2007245 (Refugee)

[2024] AATA 4408

2007245 (Refugee) [2024] AATA 4408 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007245

COUNTRY OF REFERENCE:                   South Africa

MEMBER:David James

DATE:23 September 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the first applicant [a] protection visa and the Tribunal does not have jurisdiction in the matter of the second [applicant].

Statement made on 23 September 2024 at 2:34pm

CATCHWORDS

REFUGEE – Protection Visa – South Africa – race – white South African – fears as to an ability to subsist in South Africa – purported forced sale of her farm – fear of persecution is not well-founded – applicant does not have a well-founded fear of persecution – Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 411, 417,499

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
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 9 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of the Republic of South Africa (South Africa), applied for the visas on 30 November 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons 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 applicants being removed to South Africa, there is a real risk they will suffer significant harm as defined in s 36(2A) of the Act. Therefore, the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

3. The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 18 April 2020. The applicants provided a copy of the delegate’s decision with their application for review.

4. As noted above, the applicants have 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 applicants protection visas 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. On 30 March 2023, the applicants’ representative, the daughter of the applicants, informed the Tribunal by email that the secondary applicant, her father had passed away on [date] March 2023. On 24 October 2023, in reply to a request from the Tribunal, the applicants’ representative emailed a copy of the secondary applicant’s death certificate to the Tribunal.

6. The Tribunal having accepted this evidence as to the death of the secondary applicant finds it has no jurisdiction to review the decision as to the secondary applicant, [name].

7. The primary applicant appeared together with her daughter, the applicants’ representative in person before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.

8. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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.

14. 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.

15. 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

16. 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

17. The issues in this review are whether the applicants have 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 applicants were 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 applicants will suffer significant harm as defined in s 36(2A) of the Act.

    Documentary evidence before the Tribunal

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

    ·The applicants’ protection visas application lodged on 30 November 2018 and the annexed copies of the applicants’ bio-data pages of their South African passports and copies of the applicants’ South African National Identification Cards and their South African Marriage certificate;

    ·Media articles provided to the Department at the primary applicant’s interview with the Department on 28 October 2019 from ‘[news title deleted]’, dated 22 May 2019 and a purported [social media] posting of a media article titled ‘[title]’, dated May 2019;

    ·Two medical letters under the hand of [Dr A], South Africa dated 16 October 2018 stating that the applicants are of ‘sound mental and physical health’, provided to the Department at their interview with the Department on 28 October 2019;

    ·Applicants South African Police Clearance certificates provided to the Department with various education and trade qualification certificates in the name of the applicants;

    ·Applicants’’ representative’s post interview submission, in which it is stated that:

    My Name is [name] and I am the daughter of [the applicants] who has been interviewed for the protection visa on the 28^th of October 2019.  I was in the interview room with my mum and dad as a support person.  This letter is to explain some of the statements and facts that went missing during the interview due to nerves and the age of my mum who is [age] years old and I could clearly witnessed that she was forgetting important information and could not recall all the facts that was looking for:

    Thank you for the opportunity to take the time to interview my [parents’] case for the protection visa.

    1.     Mum was in tears on her way to the train station as her emotions was just reaching the peak.  I felt terrible that I have put her through all of this stress as we have just overcome the phycological harm that has been caused by the (Hi-jacking) attacking incident just before they came to Australia for a visit. I personally think she was to old and could not recall facts as required.

    2.     When my dad wants to say something, my mum kicked him under the table, and I asked her why she was doing that, and she said that he cannot speak English and she felt that it might be influence the process.  This was her personal feelings and I was just thinking by myself that it should have been perfectly fine, and she was a little overprotecting him. 

    3.     My dad is also forgetting things and also could not recall facts as asked.  This was showing me that I think they were not answering questions as asked because of their constant forgetting minds.

    Clearing some facts:

    1.My mum said that she thought the questions regarding the traveling to and from South Africa was because of financial implications – who paid for this - and I said to my mum that  it was nothing about finance and all about protection, why are they keep coming back to South Africa all the time?.  They had no but no idea that there are things like protection visa’s and after the farm incident they also had no idea that they could ask for a protection visa.  My parents are not computer literate and we are teaching them on a daily basis how to use I-phones.  My dad knows absolutely nothing about computers, he can not even use an I-phone and he is still working with cash because somebody will steel money out of banking cards.   When they came to Australia last year, they applied for credit cards because of travel and visitors’ obligations.  Before then they had debit cards which they used and only cash for my dad.  We found out that they are in the process of forgetting things and could not tell me how much money they had or can use while in Australia.  While they were in South Africa for the funeral for my dad’s sister (Mother) my oldest brother has flue down from [overseas] to go and help them for safety reasons because they are in total destress in South Africa.  That is only when my brother went to the bank and took all their finance over because they had no idea what is going on with their money and finance.  My parents was honestly not lying when they could not recall the selling price of the  [farm] and the amount of pension and recalling dates and my mum has forgotten that she assist in the guesthouse in Pretoria [on] a very regular basis because my dad was traveling forth and back from [a country] to help with the renovations of my brother’s house there.  She would not have stayed on the farm because of her life.  It was on the news all the time at that time that the taking of farms without compensation will happen, but she feared more for her life than the taking of the farm without compensation.  This happened all around them as it was the motto of the new government.

    2.The farm sold and the owner asked my dad and mom that they could stay on in the house for free (only paid for water and electricity) if they could help with the new manager that will take over the farm because he never managed a farm before.  There was no indication for how long this would go on for but the majority of belongings of the farm has been removed or stolen because they were stealing left and right at this time as my dad could not go out at night time anymore because of fear for his life.  And I am not sure neither are them sure how long they stayed on in the house (Personally I think it was something like plus minus 1 year) and they then left the farm one day after the worker told them that my dad will be killed if he does not leave immediately because they are coming tonight to kill him.  There were still belongings on the farm, but I cannot recall what and (neither of them) can recall the belongings still left.  Still things in the house but like I’ve said that most things were gone by this time.  My main reason for this letter was to let [Ms A] know that they received the money of the farm and has been paid for the farm and was very happy to leave whenever they want them to leave the farm as they had a house to go to in Pretoria, but it’s NOT about the farm or money, it’s ALL about a white famers life that has to be taken.  This was clearly what it was all about.  Steal and take everything and leave the white famer with nothing and then kill him.  My dad was a wealthy man on his days but with the BEE he could not get contracts anymore and the new South Africa made sure that he retired with only the money of the farm that he was selling.  [Ms A] this is reality in South Africa at the moment.  They will come back and kill them.  It’s about their life.  Their hope of changing things in South Africa came to a dead end as nothing is going to change the hate in those black people’s heart after the apartheid.  The sad story was that my dad helped the new owner of the farm the way the government ask white farmers to assist new upcoming black farmer’s, but it was still not enough.  They will rest until all the white farmers has been killed or left South Africa.  They know the house and guesthouse in Pretoria, and they will not stop unless my parents are killed.  They hijacked and attacked my mum at the mall close to where they lived in Pretoria and this was just before they came to Australia for a visit to me and my brother.  When picked them up on the airport, I’ve realised the impact of this phycological stress as my mum could not sleep and my dad had panic attacks at night and my mum was walking up and dawn at night time to keep an eye on our house because they’ve been in total destress.  I have offered to pay for counselling and tried to help but sorry to mention this, but my parents still come from this very old school that Psychologist and Psychiatrist are all mentally having problems them selves’. That’s the reason they became Psychiatrists.  Feeling a little embarrass to even type this as this is not my believe but I just could not get my parents the help they needed and my then next step was to take their minds off all of this and show them the light side of life by taking them around and do picnics and we’ve been doing camping a lot as I thought this might help them.  I do not ever want to take this as a knock on my shoulder, but it helped and we as a Christian family prayed about this all the time.  My mum is sleeping now much better and my dad’s attack’s at night time has been reduced a lot.  Still has it but nothing comparing to, as from last year.

    3.We knew nothing of a protection visa until I’ve started to do some research myself.  My parents knew nothing either and that was the reason they stayed on in South Africa as they and we thought there were just no freedom out of this.  They are getting older and weaker and can not protect themselves anymore.

    4.Please know that when my mum came to the end, she was so tired and stressed out.  She kept on saying she wants to be with her children that is very true, but this was not part of the protection visa application when we started.  I think she kept on saying this, as to ask for your help in this application process.  This was very stressful for her.

    Thank you [Ms A] for talking the time to listening to my story but I honestly whole heartedly believed that my mum was not answering your questions as she was in total destress at the end as I could see and hear that she was just talking and nothing is adding up or making sense at the moment.

    ·The applicants’ application for review of 18 April 2020 and the annexed Decision Record of 9 April 2020;

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

    ·A copy of correspondence from [an] office of 9 May 2023 confirming that the secondary applicant had been accepted as a ‘[role]’, handed to the Tribunal at the commencement of the review hearing.

    Claims for protection

19. In the application for the visas the primary applicant stated that she and her husband had come to Australia on tourist visas to visit their two children. She made the following claims (as summarised) that:

    ·South Africa is lawless, just prior to her arrival in Australia she had been hijacked by four indigenous Africans in South Africa and she almost lost their third car to crime and there could have been another life taken. The police would not make a report of this incident because no one had been injured;

    ·There are illegal land grabs in South Africa and they had to sell their farm at a price that was forced upon them by an indigenous African man, [and] there was a verbal agreement for them to continue to live on the farm during the ownership transfer period but they left quickly without their belongings after having received death threats;

    ·South Africa will be in a civil war very soon due to the high level of crime and government corruption and the government cannot guarantee safety, security or life and there is no willingness to assist white people being kept safe;

    ·She fears she will be tortured, raped and killed because she is a white South African as there is an orchestrated effort to murder all white South Africans and they live in fear of torture on a daily basis. As they are elderly, they cannot defend themselves;

    ·She no longer felt safe and had nowhere to live, no income and no way of generating income. She was living on the financial support provided by her adult daughters in Australia; and

    ·There are no welfare agencies to assist them, and they have no relatives in South Africa.

    The applicants at their interview with the Department on 28 October 2019, further claimed that:

    ·A woman in their community who lived on a neighbouring farm had been murdered;

    ·That they (the applicants) were ‘marked’ and followed after the sale of their farm;

    ·The primary applicant receives a pension that is inadequate, and her pension fund is going bankrupt and the second applicant was denied a pension because he is white; and

    ·They have experienced a decline in their psychological health after living in South Africa.

    In a letter of support of 29 October 2019 submitted by the applicant’s daughter [who] had attended the interview with the Department as a support person, it was submitted that the applicants had become tired and forgetful during their interview with the Department, and they had been unable to answer some questions fully due to being elderly. It was further claimed on their behalf that:

    ·The second applicant’s business had failed because of Black Economic Empowerment (BEE); and

    ·The new owners of their farm know where the applicants live in Pretoria and they were responsible for the attempted carjacking experienced by the primary applicant and they will continue to target the applicants until they have been killed.

    Department interview 

1. The applicants attended an interview with the Department on 28 October 2019.

   Delegates decision

2. The delegate’s decision of 9 April 2020 to refuse the protection visa was made on the information before the delegate. The delegate found as to their ability to subsist that the applicants were able to subsist in their retirement in South Africa due to the primary applicant’s pension; the proceeds from the sale of their farm being managed by their son; and, financial support from their five children. In relation to their claims of having been forced to sell their farm and that the new owners of the farm continue to target the applicants and were responsible for the attempted carjacking that the primary applicant experienced. The delegate after considering the applicants move to their son’s house in [Pretoria] where they continued to live after the farm sale for three years without seeing or having any contact with  [Plaas] staff again, together with the primary applicant not recognising any of the perpetrators of the attempted carjacking was satisfied that the carjacking was random and opportunistic rather than a targeted attack. Although the delegate accepted that the applicants were threatened during the sale of their farm, they did not see the new owners or staff again and so the delegate did not accept that the applicants were followed, monitored or targeted by any party associated with the [Plaas] (farm) sale after the sale and handover. Given the applicants provided letters from their doctor dated 16 October 2018 that reported them as being in ‘sound mental and physical health’ the delegate did not accept that the applicants suffered from poor mental health. After considering that the applicants returned to South Africa on [date] March 2019 after having made their application for the protection visas on 30 November 2018 the delegate found that this travel undermined the applicants’ claims, their credibility and the claimed urgency and immediacy of their claimed fear of harm in South Africa. In relation to their claims of being subject to white genocide, and crime, the delegate found with reference to country information, that given the applicants had returned to South Africa after having made these claims and that they had enjoyed a safe journey to and throughout South Africa, that the primary applicant’s fears in this regard were not well-founded. Therefore, the delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and therefore were not refugees. The delegate also found that as to the applicants claims as to being homeless upon any return to South Africa that although they may suffer some anxiety or other psychological symptoms the availability of their family support network and social security in South Africa would allow them to find accommodation. Although the delegate acknowledged that the applicants may face some hardship upon a return to South Africa there was no indication from the applicants’ particular circumstances that they would face arbitrary death, torture, cruel, inhuman or degrading treatment or punishment. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to South Africa, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.

   Invitation to attend a hearing

3. On 22 August 2024, the Tribunal invited the primary applicant (applicant) to attend a review hearing at the Brisbane Registry on 18 September 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.

   Country information

4. The United Kingdom’s Home Office’s Country Background Note South Africa, August 2020 reported as to the ‘Economy’ at 2.1.1, that:

   South Africa is a middle-income emerging market with an abundant supply of natural resources; well-developed financial, legal, communications, energy, and transport sectors; and a stock exchange that is Africa’s largest and among the top 20 in the world…Official unemployment is roughly 27% of the workforce, and runs significantly higher among black youth.

   As to ‘Healthcare’ at 9.1.1 and 9.1.2, that:

   …South Africa’s Constitution guarantees every citizen access to health services (section 27 of the Bill of Rights). However, everyone can access both public and private health services, with access to private health services depending on an individual’s ability to pay…

   The majority of patients access health services through the public sector District Health System, which is the preferred government mechanism for health provision within a primary health care approach…Of the nation’s 60 million people, about 16% have private insurance, many of them white and comparatively wealthy. They’re served by 70% of the nation’s doctors and consume almost half of the spending on medical care, according to the health department. That leaves the remaining 84% of the population to crowd into government hospitals and clinics beset by underfunding, broken equipment, and personnel shortages.

   The most recent government-mandated inspection report showed that just 5 of 696 public hospitals and clinics met at least 80% of the national standards for such measures as drug availability and infection control.

   Under the heading of ‘Race-related discrimination’ at 19.2.1, it is reported that:

   Based on a variety of sources, the Immigration and Refugee Board of Canada (IRBC) noted in September 2018: ‘Sources indicate that white South Africans do not face any specific challenges or threats in society, “for example, in terms of access to employment, education, health or housing”. In correspondence with the Research Directorate, the Vice-Chancellor of Witwatersrand University in Johannesburg, who is also a political science professor, explained that ‘In terms of accessing public health care and public education, white South Africans face the same issues that black South Africans do. However, black South Africans are burdened more because of their access to resources. For example, black South Africans do not have the same resources as white South Africans to buy private health care…

   In correspondence with the Research Directorate, a representative from AfriForum, a non-governmental “Afrikaner interest organisation and civil rights watchdog” that aims to “protect the rights of minorities” (AfriForum n.d.), stated that there is “[n]o legislation…that specifically discriminates against white South Africans” in terms of health care (AfriForum 7 Sept. 2018).’[1]

   [1] Country Background Note, United Kingdom’s Home Office, August 2020.

   As to the South African Police Service (SAPS), it is reported at 11.1.2 that:

   The South African Police Service (SAPS) Annual Report 2018/19 stated that as of 31 March 2019, South Africa had 1,149 police stations, a total of 150,855 police officers, and a police/population ration of 1:383.

   As to the ‘Effectiveness’ of the SAPS, it is reported at 11.2.1 that:

   The United States State Department Overseas Security Advisory Council (USSD OSAC) South Africa 2020 Crime & Safety Report stated:

   SAPS has made a strong effort to decrease its response time in recent years. While active crimes will take precedence over crimes that have happened in the past, SAPS tries to respond to incidents within a reasonable time. SAPS patrol vehicles will typically be the first responding unit and can open a case docket and take statements at the scene, or can advise the complainant to report the crime at the nearest police station. There are effective detective programs at all SAPS stations, and a detective is on duty 24/7. Once the detective receives a case and they are ready to continue the investigation, they will generally contact the complainant.

   At 11.3.1 under the heading of ‘Police operations against crime’ it is reported, that:

   The detection rate for serious crime increased, by 0,40% to 36,37%, in 2018/2019.
   Contact-related crimes increased, by 1,75% to 49,81%, property-related crimes, by 0,77% to 15,51% and other serious crimes, by 0,01% to 36,16%. Contact crimes decreased, by 0,54% to 50,58...

   The conviction rate for serious crime increased, by 0,39% to 89,79%. Contact-related crimes increased, by 1,87% to 87,86%, property-related crimes, by 0,80% to 90,09%, contact crimes, by 0,44% to 81,95% and other serious crimes, by 0,04% to 96,79%.

   As to ‘Judicial independence’ at 13.2.1 to 13.2.3, it is reported that:

   The USSD 2019 Human Rights Report stated: ‘The law provides for an independent judiciary, and the government generally respected judicial independence and impartiality.’

   The Freedom House Freedom in the World 2020 report, commenting on events in 2019, stated: 13.2.3 The Bertelsmann Stiftung Transformation Index (BTI) 2020 South Africa Country Report stated:

   ‘The constitution guarantees judicial independence, and courts operate with substantial autonomy in practice...The Judicial Services Commission recommends to the president the appointment of Constitutional Court judges based on both merit and efforts to racially diversify the judiciary… ‘Prosecutorial independence in South Africa was undermined in recent years, with the NPA experiencing a string of politically motivated appointments and ousters. However, President Ramaphosa appointed a new NP head in 2018, who has worked to reform the institution.’

   The Bertelsmann Stiftung Transformation Index (BTI) 2020 South Africa Country Report stated:

   ‘The South African judiciary, with the Constitutional Court at its apex, remains independent and has on a number of occasions ruled against the government. The Constitutional Court has not shirked in its duty to overturn legislation that has been found to be inconsistent with the constitution, government appointments that do not comply with due requirements, and on occasion has reprimanded parliament for failing in its oversight responsibility. Unfortunately, the weakened capacity of the National Prosecuting Authority (NPA), resulting from poor appointments by the Zuma administration and a general failure by the public to distinguish between it and the judiciary, has had an impact on public perception of the latter.’

5. The Tribunal also notes that 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 …[2]

   [2] 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. Al Jazeera 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.[3]

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

   It is also noted by the Tribunal that the South African Government’s Labour Guide reports that as to the government’s Unemployment Insurance Fund (UIF), that:

   Employees who are registered with the Unemployment Insurance Fund (UIF) and have been contributing to the fund can claim …

   You can only claim unemployment benefits if you have been dismissed or retrenched if if the contract has expired …

   The UIF covers five kinds of benefits namely: Unemployment benefits; Illness benefits; Maternity benefits; and Death benefits …

   If you have been contributing to the fund for four years or more, then you can claim for up to 238 days. If you have been contributing for a shorter period, then you can claim 1 day or every 6 days that you have worked while you were contributing to the fund …[4]

   When your employer terminates your service, you can apply to the Unemployment Insurance Fund (UIF) for benefits.

   The benefits are only available to you if you have been contributing to the UIF while you worked. You cannot claim if you have resigned, been suspended or absconded from work. You may claim if the Commission for Conciliation, Mediation and Arbitration (CCMA) considers the resignation as a constructive dismissal.

   To qualify for benefits, you must register as a work seeker. You must apply for the UIF benefits as soon as you become unemployed or within six months of the termination of your employment.[5]

   [4] Unemployment Insurance Fund (UIF) – Labour Guide South Africa, South African Government – UIF Benefits South African Government, Services, Services for Residents, World of Work, UIF, Unemployment Benefits – >

   As to the availability and access to social housing in South Africa, the National Department of Human Settlement, South African Government reports that a person qualifies for social housing in South Africa if they are a citizen or have a permanent residency permit, are 18 years of age or older, are married or living with a partner or single or divorced and have proven financial dependants permanently living with them.[6]

   [6] Government Subsidised Housing, Department of Human Settlements, Republic of South Africa – >

   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.[7]

   [7] ‘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.

7. 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.[8]

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

8. The United States Department of State (USDOS), in a 2023 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 crimes. 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.[9]

   [9] ‘South African Country Security Report’, United States Department of State overseas Security Advisory Council, 12 December 2023, type="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.[10]

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

   The Immigration and Refugee Board of Canada also 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.[11]

   [11] ‘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.

   Review hearing – 18 September 2024

   The Tribunal hearing was conducted at the Brisbane Registry with the applicant appearing in person with her daughter who appeared as her representative. The hearing was conducted in the English language.

   The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh.

   The applicant, when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, told the Tribunal that she thought she understood the criteria.

   The Tribunal then provided a brief outline of the refugee and complementary protection criteria to the applicant, who then acknowledged that she understood the criteria.

   Under questioning, the applicant told the Tribunal that she and her husband had arrived in Australia on [date] November 2018 after having travelled to Australia from South Africa to visit her daughter here in Queensland and her son in Tasmania. She also said that the reason for their trip to Australia was to also help her daughter with her special needs child. She said that they had arrived with a full set of clothes and that they had come with all of their belongings and that is all that they came with.

   When asked whether they had intended to stay in Australia, the applicant in reply said: “yes and no”. She further explained that they had an intention to go back to South Africa but that her husband later developed Alzheimer’s and then developed dementia two years after they had arrived in Australia.

   Under further questioning, as to when she had decided to stay in Australia, the applicant told the Tribunal that there were other issues that had contributed to their decision to remain in Australia. First, one of her two daughters who resides in South Africa had been going through a divorce, and second, the house that they had been staying in Pretoria which they had purchased after leaving their farm was in their son’s name and had since been sold with the sale proceeds going to her Australian citizen son in Tasmania.

   When questioned as to why they had applied for protection in Australia on 30 November 2018, the applicant told the Tribunal that she and her husband had been advised to do so by their Australian citizen children during their visit to Australia as their children were concerned about their safety given the recent attempted carjacking that the applicant had experienced in South Africa.

   The applicant further explained that she did not now believe she could return to South Africa at [age] years of age and having had a [surgery]. She said that she also did not believe she would be mentally okay to return to South Africa as she was worried about her safety given the widespread crime in South Africa.

   When asked what fears she had as to any future return to South Africa, the applicant told the Tribunal that she believed it was not really safe for her in South Africa. Under questioning, the applicant agreed that it was not safe for anyone in South Africa and not so specifically for herself but she further explained that in her circumstances, age does play a role.

   The applicant further explained as to her fears of harm in South Africa that her main concerns were her age and health and that she would not be able to independently support herself financially as she and her husband had used up most of their savings in assisting one of her South African daughters with her divorce proceedings in South Africa. She also explained that as they had had two cars stolen in the past and she had recently experienced an attempted carjacking she was also concerned for her safety.

   Under questioning the applicant told the Tribunal that she was eligible for a 3000 Rand (which equated approximately to AUS $250.00) a month pension payment from her past government [employment]. She further explained that she had only worked for the South African government’s [department] for a short period as most of her [employment] had been with private [employers] in South Africa.

   Under further questioning, the applicant told the Tribunal that although their former house in Pretoria had been sold, she could if needed to do so reside with her other South African daughter who works for [an agency] as she was confident her daughter would not leave her on the street. However, she told the Tribunal although her daughter’s husband was a nice man and they lived in a large house, as she did not know her daughter’s husband very well, she would likely feel a bit uncomfortable staying with them as she is settled here in Queensland and likes her room and current arrangements with her Queensland daughter and family. She further told the Tribunal that her son in [a country] was wealthy and if she was to return to South Africa, he would likely provide her with financial assistance.

   The Tribunal then in accordance with the procedure outlined in s 424AA of the Act, asked the applicant why if she had feared harm in South Africa had she retuned to South Africa for a period of about [number] days between [date] March 2019 and [date] April 2019 after having made her application for protection in Australia on 30 November 2018. After being offered time to consider this question and/or an adjournment, the applicant told the Tribunal that her husband had wanted to attend the funeral of his sister in South Africa, and so she took the chance that things would be okay for their visit.

   Under further questioning the applicant told the Tribunal that there had been no issues as to their safety during their 2019 visit to South Africa.

   After the applicant’s daughter and representative raised with the Tribunal that the applicant may have forgotten her claims and/or may have been confused in her responses to the Tribunal, the Tribunal took the applicant through her claims as had been made in her application, at her interview with the Department and in her daughter’s post interview submission as has been outlined above at paragraph 19.

   The applicant in reply to the Tribunal discussing her claims stated that:

   ·As to her claims that South Africa is lawless and that prior to her arrival she had been hijacked by indigenous South Africans; and, that the new owners of their family farm knew where they lived in Pretoria, had marked them, followed them and had been responsible for her hijacking; and, that there are illegal land grabs in South Africa. The applicant under questioning again agreed that South Africa was a dangerous place for everyone. She further stated that after the sale of the family farm she and her husband had not had any further contact, nor did she ever see or have any contact with the new owner of the farm or any of the staff of the farm. She further told the Tribunal that she and her husband had not experienced any harm and/or threats of harm, arising from the sale of their farm while they were living in Pretoria for several years prior to their arrival in Australia in November 2018. The applicant also told the Tribunal that she had not recognised any of the carjackers who attempted to steal her car as having been connected with the sale of their farm.

   The applicant further explained that during the sale of their farm and the sale of their house in Pretoria threats had been made to them during the sales, but she did not recall the details of same and they had not been harmed in anyway and once the respective sales had been finalised, they had not been the subject of any further threats and/or verbal abuse. She further agreed that they did receive the proceeds of the sales as agreed but it was her view that both sales had resulted in their properties being sold at an undervalued price. Under further questioning, the applicant agreed that both of these sales were voluntary but had occurred in circumstances where they had been threatened and abused and there had been localised violent attacks of other people nearby which had motivated them to sell their properties as the local areas had become not nice places to live.

   The applicant further agreed that during their return visit to South Africa after having made their application for protection they had not been the subject of any harm, been followed or ‘marked’ or threatened with harm by any person nor did they see any person that had been associated with the sale of the farm and the new owners and staff of their former farm.

   ·As to her claims as to the government not being able to guarantee her safety and her inability to afford accommodation and to sustain herself from her teaching pension. The applicant agreed that the South African police were active and the security situation in South Africa affected all of the population. She further told the Tribunal as she had earlier stated that she could if needed to do so be accommodated by her daughter in South Africa and would likely also receive some financial assistance from her son [and] from her other children.

   ·In relation to the applicant’s claims as to her psychological health she explained that if she was to return to South Africa, she would be uncomfortable about having to live with her daughter and her husband as she did not know her daughter’s husband very well and the security situation in South Africa was also a worry to her given her age.

   In response to the Tribunal discussing the country information as has been outlined above at paragraphs 23 to 32 and giving the applicant and her daughter an opportunity to review this information, the applicant’s representative her daughter, on the applicant’s behalf said: “what can you say, you can’t talk against these statistics”. As her representative the applicant’s daughter also thanked the Tribunal for listening to her mother and told the Tribunal that she had over the past six years whilst her mother had been residing with her in Australia noticed that her mother had become more relaxed since she had arrived in Australia but that the process of seeking a visa had made her parents much older.

   The applicant in conclusion told the Tribunal that she loved Australia and was comfortable here where she had grandchildren in Queensland and Tasmania. She further told the Tribunal that she had a better and stronger connection to her children in Australia than she enjoyed with her children in South Africa and [a country]. She further said, that she would be very happy and thankful if she could stay in Australia where she is comfortable, and, that Australians don’t know what they have here.

   FINDINGS AND REASONS

   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

   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

   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.

   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.[12] 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.[13] This is consistent with the established proposition that it is for the applicant to make his or her own case.[14]

   [12] Section 5AAA of the Act.

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

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

   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.

   The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[15] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[16] 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.

   [15] Fox v Percy (2003) 214 CLR 118.

   [16] 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.

   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.[17] A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[19] which both provide useful guidance for this Tribunal.

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

   [18] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as

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

   Having had the benefit of being able to observe and interact with the applicant who appeared before the Tribunal in person to give oral evidence, the Tribunal found that the applicant understood the questions of the Tribunal and was a cooperative witness who promptly and relevantly replied to the Tribunal’s questions and when she was uncertain or confused as to the question sought clarification and further explanation from the Tribunal. Although at times the applicant’s recollection of some of the details of specific events especially the dates and or sequence of events was at times incomplete, the Tribunal found the applicant to be an honest witness and generally a reliable historian as to his past life in South Africa and her recent new life in Australia.

   Fears as to an ability to subsist in South Africa

   The applicant claims that although she is eligible for a government pension of 3000 Rand a month, she will be unable to sustain herself if she was to return to South Africa.

   It was the applicant’s evidence at the hearing that although her expected government pension is inadequate, she would likely be provided with accommodation from her daughter and son-in-law and as in the past receive further financial assistance from her adult children in South Africa, Australia and the [a country].

   Although the Tribunal finds that the applicant’s fears as to her ability to subsist in South Africa do not relate to any of the reasons outlined in s 5J(1)(a) of the Act, the Tribunal notes that it is also satisfied that the applicant can subsist in her retirement in South Africa through her pension, her savings from the sale of the family farm and the financial assistance of her adult children, one of which can provide accommodation to her in South Africa.

   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 she was in the reasonably foreseeable future to return to South Africa on account of her claimed inability to sustain herself.

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

   Additionally, the Tribunal has separately considered whether the applicant faces a real risk of suffering significant harm as a result of her fears as to her ability to sustain herself in South Africa. In that regard, first, the Tribunal finds that the applicant’s fears are not reasonable given that she can be accommodated by one of her daughters in South Africa and that she will be financially assisted by her adult children in South Africa, Australia and the [a country]. Additionally, the Tribunal notes that issues as to the availability of pensions, social security, government housing and the economy of South Africa more generally are all matters faced by the population of South Africa and not faced by the applicant personally and as such taken not to be real risk: s 36(2B)(c) of the Act.

   Forced sale of farm and the new owners having ‘marked’ her, followed her and having been responsible for her attempted carjacking

   Under questioning at the hearing, the applicant told the Tribunal although she and her husband had sold their farm, they had felt compelled to do so because of the social policies of the government and the social climate. She told the Tribunal that although she did not recall the specific threats that had been made against them there had been threats made to her and her husband to sell their property and to leave the property after the sale, notwithstanding arrangements having been made for them to continue to reside on the farm for a period after the sale.

   It was also claimed by the applicants that they had been ‘marked’, followed and that she had been the target of an attempted carjacking in Pretoria by the new owners and/or new staff of their farm.

   However, at the hearing the applicant told the Tribunal that she and her husband had not had any further contact with the new owner of the farm or any of the staff from the farm after they had left the farm. Further during the following years when they resided in Pretoria for approximately three years after they had left the farm, they had not been harmed and/or threatened with harm nor had they had any contact in any form with the new owner of the farm or any of the staff of the farm. The applicant did not provide any information and/or evidence as to any incidents of having been ‘marked’ and/or followed by any persons associated with the sale of the farm, the new owner of the farm and/or any staff of the farm.

1. Additionally, it was the applicant’s evidence that when she and her husband had visited South Africa in 2019 for about [number] days after having made their application for the protection visas, they had not experienced any problems in South Africa; they had not been harmed and/or threatened with harm; and, they did not see or otherwise have interactions with any one associated with the sale of the farm, the new owners and/or staff of the farm.

2. It was also the applicant’s evidence at the hearing, notwithstanding her earlier claims of the new owners of the farm having been responsible for the attempted carjacking that she had not recognised any of the carjackers in Pretoria as being associated with and/or having been the new owner and/or staff from the farm.

3. Therefore, the Tribunal rejects the entirety of this claim as to facing harm as a result of the purported forced sale of her farm and finds that the applicants’ sold their farm voluntarily and after such sale they were not ‘marked’, followed, further threatened with harm and/or carjacked by any persons associated with the sale of their farm, the new owners and/or staff of the farm.

4. The Tribunal rejects this claim on the basis of a lack of any credible evidence having been provided in support of this claim to the Tribunal.

5. Therefore, on the evidence before it, and for the reasons outlined above, and although being satisfied that the applicants were threatened prior to and during the sale of their farm but not otherwise harmed, and given they did not have any later contact with anyone associated with the sale and/or the new owners of the farm in the almost three years they continued to reside in South Africa and/or during their [2019] visit to South Africa; the Tribunal also rejects this claim on the basis of credibility. In this regard, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm if she was in the reasonably foreseeable future to return to South Africa on account of the sale of her and her husband’s farm in South Africa.

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

7. Additionally, the Tribunal has separately considered whether the applicant faces a real risk of suffering significant harm as a result of the sale of her farm in South Africa. In this regard, the Tribunal finds for the same reasons that have been outlined above at paragraphs 66 to 73, that it 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 on account the sale of her farm in South Africa.

   Crime – security situation – race (white South African)

8. The applicants claimed that South Africa is lawless; the applicant prior to arriving in Australia had been hijacked; the government cannot guarantee safety due to the high level of crime; as white South Africans they fear being tortured, raped and killed; and, as they are elderly, they cannot defend themselves.

9. At the hearing it was the applicant’s evidence that she had, first, applied for protection on the advice of her Australian citizen children after she had informed them of her experience in Pretoria when four men had tried to carjack her. Second, she further stated at the hearing that South Africa was not really safe and that the attempted carjacking that she had experienced prior to coming to Australia, if successful, would have been the third time that she and her husband had been victim to the theft of a car in South Africa. The applicant had also stated at the hearing that given her age and health she did not feel safe returning to South Africa because of the prevalence of serious violent crime.

10. Noting the applicant’s evidence that she upon any future return to South Africa would be able to reside with her daughter and son-in-law in their large house and that she would be financially supported by them and her other children in South Africa, Australia and [a country]; and further noting; that but for the three incidents involving cars she and her husband had not otherwise been victims of any serious violent and/or gender-based violence in South Africa including during her [visit] to South Africa in 2019; the Tribunal is not satisfied that the applicant’s claims as to her fears for her safety are credible.

11. The Tribunal has also considered the relevant country information that has been outlined above at paragraphs 23 and 28 to 32 as to the security situation in South Africa and the prevalence of crime. In that regard, the Tribunal finds that although crime is prevalent throughout South Africa it is random and is not motivated by race and there is no evidence to support the applicant’s claims that she would be targeted because of her race or being a white female in South Africa. As such, the Tribunal finds that the applicant upon any return to South Africa  would face the same risks of being a victim as would any other person in South Africa.

12. Additionally, with reference to the country information as has been outlined above at paragraph 23 as to the SAPS, the Tribunal finds that notwithstanding that some corruption exists within the SAPS that the police service is an effective service that has decreased its response times to crimes in recent years and increased its operations against serious criminal offending and is supported by an independent judiciary.

13. Therefore, on the evidence before it, and with reference to the country information which was acknowledged by the applicant, the Tribunal finds that notwithstanding serious violent and gender-based crime is pervasive throughout South Africa and the applicant holds a subjective fear of being targeted by criminals generally and more specifically as a white South African such violence is random and the serious harm feared by the applicant is not systematic and discriminatory conduct as required by s 5J(4)(c) of the Act.

14. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if she was to return to South Africa in the reasonably foreseeable future on account of the security situation in South Africa and/or her being a white South African.

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

16. Additionally, the Tribunal has separately considered whether the applicant faces a real risk of suffering significant harm as a result of the security situation, prevalence of crime in South Africa and her being a white South African. As outlined above at paragraphs 77, 82, the Tribunal finds that these claims are not credible on the evidence before the Tribunal. Further, the Tribunal notes that the security situation and pervasive and random nature of serious violent and gender-based crime in South Africa together with the limitations of the SAPS as has been outlined above in the country information, are risks that are faced by all South Africans, white and black, and as such in accordance with s 36(2B)(c) of the Act, there is not taken to be real risk that the applicant will suffer significant harm.

17. Therefore, on the evidence before it, and for the reasons outlined above, 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, on account of the security situation in South Africa and on account of her being a white South African and/or a elderly female.

    Psychological health

18. The applicants claim that they experienced a decline in their psychological health after living in South Africa. Additionally, at the hearing the applicant’s representative and daughter, told the Tribunal that she had observed that the applicant, her mother, had become more relaxed after having resided in Australia for the past six years.

19. It was the applicant’s evidence at the hearing that although she could reside with her daughter and son-in-law in South Africa where she would also be financially supported by her adult children in South Africa, Australia and [a country] she would likely feel uncomfortable living with her daughter and son-in-law as she did not know her son-in-law very well and she was comfortable in her life here in Australia. It was also the applicant’s evidence at the hearing that given her age she felt nervous about returning to South Africa given the level of crime there, and this also made her feel uncomfortable about the prospect of returning to South Africa.

20. However, as noted above the applicant notwithstanding these fears as to her psychological state and well-being nonetheless returned to South Africa in 2019 for a period of about [ days] having earlier in 2018 made her application for protection. The Tribunal finds that the applicant’s visit to South Africa in 2019 to have been highly inconsistent with her then and now having any significant psychological concerns and/or facing a real chance facing any serious psychological harm upon as to a return to South Africa.

21. Additionally, noting the medical letter that the applicant provided to the Department which is dated 16 October 2018, and states that she is in ‘sound mental and physical health’ as has been identified above at paragraph 18; and noting, that no information and/or evidence has been provided to the Tribunal in contradiction of that opinion; together with the applicant’s evidence that a return to South Africa given her age would be uncomfortable and may cause her some stress and concern; the Tribunal finds that it is not satisfied that such feelings of anxiety do amount to serious or significant harm.

22. Therefore, on the evidence before it, and for the reasons outlined above the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if she was to return to South Africa in the reasonably foreseeable future on account of suffering any psychological harm and/or anxiety and stress.

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

24. Additionally, the Tribunal has separately considered whether the applicant faces a real risk of suffering significant harm as a result of suffering any psychological harm and/or anxiety and stress upon any future return to South Africa. For the same reasons that have been outlined above at paragraphs 86 to 89; 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 on account of her claimed fear of suffering any psychological harm and/or anxiety and stress.

    Refugee criterion

25. 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.

26. 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

27. 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.

28. 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 complementary protection criterion; and, that the general security situation in South Africa are factors that are faced by the population at large, s 36(2B)(c) of the Act, and that the applicant if she so needs to do so, can obtain protection from an authority of South Africa, s 36(2B)(b) of the Act; that 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.

29. 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

30. Additionally, there is no suggestion that the applicant satisfies s 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.

31. As the Tribunal has found that the applicant does not meet the refugee and complementary protection 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 Australia.

    MINISTERIAL INTERVENTION

32. 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’.

101.   In this regard, the Tribunal acknowledges the personal circumstances of the applicant in so far as her age, financial situation, her health and connections to family in Australia and their financial, emotional and accommodation support.

102.   When considering all of the applicant’s circumstances, the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as she can continue to be accommodated by her daughter, an Australian citizen, and financially and emotionally supported by her daughter and son who both reside in Australia with their respective families and are both Australian citizens.

1. 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 and 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 applicant’s case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:

   ·Compassionate circumstances regarding the applicant’s age; uncertainty as to her ability to support herself and secure accommodation in South Africa; her likely emotional feeling of isolation and stress that will result from a return to South Africa; and, that presently her ongoing financial and accommodation needs are met by her Australian citizen daughter, and that she is emotionally supported here in Australia by her Australian citizen children and their respective families.

   DECISION

104.   The Tribunal affirms the decision not to grant the first applicant [a] protection visa and the Tribunal does not have jurisdiction in the matter of the second [applicant].

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.

…

re-issued 1 July 2017 (Refugee Law Guidelines).