2402260 (Refugee) - [2024] AATA 3355

2402260 (Refugee) [2024] AATA 3355 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402260
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Stefanie Memmott
DATE:9 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 May 2024 at 4:16pm

CATCHWORDS
REFUGEE – Protection Visa – South Africa – unskilled, unemployed and lacking family support – risk of harm from violent crime – a victim of violent crime – a white South African male – mental health conditions – not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed – best interests of young Australian citizens to maintain close relationship with their father – strong compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 417, 424, 499
Migration Regulations 1994, Schedule 2

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 7 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of South Africa, applied for the visa on 1 February 2024.
CLAIMS AND EVIDENCE
Claims and evidence before the Tribunal
Protection visa application
The applicant’s protection visa application includes, among other things, the following personal information:
·He was born in [year] in Durban, South Africa. He is a citizen of South Africa and no other country.
·He has held a South African passport, expired [date] 2020. He holds a current South African national identity card, issued in October 2005 and due to expire in February 2031.
·His mother, [who] was also born in Durban South Africa is an Australian citizen, living in [Queensland].
·His ex-wife, [Ms A], who was also born in South Africa, is now an Australian citizen.
·He is currently engaged to [Ms B], an Australian citizen living in [Town 1]. This relationship commenced on 10 May 2018.
·He last arrived in Australia in February 2008.
·In Australia he has been employed as:
oa [occupation] at [a workplace] in [Qld] from June 2008 to February 2012;
oas a [manager] for [an employer] in [Qld] from February 2012 to June 2016;
oas a [occupation] for [a workplace] from February 2016 to February 2020.
·He has completed a [qualification].
The protection visa application form records the following claims for protection:
·The applicant is scared for his own life to go back to his country;
·He experienced harm in his country – people broke into his home and tried to murder him. He sought help from a psychologist but it didn’t help. He moved to Australia.
·If he returns he will be murdered.
·The authorities won’t protect him as the South African police system is very corrupt.
·He won’t be able to relocate to avoid harm because they will be able to find out where he is.
Ministerial delegate’s decision
A delegate of the Minister for Home Affairs refused the protection visa application on 7 February 2024. The delegate considered that the feared harm did not relate to one of the reasons set out in s 5J(1)(a) of the Act, and so found the applicant was not a refugee. In relation to complementary protection, the delegate considered a range of country information concerning the police and judiciary in South Africa. They concluded that, notwithstanding shortfalls in the system, there are state protection measures available in South Africa such that there would not be a real risk he would suffer significant harm. The delegate also made a finding that the risk of violence the applicant faces is one faced by the population of South African, such that s 36(2B)(c) of the Act applies.
Claims and evidence before the Tribunal
Application for review
The applicant lodged an application for review of the delegate’s decision on 12 February 2018. In that application form, he made the following submissions:
·The crime in South Africa is way out of control and racism is bad. As a white male he will have zero chances of getting a job there, let alone accommodation and buying a meal.
·He has no one in South Africa to assist him with food, a home, or transport – public transport is a no go zone for white people. He will be sent back to live on the street with nothing and no one.
·He came to Australia to start a new life as he has been close to death / had near death occasions. He has been held up at gunpoint in South Africa and seen more than one person get murdered in front of him.
·He has seen a psychologist and psychiatrist from a young age, he suffers from anxiety and depression.
·He has two beautiful kids in Australia, one with his ex-wife (now an Australian citizen). He also has a daughter born to his fiancée (who are both Aboriginal). He has a letter from the Aboriginal Land Council saying he is recognised as being Aboriginal in the community and recognised by the elders.
·His life will be in danger if he goes back to South Africa.
·He will end up taking his own life if he is sent back there without his kids and family.
·He cites a reference to Jacob Zuma in the delegate’s decision and refers to native people looting the country, stripping every home, shopping centre and ATMs when he was locked up. He also refers to Julius Malema, the Youth EFF Leader that is anti-white people. His motto is ‘kill the Boer and rape the woman’.
Two letters were submitted to the Tribunal with the application for review. Firstly, the letter referred to in the above statement, from the Chairperson of the [a] Corporation and dated 16 June 2023. It refers to the applicant, his partner and their daughter all being recognised as being Aboriginal and proudly being part of [a] Nation. It states that it would be extremely detrimental for the family if the applicant is not able to be with his family and support them.
Secondly, a letter written by the applicant and dated 11 November 2022 addressed ‘to whom it may concern’, setting out information about searches in the Villawood Detention Centre, the results of those searches and poor conditions in the centre. It refers to having 2 very beautiful daughters, that he is missing out on them growing up, and wanting to get his visa back.
Pre-hearing submissions and evidence
On 3 April 2024, in response to a s 424 invitation issued by the Tribunal, the applicant submitted a detailed written statement. In summary, it sets out the following:
·Violent crime is a chilling reality in South Africa which shapes every aspect of daily life, especially for white South Africans (following the end of Apartheid). There is a sense of danger at all times, and contact crimes (assault, robbery, murder) are ever present threats. Violent crime is a harsh reality that they confront every single day.
·There has been a disturbing increase in crime rates recently – 184 020 incidents reported between October and December 2022 – and they occur throughout the country, not just in isolated areas. Corruption, poverty, sky-high unemployment and failure of public services fuel these crime rates, drive people into committing crimes.
·Besides the fear of violence, many white South Africans now face a threat to a viable lifestyle and livelihood due to black empowerment legislation and policies. They have greatly decreased opportunities for whites to gain places in educational institutions and to access employment opportunities. Families with above average incomes will still be fine, but the average white person now will really struggle to find educational placements, employment and business opportunities.
·This lack of opportunities for employment and income forces white people to live in areas where they are at risk of greater contact violence.
·The applicant experienced violent crime when living in South Africa, including:
oAt age [age], his parents’ business was subject to an armed holdup by intruders carrying AK47 assault rifles in search of money and valuables;
oAt age[age], he was hijacked at gunpoint by three indigenous individuals and taken to a bank ATM to withdrawn money, then driven around for several hours under threat of death and dumped in a remote location far from home;
oAt age [age], his home in Durban was broken into by armed robbers; his father shot and killed one of the robbers.
·These assaults were perpetrated by indigenous South Africans. He considers that the causes of such incidences of harm include apartheid history and current perceptions of unfairness (e.g. whites had it easy and took everything); lack of employment opportunities in large segments of society; little to no income in large segments of society; limited welfare availability.
·All these past events were reported to police, but the impression given was that there was never any real chance those involved would be apprehended. South African police are overwhelmed with day to day crime.
·He and his family took a range of precautions to try to avoid crime, including moving to a secure gated community; fitting out motor vehicles with run flat tyres; keeping firearms and ammunition in the home; minimising night-time travel; and general awareness in day to day movements (several examples are listed).
·He and his family did discuss relocation, but the only places where there were opportunities for gainful employment were big cities with similar crime problems as Durban.
·The applicant is still haunted by the crimes he witnessed and experienced.
·The applicant fears he will be at increased risk of disadvantage and risk of violence if he returns to South Africa because he has no formal qualifications, he has no assets or savings (which in turn limits his opportunities to gain educational qualifications and obtain employment), he has no family members in South Africa and the current Black Empowerment situation makes it even more difficult to obtain gainful employment and / or education.
·The applicant notes his mother and stepfather lived in South Africa from 2015-2019, but returned to Australia because of the risk of violent crime.
The Tribunal also received, prior to hearing, 4 statements/submissions from family members, 3 of which included web links and/or attachments, as set out below. At hearing, the applicant confirmed that these had all been submitted on his behalf and that he would like the Tribunal to consider them.
An undated letter from [the] applicant’s mother, was received on 22 April 2024. It referred to security precautions commonly taken in South Africa and included photos of some of these (e.g. internal security doors within residences, external fencing). This letter also referred to the 3 incidents of violence set out in the applicant’s statement (submitted 3 April 2024): an armed robbery of the family business, being abducted at gunpoint, and the armed robbery of his father’s home. It also referred to the murder of a close family friend (and included a web link to a news article about the incident) and the armed robberies of a jewellery business owned by another family friend (and included a web link news article about one such incident). The statement also referred to the circumstances of [her] mother, who remains living in South Africa in a retirement village and a 2019 incident where her husband narrowly missed a car jacking incident. The submission refers to the risks her son would face on return to South Africa and the detrimental effect that deportation would have on his Australian citizen children.
An undated letter from [Mr C], the applicant’s stepfather, was also received by the Tribunal on 22 April 2024. Two versions of the letter were submitted, which were not identical but substantially the same (both versions have been considered by the Tribunal). The letter explained that he and his wife had intended to make South Africa their permanent base, but decided to relocate to Australia after an attempted car hijacking in 2019. [Mr C] submits that white South African citizens and residents like the applicant face particularly disproportionate targeting and risks, compounded in the applicant’s case by being unskilled, unemployed and lacking family support. The submission also refers to economic discrimination and the impacts of the affirmative discrimination laws, and argues the applicant would have no way to afford basic necessities in South Africa. The submission attaches the following:
·Copies of [Mr C]’ passports.
·A copy of [Mr C]’ permanent residence permit.
·A copy of a contract for sale of a home in [South] Africa.
·A one page document listing various incidents [Mr C] experienced in South African and the strategies he followed to mitigate risk when he lived in South Africa.
·A one page document about Broad-Based Black Economic Empowerment laws (the source of the information is unclear). The document includes two web links as footnotes, one – which appeared to be intended to link to the actual legislation - was not able to be accessed by the Tribunal (a matter which was raised with the applicant at hearing), the other was an Al Jazeera article from 28 July 2023 entitled ‘South Africa’s controversial race quota law stirs debate’.
·A web link to an article on the website of an organisation called ‘Debtline’, dated 5 December 2023 and entitled ‘South Africa’s Middle Class is R10K Poorer than in 2016’.
·A web link to an article from the Global Government Forum dated 30 July 2023, and entitled ‘In pursuit of public good: the need for a welfare revolution in South Africa.’
·A web link to an article from the Knysna-Plett Herald dated 22 May 2018 and entitled ‘Robbers Dressed as Cops Hold up store’. This is article concerns an armed robbery of a jewellery store which is said by [Mr C] to have occurred 30 minutes after they walked past the store.
·A web link to a 166 page PowerPoint presentation authored by the South African Police Service and entitled ‘Crime Situation in Republic of South Africa Twelve (12) Months (April to March 2019_20)’.
·A web link to a 136 page document authored by the Crime Registrar Head Office of the South African Police Service and entitled ‘Police Recorded Crime Statistics Republic of South Africa 2022-2023 Financial Year – Annual Figures (April 2022 to March 2023).
·A web link to a media release issued by the Democratic Alliance Shadow Minister of Police, Andrew Whitfield MP, on 16 February 2024 and entitled ‘#Crimestats: Ramaphosa and Cele are the enemies of safety as violent crime rises again’.
An undated letter from [Ms A], the applicant’s former wife, was submitted on 24 April 2024. It refers to high rates of violent crime in South Africa and argues that the applicant is at heightened risk of being targeted because he is white and lacking in formal education, a support network and stable housing. The submission refers to a number of violent crimes experienced by her family members in South Africa, and includes a copy of a police report for one instance of armed robbery involving her brother in law. The statement also refers to a lack of job opportunities due to affirmative action laws in South Africa. The letter also details the detrimental impact the applicant’s deportation would have on the wellbeing and emotional health of his Australian born daughters.
An email from [Ms B] , the applicant’s fiancée, was submitted to the Tribunal on 25 April 2024. The email states that going back to South Africa would be very dangerous for the applicant, and notes he no longer has family there. It states that her three daughters (one of whom is the applicant’s biological child) all look up to him as a father, that he has always been there for the children, and describes in detail the negative impact his absence has had on their family.
The hearing – oral and documentary evidence
The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. He put forward essentially the same claims as had been advanced in writing. His evidence is discussed in more detail below, as relevant.
As discussed further the below, the applicant suffers from anxiety, depression and drug addiction. However, he was able to effectively engage with the Tribunal at hearing, giving evidence, making submissions and responding to questions in a clear way, with detail and nuance. The Tribunal made offers to take breaks during the hearing, but these were declined by the applicant. The Tribunal is satisfied that the applicant was competent to participate in the hearing, and that he had a real and meaningful opportunity to give evidence and present arguments in support of his case.
No further documentary evidence was submitted at hearing, and no oral witness evidence was received.
Post hearing evidence and submissions
No evidence or submissions were received following the hearing.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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
Receiving country
The applicant gave evidence that he is a citizen of South Africa and no other country. In the absence of any evidence to the contrary, the Tribunal accepts that this is the case and finds that South Africa is the receiving country for the purpose of assessing his claims.
Risk of harm from violent crime
The applicant gave evidence at hearing that he is not racist, but that he knows that as a white person with no education things will happen to him in South Africa. He gave evidence that will not be able to get a job and he fears for his life, noting that he has seen too much happen there. The applicant gave evidence that he is petrified of returning due to fear of violent crime in South Africa. He also referred to being a victim of violent crime, including being stripped naked. He said still has flashbacks and nightmares concerning the incident when his father’s home was broken into and his father shot an intruder.
Submissions made on the applicant’s behalf by his ex-wife, stepfather and mother contend that the applicant will be at particular risk of being targeted for violent crime because he is part of an ethnic minority group with limited societal status, a white South African male, lacking in formal education, lacking in vocational and work skills, lacking familial or other support networks, lacking stable housing with limited resources and limited connections.
The Tribunal accepts that the applicant has been a victim of violent crime in South Africa on at least 3 occasions, as outlined in his written statement and discussed at hearing. The Tribunal also accepts that the incidents of violent crime referred to in the statements of his mother, step‑father and former wife occurred. The Tribunal accepts that the applicant’s mother and stepfather returned to Australia due to increasing crime risks after seeking to permanently settle in South Africa. The Tribunal accepts that many South African residents take a range of measures to try to mitigate the risks of becoming a victim of violent crime. However, as discussed with the applicant at hearing, country information before the Tribunal indicates that such incidents are part of a problem of generally high rates of violent crime in South Africa that impact everyone in the country, regardless of their race or other personal attributes and regardless of their circumstances.
Country information before the Tribunal indicates that South Africa has a very high rate of violent crime, that violent crime is pervasive and that it affects every sector of society.[1] In September 2023, Police Minister Bheki Cele reported that approximately 200 000 people had been killed in South Africa in the last 10 years. While 16 000 people were murdered in 2013, the number climbed to 25 000 in 2022.[2]
[1] ‘South Africa: murders surge by more than 7% in one year’, The Guardian, 12 September 2018; ‘Ramaphosa’s ‘killings of white farmers’ comment: What the president meant’, News24, 27 September 2018.
[2] ‘Freedom in the World 2024 ‑ South Africa’, Freedom House ( accessed 18 April 2024).
Information before the Tribunal indicates that there are no areas of South Africa that are dangerous for white South Africans per se, only areas in South Africa which are dangerous for everybody, and that there are very few areas in South Africa that are safe for any person of any race.[3]
[3] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
A 2021 analysis by the Institute for Security Studies noted that crime and violence levels in South Africa are again rising. It noted these increases are probably the consequence of a combination of factors such as socio-economic deterioration, urbanisation, increased inequality, declining police performance and high levels of police corruption. A main driver of murder in many areas is the availability of illegal firearms, which is often interlinked with organised crime networks.[4]
[4] ‘South Africa’s security sector is in crisis – reform must start now’, Institute for Security Studies, 21 July 2021.
A more recent media release, issued by the Shadow Minister for Police in February 2024 (and submitted by [Mr C]) indicates that rates of violent crimes are still increasing.[5]
[5] ‘#Crimestats: Ramaphosa and Cele are the enemies of safety as violent crime rises again’, Democratic Alliance Shadow Minister of Police, Andrew Whitfield MP 16 February 2024.
There are suggestions by some advocacy groups that white farmers are racially targeted for burglaries, home invasions and killings, but many observers attribute such incidents to the country’s generally high and growing crime rate. Police statistics from 2018/2019 indicated that farm killings represented only 0.2 percent of all killings in the country.[6] According to the Institute for Security Studies, ‘farm attacks and farm murders have increased in recent years in line with the general upward trend in the country’s serious and violent crimes.’[7]
[6] ‘2019 Human Rights Report – South Africa’, United States Department of State, 11 March 2020.
[7] As cited in ‘2022 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
An ABC Foreign Correspondent report quotes a senior member of the African National Congress, Ronal Lamola, as saying crime is happening to all races in South Africa and everyone in society. It also includes quotes from Gareth Newman, head of Justice and Violence Prevention at the “internationally respected” Institute for Security Studies in Pretoria. He states that South Africa has a real problem with violence, and that there was a 40% increase in all kinds of armed attacks since 2012. He states that there is evidence that attacks on white farmers are largely driven by criminal intent and greed.[8] In another article, Mr Newman is quoted as saying young black males living in poor urban areas like Khayelitsha and Lange face a far greater risk of being murdered than white farmers and that there is a general trend of crime rates increasing.[9]
[8] ‘The white minority took our land. Enough is enough’, ABC News, 19 September 2018.
[9] ‘South Africa criticizes Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018.
Country information indicates that white South Africans are heard more on crime-related issues, as they have more access to the media. It indicates that black South Africans are most affected by crime, experience more violence and make up the vast majority of victims of violence, and that white people experience less crime than other racial groups in South Africa.[10] However, the Tribunal also notes a 2016 community survey indicated white households experience higher rates of house breaking, home robbery, robbery and thefts of motor vehicles.[11]
[10] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018; ‘Killing of White Farmer Becomes a Flash Point in South Africa’, The New York Times, 16 October 2020; ‘South Africa criticizes Australian plan to fast-track white farmer visas’, The Guardian, 15 March 2018.
[11] Statistics South Africa Community Survey 2016, as cited in ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
The United States Department of State, in a country security report, states that:
Violent crime remains an ever-present threat in South Africa and impacts people where they live, work, shop and while in-transit. While crime decreased during 2020 and 2021 due to strict coronavirus-related lockdowns and curfews, the first half of 2022 showed a marked increase, particularly in violent crime. Criminals do not necessarily single out US citizens for criminal activity because they are Americans, but rather for their perceived relative wealth as most crimes are opportunistic in nature.[12]
[12] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 19 April 2024).
The Tribunal has also considered the 2 crime statistics documents submitted by [Mr C]. They provide detailed information about the rates of many different kinds of violent crime, about trends in these crimes over time and in different provinces of South Africa, about weapons used when committing crimes and the motivation for crimes. These documents do confirm that there are very high rates of violent crime in South Africa. However, they do not indicate that race is a prevalent or common motive for any of the crimes analysed, including common assault, assault causing grievous bodily harm, kidnapping, attempted murder and murder. Rather, they indicate race or ethnicity is a very uncommon motive.
When the country information obtained by the Tribunal was discussed with the applicant at hearing, he indicated that the media doesn’t report accurately on these issues, that in the town he is from there has been looting of shopping centres and rubbish spread in the streets and set on fire by protesting garbage collectors. He said that black Africans in the immigration detention centre where he is currently being held have told him he is facing a death sentence is he returns. He also referred to the youth leader of the EFF who is trying to take over the ANC, stating that he chants in front of audiences of hundreds of thousands of people for the young South Africans to kill the white man and rape the white woman, and that the courts in South Africa have said he can say whatever he likes. He indicated that the EFF advocate for white genocide.
The Tribunal also discussed with the applicant country information before it about the EFF (Economic Freedom Fighters). It indicates they are a political party which has a racialized approach to understanding society and advocates expropriation without compensation of white wealth in general, and farmland and mines specifically. However, country information before the Tribunal indicates that this racialized rhetoric is not held by the majority and there is no indication or evidence that there is violence which has resulted from this rhetoric.[13]
[13] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
When this information was discussed with the applicant, he referred to a huge rally the EFF held in a rugby stadium in Durban last year during the elections, causing havoc and disrupting polling. He expressed the view that the EFF will take over from the ANC in South Africa and clear all the white people out.
The Tribunal has considered the applicant’s evidence about the EFF and the country information noted above, and accepts there are groups and people who hold strong anti-white views in South Africa and that these views are publicly expressed. However, the weight of the country information before the Tribunal indicates that race or anti-white sentiment is not the reason for the very high rates of violent crime in South Africa. Rather, the country information before the Tribunal, which the Tribunal places weight on, indicates that violent crime is largely driven by economic factors and that to the extent race is relevant, black South Africans are similarly, if not more significantly, impacted by such crimes.
As discussed further below, the Tribunal accepts that the applicant will be returning without secure housing, without familial presence / support and with limited financial means, such that he won’t be in a position to mitigate against the risks of crime as he has in the past (e.g. by living in a gated community) and he may have to live in poorer or more dangerous areas than he has in the past. However, the Tribunal considers that the country information before it indicates that violent crime rates are very high in South Africa and that all persons in South Africa are at risk of becoming victims of violent crime regardless of their circumstances or race.
The Tribunal accepts that there is a real chance the applicant will be the victim of violent crime on return to South Africa and that this could involve treatment amounting to serious harm. However, the Tribunal is not satisfied on the evidence before it that such harm would be directed towards to the applicant for the essential and significant reason of his race and/or for any of the other reasons specified in s5J(1)(a) of the Act.
The Tribunal also considered whether there was any evidence of discrimination in the response of the South African state to violent crime. While discriminatory treatment by police (as opposed to the poor performance of police) was not mentioned in any of his written submissions or the written submissions made on his behalf, when specifically raised by the Tribunal at hearing the applicant said that police ignore white people when they walk into police stations or call to report people being in their yard. He said that when he was hijacked, he was stripped naked and dropped in a rural area. He went to the nearest police station, but they had no care factor – not even giving him clothes or a report number or offering to find his car. He said that 99.9% of the cops are African or Indian, though referred to there being some white cops including a friend of his brother who was killed in a shoot-out.
The Tribunal has considered this evidence and accepts the applicant may have had a negative or unsatisfactory experience with the police following his hijacking. However, the assertion that South African police ignore white people generally is not supported by country information before the Tribunal and upon which the Tribunal places weight. Rather, the country information points to poor systems, large caseloads and under resourcing as the reasons for poor police performance in South Africa, along with corruption.
The United States Department of State, in a country security report, states that the South African Police Service (SAPS) has made a strong effort to decrease its response times in recent years, but large caseload backlogs, largely paper drive processes and inefficient case management hampers the effectiveness of the justice system.[14] A recent media release issued by the Shadow Minister for Police (and submitted to the Tribunal by [Mr C]) refers to the SAPS detective service being woefully understaffed and its total personnel complement being smaller today than it was in 2019.[15] Other information before the Tribunal indicates that police stations and appropriate infrastructure to address the high crime rate are not always available, but that the state provides all South Africans who are victims of crime the same services, irrespective of race.[16] Information before the Tribunal indicates that South Africa suffers from widespread corruption and that anti-corruption laws are inadequately enforced.[17]
[14] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 19 April 2024).
[15] ‘#Crimestats: Ramaphosa and Cele are the enemies of safety as violent crime rises again’, Democratic Alliance Shadow Minister of Police, Andrew Whitfield MP 16 February 2024.
[16] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
[17] ‘South Africa Corruption Report’, GAN Integrity, May 2018.
On the evidence before it, the Tribunal is not satisfied that there is a real chance the applicant would experience persecution in the form of the withholding of state protection or deliberate provision of inadequate protection for the essential and significant reason of his race, and/or any of the other reasons specific in s 5J(1)(a) of the Act.
Employment, housing and economic hardship
The applicant gave evidence he did not complete his schooling and that it was very disrupted, as after his parents split up (when he was around [age] or [age] years old) he would alternately spend extended periods in both Australia (with his mother) and in South Africa (with his father).
The applicant gave evidence that in South Africa his father ran a [business], and he worked as a labourer in that business. In Australia, he has worked in various roles in [an] industry for many [years]. He gave evidence of being promoted within a business and being offered roles by competing firms, suggesting he performed well in his employment in Australia. His evidence also reflected that he is a very hard worker, working excess hours, working in multiple roles within the same business and learning new skills on the job. He has obtained several tickets and licences associated with this work, and commenced (but did not complete) a [qualification] at TAFE.
However, the applicant gave evidence that he would not be able to find a job in South Africa as a white person without qualifications on paper. He explained that the rules for the South African government are that they have to give 80-90% of work to their own people, and that black people have to be offered a job first. He gave evidence he tried to apply for work in South Africa before he settled in Australia (not long after he turned [age]) but could never find work. He gave evidence he wouldn’t have the capacity to look into training or education because he wouldn’t even have a place to live.
Submissions made on the applicant’s behalf by his ex-wife contend that job opportunities for individuals like the applicant are scarce, largely due to the black economic empowerment laws which heavily favour black South Africans in the employment sector. His stepfather’s written submissions contend he will be subject to extreme economic discrimination and that he will be shut out of the labour market due to black empowerment measures and his lack of education and vocational skills.
The applicant gave evidence that if he had to return to South Africa he doesn’t know where he would live, that he doesn’t have funds to pay for a room and there is no welfare or public housing there. His only relative who still lives there is a maternal grandmother. The applicant gave evidence that he is aware she lives in retirement village but he does not have contact with her. He said there are white people living in tents in the bush in South Africa, that roles have been reversed and that white people have had everything taken off them to teach them a lesson.

The applicant gave evidence that, prior to settling in Australia, he tried to live out of his father’s home with [Ms A] (his now ex-wife, mother of his older daughter) but it was impossible to do this. They tried living in a lower class area of Durban and then, after a period of house-minding for one of [Ms A]’s relatives there, they tried finding a place to live in Capetown but couldn’t afford it. It was then they decided to come and live in Australia.
The applicant gave evidence that when his mother and stepfather lived in South Africa in 2014-2019 they also ran a business, [but] that now they lived [in Australia]. His stepfather has a government pension and his mother runs her own [business]. He gave evidence his mother owns the home she lives in. The applicant has one sibling who now lives in [Country 1], an older brother. When in South Africa he also owned his own [business], and now in [Country 1] is trying to start a [business]. The applicant gave evidence that his older brother, before he moved to [Country 1] about 3 years ago, would help whenever the applicant returned to South Africa, ensuring he had a place to stay and a car, and that they are currently in regular contact. The applicant gave evidence that he used to be close to his biological father, but that is no longer the case since he remarried about 4 years ago. His father lives between [countries] and still runs a [business].
However, when raised with him, the applicant gave evidence that no one in his family would help him financially, even if he was homeless in South Africa. He stated that they are sick of helping him, that they have declined requests for help in paying for a lawyer or barrister and that even that day his mother said she couldn’t transfer him $20 to buy some food while he was out of the detention centre, referring to her only being able to afford baked beans to eat for dinner (which the applicant didn’t believe). His brother is starting a business and so doesn’t have money to spare. His father would have helped in the past, but now always says he is broke. The Tribunal raised with the applicant the written statement of his stepfather which does say he’s prepared for offer the applicant financial assistance and otherwise offer support in Australia. However, the applicant stated this would be more like giving him money for a meal, not giving him money for a place to stay.
The Tribunal accepts the applicant’s evidence about his education, work experience and vocational qualifications. The Tribunal does not accept the contention the applicant is unskilled and will be unable to find any job, given his evidence at hearing about significant work experience in [an] industry. However, the Tribunal accepts that there is a higher unemployment rate in South Africa than in Australia,[18] such that it may be generally more difficult to obtain employment in South Africa than it is in Australia, that a lack of formal qualifications may impact his ability to obtain employment, and that the applicant will no longer have the option of working in a family business nor family contacts within the industry he can draw on. The Tribunal also accepts that there may be occasions where he is not offered a job because a business is seeking to demonstrate positive performance against the goals of black economic empowerment legislation (discussed in more detail below).
[18] ‘South Africa’s controversial “race quota” law stirs debate’, Al Jazeera, 28 July 2023; ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
The Tribunal accepts that the applicant will not have the option of living with family on return to South Africa and may have difficulty in obtaining accommodation. The Tribunal accepts that there would be not any state welfare available to the applicant. The Tribunal does not accept the applicant’s claim at hearing that his family would offer no financial assistance to him, even if he was homeless in South Africa. The Tribunal considers his mother, stepfather and brother would offer him some financial assistance, as his brother has done in the past and his step-father has committed to in his written statement (submitted 22 April 2024), though the Tribunal accepts this might be of a limited nature.
The Tribunal is satisfied that there is a real chance the applicant will experience difficulty in obtaining employment. However, country information before the Tribunal does not support the claim that this would be a result of discriminatory treatment, directed towards the applicant because he is white.
Country information before the Tribunal indicates that the legacy of apartheid means privilege and prosperity has a distinct racial character in South Africa, with a far fewer proportion of white South Africans being poor and unemployed than black South Africans.[19]
[19] ‘BTI 2024 Country Report – South Africa’, Bertelsmann Stiftung.
There are black economic empowerment programs in place in South Africa which are essentially affirmative action programs. However, even noting there are a range of statistics before the Tribunal, it is clear that the unemployment rate of white South Africans remains far lower than that of black South Africans. One set of figures before the Tribunal indicates that in 2017 30% of black South Africans were unemployed, compared to 6.7% of white South Africans. Another set of figures put the rates at 50-60% for blacks South Africans compared to 3% for white South Africans.[20] A more recent figure, from 2023, indicates 88% of those who are unemployed in South African are Black,[21] and the Al Jazeera article submitted by the applicant’s step-father indicates that nearly 40% of Black South Africans were unemployed in the first quarter of 2023, while the jobless rate for whites was 7.5%.[22]
[20] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
[21] ‘BTI 2024 Country Report – South Africa’, Bertelsmann Stiftung.
[22] ‘South Africa’s controversial “race quota” law stirs debate’, Al Jazeera, 28 July 2023.
The Broad-based Black Empowerment Act of 2003 (B-BBE Act) is one such affirmative action measure. It seeks to increase the participation of black people in the South African economy by requiring state and public entities to comply with good practice codes issued under the Act, for example when developing procurement practices or entering into partnerships with the private sector. This is intended to, in turn, place pressure on the private sector to comply with B-BBE policies. Entities are considered in terms of effective ownership by black people, the extent black people are represented on boards and in senior management, the extent to which employers carry out initiatives designed to develop the skills of black people, the extent to which entities buy goods and services from suppliers with strong B-BBE levels and the extent to which they carry out initiatives that contribute to socio‑economic development.[23]
[23] ‘Guide to Broad-Based Black Economic Empowerment – 2023 Edition’, Baker McKenzie.
However, the B-BBE Act has been criticised as failing to broaden black ownership and participation in the formal economy. Rather, reports suggests there have been only a limited pool of beneficiaries who in several instances have ‘happened’ to be high-level African National Congress (ANC) officials or political donors.[24] Its effectiveness is also hampered by the practice of ‘fronting’ whereby black people do not ultimately benefit from transactions.[25] Information before the Tribunal indicates that B-BBE programs have not been successful in radically transforming management and ownership structures of large corporations, with white men still managing the largest companies in the economy and holding the majority of directorships in listed companies.[26]
[24] ‘BTI 2024 Country Report – South Africa’, Bertelsmann Stiftung.
[25] ‘Equality Report 2017/2018’, South African Human Rights Commission, 2018.
[26] ‘Equality Report 2017/2018’, South African Human Rights Commission, 2018.
Statistics reveal that between 2003 and 2018 there was a decline in the percentage of white people occupying positions at the levels of both top management and senior management, and on the professionally qualified and skilled and technical and professional levels. The percentage of black people at both the levels of top management and senior management and skilled technical level had increased, however they remain under presented and there has not been a substantial improvement at the professional and skilled technical levels.[27]
[27] Jeannine van de Rheede, ‘The Broad-Based Black Economic Empowerment Act 53 of 2003 and the ways in which the commission of fronting practices affects the achievement of its objective’, African Journal of Democracy & Governance / Revue africaine de la démocratie & de la Gouvernance, Vol. 7, No 1, 2020,
In its 2021-2022 annual report, the Commission for Employed Equity found that white and Indian men were overrepresented in management and skilled labour positions, while women and black employees were underrepresented in management and skilled labour positions. White and Indian population groups continued to dominate top and senior management positions.[28]
[28] As cited in ‘2022 Country Reports on Human Rights Practices – South Africa’, United States Department of State.
Information submitted by [Mr C] also refers to the 2023 passing of the Employment Equity Amendment Bill, which requires businesses who employ over 50 people to submit plans as to how they will achieve stipulated equity targets and to have certification they comply if they want to do business with the state. However, the article submitted that discusses this law also refers to persistent inequality in employment rates, with much higher unemployment rates for black South Africans.[29]
[29] ‘South Africa’s controversial “race quota” law stirs debate’, Al Jazeera, 28 July 2023.
Freedom House reports that:
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.
The legacy of apartheid continues to segregate the population and restrict non-white opportunity for employment and education.[30]
[30] ‘Freedom in the World 2024 ‑ South Africa’, Freedom House ( accessed 18 April 2024).
A 2018 report prepared by the Research Directorate of the Immigration and Refugee Board of Canada, which draws on a range of sources, indicates that white South Africans are in a privileged position in South African society and are substantially wealthier than other racial groups. It quotes a source stating that white South Africans do not face any specific challenges or threats in society. [31]
[31] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.
Another source indicates that while white poverty levels have increased, they still pale in comparison to black poverty levels. The overwhelming majority of poor South Africans are black or coloured and that number has continued to grow.[32]
[32] ‘White South Africans complain affirmative action police is causing them to face discrimination’, ABC News, 1 August 2016.
When this country information was discussed with the applicant at hearing, he gave evidence that for businesses that are not set up as family trusts, they need to use 50-60% of their business share to give black managers allowances, a company vehicle and a place to call home even if they don’t turn up to work, and then you still need to employ 85% black people, leaving white people all competing for 15% of the jobs. He pointed out that he would be competing against people with an education, which he doesn’t have. He told the Tribunal that he has lived in South Africa, which is different to reading a news article and he knows for a fact he’s tried to apply for work there and can’t get a job. He indicated that the South African media won’t publicise racism as the country is still trying to attract tourists, but that the racism is very bad there. The Tribunal has considered the applicant’s evidence, but places weight on the country information before it on this issue, which draws on a wide range of sources.
The Tribunal accepts that there is a real chance the applicant will not be able to find employment in South Africa. However, the Tribunal considers this would be due to a range of factors, including his lack of formal qualifications, lack of contacts and generally high unemployment rates. The Tribunal accepts there may be occasions where he is not offered a job because of businesses seeking to comply with the B‑BBE Act or other affirmative action measures. However, the country information set out above indicates that these laws and associated policies / actions have not resulted in widespread or significant levels unemployment for white South Africans and have not been applied in a way that has had any substantial impact on patterns of employment in South Africa. The Tribunal is not satisfied on the evidence before it that the real chance of unemployment faced by the applicant would be the result of systematic and discriminatory conduct directed towards him for the essential and significant reason of his race and/or any of the other reasons specified in s 5J(1)(a).
The Tribunal also accepts that the applicant may have difficulty affording housing and other basic necessities in South Africa. However, the applicant has not claimed he will be denied housing, food or other basic necessities because of his race and/or another reason specified in s 5J(1)(a), rather his evidence was that he will be unable to afford these things because he will be unable to obtain employment, will not have familial support and will not have access to welfare as is available in Australia.
Country information before the Tribunal suggests that to the extent race is a factor in housing in South Africa, it is black people who face structural barriers to housing due to pervasive economic inequality.[33] When this was discussed with the applicant at hearing he referred to media reporting about white people sleeping in the streets, living in shacks and in tents on blocks in the bush, and black people driving around in expensive cars while white people are begging at traffic lights.
[33] ‘Why are South African cities still so segregated 25 years after apartheid?’, The Guardian, 21 October 2019.
The Tribunal is not satisfied on the evidence before it that any difficulty the applicant will face in terms of obtaining housing and other necessities will be a result of systematic and discriminatory conduct directed against him for the essential and significant reason of his race and/or another reason specified in s 5J(1)(a).
The applicant’s written submissions also refer to black empowerment laws impacting on the educational opportunities for white South Africans. However, he has not made any specific claims about wanting to seek further education, even when raised at hearing, and has not identified any specific policies or laws which discriminate against white South Africans in the field of education. The applicant’s written statement (submitted 3 April 2024) suggest it will be a lack of financial resources which will limit his ability to undertake educational opportunities. The Tribunal accepts that the applicant may not be able to afford to undertake further education or have the capacity to engage with further education in South Africa (noting findings on the applicant’s mental health, discussed below). However, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of being excluded from or otherwise adversely treated in relation to education in South Africa.
Mental health
The applicant gave evidence that he has had problems with drug addiction for much of his life, starting with his father taking him to clubs as a young teen in South Africa and including times in [an] industry here in Australia when people shared drugs to help them work long hours. He has attended rehabilitation in the past, but considers he still has a problem.
He was diagnosed with anxiety and depression about 5 or 6 years ago. He is supposed to take medication regularly but that has been difficult because of the disruptions of being in gaol and immigration detention. He is currently very depressed, unable to leave his room at the detention centre even to get his medication or food. He also gave evidence at different points in the hearing that he would kill himself if sent back to South Africa. The email submission from the applicant’s fiancée, [Ms B] , also expresses significant concerns about the applicant’s mental health.
Country information before the Tribunal indicates that a range of psychological health services are available in South Africa from both public and private providers, and that there are also a number of organisations dedicated to treating or advocating for greater awareness of psychological health. [34] However, country information also indicates that psychological health remains a comparatively low priority in terms of allocated resources, particularly in rural areas, and that existing services are affected by limited funding.[35]
[34] ‘Mental health services in the Western Cape’, Western Cape Government, 26 September 2017; ‘Life Mental Health’, Life Healthcare, 2017 ( accessed 19 April 2024); ‘Integrating mental health in South Africa’s health system: current status and way forward’, in South African Health Review 2016, Health Systems Trust, 5 January 2016; ‘Why South Africa is failing mental health patients and what can be done about it’, The Conversation, 6 October 2016; Annual Report April 2015 – March 2016’, SA Federation for Mental Health, 2016; ‘Profile of The South African Depression and Anxiety Group’, The South African Depression and Anxiety Group ( accessed 19 April 2024); ‘About us’, Psychological Society of South Africa ( accessed 19 April 2024).
[35] ‘Why South Africa is failing mental health patients and what can be done about it’, The Conversation, 6 October 2016; ‘South Africa struggles to manage mental illness’, health24, 1 December 2015; South African scandal after nearly 100 mental health patients die’, Agence France Presse (AFP), 2 February 2017.
Country information indicates that there are problems in accessing public health care and public education in South Africa, but these issues are faced by both white and black South Africans, and black South Africans are burdened more as a result because of their lesser access to resources.[36] The Tribunal places weight on this country information
[36] ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on the white South African community, as well as political and/or rights groups’, Research Directorate, Immigration and Refugee Board of Canada, 21 September 2018.

The applicant gave evidence that he won’t be able to access medical care in South Africa. He indicated he has never heard of there being free medical or dental care in South Africa, rather that his family has always had to pay for any kind of medical treatment. He then referred to there being little clinics in the centre of town, but that you don’t see white people going into because of the risk violence. He stated if he went into a free clinic as a white person they wouldn’t serve him because it’s not known.
The Tribunal accepts that the applicant suffers from depression, anxiety and drug addiction. The Tribunal accepts that the applicant will not be able to afford to pay for private health care to treat these conditions in South Africa. The Tribunal also accepts state resourcing issues may impact his ability to obtain public health care for his mental health conditions in South Africa. However, the Tribunal considers the applicant’s evidence he would be refused service is speculative, given his evidence he has never tried to access public health care, and prefers the country information in this respect. The Tribunal is not satisfied on the evidence before it that the applicant would be denied mental health care for the essential and significant reason of his race (and/or any other reason specified in s 5J(1)(a)) or otherwise subjected to systematic and discriminatory adverse conduct in relation to his mental health.
The Tribunal accepts the applicant’s mental health would deteriorate on return to South Africa and notes the applicant’s evidence he would commit suicide. However, the Tribunal does not consider that this would involve persecution of the applicant by another person for one of the reasons specified in s 5J(1)(a).[37]
[37] CSV15 v MIBP [2018] FCA 669.
The Tribunal accepts the possibility that in travelling to the locations of public health care clinics the applicant may face a real chance of serious harm in the form of violent crime but, for the detailed reasons set out above, it does not accept that real chance of serious harm would be for the essential and significant reason of the applicant’s race (and/or any other reason specified in s 5J(1)(a)).
Concluding finding - refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed. The Tribunal is not satisfied that he is a refugee, as defined by the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In relation to violent crime, the Tribunal accepts that there is a real risk the applicant will be the victim of violent crime as a necessary and foreseeable consequence of removal to South Africa and that this could take the form for significant harm, including arbitrary deprivation of life. However, based on the country information outlined above and the Tribunals findings about that information, the Tribunal is satisfied that this real risk is one faced by the population of South Africa generally and not faced by the applicant personally, such that s 36(2B)(c) applies and there is taken not to be a real risk he will suffer significant harm in South Africa.
In relation to provision of services by police, the Tribunal accepts that the applicant may experience poor or inadequate responses by police in relation to violent crime. However, the Tribunal is not satisfied that this would amount to significant harm. Having regard to the country information discussed above (on which the Tribunal has placed weight), there is no evidence that police deliberately provide an inadequate response to the high rates of violent crime. A poor police response would not involve the death penalty or arbitrary deprivation of life. Having regard to the country information discussed above, the Tribunal is not satisfied that it would involve intentional infliction of severe pain or suffering, such that it would not constitute torture or cruel or inhuman treatment or punishment. Even though the Tribunal accepts that not being able to obtain police protection or receiving a poor response to a report of crime would be upsetting for the applicant, it is not satisfied on the evidence before it that the applicant would be subjected to an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.
In relation to employment, the Tribunal accepts the applicant may not be able to obtain employment in South Africa. However, the Tribunal is not satisfied that this would constitute significant harm. As discussed above, the Tribunal considers that this inability to obtain employment wouldn’t be the result of systematic or discriminatory conduct, but rather due to a range of factors such as the applicant’s lack of formal education and lack of contacts. The Tribunal does not consider this inability to obtain employment would involve the death penalty or arbitrary deprivation of life. The Tribunal is not satisfied that it would involve intentional infliction of severe pain or suffering, such that it would not constitute torture or cruel or inhuman treatment or punishment. Even though the Tribunal accepts that difficulty obtaining employment would be very difficult for the applicant, it is not satisfied on the evidence before it that the applicant would be subjected to an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.
In relation to housing and being able to afford necessities, the Tribunal again accepts that the applicant may have difficulty affording housing and other necessities, but is not satisfied that this will involve the infliction of significant harm on the applicant. As discussed above, there is no evidence that there would be any deliberate denial of access to housing or necessities inflicted on the applicant. Difficulty in affording housing and other necessities does not involve the death penalty and the Tribunal is not satisfied it would involve arbitrary deprivation of life. The Tribunal is not satisfied that it would involve intentional infliction of severe pain or suffering, such that it would not constitute torture or cruel or inhuman treatment or punishment. Even though the Tribunal accepts that difficulty obtaining housing and other necessities would be very distressing for the applicant, it is not satisfied on the evidence before it that the applicant would be subjected to an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.
As noted above, the applicant’s written submissions also refer to black empowerment laws impacting on the educational opportunities for white South Africans. However, he has not made any specific claims about wanting to seek further education, even when specifically raised at hearing, and has not identified any specific policies or laws which discriminate against white South Africans in the field of education. The applicant’s written statement (submitted 3 April 2024) suggest it will be a lack of financial resources which will limit his ability to undertake educational opportunities. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of being excluded from or otherwise adversely treated in relation to education in South Africa.
In relation to mental health and addiction, the Tribunal accepts the applicant will not be able to afford private mental health care in South Africa and that public mental health care is limited. However, the Tribunal is not satisfied that the applicant will be subjected to significant harm in this respect. The Tribunal has rejected the contention the applicant would be denied public health care because he is white, and is not satisfied that there would be any other deliberate action taken to deprive the applicant of necessary care. The Tribunal is not satisfied limited access to mental health care, or a resulting suicide, involves the death penalty or arbitrary deprivation of life.[38] The Tribunal is not satisfied that it would involve intentional infliction of severe pain or suffering, such that it would not constitute torture or cruel or inhuman treatment or punishment. Even though the Tribunal accepts that difficulty obtaining mental health care may distressing for the applicant and cause a deterioration in his conditions, it is not satisfied on the evidence before it that the applicant would be subjected to an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.
[38] EZC18 v MHA [2019] FCA 2143.
The Tribunal accepts that the applicant’s mental health would deteriorate on return to South Africa and notes the applicant’s evidence he would commit suicide. However, the Tribunal does not consider that this would be harm resulting from the acts or omissions of another person, as is contemplated by the definition(s) of significant harm.[39]
[39] GLD18 v MH [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699.
The Tribunal accepts the possibility that in travelling to the locations of public health care clinics the applicant may face a real risk of significant harm in the form of violent crime but, for the detailed reasons set out above, the Tribunal considers that violence is pervasive in all contexts in South African, and that the real risk of violent crime in South Africa is one faced by the population generally and not by the applicant personally, such that s 36(2B)(c) applies and there is taken not to be a real risk he will suffer significant harm in South Africa on this basis.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
REFERRAL TO THE MINISTER – s 417
The applicant has two biological daughters who are said to be Australian citizens, [Miss D] and [Miss E]. He also has a parental relationship with the two older daughters of his current partner, [Ms B] .
The applicant gave evidence that when he and her mother were together, the relationship between he and his older daughter [Miss D] was a very close one; they were very attached, inseparable. The applicant gave evidence that his relationship with [Miss D]’s mother broke down when his daughter was [age] or [age] years old. He tried to have custody of her, but it was difficult and child services was involved. Since then, [Miss D]’s mother has had primary care for their daughter. Prior to his time in custodial and immigration detention the applicant’s daughter would spend a holiday period (2-3 weeks) with him every 6 months. [Miss D] now regularly spends time with the applicant’s mother on weekends. The applicant gave evidence that [Miss D] has experienced significant upset due to his absence, including having big meltdowns at school and breaking down in class. The applicant described her being triggered when spending time with family friends (who were the applicant’s friends) as it reminded her of his absence.
A written submission from [Miss D]’s mother, [Ms A], states that despite their divorce she and the applicant maintain an amicable relationship and co-parenting arrangement for the well-being of their daughter. She states that the applicant’s deportation would have a profoundly detrimental impact on the well-being of [Miss D] (and on [Miss E]). She is concerned that [Miss D] is already struggling with issues stemming from the applicant’s absence in her daily life due to the divorce, and that the separation resulting from deportation as well as uncertainty surrounding his safety could cause irreparable psychological damage. She assumes there would be similarly negatively impacts on the emotional and psychological development of [Miss E]. [Ms A] states she would never take [Miss D] to South Africa because of the risk involved, such that deportation of the applicant would sever the possibility of any ongoing in person connection between the applicant and [Miss D]. [Ms A] seeks protection of the emotional and psychological integrity of two innocent children who deserve the opportunity to build lasting bonds with their father.
The applicant gave evidence that (prior to being in detention) he was very close to his younger daughter, [Miss E], and his younger stepdaughter, [Miss F]. He told the Tribunal that everything he did was for the kids, he took them to the park and beach – they were always together. He helped raise [Miss F], whose biological father wasn’t involved in her life, including attending his sports days and being involved in her schooling. The applicant conceded he and his fiancée had a more challenging relationship with [Ms B]’s older daughter, [Miss G], who had grown up with [Ms B]’s mother but who came to live with them. The applicant gave evidence that [Miss G] had made false reports to police about family violence, reports to family services and ran away. She has spent much for the last 2-3 years in the care of the state. However, the applicant also gave evidence that he could see [Miss G] really wanted a reliable father figure, that her biological father was often letting her down (e.g. not showing up for arranged visits) and that he had tried to be there for her as much as he could.
An email submission from [Ms B] , the applicant’s fiancée, indicates that all 3 of her daughters have been suffering since being separated from the applicant, including experiencing depression, sleepless nights and behavioural problems. She indicates it has caused confusion and heartache for them all. It states that the separation has broken her family to pieces, and that they are awaiting his return. It states that she will not allow her children to travel to South Africa due to the danger and lack of safety.

100. A written submission made by the applicant’s mother states that it is crucial to consider the profound and lasting impact the applicant’s deportation would have on his two Australian children. It states that the thought of their father facing potential danger or harm in a foreign country is a source of deep fear and distress for them; that the prospect of never seeing him again is a heavy burden, leading to significant emotional and psychological trauma. She submits that separating children from a loving and caring parent in such circumstances can have long term and detrimental effects on their well-being, mental health and overall development. She submits that it would be in the best interests of these young Australian citizens to maintain their close relationship with their father, ensuring their emotional stability and sense of security, and that granting the applicant a protection visa would preserve family unity and the emotional support system that his children desperately need during their formative years.
101. The Tribunal also notes the written submission of statement the Chairperson of the [a] Corporation which states that it would be extremely detrimental for the family ([Ms B] and her children) if the applicant is not able to be with his family and support them.
102. The Tribunal accepts that the applicant’s return to South Africa would likely mean permanent separation from his two biological children and [Ms B]’s older daughters, and that this would have significant adverse impacts on the children and the family unit the applicant has formed with [Ms B]. The Tribunal considers that the circumstances of this case fall within the scope of the Minister’s Guidelines on ministerial powers (s351, s417 and s501J), being strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
103. Having regard to the Tribunal’s findings above, that the applicant does face a real chance of serious harm and a real risk of significant harm in South Africa, the Tribunal considers that there is a sound basis for believing there is a significant threat the applicant’s personal security if he returns to his country of origin. Accordingly, on this basis also the circumstances of this case come within the scope of the Minister’s Guidelines on ministerial powers (s351, s417 and s501J).
104. The Tribunal understands that the applicant has faced various criminal charges and been given custodial sentences, resulting in the cancellation of his permanent visa, though the applicant was not able to give clear, detailed evidence about this at hearing. However, the applicant did suggest that the cancellation of his visa was unfair or incorrect because the 12 month sentence which triggered the cancellation was a community service order of which he had already served part of at the time he was found to have breached it (which he indicated was due to an error on the part of the officer administering the community service program). This may indicate that the application of the law in this instance has had an unfair or unreasonable result – another unique or exceptional circumstance noted in the Minister’s Guidelines on ministerial powers (s351, s417 and s501J).The applicant also gave evidence he has not applied for a partner visa on the basis of his relationship with [Ms B] because of concerns about an AVO being in place. Accordingly, in accordance with the relevant President’s Practice Direction,[40] this referral is made on the basis that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.
[40] President’s Practice Direction on Conducting Migration and Refugee Reviews, 1 August 2018 (para 16.2).
Stefanie Memmott
Member
- Extract from Migration Act 1958

ATTACHMENT
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.
…