2104473 (Refugee)
[2021] AATA 3499
•14 July 2021
2104473 (Refugee) [2021] AATA 3499 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2104473
COUNTRY OF REFERENCE: South Africa
MEMBER:Justin Meyer
DATE:14 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 July 2021 at 12:48pm
CATCHWORDS
REFUGEE – protection visa – South Africa – race – white South African – particular social group – white farmer living in rural area – high crime rate – reverse apartheid – access to employment – COVID-19 – access to healthcare and social welfare – criminal conviction in Australia – National Register for Sex Offenders – vigilantism – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 31 March 2021 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 25 February 2021. 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 s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Act). 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.
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.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant did not raise any concerns as to conducting the review hearing by video, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant was in immigration detention at the time of the video hearing.
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 issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in South Africa and, if not, 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. A summary of the relevant law is set out in the attachment to this decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant's written claims for protection to the department (as described in the decision record which was submitted to the Tribunal) are:
·He left South Africa because it has become a very dangerous place, especially for white South Africans who have been attacked and murdered. Prior to coming to Australia permanently in 2006 he and his wife were attacked in their home by intruders.
·He fears returning to South Africa because of the high crime rate and he and his family would be in more danger because white South Africans are specifically targeted by criminals. He would also be at risk because if he returned to South Africa he and his family would be living on a rural property and white farmers have been getting attacked on a daily basis. South Africa is in the grip of reverse apartheid and he does not believe the police will protect him for this reason.
·Covid-19 is rampant in South Africa and he fears that he and his family would be at risk of contracting the virus and dying due to the poor health services in South Africa.
·He believes that due to the nature of his criminal conviction in Australia, possessing child exploitation material, he and his family will be subject to hostility and ill treatment from the general public. He fears being killed by vigilante groups within the general public and does not believe the police would be able to protect him due to being ineffective and corrupt.
·He will not be able to obtain employment in South Africa due to the laws that have been instigated by the government which discriminate against white South Africans. In addition he will also not be able to obtain employment due to his criminal record in Australia. Prospective employers in South Africa will become aware of his criminal conviction in Australia because he will be placed on the South African Sex Offender Register. As a result of not being able to obtain employment and having no resources in South Africa he will be destitute.
The applicant attended a department interview on 10 Match 2021. On 16 March 2021 the applicant’s representative submitted a post-interview written submission in support of the applicant’s claims. This submission reiterated the above claims and also cited country information in support of the applicant’s claims. The written submission also stated that it would be untenable for the applicant’s wife and children to travel to South Africa and as a result the applicant would be separated from his family indefinitely. The applicant’s separation from his family would subject him to significant emotional stress.
The applicant made a written submission to the Tribunal, in these terms:
·The applicant relocated to Australia [in] August 2006 with his then wife [ name] their child [name] (who is now an Australian citizen living with his mother).
·The applicant and [name] were divorced on the [in] Jan 2014.
·The applicant married [name] [in] Dec 2015 and they have two children being [name] [date] and [name] [date].
·[name] on and [name] on are Australian Citizens.
·[name] on is a [country] national and holds an Australian Permanent Resident [visa].
·[name] has one additional child [name] by a previous partner who lives with her and is the stepson of the applicant.
·The applicant held a [Skilled visa] up until its cancelation.
·[In] May 2016 the applicant was convicted of possessing child exploitation material and was sentenced to a 14 months sentence suspended.
·The applicant paid a $3000.00 fine and was required to report regularly to police and complete a Community Based Sex Offender Treatment Program (completed [in] Dec 2016), and have his name added to the Child Offender Register.
·The applicant received a Notice of Intention to Consider Visa Cancellation under s501 on the 9th September 2020.
·The applicant responded to the NOICVC on the 12th Oct 2020.
·On the 8th Feb 2021 the applicant received the Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958.
·The NOVC states: a. Under s501(2) of the Act, the Minister may cancel a person’s visa if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test.
·The decision of the Minister to cancel the applicant’s visa made under s501(2) is a discretionary decision and is currently subject to appeal in the Federal Court.
·The applicant made two applications for a Protection Visa to prevent deportation back to South Africa.
·The first application was made on the 9th February 2021 on or about the time the applicant was taken into custody.
·Due to the applicant’s confusion as to the effect and timing of deportation, the applicant withdrew the application on the 11th February 2021.
·The applicant is currently in immigration detention. A subsequent application was made on the 25th February 2021, and this was refused on the 31st March 2021.
·The applicant has proffered a number of serious and genuine fears in being deported to South Africa. The objective evidence regarding the current state of South Africa provided by the delegate confirmed the applicant’s fears. In every area the applicant had concerns, the delegate’s objective evidence confirmed those concerns. However, the applicant proffers that delegate’s drawn conclusions were subjective and were not consistent with the subjective evidence he presented.
·He left South Africa because it has become a very dangerous place, especially for white South Africans who have been attacked and murdered. Prior to coming to Australia permanently in 2006 he and his wife were attacked in their home by intruders.
·He fears returning to South Africa because of the high crime rate and he and his family would be in more danger because white South Africans are specifically targeted by criminals. He would also be at risk because if he returned to South Africa he and his family would be living on a rural property and white farmers have been getting attacked on a daily basis. South Africa is in the grip of reverse apartheid and he does not believe the police will protect him for this reason.
·Covid-19 is rampant in South Africa and he fears that he and his family would be at risk of contracting the virus and dying due to the poor health services in South Africa.
·He believes that due to the nature of his criminal conviction in Australia, possessing child exploitation material, he and his family will be subject to hostility and ill treatment from the general public. He fears being killed by vigilante groups within the general public and does not believe the police would be able to protect him due to being ineffective and corrupt.
·He will not be able to obtain employment in South Africa due to the laws that have been instigated by the government which discriminate against white South Africans. In addition he will also not be able to obtain employment due to his criminal record in Australia. Prospective employers in South Africa will become aware of his criminal conviction in Australia because he will be placed on the South African Sex Offender Register. As a result of not being able to obtain employment and having no resources in South Africa he will be destitute.
·The applicant claims that he is a white South African and that he formerly resided in Pretoria, South Africa, for the majority of his life prior to relocating to Australia in 2006. The applicant claims that prior to relocating to Australia in 2006 both he and his wife were attacked in their family home by intruders.
·The attack and assault on the applicant (which has been accepted by the delegate) has reinforced the applicant’s knowledge of the dangers of being returned to South Africa. The applicant’s fear is not speculative but very real having experienced it first-hand.
[Quotation by applicant of delegate’s decision:]
“Based on the information provided by the appellant I accept that if he returned to South Africa he would be living on a rural property and that this may be considered to be a ‘farm’.
The appellant has claimed to fear harm on return to South Africa due to the nature of his criminal conviction in Australia. Information held on Department systems confirms that the appellant was convicted in 2016 of ‘Possessing Child Exploitation Material’ and as such I accept that the appellant has been convicted of this offence in Australia.
Part 6: Australia’s protection obligations Refugee criteria assessment and finding — s36(2)(a) of the Act A refugee is a person who has, as defined in subsection 5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
The appellant claims that as a white South African, he will be targeted for serious harm should he return to South Africa. He alleges he will be targeted by criminals, will be unable to obtain employment and consequently will be destitute. He also claims he will be targeted by criminals due to being a white South African farmer living in a rural area. Furthermore, he claims that due to his race he is unable to seek assistance from the South African Police. I consider the essential and significant reason for these fears to be based on his risk of harm as a white South African, with his rural residence adding to his vulnerability as a white South African in South Africa. I have therefore assessed whether the appellant has a well-founded fear of persecution based on his race, as a white South African.
The appellant also claims that due to the nature of his criminal conviction in Australia, possessing child exploitation material, he will be subject to hostility and ill treatment from the general public. He fears being killed by vigilante groups within the general public. He also claims that due to his criminal conviction in Australia he will not be able to obtain employment. Accordingly I have assessed whether the appellant has a well-founded fear of persecution based on his membership of the particular social group (PSG) ‘people in South Africa with overseas criminal convictions’. Country Information General situation in South Africa Violent crime rates are high across South Africa, not just in rural areas. According to official government crime statistics, there were 21,325 murders in South Africa between 1 April 2019 and 31 March 2020 – up from 20,022 the year before – a 1.4 per cent increase.6 On average, 58 people are murdered in South Africa each day, representing a murder rate of 36 people per 100,000 people – well above a global average of seven people per 100,000.”
·The delegate cites a study that says ‘households headed by white and Indian/Asians were more likely to be affected by crime than other population groups’, even though “available data on crime is incomplete and insufficiently categorised by race.”
·The applicant agrees with this assessment. The applicant has experienced violence first-hand and is afraid he will experience it again if deported.
[Quotation by applicant of delegate’s decision:]
“Regarding farm violence, country information indicates that farm invasions, may be merely motived by opportunism. Farm invasions may be motivated merely by opportunism, with credible sources stating that those living in rural areas, particularly in isolated areas, are particularly vulnerable to armed attacks involving heightened levels of violence because help may take a long time to arrive and criminals see a chance to seize weapons or cash.17 Landholders are perceived to be wealthy and often elderly and thus soft, lucrative targets.18 Various interest groups and government bodies disagree about the extent of racial motivation for attacks. Some, including white farmer groups, claim that race is an important motivating factor, evidenced by lower rates of violence against black workers on white farms.”
·The applicant agrees with the assessment that those living in rural areas are particularly vulnerable to attacks, as stated by the delegate.
·The applicant proffers that gaining employment will be difficult for him because he is white and has a criminal record.
[Quotation by applicant of delegate’s decision:]
“Employment According to the September 2018 Immigration and Refugee Board of Canada report, white South Africans are not generally discriminated against when seeking work. However, the report also indicates that while there are complaints from some white South Africans that various black economic empowerment programs make it difficult to access employment. AfriForum, a group that advocates for the rights of white, predominantly Afrikaner South Africans, is cited in the report as saying that a ‘policy of affirmative action is applied in South Africa that [does not have a] sunset clause. As a result, white South Africans are often not even considered for positions, whether they have the necessary skills, qualification and experience, or not’. However, sources also indicate that the unemployment rate of white South Africans is lower than that of black South Africans.”
·The evidence (above) from South Africa of affirmative action (pro black) confirms the applicant’s fear that he will not be able to find work and become destitute.
·The statistical evidence provided by the delegate does not provide any weight to his assessment that the applicant will be able to obtain employment in South Africa.
·Given that it’s been 15 years since the applicant has worked in South Africa, his previous employment history is of little value. Coupled with the criminal history the applicant now has, there is no evidence that the applicant will obtain meaningful work sufficient to sustain himself and provide for his family, wherever they live.
[Quotation by applicant of delegate’s decision:]
“South Africa provides public or social housing to individuals with limited or no income. However, sources indicate that the amount of available housing is insufficient to meet demand. A South African government website says that a 2017 Statistics South Africa survey revealed that 13.6 per cent of South African households lived in a state-subsidised dwelling. A slightly higher percentage of female headed-households (17.3%), than male headed households (11.0%) received subsidies in line with government policies that give preference to households headed by vulnerable groups, including females, and individuals with disabilities. There is no evidence that public housing is withheld based on the race of person applying.”
·The applicant sees no joy in the statistics proffered by the delegate regarding accommodation and housing. The applicant has no money to purchase or even rent a house. The applicant would be totally reliant on family (who are on a pension living in a small rural property). There is no likelihood that the applicant would be able to obtain public housing based on those figures.
[Quotation by applicant of delegate’s decision:]
“South African citizens or permanent residents are eligible for social welfare. Social welfare benefits are available in the following instances: · old age pension; · child support grant; · social relief or distress; · care dependency grant; · grant in aid; · war veterans grant; · foster child grant; · disability grant; and · admission of older persons to residential facilities. This indicates there are unemployment benefits in the form of social relief or distress, with eligibility factors relating to inability to work, crisis, and disaster.
·Notwithstanding the delegate’s optimism, there is not evidence that the applicant will be able to obtain unemployment benefits as soon as arriving in South Africa thereby immediately being impoverished.
[Quotation by applicant of delegate’s decision:]
“Police in South Africa are often ineffective. A 2015 South African Human Rights Commission report referred to the ‘deeply ingrained’ nature of crime in South Africa, ‘and the feeling among criminals that they will not be caught, and even if they are caught, that the criminal justice system is not enough of a deterrent’. The assessment of the Human Rights Commission report confirms the fears of the applicant. The applicant is concerned that the ineffectiveness of the Police would provide insufficient protection for him and that he fears he will suffer harm due to his whiteness and his criminal record. Notwithstanding this, there are state protection measures available to white South Africans who are victims of violence. The South Africa Police Service (SAPS) and the judiciary offer protection, for instance, if a person is attacked and robbed on the street, the police would investigate and arrest the perpetrator. The perpetrator is then tried in a court and sentenced without any reference to race.”
·Given the Human Rights Commission reports already referred to by the delegate, the above statement is unlikely to represent a true reflection of law and order in South Africa, and that is no comfort for the applicant. Treatment of people in South Africa with overseas convictions.
[Quotation by applicant of delegate’s decision:]
“No information was found regarding whether individuals who return to South Africa after having been convicted of an offence overseas are targeted for harm by either the authorities or the general public. Notwithstanding the lack of country information regarding people being targeted for overseas convictions, country information regarding people being targeted for crimes committed within South Africa was located and is detailed below for consideration. Information found indicates that vigilantism occurs in South Africa, with reports of South Africans taking the law into their own hands. This includes instances in which individuals who have either committed crimes, or are suspected of having done so, have been targeted. Country information suggests that much of this occurs in poorer areas of South Africa where violent crime rates in general are high and law enforcement capacity is low.”
A November 2018 Foreign Policy article refers to the killing of a number of individuals in Cape Town’s Cape Flats area in ‘mob justice’ attacks. It says that ‘in recent years, with violent crime spiralling across South Africa, mob justice attacks have become increasingly commonplace in neglected communities like Blikkiesdorp, as ragtag vigilante groups fill the void left by a chronically under-resourced police force’: ‘According to the latest national crime statistics released in mid-September, 849 people were killed in cases the police classify as mob justice in the 12- month period from April 2017 to March 2018. In the densely populated province of Gauteng surrounding Johannesburg, mob justice killings have more than doubled from the previous year. Since 2012, similar increases have been seen in the Western Cape province, which encompasses Cape Town. This is a stark reflection of the steady erosion of public faith in police departments that have been ravaged by corruption and mismanagement, particularly during the disastrous tenure of former President Jacob Zuma, who was ousted in February. Unsurprisingly, the fallout has been most pronounced and most dangerous in the impoverished townships surrounding Page 8 of 16 A November 2019 report by the University of Cambridge’s Centre of Governance and Human Rights says that South Africa reportedly has the highest incidence of unlawful killings as a result of vigilantism or mob justice in Africa:40 ‘Reporting of vigilante-style killings has escalated in recent years, and is accounted for in media and academic reports by the high crime rate and inefficient police and criminal justice systems which have fostered, through ‘crimes of omission,’ a situation where vigilante groups are the only option for a population enduring extreme poverty and inequality. Vigilantism is described as the counterpart to the rise in private security provision, and as a ‘necessary evil’ that is widespread across urban and rural areas in South Africa. It is a local method of social control outside of, but arguably sustained by, the state, and is most apparent in township areas. Though official incidence rates do not exist, and the recording of cases of vigilante killings is incomplete, vigilante killings are frequent across the country. Targeted individuals are usually those perceived to be involved with socially harmful criminal activity, typically gangsterism and the drugs trade. In other cases, suspicion of witchcraft linked to child abuse or murder has been reported as the motive for the unlawful killing as a result of a ‘kangaroo court’ judgment or as a result of mob justice. In some cases, non-nationals are targeted in attacks that combine vigilantism with xenophobic motivations. Incidences are highest in the areas with high rates of criminal activity, unemployment and low socioeconomic conditions.
A March 2019 article by the Institute for Security Studies, a Pretoria-based think tank, says that in South Africa, ‘violence is so normalised in society that ‘ordinary’ people commit horrific acts, at times in response to high levels of crime and perceptions that police and government crime-reduction strategies are ineffective’ According to the article: ‘Crime statistics suggest that many communities experience high levels of violence and crime. Public confidence in the criminal justice system is often low and people don’t trust the police to protect them. In fact, the latest Afrobarometer Survey for 2018 reveals that 66% of people mostly don’t trust the police and 46% don’t trust the courts.’
Official South African Police Service figures for the 2019-2020 financial year show that there were 595 assaults, 1867 assaults involving grievous bodily harm, 224 attempted murders, and 1202 murders in which vigilantism or mob justice was the ‘causative factor’.A November 2019 report by South Africa’s Independent Police Investigative Directorate cites figures showing that in the 2018-2019 financial year, 54 individuals died in police custody from injuries sustained as a result of vigilantism prior to being taken into custody.”
·The applicant fears that the delegate is correct in his assessment, that “the applicant may face hardship in South Africa due to delays in obtaining employment and accommodation… ”
·The applicant fears being deported to South Africa due to the likelihood of any or all of the following: · significant physical harassment of the person; · significant physical ill treatment of the person; · significant economic hardship that threatens the person’s capacity to subsist; · denial of access to basic services, where the denial threatens the person’s capacity to subsist; · denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
·This assessment by the delegate neglects the fact that the applicant has already experienced an assault in South Africa. The applicant fears a repeat of that experience. In that sense the applicant has a very real fear.
I acknowledge the South African police force is seen as ineffectual and corrupt by the broader South African public. However, the country information found does not support the assertion that police deny service based on the race of the complainant and indicates that race is not a consideration during the investigation, arrest and prosecution of criminals. Notwithstanding this, I accept the South African Police Service struggle to tackle the ingrained culture of crime in South Africa. I also accept the police are largely unable to respond to requests for assistance from the public due to under-resourcing and the number of crimes reported.
The applicant has claimed that he will not be able to obtain employment in South Africa due to his criminal record in Australia. Country information indicates that since 2007 South Africa has maintained a National Register for Sex Offenders. The register is a record of the names of those found guilty of sexual offences against children and mentally disabled people. This includes offences committed outside South Africa. According to a South African government website, ‘the register gives employers in the public or private sectors such as schools, crèches and hospitals the right to check that the person being hired is fit to work with children or mentally disabled people’. The register is not open to the public and is confidential. An individual’s details may be removed from the register; however, this will depend on the type of sentence received. Based on the above country information I accept that the applicant’s name will be placed on the National Register for Sex Offenders and that this information will be available to prospective employers. I note that this system in relation to the registration of sex offenders is common in many countries around the world. While I accept the applicant may experience some discrimination from prospective employers due to his criminal record, I find his claim that he will not be able to obtain any type employment in South Africa for this reason to be highly speculative. The same registration process applies in Australia and yet I note the applicant has remained employed in Australia until 2021 despite his criminal conviction in 2016. I also consider that the applicant’s considerable and varied work experience, in both South Africa and Australia, would assist in countering any possible discrimination from potential employers. I accept that the applicant’s criminal record may cause a delay in him finding employment in South Africa. The applicant also claims that due to the nature of his criminal conviction in Australia, he will be subject to hostility and ill treatment from the general public. He fears being killed by vigilante groups within the general public.
·The delegate ignores the fact that the Sex Offender Register is open to the public. In addition, it would be natural for people to ask the applicant why he can back from Australia. These can be no doubt that the community will soon know for his criminal record ‘the register gives employers in the public or private sectors such as schools, crèches and hospitals the right to check that the person being hired is fit to work with children or mentally disabled people’.
·The applicant is married to a [Country 1] national who holds a Permanent Resident status in Australia. He also has three biological children (aged [age], [age] and [age] years) and has a stepson. Should this appeal be refused and the applicant deported, they will be deprived of a husband and father. Given the security dangers associated with South Africa, and the fact that the children are all Australian citizens, it would be unconscionable that they move to South Africa and leave Australia.
·The applicant has been informed in the NOITCC that he will never be allowed back into Australia once deported. This alone has caused mental anguish to the applicant.
·The applicant proffers that the Ministers delegate erred when determining the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Act).
·The applicant has a well-founded fear of persecution for reasons of race, and of membership of a particular social group as per s5J(1)(a).The applicant proffers that those fears are real and justified and as such should have been the basis for approving the Protection visa application. The applicant proffers that on any objective measure, the applicant will be highly likely to become impoverished if deported to South Africa. The applicant has zero resources, money or assets.
·It is also highly likely that the community will become aware of his criminal record and that will make it difficult or impossible to obtain employment and possibly be attacked. As a white South African, it is foreseeable that the applicant will not be able to get accommodation (due to the lack of housing stock and long waiting lists alluded to by the delegate). The applicant has no assets. As an impoverished person being deported to South Africa he will need to rely on family for accommodation, transport, food, clothing, and other items required for living.
·The applicant proffers that he has a well-founded fear of persecution for reason of his race, and because of his criminal record.
·The applicant fears being deported to South Africa due to the likelihood of any or all of the following: · significant physical harassment of the person; · significant physical ill treatment of the person; · significant economic hardship that threatens the person’s capacity to subsist; · denial of access to basic services, where the denial threatens the person’s capacity to subsist; · denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
·The applicant fears if he is deported he will never see his wife or children again. The applicant has a fear of contracting the Covid-19 virus and dying from it due to his physical condition and the poor standard of hospital care in South Africa.
·Covid-19 is rampant in South Africa with a particularly virulent strain which to date does not have a vaccine to combat it. South Africa rates 49 out of 89 countries on the Global Health Index. If deported, the applicant would need to maintain a comprehensive health insurance cover to be confident of receiving a relatively good standard of health care.
·The applicant cannot afford such cover, and thus would need to rely on the sub-standard universal healthcare which is generally only available in the urban centres. In summary, the applicant proffers that the decision to refuse his Protection visa application was taken contrary to the evidence that the delegate himself presented and was not consistent with the requirements of legislation or of the decisions of the Federal Court.
The applicant told the Tribunal in oral evidence the following:
·His permanent residency was cancelled as a personal decision of the Minister on 8th February 2021. This matter was under appeal in the Federal Court.
·He arrived in Australia in 2006. Prior to that in South Africa he had been attacked by six men but there had been no police investigation into the crime. This was a housebreak in a rural setting on a small (2 hectare block).
·He had worked as a [Occupation 1] for 15 years.
·Prior to his divorce he had owned a house. He has little but his wife has some savings.
·In South Africa none of his male relatives have a job. He has 52 cousins and none of them are employed.
·His main motive for migrating to Australia was for work – he came on a 457 visa- a skilled work visa.
·His main concern about being on the sex offenders register is that every employer in South Africa can access it.
·He added that under affirmative action policies people are employed on the basis of race. Others get preference and white males are discriminated against.
·The other problem with the register is that it can lead to vigilante justice. There can be torture of the subject. There could be ‘necklacing’ with a petrol tyre, particularly with sex offenders. If the community finds out it is a death sentence.
·There is an unemployment rate of 28.5% in South Africa. He had worked as a labourer and [Occupation 2] in Australia.
·When asked if employers in South Africa would be looking at his criminal record, he said it would and this extended beyond employers in schools, creches, hospitals and place with children in care.
·The Tribunal discussed an 8.8 per cent reported unemployment rate for whites in South Africa, which is much lower than the overall figure. He said that the unemployment payments would be roughly AUD320 (equivalent) per month and this would not cover the AUD500 per month average house rental cost.
·The applicant is from Gauteng province in the north east of the country, which contains the country's largest city, Johannesburg, and the administrative capital, Pretoria. He was in rural area though.
·He said there was no racism directed to black people in the area.
·There was nowhere else to live for him than his home rural area – he knew no one else. He had to go and live with family. His siter was in a small place and mother lived in very small home.
·His wife was very afraid at the possibility of his going back to South Africa.
·The crime rate was very high and he was vulnerable as a white rural South African. He would live on a type of farm.
·The following country information was discussed with the applicant:
South Africa has high crime rates,[1] with the fifth highest murder rate in the world.[2] In 2019 to 2020 there were 21,325 murders, an average of 58 murders a day or 36.3 murders for each 100,000 people.[3] In 2018 to 2019, the police recorded a total of 21,022 murders, an increase from 2017/18 which had a rate of 20,336 murders.[4] The murder rate increased from 35.8 per 100,000 people to 36.4 per 100,000, an average of 58 murders per day.[5] This compares to Australia’s 1 per 100,000 according to 2014 figures. [6] In 2017/18, an average of 56 people were murdered every day.[7] In 2017/18, 156,243 common assaults were recorded. On average, 428 people were victims of this type of assault every day. All provinces have experienced a rise in armed robberies in recent years with the rural provinces of Mpumalanga, North West, Northern Cape and Free State recording the highest increases. Poor areas are particularly affected.[8] There has been an overall 35 percent rise in murder over the last seven years.[9]
[1] Africa Check website, Business Tech, Africa Check, FACTSHEET: South Africa’s crime statistics for 2019/20, 4 August 2020
[4] Institute for Security Studies, Accurate statistics are needed for the SA farm murder debate’, 11 December
2017, Africa Check, FACTSHEET: South Africa’s Crime statistics for 2018/2019, 12 September 2019
[5] FACTSHEET: South Africa’s Crime statistics for 2018/2019, 12 September 2019
[6] News.com.au, South Africa farm attacks: Brutal crimes landowners face, 17 March 2018,[7] Africa Check, South Africa’s Crime Statistics for 2017/18, Institute for Security Studies, Accurate statistics are needed for the SA farm murder debate, 11 December
2017
·The applicant said that living on a white farm he would be at more risk because he was white. He said he faced the prospect of torture.
·His sister had been sent a photograph of weapons. His sister’s neighbour has been chased off her land.
·The following country information was discussed with the applicant in summary form about the targeting of white farmers:
Sources indicate that crime in South Africa is often random and non-selective in nature.[10] Some crimes are motivated by race but generally crime is tied to economic need, as well as problems associated with unemployment and other factors affecting low income areas such as gangs, drug and alcohol abuse, and a violent sub-culture. Silber and Geffen have reported that everyone in South Africa is affected by crime, and the consequent sense of insecurity that comes with living in fear.[11] A 2011 survey showed that a third of South Africans are so afraid of being attacked by criminals that they will not walk alone in public places and many people secure their homes against thieves and carry a gun for protection.
The issue of what motivates crime has been hotly debated in the context of attacks on white farmers. AfriForum, an Afrikaner lobby group is conducting global lobbying campaigns suggesting white farmers are being targeted and killed, the government is seizing their land and they are being discriminated against through affirmative action programs.[12]The South African Police Service however includes a number of motives under its definition of ‘farm attack’ including race-related issues, land and property disputes, revenge or other grievances.[13] Farmer groups claim race is an important motivating factor evidenced by lower rates of violence against black workers on white farms.[14] A former commissioner of the Human Rights Commission suggests that black farmers are equally affected by farm violence and that race is not a motivating factor.[15] Credible sources also suggest that farm attacks can be opportunistic, given the remoteness of farms and the perception that landowners are elderly and wealthy.[16] Recently, President Ramaphosa rejected claims by pressure groups that a spike in attacks on farms amounted to ethnic cleansing. He strongly denied that farm attacks were racially motivated, instead characterising the attacks as a sad reminder that South Africa was still recovering from its dark past and were acts of criminality which should be treated as such. The article suggested that 49 out of 21,325 murders in the past year had been murders of farmers.[17] There is no doubt though that many if not most of the farm murders have been against whites.[18]
·The applicant said that his sister effectively lived in a shack and the family was not affluent. He said he faced a lot higher risk because he had a criminal conviction for a sexual offence. He would be living on a farm and this was high risk.
·The applicant said that in theory he might be able to access a social security benefit. However the relevant fund constantly runs out of finance. He estimated it would be some AUD320 equivalent per month. His rental would be AUD500-AUD1000 per month and life would be unaffordable.
·As to whether the South African Police force would be willing to help, he said they were badly resourced and their response times were poor.
·In urban areas it was hard to find jobs and he could not relocate to elsewhere in the country. Most of the crime is committed against white South Africans and nowhere is safe. He has never taken his wife or children to South Africa as it is unsafe.
·The current Covid-19 strain is virulent and rampant in South Africa. No vaccine is available. He was a smoker and he is overweight. Waiting times in the public health system are long and he cannot afford private care.
·He pleaded guilty to possession of child sexual materials. He was charged and released. He was legally represented, but was not informed of his legal options. His conviction would be for 10 years registration and in 8 years he would be off the register. He was convicted in 2016.
·The applicant said his sentence was very harsh and there was no evidence that the material was downloaded, searched or stored.
[11] SA Crime Quarterly, Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis, No 30,
December 2009, p. 35.
[12] Afriforum website, BBC News, South Africa: the groups playing on the fears of white genocide, 1 September 2018
[13] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015
[14] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015
[15] South African Human Rights Commission, Safety and Security in Farming Communities, 27 November 2015,
Associated Press, Pompeo says South Africa land seizures would be disastrous, 19 February 2020
[17] Aljazeera, South African President says farm attacks are not racially motivated, 12 October 2020,
Farming groups quoted in South African Human Rights Commission, Safety and Security Challenges in
The applicant’s wife’s oral evidence:
·Mrs [name] gave evidence by telephone. She said the crime rate in South Africa was one of the highest in the world. She feared for husband’s safety if he had to go there.
·Health care access was limited. There were few opportunities for her children. There would be a struggle to access work because of high unemployment and there was racism and tension there. There is a targeting of white people in South Africa.
·Mrs [name] said her husband would have to and live with his mother, not far from Pretoria - a dangerous area. This location, north of Pretoria, was a small farm.
·She said her husband’s Australian qualifications were not recognised in South Africa. His brother was struggling and was unemployed. His only option was to stay with his brother and sister.
·Being on the sex offenders register was another factor affecting her husband’s safety. People might take vigilante action against him.
·If she had to go to South Africa she could not take her children and would have to leave them in care.
·Mrs [name] had no savings or property herself.
·She said she was unsure as to whether she would move to South Africa if her husband had to return – they have two little girls and they cannot move them.
The applicant’s sister’s, [name] oral evidence:
·The applicant’s sister resides in South Africa and gave telephone evidence.
·She said that ‘we live in fear”. White people are being slaughtered she said.
·They do not go into town, and the children are bullied. Neighbours have been attacked.
·There is no space in her home for the applicant to live in, and their mother is old and lives in a one-bedroom apartment.
·The applicant faced raced-based murder.
·The government is against white South Africans.
·There is a fear of being raped and farmers being killed.
·Covid-19 is very bad in South Africa. You do not take children anywhere. Public hospitals “are a disaster.” African doctors and nurses do not care. This is an uncaring approach to people generally. She has lost quite a few family members and friends to Covid-19. Private hospitals are unaffordable.
·Africans would harm him and even kill him for being on a sex offenders register.
·Her husband is degree-educated and experienced unemployment. He cannot get work because of Black Economic Empowerment policies.
·If she could leave South Africa herself with her family she would, due to financial pressures.
·Her brother was innocent of what he was accused of. He was a [Occupation 2] and she does not believe he took such photographs as alleged. She knows his ex-wife and she is a terrible person who left him, and left their baby with him. She did it out of jealousy and it is cruel. [The tribunal notes that the offence attracted a non-custodial sentence in Australia but the applicant received a conviction]
Evaluation
Country information
The Tribunal has considered the claims of the applicant particularly in the light of country information. The Tribunal notes that the Australian Department of Foreign Affairs and Trade does not have a current country report on South Africa thus other country information has been consulted as described.
Nationality
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.
Real chance of being persecuted for reasons of race, membership of a social group
The Tribunal finds the applicant to be fearful of going back to South Africa and unwilling to return. His grounds are that he will face harm as a white person, as a white rural or farming person, and as a poorer and disempowered white individual. He largely based his submissions on experiences he and his wider family had in South Africa and the overall security and law and order situation in South Africa, particularly for people in his grouping. Coupled with this potential issue is the economic deprivations that many in his grouping face and how they in and of themselves lead to harm, and also how they also exacerbate the harm he faces.
It was clear from the applicant’s evidence and the evidence of his wife and his sister that he, and they, are fearful about serious harm and even death should he return to South Africa.
The Tribunal accepts the following:
·Prior to coming to Australia permanently in 2006 he and his former wife were attacked in their home by intruders.
·If he returned to South Africa he and his family would be living on a rural property. He would need to live with a sibling or his mother.
·He is from Gauteng province.
·The Covid-19 pandemic is seriously impacting South Africa.
·He has a criminal conviction in Australia for possessing child exploitation material.
·His criminal conviction in Australia will be placed on the South African sex offender register. Some potential employers can access this in some circumstances.
·He left South Africa because of the dangers, especially for white South Africans.
·He is impecunious, as is his wider family.
·If he cannot find work he will need unemployment benefits.
·He worked in the past as a [Occupation 1].
Despite these matters and fears which the Tribunal accepts, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.
Sexual offence
The applicant does not necessarily have a current or future profile, as a convicted sex offender in South Africa. It was not argued that people beyond his close family are aware of this. As his family appear supportive the Tribunal does not see a reason why they would divulge this to anyone.
While the applicant would go into the South African register I find that on balance, the register gives employers in the public or private sectors such as schools, crèches and hospitals the right to check that the person being hired is fit to work with children or mentally disabled people, and I find that the register is not open to the public and is confidential.
This was discussed with the applicant, and he said that there was vigilante justice and torture meted out to the individual. This can happen to you even if you do even if you not have a conviction, he added. He said if anyone found out in the community it is basically a death sentence. The Tribunal does not have country information confirmation to verify this claim. The Tribunal finds that this has not been established. While there are widespread reports of South Africans taking the law into their own hands, the Tribunal notes that this is described in country information in terms of poor law enforcement in poorer areas i.e. where a crime has been committed and there has been no redress. In the applicant’s case there has been redress for his sex offence.
Although a breach of confidentiality is a possibility, there is nothing in the available country information to suggest that this would occur for the applicant. Indeed, the justice department of South Africa internet entry on the topic states:
“Q11. Is it possible to disclose or publish any information contained in the Register?
No one including the Registrar is allowed to disclose or publish any information contained in the Register including the names of convicted offenders.
Any unauthorised disclosure or publication amounts to a criminal offence.
The National Registrar or any other person assisting him or her in the exercise and performance of his or her powers may not disclose any information which he or she has acquired in the exercise of the powers, performance of the functions or carrying out of the duties and functions conferred upon, assigned to or imposed upon him or her.
It is a criminal offence to misuse data contained in the Register either by persons authorised to have access to it or by third parties who may acquire information from the Register.
Access to this personal information is tightly controlled and used for purposes of affording maximum protection to children and persons who are mentally disabled.
Q12. May members of the public, or school governing bodies, enquire whether an individual is in the Register?
Yes, employers who have employed officials working with children in their cause of employment may establish by way of application to the Registrar whether their employees are in the register as required in terms of the Act.
Q13. What are the obligations of employees?
An employee (working with children or people who are mentally disabled) in the employ of an employer at the commencement of this Chapter, who is or was convicted of a sexual offence against a child or a person who is mentally disabled, irrespective of whether or not such offence was committed or allegedly committed during the course of his or her employment, must without delay disclose such conviction or finding to his or her employer.
Q14. What are the implications of having one’s details added in the Register?
The implications of having one’s details included in the Register is that such a person may not be allowed work with children or people who are mentally disabled or have access to them
Q15. Once a person’s details are in the Register, can they be removed?
Yes, the details contained in the Register can be removed by way of application to the Registrar. However; this will only depend on the type of sentence received upon conviction. Some details may not be removed.
Q16. What must an employer do if a staff member’s name is on the register?
[19] an employer at any time finds out that the name of an employee appears in the register, the employer must move that employee to another post which will not bring the worker into contact with a child or a person who is mentally disabled. In the event this is not possible, the employer will be required to terminate the employment contract.” [19]
The access is restricted to those employers seeking staff for working with children or disabled people. The general public are not able to access and it is not stated or implied that all employers access the register or routinely access it.
The applicant’s skill set does not point to jobs with children or the disabled. I also note that the applicant’s conviction was five years ago. He may be able to have his details removed in time, even in coming years. He suggested that his conviction would be for ten years registration and in eight years he would be off the register. The Tribunal has been unable to conform this independently, but concludes that in the passage of time he would be off the register, thereby reducing his claimed risk. Even if a mining company or other employer sought successfully to access his record it is only an inference that this would be more widely disseminated. A chain of causation would involve several steps before hypothetical harm took place (dissemination, wider knowledge, then vigilante action by a hypothetical third party so motivated) and I am not satisfied that the harm is any more than remote, by this logic.
The Tribunal’s concerns also extend to his claims about how being on the register harms his job seeking prospects. It is speculative to suggest that virtually any employer could or would access the register. Firstly, its confidentially would be an impediment to obtaining the information. I have little reason to accept the submission that all or almost employers would know about his record. This seems an assumption without details. Secondly it is an accepted fact in society that many employers, particularly smaller employers in the informal economy have little capacity for checking or paperwork and hire people regardless. The applicant could well come within such a scenario, logically. Again, the harm to his job seeking prospects is speculative and remote and I find that this is not a credible scenario in his case.
I find that he does not have a well-founded fear of persecution for being in the social group or groups, or race as he has laid out in this regard.
Crime
The applicant’s claim about facing violence and possible death because of his situation as a rural white person, meets issues when it is considered that the matters he raises could be described as generalised violence. South Africa has high crime rates and poorer people bear the brunt of the issues. Nonetheless there is little to suggest that the applicant would be subject to anything other than randomised crime. I am not satisfied that as a white South African he will be specifically targeted by criminals. I note that the crime rate is universally high across all race and ethnic groups and described this in country information in the hearing. While I accept he suffered from being a victim of crime in 2006 there is no evidence to suggest that the perpetrator or his associates will strike again.
In terms of future crime against him I note that the Head of the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise said that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident.[20]
[20] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.
Another source quoted in a Canadian Immigration and Refugee Board report observed that:
[t]here are state protection measures available to white South Africans who are victims of violence. For instance, the SAPS and the judiciary (which is quite independent) offer protection. To illustrate this point: if a person is attacked and robbed on the street, the police would investigate and arrest the perpetrator. The perpetrator is then tried in a court, and then sentenced to jail, without any reference to race. (Campbell 30 Aug. 2018)[21]
[21] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.
The Vice-Chancellor of the University of Witwatersrand, (a professor of political science by speciality) has said that while police stations and the appropriate infrastructure to address the high crime rate are not always available, all South Africans who are victims of crime have access to the same services, irrespective of race.[22]
[22] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E, 21 September 2018
The Tribunal is not satisfied that there is a real chance of serious harm through being targeted for crime, if the applicant returned to South Africa now or in the reasonably foreseeable future, for the reason of race or membership of a particular social group.
I do not have information before me of significant discrimination by the government or community against white people, despite the presence of discrimination generally in society in different forms.
Unemployment
Unemployment rates for whites are significantly lower than for blacks. Whites are not generally discriminated against in employment or services country information indicates. There is an overall unemployment rate of 28.5% in South Africa. The Tribunal discussed an 8.8 per cent reported unemployment rate for whites in South Africa, which is much lower than the overall figure. It is not accepted that of the applicant’s 52 cousins none are employed, as he claimed. It is incongruous and stretching reality that a person could keep track of this many cousins and their life and employment status, and the Tribunal does not accept this evidence. The applicant has sought to distort or embellish his evidence to the point that his credibility here is lacking. He is articulate, not an older worker, and has skilled work experience. He may not obtain the employment befitting his standing as a worker but I do not accept that he will be the target of persons depriving him of work. Nor do I accept that he is different from other white South African job seekers in this regard.
Healthcare and social welfare
The Tribunal has considered the applicant’s evidence about how people such as him do not have health insurance and rely on overcrowded public clinics and hospitals. However, while I accept that there are problems in the country with funding of hospitals and availability of medical care, these problems impact everybody and the applicant would not be denied access to employment, social or health services because of his race, farming status or his criminal record in Australia.
The Tribunal finds that the health system in South Africa, has a number of shortcomings and it is under stress due to the COVID-19 pandemic. Access to private health may be unavailable to the applicant and the public system is over-extended. Although vaccine rates are comparatively low, it is apparent that they are steadily improving.[23] 137,000 vaccinations were administered per day in mid July 2021 throughout the country, the national population being some 58 million people.
[23] sacoronavirus.co.za/latest-vaccine-statistics
However, sources indicate that inability to access medication would not be for race or any of the other reasons set out in the legislation. As the harm he would suffer, and lack of access to treatment, would be for reasons of underfunding and lack of resources, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race.
A World Health Organisation Report on health care in South Africa states that the majority of the population has access to health services through government-run public clinics and hospitals. The report suggests that African physicians are well qualified from a clinical and academic perspective.[24] One report suggests that the standard of health care in South Africa is considered the best on the African continent, with guaranteed universal access to subsidised public health care, for all citizens, based on a sliding scale according to income. A National Health Insurance (NHI) initiative is in a pilot phase prior to being introduced across the country in a phased approach from 2016–2025.[25]
[24] Immigration and Refugee Board of Canada, Situation of white South Africans including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups, ZAF106171.E., 21 September 2018
[25] Allianz Care, Healthcare in South Africa, >
There is an old-age pension available for people over 60 years old, regardless of race, currently R1 860 per month.[26]
[26] South African Government website, Old age pension, >
Major human rights reports have not identified discrimination or violence against whites as an issue in regular reports.[27] I do not accept that there is a risk, as a measure defined in the protection framework, through a withholding of healthcare.
[27] See for example, Human Rights Watch, World Report 2020 South Africa, >
While emotional stress may well occur if the applicant is unable to travel with his family to South Africa, this in and of itself is not ground for finding there to be persecution in his case.
Cumulative assessment
While accepting that there are various issues in South African society and discrimination may be a reality for the applicant should he return, I do not find that cumulatively all of the possible instances of discrimination would amount to persecution for him.
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 that crime or financial difficulty he fears would involve systematic and discriminatory conduct, instead it (if it occurred) would be random and not applied discriminatorily.
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?
The Tribunal turns now 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 .
Inability to access services or employment – does not amount to torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life
The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal is not satisfied that the harm the applicant claims he would suffer – destitution and illness as a result of inability to find a job and/or lack of access to medical services – would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Independent commentaries about South Africa suggest that white people do not face specific challenges or threats or lack of access to employment, education, health or housing.[28] Further, although hospitals and public clinics are overcrowded, as claimed by the applicant, this is not because of an intention of the government. Instead services are impacted by the state of the economy and lack of resources and underfunding rather than an intention to harm.
[28] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.
The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment because of inability to access jobs, services or treatment as there is no intention by the state to cause such harm.
The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life due to unavailability of jobs, services or treatment. There is no requirement for subjective intent applicable to ‘arbitrary deprivation of life’[29], but an element of deliberateness can be imparted into the words ‘arbitrarily deprive’. As there is no definition in the Act, the Tribunal has interpreted ‘arbitrary deprivation of life’ based on the ordinary meaning of the words,[30] while also being guided by legislative intention as expressed in the Explanatory Memorandum and Second Reading Speeches to the relevant bills, and international and local jurisdiction.
[29] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556, SZDCD v MIBP [2019] FCA 326
[30] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6]
‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’[31] and in the Macquarie Dictionary as ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.[32]
[31] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3rd edition, 1997
‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[33] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[34]
[33] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3rd edition, 1997
The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life, for reasons of inability to access employment, treatment or services, or status as a sexual offence contravener .
While there is a high crime rate in the country, crime is generally random and based on economic need. The real risk is one faced by the population of the country generally.
Similarly, the Tribunal is not satisfied that there is a withholding of state protection which would be faced by the applicant personally and that there would be an intentional withholding of protection. The United States Department of State reported in 2018 that the police have made a strong effort to decrease response times in recent years and will generally respond within a reasonable time. The Report also suggests that the judiciary is strong and independent.[35] The UK Home Office states the following about the South African police force:
The South African Police Service (SAPS) has primary responsibility for internal security within South Africa and for enforcing the law throughout the country. The government continues to improve and professionalise the SAPS, however it is reportedly understaffed, ill-equipped, poorly trained, and corruption is a problem. Around 2 million criminal cases were recorded or ‘detected’ by the SAPS between April 2016 and March 2017. While the SAPS responsiveness and effectiveness varies, it is attempting to improve its service and does take action to combat crime. This led to over 340,000 criminal cases being prosecuted in the courts in 2016/17 with 94% of cases resulting in a conviction.[36]
[35] United States Department of State, Country Report on Human Rights Practices South Africa, 2018, UK Home Office Report, Country Policy and Information Note South Africa: Background information, including actors of protection and internal relocation, December 2017 >
The Tribunal is not satisfied, on the basis of these country reports, that there is systematic breakdown of law enforcement or that laws are routinely not enforced, although there is poor police reaction in many areas. Further, as discussed earlier, the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise stated that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident,[37] thus it can be surmised that it would be the same for white people indicating that the problems of underfunding and lack of resources are widespread rather than being pertinent to particular areas only.
[37] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.
The Tribunal is not satisfied therefore that there is a systematic breakdown of law enforcement, the second element suggested in the Complementary Protection Guidelines. The Tribunal is not satisfied that the laws are ‘not being routinely enforced’, although there are inadequacies in the police service caused by underfunding and lack of resources. The Tribunal is not satisfied that the applicant would be deprived of life because of arbitrary action or inaction by the state.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of this applicant being removed from Australia to South Africa there is a real risk that he would be arbitrarily deprived of his life due to crime or withholding of protection, or for any other reason claimed.
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.
Justin Meyer
MemberATTACHMENT - 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.
…
rising murder and sexual offences, 12 September 2019, Institute for Security Studies, Policing alone cannotsolve South Africa’s violence,12 September 2019
SA Crime Quarterly, Race, class and violent
crime in South Africa: Dispelling the ‘Huntley thesis, No 30, December 2009; Immigration and Refugee Board of
Canada, ‘ZAF106171.E South Africa: Situation of white South Africans, including treatment by government and
society; state protection available to white South African victims of violence; information on the white SouthAfrican community, as well as political and/or rights groups, 21 September 2018
2017, Afriforum, Farm attacks and farm murders in South Africa – analysis of recorded incidents – 2019, 19
February 2020, South African Human Rights Commission, Safety and Security in Farming Communities, 27November 2015, News24, Farm murders on the decrease – Parliament told, 26 August 2016
Farming Communities, 27 November 2015; AfricaCheck, Factsheet Statistics on Farm Attacks and Murders inSouth Africa, 8 May 2017,
Key Legal Topics
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Citations2104473 (Refugee) [2021] AATA 3499
Cases Citing This Decision0
Cases Cited4
Statutory Material Cited0
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34SZDCD v Minister for Immigration and Border Protection [2019] FCA 326MZAAJ v MIBP [2015] FCA 478