2003710 (Refugee)

Case [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…

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AGLC
2003710 (Refugee) [2024] AATA 4082
Case
[2024] AATA 4082
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a gay man from South Africa, claimed he feared persecution due to his sexual orientation and was also a victim of crime. He also sought ministerial intervention based on compassionate circumstances, including the serious ill health of his Australian citizen parents, for whom he acted as a carer, and the lengthy processing times for a remaining relative visa.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the prescribed reasons under the Act, and if there was a real chance of persecution upon return to South Africa. Alternatively, the court had to consider whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal, the applicant faced a real risk of suffering significant harm.

The Tribunal considered documentary evidence, including the applicant's visa application, police clearance, passport, and submissions from his representative. The delegate's original decision had found that while the applicant was gay and feared discrimination, South Africa was generally liberal in its LGBTI rights, and the applicant did not present a profile suggesting he would be systematically targeted. The delegate also concluded that the prevalence of violent crime in South Africa was random and not specific to the applicant, thus not constituting a real risk of significant harm. The applicant's representative argued that the applicant's parents' failing health and inability to care for themselves, coupled with the long processing times for a remaining relative visa, constituted strong compassionate circumstances warranting intervention.

The Tribunal invited the applicant to a hearing, but he consented to a decision on the papers. The Tribunal noted that the delegate's decision was made on the information then available and that the applicant had raised additional claims of discrimination by employers due to his sexual orientation. The Tribunal acknowledged the applicant's claims regarding his parents' health and his role as a carer, and the potential hardship his departure would cause his Australian citizen family members. However, the Tribunal ultimately affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm upon return to South Africa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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.AndI 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

Decision

Reasons for decision

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 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 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. 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

Ratio Decidendi

Legal Principle Established

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 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 EVIDENCEIssues 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 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.AndI 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