RRT Case No. V98/09372

REFUGEE REVIEW TRIBUNAL

DECISION AND REASONS FOR DECISION

RRT Reference: V98/09372

Country of Reference: Somalia/South Africa

Tribunal Member: G. Brewer

Date of decision: 27 May 1999

Place: Melbourne

Decision: The Tribunal affirms the decision not to grant a protection visa1.

Catchwords: Race - available protection in South Africa.

DECISION UNDER REVIEW

This is an application for review of a decision made on 14 October 1998 by a delegate of the Minister for Immigration and Multicultural Affairs that the applicant is not a refugee as provided for by the Migration Act 1958 ("the Act"), and refusing the grant of a protection visa.

The application for a protection visa was lodged on 13 February 1998. An application for review of the delegate's decision refusingto grant a protection visa to the applicant was lodged on 26 October 1998.

JURISDICTION

The jurisdiction of the Tribunal arises by virtue of:

(i)   sub-s 414 (1) of the Act which requires the Tribunal to review an "RRT-reviewable decision" where a valid application is made under s 412;

(ii)  sub-s 411 (1), which defines in para. (c) an "RRT-reviewable decision" to include a decision to refuse to grant a protection visa; and

(iii) s 412, which prescribes the criteria for a valid application.

The Tribunal is satisfied that the jurisdictional requirements listed in paragraphs (i) to (iii) supra exist in this matter.

LEGISLATIVE FRAMEWORK

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention as amended by the Protocol, that is, he is a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The elements of the definition of a refugee have been considered by the High Court in the case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan's case). The Court held that there must be a "real chance" of persecution if the person were to be returned to the country of nationality. The Court observed that the "real chance" test discounts a "far-fetched possibility" (at 429 per McHugh J.) and "what is remote or insubstantial" (at 407 per Toohey J.).

At 389 Mason CJ. observed that:

"...the expression a "real chance"...clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring...If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring."

The Court stated that the term "well-founded fear of being persecuted" denotes that the applicant must have a subjective fear and that the fear must have a basis in reality. At 396 Dawson J. stated that:

"The phrase "well-founded fear of being persecuted"... contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundationfor that fear."

The term "persecuted" is not defined in the Convention or the Protocol. Addressing this issue McHugh J. stated at 429 that:

"The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment."

and, at 430:

"A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution."

In Minister of State for Immigration, Local Government and Ethnic Affairs v. Che Guang Xiang, unreported, Full Federal Court, 12 August 1994, the Court stated that:

"Denial of fundamental rights or freedoms, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution". (p.15)

and:

"To establish whether there was a real, as opposed to a fanciful, chance that [the applicant] would be subject to harassment, detention, interrogation, discrimination or be marked for disadvantage in future employment opportunities by reason of expression of political dissent, it was necessary to look at the totality of [the applicant's] circumstances..."

The applicant's circumstances at the time of leaving his or her country of nationality are a logical starting point of an inquiry as to whether there exists a well-founded fear of being persecuted.

Dawson J. noted at 399 that:

"...the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status."

The relevant date for considering whether a person is a refugee for the purposes of the legislation is the date of determination of the application. In addressing this question in the matter of Lek Kim Sroun v. The Minister for Immigration, Local Government & Ethnic Affairs, reported in 117 ALR, Wilcox J. stated:

"I reject the contention that Chan decides that the relevant date for considering whether an applicant for refugee status is the date of application rather than the date of determination...I do not, of course, overlook the High Court's emphasis upon the necessity to pay attention to the factors that gave rise to an applicant's departure from his/her country of nationality. These factors will normally have a critical bearing upon the questions whether the applicant has a fear of persecution and, if so, its basis. ..it is also necessary to consider events that have occurred since the applicant departed the country of nationality and, indeed, since the applicant lodged his/her application for refugee status, and which bear upon the question whether the fear is well-founded at the date of determination." (pp.462-3)

In Minister of State for Immigration, Local Government and Ethnic Affairs v. Che Guang Xiang, unreported, Full Federal Court, 12 August 1994, the Court stated that:

"The question whether Che had the status of a refugee within the meaning of that term as used in the Convention is to be determined upon the facts existing at the time the matter is considered." (p.14)

In MIEA & Anor v Singh (1997) 142 ALR 191, the Full Federal Courdecided that whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist at the time of making the decision.

BACKGROUND AND CLAIMS

The applicant is a national of Somalia whose claims for a protection visa are based on race and membership of a particular social group. He is from Mogadishu and of the X clan.

He said that he completed a primary school education in Somalia. He has worked in various occupations. He said that he resided in South Africa from 1995 until leaving for Australia. He arrived in Australia on a visitor visa in 1998.

Apart from the oral evidence of the applicant at the hearing the Tribunal had available to it material contained on the Departmental and Tribunal files, and other information cited below.

The applicant was assisted at the hearing by an interpreter in the Somali language.

The applicant said that he could not return to South Africa as it is not the country of his birth. He added that he is looked down on both by white and black South Africans, and that he was often harassed. He said that he was robbed at gun-point while operating as a hawker and that he faces a prospect of similar crime against him in the future. He said that the robber stole his goods. He said that he reported the matter to the police who recorded his story. He said that he was unable to describe the robber to the police and that he heard nothing further from them. In his statement of 12 February 1998 he referred to two other occasions when he was robbed. He said that a friend was killed in a separate incident. He claims that Somalis are particularly targeted by criminals in South Africa and it was submitted that Somalis do not enjoy the same protection against criminals as South African nationals, or the same access to basic commodities and accommodation.

The applicant said that he paid an immigration official in relation to two letters stamped ( a date in 1997) indicating that he has been granted temporary asylum in South Africa. He could not recall what amount was paid to the person who interviewed him in connection with his application for asylum. He said that he did not mention paying for his documentation at the outset of his application for a protection visa because he does not speak English.

Although the aforementioned correspondence indicates he has no entitlement to a South African identity document he received a document that he was able to use for travel to Australia. He claims that he destroyed his travel documentation when he arrived in Australia so as to prevent him from being deported to South Africa.

In a submission of 20 May 1999 the applicant's adviser contended that the applicant lacks effective protection in South Africa and that the refugee determination process there is arbitrary and corrupt, particularly in that officers of the Department of Home Affairs reportedly demand payment from asylum-seekers. He submitted that asylum-seekers face a risk of refoulement in breach of Article 33 of the Refugees Convention if they do not pay officials what is sought from them. It was also submitted that asylum-seekers in South Africa are abused by a xenophobic public and police force, that they face a high risk of being victims of crimes of violence, and that the police are unable or unwilling to prevent attacks on them.

Accordingly, it is submitted that asylum-seekers are not provided with "non-discriminatory or equivalent treatment to South African nationals" and they lack "effective protection". Incidents including violence against Somali hawkers were cited.

DISCUSSION OF EVIDENCE AND FINDINGS

At the hearing the Tribunal expressed a view that the preliminary matter to be determined in this case is what rights the applicant has in relation to South Africa. It was agreed that the appropriate course of action was first to address the applicant's rights regarding South Africa, particularly in light of the decision of MIMA v Thiyagarajah (1997) 151 ALR 685, Full Federal Court, von Doussa, Moore and Sackville JJ, and that of MIMA v Gnanapiragasam & ORS (unreported), Federal Court, Weinberg J, 25 September 1998. Notwithstanding the material already on file, the Tribunal acceded to a request from the applicant's adviser that further enquiries be made of the South African authorities about the applicant's rights there, if any. At the hearing it was also agreed that a resumed hearing at which the applicant would be given an opportunity to make claims in relation to Somalia would be held only if further enquiries of the South African authorities did not prove to be determinative.

The Tribunal proceeded on that agreed basis and on 4 March 1999 wrote to the High Commission for the Republic of South Africa (HCRSA), Canberra, enclosing copies of a letter from the South African Department of Home Affairs dated (............) and a document dated (.......) and headed "Certificate of Exemption". The former document stated that the "application for asylum in respect of yourself and your family has been approved ... and your Certificates of Exemption are attached" It further indicated that it is open to the applicant, on whom the onus rests, to initiate a review of his refugee status before the expiry date of his Certificate of Exemption. The Certificate of Exemption indicates that the applicant has a right of residence in South Africa until mid 1999.

On 10 March 1999 the HCRSA wrote to the Tribunal acknowledging its earlier correspondence and correctly naming the applicant as the subject of its enquiry. In the body of the reply, however, the name of a different person was cited as having:

"... been granted refugee status in South Africa which may be extended on expiry of application. Refugee status in South Africa confers upon the holder thereof the right to apply for a South African travel document. Such travel document entitles the holder thereof to travel out of South Africa and back."

Although it seemed likely that the reply from the HCRSA related to the applicant in the present case the Tribunal decided that clarification needed to be sought. The reply, nevertheless, made clear that a person who has been granted temporary asylum may apply for an extension of that period and has a right to documentation that may be used for travel out of, and back to, South Africa. It indicates, also, that a period of asylum can be extended "on expiry" of an earlier period rather than merely by application beforehand.

In May 1999 the HCRSA wrote again to the Tribunal stating that the applicant is able to return to South Africa "... before expiry of his Exemption Certificate and Travel Document. It states that renewal of those documents is dependent upon an application being lodged so that the case for asylum can be reviewed. It then adds an opinion that many persons such as the applicant apply for temporary asylum in South Africa so that they can acquire travel documentation that will enable them to enter "developed countries".

The Tribunal also notes the following material. In correspondence sent by facsimile on 24 December 1998 to the Refugee and Immigration Legal Centre (RILC) the South African Department of Home Affairs states that those who identify themselves as asylum-seekers can apply at the border in which case they are taken to the nearest regional office where they can make a formal application.

They have their status legalised while their application is determined in accordance with Article 1A(2) of the Refugees Convention. Persons who are recognized as refugees are accorded temporary residence and enjoy the same rights as nationals of South Africa. Those who commit crimes may face deportation. Persons found to be refugees may be issued with travel documention.

On 22 March 1996 the Department provided the following advice:

"A person who enters RSA illegally and makes application for refugee status is entitled to the grant of a temporary permit as a prohibited non citizen. This is granted under article 41 and entitles the holder to work. No other entitlements are attached to this visa. If the permit expires prior to determination of refugee application, this permit can be extended without difficulty.

If a person is granted asylum in RSA then they are granted an exemption from the Aliens Control Act for a period of 2 years (i e permitted to remain on temporary basis). With this status he is permitted to work, study, access medical assistance and can be issued a travel document. The only thing which he can't do is be issued a number ID document.

After the period of 2 years has expired, the situation in his home country is reviewed. If the situation is normalised, he will be required to return. If not, then he will be granted a further 2 years temporary stay.

This review process takes place every two years.

After a period of five years, the person is permitted to apply for permanent residence. They have to meet the normal migration requirements however, such as skills not available in SA, or the required amount of money etc. If they cannot satisfy PR requirements, they continue on the temporary resident route as above.

As per above. rights and obligations are the same as South African citizens with the exception that they are permitted to remain on 2 year basis only and are not issued with an ID number (which as far as I can ascertain has little impact on day to day living)."

In a cablegram of the Australian Department of Foreign Affairs and Trade (DFAT), PR4399 of 25 February 1997, it is noted that:

"In previous discussions with the South African Department of Home Affairs we have been advised that successful asylum seekers will normally be granted a stay of temporary residence, most commonly for two years. At the end of this period a further permission to stay is granted if there are reasons to believe that the person will be unable to return to their own country. For example, we have been advised that Somalis will normally be granted an extension of stay without questions being asked.

In some circumstances permanent resident status will be granted if this is considered the only durable solution. While this is not apparently common, we have been informed that several cases have resulted in permanent resident status being granted.

The Department of Home Affairs also advises that persons granted refugee status have the right of re-entry to South Africa and, in general, have the same rights and obligations as those persons holding permanent residence."

In the matter of Thiyagarajah (op. cit.) the Full Court determined that protection obligations are not owed to a person who has effective protection, in accordance with the provisions of Article 33 of the Convention, in a third country, and who is able to return to that country without facing a real chance of being returned to another country in relation to which a well-founded fear of persecution for a Convention reason is held.

At 698 von Doussa J, presiding, observed that:

"The obligations imposed by Art 33 fall short of creating a right in a refugee to seek asylum, or a duty on part of the Contracting State to whom a request for asylum is made, to grant it, even if the refugee's status as such has not been recognised in any other country."

His Honour stated at 702:

"It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already  recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression "effective protection" is used in the submissions of the minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee".

In the matter of Gnanapiragasam (cited above) Weinberg J noted at 11 that the focus in Thiyagarajah was on "effective protection" rather than "prior refugee status". His Honour determined that the acquisition of a status less than the grant of permanent residence was sufficient to permit the return of an applicant to a third country without there being contravention of Art 33. At p.22 His Honour observes that:

"It seems to me that a right to re-enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re-enter that country thereafter, renders Art 33 potentially applicable. Australia can then require the claimant to return to that "safe third country" without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the "effective protection" criterion no less than the right to resume permanent residence.

That is not to say that a right of return to temporary residence will, of itself, be sufficient in any given case. Art 33 requires that there be "effective protection" in the third country. Australia must be satisfied that the third country will consider any claim to refugee status in accordance with the Convention, and will not simply refuse entry and, without giving the claim any such consideration, return the claimant to the country from which he came originally.

In the present case the applicant has been declared a refugee in South Africa and has been granted temporary residence there. He has a right to apply for an extension of time in South Africa as a refugee in accordance with the provisions of the Refugees Convention to which South Africa has been a signatory since 12 January 1996 (see UNHCR Refworld). He has in general the same rights that are accorded to nationals of South Africa. He has been issued with travel documentation by the South African authorities in accordance with Article 28 of the Refugees Convention and is able to return to South Africa on those documents. He has a "right to reside, enter and re-enter" South Africa.

The United States Department of State Country Report on Human Rights Practice for 1998 remarks that

"The law contains provisions for the granting of refugee or asylee status in accordance with the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. In November the National Assembly and the National Council of Provinces passed the Refugees Bill -framework legislation that codified the country's obligations under the U.N. Convention and its Protocol. The Refugees Bill stipulates that no person shall be expelled, extradited, or returned to any other country if they face persecution due to race, religion, or political affiliation, or when "his or her life, physical safety, or freedom would be threatened." The bill also stipulates that designated refugees lose their status if they voluntarily return to their country of origin, take citizenship of another country, or if the circumstances that caused their flight from the country of origin change. However, the bill stipulates that in order to renew their temporary residency permits, asylum seekers must return to the town in which they originally lodged their application to be recognized as refugees. Permits that are lost, stolen, or destroyed are not renewed. If found without a valid permit, asylum seekers are subject to arrest, detention and deportation. The bill is scheduled to go into effect in early 1999.

In 1996 the Government signed a Memorandum of Understanding with the United Nations High Commissioner for Refugees (UNHCR) on the standardization of regional refugee policies, which is designed to shift more responsibility for handling refugee flows onto first-asylum countries in the region. The Government cooperates with the UNHCR and other humanitarian organizations in assisting refugees. The Government provides first asylum, granting applicants the right to work and study. There were approximately 50,000 applications for refugee status by year's end. Of those claims, approximately 8,400 were accepted and 20,000 were rejected. The rest are still outstanding. About 70 percent of the thousands of illegal immigrants deported during the year came from Mozambique. Despite numerous procedural safeguards, energetic efforts to combat a mounting illegal immigration problem occasionally resulted in the wrongful deportation of aliens legally in the country. However, no persons were forcibly returned to countries where they feared persecution...

National/Racial/Ethnic Minorities

The Constitution and Bill of Rights prohibit discrimination on the basis of race, ethnic or social origin, and culture. The Government continued efforts to reorganize and redesign the educational, housing, and health care systems to benefit all racial and ethnic groups in society more equally..."

There are no incidents of attacks against ethnic minorities in that report. The report is clear that no one has been forcibly repatriated to a country where they fear persecution. There are no incidents of refoulement in that or any other report available to the Tribunal. While accepting that asylum-seekers may often be asked for a fee in their dealings with corrupt elements of the bureaucracy, the Tribunal notes that the report documenting some such cases (Human Rights Watch, "Prohibited Persons: The Treatment of Refugees and Asylum Seekers in South Africa, March, 1998) cites no incidents of refoulement and pre-dates the passage of the Refugees Bill that further enshrines the rights of asylum-seekers.

The Tribunal is satisfied that the applicant would, as he has in the past, have access to a proper process of refugee determination in South Africa. In his case he has already been granted asylum and it is open to him to seek a renewal of that status and of confirming documentation that also provides a right to travel from, and return to, South Africa. In the case of applicants from Somalia an extension of the period of protection appears to have been virtually automatic (see, DFAT advice, op.cit.).

The Tribunal accepts that xenophobia is prevalent in South Africa, as it is, regrettably, in a host of other countries. It also accepts that there have been occasional incidents of crime directed against asylum-seekers, including Somalis. The problems faced by Somalis who were hawking their wares occurred in 1997, particularly during two days of rioting when they were apparently robbed and beaten by rival traders jealous of their territory and concerned about the viability of their own limited employment opportunities (see, Human Rights Watch report, op. cit., pp.123-126).

The Tribunal notes some anecdotal evidence in the aforementioned report that police officers were unwilling or unable to take effective action against the alleged offenders when rioting broke out between rival traders, although it is also apparent that police attended the scene of the rioting and made some attempt to restore order. There are no reports of later outbreaks of violence against hawkers. The latest USA Department of State report is silent on the treatment of refugees in South Africa.

In a report of an incident alleging police abuse against refugees in a shelter it is observed that the complainant reported the case to the South African Human Rights Commission which asked the Independent Complaints Directorate of the South African Police Service to investigate the matter (see, Human Rights Watch, op. cit, pp.119-120). The same report (pp.120-121) also notes incidents of verbal abuse by police and, much more seriously, allegations of assault in incidents involving a Nigerian trader, and a Burundian asylum-seeker who died, apparently as a result of an assault on him. While also noting commentary in a UNHCR Press Statement of 14 June 1997 concerning serious adverse treatment of some asylum-seekers the material before the Tribunal, even in the report of Human Rights Watch to which it was specifically referred, does not indicate that the authorities generally fail to afford effective protection to Somali or other refugees.

In the applicant's statement of 12 February 1998 he said that he could not access police protection, but included a comment that police investigated the shooting of a hawker at the time of rioting in 1997. In a report of 29 April 1999 (CX34844) a representative of the South African Migration Project states that:

"... xenophobia was mainly fuelled by a belief that immigrants were taking scarce jobs and were responsible for rising crime and disease. Official government statistics show that up to four million immigrants live in the country. Officials at the Department of Home Affairs said they were handling asylum applications at the rate of 1,500 a month."

Reports of occasional attacks against asylum-seekers need to be seen in the context of the massive wave of migration and of the very large number of applicants for refugee status. The motivation for the xenophobia appears to be intense competition for jobs between "foreigners" and indigenous South Africans and a belief that many refugees are involved in crime, particularly it seems Nigerians who are alleged to be heavily involved in drug trading (see, Human Rights Watch report, op. cit. p.125ff.), or in the spread of diseases.

The Tribunal accepts that the applicant may face discrimination and occasional harassment in South Africa. It also accepts that there were violent clashes in August 1997 involving asylum-seekers and South African nationals whose territory for street-trading was under threat, and that crime in South Africa is rampant. Some violent crime has been directed against foreigners, including asylum-seekers, apparently mainly because they are seen as depriving others of scarce employment opportunities. The motivation for those occasional attacks appears to be economic rather than racial. In considering the available information in the context of the number of asylum-seekers, the prospect that the applicant would be a victim of serious crime or encounter persecution, as opposed to discrimination, for a Convention reason is remote. Additionally, there is no evidence of a generalized failure of State protection such as to lead to a conclusion that the applicant would not be able to access effective protection if he should need to do so.

The Tribunal finds that the applicant has a right of return to South Africa. He has a right to leave and re-enter South Africa.

He has already been granted asylum there and has a right to re-apply for asylum in accordance with a proper determination process as mandated by law. The strong indications are that he would be granted, at least, a further period of asylum of two years and a further right to apply for protection beyond that period. He enjoys the same rights as South African nationals. He does not face a real chance of persecution in South Africa for a Convention reason and does not lack State protection there. In view of those findings, and bearing in mind recent decisions of the Federal Court in Thiyagarajah and Gnanapiragasam (cited in full above), the Tribunal has not found it necessary to consider the applicant's claims in relation to Somalia.

DECISION

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

G. Brewer, Tribunal Member.

In accordance with section 431 of the Migration Act 1958 the published version of this decision and reasons for decision does not contain any statement which may identify the applicant or any relative or dependant of the applicant. The published version of this decision was prepared under the direction of the Deputy Registrar.