AHE23 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FedCFamC2G 156

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. The applicants, a family of white South Africans, sought protection visas on the basis of their race and/or ethnicity due to genuine fears of "widespread violence, crime, poverty and unemployment in South Africa" (Tribunal reasons (TR) paragraph 55.4). The delegate having refused the visas, the Tribunal, on review, found that the husband, who was the main applicant, "has no claims for protection under the refugee criterion or on complementary protection grounds" (TR [57.2]), and otherwise affirmed the decision to deny the visa. The other applicants, as members of the same family unit, were in the same position.
2. None of the grounds of review argued in this Court established jurisdictional error and the application must be dismissed with costs for the reasons which now follow.

1. The background to the matter is conveniently summarised in the opening paragraphs of the then Administrative Appeals Tribunal's (Tribunal) decision as follows:

"1. The applicants are a family of four and citizens of South Africa: the husband, aged 48, is the main applicant; and his wife, aged 49, and their two sons, aged 25 and 19, are the secondary applicants. When in South Africa, the main applicant served a year with the South African Police Force after leaving school, then over a period of twenty-two years occupied sales and managerial positions in a range of industries, the last being with a mining company involving regular fly-in-fly-out work in Zambia. His wife completed business college studies after leaving school, then over the same period worked in administrative and executive support roles for professional and commercial organisations, the last being an agricultural company located on a farm estate in the Middelburg district where the family also lived.

1. The main applicant believes the violence towards white people in South Africa is widespread and has worsened during their time there. When he was with the riot police in the early 1990s before the end of apartheid, he witnessed and experienced fighting and violence between political parties, which he remains affected by. He was later the victim of a violent street attack by black African men, and on a separate occasion, his wife was nearly killed in a dangerous driving incident involving black Africans. The family experienced a home break-in and attempted home break-in in different locations. The main applicant claims they increasingly lived in constant fear of harm, were forced to live in high security accommodation and to restrict their movements to avoid being harmed. The main applicant also claims to have been demoted due to the Black Economic Empowerment policies to create a position for a black African, forcing him to seek employment elsewhere.
2. While at the mining company, an opportunity arose for the main applicant to come to Australia and take up a position working on a new project in its Australian operation. He believed this was the opportunity to get away from South Africa and build a new life free of fear, violence, harm and employment restrictions and financial hardship; and that this would be the pathway for him and his family to permanent residency in Australia. The main applicant came to Australia for the last quarter of 2014 to train members of the new project team. He and the family then returned to Australia in January 2015 on a temporary work (skilled) visa. Later in 2015, as a skilled worker, he was nominated by the mining company for direct entry, however the new project ultimately did not proceed and the nomination was refused at the end of 2017. The main applicant applied for protection in May 2018 claiming racially motivated past violence and harm and employment discrimination and fear of the same and resulting economic hardship if he and his family return to South Africa."

1. The main applicant (the husband) and the secondary applicants (the wife and the two sons of the marriage) were each denied a protection visa by a delegate of the Minister. They appealed to the Tribunal which, in January 2023, affirmed the decision not to grant any of the applicants a protection visa. An application was then brought under s 476(1) of the Migration Act 1958 (Cth) (Act) to this Court. The original application was the subject of amendment.
2. I first note one matter about the hearing, where counsel for the Minister complained about the lack of particularity in the amended application. While I had some sympathy with that complaint, I am satisfied that the application's grounds (g) to (l), contained in the amended application, were sufficiently particularised and confined the applicants' case.
3. It is necessary to refer in some detail to the reasons of the Tribunal, to which I now turn.

1. The detailed reasons of the Tribunal, having recited the procedural history of the matter, began by considering the written statements of the husband/main applicant as follows:

"6. The main applicant made the following written claims in the protection visa application (no separate claims were advanced by the secondary applicants):

6.1. (reason main applicant left South Africa) We left South Africa for our freedom and a better chance of life. The opportunity to make a difference in a country that welcomed us. South Africa no longer wants the white people. There is outspoken hatred against the whites, to kill the whites, rape the women and kill the children. White genocide is what they are calling it. This is not only spoken of, but carried out in the most brutal fashion. Innocent people tortured in the most in humane way before they are eventually murdered. We were no longer safe in South Africa. I was working away from home leaving my wife and two boys on a farm. We were constantly aware of the violence around us. Living in homes with six foot walls with electric fencing at the top. All windows and doors had security gates and we had an alarm system we activated every night. We drove our cars with doors and windows locked day and night. When stopping at a traffic light you were constantly aware of what was going on around you, anticipating a hijacking.

These happened in broad daylight with people too scared to help with fear of being killed. Your home was your "prison". Kids couldn't ride their bikes in the street or to the shop. Our children caught a farm bus to school. Riots would break out in town and we had to find alternate routes to get to our children to get them home safely. We had riots going past the farm. Extremely frightening when you could hear the chanting and screaming of hatred towards the white people. This was no longer a country we wished to stay in. Our future and that of our boys could no longer be in South Africa.

Not only did you fear for your safety, studying, working all were now governed by the BEE policies. As white males, my boys and I stood little chance of getting work as we were considered the privileged few who now needed to make way for BEE Black Economic Empowerment. My job at [employer company name] had been re-allocated to accommodate this BEE policy. I was going to be demoted to sales manager and would need to train my new BEE counterpart in my previous position of area manager. Being offered a visa to Australia was a God send."

The applicant wife gave a written statement which including the following statement:

"9.4.12. I do not believe it is safe to relocate anywhere in South Africa. We cannot return to Middleburg. Our only relatives live in rural locations. My brother-in- law lives in a small rural town, also in Mpumalanga whilst my sister lives in KwaZulu in a small coastal town surrounded by farms and my retired parents live about three hours away in a rural town, part of the Ugu district in KwaZulu, which is very violent. I will provide some Country Information regarding crime in this area and information which explains State Capture. There is nowhere else for us to relocate to, without such important family support, considering the growing violence. Our family has been rural based for years and it is people in those areas who are particularly attacked. The breakdown of state protection is not random crime."

The Tribunal received evidence from a South African witness concerning the security position in 2011 at the farm at which the wife was employed:

"9.5.1. I have had a long career in law enforcement, holding a number of senior positions from 1988 to 2009. I have attached a brief resume of the dates of employment with respect to various specialised squads including murder and robbery, and what I understand to be of particular significance, the Special Investigative Unit attached to the Department of Justice.

9.5.2. I left employment with the law enforcement agencies in 2009 and moved to private industry working for RVA Construction Company seeking to control theft and pillage from construction sites.

9.5.3. During 2011 I was employed as the Security Manager of [the farm estate] (a large agricultural holding of 10,000 hectares just outside Middelburg, Mpumalanga province) and was there until 2014. Whilst there I had the opportunity of meeting [the applicants]. [The wife] was employed there in a senior administrative position as an executive secretary to the Chief Executive Officer from July 2011 to early 2015 (I am not sure of the exact date).

9.5.4. I headed an armed security team. My job was to provide protection to the staff of the farm estate, which at that stage was a large rural business in the absence of effective police protection. I would identify potential issues and focus my resources on dealing with crime on the farm estate and surrounding areas as well as ensuring personal protection. [The wife] lived next door to me on the farm estate, which was of benefit to her, considering her husband was employed in Zambia on a fly in - fly out basis. To the best of my memory, he worked away approximately nine weeks and then had three weeks off.

9.5.5. As a result of a programme of "affirmative action" (BBBEE) to provide equal employment opportunities, the farm estate was bought out around early 2014, sold off in parts and to the best of my understanding, began to collapse financially.

9.5.6. During the years I was employed on the farm estate the law and order/crime situation continued to rapidly deteriorate. For a number of years, White farmers (usually of Boer background) have been continuously murdered, their families tortured and violence which was unnecessary. On numerous occasions, instead of just robbing the farming family, they would be tortured and murdered often for very small amounts of money.

9.5.7. This violence has continued in a manner that is not restricted to Mpumalanga. I am aware that [the main applicant's] brother has also been affected by the continuous threat of arbitrary violence. I am informed he lives in a small rural town surrounded by farms similar to Mpumalanga. I am informed that [the wife's] family resides in the province of Kwa Zulu in Natal. I am aware that the same of level of violence, intimidation and fear exists in this area.

9.5.8. During my years on the farm estate on several occasions heavily armed demonstrations passed by with fearsome chanting and carrying pangas, clubs and other weapons. It was always with a sense of trepidation that the women (including [the wife]) drove into Middleburg to collect their children from school, as they could so easily and inadvertently be caught up in confrontations.

9.5.9. Murderous attack on farms continued and there was a growing atmosphere of fear and lawlessness, which has only got worse. At all times farmers must be prepared for random attack. There simply is no security provided by the police that can be regarded as effective protection as a result of endemic State corruption (refer below). From my experience in law enforcement and my current work providing security services murderous violence can occur at any time with little fear of arrest.

9.5.10. I believe it is fair to say I have specialist knowledge in dealing with the issue of what is known as State Capture. Such process is when as a result of endemic Government corruption the integrity of public service utilities are corrupted as a result of shameless large scale looting/asset stripping for personal gain. I can say emphatically and without doubt one consequence of State Capture has been the stripping and diminishing of resources to law enforcement and the inability to deal with serious crime when it is sponsored and conducted by the State. I believe it is not correct that an assessment of the effectiveness of police or other Government services in South Africa can be conducted without recognition of the worsening effect of State Capture, particularly in the area of crime and state protection.

9.5.11. I believe the South African Government is the source of the continued destruction of Government Departments, which explains the unrelenting nature of murderous attacks upon White farmers throughout South Africa."

1. In relation to the husband's evidence, as main applicant, the Tribunal found:

"18.9. The main applicant came to Australia first on a visitor visa to train staff and provide advice on a new project being led by the Australian operation of his mining sector employer in South Africa. He then returned on a skilled work visa, and in time an employer nominated direct entry visa application was refused because the project didn't proceed. He had thought that he and the family would be granted permanent residency. The main applicant's South African employer wanted him to return to South Africa, but he couldn't risk it. The administrative role on the farm estate was no longer an option because it had been bought out to allow for black ownership."

"19. The main applicant's wife gave the following evidence:

19.1. Living on the farm estate with their sons while her husband was working in Zambia was frightening, you never knew when the riots were going to happen. The boys went to school in the nearby town. On many occasions she would have to leave work to collect them as it was too dangerous for them to travel by bus. The fear of not knowing whether she would get there on time. There were no police close by. It was too dangerous to leave the farm estate on weekends."

"25. The Tribunal considers the main applicant and his wife gave credible accounts of their lived experience in South Africa, in their written and oral evidence. The Tribunal accepts these accounts.

1. The Tribunal accepts the main applicant fears that if he returns to South Africa he will be a target of violence, crime and employment discrimination because he is white.
2. The central question for the Tribunal to determine is whether the main applicant's fears are well-founded under the law."

1. Much country information evidence was put forward by the applicants and summarised in an attachment to the decision, and the Tribunal itself sourced considerable country information, including from The World Bank, South African sources and the US Department of State.
2. The Tribunal did not consider the country information could be relied upon as "evidence of state-sponsored or enabled discrimination against and/or persecution of white South Africans either directly or through a systematic, intentional and targeted neglect by law enforcement authorities to protect white South Africans, or as evidence of white genocide" (TR [33]). Rather, the country information pointed to "widespread corruption within the South African government impacting the lives, livelihoods and wellbeing of all South Africans" (TR [33]). "[E]quality measures designed to redress the imbalances caused by apartheid ... have shown questionable real benefits to black South Africans" (TR [33]). [H]ate speech directed towards white South Africans by leaders and followers of a non-ruling political party ... affronts civilised values, but is nonetheless permissible in a democratic society" (TR [33]).
3. In a passage which assumed significance in the hearing before me, the Tribunal considered there were "equally credible reports" white South Africans are not the target of violence, crime and discrimination because of their race and colour, and in contrast, "in particular instances", white South Africans have been so targeted (TR [34]-[35]). The Tribunal did not consider it appropriate for the Tribunal "to reject one set of credible reports in favour of another, nor to conclude that a set of credible reports is definitive either way as to the issue of persecution of white people in South Africa" (TR [36]).
4. The Tribunal acknowledged that issues regarding race and racially motivated violence, crime and discrimination in a country such as South Africa with a long history of racial division and conflicts are "complex, nuanced and changing" (TR [37]). The Tribunal considered these issues are best understood by "taking into account a range of perspectives and assessing the lived experience of the particular individuals involved" (TR [37]) as to whether the main applicant's fears are well founded.
5. The Tribunal had earlier noted key claims made in oral submissions on behalf of the applicants at [21] as follows:

"21.1. The main applicant's protection claim is not just that he is white, but that he is rural based and apparently affluent. The fears are based on the police having no powers to protect him from harm.

21.2. The country evidence put by the Tribunal is perverse, reflects an insufficiency of preparation, and a general failure of investigation, and has been utterly discredited by the country information submitted by the main applicant. The threats are exacerbated by the sur place claims, which have been ignored to date ...

21.3. State capture renders the state unable to provide protection ..."

1. However, the Tribunal noted there is no reference in the Australian Government travel advice concerning South Africa "to racially motivated crime targeting white South Africans" (TR [46]). The Tribunal further noted "there is no definitive evidence in the broader country information that white farmers or white people in rural areas are targeted more than anyone else in the country" (TR [46]). Rather, it stated, "farm murders include black and white victims, and farmers are only one of a broad host of people in South Africa at high risk of being murdered" (TR [46]). The Tribunal further noted "a majority of South Africans feel victimised for their race, no matter their race" (TR [46]).
2. The World Bank reported "increased poverty and inflation levels, high and rising unemployment, high inequality perpetuated by a legacy of exclusion and uneven economic growth across society entrenched from one generation to the next" (TR [47]). The Tribunal noted, however, "there is no definitive evidence that white South Africans are experiencing higher levels of economic hardship or that the Black Economic Empowerment policies are anything other than equality measures designed to redress the imbalances caused by apartheid that have shown questionable real benefits to black South Africans" (TR [47]).
3. The Tribunal found that the applicant and his wife "have demonstrated the capacity for skilled employment over a period of twenty-two years while living in South Africa" (TR [48]). "Their work ethic has continued in Australia and been role-modelled to their young adult sons who are undertaking trade and certificate qualifications" (TR [48]). "While the prevailing economic conditions in South Africa are challenging", the Tribunal considered "the main applicant is well equipped for employment, and any difficulties he faces in securing employment are likely to be faced by South Africans generally" (TR [48]) (emphasis added). Further, the Tribunal considered "the close family support available to the applicants will serve to assist the family as they re-settle in South Africa" (TR [48]).
4. The Tribunal therefore did not consider there is anything in the applicant's fears of return to South Africa "that take him outside the general situation experienced by the South African population as a whole" (TR [49]).

1. Key parts of this evidence have been set out above.
2. The Tribunal accepted this witness had acquired considerable expertise and experience in public and private law enforcement and security matters in South Africa over more than 30 years (TR [50]).
3. The Tribunal accepted the witness' evidence "in relation to the Middelburg farm estate [where the wife had worked] and violence and crime more generally in South Africa" (TR [51]).
4. However, the Tribunal did not accept "it is definitive evidence that the violence and crime experienced by white South Africans is racially motivated" (TR [51]).
5. Nor did it accept "the conduct of the [African National Congress]-led South African government, the matters the subject of investigation by the Zondo Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, the implementation and funding of the Broad-Based Black Economic Empowerment legislation and programs, and the public rhetoric and actions of the Economic Freedom Fighters Party leadership are evidence of state-sponsored or enabled discrimination against and/or persecution of white South Africans either directly or through a systematic, intentional and targeted neglect by law enforcement authorities to protect white South Africans, or as evidence of white genocide" (TR [52]).
6. While the Tribunal considered it "likely the main applicant and his family would need to put in place private security measures to protect themselves from the widespread violence and crime in South Africa, regardless of where they settled", it did "not consider however that these measures would be any greater than those in place among the South African population as a whole" (TR [53]).

1. The Tribunal then found the following (TR [55]):

"55.1. The main applicant is a citizen of South Africa.

55.2. The secondary applicants are citizens of South Africa and members of the same family unit as the main applicant.

55.3. The main applicant genuinely fears returning to South Africa.

55.4. Based on his past lived experience and the prevailing conditions in South Africa, the main applicant fears widespread violence, crime, poverty and unemployment in South Africa if he returns.

55.5. The main applicant's fears are not of systematic and discriminatory conduct or treatment directed at him and serious harm, including significant physical harassment or ill-treatment and significant economic hardship for the reason that he is a white South African or a white South African in a rural area, and therefore do not amount to fears of persecution.

55.6. There is not a real chance the main applicant would be persecuted in South Africa for any of the Convention reasons.

55.7. There are no grounds for believing that, as a necessary or foreseeable consequence of the main applicant's return to South Africa, there is a real risk the main applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman conduct or degrading treatment or punishment." [emphasis added]

1. Consequently, the Tribunal further found (TR [57]):

"57.1. The main applicant is [a] non-citizen in Australia.

57.2. The main applicant has no claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.

57.3. If the applicant is returned to South Africa, there is no real chance that he would be persecuted, and accordingly the applicant does not have a 'well-founded fear of persecution' as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

57.4. There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the main applicant being removed from Australia to South Africa there is a real risk the main applicant will suffer significant harm."

1. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations (TR [58]-[59]).

1. It is necessary for the later consideration of the grounds in the application to recall that, at all relevant times, the Act provided as follows:

(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:

(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; ...

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.

(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:

...

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

...

(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.

...

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.

36 Protection visas - criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

...

(b) at least one of the criteria in subsection (2).

...

(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.

...

1. These provisions require in the circumstances of this case that, among other matters, a claimant must establish that:

(a) Their subjective fears are, objectively, "well founded";

(b) The real chance of persecution relates to all areas of a receiving country;

(c) The persecution involves serious harm to the person and systematic and discriminatory conduct; and

(d) The requirements in s 5L of "Membership of a particular social group other than family" are met.

"g. The Tribunal at paragraphs 34 to 37 of its decision failed to engage with the statutory test, identified a wrong issue or asked itself the wrong question by refusing to decide between "equally credible" reports as to whether white South Africans have been targeted on account of their race;

1. The Tribunal asked itself a wrong question while at the same time engaging in illogical reasoning by identifying its task at paragraphs 38 and 39 of its decision as "whether there is anything in the main applicant's circumstances to take him outside the general situation";
2. The Tribunal asked itself the wrong question when evaluating the Applicants' particular circumstances at paragraphs 36, 42, 46, 47 and 51 of its decision as it rejected the Applicants' case for harm due to the absence of "definitive evidence";
3. The Tribunal engaged in illogical reasoning where it observed at paragraph 46 of its decision against the Applicants that "a majority of South Africans feel victimised for their race, no matter their race";
4. The Tribunal did not properly consider the Applicants' case at paragraph 51 of its decision as it did not consider whether the Applicants faced harm as a particular social group, being residents on a farm estate;
5. The Tribunal did not observe and apply the case law [at paragraph 47 of its decision] regarding discriminatory laws where it found as to black economic empowerment that there is "no definitive evidence' that such measures "are other than equality measures designed to redress the imbalances caused by apartheid"."

1. I now turn to consider each of the grounds of review.

1. This states: "The Tribunal at paragraphs 34 to 37 of its decision failed to engage with the statutory test, identified a wrong issue or asked itself the wrong question by refusing to decide between 'equally credible' reports as to whether white South Africans have been targeted on account of their race".
2. The findings about "equally credible reports" have already been set out. Rather than accept this was a case where the Tribunal, faced with what it assessed as "equally credible evidence", was unable to make the positive findings sought by the applicants, the contention is that the Tribunal had "thrown up its hands" by finding that that the country reports were equally credible and not given them further consideration, and it had thereby abdicated its responsibility. Instead, it should have weighed all the evidence in applying the "real chance" test.
3. The Minister responds that:

(a) The task of the Tribunal was to make findings as required by s 36(2)(a) and (aa) of the Act, as further defined in ss 5H, 5J and 36 of the Act.

(b) Section 5J(1)(b) sets out a requirement that there be a real chance that if the person is returned to the receiving country, they would be persecuted for one or more of the reasons in s 5J(1)(a). The Minister correctly emphasised "the requisite degree of severity" in such harm, noting Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 at [90]- [91].

(c) The Tribunal, therefore (e.g., in its "summary of applicable law" at page 32 of the decision), understood it was assessing whether there was such a real chance the applicants would face persecution in South Africa.

(d) It was for the applicants to put forward sufficient evidence to satisfy the Tribunal of this requirement, and then for the Tribunal to decide whether the claim was made out: as Gummow and Hayne JJ said in Abebe v Commonwealth [1999] HCA 14:

"[187] ... The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out."

1. The Minister's submissions are to be accepted on this point. Not too much should be made of the word definitive, which, after all, has as a primary meaning "having the function or character of finality": The New Shorter Oxford Dictionary. As in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36:

"[14] ... legal irrationality or unreasonableness [should not be made out] based on what should be characterised as nothing more than, at worst, mere infelicitous drafting of reasons.

...

[16] It is settled, however, that reasons for decision of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error"." [citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272]

1. For the reasons submitted by the Minister, this is a conceptually straightforward instance of the Tribunal being unpersuaded, on the evidence, as to particular matters. Further, the Tribunal neither identified a wrong issue nor asked itself the wrong question by not being able to decide between "equally credible" reports. It was simply weighing up the evidence along the way to deciding a key issue (with which it engaged at length, as can be seen from the quoted portions of the decision set out above) and finding a claim was not made out.
2. The ground therefore fails.

1. This states "[t]he Tribunal asked itself a wrong question while at the same time engaging in illogical reasoning by identifying its task at paragraphs 38 and 39 of its decision as to 'whether there is anything in the main applicant's circumstances to take him outside the general situation'".
2. I note that the principal applicant had contended that "[t]he main applicant's protection claim is not just that he is white, but that he is rural based and apparently affluent" [TR 21.1], his fears were based on the police having no powers to protect him from harm [TR 23.2], and the lawlessness of which complaint is made applies to the South African population as a whole.
3. At the hearing before me, the particular focus by the applicant was on the final sentence in TR [38] that the "question is whether there is anything in the main applicant's circumstances to take him outside the general situation." It was said this distracted the Tribunal from answering the question "was there a real chance of persecution?" There was also said to be some illogicality in measuring the applicants against a criterion as to which the Tribunal said "it cannot make findings" - a reference back to the preceding ground.
4. I have already rejected the first ground: The Tribunal did not say it could not make findings in the sense alleged in that ground. Rather, it rejected the applicant's claims, finding them not made out.
5. Read fairly, what the Tribunal was doing in TR [38] and related paragraphs, was applying the "real chance test" as it understood it at TR [30], both by reference to the general country information and the circumstances of the applicants. The words "[t]he question is whether there is anything in the applicant's circumstances to take him or her outside the 'general' situation" comes from the Guide to Refugee Law in Australia, as quoted from at TR [30] thus:

"30. The Guide to Refugee Law in Australia provides at pages 3-14 to 3-15 that:

While it is clearly permissible to assess whether an applicant's fear is well-founded by reference to general information about people in a similar position to the applicant, great care is needed in doing so. When considering how persons like the applicant have been or are being treated, the critical question is 'how similar are the cases that are being compared'. In Appellant S39512002 v MIMA, McHugh & Kirby JJ explained that:

It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group.

Thus, while it will usually be necessary to classify an applicant or his or her claims for the purpose of identifying the Convention reason for which he or she may face persecution, it is important that the categorisation is according to a feature of the applicant that makes him or her distinguishable from other persons, and that the potential persecutors also make that distinction.

In addition, where the evidence is that persons of a particular group 'generally' are or are not persecuted, it would be wrong to draw a conclusion about whether a particular applicant will be persecuted without paying close attention to the effect of the qualification provided by the word 'generally'. The question is whether there is anything in the applicant's circumstances to take him or her outside the 'general' situation.

While the decision maker may consider evidence relating to a group of which the applicant is a member, the decision maker's factual inquiry should always be by reference to the applicant's individual circumstances. In assessing the real chance of harm, it will not be adequate to simply conduct a numerical analysis of the risk of harm without consideration of the applicant's particular circumstances. While a statistical or computational approach may have some probative value, it is inappropriate to confine the evaluative process on assessing 'real chance' to only such a data set or quantitative analysis. Similarly, confining the evaluative process to a comparative analysis will also not suffice." [emphasis added]

1. There is no error of principle in doing so: it does not involve the Tribunal asking itself the wrong question. The Tribunal has properly and without error looked at country information and the personal situation of the applicants. This ground fails.

1. This ground states a variation of the first ground (g): "The Tribunal asked itself the wrong question when evaluating the Applicants' particular circumstances at paragraphs 36, 42, 46, 47 and 51 of its decision as it rejected the Applicants' case for harm due to the absence of 'definitive evidence'".
2. Each of the paragraphs cited used the term "definitive evidence". The use of the expression "definitive evidence" raises precisely the same issues as particular (g). This ground fails for the same reasons I have given in rejecting that ground.

"The Tribunal engaged in illogical reasoning where it observed at paragraph 46 of its decision against the Applicants that 'a majority of South Africans feel victimised for their race, no matter their race'."

"46. The Australian Government published travel advice for South Africa states: Exercise a high degree of caution due to the high level of serious crime. Crimes include murder, rape, assault, food and drink spiking, robbery and carjacking. Be particularly alert in major city centres and township areas, and when travelling after dark. Crimes in South Africa often involve the use of weapons. The Tribunal notes however there is no reference in the travel advice to racially motivated crime targeting white South Africans. The Tribunal further notes there is no definitive evidence in the broader country information that white farmers or white people in rural areas are targeted more than anyone else in the country. Rather, it states that farm murders include black and white victims, and farmers are only one of a broad host of people in South Africa at high risk of being murdered; for example, night-shift workers and Uber drivers are in greater statistical danger. The Tribunal further notes that a majority of South Africans feel victimised for their race, no matter their race."

1. The complaint essentially amounted to this: the last sentence that the "Tribunal further notes that a majority of South Africans feel victimised for their race, no matter their race" exhibited illogicality. To quote counsel's argument on this point, "because many South Africans of different races have felt that they're victimised on account of their race, it follows that a white South African being of a particular race can't complain of such victimisation and that it amounts to persecution".
2. This ground takes a single sentence out of context. Paragraph 46 was a single step in the overall context of the Tribunal putting the subjective fears of the applicants in the context of the objective country information about them, where, as the Minister submitted, "nearly everyone in South Africa feels victimised". The same point is made in TR [23.3] where reference is also made to interracial distrust, as well as gender-based discrimination. The ground fails at the outset as there is nothing illogical in this approach. It certainly does not amount to a jurisdictional error.

1. This ground states: "The Tribunal did not properly consider the Applicants' case at paragraph 51 of its decision as it did not consider whether the Applicants faced harm as a particular social group, being residents on a farm estate".
2. Paragraph 51 states:

"The Tribunal accepts the witness's evidence in relation to the Middelburg farm estate and violence and crime more generally in South Africa, however the Tribunal does not accept that it is definitive evidence that the violence and crime experienced by white South Africans is racially motivated."

1. Insofar as this is a further particular of the "definitive evidence" ground mentioned above, it also fails for the reasons already given.
2. I understood the remainder of the argument put by the applicants to be as follows:

(a) A claim which is not dealt with can amount to jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, and that principle can extend to an unarticulated claim which has clearly emerged before the Tribunal, having regard to its findings or material underpinning those findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [26] (and since the hearing, see the summary of principles in DXI22 v Minister for Immigration and Citizenship [2026] FCA 43).

(b) The claim which the Tribunal did not deal with concerned claiming the applicants are members of a particular social group, namely, farmers/rural residents of any ethnicity, that is, not white.

(c) That claim is said to have clearly emerged from the Tribunal's findings, or underpinning material to those findings in particular from acceptance of the wife's account and from the Tribunal's findings at TR [21.1], that "[t]he main applicant's protection claim is not just that he is white, but that he is rural based and apparently affluent", where the three factors in that sentence are not read as cumulative, but as alternatives, i.e. that "[t]he main applicant's protection claim is not just that he is [1] white, but that he is [alternatively, 2] rural based and apparently affluent".

1. The claim must be rejected. The Tribunal had correctly recorded the main applicant's claim as follows:

"26. The Tribunal accepts the main applicant fears that if he returns to South Africa he will be a target of violence, crime and employment discrimination because he is white."

That accurately recorded the applicants' claims that they were being persecuted due to being white: a claim based on race and/or ethnicity. For example, they had claimed that "[b]eing white is our death sentence" (TR [6.6]). At TR [55.5], the Tribunal said:

"The main applicant's fears are not of systematic and discriminatory conduct or treatment directed at him and serious harm, including significant physical harassment or ill-treatment and significant economic hardship for the reason that he is a white South African or a white South African in a rural area, and therefore do not amount to fears of persecution." [emphasis added]

1. The ordinary reading of TR [21.1] is cumulative: i.e. white, rural based and apparently affluent. That is confirmed when the decision is read as a whole, including with TR [55.5].
2. Nor did any such claim clearly emerge from the Tribunal's ultimate or underpinning findings.
3. More fundamentally, the Minister submits, and I accept, that occasional or temporary rural residence which did not tie any applicant to the land can never establish membership of a particular social group within the meaning of s 5L of the Act.
4. Thus, it was not suggested, and could not be established, that temporary rural residence by this family group was a characteristic that met any of the requirements in s 5L of the Act, namely a characteristic that:

(a) is an innate or immutable characteristic;

(b) is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

(c) distinguishes the group from society.

1. Finally, the farm at which the wife had worked and lived had been sold, and the husband had worked and lived in many places other than the farm, which was once the family residence.
2. This ground fails.

1. This states: "The Tribunal did not observe and apply the case law regarding discriminatory laws where it found as to black economic empowerment that there is 'no definitive evidence' that such measures 'are other than equality measures designed to redress the imbalances caused by apartheid'".
2. This ground broadly concerns the references to, and findings concerning, the country information relating to the Broad-based Black Economic Empowerment Act (BBBEE Act) at TR [23.10]-[23.20]. However, the applicants in the Tribunal and this Court did not seek to tender this Act as foreign law nor adduce expert evidence in relation to its contents. As its "face" was unknown, there could be no contention developed that it discriminated "on its face".
3. Further, the evidence did not establish in the Tribunal that the BBBEE Act, in practice, had a relevant persecutory or discriminatory effect.
4. It not being demonstrated by the applicants before the Tribunal that the BBBEE Act resulted in persecutory discrimination either on its face or in practice, there was no need for the Tribunal to go on to determine whether the BBBEE Act had a legitimate aim, and whether its means were appropriate and proportionate to the aim of assisting disadvantaged black South Africans. There can therefore be no jurisdictional error established in this Court on this ground.
5. This ground fails.

1. Each ground fails. The application must be dismissed with costs. Given the nature of the matter, scale costs are appropriate.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.