2002567 (Refugee) - [2024] AATA 4218

2002567 (Refugee) [2024] AATA 4218 (11 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002567
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Don Smyth
DATE:11 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2024 at 10:04am
CATCHWORDS
REFUGEE – protection visa – South Africa – born and lived in third country but not eligible for citizenship and right to enter and reside lapsed – many short visits to country of citizenship, with relatives and friends there – membership of particular social group – homosexual man – low profile and protection of father – criminalisation and social attitudes – ethnicity – mixed race/’coloured’ – political opinion – economic conditions and crime – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (5), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant claims to be a citizen of South Africa. Noting that the applicant has indicated that he was born in Zimbabwe and lived there for many years, I have addressed the question of his citizenship in detail in my consideration of the applicant’s claims.
The applicant applied for a protection visa on 8 March 2017. On 31 January 2020 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
The applicant attended a Tribunal hearing on 8 August 2024.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
I have carefully considered all of the relevant evidence on the Department’s file, including the protection visa application, the applicant’s statutory declaration, the submissions from the applicant’s former representative and the documents submitted to the Department by the applicant and his representative.
According to information provided in the protection visa application, the applicant was born in Bulawayo, Zimbabwe in [Year]. The applicant described himself as a South African citizen.
The applicant indicated that he had lived at a number of addresses in Bulawayo, Zimbabwe. The applicant gave his occupation as [occupation 1]. With regard to employment, the applicant referred to a number of jobs, including roles as [an occupation 1] at [Employers 1 and 2].
The applicant indicated in the application that he had a right to enter and reside in Zimbabwe. He referred in this regard to his father’s nationality.
With regard to his family, the applicant indicated that his mother was a South…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2002567 (Refugee)

Details

AGLC: 2002567 (Refugee) [2024] AATA 4218
Case: [2024] AATA 4218
Decision Date: 11 October 2024

CaseChat Overview and Summary

The applicant, a South African citizen born and raised in Zimbabwe, sought a protection visa. The applicant claimed he would face persecution if returned to Zimbabwe due to his ethnicity, sexual orientation, and political opinion, asserting he was a member of a particular social group. He had lived in Zimbabwe since birth, holding a Zimbabwean ID, but was not eligible for citizenship as his parents were not Zimbabwean. He had made numerous short visits to South Africa to see family and friends, and his mother and siblings resided in Australia.

The court was required to determine whether the applicant would face a real risk of significant harm if returned to Zimbabwe, specifically considering whether any such risk was faced by the population generally, and thus not by the applicant personally, under section 36(2B)(c) of the Migration Act 1958 (Cth). The court also had to assess the applicant's claims regarding membership of a particular social group, encompassing his identity as a homosexual man, and consider the impact of criminalisation and social attitudes in Zimbabwe, alongside his ethnicity and any perceived political opinion.

The court applied the principles established in cases such as *BBK15 v MIBP* and *SZSPT v MIBP*, which clarify that section 36(2B)(c) applies when a real risk faced by an individual applicant is the same as that faced by the general population. The court considered country information regarding South Africa's legal environment for LGBT+ individuals, noting constitutional protections against discrimination and the legalisation of same-sex marriage. However, it also acknowledged reports of violence, particularly against lesbians and transgender individuals, and anti-LGBTQI+ attitudes in certain communities and among police, as detailed in a US Department of State report. Despite these concerns, the court found that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant attended a Tribunal hearing on 8 August 2024.SUMMARY OF CLAIMS AND EVIDENCEProtection Visa Application I have carefully considered all of the relevant evidence on the Department’s file, including the protection visa application, the applicant’s statutory declaration, the submissions from the applicant’s former representative and the documents submitted to the Department by the applicant and his representative. According to information provided in the protection visa application, the applicant was born in Bulawayo, Zimbabwe in [Year]. The applicant described himself as a South African citizen. The applicant indicated that he had lived at a number of addresses in Bulawayo, Zimbabwe. The applicant gave his occupation as [occupation 1]. With regard to employment, the applicant referred to a number of jobs, including roles as [an occupation 1] at [Employers 1 and 2]. The applicant indicated in the application that he had a right to enter and reside in Zimbabwe. He referred in this regard to his father’s nationality. With regard to his family, the applicant indicated that his mother was a South African citizen and resident in Australia at that time. He indicated that his father was born in Zimbabwe. He referred (at page 6 of the protection visa application form) to a brother born in [Year], a sister born in [Year] and brother born in [Year]. He indicated that they were born in Zimbabwe, citizens of South Africa and resident in Australia. The applicant referred to a further sister, who was also resident in Australia at the time of the application. The applicant indicated that he had departed Zimbabwe on [Day 1] July 2016, arriving in Australia on [Day 2] July 2016. He indicated that he had entered as a visitor, travelling on a South African passport issued in [2015]. The applicant referred to numerous trips to South Africa to visit family and friends, including trips in July 2016, January/February 2016, August 2015, March/April 2015, October 2014, May 2013, December 2012 to January 2013, and June/July 2012. The applicant made a statutory declaration in support of the application. In summary, he claimed that he would be persecuted by Zimbabwean authorities if he returned to his country. With regard to his citizenship, he stated that he could not be granted citizenship of Zimbabwe even though he had lived there since birth because his parents were not Zimbabwean citizens. He provided copies of his birth certificate and his South African passport. He stated that, because he was born in Zimbabwe and his parents had authority to live in Zimbabwe, he was also allowed to live and work in Zimbabwe and had done so until he came to Australia [in] July 2016. He provided a copy of his Zimbabwean ID. The applicant indicated that he had three siblings who lived in Australia on a permanent basis and that he had never married. The applicant stated that he had been ‘certified by medical practitioners’ as ‘homosexual in sex gender’. He referred to letters from a doctor in Zimbabwe and an Australian doctor, as well as a letter from [Organisation] in Zimbabwe.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.INDEPENDENT COUNTRY INFORMATIONSexuality It has been reported that South Africa has one of the world’s most liberal legal environments for LGBT+ people.[1] According to a UK Home Office Background Information Note issued on 20 August 2020, South Africa became the first country in the world to provide constitutional protection to LGBT people, by making discrimination on race, gender, sexual orientation and other grounds, illegal. In 2006, same-sex marriage became legalised. The UK Home Office document included reference to a 2019 US Department of State Human Rights Report which referred to a 2018 University of Cape Town report as underscoring violence, particularly against lesbians and transgender people.[2][1] Freedom House, Freedom in the World 2024: South Africa (2024)[2] UK Home Office, Country Background Note: South Africa (August 2020) at pp.37-38 As discussed with the applicant at hearing, I noted that there are reports of violence. I raised with him that there is information that seems to suggest that this is targeted in particular at lesbian and transgender people. For instance, the US Department of State’s 2023 Country Report on Human Rights Practices for South Africa stated that, despite government policies prohibiting discrimination, there were reports of official mistreatment or discrimination based on sexual orientation or gender identity or expression. The State Department went on to state that black lesbians and trans persons, particularly in rural areas, were vulnerable to assault and to ‘corrective rape’. The State Department also referred to anti-LGBTQI+ attitudes within traditional and rural communities, in townships, and among police. The State Department also reported that cabinet had passed a revised ‘National Intervention Strategy (NIS) Countering Discrimination, Hate Crimes, GBVF That Are Perpetrated Against People on the Basis of Their Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics’. The State Department stated that the revised NIS ‘widened its scope beyond violence against LGBTQI+ persons to motivating for an expansion of access to all human rights of LGBTQI+ persons’. The report referred to the National Prosecuting Authority securing eight convictions during the 2022-2023 financial year for hate crimes targeting individuals for their sexual orientation and to this result being attributed to a ‘fully functioning Rapid Response Team’ established by the NIS. The State Department reported that the constitution explicitly prohibited discrimination based on sexual orientation. The law prohibited discrimination on the basis of sexual orientation, gender identity or expression, or sex characteristics in housing, employment, nationality laws, and access to government services such as health care.[3][3] US Department of State, 2023 Country Reports on Human Rights Practices: South Africa (22 April 2024)