2001931 (Refugee)

The case concerned protection visa applications made by a father and his two children. The father, who was born in Zambia but held South African citizenship, claimed he had been a victim of xenophobic attacks and other forms of harassment in South Africa due to being perceived as a foreigner. He argued that effective protection measures were unavailable in South Africa and that he had a well-founded fear of persecution. The second applicant, the son, was not in Australia at the time of the hearing.

The primary legal issue before the court was whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the applicant to be a non-citizen in Australia and a refugee. This involved determining if the first applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available in South Africa. A secondary issue arose regarding the second applicant's eligibility, given his absence from Australia.

The court found that the first applicant's evidence regarding his experiences of xenophobic attacks and the lack of effective police protection in South Africa was credible. It was accepted that he and his children would be perceived as foreign migrants and thus targets of such attacks. The court determined that the first and third applicants met the definition of a refugee under section 5H of the Act, having a well-founded fear of persecution as members of a particular social group, and that effective protection was not available. However, the second applicant was found not to satisfy the criterion of being a non-citizen in Australia, as he had left the country.

Consequently, the decision under review was affirmed with respect to the second applicant. For the first and third applicants, the matter was remitted for reconsideration with a direction that they each satisfy section 36(2)(a) of the *Migration Act*.