2007245 (Refugee)

Case [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…

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2007245 (Refugee) [2024] AATA 4408
Case
[2024] AATA 4408
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicants, who were white South African citizens, claimed to fear persecution in South Africa due to their race and the circumstances surrounding the sale of their farm. The court was required to determine whether the applicants had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and whether there was a real chance of persecution upon return to South Africa. Alternatively, the court considered whether there were substantial grounds to believe that the applicants would suffer significant harm as a necessary and foreseeable consequence of removal to South Africa, as defined in section 36(2A) of the Act.

The court considered various documentary evidence, including the applicants' visa applications, media articles, medical letters, police clearance certificates, and a submission from the applicants' daughter. The delegate's decision, which was under review, had found that the applicants were able to subsist in South Africa due to their pension, proceeds from the farm sale managed by their son, and financial support from their children. The delegate also concluded that the attempted carjacking experienced by the primary applicant was random and opportunistic, not a targeted attack by parties associated with the farm sale. Furthermore, the delegate found that the applicants' travel back to South Africa after lodging their protection visa claims undermined their credibility and the claimed urgency of their fears.

The delegate ultimately found that the applicants' fears regarding "white genocide" and general crime were not well-founded, referencing country information and the fact that they had travelled safely within South Africa. Consequently, the delegate was not satisfied that the applicants met the criteria for being refugees under section 5H(1) of the Act. Regarding claims of homelessness, the delegate determined that the applicants' family support network and social security in South Africa would enable them to find accommodation. While acknowledging potential hardship, the delegate found no indication that the applicants would face arbitrary death, torture, or cruel, inhuman, or degrading treatment or punishment, and therefore was not satisfied that they would suffer significant harm upon return. The decision under review was affirmed.

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 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 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 28th 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

Decision

Reasons for decision

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

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 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 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 28th 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