2422188 (Refugee)
[2024] ARTA 926
•19 December 2024
2422188 (REFUGEE) [2024] ARTA 926 (19 DECEMBER 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2422188
Tribunal:General Member S Nyabally
Place:Melbourne
Date:19 December 2024
CORRIGENDUM
Date of Corrigendum:4 February 2025
Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the statement of reasons for the decision:
Paragraph 65 of the written statement of reasons for the decision is altered to read:
‘As South Africa is a member of the Southern African Development Community (SADC), the Tribunal has considered whether the applicants have a right to enter and reside in a safe third country, being one of the SADC member states.’
AND
·Paragraphs 66 and 67 of the written statement of reasons for the decision are omitted.
·
Statement made on 4 February 2025 at 09:43am
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2422188
Tribunal:General Member S Nyabally
Date:19 December 2024
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 19 December 2024 at 09:58am
CATCHWORDS
REFUGEE – protection visa – South Africa – particular social group – women – victim of family violence – race – Zulu ethnicity – gender-based violence – physical assault – fear of killing – state protection – internal relocation – third country protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12CASES
AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
This is an application for review of decisions made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicants Subclass 790 Safe Haven Enterprise (subclass 790) visas (protection visas) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicants were granted Visitor (subclass 600) visas on 17 and 23 October 2023 respectively. Those visas were cancelled on 25 March 2024, while the applicants were in transit to Australia.
The applicants arrived in Australia [in] March 2024. They have not subsequently departed Australia and are currently accommodated in community detention.
The applicants applied for the protection visas on 12 April 2024. The delegate refused to grant the protection visas on 10 July 2024.
The applicants applied for review of the delegate’s decisions on 10 July 2024. By operation of law, on 14 October 2024 the review application was taken to have been lodged with the Administrative Review Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The first applicant appeared before the Tribunal on 12 November 2024 to give evidence and present her case. The Tribunal hearing was conducted with the assistance of the applicant’s representative.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The first applicant claims to be [an age]-year-old South African citizen who was born in Johannesburg, South Africa. The second applicant (hereafter referred to as ‘L’) is the son of the first applicant.
In a statutory declaration accompanying her protection visa application (April statement), the first applicant claimed to fear harm from her ex-partner and L’s father, [named] (hereafter referred to as ‘T’), with whom she is culturally married. The first applicant claimed that T had been physically, financially and emotionally abusive over the course of their relationship. She feared that if she returned to South Africa, T would kill her as punishment for leaving him and tarnishing his reputation in the community. The first applicant claimed that she would be unable to obtain protection from the South African authorities as they were unwilling to intervene in ‘family issues’. She would be unable to relocate within South Africa because T would be able to find her wherever she went, and because she would not have the means to re-establish herself in another city in South Africa.
Protection visa application interview
The first applicant attended an interview with the Department on 30 April 2024.
Delegate’s decision
The delegate accepted that T had inflicted emotional, financial and physical violence on the first applicant, but found that she would be able to obtain assistance and support from her immediate family to protect her from further harm.
Before the Tribunal
On 10 July 2024, the applicants applied for review of the delegate’s decision. They subsequently provided the Tribunal with the delegate’s decision record.
The hearing/submissions and evidence
Prior to the hearing, the applicants’ representative provided the Tribunal with written submissions and further evidence. These included:
· an updated statutory declaration dated 6 November 2024 (November statement);
· a letter of support from the first applicant’s brother, [Brother A]; and
· a copy of the first applicant’s dowry (lobola) agreement signed [in] January 2011, with official translation.
Following the hearing, the applicant’ representative provided the Tribunal with further written submissions and a report from L’s speech pathologist dated 10 December 2024.
Where relevant, the applicants’ submissions and evidence are referred to in the Tribunal’s findings and reasons below
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (PSG) 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.
FINDINGS AND REASONS
The issues in this case are whether either of the applicants is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; and, if one applicant is found to be a person in respect of whom Australia has protection obligations, whether the other applicant is a member of their family unit.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Given its ultimate conclusion that the first applicant meets s 36(2)(a) of the Act on the basis of the risk of harm she faces for the combined reasons of her Zulu ethnicity and her membership of the PSG, ‘women from South Africa’, the Tribunal has only addressed the applicants’ claims to the extent that they are relevant to its findings.
Country of nationality
The applicants have provided copies of their passports from South Africa. They have consistently claimed to be from South Africa. There are no apparent concerns with the applicants’ identities. The Tribunal is satisfied that the applicants are citizens of South Africa. The Tribunal is satisfied that South Africa is their receiving country and has assessed the first applicant’s claims against that country.
The first applicant’s claims for protection
Personal background
The first applicant gave evidence that she was born and raised in [District 1], Johannesburg. Her father is deceased, and her mother and [siblings] reside in Johannesburg. The first applicant is close to her mother and siblings and remains in regular contact with them.
The first applicant attended school until she was around [age range] years old. She did not complete any further education as her family could not afford it.
Relationship with T
The first applicant met T in about [specified year]. They began a relationship, and she fell pregnant quickly after. When the first applicant told T about the pregnancy he initially denied that the child was his, but eventually accepted that he was the father. Their [Child A] was born on [date].
Between [specified year] and 2010 T was largely absent from the first applicant and [Child A's] lives. He would disappear for months at a time, reappearing only to provide necessities for [Child A] then disappearing once again.
T returned to the first applicant in 2010, claiming to have ‘grown up’ and asking to reunite with her and their child. After obtaining the consent of the first applicant’s mother and brother, T paid a dowry (or ‘lobola’) [specified] for having disrespected the first applicant’s family when he left her to look after [Child A] alone. The first applicant and [Child A] moved in with T shortly after.
By this time T had opened a small company which conducted [specified work]. His business did well, and he hired several people to work for him. T would travel throughout South Africa for work, as well as to [other countries].
T’s violence against the applicants
T began to abuse the first applicant soon after they reconciled. He initially abused her emotionally and financially, telling her that she was ‘not worthy’ of him and withholding money for household necessities. T’s conduct soon progressed to physical abuse, and T began regularly beating the first applicant. T would beat the first applicant with a [weapon][2] and, if it was not nearby, he would hit the first applicant with whatever he could reach. The first applicant’s children witnessed many of these beatings.
[2] [Source deleted.]
L was born on [date]. When the first applicant asked T to put his name on L’s birth certificate, he refused.
T was also physically abusive to L, beginning when L was about 3 years old. At the hearing, the first applicant recalled an incident when L was around 3 or 4 years old. T had brought home a live chicken and wanted L to touch it. L had not seen a live chicken before and was very scared when T presented it to him. This made T angry, and he began to beat L.
L struggled at school, and his speech development was [delayed]. This also angered T, who would degrade and insult L by saying offensive things to him and calling him ‘stupid’.
At the hearing, the Tribunal asked the applicant if she had ever sought the assistance of the police or other authorities. The first applicant claimed that she had. In Christmas of 2020, T left the applicant and her children without food, and when the first applicant confronted him about this, T beat her very badly in front of L and attempted to stab her with [a knife]. The beating was so severe that he [inflicted a specified injury]. The first applicant was particularly scared, as this was the first time T had used a knife against her, and went to the police to report his behaviour. The police officers did not take a report, telling the first applicant that they did not want to separate a family, and that she should go home and sort out the issue with her husband. The first applicant felt that she had no choice but to return to T and to try and make things work for the sake of her children.
T’s behaviour worsened after this incident. The beatings became more frequent and severe. T would find fault with everything the first applicant and would beat her with whatever was next to him. T would also abuse [Child A], both by physically assaulting her and by placing her in dangerous situations, such as ordering her to go to the shop at night by herself, despite it being very unsafe neighbourhood.
At the hearing, the Tribunal asked the first applicant why she decided to finally leave T. She replied that the catalyst was the intervention of L’s school after L told the school about Ts violence. The first applicant realised that nothing was going to change T’s behaviour. She left with L in June 2021, returning to live in her family home.
T found the applicants at her family home several weeks later and demanded that they come home. [Brother A] attempted to intervene on the applicants’ behalf, but T would not listen to him, interrupting [Brother A] and refusing to accept the things that he said.
The first applicant remained at her family home from 2021 to 2023, then moved to her own apartment with [Child A] and L from 2023 until her departure for Australia. Over this period T repeatedly stalked and harassed the first applicant. He would follow her on her way to work and when she took L to school. He would also show up at her home unannounced, forcing the first applicant to cook for him and to be intimate with him against her will. T would be violent and threatening if the first applicant did not comply. This continued up until the applicants left South Africa for Australia.
At the hearing, the Tribunal asked the first applicant why she did not try to move further away to escape T. The first applicant provided 3 reasons. First, because L’s current school gave her a discount on his school fees, and she could not afford to send him to a different school. Secondly, because there was only 1 call centre in Johannesburg, and she did not believe she could find another job with her lack of qualifications. Thirdly, because T travelled extensively for his work and was likely to be able to find her wherever she went.
The Tribunal asked the first applicant if T had had any contact with her family since the applicants had been to Australia. She claimed that T had asked [Brother A] about their whereabouts and was very aggressive, grabbing [Brother A] by the shirt front. [Brother A] had told T that the applicants travelled all the way to Australia because of the way that T had treated them. The first applicant said that this made T very angry, and that ‘the conversation did not end well’.
The Tribunal asked the first applicant what she feared would happen if she returned to South Africa. The first applicant stated that T would likely take revenge on her for disobeying him. T’s public persona was very different to how he acted in private, and by moving to Australia without T’s knowledge the first applicant had ‘exposed’ him and caused him to lose face in the community.
Evidence of the first applicant’s brother
The first applicant’s claims are corroborated by her [Brother A] in his written statement. Relevantly, [he] confirms that T was violent and abusive towards both applicants. [He] states that he was unable to help the first applicant because T had paid a lobola which meant that she was ‘his’. [He] also states that:
Recently [T] approached me aggressively asking for her whereabouts which ended in a misunderstanding between us since we have never had a healthy relationship the two of us, the approach makes me feel unsafe as well.
A number of people we both know confirm that he says he will not rest until he finds them and it is so scary.
[Brother A] submits that if the applicants were to return to South Africa, that the first applicant and L may both ‘lose their lives’.
FINDINGS
The Tribunal accepts the first applicant’s evidence about her relationship with T. The Tribunal accepts that T owns and operates [a business] and travels throughout South Africa and adjacent countries for work.
The Tribunal accepts that the first applicant was subjected to verbal, financial, emotional and physical abuse by T over the course of their relationship, and that the abuse continued after the applicants moved out of the home they shared with T in 2021.
In the Department’s decision record, the delegate did not accept that T had been physically abusive to the first applicant prior to 2020 or after 2021, on the basis that there were inconsistencies in her written statement and oral evidence given at the Department interview. The Tribunal has listened to the audio recording of the interview, and considers that the perceived inconsistencies were the result of misunderstandings between the delegate and the first applicant. For example, when the delegate asked the first applicant when the physical abuse began, the first applicant stated that T had become more violent in 2020. The delegate interpreted this response as meaning that T was not physically abusive until 2020, whereas the Tribunal understands the first applicant’s response to mean that his physical abuse escalated in 2020.
The first applicant’s account of the abuse inflicted by T up until the time the applicants left South Africa, coupled [Brother A’s] evidence about T’s ongoing resentment, lead the Tribunal to find that T has an ongoing interest in locating the applicants if they return to South Africa, now or in the reasonably foreseeable future.
Country information
The issue of gender-based violence (GBV) in South Africa was recently extensively considered in Tribunal case 2000646 by General Member Memmott. That decision contained the following summary:
97.… Country information before the Tribunal indicates that domestic violence and all non-consensual sexual activity is criminalised in South Africa, that there is provision for protection orders available in instances of a wide range of abuse behaviours (covering family members as well as partners / former partners), and penalties for violation of such orders.[3]
98.However, it is reported that these laws are not effectively enforced.[4] Information before the Tribunal … indicates that South Africa has low levels of prosecution and conviction in domestic violence cases, and that there are frequent failures by police to serve and enforce protection orders.[5] While in part this seems to relate to a more general problem of inadequate funding of police services and very high levels of crime, it has also been linked to a lack of specific training for police officers, poor responses of individual police officers (e.g. due to a perception it is a private matter), pressure on prosecutors to deliver convictions and shortcomings in the judiciary.[6]
99.It is further noted that South Africa has very high levels of domestic violence.[7] Information before the Tribunal indicates that domestic violence, including sexual abuse, is pervasive, that intimate partner violence is the most common form of violence experienced by women,[8] and that intimate partner violence is the leading cause of death for female homicide victims.[9]
100.More generally, information before the Tribunal indicates that while the South African Police Service (SAPS) has made a strong effort to decrease its response times in recent years, provision of effective services is hampered by large caseload backlogs, largely paper drive processes, inefficient case management and significant levels of understaffing.[10] … Information before the Tribunal also indicates that South Africa suffers from widespread corruption and that anti-corruption laws are inadequately enforced.[11]
101.While the South African government does fund shelters for abused women, such facilities are reported to be insufficient to meet demand and operate with inadequate and inconsistent funding.[12]
[3] United States Department of State, ‘South Africa 2023 Human Rights Report’ (22 April 2024), p 25; United Nations General Assembly, ‘Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa’, (18 November 2016), p 12.
[4] United States Department of State, above n 3, p23.
[5] United Nations Office of the High Commissioner for Human Rights, ‘South Africa: Failure to tackle domestic violence a violation of women’s rights – UN experts’ (17 May 2021).
[6] United Nations General Assembly, above n 3, p 18.
[7] United Nations Office of the High Commissioner for Human Rights, above n 5; United States Department of State, above n 3.
[8] United States Department of State, above n 3, pp23, 24; ‘Rape Justice in South Africa – Retrospective study of the investigation, prosecution and adjudication of report rape cases from 2012’, South African Medical Research Council (2017), p 36; ‘Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa’, above n 3.
[9] ‘Why sex work should be decriminalised in South Africa’, Human Rights Watch, (7 August 2019), pp18-19; ‘Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa’, above n x.
[10] ‘South Africa Country Security Report’, United States Department of State Overseas Security Advisory Council, 12 December 2023 ( accessed 16 December 2024); ‘#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). Citation updated from original.
[11] United States Department of State, above n 3, pp 20-21. Citation updated from original.
[12] United States Department of State, above n 3; United Nations General Assembly, above n 3, pp 17-18.
The Tribunal has reviewed the sources cited by General Member Memmott above and adopts the above summary. The Tribunal has also had regard to country information concerning the payment of lobola:
Considering the expenses attached to lobola payment and its adverse effects on women, Matope et al describe this cultural practice as a gendered construct that constrains men financially, as well as strip women of their dignity and human rights (2013:193). Gender activists have heavily criticised lobola, claiming that it is a cultural practice that privileges men, giving them power and authority while commoditizing women and making them powerless (Togarassei and Chitando, 2021). (emphasis added)[13]
[13] Sonene Nyawo, ‘Rethinking Gender Disparities through the lenses of African Indigenous WomenIs the first applicant a refugee?
In assessing the first applicant’s claims to fear harm in South Africa, the Tribunal needs to consider the chance or risk of harm to her in the reasonably foreseeable future. This assessment is a forward-looking test.
The Tribunal has accepted that T will be motivated to pursue the first applicant because he considers that she has disobeyed him by leaving him and causing him to lose face in the community. The Tribunal accepts that T will be motivated to find the applicant regardless of where she goes in South Africa, and that he will have the means to find her, given his frequent business travel throughout South Africa.
The Tribunal considers that T’s past behaviour towards the first applicant is an indicator of his likely future behaviour towards her. The Tribunal accepts there to be a real chance that T will again harass and/or physically abuse the first applicant if she returns to South Africa. In making this finding, the Tribunal has placed significant weight on the first applicant’s evidence about the harassment and abuse T inflicted upon her from the time she left his home in 2021 to the time of her departure in 2024. The Tribunal accepts that the harm may include significant physical harassment and physical ill-treatment of the first applicant such as would constitute serious harm for the purposes of s 5J(5).
The Tribunal places weight on the first applicant’s personal vulnerabilities in assessing the seriousness of any potential harm.[14] It accepts she was threatened, harassed and subject to significant physical violence by T in the past, and is psychologically vulnerable due to these past experiences. She would be returning to a country in which the legal protections against family violence are ineffective. Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the first applicant may experience could amount to serious harm as contemplated in the Act.
[14][14] AGA16 v MIBP [2018] FCA 628.
The Tribunal considers that the harm the first applicant fears is for the combined reasons of the first applicant’s Zulu ethnicity and her membership of a PSG, being ‘women from South Africa’: s 5J(1)(a). The Tribunal finds that the gendered nature of the violence directed at the first applicant by T has its genesis in beliefs about the role and status of Zulu women, and the perceived right of Zulu men to dominate and control their partners because of their gender. The above country information indicates that GBV is prevalent in South Africa. Zulu women such as the first applicant are particularly vulnerable because of the payment of lobola, with the consequence that they are perceived by the community to be the ‘property’ of their husband.[15] The Tribunal considers that the group of ‘women from South Africa’ is identifiable by the characteristics of gender and nationality, and that the common characteristics or attributes are not a shared fear of persecution. Moreover, the Tribunal accepts that the first applicant’s identity as a Zulu woman from South Africa is an immutable characteristic incapable of modification: s 5J(3)(b).
Effective State protection
[15] See for example Sonene Nyawo, above n 13.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Country information indicates that State protection is not effective for women seeking protection from GBV in South Africa. This is underscored by the first applicant’s evidence of her treatment when she attempted to report T’s conduct to police in 2020. The Tribunal accepts on the basis of the first applicant’s evidence and the country information summarised in 2000646 (from [97]-[101]) that despite the existence of some legislative protections, in practice GBV in South Africa continues, and enforcement is hampered by the perception that it is a ‘private’ matter. The Tribunal finds that effective protection measures are not available to the first applicant in South Africa.
Does the harm feared by the first applicant extend to all areas of South Africa?
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Tribunal has therefore considered whether the first applicant faces a real chance of serious harm in all areas of South Africa.
The Tribunal has earlier accepted that T has both the means and the motivation to find the first applicant throughout the country. In these circumstances, and in light of the country information about the prevalence of GBV throughout the country, the Tribunal accepts that the first applicant’s vulnerability to this form of harm persists across all areas of South Africa.
The Tribunal is therefore satisfied, on the basis of all of her circumstances, that the first applicant faces a real chance of serious harm in all areas of South Africa. The essential and significant reasons for that harm are the first applicant’s Zulu ethnicity and her membership of the PSG, ‘women from South Africa’.
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. Australian courts have also held that the right referred to in s 36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy: Suntharajah v MIMA [2001] FCA 1391 (2 October 2001).
As South Africa is a member of the Economic Community of Central African States (ECCAS) and the Southern African Development Community (SADC), the Tribunal has considered whether the applicants have a right to enter and reside in a safe third country, being one of the ECCAS or SADC member states.
ECCAS
The Tribunal accepts on the basis of relevant country information that the freedom of South Africans to travel between ECCAS states remails limited. While some measures facilitating the free movement of ECCAS citizens are in place, free movement and establishment has not been a priority for ECCAS Member States.[16] A 2024 report into visa openness on the African continent (the AVOI Report) found that ECCAS ranked ‘relatively lower in terms of regional visa‑free reciprocity’. AVOI found that:
With a score of 33%, this implies that only one in three countries reciprocates each other’s visa‑free status. In most travel permutations among member states, there is no reciprocity, suggesting that a significant mismatch between the policies of member states continues to prevail. It also means that measures taken to implement regional visa openness policies are not well advanced.[17]
[16] International Organization for Migration, ‘West and Central Africa: The Regional Migration Context’, available at
[17] African Union, ‘Africa Visa Openness Report 2024’, available at p 33.
The Tribunal is not satisfied on the country information before it that the applicants have an existing right to enter and reside in any ECCAS member state.
SADC
South Africa is also a member of the SADC. Article 5(2)(d) of the SADC Treaty of 1992 provides for the free movement of people within the SADC economic region. A protocol was introduced in 2005 which obliged member states to allow visa free entry, and permanent or temporary residence and a right to work in the territory of another state. One of the SADC’s stated objectives is to ‘develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the peoples of the region generally, among Member States’.[18]
[18] SADC Common Agenda,
In her written submissions, the applicants’ representative submitted that several barriers impeded the implementation of the SADC treaty and protocol. Ms Mulrooney cited the following sources:
Whilst substantial efforts have been invested in developing various legal and policy frameworks to open up borders for the free movement of people within the SADC, thirty (30) years since the formation of the SADC in April 1980 as the Southern African Development Coordination Conference (SADCC), the region is facing serious challenges relating to the free movement of people, migration, and labour movement. In reality, SADC member states’ governments have been confronted with serious feasibility challenges, complexities, risks, and dilemmas as they attempt to implement commitments made towards the free movement of people in the region…[19]
…
the overall movement of people within the REC is still lagging on four fronts and indicators. First, the state of free movement of people in the SADC is not consistent with the SADC visions and aspirations as reflected in the REC’s legal and policy instruments. Second, the SADC is way behind the targets set in the Abuja Treaty of June 1991 in which AU member states agreed that by the end of 2023 there should be free movement of people and effective rights of residence and establishment across Africa so as to achieve the African Economic Community by 2028. Third, the SADC’s performance in free movement of people dimension of regional integration is lagging behind when compared to that of other African RECs. Fourth, there are several concerning legitimate reports of existing barriers to the free movement of people in SADC as well as continued mistreatment and discrimination of SADC citizens in other SADC countries, including xenophobic violence.20F[20]
[19] Clayton Hazvinei Vhumbunu, ‘The Free Movement of People in SADC: Reflecting on the Experiences, Dilemmas and Strategic Considerations’, The Strategic Review for Southern Africa, 45(2) (2023), p 38
[20] Ibid, p 48.
The right of SADC citizens to enter and reside in other SADC member states was considered by Senior Member Burns[21] in Tribunal case 2312039. Senior Member Burns found that the country information identified shortcomings in the implementation of the treaty and protocol regarding the free movement of persons between member states; a continued reliance on states’ own laws, policies and practices in some instances; and other challenges including regional insecurity. She was not satisfied that the applicants had a presently existing right, in the sense of a liberty, permission or privilege lawfully given which has not been withdrawn[22] and which is an existing right,[23] rather than a potential right or expectancy to enter and reside on one of the other SADC member states. Senior Member Burns was not satisfied on the country information before her that the applicants had an existing right to enter and reside in any SADC member state.
[21] The Tribunal acknowledges that Senior Member Burns was considering the rights of Angolan nationals, but notes that Angola is also a SADC member state and finds that her conclusions are equally applicable to the circumstances of the review applicants.
[22] MIMAC v SZRHU (2013) 215 FCR 35
[23] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001)
The Tribunal has reviewed that case and the country information cited therein, and is satisfied that Senior Member Burns’ conclusions remain sound.
The Tribunal finds therefore that the applicants are not precluded from protection by s 36(3) of the Act.
Is the second applicant a member of the same family unit as the first applicant?
The Tribunal has considered whether L satisfies s 36(2) on the basis of being a member of the same family unit as the first applicant.
‘Member of the same family unit’ is defined in s 5 of the Act as follows:
member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
The definition of ‘member of the family unit’ appears in reg 1.12 of the Regulations. Relevantly, regs 1.12(3)–(4) state that:
(3) Subregulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a)a Protection (Class XA) visa;
…
(4) A person is a member of the family unit of another person (the family head) if the person is:
…
(b)a dependent child of:
(i) the family head.
‘Dependent child’ is relevantly defined in reg 1.03 of the Regulations as meaning:
the child or step-child of the person … being a child or step-child who:
(a) has not turned 18
The first applicant has provided a translated copy of L’s birth certificate, which lists the first applicant as his biological mother and his date of birth as [date]. The Tribunal is satisfied on the basis of this information that L is the child of the first applicant and has not turned 18. Accordingly, the Tribunal finds that L is a member of the family unit of the first applicant for the purposes of reg 1.12, and a member of the same family unit as the first applicant for the purposes of s 36(2)(b)(i) of the Act.
CONCLUSION
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal has not considered whether L is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that L is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that L will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Representative: Ms Emma Mulrooney
Date of hearing: 12 November 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Should Women have 50% Share of Lobola? A Feminist Reflection on Gender Disparities within Emaswati culture’, African Thought: A Journal of Afro-centric Knowledge 2:1 (2022), pp 375-376.
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