2003710 (Refugee)

[2024] AATA 4082

2003710 (Refugee) [2024] AATA 4082 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms De Lima Letitia (MARN: 0742045)

CASE NUMBER:  2003710

COUNTRY OF REFERENCE:                   South Africa

MEMBER:David James

DATE:18 July 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 18 July 2024 at 2:15pm

CATCHWORDS
REFUGEE – protection visa – South Africa – employment opportunities – discriminatory laws – sexual orientation – gay man – victim of crime – white South African – compassionate circumstances – Australian citizen siblings and parents – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Republic of South Africa (South Africa), applied for the visa on 20 September 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Africa, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 26 February 2020. The applicant provided a copy of the delegate’s decision with their application for review.

4. As noted above, the applicant has provided the Tribunal with a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.

5. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. 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.

12. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.

    Mandatory considerations

13. 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 (the Department), 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

14. The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to South Africa they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Africa, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Documentary evidence before the Tribunal

15. The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:

    ·The applicant’s protection visa application lodged on 20 September 2018 and the annexed copy of the applicant’s South African National Identity Card, South African Police Service Clearance Certificate and a copy of a document titled ‘Biggest increase to biggest decrease in Crimes (South Africa) 2018;

    ·A copy of the applicant’s South African passport and South African driver’s license, provided to the Department on 30 August 2019, at his interview with the Department;

    ·The applicant’s application for review of 26 February 2020 and the annexed Decision Record of 30 January 2020;

    ·The administrative and movement records of the Department relating to the applicant;

    ·Applicant’s representative’s submission of 10 July 2024 and the attached annexures A to F. The applicant’s representative submitted that:

    1.     The Applicant applied for a Protection Visa subclass 866 that was filed on 20 September 2018 and refused on 30 January 2020.

    2.     The Protection Visa was refused by the Delegate of the Minister stating that: Accordingly, I find the risk of violent crime is one faced by the population generally and indiscriminately as there is no systematic targeting of the applicant or of any particular group or class of persons. Therefore, there is taken not to be a real risk that the applicant will suffer significant harm in South Africa as I am satisfied the real risk is one face by the population of the country generally and is not faced by the applicant personally.

    And

    I am not satisfied 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 they will suffer significant harm as defined in s36(2A) of the Act.

    3.     Hence this AAT-MR Division application has been filed to allow the applicant to appeal to the Minister for his intervention to grant the applicant a substitute 600 visitor visa that will allow him to file an onshore Remaining Relative visa application.

    4.     The Applicant is one of four children, three of whom are Australian citizens and residing in Australia. The Applicant is a South African citizen. His parents are also Australian citizens and residing in Australia. Please see attached Annexure A setting out the family relationships of the applicant with evidence of their citizenship status in Australia.

    5.     The Applicant therefore qualifies for a Remaining Relative Visa subclasses 115 or 835. An Applicant for a newly filed Remaining Relative visa can expect to wait 24 years for the grant of the visa. Please refer to Annexure B listing the current processing time of the visa as per the Department of Home Affairs’ website.

    6.     The applicant has since his arrival in Australia, lived with his ageing parents, acting as their carer. Please see attached Annexure C showing his address as being the same as that of his parents, [Mr A] and [Ms B]. We have also attached Statutory Declarations by [Ms C], [Ms D] and [Ms E], the sisters of the applicant setting out their parents’ health conditions and living arrangements as Annexure D.

    7.     The applicant’s father, [Mr A] (D.O.B. [date]), [age] years of age, has significant scarring in the retina of both eyes and is practically blind with a current vision of 6/120. As a result of his limited vision, he is unable to drive, to clean and to cook for himself or attend to daily household tasks such as doing washing or cleaning. Please see attached Annexure E – Eye Report for [Mr A].

    8. The applicant’s mother, [Ms B] (D.O.B. [date]), [age] years of age has been battling cancer since [2016]. She has been granted special permission by the Therapeutic Health Administration of Australia to import specific medication to treat her terminal cancer. As a result of her cancer treatment and trauma, [Ms B] suffers from depression and neuropathic pain for which she is taking strong medications resulting in her being unable to drive and take care of the couple’s household on a daily basis. The applicant’s travel to Australia between 2016 and 2018 was necessitated by his mother’s cancer diagnosis and subsequent treatments. Please see attached Annexure F – Patient Health Summary and Hospital Discharge Notes for [Ms B].

    9.     The applicant’s sisters are all working full-time and unable either due to their location or their family commitments to care for their parents. Please refer to Annexure D.

    10.  The applicant and his family members believe that his parents’ failing health, inability to live independently and their need for 24-hour fulltime care coupled with the extra-ordinary long processing time of 24 years for the remaining relative visa, represent strong compassionate circumstances, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to his parents who are Australian citizens.

    11.  In addition to the harm and the hardship his departure from Australia will cause his parents, the applicant’s sisters, who are Australian Citizens will also suffer as a result and they will experience financial hardship as the applicant will be dependent on them to support him financially if he is forced to return to South Africa, as was the case prior to him lodging a protection visa. His sisters have been supporting him financially since 2016, paying for not only his travel to Australia to visit his terminally ill mother, but also providing for his day to day living costs.

    12.  The Applicant’s parents’ circumstances, ongoing failing health and inability to care for themselves of a day-to-day basis, represent strong compassionate circumstances, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to his parents who are Australian citizens.

    13.  Points 10 to 12 are recognised by the Minister as a reason to consider intervening in a visa applicant’s matter and an option the Applicant wishes to pursue pending the decision of the Tribunal.

    • Applicant’s Statutory Declaration of 16 July 2024, in which he indicated that he did not wish to participate in a hearing and that he consented to the Tribunal making a decision on the papers in relation to his matter. 

    Claims for protection

16. The applicant, in his visa application, made the following claims (as summarised) that:

    ·He cannot find stable employment and cannot afford to live in South Africa. He lived in a room in a friend’s house in South Africa, and if his friend had not taken him in, he would be homeless. He is financially supported by his family in Australia because he is unable to find work in South Africa, and most weeks he starves because he cannot afford food;

    ·He has no rights because of discriminatory laws in South Africa;

    ·He was a victim of crime because he is a white south African. He did not seek help because the police are predominantly run by black officers who do not take action. The authorities are corrupt, and the entire country is in a state of emergency. He is threatened on a daily basis by black South Africans and must carry pepper spray at all times; and

    ·If he returns to South Africa, it will be a death sentence for him as the murder rate has increased and there is no safe place in South Africa.

    The applicant at his interview with the Department on 30 August 2019, further claimed that:

    ·He has been discriminated against by employers in South Africa because he is a gay man.

    Department interview 

17. The applicant attended an interview with the Department on 30 August 2019, where he confirmed his claims as has been outlined above at paragraph 16, and further raised his additional claim of having been discriminated against by employers because he is a gay man as has also been further outlined above at paragraph 16.

    Delegates decision

18. The delegate’s decision of 30 January 2020 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant is a gay man who fears discrimination and persecution and found with reference to country information that South Africa is the most liberal country in Africa for LGBTI rights and that the situation for LGBTI persons in South Africa is continuing to improve. The delegate found no evidence to suggest that the applicant had a profile that would result in him being targeted by state or non-state actors for harm in South Africa. The delegate also found that while there was a prevalence of violent crime in South Africa the criminal violence feared by the applicant is random and sporadic and therefore not systematic and discriminatory. Therefore, the delegate found that the applicant had overstated his claims and was not satisfied that the combined factors of race and sexual orientation would result in systematic or discriminatory conduct by non-state actors. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found that as to the applicant’s fears of being a victim of crime, that risk was faced by the population generally and s36(2B)(c) of the Act provided that as such the applicant did not face a real risk of suffering significant harm. Therefore, the delegate was also not satisfied that there were 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Invitation to attend a hearing

19. On 19 June 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 17 July 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.

20. On 16 July 2024, the applicant’s representative emailed the Tribunal submitting a declaration from the applicant and an amended ‘Hearing response’ form in support of their advice that the applicant had consented to the presiding Member making a decision on the papers that had been submitted to date in relation to the applicant’s matter.

    Country information

21. The Immigration and Refugee Board of Canada has reported that there are no areas of South Africa that are more dangerous for white South Africans but rather only areas in South Africa which are dangerous for all, and that there are very few areas in South Africa that are safe for any person of any race.[1]

    [1] ‘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.

22. The Institute for Security Studies noted in their 2021 report, that violent crimes in South Africa are rising. The report observed that these increases are likely the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, and declining police performance together with high levels of police corruption. It was further noted that a main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks.[2]

    [2] ‘South Africa’s security sector is in crisis – reform must start now’, Institute for Security Studies, 21 July 2021.

23. It is further noted that in February 2024, the South African Shadow Minister for Police was reported as stating that rates of violent crimes are presently increasing.[3]

    [3] ‘#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.

1. A Foreign Correspondent report of the Australian Broadcasting Corporation (ABC) reported that a senior member of the African National Congress, Ronal Lamola, stated that crime is happening to all races in South Africa and everyone in society.[4]

   [4] ‘The white minority took our land. Enough is enough’, ABC News, 19 September 2018.

2. The Immigration and Refugee Board of Canada reported in 2018 that white South Africans are heard more on crime-related issues, as they have more access to the media. It also indicated 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.[5]

   [5] ‘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.

3. The United States Department of State (USDOS), in a country security report, stated 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.[6]

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

4. The USDOS in their 2023 South African Country Report at Section 6 - Discrimination and Social Abuses, stated that:

   The constitution explicitly prohibited discrimination based on sexual orientation but was silent to gender identity or expression or sex characteristics. 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…

   A religious leader, Oscar Bougardt, was called before the Equality Court in May to address anti-LGBTQI+ comments he had made on social media. The court found Bougardt guilty and fined him.[7]

   [7] South Africa Country Report 2023’, United States Department of State.

5. The Immigration and refugee Board of Canada in a 2018 report outlined employment rates in South Africa and noted that the unemployment rate of white South Africans was lower than those of black South Africans. It was reported in part that:

   Sources indicate that the unemployment rate of white South Africans is lower than that of black South Africans… According to Al Jazeera, in 2017, 30% of black South Africans were unemployed compared to 6.7% of white South Africans…[8]

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

6. AlJazeera in an article titled ‘South Africa’s controversial ‘race quota’ law stirs debate’ published on 28 July 2023, reported that:

   Decades after the end of apartheid, severe inequality persists with around 40 percent of Black South Africans unemployed.

   Johannesburg, South Africa – A new law to help close the racial economic gap in South Africa – which remains one of the world’s most unequal societies – has sparked public debate and seen the country’s main opposition take to the streets in protest this week.

   On April 12, South African President Cyril Ramaphosa signed into law the Employment Equity Amendment Bill of 2020, which sets out “equity targets” to accelerate racial equality in the business sector.

   The legislation is part of “new measures to promote diversity and equality in the workplace”, the government said. Like the principles of Black Economic Empowerment, the original act was crafted in part to promote the economic empowerment of Black South Africans who were systematically marginalised during apartheid.

   Yet years later, the continent’s most industrialised economy still has “one of the highest and most persistent inequality rates in the world” which is “perpetuated by a legacy of exclusion”, according to the World Bank.

   Nearly 40 percent of Black South Africans were unemployed in the first three months of 2023, while the jobless rate was 7.5 percent among white people, according to official figures.

   At the higher echelons of business, inequality is also evident: Black people who make up 80 percent of the employable population account for 16.9 percent of top management jobs, while white people who comprise about 8 percent of the employable population hold 62.9 percent of top management jobs.

   Twenty-five years since the enactment of the original EEA, “this is still the picture and nothing has changed,” Masilo Lefika, the Department of Employment and Labour’s deputy director for employment equity said in a statement this week…

   The EEA amendment applies to businesses classified as “designated employers”, or those who employ more than 50 people. They are to submit plans detailing the demography of the area they operate in and how their companies will achieve stipulated equity targets.

   In the previous legislation, employers would set diversity targets for themselves, and report to the labour department about how they fared in attempts to achieve a diverse workspace.

   Under the new law, the minister of employment and labour will identify certain sectors in need of transformation and impose a “numerical target” to achieve racial diversity – a target that employers must then comply with.

   Companies seeking to do business with the state will be required to submit a certificate from the labour department confirming that they comply with the law; however the EEA does not apply to the country’s security and intelligence agencies.

   Using the construction industry as an example, Insights, a human capital consultancy firm, said the sectoral target “for professionally qualified Africans” in the industry is 65.2 percent within the next five years, an increase from the current 46.9 percent.

   The purpose of the “equity targets” is to encourage equitable representation of people from historically disadvantaged groups. But “in an economy that is regressing rather than growing and where job opportunities are thin on the ground, businesses will find these targets very difficult to achieve,” Insights noted…

   About a third of South Africa’s population of 60 million is already unemployed and soaring costs of living as well as rolling electricity cuts have exacerbated economic woes in the country, especially for its poorest demographic – Black people.

   The Institute of Race Relations, a South African-based research and policy think tank, has said “race-based policies have not worked” to lift millions out of poverty and instead recommended a skills-based approach to inclusive employment.

   Solidarity, a mainly white trade union, has written “to at least 2,000 of the major companies in South Africa, urging them to record their protest against the latest race law”. According to the union, the legislation is “turning South Africa into the most racially regulated country in the world”…

   South Arica’s government says the new legislation, supported by the ANC, will not cause job losses and only result in fairer representation in the workforce…[9]

   [9] ‘South Africa’s controversial ‘race quota’ law stirs debate’, Nkateko Mabasa, Aljazeera, Explainer, 28 July 2023 – AND REASONS

7. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.

   Country of reference

8. According to the protection visa application, the applicant claims to be a citizen of South Africa and provided a copy of his South African passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of South Africa. South Africa is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

   Analysis

9. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

10. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[10] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[11] This is consistent with the established proposition that it is for the applicant to make his or her own case.[12]

    [10] Section 5AAA of the Act.

    [11] Ibid (with effect from 14 April 2015).

    [12] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

11. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out.  A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

12. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[13] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[14]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [13] Fox v Percy (2003) 214 CLR 118

    [14] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

13. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[15] A similar approach is taken in the Department’s Refugee Law Guidelines[16] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[17] which both provide useful guidance for this Tribunal.

    [15] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [16] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [17] UNHCR, re-issued February 2019 at [203]–[204].

    Claims

14. The applicant in his application for the visa claimed that he could not find stable employment in South Africa and that he cannot afford to live in South Africa, so he has had to rely upon financial support from his family in Australia. He further claims to have no rights because of discriminatory laws in South Africa.

15. The applicant also claimed in his application for the visa that he was a victim of crime because he is a white South African and that he did not and cannot seek help because the police are run by predominantly black officers who take no action, and the South African authorities are corrupt and in a state of emergency. He claims to fear being harmed if he was to return to South Africa as he claims it will be a death sentence for him as the murder rate has increased and there is no safe place for him in South Africa.

16. Additionally, at his interview with the Department, the applicant also claimed that he has been discriminated against by employers in South Africa because he is a gay man.

    Economic claims – employment opportunities & discriminatory laws

17. As to the applicant’s claims that he cannot find stable employment and is unable to sustain himself financially in South Africa; the Tribunal notes that in his application for the visa he outlined his South African employment history which indicates that he has worked in a variety of roles in [various] fields and that he had also started his own business of selling [goods] which he imported from China.

18. Although the applicant has moved between these various jobs whilst in South Africa and his longest period of stable employment was that of three years in [industry] with a [business] where he acted in the managerial and/or supervisory role of an Acting Manager his departures from these positions of employment appear to have been voluntary on his part.

19. In regard to this claim the Tribunal first, rejects the applicant’s claims of fearing being unable to find stable employment in South Africa as being inconsistent with his past employment history in South Africa and the country information as has been outlined above at paragraph 28. Second, the Tribunal finds that the applicant’s claims as to his employment opportunities in South Africa do not relate to any of the reasons outlined in s 5J(1)(a) of the Act as to a well-founded fear of persecution.

20. As to the applicant’s further claims that he has no rights because of the discriminatory laws in South Africa and his later claim that he has been discriminated against by employers in South Africa because is a gay man; the Tribunal notes that the applicant has not provided any details as to what discriminatory laws have had an impact on him, and how he has been so purportedly discriminated against. Further, as to the applicant’s sexual orientation he has again not provided any details in support of this claim or any specific instances as to how he has or would be so discriminated against by employers in South Africa. Therefore, on a credibility basis given the lack of details that the applicant has provided in relation to this claim; the Tribunal rejects the applicant’s claims in this regard in their entirety.

21. However, further, in regard to his claims of having no rights because of the discriminatory laws in South Africa and being discriminated against by employers in South Africa because he is gay; the Tribunal also prefers the country information as has been outlined above as relevant at paragraphs 27 to 29, which indicate that the applicant would likely be able to secure employment as he has in the past and given the protections available in South Africa would not be discriminated against by employers because he is a white South African and/or because he is a gay man.

22. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm if he was to return to South Africa in the reasonably foreseeable future on account of his fears of being unable to find employment, having no rights because of the discriminatory laws in South Africa and being discriminated against by employers because of his sexuality, being a gay man.

23. The Tribunal finds that the applicant’s fears in this regard are not well-founded.

24. Additionally, the Tribunal has separately considered the applicant’s claims in regard to his employment opportunities and the discriminatory laws of South Africa as to employment in relation to complementary protection. The Tribunal in this regard, and with reference to the country information which has been outlined above at paragraphs 27 to 29 finds that these factors are not matters that have been targeted at the applicant but rather factors that are faced by the South African community at large and as such do not amount to the applicant facing a real risk of suffering significant harm; s 36(2B)(c) of the Act.

    Victim of crime

25. As to the applicant’s claims of having been a victim of crime and having not sought help from the police because they are predominantly run by black officers and that the authorities are corrupt, and the entire country is in a state of emergency. Notwithstanding the Tribunal accepting that there is corruption within the ranks of the South African police; the Tribunal equally notes that again the applicant’s claims are vague and generalised in their nature and that he has not provided sufficient details for the Tribunal to be satisfied as to the facts he relies upon in support of these claims. As such the Tribunal rejects these claims on the basis of a lack of credibility.

26. Furthermore, the Tribunal finds that the applicant’s claims as to having been, and being in the future a victim of crime in South Africa that they are not matters that relate to any of the reasons outlined in s 5J(1)(a) of the Act as to a well-founded fear of persecution.

27. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm if he was to return to South Africa in the reasonably foreseeable future on account his fears of being a victim of crime.

28. The Tribunal finds that the applicant’s fears in this regard are not well-founded.

29. Additionally, and separately the Tribunal has considered whether these claims (being a victim of crime) would amount to the applicant facing a real risk of suffering significant harm. In that regard and with reference to the country information that has been outlined above at paragraphs 21 to 26; the Tribunal finds that such factors relating to the level of crime and the general security situation in South Africa are again factors that do not amount to the applicant facing a real risk of suffering significant harm as the general security situation and high levels of crime are not matters that are targeted against the applicant but rather factors faced by the South African population at large; s 36(2B)(c) of the Act.

    LGBTI+

30. As discussed above the applicant has also claimed that he will be discriminated against by employers because he is a gay man. In addition to the Tribunal’s discussions as to its consideration of this claim as has been outlined above at paragraph 47; the Tribunal notes as has been outlined above at paragraph 27, that the South African constitution explicitly prohibits discrimination based on sexual orientation. Notwithstanding the Tribunal having noted above at paragraph 43 and 44; that the applicant’s claims in this regard are vague and lack any detail that would allow the Tribunal to find the facts sufficiently proved to provide support to these claims. The Tribunal also notes that the applicant’s claims are inconsistent with the country information which has been discussed above and to which the Tribunal prefers.

    Refugee criterion

1. Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore the applicant is not a refugee within the definition of s 5H of the Act.

2. 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) of the Act.

   Complementary protection

3. Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

4. As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, and that the economic situation and employment opportunities together with the general security situation in South Africa are factors that are faced by the population at large, s 36(2B)(c) of the Act, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

5. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   Additional findings

6. Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.

7. As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than South Africa.

   MINISTERIAL INTERVENTION

8. The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning Ministerial intervention provides, as a relevant factor, ‘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’.

9. In this regard, the Tribunal acknowledges the personal circumstances of the applicant in so far as his ongoing positive relationships with his three siblings and parents all of whom are Australian citizens and his continued support and care of his Australian citizen parents who are both in need of care given their respective ages and illnesses.

10. When considering all of the applicants’ circumstances, the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as he and his siblings and parents, all of whom are Australian citizens can maintain their positive family connections, relationships and so he can also continue to provide care for his elderly infirmed parents.

11. In considering the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, the Tribunal considers that the circumstances of the applicants’ case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:

    ·Compassionate circumstances regarding the psychological state of the applicant and his three siblings and parents all of whom are Australian citizens, arising from the possible break-up of their family unit if the applicant was returned to South Africa, and the negative impact upon his Australian citizen parents by the withdrawal of his care and support if he was returned to South Africa.

    DECISION

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

    David James
    Senior Member

    
    

    ATTACHMENT -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …