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

1. 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.

2. 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.

3. The applicant attended a Tribunal hearing on 8 August 2024.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection Visa Application

4. 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.

5. 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.

6. 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].

7. 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.

8. 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.

9. 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.

10. 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.

11. The applicant indicated that he had three siblings who lived in Australia on a permanent basis and that he had never married.

12. 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.

13. The applicant stated that homosexuality was illegal in Zimbabwe and that the gay community watched with fear the government’s stance towards them. He stated that he had been gay all his life but that he had been hiding his sexuality and living in fear of being caught, arrested, tortured and prosecuted.

14. The applicant referred to having worked for many years in the family business ‘[Business name]’ and described this as a safe place to work. The applicant described his parents’ roles and activities, and referred to having been actively involved in charity and community work. He stated that in this way he avoided the treatment given to gay people in Zimbabwe. He described his father as a ‘protection figure’ but indicated that his father had passed away [in] December 2015 and was no longer there to protect and safeguard him from hostility, persecution and harassment. He referred to gay people having to live a double life to avoid stigmatisation, discrimination, arrest and prosecution and to Zimbabweans being increasingly homophobic. He described gay rights as being dominated by the fact that same sex sexual activity was illegal in Zimbabwe. He referred to campaigns against homosexual men and women, and to laws passed in 2006. He referred also to Mugabe’s views about the gay community and Mugabe’s actions in this regard.

15. The applicant referred to the gay community in Zimbabwe living in constant fear of being arrested, tortured and killed, and stated that many gay people had been persecuted. He referred to a pastor having been put on trial for speaking out against repression and human rights abuses. The applicant stated that the government did not tolerate any open views or sympathy for the gay and lesbian community. He referred to the arrest of officials of Gays and Lesbians Zimbabwe. He stated that it was well known that people who spoke in favour of rights of gay and lesbian people were also targeted. The applicant referred to keeping a low profile for fear of being caught but stated that it was a matter of when he would be caught. He stated that at his workplace he had started to have a sense that some people were going to expose him and get him into harm’s way. He had also started feeling somewhat the same around some people who he thought were friends. He stated that they were becoming more vocal and he was getting scared that he was going to be surrendered to the police. He stated that he did not have a normal life because he was scared every day that he would be arrested. He referred to activities he avoided for fear of being caught. He described feeling suffocated, unsafe and fearful on a constant basis while in Zimbabwe.

16. The applicant stated that he had been to South Africa on a number of occasions but each time he had stayed for a short time. He stated that he was well aware of the situation in South Africa and that he knew about gay people who had been beaten, stabbed, strangled and stoned to death. He referred to such incidents causing fear to the gay and lesbian community. He stated that it seemed that it was not safe for him to be in South Africa. He stated that he had been to South Africa on many occasions and had been warned by people known to him of dire consequences if his sexuality were to be known to people.

17. The applicant also made claims with respect to being opposed to ‘Mugabe’s political parties’. He stated that some people knew he opposed Zanu-PF and he had become very concerned that he would be caught out and that that would be the start of his woes/prosecution. He stated that it was for this combination of reasons he had become very fearful, particularly when he knew what happened to gay people when they were caught/reported, and what happened to people who opposed the government. He stated that Zanu-PF supporters were there to catch the opponents of Mugabe and not provide protection to people like him. He stated that the whole system was run by people loyal to Mugabe and there was no way out until the collapse of the regime. He stated that, although the MDC shared power, Zanu-PF was the dominant and widespread party and ruled the country. MDC members and supporters were considered to be enemies of the government. The applicant stated that people like him who were MDC supporters, did not speak Shona and were coloured faced difficulties, intimidation, humiliation and worse. He stated that they grew up learning and speaking English, and overnight the authorities were trying to make Shona the main language in Zimbabwe.

18. The applicant described the political situation in Zimbabwe, referring to it as very volatile. He referred to people being arrested and tortured, and disappearing. He referred to racial tensions increasing and to many people leaving Zimbabwe for reasons of persecution, harassment and intimidation. He stated that he and his family suffered persecution and discrimination on other fronts as well because they opposed Zanu-PF and were considered supporters of the MDC, and because they were classed as aliens. He stated that Mugabe and his party treated such people with suspicion and contempt. People like them were mistreated, harassed, discriminated against, deprived of rights and persecuted. He referred to Mugabe’s people looking for opportunities to involve/implicate people who were opposed to the party in wrongdoing and persecute them. He stated that many were arrested, beaten, tortured and killed just for being MDC supporters.

19. The applicant referred to a possibility that, if Mugabe’s people came to know his identity and his support for the MDC and the fact that he had Australian relatives and was in Australia, there would be serious repercussions. This was more probable because he was classed as gay and a ‘coloured alien’. The applicant said that due to his political views and support for the opposition party people like him were targeted by the regime which he described as being built on a dictatorship. The applicant referred to Mugabe having been in power since 1980 and to abuses committed by Zanu-PF personnel. He described feeling very scared because he was alone. He made submissions to the effect that he would never change his political view as a pro-democracy supporter and described being aware of the consequences. He stated that his views and past support of the opposition were now most probably known to the local authorities and supporters of Mugabe. He referred to facing harassment, arrest, physical violence and even worse. The applicant stated that he had only felt freedom after coming to Australia.

20. The applicant stated that his visits to South Africa had been short and for the purposes of visiting relatives, friends, etc. He stated that he had not lived or worked there and could not live there.

21. The applicant described the purpose of his visit to Australia and referred to discussing his situation with his family. He stated that he could live a safe life as a gay person and did not have to live in constant fear. He described wanting to live the rest of his life freely, usefully and with human dignity and without fear. He stated that nothing had happened to him personally because he had tried to live his life in hiding which had become suffocating and a life without aim, purpose or direction. The applicant described his hopes for the future.

22. The applicant stated that it was not easy to leave his motherland and that was why it had taken him a while to take this step. He stated that he knew that, if Mugabe’s men had come to know about him, his life would certainly be in danger and he had to take this step because he refused to live in fear and without any sense of human dignity.

23. The applicant stated that he had worked all his life, held trade qualifications and possessed lengthy work experience. He referred to being able to find work and live life as a useful member of the community. He referred to having worked in [Country 1] and in his family business in Zimbabwe. He described himself as a law-abiding citizen and provided a copy of a police report from Zimbabwe. The applicant also referred to a statement from a Zimbabwean journalist living in [Country 2].

24. The applicant submitted a number of documents in support of his application, including the following:

    ·     A copy of the bio-data pages of his South African passport issued on [in] 2015. This recorded Zimbabwe as the applicant’s place of birth.

    ·     Copies of his birth certificate recording his birth in Bulawayo in [Year]. The birth certificate recorded his father’s place of birth as Rhodesia and his mother’s place of birth as [Country 3]. Neither parent is recorded as having a National Identity Card number.

    ·     A full copy of the applicant’s South African passport. This records numerous entries to, and exits from, places such as [Country 3], South Africa and Zimbabwe. It also appears to record arrivals in Australia, including [in] July 2016, [September] 2016, [December] 2016, [January] 2017 and [February] 2017.

    ·     A copy of what appears to be a Zimbabwean National Registration card.

    ·     A copy of a Queensland Driver Licence.

    ·     A letter of 27 October 2016 from [Ms A], [Official position] of [Organisation] in Bulawayo, Zimbabwe. The letter described the role of the [Organisation] and the nature of [Ms A]’s relationship with the applicant. It described the applicant as an honest, forthright, benevolent and upstanding member of the LGBTI community. It stated that these positive personal attributes were not appreciated by all of Zimbabwean society. It referred in particular to the ‘political powers that be’ and stated that this led to the applicant leaving Zimbabwe as life in Zimbabwe living as an openly gay man had become increasingly risky for him.

    ·     A letter of 10 November 2016 from [Dr B] stating that the applicant was known to them in both Zimbabwe and Australia. [Dr B] confirmed that the applicant was homosexual.

    ·     A statutory declaration from [Ms C] who indicated that she was a former national of Zimbabwe and now lived in [Country 2]. [Ms C] described her background, activities and experiences in Zimbabwe. She described, for instance, experiencing difficulties at the hands of ZANU-PF and the state controlled media. She referred also to the corruption of the government and its officials, and to experiencing intimidation. She described the situation in Zimbabwe as extremely volatile. [Ms C] also described attitudes to homosexuality in Zimbabwe, stating for instance that homosexuality was a dirty word to anyone connected with the ruling party and many of the masses. She referred to a risk of a homosexual Zimbabwean being subjected to brutal interrogation should he return to the country. She described the operation of the regime and expressed the view that Mugabe would die in power. She stated that she had homosexual friends in Harare and Bulawayo, and that they all kept the lowest profile possible, living in fear of exposure. She stated that those who had not been able to cope had left for other countries.

    ·     A letter, dated 11 August 2019, from [Ms A], who describes herself as a trans woman and refers to her experiences and activities in Zimbabwe. The letter refers to the treatment of LGBTQ individuals in Zimbabwe by police and government agents as well as members of the public. It refers to a lack of protection. The letter describes Zimbabwe as being unsafe for members of the LGBTQ community and states that the applicant’s return to Zimbabwe could be potentially dangerous for him, even to the extent of endangering his life.

    ·     A letter of 8 August 2019 from [D], Senior Admin Officer at [Workplace]. The letter refers to the applicant’s employment at the [Workplace] and describes his character and attributes.

    ·     A copy of an ‘S.A. Citizen’ Identity Card, apparently issued to the applicant [in] October 2005.

25. The applicant’s (then) representative made a submission dated 7 March 2017. This referred to aspects of the applicant’s history and background, including his sexuality, his mixed race (described as ‘coloured’) and his being opposed to Mugabe’s government. Submissions were made to the effect that homosexuality was illegal in Zimbabwe, and that the gay community was discriminated against, arrested and tortured. It was submitted that the applicant was part of a particular social group and had a well-founded fear for his membership of that group. It was submitted that homosexuality was illegal. Submissions were made to the effect that the applicant faced harm for reason of being gay, being of mixed race and opposing Zanu-PF. Reference was also made to the applicant’s political opinion.

26. The submission referred to aspects of the legislation and legal framework.

27. The submission referred to a risk of harm to the applicant because he was gay, of mixed race and opposed Zanu-PF. Further, he was likely to be persecuted on his return to Zimbabwe due to being against the Mugabe regime and supporting the opposition party. It was submitted that the fear the applicant held was based on what was happening to gay people in both Zimbabwe and South Africa. It was submitted that the applicant’s opposition to the ‘current regime’ and his being of mixed race raised the real possibility of persecution if he returned to his ‘home country’. The submission addressed the political situation in Zimbabwe as well as human rights abuses in the country. This included reference to discrimination against the LGBT community and persons with HIV/AIDS. It was submitted that the applicant was aware of the persecution of people from the gay community and those who opposed the regime. He was likely to be persecuted if he returned. Reference was made to aspects of the Human Rights Watch World Report 2015 with respect to Zimbabwe as well as the US Department of State’s 2014 Human Rights Report on Zimbabwe. It was submitted that the applicant had taken part in protest against the government, albeit ‘on a low scale without having been exposed’. It was submitted that he had grave concerns that the fact of his being homosexual would expose him, if caught, to serious investigations which might include his activities against the government.

28. It was submitted that there was evidence that gay people in Zimbabwe, when exposed, had been mistreated, harassed, threatened abused and mistreated. Same sex relationships were not only unlawful but the regime had formed its own views about gay people. The applicant had avoided the consequences because he had worked mostly in the family business, kept a low profile and had the support of his influential father who had died about a year earlier. If he returned to Zimbabwe, he would have no protection and would be likely to be exposed when in employment and socialising. He now had no family members in Zimbabwe. The submission referred to the statutory declaration of a well-known former journalist living in [Country 2]. It was submitted that articles clearly showed that homosexuals were mistreated, threatened, abused, tortured and even killed in Zimbabwe and South Africa. It was submitted that same sex sexual activity was a criminal offence in Zimbabwe and reference was made in this regard to an article entitled LGBT Rights in Zimbabwe. It was submitted that the applicant was very likely to be persecuted if he returned to Zimbabwe. Submissions were also made to the effect that the applicant satisfied the complementary protection criterion. In this regard, reference was made to the applicant’s sexuality, his being opposed to the ‘current regime’, the fact that he would be a failed refugee applicant and would be persecuted on the basis that he had spoken against the Mugabe government, his having lived in a western country (it was submitted that he would be taken to have been brainwashed to believe in western values) and his mixed race. It was submitted that, if he returned to Zimbabwe, he would be subject to discrimination and mistreatment in all walks of life. It was submitted that the applicant had a well-founded fear based on being a member of a particular social group and being seen to be against the current regime. His need for protection was greater now he had spoken out about his fears. There was a risk of significant harm to him if he were to return to Zimbabwe.

1. The reports referred to in the submission included a Human Rights Watch report of 13 July 2016 entitled Zimbabwe returns to its ugly past and the Human Rights Watch World Report on Zimbabwe.

2. The applicant’s representative made a further submission dated 16 August 2019.  The submission referred to the applicant’s membership of a particular social group. It was submitted that, while the applicant held a South African passport, he had always lived in Zimbabwe prior to coming to Australia. He feared that he would not be able to live openly in his home country as a gay person if his sexual orientation were known. He had nowhere to go in Zimbabwe. His house had been vandalised and taken over by invasion. He no longer had property rights. Having been out of Zimbabwe for a period exceeding 6 months, he no longer had residency there and would require a residency application to enter Zimbabwe.  He would have no employment and would be unable to sustain himself. Reference was made to the state of the Zimbabwean economy. It was submitted that being gay made it a lot more difficult to find employment. He had never lived anywhere other than in Zimbabwe. He did not have any ties in South Africa. Reference was made to DFAT’s Country Information Report on Zimbabwe and to a US Department of State report addressing the position of LGBTI individuals in Zimbabwe. Submissions were also made in relation to the complementary protection criterion. It was submitted that LGBTI people were treated differently in all walks of life and that, if returned to Zimbabwe, the applicant would be subjected to discrimination and mistreatment in all walks of like. Reference was made to other Tribunal decisions. It was submitted that the applicant’s fear was real given what had happened to others in a similar situation and suffered persecution at the hands of government agencies, because of their opposition to the Mugabe regime. It was submitted that there was a risk of significant harm to the applicant if he were to return to Zimbabwe.

3. The applicant submitted a number of articles and reports in support of the application. These included the following:

   ·     A document entitled LGBT rights in Zimbabwe.

   ·     An article on Zimbabwe, dated 29 September 2015 and entitled Homosexuality contrary to our values, Mugabe tells UN.

   ·     A January 2019 Country Policy and Information Note from the UK Home Office on Sexual orientation and gender identity and expression in Zimbabwe. The document refers to matters such as state treatment and societal treatment of LGBTI individuals.

   ·     A report from the US Department of State headed ‘Zimbabwe 2015 Human Rights Report’.

   ·     A report of 17 April 2015 entitled Xenophobia in South Africa: ‘They beat my husband with sticks and took everything’ as well as an article of 6 May 2015 entitled Mob violence sets SA xenophobia apart, an article of 3 May 2015 entitled Xenophobia in South Africa, an article entitled Hundreds displaced by xenophobic violence in Grahamstown, a report headed ‘Hardline Australia, confused Scandinavia and tense Russia: the global immigration picture’ and an article entitled More xeno attacks erupt. These reports referred to the targeting of foreigners in South Africa.

   Departmental Interview

4. The applicant attended an interview with an officer of the Department on 15 August 2019.

5. A support person was present at the interview. The applicant attended the interview without his (then) migration agent. The applicant participated in the interview in English.

6. I have had regard to all of the applicant’s evidence at the interview, although it is not necessary to set this out in full. Aspects of the applicant’s evidence, particularly with respect to his race and sexuality, are summarised below. Aspects of this evidence are also referred to in my consideration.

7. I note that the applicant’s evidence included evidence to the effect that he was mixed race, that both his parents were mixed race and that they were basically a ‘lost race’. The applicant also gave evidence about his experience growing up in Zimbabwe as a gay person, saying that it was not an easy road and that it was a treacherous road leading a double life. He referred, for instance, to being afraid of being attacked, victimised, scrutinised and ostracised. He claimed to have been in constant fear, and referred also to the experience of friends and relatives. He said he had friends and relatives who experienced more of the brunt of that hostile behaviour from authorities. He referred to living a double life and described his relationship and interactions with his family. He described his father’s role as a ‘protection figure’ prior to his passing. He described the circumstances in which he sought a protection visa.

8. The applicant also referred to the situation for the gay and lesbian community in South Africa. For instance, he referred to hostility and referred to situations of killings of gay people. He made claims to the effect that he thought the South Africans were generally more aggressive and their reactions were more adverse. He referred to it being publicised through the television and newspaper. The applicant referred to growing up with the fear of living in Zimbabwe because of his sexual orientation and made claims to the effect that he felt more at risk in South Africa than he did in Zimbabwe. The applicant referred to not having family to protect him and how he would be received by people who were completely anti-gay. He said the hostility was worse in South Africa and that he probably never would have survived it. The applicant also gave evidence to the effect that the thought of living in South Africa never crossed his mind and that it was never an option. He gave evidence to the effect that he had nowhere to go and described it as like stepping into the complete unknown. He gave evidence that it had never really crossed his mind and said he did not want to return home. With regard to Johannesburg, he said it was never really a place he felt comfortable living in.  He referred to violence against gay people. He said it was not just the fear of attack against gay people. He said the crime was rampant. He said it was not a place he felt comfortable staying in because it was just not safe all round. He referred to violence and crime being rife. He said it was never a place to stay ideally. The applicant referred to fearing carjacking, robbery, theft and mugging. He referred to Australia as a place where there was a sense of peace and a sense that you could be yourself and not worry about being victimised or ostracised.

9. The applicant also made claims to the effect that he felt that should he return now things would be much worse for him, especially after being away. He referred to not having family. The applicant said he did not have a comforting feeling about South Africa, not just because of the gay issue but because of the place itself. It never really felt like home to him. He felt like home for him was where his family was and that was where ideally he would like to be. He gave evidence to the effect that his house in Zimbabwe had been vandalised.

10. With regard to South Africa, he said the fact that it was legalised and there was marriage equality did not change the fact that there was a danger to anyone who was gay there. He said it was a political façade. He faced a great chance of being harassed or ostracised in South Africa. He gave evidence to the effect that it was not an option for him to go there. He referred to situations of people being harassed and tortured and victimised and threatened with their life for being gay.

    Delegate’s Decision

11. On 31 January 2020, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that the applicant was a citizen of South Africa as evidenced by his passport. The delegate accepted that the applicant did not have a right to enter and reside in Zimbabwe.

12. The delegate addressed the claim to the effect that the applicant might face harm in South Africa because he was regarded as a foreigner or migrant there. The delegate accepted that xenophobic violence occurred in South Africa but found that it was reported to target mainly black Africans from elsewhere in Africa and occasionally poor migrants from Pakistan and Bangladesh. The delegate noted that the applicant had travelled frequently to and from South Africa as the holder of a South African passport. The delegate did not accept that the applicant would be regarded as a foreigner or migrant in South Africa. The delegate addressed claims relating to political opinion in Zimbabwe. The delegate addressed the position in relation to membership of the LGBTI community. The delegate referred to previous travel to Australia by the applicant. The delegate considered the situation in South Africa with respect to matters such as crime, the experience and treatment of mixed race South Africans, the availability of state protection, employment, housing and the treatment of mixed race South Africans. With respect to violent crime, the delegate found that the persecution feared by the applicant did not involve systematic and discriminatory conduct. The delegate found that the applicant might face some hardship on return to South Africa, but found that the persecution feared in relation to employment and accommodation did not involve serious harm. The delegate addressed claims by the applicant to the effect that, because he was gay, he would be harmed if he were to return to South Africa. The delegate noted that the applicant had relatives in urban areas, including Johannesburg, South Africa’s largest city, and Cape Town in Western Province. The delegate found that there was no real chance of harm in South Africa due to the applicant’s sexual orientation. The delegate considered the applicant’s circumstances as a gay man of mixed race. The delegate found that the criminal violence feared by the applicant was random and sporadic in nature and therefore not systematic and discriminatory. The delegate was not satisfied that the applicant had a well-founded fear of persecution for combined reasons of race and sexual orientation. The delegate was not satisfied that the applicant met the criteria in s 5H(1).

13. With regard to complementary protection, the delegate was not satisfied that, as a necessary and foreseeable consequence of being removed to South Africa, there was a real risk that the applicant would face significant harm for reason of his mixed race or sexuality. The delegate found that the crimes the applicant feared were opportunistic in nature rather than being targeted. The delegate found that the risk of experiencing violent crime was a risk faced by all South Africans. The delegate found that the risk of violent crime was one faced by the population generally. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Africa, there was a real risk that the applicant would suffer significant harm.

    Review Application

14. The applicant attached a copy of the delegate’s decision to the review application.

15. On 11 June 2024, the applicant submitted to the Tribunal a Pre-hearing information form.

16. Prior to hearing, the applicant submitted a number of additional documents, including the following:

    ·     A record of a Certificate IV in [Subject 1] awarded to the applicant.

    ·     Records of certificates awarded to the applicant in relation to [Subjects 2 and 3] and a Diploma in [Subject 4].

    ·     A copy of a Certificate III in [Subject 5] issued to the applicant by [University].

17. The applicant also submitted to the Tribunal a further written statement. In the statement, the applicant referred to employment and training undertaken in Australia and qualifications gained here. He stated that his entire family were all living in Australia and it was his greatest desire to continue to live with them. He said it would result in immense sadness if his wish to stay and continue working and living in Australia was denied.

18. The applicant attended a Tribunal hearing on 8 August 2024. I have had regard to all of the applicant’s evidence at the hearing, although it is not necessary to set this out in full. Aspects of his oral evidence are set out in my consideration, below. The applicant confirmed at the hearing that he no longer had a representative.

    CRITERIA FOR A PROTECTION VISA

19. 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.

20. 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.

21. 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).

22. 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.

23. 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.

24. 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

25. 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 INFORMATION

    Sexuality

26. 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

27. 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)

28. As also discussed with the applicant at the hearing, there is independent information suggesting that the LGBT community faces particular difficulties in poorer and non-urban areas. For instance, a report from the South African Institute of Race Relations indicated that it was especially those in rural and poorer communities who still regularly experienced discrimination and hate-driven crimes.[4] The South African Human Rights commission stated in a paper that violence on the basis of sexual orientation, gender identity and expression and discrimination tended to impact most severely on black, poor and rural LGBTIQ people.[5] A report from Arcus Foundation stated: ‘Conservative attitudes, and cultural, religious, and traditional moral codes disproportionately affect young lesbian and transgender women and leave them particularly vulnerable to violence. Peri-urban and rural areas, with high unemployment rates, poor implementation of legislation, low levels of education, and inadequate resources for organising are considered hotspots for hate crimes and human rights violations.’[6] A December 2017 report stated that risks were particularly high for black LGBT people in rural areas.[7]

    [4] South African Institute of Race Relations, LGBTQ Rights in Sub-Saharan Africa: Perspectives of the region from the region (October 2019) at p.3

    [5] South African Human Rights Commission, Thematic Discussion Paper: Discrimination and Violence on the Basis of Sexual Orientation, Gender Identity and Expression (SOGIE) in South Africa (February 2018) at p.1

    [6] Arcus Foundation, Data Collection and Reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda (January 2019) at p.60

    [7] M. Morris, ‘LGBT community still faces high levels of violence – report’, news24 (4 December 2017)

1. LGBT people in Western Cape (where Cape Town is located) are reported to be most likely to be completely open about their sexuality (70% of people there, compared to 57% nationally).[8] As also discussed with the applicant at hearing, Cape Town has been described as the ‘gay capital of Africa’. It has been reported that Cape Town is home to a gay village, De Waterkant,[9] and that an annual gay pride parade has been held in Cape Town since 1993.[10]

   [8] Ibid.

   [9] C. Hattingh, ‘South Africa's Post-Apartheid Gay Village: A Victim of its Own Success?’, International Conference on Tourism Research (March 2019); see also E. Venske, ‘Pink Tourism in Cape Town: The Development of the Post-Apartheid Gay Quarter’ in A. Diekmann and M. Smith (eds), Ethnic and Minority Cultures as Tourist Attractions (2015)

   [10] S. Phaliso, ‘Cape Town Pride celebrates equality in South Africa, condemns Ghana’s new anti-gay law’, GroundUp (4 March 2024), available at >

   The available information also indicates that a National Task Team (NTT) on Gender and Sexual Orientation-Based Violence was established by the Department of Justice and Constitutional Development in March 2011. The Working Group of the NTT then established a Rapid Response Team to respond to pending cases in the criminal justice system for crimes levelled against LGBTI persons.[11]

   [11] LGBTI National Task Team, About the Task Team (2018), available at >

   While it has reported that the overall transition has been slow, Stonewall has reported that ‘South Africa’s strong legal protections for LGBT people have had, and continue to have, a hugely positive effect on society including in government, where LGBT rights have been firmly enshrined in South Africa’s human rights framework’.[12]

   [12] Stonewall, Stonewall Global Workplace Briefings 2018: South Africa (2018)

2. At the hearing I put to the applicant the gist of the information above on the position for LGBTQI+ people in South Africa.

   Position for ‘Coloured People’ in South Africa

3. It has been reported that, according to South Africa's latest census, coloured people make up 8.2% of the population.[13] A 2018 South African Institute for Race Relations survey found that 52% of coloured South Africans had not personally experienced any racism directed at them, below the overall average of 72% but higher than the proportion of white people who said they had never personally experienced racism that was directed at them.[14] An April 2019 report from France24 indicated that coloured people in South Africa felt a sense of exclusion or marginalisation. The report stated, ‘If one goes by official figures, this picture of marginalisation is somewhat different.’ It noted that household income among the ‘Coloured’ community was twice as high as for the black majority who make up 81% of the population, and that unemployment for the coloured community was lower than for the black labour force. It quoted a source as saying that coloured people had always been marginalised under colonial and apartheid rule.[15]

   [13] D. N. Kupemba, ‘Tyla’s racial identity: South African singer sparks culture war’, BBC (9 December 2023), available at Institute for Race Relations, Race rhetoric undermining race relations in SA – IRR (20 March 2018), available at ‘In new S. Africa, some in 'Coloured' community nostalgic for apartheid’, France24 (26 April 2019), available at >

   The independent information indicates also that the South African Parliament has enacted equality legislation, namely the Broad-Based Black Economic Empowerment Act, to redress the imbalances caused by apartheid in South Africa. This is the legislative framework which governs black economic empowerment (‘BEE’) and is a series of affirmative action policies that benefit the black population. The information indicates that ‘Black people’ includes Africans, Coloureds, Indians and Chinese who are citizens of the Republic of South Africa by birth or descent.[16]

   Crime in South Africa

   [16] Jeannine van de Rheede, ‘The Broad-Based Black Economic Empowerment Act 53 of 2003 and the ways in which the commission of fronting practices affects the achievement of its objective’, African Journal of Democracy & Governance / Revue africaine de la démocratie & de la Gouvernance, Vol. 7, No 1, 2020, available at 'BTI 2022 Country Report South Africa', Bertelsmann Stiftung (23 February 2022)

4. Independent information points to a high rate of crime, including violent crime, in South Africa, and indicates that it affects every sector of society.[17] For instance, a report from ABC Foreign Correspondent in September 2018 quoted a source as saying that crime was happening to all races in South Africa and everyone in society.[18] Another 2021 report from the Institute for Security Studies noted crime and violence levels were rising and these increases were probably the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, declining police performance and high levels of police corruption. The main driver of murder in many areas was the availability of illegal firearms.[19] A 2023 report from the US Department of State Overseas Security Advisory Council stated that violent crime remained an ever-present threat but that most crimes were opportunistic in nature.[20]

   [17] P. du Toit, ‘Ramaphosa's 'killings of white farmers' comment: What the president meant’, news24 (27 September 2018)

   [18] J. Holmes, ‘The white minority took our land. Enough is enough’, ABC Foreign Correspondent (31 July 2018)

   [19] L. Lancaster, South Africa needs a murder reduction strategy, Institute for Security Studies (14 June 2021)

   [20] US Department of State Overseas Security Advisory Council, South Africa Country Security Report (12 December 2023)

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and Nationality

5. A preliminary question arises as to the applicant’s nationality.

6. In this regard, I note that the applicant gave evidence at hearing about his history in Zimbabwe. His evidence in this regard was broadly consistent with his written and oral evidence to the Department. He also gave evidence about his nationality, claiming that he was a national of South Africa and no other country. His evidence was that he did not have a presently existing right to enter and reside in Zimbabwe.

7. In summary, the applicant’s evidence at the hearing was to the effect that he was born in Bulawayo. He indicated that he had lived with his parents as their carer in a retirement village in Bulawayo for almost 5 years before he came to Australia in 2016. I am willing to accept that this is the case. While the applicant initially indicated that he did not own a house in Bulawayo, he ultimately indicated that the house had been vandalised. I am willing to accept that this is the case. He gave the address of this house and indicated that he had lived there for about 12 years immediately before he was at the retirement village. He also identified previous addresses at which his parents had lived in Zimbabwe. I accept that the applicant was born in Zimbabwe and lived in Bulawayo until he came to Australia in 2016.

8. The applicant gave evidence at hearing about his history and activities in Zimbabwe. For instance, he indicated that he had finished school in [Year] and that his highest level of education was a diploma. He gave evidence to the effect that he and other family members had worked for his father in the family business which was engaged in manufacturing [products]. He gave evidence to the effect that he did this from [Year] until about 2012. He said the business closed down with the economic conditions in Zimbabwe. With regard to what he had done after 2012, he said he basically lived with his parents until the time he moved to Australia. He referred also to doing the odd [job task 1] job and doing [job task 2] at various [workplace]s. He said he did not do any full-time role; he just relied on casual work. He gave evidence that, between 2012 and 2016, he would casually take on jobs with [Employers 1 and 2]. With [Employer 1] he would do [job task 1]. With [Employer 2] he would do [job task 1] as well or sometimes [job task 3]. The applicant indicated that he was [an occupation 1]. The applicant also gave evidence about previously having worked in [Country 1] on a working holiday. I accept this evidence about the applicant’s education and past employment. I note that, although he said he did not speak it fluently, the applicant gave evidence that he speaks Afrikaans well enough to communicate with his family. He referred to sometimes communicating with his siblings in that language and indicated that his parents had spoken Afrikaans frequently and fluently.

9. The applicant gave oral evidence about his parents. In summary, he indicated that his father was born in Zimbabwe and his mother in [Country 3]. His mother had passed away (in Australia) in February 2020 and his father in December 2015. With regard to his siblings, the applicant indicated that he had one brother and 2 sisters. His [other] brother, [Mr E], had passed away in Australia in April 2022. He indicated that his brother, [Mr F], and his 2 sisters, [Ms G] and [Ms H], all lived in Perth. He indicated that [Mr F] worked as [an occupation 2] for [Employer 3] and [Ms H] as [an occupation 3] for the same company. [Ms G] was [an occupation 4] for [Employer 4]. The applicant indicated that [Ms H] had been in Australia since 2012, that she was married to an Australian citizen and that she was an Australian citizen. The applicant indicated that he and his other family members had come to Australia together in July 2016. [Mr F], [Ms G] and their spouses had permanent residency in connection with their work before they moved to Australia. He, [Mr E] and his mother had come on visitor visas. The applicant indicated with regard to [Mr E] and his mother that an application had been made for them to come in as dependants, that they had been granted bridging visas and that they had passed away before the applications were processed. The applicant indicated that he was in contact with his sisters and brother in Perth and was on good terms with them. I accept this evidence about his family which was broadly consistent with evidence he had given to the Department.

10. With regard to whether he still had contact with anyone in Zimbabwe, the applicant indicated at the hearing that he had an aunt in [Country 3] and an aunt in Zimbabwe he kept in contact with. He referred to having relatives in [Countries 1 and 4]. He gave evidence to the effect that he had distant relatives in South Africa, an uncle of his father in Cape Town and a distant aunt of his father in Durban. He gave evidence to the effect that he no longer had relatives in Johannesburg. He indicated that he had friends in South Africa he had grown up with, one in Cape Town and one in Johannesburg. He gave evidence to the effect that he was in contact with them and spoke to them 2 or 3 times a year. He indicated that his friend in Cape Town was [an occupation 5] for [a company 1] and that the friend in Johannesburg worked in administration for [a company 2]. I accept that the applicant has an aunt in [Country 3], an aunt in Zimbabwe and relatives in Cape Town and Durban as claimed. I accept that he has a friend in Cape Town and a friend in Johannesburg and that he maintains contact with them as claimed. The applicant indicated that he had been in South Africa to renew his passport in 2015 and that he had transited in Johannesburg on his way to Australia in 2016. He indicated that he had to go through South Africa for international travel.

11. The applicant gave evidence to the effect that he arrived in Australia in July 2016, that he needed to travel to [Country 5] on 2 occasions while he was waiting for his bridging visa and that he had previously come to Australia on a holiday with other family members in December 2013. I accept his evidence in this regard. The applicant confirmed at the hearing that he applied for a protection visa in March 2017. He said he was ‘somewhat’ aware of what was in his protection visa application and that, as far as he knew, all the information in the application was accurate and correct.

12. When asked about stamps in his passport for places like [Country 3], Zimbabwe and South Africa, the applicant indicated that his younger sister had lived in [Country 3] and he would visit her periodically. They would go to South Africa periodically to do shopping. He indicated that he would go to Johannesburg to do shopping because it was the closest city to Bulawayo. He indicated that [Mr F] and his wife had lived in Cape Town in South Africa for a period so he would go and visit them a couple of times. [Mr F] worked in South Africa for about 4 or 5 years as [an occupation 6] for [a  company 3]. The applicant indicated that [Mr F] left South Africa in July 2016 and was now an Australian citizen. The applicant gave evidence that they would stay at a motel. I accept that the applicant visited [Country 3] to see his sister and that he visited Johannesburg in South Africa periodically to do shopping. I accept also that he visited his brother, [Mr F], when [Mr F] was living in Cape Town in South Africa.

13. With regard to his nationality and his status in Zimbabwe, the applicant gave oral evidence to the effect that he was a citizen of South Africa and no other country. He claimed to have been on a resident visa in Zimbabwe. He gave evidence to the effect that, shortly after Mugabe took over, citizens who had a right to foreign citizenship had to relinquish their right to Zimbabwean citizenship. For them to travel, they had to acquire South African passports because the Zimbabwean government would not give them passports if they had foreign birthright. He indicated that he had foreign birthright because his grandmother was South African and this was reflected on his father’s passport. That made them alien to the country as far as Zimbabwean law went. The applicant confirmed that they had Zimbabwean passports and gave them up. He gave evidence to the effect that they were forced to renounce their Zimbabwean citizenship because of that foreign birthright. In order to be able to travel, the only way they could get a certificate was to take up South African citizenship and get a South African passport. When I raised with the applicant that my understanding under the Zimbabwean constitution was that a child born in Zimbabwe who had either a father or mother who was a Zimbabwean citizen at the time of their birth was a Zimbabwean citizen by birth,[21] the applicant said he was a Zimbabwean by birth. That law in the constitution was only revisited recently. The only reason they took up South African citizenship was to get a passport. When I raised with the applicant that I had read that Zimbabwe now allowed dual citizenship, the applicant said that was recent. He gave evidence that his father had to renounce his Zimbabwean citizenship as well. That was the only way he could get a passport. Even though he was born there, they did not consider him rightfully a Zimbabwean citizen.

    [21] 'Zimbabwe's Constitution of 2013', Constitute Project, 27 April 2022, Article 36(1), p.13

14. The applicant indicated that it was around 2002 or 2003 that he was required to give up his Zimbabwean citizenship. He gave evidence to the effect that his National Registration Card had been issued when he turned 16 in [Year]. He indicated that they had been considered citizens right up until 2002 or 2003 when the Zimbabwean immigration law changed for all citizens who had foreign birthright. Everyone who had a parent with foreign birthright was not able to apply or renew a passport because they were no longer considered citizens. They were considered aliens to Zimbabwe. He said the registration card was issued before that. With regard to whether he had a right to enter and reside in Zimbabwe, he said he would have to apply for residency. Because he had resided there before, it would be feasible to apply for residency. He confirmed that he would have to make an application.

15. I have carefully considered the applicant’s claims about his citizenship and his status in Zimbabwe. I accept that the applicant was born in Bulawayo as indicated in his birth certificate, and that his father was born in Zimbabwe and his mother in [Country 3] as also reflected in his birth certificate. I accept the applicant’s evidence that his grandmother was South African. As discussed with the applicant, it has been reported that in 2001 people in Zimbabwe were forced to renounce their ancestral citizenship in order to be granted Zimbabwean citizenship.[22] It has also been reported that a 2001 amendment gave people of foreign origin 6 months to renounce their foreign nationality or automatically lose their Zimbabwean nationality.[23] This is consistent with the applicant’s claims to the effect that, in spite of being born in Zimbabwe, the family members lost their entitlement to Zimbabwean citizenship due to their South African background and having an entitlement to South African citizenship. I accept that they were effectively forced to choose between Zimbabwean and South African citizenship and chose South African citizenship for the purposes of travel. I accept that they effectively renounced their Zimbabwean citizenship. I note that the applicant has a South African passport. In all the circumstances, I accept that he is a citizen of South Africa and no other country.

    [22] Amnesty International, Zimbabwe: Statelessness crisis traps hundreds of thousands in limbo (16 April 2021), Amnesty International, We are like ‘stray animals’: Thousands Living on the Margins due to Statelessness in Zimbabwe (2021) at p.11, available at >

    I find that South Africa is the applicant’s country of nationality for the purposes of s 5H(1) of the Act. Having regard to the definition of ‘receiving country’ in s 5(1), I find that South Africa is the relevant receiving country for the purposes of s 36(2)(aa). I must assess the applicant’s claims against South Africa as his country of nationality. I discussed with the applicant at the hearing that, if I were to find that he was a citizen of South Africa, I would need to consider his claims against South Africa.

16. I accept that the applicant had a Zimbabwean National Registration card and that, in spite of no longer being a citizen, he was able to stay in Zimbabwe as a resident until 2016. However, I note that DFAT has provided the following advice in relation to loss of domicile: ‘The Immigration Act states that an individual may lose their ‘domicile’ (lawful permanent resident) status in Zimbabwe if they voluntarily depart from and reside outside Zimbabwe with the intention of making their home there; or are absent from Zimbabwe for a continuous period of five years or longer. Taking up residence outside Zimbabwe is regarded as prima facie evidence of such an intention, and the onus of proving otherwise is on the person whose status is in question. Losing domicile status would generally preclude the individual from re-entering Zimbabwe without obtaining a new visa.’[24]

    [24] DFAT, Country Information Report Zimbabwe (19 December 2019) at p.55

1. I accept that the applicant has been absent from Zimbabwe for longer than 5 years and that, in these circumstances the applicant has lost his domicile or lawful permanent resident status. I accept that he would have to obtain a new visa to re-enter Zimbabwe and that he does not have a presently existing right to enter and reside in Zimbabwe.

   Place to which applicant is likely to return

2. I am conscious that the applicant has spent limited time in South Africa in the past. However, the available evidence indicates that the applicant has spent time in both Johannesburg and in Cape Town, where his brother lived in the past. He retains some connection with Cape Town in particular where he has a friend and a relative, and with Johannesburg where he has a friend. I note that, when I raised with the applicant at the hearing whether he would be likely to go to Cape Town or Johannesburg, he said that he would not go to South Africa. I accept that the applicant does not wish to go to South Africa. I accept that he has not lived there in the past. However, the applicant has spent some time in Cape Town and Johannesburg in the past. I find that he is likely to return to one of these 2 large urban centres.[25] While I note that the applicant would be returning to a country that he has not lived in previously and would have to establish himself there, the evidence indicates that the applicant has multiple family members who have established themselves in Australia and the applicant acknowledged at the hearing that they would support him if he were to have to go to South Africa. I do not accept that he would have to live in a poor area or outside the large cities, and find that he would not do so. I find that he would return to Cape Town or Johannesburg, places where he spent time in the past and with which he retains some connection.

   Applicant’s Sexuality

   [25] See, for instance, Stats SA, Metropolitan Municipality, available at >

   I note that the applicant made claims to the Department with respect to his sexuality and with respect to fearing harm in South Africa on this basis.

3. The applicant gave further evidence about his sexuality at the hearing. I discussed with the applicant when and how he first became conscious of his sexuality. He gave evidence to the effect that it could have been in his early teens when he went to an all boys’ boarding school. He indicated that he had not told his family, stating that it was not acceptable and not openly spoken about. He said even in the family it was not something he could speak about. He knew his family were aware of it. They were in a way accepting his sexuality. It was something that was never spoken about. He said they knew he was never confident enough to say, ‘this is who I am’. Even now in his [Decade] it was not something he spoke about with his siblings. The applicant indicated that he did not have relationships with men in Zimbabwe. He said he strongly believed the only reason he didn’t was because he was hiding this part of him, hiding from his family, hiding from society. Being in a relationship would compromise this thing that he was hiding so he never had that opportunity to be in a relationship. He gave evidence to the effect that he had initially had relationships with women to gain especially his father’s approval, or try and camouflage who he was. He referred to having tried to date girls a couple of times but indicated that on one occasion the girl could tell he was not being himself and on another he was confident enough to tell her it was not going to work.

4. The applicant indicated that he had not had any relationships since leaving Zimbabwe. When asked whether there was a reason for that, he said he put it down to a couple of things. Perhaps because he had become so comfortable with being alone it had never really been on his priority list to get involved. Another reason would be that he had been so preoccupied with securing good work and study that going out and dating had not really been a priority. When asked whether it was the case that he was not really interested in or looking for a relationship, the applicant said when he was watching a movie he could picture himself in those ideal relationship situations. He said maybe if it was meant to be it would happen. He said he was not going to pursue it or push for it to happen. I asked why, if he was not in relationships with people, he was concerned that people would harm him for his sexuality. He said it happened quite a lot that people were harmed because of that because it was so widely not accepted in Zimbabwe. He said he was probably one of the fortunate ones because of his father’s influence. Even though his father did not accept it, because of his influence he was probably protected in a way. People would look beyond him because of the way they respected his father. His father was highly influential in the community. When asked how people knew he was gay, the applicant said by his mannerisms people would be able to tell straight away. The applicant later said that his sexuality was based on his preferring male partners and confirmed that he had not had a relationship with a man. He claimed that it was apparent from his mannerisms and actions that he was gay.

5. I discussed with the applicant the letters he had provided in relation to his sexuality. The applicant said that [Dr B] was his doctor so he discussed everything with her and that [Ms A] was a good friend who was openly gay. He indicated that he knew [Ms C] from Zimbabwe and described her as an openly lesbian, highly influential TV presenter. He said that [Ms C] and her partner eventually left Zimbabwe and moved back to [Country 2] where she was born, primarily because of the scandal and stigma and drama they were experiencing with people who would not be accepting of her sexuality. He indicated that [Ms A] had been ‘exiled’ to [Country 6] where they took him as a gay activist from Zimbabwe and he was now representing a gay organisation. He said they tried to get some action against the Zimbabwean laws against gays and lesbians in Zimbabwe.

6. While the applicant has indicated that he has never had a relationship with a man, his evidence is essentially to the effect that he is attracted to men or prefers male partners. I am willing to accept that the applicant is attracted to men and that he is gay in this sense. I have had regard to the evidence from witnesses such as [Dr B], [Ms A] and [Ms C]. I accept that the applicant has discussed his sexuality with them and that they regard him as gay. While the absence of any relationships might make him less readily identifiable as a gay man, I accept that he identifies as a gay man and that his mannerisms might lead some people to identify him as being gay. The absence of any past relationships might raise a question as to whether the applicant has an interest in seeking out, or engaging in, a relationship. While I accept that he may have an interest in securing good work and studying in Australia, he has now been in Australia for approximately 8 years and, on his own evidence, has not had any relationships in that time. While I have some doubt about the extent of the applicant’s interest in engaging in a relationship, I am willing to accept that as a gay man he may wish to engage in a relationship with a man in the future.

   Consideration of Refugee Criterion

   Circumstances in South Africa as a gay man

7. The applicant made claims to the Department about fearing or facing various types of harm as a gay man. However, in his oral evidence to the Tribunal he did not appear to claim that he would face serious or significant harm in South Africa for reason of his sexuality.

8. I note that, when asked at hearing about why he was seeking protection in Australia, the applicant said that, at the time he put the application through, his migration lawyer deemed it was the best way for him to seek residency in Australia as his family were permanent residents at the time and he did not have the required skills to apply for permanent residency. His migration lawyer suggested that a protection visa would be the best way for him to apply. As he experienced extensive persecution for being gay in Zimbabwe, he recommended that would probably be the most positive angle to use to apply for a humanitarian visa. When asked whether there was any reason why he would fear returning to South Africa, the applicant said the only reason he would not go to South Africa was he had never really lived there. He was not comfortable with South Africa. He had never lived there. He had only ever lived in Zimbabwe. When asked whether there was a reason why he feared serious or significant harm in South Africa, the applicant said not necessarily South Africa. He said he did not think he would feel persecuted or feelings of being harmed in South Africa. He just did not feel comfortable living in South Africa. They had a lot of crime and he was not familiar with living in South Africa. All the times they had visited it was only ever brief periods. It never really felt comfortable enough for him to say it was a country he could call home or feel safe living. I asked the applicant whether there was a reason why he would not feel safe in South Africa. He said no particular reason other than it was not familiar to him. That would be the only reason.

9. I raised with the applicant that, from the information he had given me, he had been to South Africa on occasions in the past. I asked whether he had been fearful about going to South Africa. The applicant replied in the negative. When asked whether he had any problems there, he said that he did not. I noted that from what he said his brother lived and worked there for about 4 years. The applicant confirmed that this was correct and that his brother lived in Cape Town. When asked whether his brother had any problems there, he replied in the negative. When asked whether, if he had to go to South Africa, he might expect support from his family who were living in Australia, the applicant said they would most definitely support him in any way. He said that the ideal situation was that they would want him to be with them rather than in another country. When asked whether there was anything else he wanted to tell me about why he did not want to go to South Africa or why he would be fearful going there, the applicant said one important detail that he failed to mention earlier was his brother was shot in South Africa. That was the main reason he left. He described an incident in which burglars broke into the house. He gave evidence that they had to sell up and leave because they were traumatised. He said he thought maybe that had a bearing on fear of living in South Africa. I raised with the applicant that I had asked him earlier whether his brother had had any problems in South Africa and my understanding was that he had told me he did not. I asked whether there was a reason he did not mention this. The applicant said he did not think it would be necessary. He did not think it would be relevant at the time. Now the Tribunal was asking if there was any reason why he felt fearful, the reason was solely based on the experience that his brother and his brother’s family had.

10. I raised with the applicant that he had mentioned to the Department some things about his sexuality in relation to South Africa. I asked whether that was an issue for him in South Africa. The applicant said he never had a bad experience himself so that would not be something he would declare. He said he had not had a bad experience himself. He indicated that he was never threatened or harmed in South Africa for his sexuality. I put to the applicant the gist of independent information on the situation for gay people in South Africa. I referred, for instance, to information from the UK Home Office Background Information Note of August 2020 (see ‘Independent Country Information’, above). I raised with him that there were some reports of violence but that some information seemed to suggest that this was targeted particularly at lesbian and transgender people. I put to him the gist of information from the US Department of State’s 2023 Country Report on Human Rights Practices for South Africa. I raised with the applicant that information I had seen seemed to suggest that the LGBT community faced more difficulties in poorer and non-urban areas. I put to him the gist of a number of reports in this regard. I noted that I had seen reported, for instance, that LGBT people in Western Cape were most likely to be completely open about their sexuality (70% of people there, compared to 57% nationally). I had seen Cape Town described as the gay capital of Africa and a place that was home to a gay village, and it was reported that an annual gay pride parade had been held in Cape Town since 1993.

11. I raised with the applicant that the information seemed to suggest that there was a liberal legal environment and protections for gay people and the LGBT+ population. It seemed to suggest that there were still some problems, for instance with violence, but that might seem to be particularly in rural and poorer communities and non-urban areas. I raised with the applicant that, from what he had said, it seemed he did not have any problems as a gay man on his trips to South Africa in the past and was not fearful when he was there. I raised with the applicant, particularly if he were to go to one of those larger urban areas like Johannesburg or Cape Town in Western Cape, I might have some doubt that he would face a real chance of serious harm for reason of his sexuality or a real risk of significant harm. When this was raised with him, the applicant indicated that he did not think there was a real chance of serious harm or significant harm in South Africa. I also raised with the applicant information on the National Task Team on Gender and Sexual Orientation-Based Violence and the Rapid Response Team.

12. I have carefully considered the applicant’s claims and evidence. While I note that the applicant has claimed that his brother was shot in South Africa and described an incident in which burglars broke into the house, I do not accept that this incident occurred. When first asked whether his brother had had any problems in South Africa, the applicant replied that he had not. However, when asked whether there was anything else he wanted to tell me about why he did not want to go to South Africa or why he would be fearful going there, the applicant said one important detail that he failed to mention earlier was his brother was shot in South Africa. He went on to describe the claimed incident in which burglars broke into the house. When asked whether there was a reason he had not mentioned this, he said he did not think it would be necessary. He did not think it would be relevant at the time. Now the Tribunal was asking if there was any reason why he felt fearful, the reason was solely based on the experience that his brother and his brother’s family had. I do not find this explanation at all convincing. If the applicant’s brother had been shot during a burglary, this would have been a significant event and of clear relevance to whether his brother had had problems in South Africa. I do not accept the applicant’s explanation as to why he did not mention this incident when asked initially about whether his brother had had any problems in South Africa. I find the applicant’s subsequent claims and evidence about this to be lacking in credibility and do not accept that any such incident occurred.

13. I have accepted that the applicant is a gay man in that he is attracted to men. I accept that he identifies as a gay man and that his mannerisms might lead some people to identify him as gay. While I have some doubt about the extent of the applicant’s interest in engaging in a relationship, I am willing to accept that, as a gay man, he may wish to engage in a relationship with a man in the future. I have assessed his situation on this basis.

14. I have considered the applicant’s position in South Africa as a gay man and have considered independent country information. I note that, in a statutory declaration to the Department, the applicant made claims in relation to his sexuality. He said, for instance, that he had been to South Africa on a number of occasions but each time he had stayed for a short time. He stated that he was well aware of the situation in South Africa and knew about gay people who had been harmed in various ways. He referred to such incidents causing fear to the gay and lesbian community, and to dire consequences if his sexuality were to be known. I note also that the applicant’s representative made some submissions with regard to South Africa (although the submissions were largely focused on Zimbabwe) and have had regard to this. At interview with the Department, the applicant also referred to matters such as the hostility being worse in South Africa, gay killings, people being more aggressive, reactions being more adverse and people being harmed for being gay. However, in his oral evidence to the Tribunal, the applicant indicated that he had not been fearful going to South Africa and he had not had problems there in the past. When asked about whether his sexuality was an issue for him in South Africa, he indicated that he had not had a bad experience. After I raised with him information on the situation for gay people and LGBT+ people in South Africa, the applicant indicated that he did not think there was a real chance of serious harm or significant harm in South Africa. I find that, in spite of his evidence that he is identifiable as gay, he chose to travel to South Africa on numerous occasions in the past. Notwithstanding his claims to the Department, I find based on his evidence at the hearing that he was not fearful about travelling to South Africa and did not have any adverse experiences there related to his sexuality or for any other reason. While I accept that his visits to South Africa were relatively short and that he did not live there for an extended period, I nevertheless attach some weight to his past experiences in the country and his willingness to travel there.

15. As discussed with the applicant at the hearing, independent information indicates that South Africa has one of the world’s most liberal legal environments for LGBT+ people.  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 was legalised. Independent information indicates that the effect of these legal protections has been positive. For instance, as set out above, while it has reported that the overall transition has been slow, Stonewall has reported that South Africa’s strong legal protections for LGBT people have had, and continue to have, a hugely positive effect on society including in government. The independent information indicates that the South African government has put in place a range of strategies. I am conscious that, despite this very liberal legal framework, there are reports indicating that discrimination and violence nevertheless occur. There is some information indicating that transgender people and lesbian women are particularly vulnerable. I note, for instance, the information from the State Department to the effect that that black lesbians and trans persons, particularly in rural areas, are vulnerable to assault and to ‘corrective rape’. I note also the information from Arcus Foundation to the effect that conservative attitudes, and cultural, religious and traditional moral codes disproportionately affect young lesbian and transgender women and leave them particularly vulnerable to violence. The independent information indicates also that people in poorer and rural areas are particularly affected. For instance, I note the information from the South African Institute of Race Relations to the effect that it is especially those in rural and poorer communities who still regularly experience discrimination and hate-driven crimes.  The South African Human Rights Commission has also observed that violence on the basis of sexual orientation, gender identity and expression and discrimination tends to impact most severely on black, poor and rural LGBTIQ people.  The report from Arcus Foundation, cited above, indicates that peri-urban and rural areas are considered hotspots for hate crimes and human rights violations. It has been reported also that risks are particularly high for black LGBT people in rural areas.

1. I have carefully considered all of the relevant evidence. While I note that the applicant would be returning to a country that he has not lived in previously and would have to establish himself there without the presence of his immediate family, as noted above the applicant has multiple family members who have established themselves in Australia and the applicant acknowledged at the hearing that they would support him if he were to have to go to South Africa. In all the circumstances, I do not accept that he would have to live in a poor area or outside the large cities, and find that he would not do so. I note also that, as discussed above, he has ongoing connections in both Cape Town and Johannesburg, the places he has visited in the past, and maintains contact with friends in both places. I note that independent information indicates that, in spite of the liberal legal environment, discrimination and violence do occur in South Africa. However, it indicates that lesbian women and transgender people are particularly at risk, as are people outside the urban centres. As set out above, the evidence indicates that the applicant has visited both Cape Town and Johannesburg in the past, and that he has done so without being fearful or having any adverse experiences. In all the circumstances, I find that the applicant could return to either of those places without facing a real chance that he would suffer harm amounting to serious harm for reason of his sexuality. I do not accept that he would face a real chance of suffering violence as a gay man, or otherwise suffering serious harm for reason of his sexuality. In making these findings, I have had regard to the instances of serious harm enumerated in s 5J(5) of the Act, although I am conscious that this is not an exhaustive list.

2. I note that submissions were made to the Department about the position for gay people in Zimbabwe and reference was made to a number of reports. The statements from people such as [Ms A] and [Ms C] also addressed the risk to gay people in Zimbabwe. However, for reasons set out above I have found that the applicant is a South African citizen and have considered his claims with respect to South Africa as his country of nationality. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that he would be persecuted in South Africa for reason of his sexuality.

   Situation as a ‘Coloured Person’ in South Africa

3. The applicant has referred in his claims to being ‘coloured’. When I raised with the applicant at the hearing that he had made some claims to the Department about being coloured, he indicated that this meant being mixed race and that his parents were both mixed race. I accept that the applicant’s parents were both mixed race and that the applicant would be considered ‘coloured’ in South Africa. At the hearing, the applicant confirmed that he was not claiming that this was something that would cause him difficulty in South Africa. The applicant confirmed that his brother was mixed race as well, and that he was able to live and work in South Africa. I raised with the applicant the gist of information on the situation for coloured people in South Africa (as set out above under the hearing ‘Independent Country Information’). I put to him that, from what he was saying, he was not claiming that this was something that would cause him difficulty in South Africa. When asked whether there was anything else he wanted to say about that, the applicant responded in the negative.

4. As noted above, independent information indicates that ‘coloured’ people make up 8% of the South African population. A 2018 South African Institute for Race Relations survey found that 52% of coloured South Africans had not personally experienced any racism directed at them, below the overall average of 72% but higher than the proportion of whites who said they had never personally experienced racism that was directed at them. While the France24 report of April 2019 (referred to above) indicated that coloured people in South Africa might feel a sense of exclusion or marginalisation, it also stated, ‘If one goes by official figures, this picture of marginalisation is somewhat different.’ It noted that household income among the ‘Coloured’ community was twice as high as for the black majority, and that unemployment for the coloured community was lower than for the black labour force. While the independent information does suggest that some people report experiencing racism, it indicates that household income among the ‘coloured’ community is much higher than for the black majority. The applicant’s brother lived and worked in South Africa for a number of years in the past. I find that he was able to do so without suffering any problems there for reason of being a coloured person or any other reason. Looking to the reasonably foreseeable future, I find that there is no real chance that the applicant would suffer serious harm in South Africa for reason of being a coloured person or a coloured gay man.

   Crime in South Africa

5. The applicant has referred to crime in South Africa, including carjacking, robbery, theft and mugging. I accept that the crime rate is high in South Africa and that crimes of the types described by the applicant do occur. I note that, while the US Department of State Overseas Security Advisory Council indicates that violent crime remains an ever-present threat, it has observed also that most crimes are opportunistic in nature. Independent evidence indicates that crime affects all races and every sector of society. While I accept that there are high rates of crime, the independent evidence indicates that such crime is largely opportunistic in nature, and that crime affects all races and sectors of society. I find that the risk of such crime is not related to any of the reasons in s 5J(1)(a) and does not give rise to a real chance that the applicant would suffer serious harm for any of those reasons. For reasons set out above, I have not accepted that there is a real chance that the applicant would suffer serious harm in the form of violence for reason of being a gay man or for reason of his sexuality.

   Reports on Xenophobic Attacks in South Africa

6. I note that the Department was provided with a number of reports on xenophobic attacks or attacks on foreigners, particularly in 2015. These articles relate to reported attacks on foreign nationals, including people from other parts of Africa such as Congolese and South Sudanese. I accept that there were attacks on foreign nationals in South Africa around that time as described in those reports. At hearing, I discussed with the applicant that I might doubt the relevance of the reports to him as he was a South African citizen and had spent time in South Africa before. When asked whether there was anything he wanted to say about that, he said where that might come into play was because, when visiting South Africa with a vehicle with Zimbabwe rego plates, you immediately became a target as a foreigner. They did not take into consideration that you might carry a South African passport. They just looked at the foreign plates and saw you as not wanted in their country. I have had regard to the applicant’s submissions in this regard and to the reports submitted by the representative. While it may be that he drove a car with Zimbabwean number plates in the past, the applicant is no longer resident in Zimbabwe and I have found that he does not have a presently existing right to enter and reside in Zimbabwe. In any event, on his own evidence he visited South Africa on multiple occasions in the past and did not feel fearful or have any adverse experiences. He is a citizen of South Africa. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that he would be persecuted in South Africa for reason of being a foreigner or being perceived as a foreigner.

   Failed refugee applicant / claims with respect to Zimbabwe

7. As discussed with the applicant at the hearing, claims were made to the Department about matters such as the applicant’s pro-MDC, anti-ZANU-PF and pro-democracy views, and about not speaking Shona and being opposed to the regime in Zimbabwe. Claims were made to the effect that the applicant would be a failed refugee applicant and would be persecuted because he had spoken out against the Mugabe government and lived in a western country and had mixed race. In his statutory declaration to the Department, the applicant also referred to matters such as being pro-MDC, and opposed to Mugabe and ZANU-PF. Those claims appear to have been made with respect to Zimbabwe (although I have also considered the applicant’s position as a coloured person in South Africa). I discussed with the applicant at the hearing that I might have difficulty seeing that such things put him at risk in South Africa.

100.   While the claims about being a failed asylum seeker and having lived in a western country appear to have been directed at Zimbabwe in particular, I have nevertheless had regard to the fact that the applicant has made a protection application and that he has been in Australia and has a number of relatives here. As discussed with him, an application for a protection visa is confidential. Although he had been to Australia previously (in 2013), his evidence does not suggest that he had any adverse experiences in South Africa. When I put to the applicant that I was not sure why having been to a western country or being a failed asylum seeker would put him at risk in South Africa, the applicant said it was not South Africa he was afraid of being at risk, it was Zimbabwe. In all the circumstances, I do not accept that there is a real chance that he would be persecuted in South Africa for reasons connected with being a failed asylum seeker or having been in Australia (a western country).

101.   I raised with the applicant that it seemed his then representative had made claims and submissions in relation to Zimbabwe (as did the applicant in his statutory declaration to the Department), and it was not clear how those things would put him at risk in South Africa. The applicant said, ‘No, I don’t have claims against it for South Africa.’ The only reason he would not go back to South Africa was that he had never lived there; he did not really have experience or a desire to live in South Africa. He said even though he was a citizen of South Africa he had not lived there before and was not familiar with living in South Africa. He said he really had nowhere to go to. The applicant indicated at the hearing that he had not been involved in any political activity in Zimbabwe and I accept that this is the case. I have carefully considered all of the claims that have been made in relation to Zimbabwe, in particular in the applicant’s statutory declaration to the Department and his then representative’s submissions, and the evidence about these matters, including the reports on Zimbabwe that were submitted to the Department. It may be that the applicant has pro-MDC, anti-ZANU-PF and pro-democracy views and that he does not speak Shona or support the government in Zimbabwe. However, I do not accept that such matters in any way give rise to a real chance that he would be persecuted in South Africa for reason of political opinion or any other reason.

Lack of experience and connections in South Africa

102.   As noted above, the applicant has referred to not having experience in South Africa or a desire to live there, to not having lived there before, to not being familiar with South Africa and to having nowhere to go. He has also referred to South Africa being strange to him and having only ever visited there.  He said the thought of moving and living there did not seem real. He has given evidence to the effect that he has never really lived there, that he is not familiar with living there and that he did not feel comfortable living in South Africa. He had only ever lived in Zimbabwe. I discussed with the applicant at the hearing that I would need to consider whether there was a real chance of persecution for one of the relevant 5 reasons (which I spelt out to him).

103.   As discussed with the applicant at the hearing, he has given evidence that he has worked all his life, that he has trade qualifications and that he has been working in Australia. At the hearing, he indicated that he was working in a full-time position [doing a job task] in [work sector], and that he also did casual [work] in [related work sector]. As set out above, I have found that he would have support from his family in Australia if he were to return to South Africa and that he has connections in Cape Town and Johannesburg in particular. I accept that the applicant would face challenges in establishing himself in South Africa, in particular because he has not lived there previously, does not have existing accommodation and employment, and has limited experience and connections there. However, I do not accept that these matters relate to any of the reasons in s 5J(1)(a) or give rise to a real chance that he would be persecuted for any of those reasons.

Cumulative Consideration

104.   I have carefully considered all of the applicant’s claims and evidence, both individually and cumulatively. I have had regard to the fact that he is a gay man and a coloured person (or a person of mixed race). I do not accept that there is a real chance he would be persecuted for reason of being a gay man, a coloured person or a coloured gay man. I have had regard to the high general crime rate in South Africa, as discussed above. I have had regard to reports on past xenophobic violence there, although I do not accept that there is a real chance that he would be persecuted in South Africa for reason of being a foreigner or being perceived as a foreigner. I have had regard to the fact that the applicant would be returning to South Africa as a failed asylum seeker and after having been in a western country. I have had regard to matters related to the fact that the applicant has not lived in South Africa previously, that he does not have existing accommodation and employment there, and that he has limited experience and connections there.

105.   However, even considering all of his circumstances cumulatively, I am not satisfied looking to the reasonably foreseeable future that there is a real chance that he would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that he is a refugee as defined in s 5H(1).

106.   For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary Protection Criterion

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). For reasons outlined above, I have concluded that South Africa is the relevant ‘receiving country’.

108.   As noted above, I have accepted that the applicant is a gay man in that he is attracted to men. I accept that he identifies as a gay man and that his mannerisms might lead some people to identify him as gay. While I have some doubt about the extent of the applicant’s interest in engaging in a relationship, I am willing to accept that, as a gay man, he may wish to engage in a relationship with a man in the future and have taken account of this in making my findings. I have noted that independent information indicates that, in spite of the liberal legal environment, discrimination and violence towards LGBT people do occur in South Africa. However, the independent information indicates that lesbian women and transgender people are particularly at risk, as are people outside the urban centres. As set out above, the evidence indicates that the applicant has visited both Cape Town and Johannesburg in the past, and that he has done so without being fearful or having any adverse experiences. In all the circumstances, I find that the applicant could return to either of those places without this giving rise to substantial grounds for believing that there is a real risk that he will suffer significant harm for reasons connected to his sexuality. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Africa, there is a real risk that he will suffer violence in connection with his sexuality, or otherwise suffer significant harm for reason of being a gay man.

109.   I have had regard to the applicant’s position as a ‘coloured’ person in South Africa and have considered independent country information as discussed above. While the independent information does suggest that some people report experiencing racism, it indicates that household income among the ‘coloured’ community is much higher than for the black majority. The applicant’s brother lived and worked in South Africa for a number of years in the past. I find that he was able to do so without suffering any problems there for reason of being a coloured person or any other reason. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm for reason of being a coloured person or a coloured gay man.

110.   I accept that the general crime rate is high in South Africa. As noted above, the applicant has referred to crime in South Africa such as carjacking, robbery, theft and mugging, and I accept that such crimes occur. Having regard to the independent information pointing to a high crime rate and indicating that most crimes are opportunistic in nature, I accept that there is a risk of random and opportunistic crime in South Africa. However, independent information indicates that crime affects all races and every sector of society. I have had regard to the high general crime rate. However, I find that any risk of harm in this regard is one faced by the population of the country generally and not by the applicant personally. Pursuant to s 36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm in this regard. As discussed above, I have considered the applicant’s sexuality but do not accept that there are substantial grounds for believing that there is a real risk that he will suffer significant harm in connection with his sexuality.

111.   I accept that there were attacks on foreign nationals in South Africa in around 2015 as described in the reports that were submitted to the Department. I have had regard to the applicant’s submissions to the effect that, when visiting South Africa with a vehicle with Zimbabwe rego plates, you immediately became a target as a foreigner. While it may be that he drove a car with Zimbabwean number plates in the past, he is no longer resident in Zimbabwe and I have found that he does not have a presently existing right to enter and reside in Zimbabwe. In any event, on his own evidence he visited South Africa on multiple occasions in the past and did not feel fearful or have any adverse experiences. He is a citizen of South Africa. I am not satisfied that there are substantial grounds for believing that there is a real risk that he will suffer significant harm for being a foreigner or being perceived as a foreigner.

112.   I have had regard to the fact that the applicant has made a protection application and has been in Australia. As discussed above, an application for a protection visa is confidential. Although he had been to Australia previously, his evidence does not suggest that he had any adverse experiences in South Africa. When I put to the applicant that I was not sure why having been to a western country or being a failed asylum seeker would put him at risk in South Africa, the applicant said it was not South Africa he was afraid of being at risk, it was Zimbabwe. In all the circumstances, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Africa, there is a real risk that he will suffer significant harm in connection with being a failed asylum seeker or having been in Australia (a western country). Even if he has pro-MDC, anti-ZANU-PF and pro-democracy views and does not speak Shona, I do not accept that these matters in any way give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Africa, there is a real risk that he will suffer significant harm.

113.   I have had regard to the applicant’s claims in relation to matters associated with lack of experience and having limited connections in South Africa.   As discussed above, he has given evidence that he has worked all his life, that he has trade qualifications and that he has been working in Australia. As set out above, I have found that he would have support from his family in Australia if he were to return to South Africa and that he has connections in Cape Town and Johannesburg in particular. I accept that the applicant would face challenges in establishing himself in South Africa, in particular because he has not lived there previously, does not have existing accommodation and employment, and has limited experience and connections there. However, I do not accept that these matters constitute significant harm or give rise to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. I do not accept that they involve the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment or torture. Nor do I accept that they involve an act or omission that is intended to cause extreme humiliation such as to constitute degrading treatment or punishment. The evidence in this regard does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life.

114.   I have carefully considered all of the applicant’s claims and evidence, both individually and cumulatively. I have had regard to the fact that he is a gay man and a coloured person (or a person of mixed race). I am not satisfied that there are substantial grounds for believing that there is a real risk that he will suffer significant harm in connection with being a gay man, a coloured person or a coloured gay man. I have had regard to the high general crime rate. I have had regard to reports on past xenophobic violence, although I have not accepted that there are substantial grounds for believing that there is a real risk that he will suffer significant harm for being a foreigner or being perceived as a foreigner. I have had regard to the fact that the applicant would be returning to South Africa as a failed asylum seeker and after having been in a western country. I have had regard to matters related to the fact that the applicant has not lived in South Africa previously, that he does not have existing accommodation and employment there, and has limited experience and connections there.

115.   However, even considering all of the applicant’s circumstances cumulatively, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Africa, there is a real risk that he will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

116.   In making my findings, I am conscious that the applicant referred at the hearing to his achievements in Australia. He said also that he hoped the decision would be based on the fact that Australia over the past 8 years had become home and that, ideally, he would prefer to reside here with his family. The applicant said he was hoping and praying the decision would be favourable. He referred to having been in Australia for the past 8 years. He said it had become home. He said apart from the fact he wanted to stay with his family or his family wanted him to be here with them, he knew no other home. He did not know what would happen if he was taken away from this country.

117.   I accept that the applicant has family in Australia, that he has been here for 8 years and that he regards Australia as his home. I have had regard to the certificates showing the qualifications he has gained and to the letter from his employer. I accept that he has been successful in employment in Australia and is a highly regarded employee. Nevertheless, for reasons set out above, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

1. 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

119.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Don Smyth
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.

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36     Protection visas – criteria provided for by this Act

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(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.

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