1420089 (Refugee)
[2016] AATA 4056
•4 July 2016
1420089 (Refugee) [2016] AATA 4056 (4 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1420089
COUNTRY OF REFERENCE: Sudan
MEMBER:David Corrigan
DATE:4 July 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 04 July 2016 at 12:06pm
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
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sudan, applied for the visa [in] February 2013 and the delegate refused to grant the visa [in] November 2014.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, 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.
Third, the persecution which 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. The persecution feared need not be solely attributable to a Convention reason. However, 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: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement 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 being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or 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.
Section 499 Ministerial Direction
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 any country information assessment 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a Sudanese national. He has provided a translated copy of his Sudanese birth certificate which states that he was born in [Town 1], South Kordofan. He has also submitted a copy of his UNHCR Asylum Seeker certificate, issued in [country] which states that he was born in [a town in] Kordofan, Sudan.
The applicant claims that he is a member of [a] tribe from the [Town 1] region of South Kordofan. He claims that he lived in [Town 1] from the date of his birth to September 2012, however information on the [applicant] (D. ff. 88-90) indicates that he lived for several years in Khartoum and then [Country 1].
At his interview with the delegate, the applicant gave a consistent account of his family life and demonstrated substantial knowledge of the [Town 1] area. He had appropriate cultural knowledge and gave a detailed account of his experiences including cultural ceremonies, schooling, border crossings and the process of obtaining identity documents which was consistent with country information. He spoke [Language 1] fluently which is consistent with his claimed identity. Country information indicates that [Language 1] is one of the languages spoken in the [Town 1] area and that [the applicant’s tribe] is a Nubian group whose language is commonly referred to as [Language 1][1]
[1] [Information deleted].
Based on the above evidence (as did the delegate), I find that Sudan is his country of nationality for the purposes of the Convention. Based on the above evidence (as did the delegate), I find that the applicant is a member of [a] tribe from the [Town 1] region of South Kordofan.
Based on the evidence [available about] the [applicant] that indicate that he was not in the [Town 1] region at the time but rather in Khartoum and [Country 1] and inconsistencies (referred to in the delegate’s decision), I do not accept that the applicant was ever arrested by the Sudanese authorities as he has claimed. However, an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[2]
[2] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.
In making my findings, I have given considerable weight to report of the Australian Department of Foreign Affairs on the Sudan as it very recent, authoritative and they have been charged with the provision of this advice to the Australian government. In this report they have stated:
2.32 Conflict continues in Darfur as well as South Kordofan and Blue Nile (often referred to as the ‘Two Areas’). The contested region of Abyei is relatively stable, due to the internal preoccupations of both Sudan and South Sudan and successful interventions by the UN Interim Security Force for Abyei. While other areas of Sudan have historically experienced instability, DFAT assesses that the current situation outside of conflict-affected areas (including Khartoum) is relatively stable. This is despite general lawlessness and possible violence throughout Sudan, likely attributable to the proliferation of weapons and the deteriorating humanitarian situation, including increased food insecurity. A further complicating factor is the current conflict in South Sudan, which has resulted in over 220,000 South Sudanese fleeing to safety in Sudan, including eastern areas of Darfur.
…
2.37 The CPA included vague references to holding consultations on both South Kordofan and Blue Nile which never eventuated. As the secession of South Sudan approached and the Government pressured the SPLM-North to either disarm or join the SPLM in South Sudan, tensions between the Government and the SPLM-North increased, particularly in South Kordofan. After the SPLM-North rejected the election of an NCP Governor in South Kordofan, conflict erupted between the Government and the SPLM-North and quickly spread to Blue Nile. Despite ten rounds of negotiations between the Government and SPLM-North, negotiations have largely stalled. Fresh talks on a cessation of hostilities are ongoing.
2.38 The current conflict in the ‘Two Areas’ (South Kordofan and Blue Nile) has been described as being of the intensity of the conflict in Darfur in the mid-2000s, and has led to the displacement of an estimated 538,000 people. Between January and October 2015 alone, an estimated 36,000 people have been displaced in South Kordofan and a further 56,000 people in Blue Nile.
2.39 In South Kordofan and Blue Nile the Government and SPLM-North have been accused of using excessive force and targeting civilians. The Government’s artillery and aerial bombing campaigns have resulted in significant damage to infrastructure as well as civilian casualties. The situation is considered most severe in South Kordofan, particularly in the Nuba Mountains, where the SPLM-North has a strong presence.
2.40 The humanitarian situation in both Blue Nile and South Kordofan is acute, with the Government preventing humanitarian organisations from accessing and providing support to civilians in controlled by the SPLM-North.
…
3.4 Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking, identifying the Fur, Zaghawa, Massalit and others in Darfur, along with the Ngok Dinka, Nuba and Beja, as the most at risk ethnic groups in Sudan. Based on discussions with in-country contacts, DFAT assesses that this is broadly accurate and that non-Arab ethnic groups including the Fur, Zaghawa and Massalit from Darfur and Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.
…
3.10 Nuba is a term used to describe over 50 ethnic groups that inhabit the Nuba Mountains in South Kordofan and Blue Nile and number an estimated 3.7 million people. The Nuba have traditionally clashed with the pastoralist Arab ethnic group, the Baggara. In the mid-1980s, clashes intensified and became increasingly political with the Government supporting the Baggara-linked militia, the Murahaliin. In the early 1990s, the Government intensified its efforts to limit the authority of the Nuba, including through forcibly converting some of the Christian population to Islam. The prominence of Christianity in the Nuba Mountains has added another layer of complexity given the religious divide between the mainly Islamic Sudan and mainly Christian South Sudan. Despite commitments in the CPA, the Nuba population has not been provided with an opportunity to decide whether they identify as being from Sudan or South Sudan and conflict between the Government and SPLM-North has continued to intensify.
3.11 DFAT assesses that the conflict in South Kordofan and Blue Nile has political, ethnic and religious motivations. In the absence of a negotiated ceasefire with the SPLM-N, the Government has continued to intensify ground and aerial bombardments on rebel-held areas of South Kordofan and Blue Nile which has led to significant harm to the Nuba population. The US Department of State’s 2015 Human Rights Report states that between April and May 2015, Government-linked forces burned at least three villages displacing as many as 50,000 people. Those fleeing also reported numerous unverified civilian executions. In addition, DFAT understands that the Government has prevented Nuba from fleeing to safety.
3.12 Overall, DFAT assesses that Nuba currently face a high risk of discrimination and violence. Given the actual or perceived association of Nuba with the armed opposition, Nuba are likely to face a high risk of discrimination and violence outside of the Nuba Mountains, including in Khartoum.
…
5.4 Currently, the Sudanese Armed Forces is participating in conflicts in Darfur, South Kordofan and Blue Nile. The Sudanese Armed Forces has led aerial and artillery bombardments, targeting both the armed opposition and civilians located in areas controlled by the armed opposition. Within these areas, the Sudanese Armed Forces has also been accused of indiscriminate and targeted attacks against civilians, including the burning and looting of villages and destruction of churches, farmland and hospitals, including a Medicins Sans Frontiers hospital located in South Kordofan in January 2015.
5.5 In non-conflict affected areas, the Sudanese Armed Forces has been accused of abducting and detaining civilians. Former detainees have reported experiencing physical and psychological torture at the hands of the Sudanese Armed Forces.
…
5.32 DFAT assesses that individuals located in areas controlled by the armed opposition in Blue Nile and South Kordofan are unlikely to be able to relocate to other areas of Sudan, including Khartoum, due to their perceived association with the armed opposition. DFAT contacts said individuals located in areas controlled by the armed opposition in South Kordofan and Blue Nile are being prevented from leaving which severely limited their ability to internally relocate in Sudan.[3]
[3] DFAT Country Information Report Sudan, 27 April 2016.
After considering the country information as a whole and the applicant’s individual circumstances, I find that if the applicant returns to Sudan, now or in the reasonably foreseeable future, there is a real chance that he will be targeted for serious harm by the Sudanese authorities as per s.91R(1)(b) of the Act. I find that the essential and significant reason for the harm would be the applicant’s race and imputed political opinion as per s.91R(1)(a) of the Act and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c) of the Act.
As the harm feared by the applicant is from the Sudanese authorities, I find that state protection is not available to him and that there is nowhere in Sudanese (including Khartoum) where, in the reasonably foreseeable future, there is no appreciable risk of the persecution feared by the applicant. His fear of persecution is well-founded.
The evidence does not establish that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David Corrigan
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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