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1511441 (Refugee) [2017] AATA 1787 (12 September 2017)

Last Updated: 23 October 2017

1511441 (Refugee) [2017] AATA 1787 (12 September 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1511441

COUNTRY OF REFERENCE: South Africa

MEMBER: Jane Marquard

DATE: 12 September 2017

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.



Statement made on 12 September 2017 at 12:45pm

CATCHWORDS

Refugee – Protection visa – South Africa – Race – White South African – Crime not related to race – Age of applicant – Referred for ministerial intervention



LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 417(1), 438

Migration Regulations 1994, Schedule 2



CASES

Chan v MIEA (1989) 169 CLR 225

MIEA v Guo (1997) 191 CLR 559

MZAFZ v MIBP [2016] FCA 1081

Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191

Prahastono v MIMA (1997) 77 FCR 260

Prasad v MIEA (1985) 6 FCR 155

SZALZ v MIMIA [2004] FMCA 275



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 AND DECISION

  1. The applicant is [an age] year old man from South Africa.
  2. He arrived in Australia for the first time [in] July 1997. Between 1997 and 2002 he travelled in and out of Australia five times.
  3. He last arrived in Australia [in] October 2002 on a [temporary] visa. In 2007 and 2010 he was granted [another] visas. He became unlawful [in] March 2014 and approached the Department about this [in] October 2014 when he was granted a bridging visa. Later, he was granted further bridging visas with a cessation date of January 2015.
  4. The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) [in] January 2015.
  5. A delegate of the Minister for Immigration (the Department) refused to grant the visa [in] July 2015.
  6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
  7. On 26 June 2017 the Tribunal wrote to the applicant notifying him that the Tribunal was unable to make a favourable decision on the material before it, and inviting him to appear before the Tribunal on 13 July 2017 to give evidence and present arguments relating to the issues arising in his case. The applicant was notified that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it.
  8. On 6 July 2017 the applicant’s advisers notified the Tribunal that the applicant would not be attending the hearing scheduled, they would not be making any submissions, and requesting that a decision be made on the information already available. In these circumstances the Tribunal makes the decision on review without taking further action to enable the applicant to appear before it.
  9. The Tribunal has considered all information before it on the Department and Tribunal files as well as independent country information about South Africa. After carefully considering the information, the Tribunal affirms the decision not to grant the applicant a protection visa for the reasons set out below.

CLAIMS AND EVIDENCE

  1. The applicant provided the following evidence to the Department:
    • He was born in [South Africa] in [year];
    • He married his first wife in 1967 and they were divorced in 1974;
    • He has [number] children, [living] in South Africa;
    • He married his second wife in 1983;
    • He left South Africa after experiencing two violent, traumatic events;
    • In 1989 he ran a business in Johannesburg. He and two colleagues were threatened on the work premises by a crowd of about ten violent men, armed with [implements]. These men were demanding better pay and conditions. The men attempted to lock them in the yard, but a truck making a delivery enabled them to flee. The police were called and the offenders were taken to the police station, but then later released;
    • He then relocated to a farm in [a] Province [distance] kilometres away, in an area which was considered a less violent area;
    • In [1998] a disgruntled farm worker armed with [an implement] attacked the applicant in a field, hitting him over the head and dragging him back to the homestead, where his wife [was] in the kitchen, tied to a chair and badly beaten. He was left unconscious in another room. His wife was meant to be picking up a friend to go to church. When she did not arrive, her friend contacted the pastor to let him know that she would go past [his wife]’s farm to see why she had not picked her up. When she arrived, she was overpowered and tied to a chair. The Reverend, his son and a neighbour and her son also came to the farm, and were beaten, shot, and poured with petrol and set alight. [His wife] burnt to death, along with the [pastor] his [son] and [his] wife’s friend. Their neighbour’s [age] year old son was bludgeoned with a golf club, but survived, as did his [mother]. She was taken by the hostage as a human shield, but managed to jump from the moving vehicle. The applicant was knocked unconscious and soaked in petrol, but upon gaining consciousness, fled and was chased by the offender. The police arrived at that moment. The applicant had a severe head injury inflicted by [an implement] and was taken to hospital. He later had a [procedure]. This traumatic event was reported multiple media outlets. The attacker was apprehended by police and is now deceased;
    • The applicant found it difficult to move on from this incident, despite counselling;
    • He became romantically involved with his counsellor in August 2000 and then decided to leave South Africa;
    • He left South Africa [in] March 2002 and arrived in Australia on a [temporary] visa;
    • He has worked hard since then and his relationship broke down; and
    • He was not aware of the right to apply for a protection visa until 2015.
  2. The applicant provided copies of the following documents:
    • Psychological report by Clinical [Psychologist] dated [March] 2015. Her conclusions after examination were that the traumatic events of [1998] precipitated the applicant’s emotional suffering. As a result he has definite cognitive deficiencies especially regarding memory and ability to focus. She said that she was strongly of the opinion that he has most probably not been aware of something like a protection visa, due to his lower-average cognitive functioning, memory loss and being exposed to severe trauma and suffering from PTSD and feeling detached from reality;
    • Death certificate for his wife;
    • A photograph of the applicant as a young man receiving a Scout award in South Africa;
    • Media reports of the murders. [Details deleted].

CONSIDERATION OF CLAIMS AND EVIDENCE

Nationality

  1. The applicant provided a copy of his passport and has provided particulars of his life in South Africa. The Tribunal accepts on the evidence before it that he is a citizen of South Africa, and that South Africa is the receiving country for the purposes of the complementary protection provisions.

Findings of fact

  1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
  2. The Tribunal is satisfied, on the basis of evidence provided to the Department, that the applicant was the victim of a very serious criminal attack in 1998 at his home in which six people, including his wife, were murdered, and the applicant was left with serious injuries. His evidence to the Department about this incident is supported by media reports about the crime. The Tribunal accepts his evidence that this has caused significant trauma to him. His evidence about the impact on him is supported by a report of a clinical [psychologist] dated [March] 2015. The Tribunal is also satisfied that the applicant was attacked and held on work premises in 1989 by an angry mob of workers who were disgruntled about conditions.

Genuine fear

  1. The Tribunal accepts the applicant’s claims that the violent and traumatic incident at his home has led to a genuine fear of returning to South Africa. In this respect, the Tribunal has taken into account the report of the clinical [psychologist] who has provided information on the impact of the trauma on his mental state.
  2. The Tribunal notes that courts have stated that a strong subjective fear on the part of an asylum seeker does not convert non-persecution into persecution.[1] An applicant must also have a well-founded fear of persecution for one of the reasons set out in the legislation.

Well-founded fear of persecution

  1. In order to meet the refugee criteria, an applicant must have a well-founded fear of persecution in the reasonably foreseeable future. The persecution which an applicant fears must be for one or more of the reasons enumerated in the legislation – race, religion, nationality, membership of a particular social group, or political opinion.
  2. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons in the legislation, for the reasons set out below.
  3. The applicant claimed to the Department that he fears harm on the basis of his race (white). The delegate of the Department in the decision record dated [July] 2015 referred to country sources which indicate that although white farmers are targeted for crime at a rate higher than other white people in the country, there was also significant crime against black farm workers. Furthermore, the Department referred to sources which indicate that the vast majority of crimes against whites are not racially motivated, but rather are crimes for financial gain.
  4. The Tribunal is not satisfied that the applicant would face a real chance of serious harm on the basis of race if he were to return to South Africa.
  5. The applicant did not attend the scheduled hearing on 13 July 2017 so the Tribunal was unable to question him about the basis of the crimes which happened to him in the past, and the basis for his fears in the future. On the basis of the evidence he provided to the Department, it appeared as if the crimes he suffered in the past were due to aggression from disgruntled employees, rather than being race-based, although it is possible race was an element in the level of violence.
  6. The Tribunal has considered whether there is a real chance he would be seriously harmed in the reasonably foreseeable future for reasons of race. The Tribunal accepts that South Africa has one of the highest crime rates in the world. Some commentators have observed that “everyone is South Africa has been affected by crime, and the consequent sense of insecurity that comes with living in fear”.[2] A 2011 survey showed that a third of South Africans are so afraid of being attacked by criminals that they will not walk alone in public places and many people secure their homes against thieves and carry a gun for protection.[3]
  7. The Tribunal accepts that the issue of the racial motivation of the perpetrators of violence is a deeply contested issue and some prominent figures have made disparaging remarks against white people which have been interpreted as “hate speech”.[4] However, whilst some South Africans believe that white South Africans are disproportionately affected by violence, this is not reflected in reports or crime statistics. Although most South African government crime statistical reports do not specify the racial ethnicity of the perpetrators or the victims,[5] researchers have assessed the racial breakdown of crimes through other sources. In 2015 the United States Department of State “Crime and Safety Report” noted that occurrence of crime was across all metropolitan areas regardless of socio-economic status of a particular neighbourhood. It referred to the official unemployment rate of 25%, which experts believed to be 40%.[6] In 2007, the Christian Science Monitor reported that “it is a war of the have-nots against the haves” and that “crime is apparently not racially motivated. It is black upon affluent black as well as black upon affluent white”.[7] The Economic Intelligence Unit has also stated that crime levels in South Africa are due to the fact that South Africa has one of the most unequal distributions of income in the word and that rather than race, the causes of South Africa’s crime levels are based in the legacy of apartheid which has created a violent society with high levels of gun ownership.[8]
  8. The views expressed above are supported by other sources, including Africa Check, a non-profit and non-partisan organisation founded in June 2012 to improve fact checking and news gathering throughout South Africa. Whilst Africa Check also notes that South African government crime statistics do not identify the race of the victim or the perpetrator it considered an analysis undertaken by police in 2009 in a random national sample of 1378 murder dockets. In 86.9 per cent of the cases the victims were Black Africans. Whites accounted for 1.8 per cent of the cases although whites then comprised 8.85% of the population.[9] A study by Silber and Geffen which considered 2009 South African Police statistics found that “the victims are disproportionately African and coloured working class people” and “young men are disproportionately represented in the murder statistics”.[10] A research report by the Canadian Immigration and Refugee Board from 2013 also stated that the Internet site of Independent News and Media, a South African news and media group, reported that “about 80 per cent of violent crime happens in poor neighbourhoods, and usually by people who know their victims”.[11] A more recent report, “Killing by Numbers” also reported that the 2013/2014 South African Police Service annual report showed that five per cent of murder victims were children and 14 per cent were women – “most of whom were murdered by their intimate partners” and “by far the majority of victims (81%) were male”. The report also cites studies which show that acquaintances, friends or family members were the most likely perpetrators of the violence and victimisation surveys, police docket surveys and mortuary surveillance studies also showed that young black men were most at risk of falling victim to murders.[12]
  9. The Tribunal accepts that there have been numerous attacks on commercial farms and small agricultural holdings in rural areas. According to NGOs Afriforum and the Transvaal Agricultural Union of South Africa that track farm attacks, during 2013, 157 attacks resulted in 44 deaths. The deaths included both white farmers and black farm workers. The attacks, widely referred to as “farm killings,” targeted farm owners, residents, and employees. There were reports that employers abused and killed farm labourers, and that employers received preferential treatment from authorities.[13] Furthermore, whilst white farmers have been disproportionately affected by violent attacks, reports indicate that there is evidence that the motive for most of the attacks on farms and small holdings is common criminality with robbery as a primary incentive.[14] One recent article does suggest that race is a motivation for the brutality of farm murders.[15] The article refers to a recent brutal attacks on a white couple and states that:
“this year so far there have been more than 70 attacks and around 25 murders in similar attacks..the most reliable numbers are released by the Transvaal Agricultural Union, which represents commercial farmers, and civil rights group AfriForum... According to the TAU, last year there were 345 attacks resulting in 70 deaths...human rights groups say the excessive brutality may be intended to send a message to the general farming community – get out of our country...the rise in farm attacks has been blamed on increasingly anti-white hate speech, particularly from the African National Congress...”The fact that farm murders to not comply with the legal definition of genocide in no way renders the crisis that white farmers in particular face..less imminent” AfriForum deputy CEO Ernst Roets wrote in a report this month.. “It is important to note that not all who are murdered on farms are white people. On the other hand, it is equally important to note that black farmers are not subjected to the same levels of torture as their white counterparts”[16]
  1. While there have been a high number of white farmers who have been the victim of brutal attacks and killings, violence against farmers based on race is not identified as a significant issue in various reputable human rights reports.[17] Furthermore reports referred to earlier suggest race is not generally the motivating factor in crime, although there is no doubt that in some of these cases, race may make these farmers more vulnerable and also may exacerbate the violence against them. However, in the applicant’s case the Tribunal is not satisfied that the applicant would return to farming as he did not appear at the hearing so it was unable to question him about this issue.
  2. The Tribunal accepts that the applicant genuinely fears harm in South Africa because of the horrific and terrible crime he experienced. However the evidence discussed above indicates that the motive of the perpetrators of crime is considerably more likely to be based on economic need, and a violent sub-culture, rather than race. Sources also indicate that there is a general level of violence arising out of criminal activity in South Africa, which affects the entire population. Some groups, such as young black men or women in black townships, are affected disproportionately, with one commentator stating that people in “suburbs can buy security that people in townships cannot”.[18] The ISIS Crime Hub Website keeps track of crime statistics across South Africa. Information on the website indicates that crime is prevalent across all metropolitan areas, and that most of the 20 highest crime areas are primarily Black residential areas which are not in the higher socio-economic demographics.[19] The sources indicate that crime is often random and non-selective in nature.[20]
  3. The applicant did not appear at the scheduled hearing so that the Tribunal was unable to question him as to whether and why he fears harm based on race because of the denial of services, as he told the Department that he has poor hearing. The sources before the Tribunal do not suggest that there is a denial of services based on race. Reputable reports such as Human Rights Watch and the United States Department of State Report on Human Rights Practices do not suggest that discrimination against whites or elderly white people is a significant issue. These reports do not refer to significant discrimination against whites from hospitals, police, emergency responses or other services.[21]
  4. Further the applicant has family in South Africa such that he would have some support there.
  5. The Tribunal is also satisfied that the applicant will not be discriminatorily denied police protection. Country sources indicate that state protection is not withheld from whites, or elderly whites. For example the Head of the Governance, Crime and Justice Division of the Institute of Security Studies in South Africa had told the Canadian Immigration and Refugee Board in 2013 that the South African Police Service was generally equally effective in responding to all population groups in terms of racial classification. The Head of the Human Rights Advocacy Unit of the South African Human Rights Commission had likewise said that a white South African would have the same legal recourse in the case of a violent incident as any other citizen or resident.[22]
  6. Taking all the above sources into consideration cumulatively, and based on the limited evidence from the applicant provided to the Department, the Tribunal is not satisfied therefore that there is a real chance of serious harm if the applicant returned to South Africa in the reasonably foreseeable future on the basis of the essential and significant reason of race.
  7. As the applicant is elderly the Tribunal has also considered whether he would be targeted because he is a member of the particular social group, elderly men. The independent sources referred to above indicate that the majority of victims of crime were young men, and that the most likely perpetrators of violence are acquaintances, friends or family members. The information also indicates that the society is generally violent, and that most crime is related to the unequal distribution of wealth. While the applicant is elderly and would be more vulnerable for this reason, the independent sources do not indicate that victims are targeted for the essential and significant reason of membership of a particular social group of elderly men or any similar group.
  8. While not specifically submitted by the applicant, the Tribunal has also considered whether he would be targeted as a member of a particular social group of “person of perceived wealth”, “persons who have businesses” or a similar group. The Tribunal is not satisfied that he would be a member of such a particular social group as the Tribunal was unable to question him on his wealth and status and what he would do if he returned to South Africa, as he did not appear at the hearing. Given his age and the lack of information provided, the Tribunal is not satisfied that he would start a business in South Africa if he returned. In any event, the evidence indicates that criminal activity and violence is largely random and the motivation of the perpetrators is usually economic gain. Country sources discussed above indicate that criminal activity crosses all socio-economic groups. The ISIS Crime Hub Website keeps track of crime statistics across South Africa. Information on the website indicates that crime is prevalent across all metropolitan areas, and that most of the 20 highest crime areas are primarily Black residential areas which are not in the higher socio-economic demographics.[23] The sources indicate that crime is often random and non-selective in nature.[24]
  9. The Tribunal is not satisfied therefore that there is a real chance of serious harm in the reasonably foreseeable future on the basis of membership of the particular social group, elderly men, persons of perceived wealth, persons who have businesses or similar groups.
  10. Furthermore, the Tribunal is also not satisfied persecution in the form of crime would amount to systematic and persecutory conduct, as required by section 91R(1)(c) of the Act. An applicant may or may not have experienced persecution in the past, however to meet the definition of refugee the applicant must face a real chance of being persecuted for one of the five grounds set out in the legislation, in the reasonably foreseeable future. In Chan v MIEA, McHugh J stated: “the notion of persecution involves selective harassment.”[25] The Tribunal is not satisfied that the applicant would be threatened with harm which would amount to systematic and persecutory conduct. Rather the harm which would the applicant may experience as the victim of generalised crime would be random and non-selective.
  11. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation, were he to return to South Africa in the reasonably foreseeable future.

Complementary protection

  1. 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 a protection 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 the applicant 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’).
  2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
  3. There is taken not to be a real risk that an applicant will suffer significant harm in a country, where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act. As discussed above, the evidence does not indicate that whites or elderly people are disproportionally targeted for crime. The Tribunal was unable to discuss with the applicant why he thought he would face a real risk of significant harm if he were removed from Australia to South Africa, and whether he would face this risk personally, as he did not appear at the hearing. However the country sources suggest that most of crime in South Africa derives from unequal distribution of wealth and targets are randomly selected. While the crime rate in South Africa is high, the real risk is one faced by the population generally and not the applicant personally. Therefore there is taken not to be a real risk that the applicant will suffer significant harm.
  4. The Tribunal was unable to question the applicant about whether or why he would fear that he would be denied state services such as medical treatment for his hearing issues. In any event, in relation to denial of services, as referred to earlier in this decision, the country sources do not indicate that Whites or people in the applicant’s position, an elderly white man, would be denied services, including health or pension services. There is no indication in country sources that the South African authorities deny services or in any other way discriminate intentionally against persons such as the applicant. The Tribunal is not satisfied therefore, based on the information provided, that there is a real risk that the applicant would suffer significant harm, including cruel or inhuman treatment or punishment, or degrading treatment or punishment, because of denial of services.
  5. The Tribunal is not satisfied therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa there is a real risk that he would suffer significant harm.

Section 438 certificate

  1. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 118 to 127 of the Department file would be contrary to the public interest, because these folios contain information relating to “an internal working document”. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that, in any event, some of the information in these folios is not relevant to this decision, as it is information relevant to his earlier visas or applications for work rights and is not of probative value to this review. The Tribunal has not taken account of information in these folios. There is also a memorandum by a Departmental officer about a discussion at the counter of the Department with the applicant, in which he was questioned about why he took so long to apply for a protection visa since arriving in Australia in 2002. The memorandum states that the applicant said that he was simply embarrassed and did not want to admit that he needed protection. An application for work rights was also discussed. The Tribunal has accepted above that the applicant has a genuine fear of returning to South Africa, such that this information has not been given weight.

Ministerial intervention

  1. Under 417(1) of the Migration Act 1958 (the Migration Act), the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.[26]
  2. The Minister has issued guidelines explaining the circumstances in which he may exercise his public interest powers. The Tribunal notes from the Ministerial guidelines that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417(1), set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as there may be unique or exceptional circumstances. These circumstances are his [age], along with the trauma caused to him by the brutal and horrific crime which the applicant experienced in South Africa in which his wife and four others were set alight and murdered in front of him at his home.

CONCLUDING PARAGRAPHS

  1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
  2. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
  3. 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

  1. The Tribunal affirms the decision not to grant the applicant a protection visa.







Jane Marquard

Member

CRITERIA FOR A PROTECTION VISA

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
  2. 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.
  3. 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 themself 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).
  4. 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.
  5. 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

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

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.

...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...



[1] See Prahastono v MIMA (1997) 77 FCR 260 at 269, 271. In SZALZ v MIMIA [2004] FMCA 275 (Raphael FM, 18 May 2004)

[2] Silber, G. and Geffen, N., ‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December 2009, p. 35.

[3] McLea, Harriet, ‘A nation living in fear’, Times Live, 24 November 2011.

[4] BBC News, “ANC Julius Malema’s Shoot the Boer ruled “hate speech”, 12 September 2001, http://www.bbc.com/news/world-africa-14878102 - accessed 20 August 2017

[5] ‘Silber, G. and Geffen, N.,‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December 2009.

[6] United States Department of State, Crime and Safety Report, South Africa, https://www.osac.gov/pages/ContentReportDetails.aspx?cid=17042 – accessed 20 August 2017

[7] Hughes, J. 2007, ‘South Africa’s rising wave of crime’, The Christian Science Monitor, 24 August.

[8] Economist Intelligence Unit, ‘South Africa risk: Security risk’ , 20 October 2008.

[9] Africa Check, ‘Are SA whites really being killed “like flies”? Why Steve Hofmeyr is wrong’, 24 June 2013

[10] Silber, G. and Geffen, N.‘Race, class and violent crime in South Africa: Dispelling the ‘Huntley thesis’, SA Crime Quarterly, no. 30, December 2009

[11] , Immigration and Refugee Board of Canada, “South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups”, 28 May 2013,www.refworld.org – accessed 20 August 2017

[12] ISS Africa, ‘Murder by Numbers, 14 October 2015.

[13] United States Department of State, Report on Human Rights Practices, 2016, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper – accessed 20 August 2016

[14] United States Department of State, South Africa - Country Reports on Human Rights Practices for 2009, 11 March 2010, sections 1 & 5.

[15] Chung, F, “Bury them alive!” White South Africans fear for their future as horrific farm attacks escalate”, http://www.news.com.au/finance/economy/world-economy/bury-them-alive-white-south-africans-fear-for-their-future-as-horrific-farm-attacks-escalate/news-story/3a63389a1b0066b6b0b77522c06d6476, 25 March 2017 - accessed 6 September 2017

[16] Chung, F, “Bury them alive!” White South Africans fear for their future as horrific farm attacks escalate”, http://www.news.com.au/finance/economy/world-economy/bury-them-alive-white-south-africans-fear-for-their-future-as-horrific-farm-attacks-escalate/news-story/3a63389a1b0066b6b0b77522c06d6476, 25 March 2017, - accessed 6 September 2017

[17] United States Department of State, Report on Human Rights Practices, 2016, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper – accessed 20 August 2017; Human Rights Watch, 2016, https://www.hrw.org/africa/south-africa - accessed 20 August 2017

[18] Smith, David 2015, ‘Calls for inequality to be tackled in South Africa as violent crime rises’, 1 October 2015, Guardian

[19] ISIS Crime Hub, https://issafrica.org/crimehub/crime-analysis/crime-facts-and-analysis - accessed 3 January 2017

[20] See for example, United States Department of State, Crime and Safety Report, South Africa, https://www.osac.gov/pages/ContentReportDetails.aspx?cid=17042 – accessed 2 January 2017

[21] Human Rights Watch, 2016, https://www.hrw.org/africa/south-africa; United States Department of State 2016, South Africa - Country Report on Human Rights Practices for 2016 - both accessed 17 December 2016;

[22] Immigration and Refugee Board of Canada, ‘South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2010-May 2013)’, 28 May 2013, ZAF104404.E, 5. State Protection Available to White South African Victims of Violence.

[23] ISIS Crime Hub, “ Crime Facts and Analysis”, https://issafrica.org/crimehub/crime-analysis/crime-facts-and-analysis - accessed 3 January 2017

[24] See for example, United States Department of State, Crime and Safety Report, South Africa, https://www.osac.gov/pages/ContentReportDetails.aspx?cid=17042 – accessed 20 August 2017

[25] Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429-430.

[26] ss.351 and 417; PAM3: Act – Ministerial powers – Minister’s guidelines on ministerial powers (s351, s417, and s501J), registered 29 March 2016 at [2] states that what is and what is not in the public interest is a matter for the Minister to determine.

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