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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2402260 (Refugee)

Details

AGLC: 2402260 (Refugee) [2024] AATA 3355
Case: [2024] AATA 3355
Decision Date: 9 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse a protection visa to an applicant from South Africa. The applicant claimed he faced a real risk of significant harm if returned to South Africa due to his status as an unskilled, unemployed white male, his lack of family support, and his history of being a victim of violent crime, compounded by mental health conditions.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution for reasons outlined in the Migration Act 1958 (Cth) or if he qualified for complementary protection due to a real risk of suffering significant harm upon removal from Australia. The Tribunal also considered whether the risk of harm faced by the applicant was a general risk faced by the population of South Africa, which would preclude him from meeting the criteria.

The Tribunal accepted that the applicant had been a victim of violent crime on multiple occasions and that his family had also experienced such incidents. However, it found that the country information indicated that high rates of violent crime in South Africa impacted all residents, regardless of race or personal circumstances. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act.

Despite affirming the refusal of the protection visa, the Tribunal referred the matter to the Minister under section 417 of the Act. This referral was based on strong compassionate circumstances, particularly the best interests of the applicant's two young Australian citizen daughters. The Tribunal noted the significant emotional and psychological impact his deportation would have on his daughters, who relied on him for a close relationship and parental support, and that his removal would sever any in-person connection with them.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 TribunalApplication 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 EVIDENCEReceiving 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.