arrested for any of these attacks. This clearly demonstrates that the authorities and law enforcement officers do not care or brother when a migrant is attached or have their property damaged. That has encouraged the perpetrators of xenophobic violence to do as they wish.

    ·In fact, as of the beginning of 2017 xenophobia has been officially reinforced by recognition of an anti-immigration party that has been registered and is in charge of coordinating these attacks, and the government knows all about it.

1. The submissions were accompanied by:

   ·    an article which appears to be about violent attacks in 2017 though the specific source and context are unclear.

   ·    photographs of a house or houses, which appear to show damage.

   ·    a copy of an article from the Guardian dated 20 April 2015 and entitled ‘South Africa’s xenophobic attacks: are migrants really stealing jobs’.

   ·    A copy of an article published by WorldPost on 26 April 2015, entitled ‘Why the Deadly Attacks Against Foreigners in South Africa Come as No Surprise’.

   ·    A list of articles from the SABC News website concerning xenophobia from 2016 and 2015 – it appears to be the result of a search or similar, and individual links to each article are not provided.

   ·    An article by Jean Pierre Misago of the African Centre for Migration and Society dated 1 March 2017 and entitled ‘Xenophobic Violence in the “Rainbow” nation’.

   ·    A transaction list from a [Bank 1] bank account, with one entry highlighted ‘[deleted]’, which is dated 4 March 2016 (no amount visible), and a second page of transaction listings with entries from 1 January 2016 (no entries highlighted).

   ·    Numerous pages which appear to be extracted from a [Bank 1] Insurance homeowner’s insurance policy document.

   ·    A copy of insurance settlement documentation concerning a loss experienced on 22 November 2015, with R 11 762.00 being the compensation amount offered.

   ·    A copy of insurance documentation refusing a claim for loss experienced on 7 July 2016 due to burglary, with the refusal reason being the property was unoccupied, vacant and abandoned.

   ·    A series of emails between the first named applicant and his insurer concerning the refusal of an insurance claim.

   ·    A series of photographs depicting, various, people who appear to be under arrest, people participating in demonstrations, people fighting, and police.

   ·    Part of an Al Jazeera article published on 27 February 2017, entitled ‘Homes burned, shops looted in anti-migrant attacks’.

   ·    Part of an opinion piece written by Jean Pierre Misago published by Al Jazeera, date unclear, entitled ‘Xenophobic violence as a symptom of leadership’.

   ·    A copy of the special power of attorney made by the first named applicant in favour of an employee of a real estate company which appears to have been sworn in Zambia in December 2012.

   ·    A quotation concerning repairs for the [Suburb 1] property, issued 14 December 2015.

   ·    A series of emails between the first named applicant and his estate agent concerning arrangements for repairs, dated variously in June and July 2016.

2. Further written submissions were sent to the Department on 2 April 2019. These are very detailed and lengthy submissions which have been considered in full by the Tribunal. In general terms, they outline the breakdown of the first named applicant’s relationship with his wife (the mother of the second and third named applicants), the circumstances of the second and third named applicants after they left Australia in 2008, the reasons for the first named applicant’s repeated travel to South Africa and Zambia between 2009 and 2016, and disputes around custody of the second and third named applicants. It also refers to the attack the first named in applicant experienced in Zambia in late 2015.

3. The submissions also add the following to the applicants claims for protection:

   ·Xenophobia is real and a daily occurrence with people being armed everyday. They continue to happen as late as last week.

   ·The government and police lack the capacity and leadership to solve the problem. The breakdown in law enforcement and lack of political will has provided a fertile ground for people to perpetuate xenophobic attacks with vigour because they know that there are no consequences. No one has ever been arrested, convicted and jailed for xenophobia.

   ·The government and politicians only react by giving lip service statements when the attacks are massive, violent, brutal and well-coordinated in the glare of full news cameras. Attacks that take place in the absence of media are completely ignored and don’t have any reaction from politicians.

   ·Black migrants are way targets for police harassment, violent attacks from citizens and scape goats from politicians for poor governance and poor economic management.

   ·Leaders and politicians demonise and denigrate black migrants, who are labelled criminals and other unpalatable names.  For instances, when the current President issues statements like “we must respect those who are in the country legally” what message does that send?

4. The submissions were accompanied by:

   ·    Documents relating to the death of the first named applicant’s father in February 2012.

   ·    The certificate of marriage (said to be bigamous by the first named applicant) in 2014 of the first named applicant’s wife,

   ·    Several emails from 2009 and 2010 concerning the breakdown of the relationship between the first named applicant and his wife as well as custody and care arrangements for the second and third named applicants.

   ·    A social welfare report concerning the second and third named applicants, dated 14 May 2010.

   ·    A ruling of [Court 1] dated [May] 2010 concerning custody arrangements for the second and third named applicants – though the text of the document provided at that time was very faint a clearer very was submitted to the Tribunal by the first named applicant at hearing.

   ·    A certificate of urgency made by the first named applicant’s lawyer in February 2012 in relation to a petition for dissolution of marriage and a related court order made by the [Court 1].

   ·    A court order discontinuing the petition for dissolution of marriage made on 13 March 2012 by the [Court 1].

   ·    The marriage certificate of the first named applicant and the mother of the second and third named applicants.

   ·    An affidavit sworn by the first named applicant on 30 June 2015, made in support of an application for review of the earlier custody orders made with respect to the second and third named applicants.

   ·    Email correspondence from 2016 and 2017 concerning a bigamy case brought  against the first named applicant’s wife.

5. The covering email providing these submissions including four hyperlinks to media articles. One was not able to be accessed by the Tribunal. The three which were accessible were:

   ·An article published by TimesLive on 1 April 2019 entitled ‘Xenophobic “criminals” hurt African development, says Ramaphosa’. It refers to recent violence against Malawians and other foreigners in KwaZulu-Natal province.

   ·An article published by CNN on 1 April 2019 entitled ‘South African President calls for prosecution of perpetrators in anti-immigrant violence’. It refers to hundreds of foreigners being forced from their homes and some of their businesses being looted by angry protesters in Durban city. It states that several Malawian immigrants fled as protests in KwaZulu-Natal province turned violence, with demonstrators claiming that immigrants had taken their jobs and businesses meant for citizens. It also refers to previous outbreaks of violence in 2015 and 2008.

   ·An article published by The South African on 30 March 2019 entitled ‘Xenophobic violence: Lindiwe Sisulu to meet with African ambassadors over Durban attacks’. It refers to attacks against Malawians in Durban. It states that Durban’s mayor claimed the attacks were criminally motivated and performed by an organised group of criminals looking to rob vulnerable foreign nationals.

6. On 2 November 2019, in response to a request for information sent by the Department, the first named applicant submitted a letter concerning the citizenship of the second and third named applicants. In it, he advises that they are South African citizens only, that they travelled to Zambia in 2008 as holders of South African passports and that as far as he is aware they have never held any Zambian citizenship or passports. He advises that their mother had never informed him at any point that she had applied to have them registered as Zambian citizens. He states they were both born in South Africa and that under Ch.2(1)(b) of the South African Citizenship Act 1995 the children were deemed to have South African citizenship at birth.  He also cites the Constitution of Zambia which, at the relevant time, did not allow for dual citizenship.

7. This letter was accompanied by copies of the children’s passports and birth certificates as well as information from the Zambian Ministry of Home Affairs.

   Delegate’s decision

8. A delegate of the Minister for Home Affairs (the delegate) refused the visa applications on 31 January 2020. The delegate accepted that all the applicants were nationals of South Africa and that the first named applicant had been robbed and attacked and his home subject to vandalism.

9. However, the delegate placed weight on the first named applicant’s return travel to South Africa, his decision to allow his wife and children to return to South Africa and his delay in applying for a protection visa as indicative of a lack of subjective fear.

10. The delegate also concluded that the first named applicant does not fit the demographic of those targeted in xenophobic attacks and was not satisfied he was or would be targeted for criminal acts. The delegate considered that any possible future harm he experienced would be as a result of the generally high rates of violent crime in South Africa.

    Claims and evidence before the Tribunal

    Application for review

11. The applicants lodged an application for review on 3 February 2020. They provided the Tribunal with a copy of the delegate’s decision record and accompanying notification letter.

    Pre hearing submissions and evidence

12. On 28 August 2024 the applicant’s representative lodged written submissions and a number of documents with the Tribunal.

13. There are 31 appendixes to the submissions. Many of these documents are duplicates of documents held on the Departmental file with the following exceptions:

    ·Appendix L – emails with real estate agent about repair of property, unreadable email about complaints with [Bank 1], email from advocate about bigamy case (29 March 2016).

    ·Appendix M – an application form from 2006 about the first named applicant’s wife registering to practice as a [Occupation 2] in Australia.

    ·Appendix N – a document issued by [a] Board on 6 June 2004 confirming the posting of the first named applicant’s wife.

    ·Appendix O – an employee tax certificate issued to the first named applicant for the tax year 2007, tax certificate issued [to] the first named applicant for the tax year ending 28 February 2007, a form appointing an Australian tax agent in 2007, a tax clearance certificate issued to the first named applicant in 2007.

    ·Appendix P – a letter of offer of employment issued to the first named applicant in June 2006 for a position of [position] with [a company] in Melbourne and an employment agreement.

    ·Appendix R – an undated quotation issued to the first named applicant by a [business].

    ·Appendix S – emails and documents concerning payment of insurance claims and arrangements for house repairs (some are duplicates, others are not).

    ·Appendix T – screenshot of text messages concerning police report made on 23/10/2009 and an insurance claim.

    ·Appendix U & Y (duplicates) – documents and emails concerning assessment of loss for damage to house.

    ·Appendix V – documents concerning the bond for the first named applicant’s [City 1] house.

    ·Appendix W – Final report on loss from 2015 with photos of damage to house.

    ·Appendix X – 8 page letter to insurer dated 1 December 2016 appealing rejection of claim.

    ·Appendix Z – letter to the South African Ombudsman for Short-term Insurance dated 17 May 2020.

    ·Appendix ZA – passport stamps in the passport of the second named applicant.

    ·Appendix ZB – accommodation receipt from 2011.

    ·Appendix ZC – medical certificate for the third named applicant issued 5 September 2006.

    ·A document entitled ‘Resources’ which provided a list of web links to the following documents:

    oUnited States Department of State 2022 Country Reports on Human Rights Practices: South Africa.

    oContent from the SaferSpaces website ‘Xenophobic violence in South Africa’. Its website indicates that SaferSpaces is an online knowledge sharing and networking portal for community safety as well as violence and crime prevention practitioners from government, civil society and the research community in South Africa. It is managed by the Republic of South Africa Civilian Secretariat for Police Service.

    oA press release issued by Amnesty International on 5 April 2019 entitled ‘South Africa: Authorities must tackle longstanding impunity to end xenophobia’.

    oA press release issued by the Office of the United Nations High Commissioner for Human Rights on 15 July 2022 entitled ‘South Africa: UN experts condemn xenophobic violence and racial discrimination against foreign nationals’.

    oAn article published by the New York Times on 9 May 2019 entitled ‘South African Riots over ‘Xenophobia’ prompt backlash across Africa’. (This link was not able to be used by the Tribunal, but the applicants’ representative submitted a full copy of the article after the hearing).

    oAn article published by the South African Institute for Security Studies on 19 June 2014 entitled ‘Is xenophobia becoming part of the South African way of life?’

    oAn article published by the South African Institute for Security Studies on 2 March 2017 entitled ‘Xenophobia again jeopardises South Africa’s interests in Africa’.

    oAn article published by Human Rights Watch on 5 May 2024 entitled ‘South Africa: Toxic Rhetoric Endangers Migrants’.

    oAn article published by Human Rights Watch on 28 September 2023 entitled ‘Xenophobia Rears its Ugly Head in South Africa’.

    oA PBS News Hour report (video and transcript) from 5 August 2015 with the title ‘Living in fear after attacks on migrants in South Africa’.

    oA report published by Businessweek on 19 November 2019 entitled ‘South Africa’s Epidemic of Hate’. (This link was not able to be used by the Tribunal, but the applicants’ representative submitted a full copy of the article after the hearing).

    oA report published on the BBC News website on 17 April 2015 entitled ‘South Africa xenophobia: Africa reacts’.

    oAn Al Jazeera report published on 26 September 2023 entitled ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’.

    oAn Al Jazeera report published on 17 September 2020 entitled ‘ “There will be blood”: Xenophobia in S Africa routine and lethal’.

    oA CNN report published on 4 September 2019 entitled ‘Zambia calls off match with South Africa because of xenophobic violence’.

    oAn article published by Human Rights Watch on 17 September 2020 entitled ‘South Africa: Widespread Xenophobic Violence’.

    oAn article published on the Daily Maverick website on 29 April 2019 entitled ‘Regional election observers fear xenophobic attacks while monitoring elections’.

    oAn article published on the OkayAfrica website on 4 September 2019 entitled ‘Zambia Cancelled Their Friendly Soccer Match Against South Africa because of Xenophobia’.

    oAn article published on the United Nations Academic Impact website (undated), entitled ‘University Combats Xenophobia in South Africa’.

    oA press release issued by Amnesty International on 4 September 2019 entitled ‘South Africa: Years of impunity for xenophobic crimes driving the latest attacks’.

    oAn article published on the BBC News website on 3 August 2024 entitled ‘Beauty contest speaks row over who counts as South African’.

    oA link to a YouTube video entitled ‘Dayton Mckenzie speaks about miss SA trying her luck in South Africa’. (This was not able to be viewed by the Tribunal).

    oAn article published on the IOL website on 9 August 2024 entitled ‘ “Mob-ruled” South Africa barred from Puebla International Literature Festival over Chidimma debacle’.

    oAn article published on the IOL website on 5 August 2024 entitled ‘Miss SA xenophobia controversy speaks tribalism debate’.

    oAn article published on the IOL website on 10 August 2024 entitled ‘Chidimma Adetshina saga: SAHRC warns Kenny Huene, says many social media users don’t understand Commissions’ role’.

    oAn opinion piece published on the IOL website on 10 August 2024 entitled ‘Chidimma Adetshina and the neocolonial dystopia: A deconstruction of the xenophobia narrative’.

    oAn article published on The Citizen website on 10 August 2024 entitled ‘SAHRC calls Kuene “reckless” after he said Nigerians and Zimbabweans work for it’.

    The hearing

14. The first and third named applicants appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The applicants’ legal representative also attended the hearing via video link.

15. At hearing, both the first and third named applicants gave evidence about the claims previously advanced before the Department and in writing. Their evidence is discussed further below, as relevant.

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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

1. 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

   Second Named Applicant

2. The second named applicant contacted the Tribunal on 28 February 2022 to advise he would be leaving Australia. The first named applicant confirmed at hearing that this was the case. The first named applicant did not have detailed information about his son’s reasons for leaving or current circumstances, [details deleted].

3. Section 36(2) of the Act provides, relevantly, that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. As the second named applicant is not in Australia he does not satisfy the requirements of s36(2) and cannot be granted a protection visa.

   Assessment of credibility

4. The first named applicant has given consistent evidence about his past experiences in several written statements, at interview with the Department and before the Tribunal. The first and third named applicants both gave clear evidence at hearing, in a forthcoming way without exaggeration. As discussed further below, the Tribunal has not drawn adverse inferences from the first named applicant’s return travel to South Africa or the timing of the protection visa application lodgement, as the first named applicant has provided a detailed account and corroborative evidence concerning these events, which the Tribunal considers are not inconsistent with the claimed fear of harm. The Tribunal accepts the first and third named applicants’ evidence as credible and has made factual findings accordingly, as set out below.

   Receiving country

5. Having regard to the documentary evidence provided, the Tribunal accepts that the first named applicant became a South African citizen in June 2004 and by 2006 had been issued with and was using a South African passport.

6. At that time, the Constitution of Zambia did not allow for dual citizenship. Rather it provided that a person ceases being a citizen of Zambia if they acquired citizenship of another country by voluntary act (other than marriage) and did any act indicating their intention to adopt or make use of any citizenship.[1] The Tribunal considers that the first named applicant did acquire South African citizenship and, by obtaining and using a South African passport, made use of that citizenship such that he ceased being a citizen of Zambia.

   [1] ‘The Constitution of Zambia, 1991 (last amended 1996)’, The Government of Zambia, 28 May 1996 (>

   The Tribunal notes that the Constitution of Zambia was amended by legislation promulgated in 2016 to allow for dual citizenship, including for people who had previously lost their Zambian citizenship, however country information before the Tribunal indicates that someone must make an application for this to occur – it does not happen by operation of law.[2]

   [2] Constitution of Zambia (Amendment) (Zambia), No.2 of 16, part iv, art 39, enacted 5 January 2016 (p.14); Citizenship of Zambia Act, 2016 (Zambia), part vi, art 26, promulgated 7 June 2016, Zambia Lii (p.686).

7. The Tribunal is satisfied that the first named applicant is a national of South Africa only and that South Africa is the receiving country for the purpose of assessing his claims.

8. Country information before the Tribunal indicates that South African law provides for citizenship by birth, if at least one parent is a permanent resident or citizen,[3] as was the case when the third named applicant was born. Based on the birth certificate and passports provided, the Tribunal accepts that the third named applicant was born in South Africa, was issued a South African passport, and is a citizen of South Africa. To the extent she may have acquired or been entitled to Zambian citizenship (based on the nationality of her mother at the time of birth) the Tribunal considers this would have ceased upon the acquisition of and use of her South African citizenship.

   [3] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

9. The Tribunal is satisfied that the third named applicant is a national of South Africa only and that South Africa is the receiving country for the purpose of assessing her claims.

   Right to enter and reside a third country?

10. The Tribunal is not satisfied on the evidence before it that the first and third named applicants have the right to enter and reside in any third countries, such that s 36(3) does not apply.

11. At hearing, neither party was able to say on what basis the third named applicant was able to reside with her mother in Zambia from 2008 to 2015, however the first named applicant indicated he suspects, based on his wife’s disregard for the law in other respects (such as her bigamous marriage) that the third named applicant may not have had a lawful basis for residing in Zambia.

12. Information on the website of the Zambian immigration department indicates that while citizens of South Africa do not need a visa to enter Zambia, entry on this basis is as a visitor, allowed to stay for 90 days each year if a tourist and 30 days each year if visiting for business, and that they must have a valid return air ticket (if arriving by air) and enough funds for their stay in and departure from Zambia.[4] The Tribunal does not consider that this constitutes a right to reside in Zambia.

    [4] zambiaimmigration.gov.zm

13. The Tribunal has also considered a range of other countries which South Africans are able to enter without a visa, but again notes that the rights provided are for short periods (90 days or less) and / or for tourism purposes only, and that people wanting to reside and/or work in these countries must apply for permits or visas.[5] The Tribunal does not consider these constitute rights to reside in those countries.

    [5] The Africa Visa Openness project reports that no visa is required for South Africans travelling to Angola, Benin, Botswana, Eswatini, Gabon, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Senegal, Seychelles, Tanzania, The Gambia, Tunisia, Zambia, Zimbabwe – see the Report on Africa Visa Openness in 2023, available at However, it does not appear South Africans can enter Kenya, Rwanda, Senegal or The Gambia without a visa, see Sources consulted in relation to the other countries listed are as a follows. Angola: Benin: Eswatini: Gabon: Lesotho: Malawi: Mauritius: Mozambique: Namibia: Seychelles: Tanzania: Tunisia: Zimbabwe: of fact

14. The Tribunal accepts that the first named applicant was the victim of violent personal robberies three times in South Africa. The Tribunal accepts that the home he owned in [City 1], Johannesburg, was broken into, robbed, damaged and vandalised on four occasions. The Tribunal accepts that the South African police did not conduct active investigations into any of these incidents. The Tribunal accepts that the first named applicant no longer owns the house in [City 1], as it was repossessed by the bank in December 2020.

15. The Tribunal accepts that the first named applicant’s repeated return travel to South Africa and Zambia after he first came to Australia for work was for the purposes of ensuring the safety of his children and for legal proceedings associated with their custody, as set out in detail in his statement of April 2019.

16. The Tribunal accepts that on his last visit to South Africa and Zambia in late 2015 / early 2016 the first named applicant travelled to collect his children to bring them to Australia. The Tribunal accepts that he was violently attacked in Zambia and that his home was broken into and damaged twice in quick succession. The Tribunal has taken into account the first named applicant’s evidence that he is convinced the way his house was damaged and repeatedly broken into indicated that his home was being specifically targeted in xenophobic attacks, because the conduct was different to burglary for financial benefit, that it was malicious, carried out with the intent to drive him away. The Tribunal accepts that these events were the motivation for the first named applicant’s decision to seek protection visas and that, having regard to his circumstances in settling the children and undertaking shift work, he made the applications as soon as he practically could.

17. The Tribunal accepts that the first named applicant is a qualified [Occupation 1] and that he has worked in that capacity in South Africa in the past. The Tribunal accepts there are high unemployment levels in South Africa, but considers that eventually he would be able to find work. The Tribunal accepts there may be some delay in the first named applicant finding work and he may not be immediately able to secure work in his field given it has been some 18 years since he worked in South Africa.

18. The Tribunal accepts the third named applicant is currently a [student], but that she is not qualified to practice as a [Occupation 2] in either Australia or South Africa and has only limited work experience, having worked part time in a [workplace].

19. The Tribunal accepts the applicants’ have no assets or savings of significance, noting the first named applicant lost the home in South Africa he had been paying off for some 19 years. The Tribunal accepts that, apart from each other, the applicants would have no family or other contacts to provide support to them on return to South Africa.

20. The first named applicant was unsure where they would live on return to South Africa, but the Tribunal considers that the applicants would live in Johannesburg on return to South Africa as they have the past.

21. The Tribunal accepts that the first named applicant is originally from Zambia, and that his [name], appearance (including height and way of dressing), inability to speak any local languages and only English with fluency, accent and way of speaking means he would be readily identifiable in South Africa as coming from another African country (despite holding South African citizenship). The Tribunal accepts that the third named applicant was born to two parents originally from Zambia and that her name (being a specifically Zambian name), inability to speak any language other than English, Australian accent and way of speaking means she would be readily identifiable in South Africa as not being a native of South Africa. The Tribunal accepts that the applicants would be perceived as foreign regardless of the fact of their South African citizenship.

    Country information

22. Country information before the Tribunal (including as submitted by the applicants) indicates that xenophobic attitudes have permeated post-Apartheid South African society fuelling countless xenophobic attacks, and that xenophobic hostility and violence is a pervasive continuing problem across South Africa.[6] People perceived as ‘outsiders’ experience exclusion, harassment and violence on the grounds of their ethnicity, language or geographic origin.[7] They may also face harassment from government officials and difficulties in accessing employment, accommodation, banking services or health care.[8]

    [6] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa; SaferSpaces website ( accessed 29 August 2024); Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018; Xenowatch, ‘Xenophobic Violence In South Africa: an analysis of trends, causal factors and responses’, December 2021 ( accessed 30 August 2024).

    [7] SaferSpaces website ( accessed 29 August 2024).

    [8] SaferSpaces website ( accessed 29 August 2024); Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

23. While various factors may be at play, including socio economic deprivation, commentators argue that xenophobic attacks involve an explicit targeting of foreign nationals or outsiders and that their real motive is driving foreign populations out of local communities.[9]

    [9] Xenowatch, ‘Xenophobic Violence In South Africa: an analysis of trends, causal factors and responses’, December 2021 ( accessed 30 August 2024).

24. Studies indicate that many South Africans, regardless of their socioeconomic and geographic context, hold strong negative sentiments and hostility towards foreign nationals – with one study indicating that a third of South Africans would not be disinclined to take action against non-nationals. These attitudes and willingness to perpetrate violence are rooted in perceptions that non-nationals are taking jobs away from South African citizens or unfairly benefiting from South African welfare and that black people from elsewhere in Africa migrate specifically to ‘steal’ jobs.[10] They are blamed as the root cause of South Africa’s economic hardship and problems in delivery of services.[11]

    [10] SaferSpaces website ( accessed 29 August 2024); Human Rights Watch, ‘Xenophobia Rears its Ugly Head in South Africa’, 28 September 2023; Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023.

    [11] Human Rights Watch, ‘Xenophobia Rears its Ugly Head in South Africa’, 28 September 2023.

25. Thousands of foreign nationals or those considered ‘outsiders’ have been harassed, attacked or killed in xenophobic related violence.[12] While initially this occurred primarily in townships and informal settlements it is now prevalent in other settings, including rural areas.[13] There is information before the Tribunal about protests driven by xenophobia which have devolved into violence,[14] looting of shops owned by non-nationals,[15] forcible eviction of non-nationals,[16] burning of homes,[17] mass displacement of non-nationals,[18] killings,[19] serious injuries,[20] discrimination and barriers to justice and basic services.[21]

    [12] SaferSpaces website ( accessed 29 August 2024).

    [13] SaferSpaces website ( accessed 29 August 2024).

    [14] PBS News House, ‘Living in fear after attacks on migrants in South Africa’, 5 August 2015; Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023; Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

    [15] BBC News, ‘South Africa xenophobia: Africa reacts’, 17 April 2015;‘ Al Jazeera, “There will be blood”: Xenophobia in S Africa routine and lethal’, 17 September 2020; Amnesty International, ‘South Africa: Years of impunity for xenophobic crimes driving the latest attacks’, 4 September 2019.

    [16] Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023; “There will be blood”: Xenophobia in S Africa routine and lethal’, 17 September 2020.

    [17] Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

    [18]  Al Jazeera, “There will be blood”: Xenophobia in S Africa routine and lethal’, 17 September 2020.

    [19]  Al Jazeera, “There will be blood”: Xenophobia in S Africa routine and lethal’, 17 September 2020; Human Rights Watch, ‘South Africa: Widespread Xenophobic Violence’, 17 September 2020; Amnesty International, ‘South Africa: Years of impunity for xenophobic crimes driving the latest attacks’, 4 September 2019; Businessweek, ‘South Africa’s Epidemic of Hate’, 19 November 2019.

    [20] Human Rights Watch, ‘South Africa: Widespread Xenophobic Violence’, 17 September 2020; Amnesty International, ‘South Africa: Years of impunity for xenophobic crimes driving the latest attacks’, 4 September 2019.

    [21] Human Rights Watch, ‘South Africa: Widespread Xenophobic Violence’, 17 September 2020.

26. Those operating small community based business, informal traders and foreign truck drivers have been noted as particular targets.[22] Country information also notes that African and South East Asian migrants (whether documented or undocumented) and refugees are particular targets of xenophobic violence.[23]

    [22] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa; Xenowatch, ‘Xenophobic Violence In South Africa: an analysis of trends, causal factors and responses’, December 2021 ( accessed 30 August 2024).

    [23] Office of the United Nations High Commissioner for Human Rights, ‘South Africa: UN experts condemn xenophobic violence and racial discrimination against foreign nationals’, 15 July 2022; Human Rights Watch, ‘South Africa: Toxic Rhetoric Endangers Migrants’, 6 May 2024.

27. Information before the Tribunal indicates that political leaders in South Africa have tended to legitimise rather than challenge xenophobic attitudes.[24] Further, community and political leaders, as well as government officials, are reported to make discriminatory and inflammatory remarks to gain prominence or popularity, including during elections, thereby stoking or instigating violence against migrants.[25] Anti-migrant discourse and xenophobic mobilisation is reported to be the central campaign strategy for some political parties in South Africa.[26]

    [24] Institute of Security Studies. ‘Xenophobia again jeopardises South Africa’s interests in Africa’, 2 March 2017.

    [25] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa; Amnesty International ‘South Africa: Authorities must tackle longstanding impunity to end xenophobia’ 5 April 2019; Human Rights Watch, ‘South Africa: Toxic Rhetoric Endangers Migrants’, 6 May 2024; Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023; Al Jazeera, “There will be blood”: Xenophobia in S Africa routine and lethal’, 17 September 2020; Amnesty International, ‘South Africa: Years of impunity for xenophobic crimes driving the latest attacks’, 4 September 2019; Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

    [26] Office of the United Nations High Commissioner for Human Rights, ‘South Africa: UN experts condemn xenophobic violence and racial discrimination against foreign nationals’, 15 July 2022; Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

1. For example, the son of the former president, Edward Zuma, is reported to have supported and fuelled violent attacks with accusations against foreign nationals and the Zulu King, Goodwill Zwelithini, publicly invoked South Africans to consider foreigners as a threat.[27] In December 2023 the leader of ActionSA is reported to have tweeted that foreign nationals who run tuckshops use their businesses as illicit drug channels, destroying small businesses in townships and villages, and disrupting communities’ way of life.[28] The leader of the Patriotic Alliance is reported to have said, in November 2023, that foreign nationals must go home and that that they are responsible for crime, drug peddling, unemployment and other problems.[29]

   [27] SaferSpaces website ( accessed 29 August 2024).

   [28] Human Rights Watch, ‘South Africa: Toxic Rhetoric Endangers Migrants’, 6 May 2024.

   [29] Human Rights Watch, ‘South Africa: Toxic Rhetoric Endangers Migrants’, 6 May 2024.

2. Country information indicates that South Africa experienced more than 1,500 incidents of vigilantism and mob violence in 2022, including xenophobic and anticrime vigilantism, often targeting Zimbabwean migrants. These attacks led to more than 200 fatalities and hundreds of injuries between January and September.[30] Information before the Tribunal indicates that xenophobic violence and discrimination has increased in recent years, including because of broader and deeper mobilisation of vigilante violence, arson targeting migrant-owned homes and businesses, and murder of foreign nationals.[31]

   [30] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

   [31] Office of the United Nations High Commissioner for Human Rights, ‘South Africa: UN experts condemn xenophobic violence and racial discrimination against foreign nationals’, 15 July 2022; Institute of Security Studies, ‘The rise of xenophobia: the road to ruin’, 27 June 2022.

3. One group in particular, known as ‘Operation Dudula’, an anti-immigrant vigilante group with branches across the country, is reported to be violently targeting and harassing foreign nationals.[32] They are reported to have prevented immigrant patients, in some instances violently, from accessing the Jeppe Clinic in central Johannesburg in 2023, saying immigrants should access healthcare services in their countries of origin. Similar events were reported at two other clinics.[33] Other organised groups pursuing a xenophobic agenda include the #PutSouthAfricaFirst Movement and the Alexandra Dudula Movement.[34]

   [32] Office of the United Nations High Commissioner for Human Rights, ‘South Africa: UN experts condemn xenophobic violence and racial discrimination against foreign nationals’, 15 July 2022; Human Rights Watch, ‘Xenophobia Rears its Ugly Head in South Africa’, 28 September 2023; Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023.

   [33] Human Rights Watch ‘World Report 2024: South Africa’.

   [34] Institute of Security Studies, ‘The rise of xenophobia: the road to ruin’, 27 June 2022.

4. Country information before the Tribunal indicates that government responses to xenophobic incidents vary, whereby sometimes there was a quick response to send police and soldiers into communities to quell violence and restore order but sometimes responses were slow and inadequate.[35]

   [35] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

5. There have been remarkably few arrests for acts of xenophobic violence since 2008 and even fewer convictions, and in the handful of instances where perpetrators have been arrested they are often released without being charged.[36]

   [36] Xenowatch, ‘Xenophobic Violence In South Africa: an analysis of trends, causal factors and responses’, December 2021 ( accessed 30 August 2024).

6. The government has been accused of lacking the political will to address problems of mob violence, vigilantism and xenophobic attacks.[37] Civil society organisations have criticized the government for failing to protect the property and livelihoods of foreign nationals and for failing to deter xenophobic attacks by vigorous investigation and prosecution of perpetrators.[38]

   [37] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa; SaferSpaces website ( accessed 29 August 2024).

   [38] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

7. Country information indicates that police are sometimes involved in mob violence and are accused of condoning violence, particularly xenophobic violence.[39] There are reports of police colluding the Operation Dudula in conducting raids,[40] and beating non-nationals while in custody.[41]

   [39] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

   [40] Al Jazeera, ‘South Africa’s Operation Dudula vigilantes usher in new wave of xenophobia’, 26 September 2023.

   [41] Research Directorate, Immigration and Refugee Board of Canada, ‘South Africa: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018)’, 30 April 2018.

8. Country information submitted by the applicants also refers to there being numerous cases of arbitrary arrests by the South African Police Services (SAPS), particularly of foreign workers, asylum seekers and refugees.[42] NGOs and media outlets have reported that security forces arbitrarily arrest migrants and asylum seekers, including those with proper documentation.[43] In some cases, police threatened documented migrants and asylum seekers with indefinite detention and bureaucratic hurdles unless they paid bribes.[44] Other information before the Tribunal indicates that police stations and appropriate infrastructure to address the high crime rate are not always available, but that the state provides all South Africans who are victims of crime the same services, irrespective of race.[45]

   [42] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

   [43] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

   [44] United States Department of State, Country Reports on Human Rights Practices 2022: South Africa.

   [45] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.

9. The United States Department of State, in a country security report, states that the South African Police Service (SAPS) has made a strong effort to decrease its response times in recent years, but large caseload backlogs, largely paper drive processes and inefficient case management hampers the effectiveness of the justice system.[46] A recent media release issued by the Shadow Minister for Police  refers to the SAPS detective service being woefully understaffed and its total personnel complement being smaller today than it was in 2019.[47] Information before the Tribunal indicates that South Africa suffers from widespread corruption and that anti-corruption laws are inadequately enforced.[48]

   [46] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 19 April 2024).

   [47] ‘#Crimestats: Ramaphosa and Cele are the enemies of safety as violent crime rises again’, Democratic Alliance Shadow Minister of Police, Andrew Whitfield MP 16 February 2024.

   [48] ‘South Africa Corruption Report’, GAN Integrity, May 2018.

   Assessment against s 36(2)(a)

10. Given the generally high rates of violent crime in South Africa,[49] the Tribunal is not satisfied that all the instances of crime the first named applicant experienced in the past were motivated by xenophobia. However, the Tribunal is satisfied that violent crimes specifically motivated by xenophobia and specifically targeting people who are migrants from other African countries do occur in South Africa.

    [49] South Africa: murders surge by more than 7% in one year’, The Guardian, 12 September 2018; ‘Ramaphosa’s ‘killings of white farmers’ comment: What the president meant’, News24, 27 September 2018; ‘Freedom in the World 2024 ‑ South Africa’, Freedom House ( accessed 18 April 2024); ‘South Africa’s security sector is in crisis – reform must start now’, Institute for Security Studies, 21 July 2021; ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.

11. The Tribunal is satisfied that both applicants would be perceived as being African migrants, and that African migrants in South Africa constitute a particular social group, as that term is defined by s 5L of the Act. Each member of this group shares the characteristic of originating from another African country and moving to South Africa, this distinguishes the group from society and that characteristic is not a fear of persecution.

12. The Tribunal did have concerns about the likelihood of the applicants being subjected to a xenophobic attack as distinct from being subject to violent crime more generally. However, having regard to the applicants’ evidence and the country information before it, the Tribunal is satisfied that there is a real chance that the applicants would be subjected to violent attacks for reasons for their membership of the particular social group of African migrants in South Africa and that this risk exists separately from the general risk of violent crime in South Africa. The Tribunal is satisfied that there is a real chance they will be subjected to violent attack whereby their membership of this particular social group is the essential and significant reason for the attack. In making this finding, the Tribunal has given weight to the fact that the applicants will be returning to South Africa will very limited material resources, if any, and no other supports, and its findings that the applicants would both be readily identified as being African migrants.

13. The Tribunal is satisfied that the type of attacks which would be perpetrated amount to serious harm and that they would involve systematic and discriminatory conduct.

14. Given the country information cited above concerning the generally poor resourcing of the South African Police Service and, in some instances, involvement of the police in xenophobic attacks and conduct, the Tribunal is not satisfied that effective protection measures are or would be available to the applicants.

15. The country information before the Tribunal doesn’t indicate that the real chance of persecution would be limited to certain areas of South Africa, but rather that the real chance relates to all areas.

16. Accordingly, the Tribunal is satisfied that both of the applicants have a well founded fear of persecution and that they are refugees, as those terms are defined by the Act. The Tribunal is satisfied that they met the requirements of s 36(2)(a).

    DECISION

17. With respect to the second named applicant, the decision under review is affirmed.

18. With respect to the first and third named applicants, the Tribunal remits the matter for reconsideration with the direction that they each satisfy s 36(2)(a) of the Migration Act.

    Stefanie Memmott
    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.

    …