1 Settler -1 visa refugees: Protection Visas for South Africans?
by Guest Author
The recent case of Brandon Huntley, a white South African who was granted asylum in Canada, made big news in the international community. It was interesting to note the fierce reaction from various interest groups both from within South Africa and from South Africans living abroad. Some criticise him for being a queue jumper and traitor; others are fascinated by him pulling off the almost unthinkable. I have over the past 10 years of practice been asked by many South African clients if there would be refugee visa options available for Australia, given the high levels of crime and racial tension in South Africa.
The law in Australia
Australia is signatory to the United Nations 1951 Convention and also the 1967 Protocol relating to the Status of Refugees. People who are found to be refugees are eligible to be granted a protection visa for Australia. A refugee is a person who is:
1. outside his or her country of nationality or his or her usual country of residence;
2. unable or unwilling to return or to seek the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and
3. not a war criminal or person who has committed serious non-political crimes.
In Australia, this definition of a refugee is qualified in the Migration Act, and in case law. Sections 91R and 91S of the Migration Act define persecution as involving serious harm to the applicant. Serious harm involves a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood. The High Court of Australia further has indicated
that the harm can be directed at a person as an individual or as a member of a group.
What is persecution?
The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
The persecution that the applicant fears must be for one or more of the reasons enumerated in the Convention definition: Race, religion, nationality, membership of a particular social group or political opinion. The phrase for reasons of serves to identify the motivation for the infliction of the persecution. Persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.
The fear factor
An applicants fear of persecution for a Convention reason must be a well-founded fear. This adds an objective necessity to the requirement that an applicant must in fact hold such a fear.
A person has a well-founded fear of persecution under the Convention if they have genuine fear founded upon a real chance of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it, but not if it is assumed or based on mere speculation. A real chance is one that is not remote or insubstantial or a far-fetched possibility.
Importantly, applicants must be unable, or unwilling because of their fear, to avail themselves of the protection of their country or countries of nationality. This will most likely be the reason a protection visa application will fail for a South African asylum seeker.
Protection visa for Australia?
The Refugee Review Tribunal in Australia has accepted that South Africa has a substantially high crime rate. However, to date there are no reported decisions that attribute the violence and crime in South Africa to a Convention-based reason (that is, ethnicity, religion or membership of a particular social group). Furthermore, the tribunal has acknowledged that certain groups may be more vulnerable, and therefore more susceptible to being seriously harmed, but the tribunal has found it difficult to attribute that harm directly to a Convention-based reason.
For a protection visa case to be successful in Australia, a strong case would need to be established, and that would depend on the applicants individual circumstances in South Africa and whether they had been specifically targeted for a Convention based reason. Given the recent Canadian decision, there may well be a case to consider, especially if one can formulate persecution on the basis of membership of a particular social group. For example, actual or perceived affluent or privileged South African, or dare I say actual or perceived racially prejudiced white living in South Africa?
Dr Etienne Hugo is a South African born lawyer based in Australia. He is the legal practitioner director of Teleo Immigration, a leading Sydney based law firm specialising in Australian immigration law.