2012790 (Refugee)

2012790 (Refugee) [2021] AATA 4972 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012790
COUNTRY OF REFERENCE:                   South Africa
MEMBER:P. Wood
DATE:22 October 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 October 2021 at 2.05pm
CATCHWORDS
REFUGEE – protection visa – South Africa – political opinion – contributed to conviction of prominent African National Congress (ANC) members – anti-corruption witness –fears persecution from the African National Congress – victim of false criminal charges – applicant’s oral evidence rehearsed and lacking detail – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 499, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of South Africa, applied for the visa on 27 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).
The applicant appeared before the Tribunal on 5 August 2021 date to give evidence and present arguments. He was represented by his migration agent, [name deleted].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application as follows.
BACKGROUND
The applicant provided the following relevant information in his protection visa application:
·     The applicant is a [age]-year old man, born [date] in [Town 1], Gauteng, South Africa.
·     The applicant can speak, read and write in English and Afrikaans.
·     The applicant stated he is of South African ethnicity and Old Apostolic faith.
·     The applicant claims to have South African citizenship by birth and a copy of his passport, held upon the Department file, confirms that he is a citizen of South Africa.
·     The applicant claims to have been in a de facto relationship since [June] 2016.
·     The applicant reported former employment in South Africa including as [specified occupations] and in [a specified workplace]. The applicant reported former employment in Australia including as [an occupation].
In summary, the applicant claims that he left South Africa because he fears persecution from the African National Congress (ANC) on the basis of his political belief.
Migration history
The applicant’s migration history contained in the decision of the delegate, a copy of which was provided to the Tribunal, is as follows:
·     The applicant arrived in Australia on [date] March 2015 on [Temporary Visa 1].
·     On [date] March 2015 the applicant departed Australia, returning on [date] April 2015.
·     On [date] July 2015 the applicant departed Australia, returning on [date] July 2015.
·     On 28 October 2015 the applicant applied for [Temporary Visa 2] which was granted on 16 June 2016.
·     On 17 December 2018 the applicant applied for [Temporary Visa 3] which was refused on 20 October 2019. On 15 April 2020 the Tribunal (differently constituted) affirmed the refusal.
·     On 6 September 2019 the applicant’s [Temporary Visa 2] was cancelled under s.109. On 4 February 2020 the Tribunal (differently constituted) affirmed the cancellation.
·     On [date] September 2019 the applicant was placed in immigration detention.
·     On 17 April 2020 the applicant was refused a Bridging visa under s.501 of the Act. The applicant commenced review at the Tribunal (differently constituted) however he withdrew this review on 22 July 2020.
·     The applicant applied for a XA-866 Protection visa on 27 April 2020.
The applicant’s claims for protection are contained in his protection visa application and attached statement. The Department interview was conducted on 20 May 2020. The applicant’s protection visa application contained the following claims:
Select the country or countries from which this applicant is seeking protection and cannot return to
South Africa
Provide reasons why this applicant left that country or those countries:
(Please read narratives below in conjunction with applicant's
detailed application in separate attachment)
Applicant left South Africa and did not want to return because he
harboured well founded fear of risk of serious harm, risk of liberty
and of imminent deprivation of life.
He was persecuted and systematically harassed by the South
African government because of his political belief.
Australian government which cancelled my visa under 501
effectively risks refoulement if I am returned to my home country.
For if he were returned to his home country, applicant will be at
risk of significant harm in foreseeable future; he faces real risk of
inhuman treatment; and possibly deprivation of life.
Applicant is entitled to claim protection under the complementary
protection provisions.
Applicant was accused of breaching the 4020 requirement for
not disclosing the crimes he committed in South Africa. He was
also accused of sexual offences which were drummed up by
my ex wife. He could not understand as to why my ex agent
[Mr A] had not applied for 4020 waiver on my behalf when he
first lodged [Temporary Visa 2] and then [Temporary Visa 3] applications. When I
instructed him to prepare and lodge the [visas],
I had explained that I committed those crimes( as described
in the South African Police Clearance Certificate attached)) as
instructed by my [superior]. In the case [number deleted],
I stood trial together with Mr [B] for [fraud]; and Mr
[B] was sentenced to 75 years of imprisonment whereas I had
4 years of suspended sentence. I wish to bring attention to the
Department that Mr [B] is now [Government Official 1] of South
Africa.
In the case of [number deleted], my other co accused
was Mr [C] who was sentenced to life imprisonment for
fraud. I was given a suspended sentence of 5 years. Mr [C]
is now [Government Official 2] of South Africa!
My visa predicament is a clear case of political persecution
perpetrated by the South African police. My records was in fact
cleared in 1993 by [Mr G], ([a member of] the old South African police)
The persecuteur agents are [Mr B] [Government Official 1] and [Mr C] [Government Official 2] of South Africa! They represent
the state which cannot and will not protect me!
Did this applicant experience harm in that country or those countries?
Applicant selected ‘yes’.
Give details:
Since ANC came to power in 1993, applicant took a low key
approach to his social life especially the church activities he get
involved with. He did not want to attract the attention of state
and its agents especially the South African police who were
notoriously corrupt and viciously violent!( see attached news
cutting of Eight policeman guilty of barbaric killing of a taxi
driver-.
He exercised the highest degree of discretion in going about his
life . Lie low and survive" was his primary objective.
JJ Kirby once said" discretion is another form of persecution" I
was being persecuted for my political belief!
Did this applicant seek help within the country or those countries after the harm?
Applicant selected ‘no’.
Give details of why this applicant did not try to seek help:
While he remained in South Africa, applicant had always feared
for the safety of his family and himself. He had a a nervous
breakdown. For he learnt from reliable sources that at least four
of his former colleagues from the old regime died in car accident.
[Mr G and Mr I and] the magistrate who
gave him suspended sentence and one other fellow church
member had all died unnatural death, mysteriously!
Applicant did not believe that state will protect him!
He just has to get out of harm's way to be in Australia to be
protected..
Did this applicant move, or try to move, to another part of that country or those countries to seek?
Applicant selected ‘no’.
Give details for why this applicant did not try to move to another part of the country or those countries
Judiciary in South Africa is not independent; the police force is
corrupt ! Moving to any parts within South African will not get
you protection!
Explain what the applicant thinks will happen to them if they return to that country or those countries:
Now that my ex wife [named] had blown my cover', I run risk of significant harm in foreseeable future should I return home.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Applicant selected ‘yes’.
Give details:
Risk of personal liberty; and certain death.
Police of south Africa and the ex ANC terrorists.( This includes
[Government Official 1])
Because I duped him in the criminal trial at which he was
sentenced to 75 years of imprisonment
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
Applicant selected ‘yes’.
Give details:
Applicant is claiming refuge status on Convention ground- that
he was being persecuted for his political belief.
He is also seeking protection from the Australian government
under the complementary protection provisions because he is
at risk of significant harm ; suffer inhuman treatment and face
almost certain death if he were returned to his home country.
By cancelling his visa, Australian government risks refoulement if
he is returned to his home country
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
Applicant selected ‘no’.
Give details about why this applicant is unable to relocate:
It is futile to move or migrate internally within South Africa to
avoid harm.
Applicant is in a de facto relationship with [Ms D],
an Australian citizen( citizenship by birth). The relationship is
genuine and continuing.
In summary the applicant’s claims are:
a)The applicant was recruited by [police] to act as a private citizen, as he was a well-respected member of his Old Apostolic Church.
b)The applicant was told to stand trial with a number of other people and he was sentenced to a suspended sentence while they received significant sentences. The applicant was told that these convictions would not be officially recorded.
c)The persons who the applicant helped were subsequently released from prison and their records were cleaned due to anti-apartheid legislation. They now occupy high positions in the South African Government and the South African Police Service (SAPS) is attempting to discredit the applicant as a criminal due to what he knew about them.
d)People that the applicant worked with in the case have died in suspicious circumstances and the applicant fears that he will suffer the same fate.
e)After the ANC led government took power, the applicant kept a low provide and moved around South Africa. However since the SAPS is a national organisation he cannot escape it.
f)There is a particular General level official who “has it in” for the applicant, after the applicant was involved in prosecuting him for corruption.
g)The ANC is looking for him and he will be picked up at the airport and taken away as soon as he lands in South Africa.

The applicant provided the following to the Tribunal:
a)a letter from [Law Firm 1] acting for the applicant, dated 24 June 2020
b)a letter from [Law Firm 1] acting for the applicant, dated 29 July 2020
c)an undated letter from [the applicant’s] migration agent
d)a contract and business documents relating to [Company 1]
e)a three-page handwritten response to the AAT hearing invitation in this matter
f)a nine page document entitled “personal plea” dated 22 July 2021
g)a letter of support from Mr [E] dated 19 June 2021
h)a letter of support from Ms [F] dated 28 June 2021 and an email from the same author dated 21 June 2021, 3.13am
i)a scanned book cover and hard copy [book] authored by the applicant entitled [deleted]
j)a letter of support dated 20 June 2021 signed by the applicant’s partner [Ms D]
k)a claimed “arrest warrant” in the name of the applicant
l)a decision record, including reasons for decision, of Member [name deleted] in case [number deleted] affirming a decision of a delegate of the Minister concerning a [visa] application made by the applicant
Following the Tribunal hearing, the applicant’s representative provided the Tribunal with a news article, a picture of a judge, a police certificate and a psychologist’s report from [Mr J] under the cover of an explanatory email dated 17 August 2021. The Tribunal has read and had regard to this documentation (and notes – as set out below – where this information was also provided to the Department.
The applicant provided the following evidence and submissions to the Department:
a)Personal statement of the applicant (undated) which is in the following terms:
Claim for protection:
I left South Africa and did not want to return because I harbour well-founded fear of serious harm and imminent deprivation of life.
Due to the cancelation of my [Temporary Visa 2] under the 501 rule I am now at risk of refoulment if I am returned to South Africa.
My visa cancellation includes the accusation of breaching the 4020 requirement for not disclosing the criminal convictions recorded against my name. I refute these convictions as they are recorded. They are not crimes that have been committed but rather only recorded against me as I was under secondment by the [Police]. I was seconded by [Mr G] of the [Police] [who] was a member of my church (Old Apostolic Church which was the largest church in South Africa at the time). I was a highly regarded and well-respected member of my church and in a position of trust. I was well-known and it was for this reason that [Mr G] asked me, as a private citizen to help them with some deep corruption that was occurring throughout the police force and judiciary including [a particular] sector, that they could not discover. [Mr G] believed that I would be useful as I was not known within these circles by anyone but as a trusted and well-regarded member of the church and wider community I might have better chance to find out what was really going on. I was able to uncover a deep and wide network of fraud, theft, corruption running to the highest levels of the police, the judiciary and government officials of that time.
It is also noted on my visa cancellation that in May 2015, I have been accused of sexual misconduct of my infant daughter by my ex-wife. This is an accusation levelled at me only for the purpose of my ex- wife’s divorce case against me. I have never been served any documentation in relation to this matter. This matter was rescinded was not recorded in our final divorce settlement. It should be noted also that the first divorce case that my ex-wife instigated was thrown out of court and she was dumped by her lawyer. Only when we agreed on terms with her second lawyer some three years later did our divorce become finalized. None of the accusations were ever recorded in the second divorce case as they were not taken to court.
It is also recorded in my visa cancellation that I was accused of sexual misconduct in 1997. I also rescind this matter. This was not a case that went to trial and the matter was dropped when the accuser admitted to lying. This information is not recorded on my South African Police Check and I cannot understand why this information has been made available to the Department of Immigration in Australia as these are not actual cases. I was never formally accused or charged or tried. These matters did not go to court. There is nothing recorded against my name in either of these matters. My name does not appear on any sexual offenders register. These matters were accusations only and have been proven to be false by the relevant authorities.
I have only now been made aware of the 4020 by my new migration agent and am astounded as to why my previous migration agent did not present this option to me upon receipt of the South African Police Clearance when my secondment to the [police] was explained to him.
In the case of [number deleted] I was told to stand trial with fellow accused Mr [B]. Mr [B] was convicted of fraud, corruption and embezzlement. He was sentenced to 75 years imprisonment. He was taken to prison on that day. I was sentenced to 12 months suspended for fouyears. I did not serve any time in prison. I wish to bring attention to the department that Mr [B] was released from prison in 1995 under Nelson Mandela ANC government. He is currently [Government Official 1] in [South Africa].
In the case [number deleted], one of the co-accused was Mr [C] who was a [Occupation 1] at the time, was sentenced to life imprisonment for corruption, theft, and embezzlement. It was recorded that I was sentenced to 5 years suspended sentence. Again I did not serve any time in prison. [Mr C] was also released in 1995 under the Mandela ANC government. He went on to be a [Government Official 2] in South Africa but in 2015 stepped back and is now a [Occupation 1].
In the case [number deleted] I was charged with 8 years imprisonment conditionally suspended for five years and a [fine]. All of these cases I was assured were recorded for the purpose of authenticity against the ones who had actually committed the crimes. I was told that these convictions were only laid in order to keep me safe against these criminals as they were known even at that time to be violent and ruthless against any enemies. I was told clearly that these convictions would not be recorded in any way and that they would be struck from the records as they were not really convictions as I had not committed any of these crimes.
All of my actions during these times were due to a private secondment from [police]. Please note that this is NOT the same as the current South African Police Service. The South African Police Service came into existence with the instatement of the Mandela ANC government in 1994. The South African Police was disbanded by constitution in 1994 by the ANC government and the South African Police Service was created.
In 1994 President Mandela established the Truth and Reconciliation Commission in order for the country to move forward from apartheid. The Promotion of National Unity and Reconciliation Act No 34 of 1995 was constituted for ordinary citizens to “demonstrate their commitment to reconciliation…even if they did not commit gross violations of human rights”.. The function was to forgive all crimes except murder that had been recorded prior to 1994. All citizens who chose to participate in this process were told to confess to their crime and they would be forgiven. What occurred was that previous upstanding officers of the law were coerced into false confessions. These people were all sentenced to long prison terms and many have died in prison of deprivation and poor treatment.
What also occurred during this time was that most criminals who were imprisoned prior to 1994 (as in the cases I was involved with) were released under anti-apartheid legislation. This is how Mr [B] and [Mr C] have managed to become high standing members within the ANC government. However, when I was working undercover, they were found to be running high level fraud and corruption activities against ordinary people of South Africa. As an undercover person I was able to gather this information but since the ANC is in power and these people are in high positions, I am no longer safe in South Africa. They are aware of my existence and know that it was me who put them away.
My records were cleared in 1993 by [Mr G] my handler throughout these investigations, but these records are now “uncovered” so that the new South African Police Service can discredit me and persue me as a criminal within South Africa because of what I know.
The current government and their agents work with private citizens in South Africa and outside to build false cases and accusations against people such as myself in order to seduce or coerce us back to our country so that they can eliminate us as we are a threat. These individuals and organisations will create any false evidence to create misleading and false information on me or anyone that they feel is a threat to them.
My visa predicament is a clear case of political persecution perpetrated by the South African Police Service. Now that they are aware of my existence and know that it was me who put them away I am not safe. With Mr [B] [Government Official 1] and [Mr C] [an Occupation 1] knowing who I am and what I did, I am not safe to be in South Africa under any circumstance.
Question: Did the applicant experience harm in that country?
Yes
Type of harm and person responsible and why?
Even though I was not aware that the recorded convictions had not been erased as I was informed I knew that with the ANC government I was not safe. When I saw that the people that I had put away had been released I knew that I would not be safe if I was too visible. I could see that the new South African Police Service were dangerous and corrupt and very violent and I feared for my personal safety and for that of my family. I had to take a very low key approach to my life to ensure that I would not be noticed by those who I had caused to be convicted in the past and who were now in power. This caused me to retreat from public life and to leave my church and deep faith due to fear that I would be discovered as this was how I was seconded. [Mr G] was a member of my church and I was a senior member of the Old Apostolic Church. I was very well known and highly respected. I could not risk the lives of my family. I visibly and consciously distanced myself from my children, my siblings and their children in order to keep them safe from these people as they are known to harm extended families in order to inflict as much pain and suffering on their intended victims as possible.
Attached is a news cutting of violent attacks in South Africa.
Question: did the applicant seek help within the country after the harm?
No:
Give details:
Whilst I was still living in South Africa I was so worried for the safety of my family that I suffered a nervous breakdown. I had to lie low and survive. I have found out over the years that everyone who has been involved with convicting and sentencing the criminals in these cases has died mysteriously and violently. [Mr I and Mr G] died under mysterious circumstances and the cases have never been pursued. [A named person] was a senior policeman [and] worked with me on these cases. He was also [serving in a positiion at] our church. He was murdered in cold blood at his shop in 2019. The CCTV clearly showed a senior police officer present at the time but when it came to court, the police blatantly denied that it was him even though his face could clearly have been seen and so the case was closed and no charges were laid. [Another named person also] worked on these cases with me. He was crushed to death when his ute was pushed down on him in his garage in 2015 after I came to Australia. There are witness accounts but no charges have been laid and there is no case. These are men that I worked closely with on these cases which shows that the government and its agents are tracking down anyone who was against them in the past and are instructed to kill them. They face no accountability for these actions. I re-iterate my position that it is not safe for me to return to South Africa as there is an active campaign against anyone who worked against these men.
I now seek protection from the Australian Government to save me from this same fate.
Question: did the application move or try to move to another part of the country for safety.
Yes – over the years I have moved locations within South Africa in order to keep a low profile and be out of harms way of these people however the South African Police Service is a national organization and there is no separate divisions that could offer any level of protection for me.
Question: explain what the applicant thinks will happen to them if they return?
At the very least, I will be at risk of personal liberty. My worst fear is that I will be liquidated by the ANC government or their agents in a manner that is not pleasant or natural. These people have no compunction to kill anyone they deem a threat to them or with knowledge of who they truly are.
Question: does the applicant think they will be harmed if they return to their country? And how?
From what I understand from the few friends I have left alive, the ANC is now looking for me. I believe that I will be collected at the airport as soon as I land in South Africa and taken away. I do not believe that I would be alive for very long after that time. I believe that this would happen so quickly that there would be no time for anyone to do anything about it. Because of what I know about these people and because of what they have done to anyone else who has been involved in these cases, it shows that they have a clear mandate to kill anyone who was involved and that there would be no ramifications for that.
b)Statement titled ‘Brief history of [the applicant] since I have known him’ dated 28 April 2020 (no author)
Brief history of [the applicant] since I have known him – 28 April 2020
These are the events that I have witnessed and experienced since knowing [the applicant] to give some context to his current emotional state. I met [the applicant] in July 2015. He had been in Australia a few months. He came to me for a [specified therapy]. (I have been practicing this therapy for over 30 [years]) He told me that he had been invited to re-locate to Australia with his young family to build a [device] (that he had already built a working prototype for in South Africa, we have video evidence for this, but it may be with [Mr A]?)
He received written confirmation that he would receive a [temporary visa] and all his relocation expenses would be paid (we have evidence of this). As he was looking for a safer environment for his family he agreed to come.
Upon arrival nothing was as it was offered and within weeks he learned that his wife and children would not be joining him, and that she was in fact filing for divorce. Under this stress [the applicant] was then subjected to a number of changes to his MOU and visa category which eventually saw him sign (under duress) the original [Temporary Visa 2]. This all occurred before I met him.
When I met [the applicant] he was extremely distraught at losing his family and did not know how he could be safe or secure anywhere given the way he was being treated since arriving in Australia by [Company 1]. He was living in a two bedroom apartment in [a suburb] and unable to sleep and jumping at any noise and shadow that he heard and saw and smoked heavily. It was challenging for me to begin a relationship with a person in such an
agitated state and to be honest I was hesitant as I could see that this was going to be a process for him to settle.
But [the applicant] has always displayed resilience and intelligence. He could see that we were a good match in many ways and that Australia was generally a safer country to live in than South Africa and he was determined to do his best, he worked to honour the visa requirements and meet the obligations he had signed. I enjoyed our conversations and activities and believed that there was potential for happiness. It should be noted that once we began dating I stopped treating [the applicant] as a professional requirement.
During his time with [Company 1], I would receive up to 5 or 6 calls a day from [the applicant] in an agitated state about something or other that was happening within [Company 1] as he realised how far they would go to take his IP andruin his life. [The applicant] then believed that his ex-wife and others in South Africa were mounting a targeted campaign
against him to discredit him and gain any monies from IP that they could for this [device] and any other invention that he created. [The applicant] spoke of this often and from the changes to the original agreement and promises made by [Company 1], the other evidence that I have to support this is the email my daughter received in December 2018 and copies of protection orders and warrants that [the applicant] says he did not receive and are dated after he was in Australia. He could not understand how there could be a warrant for his arrest when he was not charged with a crime nor served any papers. His ex-wife knew where he was at all times as he was trying to speak with his children which he was never allowed to do. She did not accept or return any of his written or verbal communication. There may be something in the original divorce application but off the top of my head I cannot recall. I would need to look through that and again some of this is with [Mr A]. I can produce copies of the original MOU and some correspondence with [Company 1] but much of it sits with [Mr A] now as he was going to follow this through for us.
As things were deteriorating with [Company 1], an intermediary stepped [in]
and offered a suggestion that [Mr H] might take over [the applicant]’s [Temporary Visa 2] to offer [the applicant] a way to stay in Australia legally and have some protection and safety. [Mr H] and [the applicant] met and [Mr H] agreed to this. I can produce some paperwork on the visa application and the [original] contract. [Mr H] was excited to invite [the applicant] to his premises and allowed him space and supported the purchase of equipment for [the applicant] to prepare various products on behalf of [Mr H] and the company he and [the applicant] established under [Mr H]s name for sale to market of any new products that [the applicant] invented. [Mr H] and [the applicant] spent much time discussing various products and plans for expansion of [the applicant]’s workspace at [suburb] to better be able to develop more products. Their relationship was good for a time but [Mr H] became impatient for products to be ready for market without providing proper follow up or testing other than [the applicant] working on it and so things became a little strained and [the applicant]’s stress levels increased again. [Mr H] began insisting that [the applicant] would have to repay any monies that [Mr H] had invested in [the applicant] during his time there.
Throughout this time [the applicant] would occasionally receive an email from [Company 1] asking for repayment of monies outstanding, without ever specifying what they were for and threatening legal action if payment was not made. These were ignored until the email was received by my daughter in 2018. We believe that this was a tactic in order to pull in my family to get to [the applicant] as now my daughter is believing what she has been told by them and not by me which puts a strain on my family relationships. My daughter worked for a time for a company that is associated with [Company 1] and this is in fact, how [the applicant] and I met originally.
When [the applicant] and I started going out, I was targeted by some of [the applicant]’s acquaintances and business associates in South Africa. My name and photo was lifted from my [social media] page and distributed around as [the applicant]’s new wife. This was, of course not true as we had only been going out for a couple of months and had not begun our defacto relationship. I received calls from South Africa at all hours of the night. I had to change my [social media] page and profile and my mobile phone number which was my original number from when I first got a mobile phone. This was very distressing for me as I am a quiet person who has never experienced anything like this before. I no longer have a photo on my [social media] profile page because of this incident.
My experience throughout this time is that [the applicant] has been continuously harassed by various elements in Australia and South Africa. We have quiet times for a short period where we can enjoy each others company and being in our garden and walking in the countryside and make plans for our future, but just as we seem to settle, something comes along to pull the rug out from under us. [The applicant] has been generous towards me buying me a new car and providing a comfortable living. This of course is now under threat as I constantly face eviction due to my inability to pay the rent with [the applicant] not here. I have had to sell our cars and even use my replacement older vehicle as collateral for a loan to make one of the payments to [Mr A]. I have sold of much of our furniture as well as I try to keep this address viable so that [the applicant] has somewhere to come home to. I can go and stay with my daughter but because of the email that she received she will not take [the applicant] into her house.
I am a trusting person by nature in that I believe that people will tell me the truth which I find to mostly be the case. I believe that the truth wins out in the end and anyone who does not live by that will be discovered eventually so I leave it to the process to determine that. However I hold a healthy skepticism in order to maintain my own mental health and wellbeing. I have found this to be a successful formula for my life.
I have not experienced any untruthfulness in my time with [the applicant] and the accusations that have been made against him affect him deeply. He willingly came to Australia in search of a better life for himself and his family. To have any sense of security and safety ripped from under him without any warning has caused him great stress. During times when things are settled his smoking reduces and he sleeps calmly, but when he is thrust again into situations where he is accused of things he has not done his smoking increases and his nightmares return. He wakes in a sweat after only an hour or so of sleep. This pattern can continue for weeks.
Since we have been together [the applicant] has never displayed any behaviour that I would consider to be violent or suspicious. He is an honest man. He has never served any time in prison in any country. When he received information that his ex-wife had accused him of sexual misconduct with his infant daughter he realised the depth that she would go to destroy him. He commented to me that this is a tactic employed in bitter divorce cases in South Africa and was not uncommon. I was horrified that anyone would be prepared to make such an untruthful accusation in legal proceedings. We were thankful that this accusation did not result in any charges being laid and in fact that the accusation was thrown out of the court proceeding which led to [the applicant]’s ex-wife being dismissed by her lawyer. Whilst the truth came through the effect this had on [the applicant] was distressing for me to witness. Life is a sacred gift and [the applicant] has spent his life, through his church community and voluntary service to his country wanting only to ensure that everyone is treated well and equally. [The applicant] and I have many deep discussions on the nature of life and the universe. He is a man of great compassion and love. He is not a man who wants to inflict any pain or suffering on another person. I have a great deal of respect and admiration for him and these are not qualities that I observe in many people.
It is my practise to be as objective as possible. This has taken me many years of practise to accomplish however I realise that not everyone can do this and emotions when overflowing can colour our responses. I have observed though that whilst [the applicant] may appear a little paranoid in some instances, his fears, thoughts, beliefs around a thing always come to pass so I tend to hold what he says as a truth or an insight perhaps, that may not yet be realised in that moment but does seem to come to light in the near future.
[The applicant] has a great deal of experience with life, people, business. He has worked in healthcare to improve peoples quality of life in a voluntary capacity with the AIDS council in South Africa in the 1980’s. This shows me his compassion. I believe him to be a good person who is being persecuted for personal, commercial, and intellectual gain.
[The applicant] has done his best to maintain a sense of dignity since being taken into detention. He has worked to assist anyone that he can, he has gotten detainees off hunger strikes, he uses his skill and experience to calm any situation that gets out of control and does not cause any trouble. He is following his own practise of being compassionate towards everyone. However it seems that most of the officers from Serco and Border Force who have dealings with him have read the information in his file and he has been called a pedophile to his face! This is the worst thing that you could say to [the applicant]. It completely crushes him. To be accused of something that he has never done to a man who loves all life and treats everyone with respect and kindness is indeed a cruel thing to do. He is unable to speak with me for some time after episodes like this and it takes him some time to recover any kind of composure.
Since [the applicant] has been held in detention he has not slept for more than 3 hours a night and often has not slept at all. This kind of treatment I understand is used as torture in some countries. How is a person supposed to retain any dignity with accusations and treatment such as this? It must also be remembered that [the applicant] has never served any time in prison so this environment is completely foreign to him. He has no idea what to expect from one day to the next, which officer will speak pleasantly with him and who will be rude and accuse him of things that he has not done. He is constantly in a state of high stress.
I have observed that [the applicant]’s hair is thinning and he has lost weight. He says often that the food is inedible and not fresh but he does not like to complain because that is against his nature and it seems to only increase the poor treatment that he receives. As his life partner/wife it is very distressing for me to not only be apart from him but to see him so distraught and to learn that officers within the centre have access to his information, use it, make judgements on his character when they know nothing about him and then spread rumours amongst themselves with this false information. He is being subjected to deprivation of privacy. How is this allowed?
It is probably worth noting also that since we have been together [the applicant] and I have never been apart for more than a few days. For me to be separated from him for such a long time is very distressing and upsetting for me. We really do not function properly without each other both physically and mentally and whilst I have the luxury of movement within my home and garden and the ability to go shopping within the restrictions it is not the same for me without [the applicant] here. I miss him terribly.
This is an account of my experience since knowing [the applicant]
c)Copy of applicant’s South African passport biodata page
d)South African Police Service Clearance Certificate dated 23 September 2018
e)Media article regarding police convictions in the South African Police
f)Photographs of South African Judge
g)Letter from [Chief Executive Officer], [Company 2] dated 7 January 2020 regarding an MOU for the applicant’s business
h)[A Business Plan], September 2019
i)Undated, unsigned statement in the following terms:
My relationship with [the applicant] began in July 2015. I had not been in a relationship since I left my ex-husband in 2004. My ex-husband was an alcoholic and abusive.
In order to cope in that relationship I was taking anti-depressants and sleeping tablets which made me feel like a zombie but at least I was able to cope with the trauma of my situation.
As my ex-husbands abuse worsened the safety of myself and my children became precarious and it was time to leave. Because of the trauma, I could not work and we were only able to afford rental accommodation in the private market. This was not stable and we were forced to move almost annually which put further strain on our mental and physical health.
Over the years I have sought professional psychological assistance but I have not found this to be helpful for me and I prefer to utilise wholistic alternative therapies of meditation and shiatsu which bring me peace and calm within my mind and body. I do not like to be medicated. This is not how we were made to live.
I remained single until around 2012 as I was too afraid to enter a relationship for fear of how I would be treated due to my past experience.
Since meeting [the applicant] I feel safe. I am cared for, loved, respected and treated with kindness. We are very compatible. We do not argue. We do everything together. I find him to be good and kind and thoughtful.
His only desire is to help people. It is his whole reason for the work that he does. It is the basis for his personal belief system.
Until [the applicant] was taken into detention we had not been apart for more than a few days. I cannot function without him.
I am [age] years old. Since [the applicant] has been taken away from me I cannot function properly. I am trying to cope as best I can but I am unable to work and in order to keep a roof over my head in the short term I have been forced to sell our cars, most of our furniture, tools and personal possessions. I have nothing left to sell and no access to ongoing financial support. [The applicant] was my only financial support.
I am traditionally a stoic person and do not like to show my emotions in public but I find myself breaking down at the supermarket when I turn around to speak with [the applicant] and he is not there and at random times during the day.
[The applicant] is the financial support in my life. I do not have the capacity either physically or mentally to provide for myself. I do not own any property and have no prospects of doing so. My mother has dementia and we are in the process of sorting out her estate, my son suffers a [medical] condition and is staying with me during COVID as he is at risk. These things only add to the pressure that is on me and I cannot cope without [the applicant] here to help me.
I have been offered psychological assistance from my GP and anti-anxiety medication but I have found in the past that this does not actually help me as I become anxious because I am taking medication.
[The applicant] and I have maintained our relationship as best we can since he has been incarcerated but the stress of being apart and trauma that we are both suffering only increases with time. Without [the applicant] I will be homeless. We speak every day. I help him with all of his paperwork and I was his authorized recipient for a time when our previous migration agent seemed unable to offer positive support or assistance for our case. I gathered, collated, wrote and prepared all of the documentation for the submission to the AAT in January myself. I have no experience in these matters but did my best to help [the applicant].
To be told by a third party who does not know us, that we can have a long-distance relationship from Australia to South Africa when we have been living together for nearly 4 years is distressing and completely inhuman. I depend completely on [the applicant]. How can this be a remotely manageable option for us? It is completely insensitive and shows to me a lack of empathy and compassion.
It is heartless really and came as a shock and overwhelming distress to both of us to be told by a complete stranger that our relationship has no validity.
I have not seen anything in his behaviour, actions or activities over the past 5 years that would give any indication that [the applicant] is capable of the things that he has been accused of.
[The applicant] is really the best man that I have ever known. Without him my life is really not worth living.
The stress of his incarceration and the suffering that we have both endured is pushing me to the brink of my own mental and emotional health.
I need my husband home with me where he belongs.
j)Pages from the South African Truth and Reconciliation Report regarding the destruction of documents
k)Psychological report on the applicant dated 15 June 2020 prepared by [Mr J]
l)Submissions of the applicant’s migration agent dated 2 August 2020
m)Letter from [Law Firm 1] acting for the applicant, dated 29 July 2020 confirming that they had instructions to investigate matters in South Africa.
n)Screenshot of title checks conducted on vehicle, licence [number]
o)Memorandum of Understanding between [Company 2 and Company 3] signed by both parties (undated)
p)Screenshot of South African [government] website of Mr [B], [Government Official 1], [ANC]
q)Screenshot of South African [government] website, [listing] [Mr C]
r)Screenshot of SWAT Investigations webpage providing information about surveillance and investigation services.
s)Copy of the applicant’s CV

In his oral evidence before the Tribunal, the applicant said that when he met with the delegate he was unprepared and stopped the interview. He said that the delegate interviewed him about his book and about another book from 2012 concerning [a topic].
The applicant told the Tribunal that in the 1980s and 1990s he testified against people who are now in high office. He also said that his ex-wife had tried to embezzle money from him and that he is barred from Christian churches in South Africa. He said that people associated with Christian churches refer to him as Satan himself. He said that he is a man of religion who attends church here in Australia. He said that he was brought to Australia under false pretensions where he believed that he would be the Chief Executive Officer of a company and receive 50% of the shareholdings of that company. He said that this did not eventuate.
He said that he now looks forward to going on the pension and retiring together with his partner. At the same time, he told the Tribunal of a $4.16 billion contract with [a foreign] Government, which he said he was entitled to 50% of the profits from.
The applicant told the Tribunal that he has sold [number of] copies of his book – entitled [deleted] – in Australia alone. He said that he had been contacted to publish the book in [four other languages]. The Tribunal was puzzled by this. When the Tribunal questioned the applicant about how he knew that sales had reached [number], he could only say that he communicates with the publisher via email and deals with a “[named person]” in marketing. He did not know [this person’s] surname however and seemed uncomfortable with the Tribunal’s basic questioning concerning these claims.
He told the Tribunal that he was upset that, in his view, the delegate had earlier concluded that he was a liar who stole his inventions off the internet.
The applicant called Mr [E] to give evidence. Mr [E] said that he met the applicant in 2019 through a mutual friend and they now have daily conversations. He described the applicant as having integrity and a willingness to work to generate business. Mr [E] said that he respects the applicant’s intellect and values. Mr [E] said that he believes that the applicant cannot go back to South Africa and understands him to have lodged a protection application. Mr [E] said that if the applicant is granted protection, he hopes to work with him to develop new technologies.
The applicant called Ms [F] to give evidence. She participated in the Tribunal hearing via telephone from South Africa. Ms [F] said that she came to know the applicant through her husband who was a colleague of the applicant. She describes the applicant as a very good and religious person. She said that the applicant has told her that he fears for his life if he were to return to South Africa, that he doesn’t know where to turn and that he is tired of fighting. She describes the applicant as someone who always has to be the best. She described the applicant as one of the best inventors in the world. She said that the applicant needs to stay in Australia in order to be able to finish his work.
COUNTRY INFORMATION
The Tribunal has considered the claims of the applicant particularly in the light of country information. In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal notes that DFAT has not prepared a county information report in relation to South Africa.
The UK Home Office, Country Background Note, South Africa, notes:
11.      Law enforcement
11.1    Police
11.1.1   The United States State Department (USSD) 2019 Human Rights Report stated:
‘The South African Police Service (SAPS) has primary responsibility for internal security. The police commissioner has operational authority over police. The resident appoints the police commissioner, but the minister of police supervises the commissioner. The South African National Defense Force (SANDF), under the civilian-led Department of Defense, is responsible for external security but also has domestic security responsibilities, such as patrolling the borders. Civilian authorities maintained effective control over the security forces.’
11.1.2   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 1:38376.
11.1.3   The African Policing Civilian Oversight Forum (APCOF) website noted the following:
‘The police service in South African is a national body that operates on a   local, provincial and national level. The President, as head of the national   executive, must appoint a National Commissioner of Police to control and   manage the police service in accordance with national policy and under the   direction of the Minister of Police. The National Commissioner of Police is   then responsible for appointing a Provincial Commissioner of Police in each   province to monitor policing in the province. Municipal Police Services (MPS)                    are affiliated with the South African Police Service (SAPS) but are   responsible for policing traffic and for enforcing by-laws in a specific   municipality.
‘In terms of Section 205 of the Constitution, the objects of the SAPS are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
‘Further, in terms of the South African Police Services Act, the functions of                  the SAPS are as follows:
·     ensure the safety and security of all persons and property in the national territory;
·     uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the Constitution;
·     ensure co-operation between the Service and the communities it serves in the combating of crime; and
·     reflect respect for victims of crime and an understanding of their needs.’
11.2    Effectiveness
11.2.1   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.’
11.3    Police operations against crime
11.3.1   The South African Police Service [SAPS] Annual Report 2018/19 stated:
‘Increased drug confiscations were recorded, in 2018/2019, with the exception of heroin, compared to 2017/2018. A total of 238 679,605 kg cannabis, 1 389 204 Mandrax tablets, 603,655 kg crystal meth (Tik-Tik), 784,176 kg cocaine and 213,801 kg heroin was seized, in 2018/2019… In the fight to have a drug-free society, the South African Narcotics Enforcement Bureau (SANEB) Unit successfully dismantled 58 clandestine drug laboratories and arrested 404 suspects…
‘A total number of 15 957 crowd-related incidents were responded to and successfully stabilised by POP [Public Order Police] Units, in 2018/2019, including 11 431 peaceful incidents and 4 526 unrest-related incidents. The number of peaceful incidents increased, with 578 incidents, while unrest-related incidents increased, with 986 incidents, compared to 2017/2018…
‘A total number of 2 780 wanted persons and 2 895 circulated stolen/robbed vehicles resulted in hits at ports of entry. These hits were responded to, which in turn, resulted in the arrest of 604 wanted persons for whom a warrant of arrest had been issued, as well as the recovery of 30 vehicles.
To enhance the national security and territorial integrity at ports of entry, 3 783 planned crime prevention and combating actions were undertaken, comprising 140 roadblocks, 48 877 vehicle patrols, 2 253 VCPs, 54 107 foot patrols and 1 177 vessel patrol inspections…
‘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%.’
12. Alleged human rights violations
12.1The Freedom House Freedom in the World 2020 report, published in     2020, commenting on events in 2019, stated:
‘Despite constitutional prohibitions, police torture and excessive force during arrest, interrogation, and detention are commonly reported. The Independent Police Investigative Directorate (IPID) legally required to investigate allegations of police offenses or misconduct. In its annual report for the 2018–19 fiscal year, the IPID reported 607 deaths either in police custody or as a result of police action, 124 rapes by police officers, 270 incidents of torture, and 3,835 assaults. Overall, there was a 3 percent increase in total reported incidents over the previous fiscal year.’
12.1.1The USSD 2018 Human Rights Report stated:
‘Although the constitution and law prohibit such practices, there were reports police torture and physical abuse occurred during house searches, arrests, interrogations, and detentions and sometimes resulted in death. The NGO Sonke Gender Justice reported that almost one-third of sex workers interviewed responded they had been raped or sexually assaulted by police.’
12.2Avenues of redress and oversight of the police
12.2.1The African Policing Civilian Oversight Forum (APCOF) website noted the following:
‘Extensive provision for oversight mechanisms of the police exist in South Africa, on both an internal and external level. In addition to a set of internal mechanisms and procedures within the SAPS to discipline its members, the Constitution provides for the establishment of the Civilian Secretariat of Police and for an independent police complaints body to investigate allegations of misconduct and abuse by its members. Specifically, the Civilian Secretariat of Police (CSP) is mandated to conduct civilian oversight of the police, while the Interdependent [sic] Police Investigative Directorate (IPID) is mandated to investigate complaints involving the police as well as any deaths that occur as a result of police action or while a person is in police custody. While the CSP and IPID are technically independent bodies, the effectiveness of each office has come into question due to inadequate funding and resources.
‘In addition to the CSP and IPID, various other mechanisms exist to conduct oversight of the police, including the South African Human Rights Commission, which is mandated to investigate allegations of human rights violations, as well as the Public Protector, which is mandated to investigate allegations involving corruption by state agencies. Further, there are a various number of non-governmental organisations working on issues relating to the police, which play an integral role in conducting external oversight of its members.’
12.2.2The USSD 2018 Human Rights Report stated:
‘Civilian authorities maintained effective control over the security forces, and the government had effective mechanisms to investigate and punish abuse. The government investigated and prosecuted security force members who committed abuses, although there were numerous reports of police impunity, including of high-ranking members. IPID investigates complaints and makes recommendations to SAPS and to the National Prosecution Authority (NPA) on which cases to prosecute. IPID examines all SAPS killings and evaluates whether they occurred in the line of duty and if they were justifiable. IPID also investigates cases of police abuse, although it was unable to fulfill its mandate due to inadequate cooperation by police, lack of investigative capacity, and other factors. When it did complete investigations, the NPA often declined to prosecute cases involving criminal actions by police and rarely obtained convictions. In cases in which IPID recommended disciplinary action, SAPS often failed to follow IPID disciplinary recommendations.
‘The law provides IPID with additional enforcement powers and requires SAPS and metropolitan police departments to report any suspected legal violations by their own officers to IPID. The law criminalizes the failure to report wrongdoing; from April 2017 to April 2018 IPID recorded 69 cases in which SAPS or metropolitan police departments failed to report wrongdoing to IPID.’
12.2.3The Al-Jazeera article, S Africa court issues orders to end police abuse during lockdown, dated 17 May 2020, stated: ‘Human rights groups and experts have welcomed a series of orders issued by a South African court that compel authorities to prevent police and army brutality during the enforcement of a lockdown meant to curb the spread of coronavirus.’ 84
13. Judicial system
13.1 Courts structure
13.1.1Section 166 of the South African constitution deals with the judicial system and established the following courts:
13.1.1.1The Constitutional Court;
13.1.1.2The Supreme Court of Appeal;
13.1.1.3The High Courts, including any high court of appeal that may be    established by an Act of Parliament to hear appeals from High    Courts;
13.1.1.4The Magistrates' Courts; and
13.1.1.5Any other court established or recognised in terms of an Act of    Parliament, including any court of a status similar to either the High   Courts or the Magistrates' Courts.
13.1.1.6The Constitutional Court is the highest court on constitutional matters.
The Supreme Court of Appeal only deals with cases sent to it from the High Court. These courts only consider cases of a serious nature that would not be dealt with by the lower courts. Magistrates’ courts are the lower courts which deal with less serious criminal and civil cases. They are divided into regional courts and district courts. Criminal Courts are divided into two groups - regional magistrates’ courts, which only deal with criminal cases; and ordinary magistrates’ courts (also called district courts), which deal with criminal and civil cases.
13.2.1Independence
13.2.2The USSD 2019 Human Rights Report stated: ‘The law provides for an            independent judiciary, and the government generally respected judicial   independence and impartiality.’
13.2.3The Freedom House Freedom in the World 2020 report, commenting on events in 2019, 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 NPA head in 2018, who has worked to reform the institution.’
13.2.3The 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.’
13.3 Effectiveness
13.3.1 The Freedom House Freedom in the World 2020 report, commenting on events in 2019, stated: ‘Shortages of judicial staff and financial resources          undermine defendants’ procedural rights, including the right to a timely    trial and state-funded legal counsel. Many detainees wait months for their trials to begin, and some are held beyond the legal maximum of two     years.’
15.      Political rights
15.1.1 The USSD 2019 Human Rights Report also stated:
‘The constitution and law provide for freedom of assembly and association,       and the government generally respected these rights. Nevertheless, NGOs        reported many municipalities continued to require protest organizersprovide    advance written notice before staging gatherings or demonstrations…
‘In prior years protest organizers could be legally required to notify local authorities before staging gatherings or demonstrations. In November 2018          the Constitutional Court ruled unanimously against this requirement.’
15.1.2The USSD 2019 Human Rights Report further stated: ‘The law provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.’
15.1.3 The Freedom House Freedom in the World 2020 report stated:
‘The ANC, which is part of a tripartite governing alliance with the Congress of     South African Trade Unions (COSATU) and the South African Communist      Party (SACP), has won every national election since 1994. Nevertheless,       the political environment is generally free from formal constraints, and           opposition parties have gained ground in recent elections…
‘The constitution prohibits discrimination and provides full political rights for        all adult citizens. Women are well represented in government, holding 47 percent of National Assembly and 2 of 9 provincial premierships. South           Africa has one of the world’s most liberal legal environments for LGBT+       people. However, discrimination and the threat of violence can discourage           LGBT+ people from political participation in practice.’
19.         Race and ethnicity
19.1Race relations
19.1.1The World Elections article, Race, Ethnicity and Language in South Africa, dated 18 December 2018, stated:
‘Race is still deeply ingrained in the South African psyche and culture. Like in the United States, South Africa’s major cities remain largely racially segregated with “black neighbourhoods” and “white neighbourhoods”.
Interracial interaction, relationships and intermingling are far more common today than under apartheid, but many races still stick together and cultural activities are still tinted by race.
‘Apartheid’s racial categories, albeit recast on different names and referred to as “population groups”, are still officially used in statistical publications and census data.
‘Apartheid and its associated policies created a strict racial hierarchy whose effects are felt to this day. At the top of the social ladder was the white minority, which had formed the ruling class – politically, economically, socially and so forth – since European colonizers first arrived at the Cape.
The large black majority was at the very bottom, forcibly segregated into underdeveloped rural ‘reserves’ or shunned to the outskirts of major cities in shantytowns and denied any rights. The smaller Coloured and Indian groups faced systematic discrimination from the apartheid government as well, but they generally found themselves in an ever so slightly more favourable social position compared to the blacks...
‘Since 1994, while the strict racial hierarchy is no more, its legacy is still clearly visible. In part, this is due to the policies of post-apartheid governments, which have generally been moderate and pragmatic in their dealings with the former white elite...Many critics have commented that the black majority has gained only incomplete control of the new South Africa; they hold political power but economic power still rests in white hands.
However, various reports from several sources have shown that blacks have joined the ranks of the middle-class and business-owning elite. Furthermore, even if the black majority remains the poorest of South Africa’s four racial groups, most blacks have seen a marked improvement in their living standards – without speaking of basic human rights.’
19.2Race-related discrimination
19.2.1Based 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…correspondence with the Research Directorate, a representative from AfriForum, a non-governmental "Afrikaner interest organisation and civil rights watchdog" that aims to "protec[t] 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).’
19.2.2For further detail about the treatment of white South Africans, see the IRBC response, dated 21 September 2018.
19.2.3The Times Live (South Africa) report, Racism complaints by blacks are on the rise, with Gauteng the worst, dated 10 December 2018, stated:
‘Most of the complaints received by the SA Human Rights Commission (SAHRC) over the past year were race-related…
‘Speaking about equality-related rights violations, the commission's Alexandra Fitzgerald said the majority of complaints were related to allegations of racial discrimination against black South Africans.
‘Gauteng, according to the commission, had the most equality-related complaints, with 38% of recorded cases coming from the province - followed by the Western Cape at 15% and KwaZulu-Natal with 14%...
‘One of the cases was against estate agent Vicky Momberg, who was caught on camera hurling the k-word at black police officers and 10111 operators after she was the victim of a smash-and-grab robbery. She used the k-word more than 48 times. The clip went viral and Momberg was arrested.’
19.2.4The Guardian report, Why are South African cities still so segregated 25 years after apartheid?, by Justice Malala, dated 21 October 2019, stated:
‘Johannesburg – like Cape Town, Durban, Port Elizabeth and other cities in South Africa – is visibly and traumatically segregated. These remain cities divided.
‘The rich of Johannesburg still live in the sumptuous northern suburbs, where the food at some restaurants is Michelin-star quality and house prices are eye-watering. These areas remain largely white, although that is changing at a glacial pace. The workers are in Soweto and Alexandra and other poor, crime-plagued black enclaves. It has always been this way with Johannesburg, and it remains pretty much as divided 25 years after apartheid collapsed and 29 years after Nelson Mandela walked out of prison…There is a reason for this glacial pace of change…The World Bank said in May 2018 that South Africa remains the most economically unequal country in the world. Poverty levels are highest among black people. Whites make up the majority of the elite or top 5% of the population. Hence the stubbornness of spatial segregation…
‘It doesn’t mean that there is no change. In 2016 the government statistician published a series of maps that illustrate Johannesburg is the most integrated city out of its six major metros. Encouraging as that picture is, it is also problematic. The Johannesburg central business district has a high percentage of black African residents – but the past 20 years have been characterised by “white flight” into the northern suburbs.’
19.2.5The USSD 2019 Human Rights Report also stated:
‘Incidents of racism continued. There were numerous reports of racially motivated abuses similar to the following examples. In June the Council on Medical Schemes launched an investigation into alleged discrimination against black and Indian medical professionals in the private health-care sector who stated that medical insurance companies denied payment of their medical-services claims on racial grounds. During the year the SABC [South African Broadcasting Corporation] revealed allegations that the FNB bank charged black homebuyers up to 40 percent more for mortgages than they charged whites.
‘Some advocacy groups asserted white farmers were racially targeted for burglaries, home invasions, and killings, while many observers attributed the incidents to the country’s high and growing crime rate…According to SAPS National Crime Statistics 2018/2019, farm killings represented only 0.2 percent of all killings in the country (47 of 21,022).’
19.2.6The Freedom House Freedom in the World 2020 report stated:
‘The constitution prohibits discrimination based on a range of categories, including race, sexual orientation, and culture. State bodies such as the South African Human Rights Commission (SAHRC) and the Office of the Public Protector are empowered to investigate and prosecute discrimination cases. Affirmative-action legislation has benefited previously disadvantaged racial groups in public and private employment as well as in education but racial imbalances in the workforce persist. White people, constituting a small minority, still own a majority of the country’s business assets.

It is well established that the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant or have rebutting evidence available to it before it can find that a particular fact asserted by an applicant has not been made out.[1] The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains entirely for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] SZLVZ v MIAC [2008] FCA 1816 at [24] per Middleton J (SZLVZ v MIAC) at [25].
The Tribunal finds that the applicant is a South African citizen, based on the identity documents such as a passport as presented to the Department, and South Africa is the receiving country for the purposes of the relevant legislation.
The applicant portrayed himself through his oral evidence as the victim of quite magnificent circumstances, having experienced an extraordinary run of supposedly unfortunate and unusual life events, including personal and business dealings that had turned bad, but in which he maintains he shares no fault. The Tribunal found the applicant’s oral evidence demonstrated a capacity by him to retell a consistent assertion of the most incredible and unlikely events based on an elaborate story he believes will lead to the grant of a visa. Specifically, the Tribunal found the applicant’s oral evidence including his recollections and assertions rehearsed and lacking detail. Their retelling appeared to be largely disconnected from reality, ultimately so much so that the Tribunal found his protection claims to be disingenuous. Additionally, the Tribunal found the applicant’s responses to questions during the hearing scripted, albeit confidently delivered, and lacking such spontaneity that the Tribunal had no alternative but to conclude the applicant’s claims were not credible. Put simply, the Tribunal concluded the applicant was not a witness of truth. The Tribunal has come to this assessment because of the above reasoning, and because while it could be said the applicant provided a succinct account of his protection claims, when closely considered, the entirety of those claims are made by rote and importantly, almost entirely, provided in the absence of persuasive corroborating or contemporaneous evidence.
Is there a real chance that the applicant would be persecuted for any of the other reasons set out in the legislation?
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the other reasons set out in the legislation – race, religion, nationality, membership of a particular social group or political opinion, even if his race, age, conviction and economic circumstances are considered cumulatively.
The Act requires that persecution involve systematic and discriminatory conduct. Systematic and discriminatory conduct is conduct which is deliberate, rather than random, and applied discriminatorily for one of the reasons set out in the legislation.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Conclusions – refugee criteria
The Tribunal is not satisfied for all the reasons set out above that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation, were he to return to South Africa now or in the reasonably foreseeable future.
The Tribunal is not satisfied therefore that the applicant meets the refugee criteria.
Does the applicant meet the complementary protection criteria?
In his closing submissions, the applicant’s representative contended that the applicant is someone who meets the complimentary protection criteria.
The Tribunal turns to consider whether 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 he will suffer significant harm.
“Significant harm” for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test.
As the Tribunal does not believe the applicant’s claims, the Tribunal is not satisfied 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 he would suffer significant harm.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa there is a real risk of significant harm.
CONCLUSION
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.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
P. Wood
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.
…

[2021] AATA 4972

22 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice