2002883 (Refugee) - [2024] ARTA 620

2002883 (REFUGEE) [2024] ARTA 620 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2002883
Tribunal:General Member S Memmott
Date:1 November 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 01 November 2024 at 2:06pm

CATCHWORDS
REFUGEE – Protection Visa – South Africa – race – white – religion –– membership of a particular social group – a disabled person – violent crime – a risk faced by the population generally and not by the applicant personally – inability to live on his own in South Africa –– not satisfied that the applicant has a well-founded fear of persecution – strong compassionate circumstances – referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of South Africa, applied for the visa on 10 March 2017. The delegate refused this application on 7 February 2020.
The applicant lodged an application for review of this refusal decision with the former Administrative Appeals Tribunal (the AAT) on 14 February 2020. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
The Tribunal notes that, in accordance with the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
Further, the Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.
This statement of reasons and decision has been prepared by the Tribunal.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The protection visa application form includes, among other things, the following personal information about the applicant:
·The applicant was born on [date], in [a country].
·His citizenship at birth and at the time of lodgement was South African, and he does not hold citizenship of any other country.
·It states he is entitled to a regular income of R5000 by way of trust income (noted to be ‘Grandfather’s trust’).
·He reads, writes and speaks Afrikaans. His ethnic group is listed as ‘white’.
·He was unemployed at the time of making the visa application and indicates he had never been employed, due to his disability. No educational history is listed.
·His relationship status is ‘separated’ with the relationship beginning on 1 December 2015 and ending on 13 November 2016.
·He lists his family members as his father, mother and sister, all living in Australia.
·He last arrived in Australia on [date] November 2016 as the holder of a visitor visa.
·He had been granted visitor visas for Australia on two previous occasions.
The protection visa application sets out (in summary) the following claims for protection:
·The applicant fears for his life and fears attack as a disabled person. He is vulnerable, alone and a soft target. He cannot protect himself because of his disability.
·Many disabled people are brutally attacked in South Africa, and there are cases of police attacking disabled people – so he cannot rely on the South African police to protect him either.
·The applicant fears he will be brutally attacked and killed, though he indicates he has not experienced harm in the past.
·The applicant previously moved into a granny flat but felt very unsafe and vulnerable. He cannot keep moving as he feels unsafe anywhere.
·The applicant states that there is a general disregard for life in South Africa and that disabled people are more at risk as they cannot protect themselves.
·The police cannot and will not protect him. The authorities are corrupt and the police have been part of attacking people with disabilities.
Supporting documentation
The file held by the Department of Home Affairs (the Department) contains a copy of the applicant’s passport, issued by the Republic of South Africa in [2010]. It lists the applicant’s nationality as South African. The Department’s file also contains a copy of the applicant’s birth certificate, issued by the Republic of South African Department of Home Affairs.
The Department’s file also contains several medical documents, as follows:
·A short report written by Dr [A] dated 1 August 2009. It lists a practice address which appears to be in South Africa and notes the applicant is a private patient. It states that the applicant has been known to Dr [A]’s practice since 1991, and that since his last [treatment] in 1989 his condition has remained stable. It states no treatment has been regarded as necessary since then and that he is able to eat, dress and bath by himself.
·A medical examination report completed by [a named doctor] on 22 May 2009. It lists the applicant’s address as being in [address] at that time. It records the results of a number of physical examinations, most being normal. It notes that the applicant has [a condition], that a [device] was inserted and the applicant has been doing well since. It records that the applicant has [problems] with coordination, though he achieves reasonable walking accuracy.
·A medical opinion authored by [a named doctor], occupational physician and independent medical examiner in Sydney, on 13 July 2009. It states her opinion has been requested for migration purposes. It appears the report is based on medical reports provided to her and a medical history given by the applicant’s family. It concludes the applicant has high level functioning and is able to live independently, and that his condition currently requires minimal medical care.
The applicant’s protection visa application was accompanied by written submissions made by his representative, registered migration agent Johanna J Barnard. They submit (in essence) that the applicant is a refugee and will be persecuted because of his race and his membership of a particular social group, being disabled persons. The submissions then set out and/or cite a range of country information concerning the vulnerability of disabled persons and what is described as ‘white genocide’ in South Africa.
However, the Tribunal notes that the sources of and relevance of several pieces of country information set out in these submissions is unclear. Further, much of the extracted information seems to have been edited, perhaps by a software program. For example, there is information about the rape of women where the applicant’s name (who is a male) seems to have been inserted as the name of the victims. Another article about corruption seems to quote the applicant as the shadow minister of police in South Africa, which does not appear to be a position he has ever held. These issues were raised with Ms Barnard at hearing, however she declined the opportunity offered by the Tribunal to re-submit or clarify the information provided. Accordingly, other than articles the Tribunal was able to access by using weblinks provided or which were actually provided in full copies (see list below), the Tribunal has placed very little weight on the country information cited, purportedly summarised or extracted in these submissions.
Two articles cited were accessible to the Tribunal via links provided in the document. One is an article published by The Conversation website on 15 September 2016, and considered further below. The other is an opinion piece, published by a website called My News 24 on 4 August 2016, by an author noted as ‘International Supporters for Oscar Pistorius’. The Tribunal has considered this document and notes it makes assertions about a range of matters concerning people with a disability, including about their experience of violence. However, the basis for these assertions and sources are not identified, such that the reliability and veracity of the information in this document cannot be assessed. The Tribunal has given this document very little weight.
The Department’s file also contains copies of several media articles, as follows:
·A media article published by IOL (a South African news website) on 9 June 2009 concerning the physical attack of a disabled woman and her elderly mother on their farm in Rosendal, Free State. It notes the details of the attack and that five guns and cell phones were stolen. It also notes that the police caught 7 suspected robbers.
·A media article published by the Newcastle Advertiser (in South Africa) on 23 January 2017 about the beating of a wheelchair bound man in Fernwood.
·A short article (which appears to describe a video) published by Times online concerning a protest at the Tshwane University of Technology which was fired on by police. It states a disabled student was shot a point-blank range and kicked by a group of policemen during the fracas. The Tribunal attempted to access the weblink which appeared at the top of this document, but it was not accessible (1 October 2024). This was raised with the applicant, his family and representative at hearing.
·A piece published on a blog entitled ‘Disabled Afrikaner Janetta Lorraine van der Walt 60 – dragged from her home, raped, strangled to death’. Most of the document is in Afrikaans, but the portion in English refers to the rape and murder of a woman at her home in Margate, KwaZulu-Natal province in August 2013.
·A piece published by the same blog entitled ‘Disabled Afrikaner Louis van Wyk 77, bludgeoned to death in cruel attack on municipal house’ dated 29 July 2013. It refers to the murder of a couple in their home, one of who was disabled and used a wheelchair.
Departmental interview
The applicant was interviewed by an officer of the Department on 5 December 2019. The interview was conducted with the assistance of an Afrikaans interpreter and the applicant’s sister and father were present at the interview in a support capacity. The Tribunal has listened to an audio recording of this interview and considered its content in full. The Tribunal notes the following evidence given during this interview:
·The departmental officer observed that the applicant attended the interview in a wheelchair. The applicant advised, when asked about this, that his condition had declined following an injury to his neck sustained in 2014. He said that he can no longer live independently, and he has become a lot slower. He frequently falls and struggles to get up.
·The applicant has never worked and never lived on his own, rather he has always lived with family. They lived in Pretoria for a year prior to travelling to Australia in 2016, and before that they lived in [a town].
·The applicant has a few uncles and aunts living in South Africa, but all his close family is now living in Australia.
·The applicant fears return to South Africa because it is not safe there and he would have no place to live. He has never personally experienced a crime but his uncle and aunt have, and he has heard about a lot of them. He is more vulnerable because he is disabled and can’t defend himself.
·He fears he will be attacked, murdered or raped on return. People there don’t like other people, they want to hurt people. The black people say that the white people took their things and now they are trying to make a war over that.
·He fears every black person in South Africa. Everyone there would harm if they could. He would be targeted because he is a soft target.
·The police there won’t help because they don’t care. His brother died in motorcycle accident and the guy who did it went free because the police just don’t care. The government in South Africa doesn’t provide assistance for people with disabilities.
·The applicant’s sister and father gave evidence that the only option would be to seek a placement in an aged care facility for the applicant, and that this would be difficult to obtain. The applicant would have to be placed on a waiting list, and the disability allowance paid by the South African government would be insufficient to cover the costs (at only $150 per month). It would not be possible for him to live with relatives.
·They are also concerned for the applicant because of the poor quality of care in such facilities. He would be at risk because he won’t be able to complain to anyone and there will be no one there to oversee his care.
Delegate’s decision
A delegate of the Minister for Home Affairs refused the visa application on 7 February 2020. The delegate’s decision record cites a range of country information concerning rates of violent crime in South Africa. The delegate was not satisfied that the applicant would be persecuted for harm for reasons of his race or disability. The delegate considered that the risk of violence he faces is a risk faced by the population generally and not by him personally, and that there would be no intentional denial of support services to the applicant.
Claims and evidence before the Tribunal
Application for review
The applicant applied for review of the refusal decision by the Tribunal on 14 February 2020. He provided a copy of the delegate’s decision record and accompanying notification letter with that application.
The hearing
The Tribunal invited the applicant to a hearing in person at the Sydney Registry, originally scheduled for 11 October 2024, by invitation dispatched on 14 August 2024. This was sent to the applicant’s representative, in accordance with the appointment made by the applicant when he lodged his application for review. The Tribunal did not receive a response to this invitation.
It became necessary for the hearing to be rescheduled to 8 October 2024. Accordingly, the Tribunal sent a further hearing invitation (for an in person hearing at the Sydney registry) to the applicant’s representative by email on 20 August 2024. The Tribunal did not receive a response to this hearing invitation. Accordingly, on 18 September 2024 a Tribunal case officer attempted to call the applicant’s representative, Ms Barnard. However, according to a file note made by the Tribunal officer, the phone call was not answered and instead an automated message was played which stated that Ms Barnard’s office was not taking any incoming calls due to a heavy caseload.
The Tribunal sent a further copy of the hearing invitation to Ms Barnard on 18 September 2024 and asked that she provide a response to that invitation as soon as possible. On that date, the Tribunal also sent a courtesy copy of the hearing invitation to the applicant’s notified email address. The applicant’s sister replied promptly on his behalf that same day, advising that he would attend the hearing as scheduled.
At 6.33pm (AEDT) on 7 October 2024, being the evening prior to the scheduled hearing, the Tribunal received an email from the applicant’s representative Ms Barnard stating that she had not received confirmation of the hearing nor a link to a telephonic hearing. The following morning a video link was prepared by the Tribunal and emailed to Ms Barnard.
The applicant, his sister (Mrs [B]) and his mother (Mrs [C]) appeared before the Tribunal together via video, and Ms Barnard separately appeared via video link. The Tribunal noted that the appearance by video was unexpected, but the applicant and his sister and mother confirmed they were comfortable to proceed by video, and noted that they lived in Queensland.
At the outset of the hearing the applicant indicated he was well enough to proceed with the hearing and did not require an interpreter. However, the applicant, his mother and sister all told the Tribunal that he now has cognitive limitations, in addition to a physical disability. His sister [Mrs B] advised that she was attending not only as a witness, but as a support person. Similarly, his mother advised that she was the applicant’s main caretaker and was attending the hearing in that capacity, as well as as a witness.
The applicant’s representative submitted that the Tribunal should have regard to updated medical reports and information. However, [Mrs B] and Mrs [C] advised that there were no such updated reports or information. They have been advised that there is no treatment available for the applicant, other than physiotherapy exercises which they assist the applicant with, and that they were advised following the applicant’s injury in 2014 that he would never walk again.
Nevertheless, it was plainly evident to the Tribunal that the applicant’s cognitive functioning was impaired (in addition to his physical functioning). He was slow to respond to questions and replied to the Tribunal’s questions in very simple terms.
Accordingly, the Tribunal considered it was appropriate to proceed with the hearing in a flexible way, speaking to the applicant, his mother and sister together, and taking evidence from all three, including on behalf of the applicant (in the case of his mother and sister). This approach was discussed with all parties and the applicant’s representative, who agreed to this approach.
In the circumstances, the Tribunal considers the hearing was a meaningful one, in that the applicant was assisted in putting his case and giving evidence by [Mrs B] and Mrs [C]. The Tribunal discussed the issues arising in the matter with the applicant, his mother and sister and gave each of them the chance to respond to concerns raised by the Tribunal. Moreover, his representative was given the opportunity to make submissions on his behalf. Those present indicated that they did not need additional time after the hearing to provide any further evidence or submissions. The Tribunal is satisfied that the applicant was given a reasonable opportunity to present his case, make submissions and adduce evidence.
The evidence given by the applicant, [Mrs B] and Mrs [C] at hearing made clear that the main concern the applicant holds, and that is held by his family, is about the applicant’s inability to live own his own in South Africa and care for himself, because of his disability.
His representative submitted that his application should be referred to the Minister for Home Affairs for consideration of their discretion to substitute a more favourable decision than the Tribunal under s 351 of the Act (as now in force).
No additional documents were filed at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. No country information assessment has been prepared in respect of South Africa.
Receiving Country
The applicant claims to be a citizen of South Africa and no other country. As noted above, the Departmental file contains a copy of the applicant’s passport, issued by the Republic of South Africa in [2010]. It lists the applicant’s nationality as South African. The Department’s file also contains a copy of the applicant’s birth certificate, issued by the Republic of South Africa’s Department of Home Affairs.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of South Africa and finds that South Africa is the receiving country for the purpose of assessing his claim.
Does the applicant satisfy the refugee criterion for protection?
Risk of harm due to living alone
The Tribunal accepts that the applicant has had the condition [since] birth and suffered a neck injury in 2014, and that as a result he has significant physical impairment and a degree of cognitive impairment. The Tribunal accepts the applicant’s evidence that he needs assistance with most day to day tasks such as dressing, cooking, eating and bathing, and that he requires a wheelchair to move around. The Tribunal accepts the applicant’s evidence that he struggles now to read and write.
The Tribunal accepts the evidence given by [Mrs B] that the applicant now has very limited hand movements, struggles to eat and has falls most days and needs assistance to get up. The Tribunal accepts her evidence that he is slower to react than when he was younger.
The Tribunal accepts Mrs [C]’s evidence that she has to cut up the applicant’s food, help him in and out of bed and provide a range of nursing type assistance. She is of the firm view that his cognitive and intellectual capacity has declined. She noted that the applicant used to be quite a talkative person and clever with maths, but that the with age his capacity is declined. Mrs [C] gave evidence that the applicant hasn’t had medical care since his accident in 2014 and as far as she is aware this cognitive decline is related to his [condition].
The Tribunal accepts that in Australia the assistance the applicant needs with most of the tasks of daily living are currently provided by his family members, with whom he lives. The Tribunal accepts that [Mrs B] owns the home where the applicant lives and provides for all his financial needs. The Tribunal accepts that Mrs [C] is his primary care giver.
The Tribunal accepts the evidence given that living with family members still resident in South Africa is not possible for the applicant. [Mrs B] and Mrs [C] noted that they have little to do with remaining family on the applicant’s father side, and Mrs [C] gave evidence that while she has a sister in South Africa she and her husband are unwell and would not be in a position to provide care to the applicant.
However, [Mrs B]’s evidence was that the applicant could access housing and care through the public health care system in South Africa. She advised the Tribunal that the applicant still receives $140 per month from a trust and would be entitled to welfare payments in South Africa, but that this would be insufficient for private care and those funds would be paid to the public provider. Mrs [C] also gave evidence that funding care through the private system would not be possible for the family. Further, it was Mrs [C]’s evidence that if necessary she and her husband would return to South Africa to care for the applicant. She expressed concern about poor care in residential care facilities and stated that she could never send him back on his own.
The Tribunal notes Mrs [C]’s evidence that she and her husband have given up their South African citizenship and are now Australian citizens. Accordingly, there may be some practical barriers and/or delays with them returning to South Africa to care for the applicant.
However, having regard to the evidence given at hearing, the Tribunal does not accept that the applicant would be living alone in South Africa or that he would have no where to live. The Tribunal considers that his parents would either return to live with him (if possible) and continue caring for him, or organise for care to be provided for him in a residential care setting, in the public system if unable to finance care privately.
Accordingly, the Tribunal does not accept the applicant faces a real chance of harm in the form of having no where to live or no one to care for him on return to South Africa. The Tribunal is not satisfied the applicant has a well-founded fear of persecution on this basis.
Country information before the Tribunal indicates that while there is a private, for profit health care sector in South Africa, most South Africans rely on the public health care system.[1] Further, it indicates that there are many limitations and problems within the public health care system, including lack of staffing and inadequate infrastructure.[2] Accordingly, the Tribunal accepts that the level of care the applicant would receive in a public health facility (if that is where he lives) would not be the same as the care provide by his family, and may be of a poor quality.
[1] Mayosi, B M & Benatar, S R 2014, ‘Health and Care in South Africa – 20 Years after Mandela’, The New England Journal of Medicine, 371, 14 (pp.1345-1346).
[2] Mayosi, B M & Benatar, S R 2014, ‘Health and Care in South Africa – 20 Years after Mandela’, The New England Journal of Medicine, 371, 14 (pp.1345-1346); South African health care system analysis’, University of Minnesota, 30 November 2018 (p.6); Bloomberg, ‘Universal Health Care, the South African Way’, 22 January 2020.
The Tribunal notes the summary of country information provided by the applicant’s representative in March 2017. As outlined above, the Tribunal has given this summary little weight as the content appears to have been edited. Two articles cited were accessible to the Tribunal via links provided in the document. One, an article published by The Conversation on 15 September 2017 entitled ‘The triple vulnerability of being poor and disabled in rural South Africa’ concerns a study about people with disabilities living in Madwaleni in the Eastern Cape province, and the barriers those people have in accessing health care. The article indicates that some study participants reported receiving less respect from health providers than able bodied peers, being afforded less privacy and providers not spending time explaining things to them. The Tribunal has carefully considered this article, but notes it concerns one study which focused on one particular rural area, and that it does not relate to residential care facilities.
The Tribunal is not satisfied on the evidence before it that any poor quality care the applicant receives in a publicly funded residential care facility would amount to systematic and discriminatory treatment, directed towards the applicant for one of the reasons specified in s 5J(1)(a) of the Act. Rather, the Tribunal considers it would be the result of a lack of staffing, inadequate infrastructure and other similar resourcing issues. Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution on this basis.
Risk of harm due to violent crime
It was clear at hearing that the main concern of the applicant and of [Mrs B] and Mrs [C] is the applicant’s inability to live alone in South Africa and ensuring his care requirements are met. None of them mentioned the risk of violent crime until specifically raised by the Tribunal, and [Mrs B] gave evidence to the effect that it was not their real concern.
When asked about the decision to apply for a protection visa in 2016, after several previous visits to Australia, the applicant indicated he took this step because his parents migrated here – he did not refer to a fear of harm or a fear of violent crime. [Mrs B] gave similar evidence, noting her brother felt overwhelmed at the idea of returning alone after their parents decided to move to Australia. Mrs [C] gave evidence that the protection visa application was just about the family being together.
Nevertheless, when asked by the Tribunal, the applicant stated he was concerned about violent crime such as burglaries and rape on return to South Africa and that this could happen to him because he is a soft target. Accordingly, the Tribunal has considered this claim.
As discussed with the applicant, [Mrs B] and Mrs [C] at hearing, the Tribunal accepts that South Africa has a very high rate of violent crimes, that violent crime is pervasive and that it affects every sector of society.[3]
[3] ‘South Africa: murders surge by more than 7% in one year’, The Guardian, 12 September 2018; ‘Ramaphosa’s ‘killings of white farmers’ comment: What the president meant’, News24, 27 September 2018.
Statistics released by the South African Police Service in their 2022/2023 Annual Crime Report indicated that over 1.8 million counts of serious and violent crime were reported in the 2023/2024 financial year, in a population of around 60 million.[4] This represented a increase of 7.7% from the previous year and with increases across all four of the broad crime categories (contact crime, contact-related crime, property related crime, other serious crime).[5] These statistics record the following number of reported incidents (among others) in the 2022/2023 financial year:
[4] CIA World Factbook South Africa, as updated 18 September 2024.
[5] ‘Annual Crime Report 2022/2023’, South African Police Service.
·Murder – 27 494
·Attempted murder – 25 131
·Assault with the intent to inflict grievous bodily harm – 169 374
·Common assault – 185 374
·Common robbery – 47 057
·Robbery with aggravating circumstances – 146 125
·Carjacking – 22 702
·Robbery at residential premises – 23 065
·Robbery at non-residential premises – 20 054
·Robbery of victims followed to or from banks – 310
·Petrol station robberies – 693
·Rape – 42 780
·Sexual assault – 7 483
·Kidnapping – 15 342
·Arson & malicious damage to property – 118 744
·Burglary at residential premises – 163 493
·Theft of motor vehicle & motor cycle – 37 461
·Theft out of and from motor vehicles – 87 173
·Other theft – 275 452
These very high rates of crime do suggest it is possible may be the victim of violent crime on return to South Africa. The Tribunal also accepts, based on the blogs and media articles held on the Departmental file (see paragraph ‎13) that people with disabilities or using a wheelchair and white people have been the victims of crime in South Africa.
However, the country information before the Tribunal does not indicate that race or ethnicity is a motivating factor for violent crime in South Africa or that the applicant would be particularly at risk as a white person. Rather, information before the Tribunal indicates that crime is experienced by all races in South Africa, throughout all parts of society, and that there are very few areas in South Africa that are safe for any person of any race.[6] The information before the Tribunal also does not indicate that disability is a motivating factor for violent crime. It indicates that there are complex societal reasons for the high rates of crime, rather than the personal characteristics of victims, such as disability and race, being motivating factors.
[6] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018; ‘The white minority took our land. Enough is enough’, ABC News, 19 September 2018.
A 2021 analysis by the Institute for Security Studies in South Africa noted that increases in rates of crime and violence are 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. It also notes that a main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks.[7]
[7] ‘South Africa’s security sector is in crisis – reform must start now’, Institute for Security Studies, 21 July 2021.
South African Police Service statistics for the year 2019-2020 which list causative factors for many different kinds of violent crime (where this was known) do not indicate that race is a prevalent or common motive for any of the crimes analysed, including common assault, assault causing grievous bodily harm, kidnapping, attempted murder and murder. Rather, they indicate race or ethnicity is a very uncommon motive.[8]
[8] ‘Crime Statistics: Crime Situation in the Republic of South Africa, 12 Months April to March 2019-20’, South African Police Service (>
Statistics on the race of victims of crime were not published by the South African Police Service in their most recent annual report. However, to the extent race is a factor in violent crime, information before the Tribunal suggests that it would be black people, and black women in particular, who would be more likely to be victims of crime.[9]
[9] ‘In South Africa, violence against women is reduced to a social media spectacle without solution’, Quartz, 8 March 2019; ‘‘Race, class and violent crime in South Africa: Dispelling the “Huntley thesis” ‘, SA Crime Quarterly No.30, December 2009 (p.40); Killing of White Farmer Becomes a Flash Point in South Africa’, The New York Times, 16 October 2020; ‘South Africa criticizes Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018.
There are suggestions by some advocacy groups that white farmers are racially targeted for burglaries, home invasions and killings, but many observers attribute such incidents to the country’s generally high and growing crime rate. Police statistics from 2018/2019 indicated that farm killings represented only 0.2 percent of all killings in the country.[10] According to the Institute for Security Studies, ‘farm attacks and farm murders have increased in recent years in line with the general upward trend in the country’s serious and violent crimes.’[11]
[10] ‘2019 Human Rights Report – South Africa’, United States Department of State, 11 March 2020.
[11] As cited in ‘2022 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
An ABC Foreign Correspondent report quotes a senior member of the African National Congress, Ronal Lamola, as saying crime is happening to all races in South Africa and everyone in society. It also includes quotes from Gareth Newman, head of Justice and Violence Prevention at the “internationally respected” Institute for Security Studies in Pretoria. He states that South Africa has a real problem with violence, and that there was a 40% increase in all kinds of armed attacks since 2012. He states that there is evidence that attacks on white farmers are largely driven by criminal intent and greed.[12]
[12] ‘The white minority took our land. Enough is enough’, ABC News, 19 September 2018.
In another article, Mr Newman is quoted as saying young black males living in poor urban areas like Khayelitsha and Lange face a far greater risk of being murdered than white farmers and that there is a general trend of crime rates increasing.[13]
[13] ‘South Africa criticizes Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018.
Country information indicates that white South Africans are heard more on crime-related issues, as they have more access to the media. It indicates that black South Africans are most affected by crime, experience more violence and make up the vast majority of victims of violence, and that white people experience less crime than other racial groups in South Africa.[14] However, the Tribunal also notes a 2016 community survey which indicated white households experience higher rates of house breaking, home robbery, robbery and thefts of motor vehicles.[15]
[14] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018; ‘Killing of White Farmer Becomes a Flash Point in South Africa’, The New York Times, 16 October 2020; ‘South Africa criticizes Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018.
[15] Statistics South Africa Community Survey 2016, as cited in ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
The United States Department of State, in a country security report, states that:
Violent crime remains an ever-present threat in South Africa and impacts people where they live, work, shop and while in-transit. While crime decreased during 2020 and 2021 due to strict coronavirus-related lockdowns and curfews, the first half of 2022 showed a marked increase, particularly in violent crime. Criminals do not necessarily single out US citizens for criminal activity because they are Americans, but rather for their perceived relative wealth as most crimes are opportunistic in nature.[16]
[16] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 19 April 2024).

None of the country information sources consulted by the Tribunal referred to persons with a disability being targeted for violent crime for reasons of their disability.
Having regard to the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to violent crime (including rape, murder and/or burglary) for the essential and significant reason of his white ethnicity / race, for the essential and significant reason of his membership of the particular social group ‘disabled persons’ (or any similar formulation of this group), or for a combination of these characteristics. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on this basis.
Risk of harm from police
The Tribunal has also considered the applicant’s claims that police don’t help disabled people and that police would be involved in attacks against him.
The United States Department of State, in a country security report, states that the South African Police Service (SAPS) has made a strong effort to decrease its response times in recent years, but large caseload backlogs, largely paper drive processes and inefficient case management hampers the effectiveness of the justice system.[17]
[17] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 19 April 2024).
A recent media release issued by the Shadow Minister for Police refers to the SAPS detective service being woefully understaffed and its total personnel complement being smaller today than it was in 2019.[18]
[18] ‘#Crimestats: Ramaphosa and Cele are the enemies of safety as violent crime rises again’, Democratic Alliance Shadow Minister of Police, Andrew Whitfield MP 16 February 2024.
Other information before the Tribunal indicates that police stations and appropriate infrastructure to address the high crime rate are not always available, but that the state provides all South Africans who are victims of crime the same services, irrespective of race.[19]
[19] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
Information before the Tribunal indicates that South Africa suffers from widespread corruption and that anti-corruption laws are inadequately enforced.[20]
[20] ‘South Africa Corruption Report’, GAN Integrity, May 2018.
Having regard to the evidence before it, the Tribunal accepts that the applicant may receive poor service or inadequate responses and protection from SAPS. However, the Tribunal considers that this would be because of poor resourcing and/or corruption, and not because the applicant has a disability. The Tribunal is not satisfied that there is a real chance the applicant would be denied police services or given poor services by SAPS for the essential and significant reason of his membership of the particular social group ‘disabled persons’ (or any similar formulation of this group). Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on this basis.
Country information before the Tribunal does indicate police impunity is a significant problem within SAPS, and that police engage in excessive use of force and other violence.[21] However, the examples and instances cited in this country information related to shoot outs with alleged criminal syndicates, deaths in custody, abuse during arrest, questioning and detention, harassment and attacks on whistleblowers, excess use of force in the context of protests, and an incident when members of the police’s VIP protection unit were filmed attacking civilians on the N1 highway.[22] One example concerning a person with an intellectual disability was cited, being the alleged shooting of a 16 year old with Down syndrome by police in 2020.[23]
[21] ‘2023 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
[22] ‘2023 Country Reports on Human Rights Practices – South Africa’, United States Department of State; ‘2022 Country Reports on Human Rights Practices – South Africa’, United States Department of State; ‘2019 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
[23] ‘2022 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
The Tribunal notes the short article submitted to the Department (which appears to describe a video) published by Times online concerning a protest at the Tshwane University of Technology which was fired on by police. It states a disabled student was shot a point-blank range and kicked by a group of policemen during the fracas. As raised with the applicant and his representative at hearing, the video itself was not able to be accessed by the Tribunal.
The Tribunal has considered this article, but notes it states that police opened fire on hundreds of protesters during that incident. The motivation of the police in attacking the disabled person is not stated in the article and, further, it reports on a single incident occurring in the context of protest, which is not relevant to the applicant’s claims.
The Tribunal notes its earlier findings about the applicant’s health and capacity and his living circumstances on return to South Africa. The Tribunal considers that the applicant would be living with family or in a residential care facility, and that his level of physical and cognitive impairment is such that he would have very limited capacity to engage in activities outside his home / place of residence and he would always been accompanied when outside his home / place of residence. In those circumstances, the Tribunal considers that the applicant would not be participating in the kinds of activities (e.g. protests, whistleblowing) which have been identified in some the examples of police brutality before the Tribunal and that his potential exposure to police would be very limited.
In this applicant’s circumstances, the Tribunal is not satisfied that there is a real chance he would be subjected to harm in the form of attacks by police, police brutality or violence on return to South Africa. Accordingly, the applicant does not have a well-founded fear of persecution on this basis.
Overall finding on s 36(2)(a)
For the reasons outlined above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution. Accordingly, he does not meet the definition of refugee in the Act and does not satisfy s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Risk of harm due to living alone
As outlined above, the Tribunal does not accept that the applicant would live alone on return to South Africa, rather he would be living with his parents or in a residential care facility. Accordingly, the Tribunal does not accept the applicant faces a real risk of harm in the form of having no where to live or no one to care for him on return to South Africa.
As outlined above, the Tribunal accepts that if the applicant lives in a publicly funded residential care facility it is possible he will receive a poor quality of care. However, the Tribunal considers that this would be the result of a lack of staffing, inadequate infrastructure and other similar resourcing issues.
The Tribunal is not satisfied that any such poor quality care would constitute significant harm as defined by the Act. It does not involve the death penalty and the Tribunal is not satisfied it would constitute arbitrary deprivation of life. The Tribunal is not satisfied that any of the intentional elements would be present such as to constitute torture, cruel and inhuman treatment or punishment or degrading treatment or punishment. The Tribunal accepts that it would be distressing for the applicant to receive poor quality care and that this may result in further declines in his health. However, the Tribunal is not satisfied that anyone providing or overseeing the care would deliberately intend such harm. Rather, the evidence before the Tribunal suggests that this would occur because of inadequate resourcing.
Risk of harm from violent crime
As outlined above, the Tribunal accepts that there are very high rates of violent crime in South Africa. However, having regard to the country information before it (cited above), the Tribunal considers that this is a risk faced by the population of South Africa generally and is not faced by the applicant personally. Accordingly, s 36(2B)(c) of the Act applies, and there is taken not to be a real risk that the applicant will suffer significant harm in South Africa on this basis.
Risk of harm from police
As outlined above, the Tribunal accepts that South African police are poorly resourced and affected by corruption, such that it possible the applicant would receive poor service, inadequate responses and inadequate police protection. However, having regard to the evidence before, the Tribunal considers that this is a risk faced by the population of South Africa generally and not faced by the applicant personally. Accordingly, s 36(2B)(c) of the Act applies, and there is taken not to be a real risk that the applicant will suffer significant harm in South Africa on this basis.
As outlined above, while the Tribunal accepts that police impunity is a significant problem in South Africa, in the applicant’s circumstances (for the reasons set out above) the Tribunal is not satisfied that there is a real risk he would be subjected to harm in the form of attacks by police, police brutality or violence as a necessary and foreseeable consequence of his removal to South Africa.
Overall finding on 36(2)(aa)
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Concluding findings
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
REFFERAL FOR MINISTERIAL INTERVENTION
It was evident to the Tribunal at hearing that the applicant shares a very close relationship with his mother and sister, and that the applicant’s mother and sister care very deeply for him. The applicant is receiving a high level of care from his family in a family home, where they are able to live as an extended family unit. The Tribunal notes that the applicant’s parents and sister are now all Australian citizens.
Despite the lack of contemporaneous medical evidence, it was apparent that the applicant’s level of physical impairment is now very severe. It was also apparent that his cognitive functioning is now impaired.
The Tribunal appreciates that should the applicant have to return to South Africa this would be very distressing for the applicant and his family. It would have a significant impact on the family’s circumstances, necessitating travel back to South Africa for his parents either to live or at the least to establish and manage care arrangements for the applicant. This would result in separation of the now close family unit. The applicant’s return to South Africa would also have a substantial financial impact on the family.
The Tribunal also considers that, despite its findings on s 36(2) of the Act, the rates of violent crime in South Africa are very concerning and that the impact on the applicant should he become a victim of such a crime would be severe, given his disabilities.
The Tribunal considers that this case has unique and exceptional circumstances, consistent with those outlined in the Minister’s Guidelines on Ministerial Powers (s 351, 417, 501J), as follows:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
- a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.
Accordingly, this matter is referred to the Minister for consideration of an exercise of the power available under s 351 of the Act.
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 8 October 2024
Representative for the Applicant: Ms Johanna Jacoba Barnard (MARN: 1277481)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…