1515568 (Refugee)

1515568 (Refugee) [2019] AATA 3637 (29 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515568
COUNTRY OF REFERENCE:                  Sudan
MEMBER:Christine Cody
DATE:29 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 29 APRIL 2019 AT 4:26PM
CATCHWORDS
REFUGEE – protection visa – Sudan – race – Misseriya Arabic tribe – particular social group – family origins from the Darfur or South Kordofan region – imputed political opinion – perceived as student protestor or rebel or spy – perceived support for the Justice and Equality (JEM) rebel movement – credibility issues – inconsistent changing evidence – claimed arrest and detention – evidence provided in offshore spouse visa application – left home country legally using own passport – ability to obtain new passport from embassy – lived in the capital city region ever since 1989 – no evidence of past harm – generalised violence – separation from family in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A, 438, 441A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZRSN v MIAC [2013] FCA 751
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 on 19 October 2015 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 on 16 January 2015. He produced documents including protection visa application forms, a 4-page typed statement (undated) and supporting documents including a passport issued [in] 2011, as well as a copy of the decision of the Migration Review Tribunal (MRT) dated 23 December 2014 affirming the decision not to grant the applicant a partner visa, and country information.
His migration history[1] is as follows:
·     30 September 2008         start spouse and provisional applications
·     31 March 2009                 spouse visa refused
·     19 November 2010          spouse visa reviewed at MRT and set aside (“first MRT”)
·     23 February 2012             spouse provisional visa granted
·     [April] 2012  arrive Australian spouse visa
·     18 July 2013  BC 100 application refused
·     23 December 2014          MRT affirm refusal BC 100 (“second MRT”)
·     16 January 2015              protection visa application lodged
Other files
[1] Source: Delegate’s decision record provided to the Tribunal by the applicant.
In addition to the protection visa file referred to below, the Tribunal also had access to the Departmental file relating to the applicant’s offshore and onshore spouse visa [application], as well as the MRT files relating to the application for review of the initial offshore refusal to grant the applicant a [spouse visa] to come to Australia [and] the onshore refusal to grant the applicant a permanent [partner visa]. Relevant information from these files and decision records was put to the applicant when required (pursuant to s.424AA of the Act).
Protection visa claims
The applicant’s claims and background as set out in his written documentation provided to the Department include that:
·     He was born in “[Town 1],[2] Darfur, Khordofan Province (Darfur), West Sudan” in [year]. He is of Arabic descent, and his ethnicity is Misseriya.[3] His religion is Muslim (Sunna).
[2] [Information deleted].
[3] Also referred to as Mesiriya, Misiriya and Elmesirya.
·     He speaks, reads and writes in Sudanese Arabic.
·     Since childhood, he worked with his father on the farm, until [October] 1989, when the family moved to Khartoum. From November 1989 until February 2008 he lived at [Address 1], and from March 2008 until September 2009 he lived at [Address 2], in Sudan. In 1994 his mother died. His father had been working in the [trade business] at this time. His father remarried in Darfur in 1997. He has a lot of family members, namely his father, his older sisters, his younger siblings including his [brothers]. He also has [step-siblings] (surname [same as applicant]) born between [year] and [year].
·     He attended elementary school from [year] until [year], and then attended primary school in Khartoum from [year] until [2001] when he withdrew. (He did not claim in his application form to have attended senior school or university.)
·     Between [year] and 2001, while at school, he was a member of [a specified] student association. Their activities were in support of the Misseriya tribe and all the tribes in Darfur for justice and equal rights. He and other students were interrogated by the security services on several occasions. They were warned not to continue their gatherings as it was considered against government security laws; there would be serious consequences if they did not stop. They did not stop, however they tried to do them in secret. They were called again and warned; the security forces came to his school and took him out of the class. He was kept under surveillance and harassed to the extent that he decided to leave school in 2001. He started to work with his father in the [business].
·     From November 1989 until September 2009, he worked in [Occupation 1] in a [shop].
·     In February 2003 the “Justice and Equality” armed faction began to fight against the government forces. His father was arrested in [2003] and was imprisoned for [six months].
·     [In] 2004 the applicant was arrested and sent to [prison] with his uncles. He was interrogated, beaten, tortured by “the captain in the security agency” so that he would tell them the names of the JEM faction members in Khartoum because he was considered to be a spy working with armed resistance that were against the government. They were released in September 2004 on the grounds of a lack of evidence. He worked again with his father; they were kept under surveillance.
·     In December 2006 he met his wife. The relationship began on 28 December 2006. He told her everything that had happened to him and that his life was in danger because of all the harassment by the security forces. They married [in] 2008 and then moved into a home in [Address 2].
·     [In] May 2008 his wife returned to Australia.
·     On 10 May 2008 JEM forces attacked Omdurman with no success. The authorities took action in response. On 16 May 2008 his father told him that they were all wanted as spies so the applicant was to take the whole family back to Darfur. The applicant sent them to Al Fashir but he stayed in Khartoum to search for his father and uncles who had disappeared.
·     [In] 2008 he was arrested and sent to [prison] where he found his father, uncles and a large number of JEM members who had been tortured. The applicant was also tortured (by the same man as had previously tortured him). He was tortured with electricity, burning and severe beatings until he lost consciousness several times and then he was thrown into his cell where he did not know if it was day or night. There are scars on his body from the torture.
·     [In] 2009 he was sent to [court] with others; he managed to escape. He contacted a friend who hid him at his home for two weeks and then took him to [City 1], North Sudan. He called a contact who works with the Security Police who said that the applicant was a wanted man and that he should leave Sudan. He obtained an exit visa to [Country 1] for the applicant.
·     On 15 September 2009 he took the ferry from [City 1] to [Country 1] with the help of his friend. He then took a train to [City 2] and stayed with a relative of his friend. He left Sudan legally using his passport. His reason for travelling to [Country 1] was that he ran away from Sudan because of the political situation and being followed by security forces and he was awaiting his spouse visa.
·     He got in contact with his brothers in Sudan to see if they were okay but was told his brother [Brother A] had been killed in Al Fashir in a government bombardment and they did not know anything about the whereabouts of his father and uncles; the siblings were all in a refugee camp in Al Fashir.
·     He contacted his wife and said that he was now in [City 2] and wanted to apply for a humanitarian visa, but she told him that he did not need to apply for a humanitarian visa; she had already begun the process of applying for a spouse visa as she is an Australian citizen. Some of his friends told him that the Sudanese security forces were asking about him and looking for him.
·     In 2010 his wife came to [City 2] and they completed all the paperwork for the spouse visa application. He lost his Sudanese passport, which had been issued in Sudan legally in 2008, in [Country 1] and was worried about what he would do. Some of his friends assisted him to apply for and obtain another passport from the Sudanese Embassy in [City 2]. His passport was issued by that embassy [in] 2011 ([expired] 2013). He does not know what happened to his previous passport.
·     His passport is expired. He does not have a current travel document; if he applies for one the Embassy will confiscate his old passport.
·     From September 2009 until April 2012 he was self-employed as a [Occupation 2] [in [City 2]].
·     He underwent a medical examination for his spouse visa. He was also interviewed in connection with the issue of his spouse visa. His spousal visa was issued in [City 2] on 23 February 2012.
·     He arrived in Australia [in] April 2012. He thought that he would be safe however his relationship with his wife did not go well as she was aggressive and abusive and she drinks quite heavily. He and his wife separated [in] January 2013 in Sydney.
·     When he left her he immediately informed the Department of Immigration that he had done so, not realising that his visa would be cancelled, so he took his case to the MRT however he was not able to explain the situation very well and his application for a permanent spouse visa was refused.
·     He cannot return to Sudan. His life would be in danger because the Sudanese government is still attacking and killing civilians in West Sudan; those who oppose the government; those who speak about the atrocities they’re carrying out. He follows the news and he is aware of the continuous killings and attacks that are being carried out in western Sudan, where his family comes from.
·     The Sudanese authorities will apprehend and kill him.
·     He is sometimes in contact with his brother [Brother B], who is in Al Fashir, who calls him on the phone sometimes.
·     His current occupation is [Occupation 3]. From January 2013 in Australia he worked as a [Occupation 3] for a [company].
The submissions accompanying the protection visa application summarise the claims and history as follows: the applicant was targeted by the Sudanese security forces as he and his family were verbally outspoken against the atrocities that were being carried out by the regime. He had been threatened since 2001 by the security men if he did not stop gathering and speaking against the regime. He was later detained [in] prison (twice) and tortured, in 2004 and 2008/2009. When released in 2004 he had been threatened that he would be detained again if he did not stop his political activities. After his 2009 escape his friend assisted him to get a passport and visa to [Country 1]. In 2010 his wife travelled to [City 2] where they discussed his situation and it was decided that he would apply for a spouse visa instead of a humanitarian visa. He was granted a visa in 2012. He arrived in Australia [in] April 2012.[4] The agent said that he has been meeting with a psychologist in relation to the PTSD he suffers due to the torture he underwent in 2004 and 2008 [no mental health reports were provided to the Tribunal by the applicant]. She said that the applicant told her he is very fearful of returning to Sudan, and that he follows the news on the internet. He fears being killed by the Sudanese government as he originates from Darfur and they think he is a spy.
The MRT cases
[4] The submissions said in error that he arrived in 2013.
The first MRT decision record (relating to the application to review the refusal to grant the applicant an offshore spouse visa application) was not provided to the Department or the Tribunal by the applicant in the protection visa proceedings. The Tribunal has however had access to that decision record contained in the MRT file.
The second MRT decision record dated 23 December 2014 related to the application for review to refuse to grant the applicant a permanent onshore spouse visa. A copy was provided by the applicant in support of his protection visa application. That decision record included the following:
·     The applicant said that his wife had committed serious family violence against him since April 2012. They had separated [in] January 2013.
·     The delegate had requested that the applicant provide evidence in accordance with legislative requirements and attached information concerning those requirements.
·     The delegate noted he had not supplied any evidence to substantiate his claim of family violence and affirmed the decision under review.
·     In the MRT proceedings, the applicant’s migration agent submitted a letter from Lifecare counselling and family services stating that the applicant attended one counselling session with them on 24 January 2013. The agent also submitted a copy of an application form to the police asking for information about an event number, however the document states the application for information is not valid. No further information was provided to the MRT about this matter.
·     The MRT found that the applicant was not credible in his evidence concerning when he met his wife and how the relationship developed and noted that he “changed his story to fit with discrepancies”.[5] He gave inconsistent evidence as to when his problems started with his wife, and when claiming that the relationship had problems from the day he arrived in Australia, claiming his wife was violent and he had been attacked with a knife on at least six occasions. He also told the MRT that he had never sought medical treatment or reported incidents to police. He did not submit any evidence from doctors or the police to substantiate his allegations of violence. He did not have any statements from friends or other social contacts attesting to the genuineness of the relationship. The MRT was not satisfied that they were in a spouse relationship while the applicant was in Australia, during the time of the alleged family violence.
·     Further, the MRT noted that the applicant had produced a statutory declaration from a registered psychologist setting out the alleged family violence perpetrated by the wife, and the applicant’s concerns about his safety and well-being. It does not state whether he had been providing counselling or assistance to the applicant as a psychologist. There was also a statutory declaration from a social worker setting out the alleged family violence; again it did not state that the social worker treated the applicant while performing the duties of social worker.
·     The MRT found that:
Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. … The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14). As set out above, the Tribunal is not satisfied the alleged family violence occurred during the time he applicant and his wife were in a spouse relationship. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa.
[5] The changing evidence is referred to below in the Credibility section.
The country information provided in support by the applicant showed that: (in December 2014) the Sudanese army was fighting rebels in South Kordofan province (mostly former civil war fighters who were left in Sudan after South Sudan seceded in 2011). The applicant provided further information at interview, including a Human Rights Watch (HRW) summary dated 17 June 2008 of a HRW report dated 16 June 2008. The summary showed that as a result of the attack by the Darfur-based rebel group, JEM, in Khartoum, on 10 May 2008, the government had detained hundreds of people “because they are from Darfur” [however, a consideration of the actual HRW report was more specific, indicating that the majority of those detained were from the Zaghawa ethnic group of Darfur, as well as persons with suspected or known links to the opposition Popular Congress Party and to Darfur rebel groups][6]. Some were brutally beaten and thrown into crowded jails and some have died.
[6] HRW, Crackdown in Khartoum 16 June 2008: Accounts from local residents indicate that the vast majority of those detained were individuals who are or appear to be from Darfuri ethnic groups, mainly the Zaghawa ethnic group, which form the majority within JEM,
Further information was contained in the Departmental file including Departmental notes relating to the offshore application for a spousal visa made in 2008.
Certificates and notification
There was no certificate of non-disclosure on the Departmental file relating to the protection visa application.
However, the Department forwarded to the Tribunal a s.438(1)(b) certificate and notification dated 21 September 2017 (after the first hearing) relating to information given to the Department in confidence. The Tribunal accepts that the notification describes information given in confidence and accepts that the certificate is valid. The Tribunal discussed this matter at the second hearing with the agent (as the applicant himself did not attend). The Tribunal said to the agent that the information related to a charge against the applicant and that it would expect that he would be aware of the information relating to a charge against him. The agent said that she was unaware of any such charge, and thus she was unaware as to whether there had been a conviction or acquittal. The Tribunal said that it did not appear that the information the subject of the certificate was relevant. The Tribunal considers that the information showing that the applicant has been charged with an offence has no bearing on the issue before the Tribunal, namely whether or not the Tribunal is satisfied that the applicant is a refugee (facing a well-founded fear of persecution in Sudan for one or more of the five reasons) or is entitled to complementary protection on the basis that he faces a real risk of significant harm in Sudan. Further, the Tribunal notes that no information has been provided to the Tribunal to indicate that he has been convicted of any such charge. In the circumstances the Tribunal places no weight on the information.
When the Tribunal received the offshore spouse visa file, a certificate and notification (s.438 of the Act) was placed on it stating that it was contrary to the public interest to disclose internal Departmental working documents. At the first hearing the Tribunal explained that the certificate was not valid. The Tribunal considered the documents the subject of the certificate. Folios 144–146 were general processing notes (not generally relevant); folios 153–163 were an assessment as to whether the applicant was a security risk and also not relevant. Folios 79–92 were Departmental notes about the spouse visa application including the interviews, however the delegate in the protection visa case had already placed relevant information from these folios in the protection visa file (not subject to a certificate) and it was also in the MRT decision records (and was put to the applicant when necessary pursuant to s.424A of the Act). When discussing the material at the first hearing the Tribunal indicated that it appeared that the documents were thus not of [additional] relevance. The agent said she is not aware of the offshore file as she was not acting for the applicant at that stage. The Tribunal considers that the documents the subject of the certificate are not relevant (or were sourced elsewhere and put to the applicant pursuant to s.424A of the Act if required).
The delegate’s interview and decision record

The applicant attended an interview with the delegate on 14 October 2015; the Tribunal has listened to a recording of the interview. In the decision record it was noted that conflict in Darfur flared up in 2003 when the two main rebel groups, the JEM and the Sudan Liberation Army (SLA) rose up against the government, accusing it of wilful neglect. The government took swift action to crush the revolt by rebel groups, and this conflict between the government forces and the rebels continue in the States of Darfur and Southern Kordofan. Security has deteriorated in these areas because of a rise in inter-ethnic conflict leading to attacks by government forces on unarmed civilians particularly in Darfur. The conflict has resulted in a significant number of deaths. Both government forces and rebels including JEM have been accused of having committed human rights abuses. Further, in 2011, JEM joined the Sudanese Revolutionary Front (SRF) coalition of rebel groups including SLA factions. In 2013, the Sudanese government conducted a wave of arrests in Khartoum following an offensive by SRF rebels. Some were taken to Kobar prison.
The Tribunal notes that some of the applicant’s evidence at interview was set out in the delegate’s decision record provided to the Tribunal by the applicant, including:
·     The applicant will be harmed because he comes from Darfur and, since he was a young boy, he and his friends would talk about rights for Darfur. He is perceived as a spy and being supportive of the rebel movement.
·     He is suspected of being supportive of JEM although he has never been a member of this organisation. He is not a member of JEM. When asked why the authorities would want to target him, he said that he was part of a group at school that would talk about the differences between the South and North and he had been warned by the government to cease these activities or face imprisonment for life.
·     He was asked about his arrest and detention in 2008. He said he was arrested at that time because JEM had moved from Darfur to change the government in Khartoum and the authorities moved to capture people from Darfur. He was imprisoned for six months before being taken to court. Later in the interview, he again confirmed that he was imprisoned for this length of time, saying that in 2008 he was “imprisoned for the whole duration”. When asked if he had ever been charged with any offence after being arrested in 2008, he said he was captured and tortured but did not know why he was there at the prison. Asked why he was being taken to court, he said they took him to court as part of a big group in order to testify that they were trying to change the government. Asked if he was aware of any charges being brought against him, he said that he was accused of spying against the government. Asked if he ever had any contact with any lawyer or human rights organisation, he said he did not. Asked if he had any evidence of his detention, he said he did not because he escaped.
·     The delegate put to the applicant that he had contact with the Department on two separate occasions during the period he claimed to have been imprisoned (from September 2008 until March 2009) indicating that he had not, as claimed, been held incommunicado in prison. The delegate was concerned that he maintained that he was held continuously in prison for six months for reasons of his perceived support for JEM and only altered his account (to say that he had been released, and was in and out of prison during that time) once the information about his encounters with the Department were put to him. The delegate considered this explanation to be self-serving and did not accept that he was detained. The delegate considered that there was also a lack of evidence to support his claim to have been arrested in 2008 which made it difficult to accept at face value.
·     The delegate also found difficult to accept the applicant’s claim as to how he escaped from court. He said there was only one police officer with him at the time and he asked to go to the bathroom. He claims the handcuffs were removed, and when he went to the toilet he was able to escape through the window and out onto the street where he ran away. The delegate put to the applicant that it seemed highly implausible that he could escape with such ease given that he had been detained at a notoriously high security prison and then taken in handcuffs to court. The applicant said the courts were busy so he took his chance. The delegate also considered his account as to how he was able to escape to be far-fetched.
·     The delegate put to the applicant that he then remained in Sudan for a further six months which also seemed inconsistent with his claimed fear of harm. The applicant said that he had no money and he could not move around and borders were very secure.
·     The delegate also put to the applicant that he claimed that it was once he arrived in [City 2] that he contacted his wife and suggested to her that he apply for a humanitarian visa but she said she had already commenced a spouse visa application. The delegate noted this was inconsistent with the fact that he knew about the application for a spouse visa and he had already been interviewed about that application and provided his sputum as part of the medicals. In response the applicant said that when his wife returned to Australia she told him she would start applying for him, and she came to [Country 1] to visit him.
·     As the delegate did not accept that he was detained in 2008, it was also not accepted that he was detained for reason of his political opinion in 2004.
In addition to the evidence at interview mentioned in the decision record, the agent submitted that Sudan is a very unstable country and a lot of people from the same tribe have been targeted and there are no human rights in Sudan, no protection and the atrocities still continue and for him it is not safe to go back.
While the delegate accepted that country information supports the claim that a person who is considered to be part of the rebel movement opposed to the Sudanese government may be subjected to harm amounting to persecution, the delegate was not prepared to accept that this is the case with the applicant. The delegate noted he was able to obtain another passport in [Country 1] from the Sudanese authorities without hindrance, which supports the view that he did not escape from prison in Sudan. The delegate did not accept that the applicant had been detained, or escaped from the authorities or the country, and considered that his claims lack credibility. The delegate considered the photographs provided but said that they were insufficient evidence to conclude that they were the result of being mistreated for his political opinion. They were given no weight. The delegate was not satisfied that he would be perceived as a spy and being supportive of the rebel movement in Sudan.
Further country background
By way of background, the Tribunal notes that:[7]
[7] Sourced from the BBC: Darfur conflict, 29 April 2013, and from HRW Background briefing 9 January 2005, and from Reuters, “Factbox, who are the Justice and Equality Movement?” 24 February 2010, and the Red Cross COI Compilation on Darfur, 2014 in Darfur is both fluid and complicated, but African groups like the Fur, Zaghawa and Masalit [all non-Arab] felt the government was taking the side of the Arabs.
·     Religion was not an issue: almost everyone in Darfur is Muslim.
·     The beginning of the war is usually given as 2003, though rebel movements had been formed before that.
·     In April 2003, rebels struck the airport of El Fasher, capital of North Darfur.
·     The surprise raid through the desert – a tactic which became characteristic of the fighting in Darfur – was astonishingly successful. The rebels destroyed seven planes, and captured the head of the air force. Khartoum – and the world – realised something serious was under way.
·     The Sudanese government’s response, which relied on air power and an Arab militia known as the Janjaweed, has been described by the Sudan expert Alex de Waal as “counter-insurgency on the cheap”. Fur, Zaghawa and Masalit villages were bombed and burnt, civilians were killed, and women were raped. Numerous refugees stated that the Janjaweed who carried out those atrocities were made up of Misseriya who had said that there were too many non-Arabs living in the area and they had to leave.
·     Several “African” ethnic groups – namely the Fur, Masalit and Zaghawa – have been specifically targeted by repeated joint government-militia attacks in Darfur. Although the term “African” historically had little relevance in the Darfur context, many of the Fur, Zaghawa and other victims of government-militia attacks have increasingly identified themselves as “African” in opposition to their “Arab” attackers. This is a troubling sign of the increasingly polarising effect of the conflict, in which many – but not all – ethnic groups have felt compelled to become involved along ethnic lines. Almost all the people of Darfur are Muslim and ethnic identity has previously been flexible, with intermarriage between ethnic groups, particularly in urban areas.
·     JEM was among mostly non-Arab rebels that took up arms against the Sudanese government in 2003, complaining that their region was being marginalised. Khartoum mobilised its army and mostly Arab militias to crush the revolt. Washington and some activists have said genocide took place during the counter-insurgency, an accusation Khartoum has denied.
·     In May 2008 JEM made a lightning advance from the western Darfur region to attack Khartoum. Around 200 people were killed in the unsuccessful attack.
·     JEM are mainly taken from the (non-Arab) Zaghawa tribe. Although since 2007 JEM has worked actively to recruit Darfurian Arabs, including from government-supported militias or ‘janjaweed’. From the outset, JEM sought national reform and regime change, using the atrocities in Darfur to delegitimise the government internationally.
·     In 2008, the UN estimated that 300,000 people had died because of the war, though Khartoum disputes the figure.
·     Sudan’s President Omar al-Bashir has been indicted by the International Criminal Court (ICC) for genocide, war crimes and crimes against humanity allegedly committed in Darfur. The genocide charge alleged that he had overseen an attempt to wipe out part of the Fur, Zaghawa and Masalit communities.
·     The civil war is best understood as a conflict conducted on several levels at once: on the local level, groups battle each other, usually over resources; on the national level, rebels challenge the state.
·     In 2013 IRIN noted that there had been more fighting in the Darfur region including inter-tribal violence between Misseriya and Salamat (inter-Arab violence).
Further background is provided from other country information (provided by the delegate and applicant) and by the DFAT report.
The Tribunal
The applicant provided to the Tribunal a copy of the delegate’s decision record with his application for review. The applicant had provided a statement setting out all of the claims made and maintained by the applicant (which he signed, confirming that he has read the declaration and agrees with it). This included that:
·     The applicant’s birthplace was in [Town 1], West Kordofan state, which he described as being in the Darfur “region”. The government had targeted many tribes from the Darfur region. The applicant had been part of [a student association] organising and attending meetings to discuss the rights of the tribespeople calling for justice and equal rights for people from Sudan. He was harassed so much by the authorities that he left school. He started to work in his father’s [trade business].
·     After JEM started fighting the government in 2003, his father was arrested [in] 2003 and sent to [prison] for six months. The applicant was arrested [in] 2004 and sent to prison with his two uncles ([Uncle C] and [Uncle D]). They tortured the applicant to find out the names of members of JEM. He was released after five and a half months. He resumed his work with his father but his family was kept under close surveillance.
·     After the JEM attack his father told him to take his siblings to Darfur and while he organised to move them there, he stayed back searching for his father and uncles. He was arrested [in] 2008 and taken to [prison] where he found his uncles and his father. He was subject to extreme torture, losing consciousness at times. He escaped at court when there was a big confusion (in March 2009).
·     The marriage did not work out because of the emotional stress of what he endured in Sudan and what has happened to his family.
·     He has been seeing a counsellor to help him with the torture and trauma of what he experienced in Sudan.
·     The reason why he fled Sudan still exists; he and his family are still targeted by the Sudanese authorities (the government security forces).
·     The current government continues to attack people in western Sudan in the Darfur area and the President is wanted for crimes against humanity.
·     He has just received word that his two uncles have been killed in the recent raids and attack by the government forces in the Darfur region. His father is currently missing and he does not know if he is alive or dead.
·     There are no justice or equal rights for civilians from tribes who the government is targeting.
·     People who speak against the government or its actions are seen as opposing them and are deemed as rebels.
·     The applicant’s life will be in danger noting that some people recently deported to Sudan have been mistreated.
The applicant made a further statement signed 6 August 2017, claiming that:
·     On 23 May 2017 a large number of men from his tribe were caught and detained by the Sudanese national security forces on the basis that they were rebels. A large number were killed, including his two paternal uncles ([Uncle C] and [Uncle D]); he had been detained with them in 2004. A large number of his relatives are dead; his father and brothers have fled from the area, so he now wonders what will happen to him given the fears for his family. The government is still targeting him and his family members and tribal members in Darfur.
·     He knows he will be killed as the government has killed others who have returned. He is fearful and still has nightmares.
·     In 2015 he met [Ms E] and her [son] who was [age]. They are together, she supports him and he feels more emotionally stable. They have a son born [date].
Country information was provided showing that in 2017, the Sudanese government/militia attacked villages in Darfur – the ethnicities of those villagers who were targeted were the Zaghawa and the Fur. [The Tribunal noted that this did not support the applicant’s assertion that the Misseriya tribe were targeted, although a search by the Tribunal noted that the Misseriya herders were in conflict/tension in 2017 with Dinka on their travels from South Sudan and Abeyi.][8]
The hearing
[8] >
The applicant attended a hearing on 16 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sudanese Arabic and English languages. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision. The applicant’s partner attended the hearing.
The applicant interrupted the interpreter on numerous occasions; the Tribunal noted it was clear that he could understand English, but that his interruptions made it difficult for the interpreter, and for the Tribunal, to know what he was saying. It asked him on numerous occasions not to interrupt the interpreter, and indicated that if he wanted to speak in English as opposed to using the interpreter, he could do so. He responded that he wanted to use the interpreter. The Tribunal is satisfied that the applicant was able to understand the proceedings and to give evidence, and that the proceedings were satisfactorily interpreted (given the applicant did not seek to obtain the hearing recordings to produce a transcript or otherwise provide, in his post hearing submissions, any evidence to suggest that his evidence was not correctly translated).
The applicant’s evidence told the Tribunal that he was born in [Town 1], Kordofan Province in the area of Darfur. He lived there from birth in [year], for the first [number] years of his life, until he came to Khartoum in 1989. He then said that he lived in his father’s house in [Address 1]. This house had been in the family for a long time. He said he lived there until he married, [in] March 2008, at which time he moved to [Address 2][9], a house in Khartoum which belonged to one of his relatives. He stopped living there after his [wife] returned to Australia [in] May 2008. After that he went back to live with his father at the house in [Address 1], which is where he lived until he left Sudan.
[9] [Information deleted].
At the first hearing the Tribunal discussed with the applicant his claims about his fears and the basis of his fears. The applicant provided changing and evasive evidence as to why he fears harm at the hearing (discussed in the Credibility section below). He finally said that there were two reasons:
·He is from a family where the government is not happy with the family activities.
·They believe he is a spy and anti-government.
The Tribunal had put to the applicant during the first hearing concerns with his claims, as well as information pursuant to s.424AA of the Act, noting that he had the right to comment or respond or seek further time to do so. The agent sought further time to provide evidence as to the applicant’s origins, and said that perhaps his siblings have birth certificates, but perhaps some people don’t have documents or they leave things behind for their own safety. She said there are some organisations here which could assist. The applicant also said that he could try to contact family in [Country 2] or Sudan and see if they could get anything. The agent also sought time to obtain further evidence to respond to the Tribunal’s concerns, including the concern that there did not appear to be any country information supporting the applicant’s (changing) claims as to whether he faced harm (in Khartoum, his home area as discussed at hearing) on the basis of his claim to be from the Misseriya tribe. The Tribunal said it could delay making its decision and it would take such information into account.
After the first hearing the agent produced submissions with further documents. She referred to concerns raised by the Tribunal about his claims about what happened to the applicant in 2008 after JEM rebels attacked Omdurman. She said he stated that his father asked him to take his siblings away for their own safety to Darfur/South Kordofan. He was concerned for their safety because the security forces were arbitrarily detaining people in Omdurman and Khartoum who were from western Sudan and were suspected of supporting the JEM rebels. She noted his evidence at hearing [in response to concerns] that he had been detained and released on a number of occasions so that he was detained for a total of six months.
The agent suggested that articles show that people from tribes in western Sudan continue to suffer, and that the applicant is from that part of Sudan. She attached a map showing that [Town 1] is in South Kordofan province (which Province borders North Darfur and South Darfur provinces, and that Al Fashir is the capital of North Darfur). The Tribunal accepts the map; it does not however accept, as discussed later, that there is credible country information showing that all people from Darfur, or from the neighbouring South Kordofan province, no matter which tribe/ethnicity, are targeted by the authorities/militia (in Khartoum/Omdurman where the applicant has resided and will return to reside). The country information produced includes a report entitled “Genocide in the Darfur region of Sudan” which confirmed that there are economic and tribal/ethnic differences in the region. Economically the Arab groups had been nomadic herders while the African groups (Fur, Masalit and Zaghawa) were pastoralists. The Sudanese government had exploited the differences by arming the ethnic Arab militia (Janjaweed) to attack ethnic African groups, killing nearly 400,000 people, and involving systematic rape of women and millions of people having been displaced. It is these actions which have led to the International Criminal Court issuing an arrest warrant for the President.

The agent also attached a USDOS report from 2008 which stated that:
·     On 10 May, the JEM, a Darfuri rebel movement, mounted an attack on Omdurman near the capital.
·     Intertribal conflict also killed civilians. According to the UN, nearly 2.7 million civilians have been internally displaced since the conflict in Darfur began in 2003.
·     During the year, approximately 315,000 civilians were displaced within Darfur and to Chad.
·     The government’s human rights record remained poor. There were extra-judicial and other unlawful killings by government forces and groups throughout the country, disappearances including hundreds of Darfurians in Omdurman and Khartoum following the 10 May JEM attack, mistreatment by security forces, harsh prison conditions and incommunicado detention of suspected government opponents.
·     More detail was provided as to those targeted, noting that politically and ethnically motivated disappearances occurred “particularly of Zaghawas living in Khartoum and Omdurman” and that if people appeared to be Zaghawa, they were stopped. [The Tribunal notes the applicant has not claimed to resemble an African Zaghawa tribesperson.] Children were also detained (as JEM had used child soldiers in its fights against government/government militia).
·     It was noted that fewer than 300 people have been charged with participating in the 10 May attacks, and that prominent Darfuri lawyers and activists arrested in Khartoum remained unaccounted for at the year’s end.
·     Further, university student protestors were dispersed and harmed.
·     Anti-terrorism courts were set up to try persons arrested in connection with the JEM attacks and persons tried under these courts did not have the same rights as in regular courts. In August some were sentenced to death on charges of subverting the state and engaging in terrorism, and trials of others were ongoing.
·     Lengthy pre-trial detention was common.
The agent also produced further information on the JEM attack in May 2008, noting that members of the opposition had been arrested, accused of having links with the rebels, and many had been sentenced to death. The children accused of taking part in the raid were pardoned by the President. The Secretary General of the UN condemned the use of force by JEM to achieve political means.
A HRW article from July 2017 referred to human rights defenders and activists being held, harmed and charged with espionage and other criminal charges. HRW was concerned that a fair trial could not be guaranteed. There is a culture of impunity for the NISS which enjoys broad powers of arrest and detention.
The applicant produced civil registration documents (with translations) for his father and two siblings.
In February 2019 the Tribunal contacted the agent to apologise for the delay in making a decision and offered the applicant an invitation to attend a second hearing given the regrettable passage of time since the first hearing. The applicant was invited to produce information in relation to his claims and the hearing invitation noted that the Tribunal was not able to make a favourable decision on the information before it, and if the applicant did not attend the further hearing then the Tribunal may make a decision upon the review without taking any further action to enable the applicant to appear before it. The Tribunal received a Response to Hearing invitation indicating that the applicant and his agent would be attending the second hearing. However on the scheduled day and time the agent attended but the applicant did not. The agent said that it was the applicant’s instructions that he said he was stressed and did not want to attend a further hearing, he had already said everything he wanted to say and provided all the documents and he had nothing else to add. The Tribunal noted there were several purposes for holding the second hearing including for the applicant to provide any update. The agent did not have any update other than to say that he is still with his wife and child and he does not want to leave the country. The Tribunal discussed with the agent that although understandable, it was difficult to see how separation from family members falls within the matters to be decided by the Tribunal namely whether or not he is a refugee or entitled to complementary protection, which the agent acknowledged.
The Tribunal noted that there were inconsistencies with the documents provided after the first hearing, which documents were said to support the applicant’s claim of his (and his family’s) origins. This is discussed further below.
The Tribunal had listened to the hearing recording of the first hearing prior to the second hearing. It noted that it still had credibility concerns which it was going to discuss with the applicant however he did not attend. It also noted that the applicant did not appear to have requested a copy of the recording of the first hearing and asked the agent whether she was going to ask for a copy of the recording or whether she was content with her own notes. She responded that she did not need anything further and she did not seek to provide any further evidence or submissions after the hearing. She said that although she accepts her belief is irrelevant, she believes that he has been through what he claims. She referred to the marks on his body, acknowledging that the Tribunal noted at the last hearing that marks on the body can have a number of causes.
The Tribunal put to the agent that while not having made up its mind, if it did not accept the applicant’s imputed political opinion claims, and if (although this was perhaps not the case) it did accept that he was from Misseriya and born in [Town 1], living in Khartoum, then in such circumstances it was not aware that there was country evidence to show that he faced a real chance of serious harm or a real risk of significant harm based on his profile, in Khartoum. The agent then referred to general violence which she said was occurring in Sudan. When asked, she said she did not bring country information to support this. She said that since December 2018 there has been a big movement to remove the government and that every day atrocities that had been committed in western Sudan are coming to light.
The agent then provided to the Tribunal three articles, relating to two prominent leaders of an opposition party having been detained and then released after having visited some Darfuri students from a university (August 2017), and an Amnesty International (AI) article (July 2017) calling for the release of three Sudanese activists who had been deported from Saudi Arabia and detained by officers of NISS upon arrival. It noted that AI states that they are prisoners of conscience involved in social media activism following their support of the civil disobedience protest actions in Sudan on Facebook in November and December 2016. They had already been detained and interrogated in Saudi Arabia apparently at the behest of the Sudanese authorities. The final article related to Darfur students arrested at a protest against university tuition fees and the use of gas and batons to break up the demonstration. Given the Tribunal’s findings (below), the Tribunal does not consider these articles to have any relevance to the applicant (other than as context in the claim made by the applicant relating to general violence).
The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5), and that two separate SMS reminders were also sent to the applicant about the hearing. His agent indicated that he did not seek to attend the second hearing. The Tribunal considers that the applicant was provided with a further opportunity at a second hearing to provide any update and to discuss the previous concerns and additional concerns (for example arising out of the inconsistencies in the certificates he provided post hearing) and to further discuss country information, but he did not attend (nor did he provide any medical evidence in this regard). Further, the applicant was given another opportunity to comment on country conditions when the Tribunal send a post-second hearing letter on 15 April 2019, but the applicant did not respond. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CONSIDERATION OF THE CLAIMS AND FINDINGS
Country of reference
The applicant produced his passport issued by the Sudanese Embassy in [Country 1]. The Tribunal notes that the Department was prepared to accept that he was a Sudanese citizen and national of Sudan, and assessed his claims against Sudan. Although the Tribunal has concerns about the applicant’s passport (as discussed further below), it is prepared to accept, for the purposes of this decision, that the applicant is a national of Sudan, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Sudan.
Credibility of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal considers that the applicant’s evidence was inconsistent, changing and not credible about many aspects central, and relevant to, his background and claims.
Concerns about the applicant’s detention in 2008[10]
[10] All references to discussions at interview are set out in the delegate’s decision provided to the Tribunal by the applicant.
Firstly, the Tribunal was concerned that the applicant gave changing, inconsistent and not credible evidence about when he was detained in 2008.
The applicant provided the following context: he told the Tribunal that when he was arrested [in] September 2008, it was because the government considers him to be a spy and anti-government and they want him to explain his family activities because the government believes he is from a family of anti-government spies, and they harmed him while he was in detention. The Tribunal asked what information they wanted from him on that occasion, and he said they wanted to know where the gatherings were held, the people who subsidise them and where their villages are. The Tribunal asked whether he told them what they wanted to know, and he said no.
Having regard to this context, the Tribunal was concerned about the applicant’s changing and non-credible evidence at the delegate’s interview:[11]
·     The applicant told the delegate that he was detained on a continuous basis from [September 2008] until March 2009 (on which date he escaped). The delegate put to him, however, that he was interviewed by telephone by the Department on 10 December 2008 in relation to his spouse visa application (handwritten notes indicate that he was questioned about both his and his wife’s family background, his wife’s miscarriage, how and with whom she came to Australia, and the current circumstances of the couple). This occurred during the time he claimed to have been imprisoned at [prison].
·     Further, it was also noted that he had been requested to undertake medicals and his sputum culture was received by the Department (again, at the same time as he said he was being held in prison, incommunicado).
·     It was put to the applicant that the delegate had doubts about his detention claims in 2008. In response to being informed of the above, the applicant at interview changed his evidence, and claimed that he was in and out of prison during this period, claiming that sometimes he would escape, other times he would be released; then he would be caught and imprisoned again. He recalls a telephone call from the Embassy as he had his phone with him at the time but the call was cut off. It was put to the applicant by the delegate that up until that point, he had made no mention of having left prison and he had specifically said that he had been held continuously for the period of six months. He responded by saying that in 2008, he was in and out of prison.
[11] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal put to the applicant its concerns about his changing evidence to the delegate; the Tribunal put to the applicant that if they were holding him for the reasons claimed, and they wanted information that he had not given them, it appeared highly unlikely that they would have allowed him out of prison on a number of occasions. In response, the applicant said that everything he says is the truth. The Tribunal asked him to explain which the truth was, was he detained continuously, or was he detained and released. In response he said they arrested him [in] September 2008 and he was in prison until they took him to the court and then he escaped; they did not release him until he escaped. As this response indicated continuous detention, the Tribunal then asked the applicant why he changed his evidence to the delegate; the applicant then said that he had been released and detained during that period on multiple occasions.
When the Tribunal referred to his changing evidence, in response he said that there is no difference in this; he used to go in and out, in and out. The Tribunal does not accept this explanation and considers that this is inconsistent with his evidence above that he was not released until he escaped.
The applicant said that the authorities would release him because they could not find any evidence on him to keep him in the prison. The Tribunal put to him that if he was accused as he claims, and the authorities believed that he was a spy from a family of spies, it seems difficult to accept that they would have released him, given the country information indicating that they hold people indefinitely (and without evidence). In response the applicant said that when he said six months he meant he had calculated a total of six months he was imprisoned. Later, the agent submitted at the first hearing that his evidence could support that he was released from prison and arrested again during a six-month period in 2008/2009.
The Tribunal does not find his changing evidence to be persuasive, noting that between [September 2008] and [March 2009] is not a six-month period even without any breaks. The Tribunal considered the applicant’s changing evidence, and his inconsistent evidence, undermines his credibility.
The Tribunal considers that the applicant changed his evidence to account for the telephone interview with the delegate and other activities he undertook at a time which coincided with the period he claimed to have been in prison, which undermines his credibility and his claim to have been imprisoned in 2008.
Further, the Tribunal considers that his assertion that he was released despite the seriousness of the suspicions against him, and during the aftermath of the JEM attacks and the government’s determination and retaliation, was difficult to accept given the country information. The Tribunal notes that the 2008 USDOS report provided by the agent after the first hearing clearly indicated that the authorities took those it considered to be connected with the JEM attacks seriously, including subjecting them to trial in special terrorist courts. The applicant does not claim that he was just picked up at random by the authorities in the wake of the JEM attacks. He claims that the security forces were actively searching for him and his family members, that they were regarded by the security forces as spies and involved in JEM; thus they were involved in actions which the authorities considered to be terrorist attacks. Further, he claims that the authorities were prepared to kill his uncles in detention and that his father never escaped from his detention in 2008. Given this, and his claim that he was specifically known by the authorities as having a particular anti-government profile for many years and that the authorities were very concerned by him, and had previously issued warnings to him, the Tribunal considers that it seems highly unlikely that the authorities would have continually released the applicant in the wake of his 2008 arrest, having regard to their determination to interrogate and prosecute those involved in the JEM attacks. Further, the Tribunal considers it likely that if the applicant had been detained, tortured and released on multiple occasions during this period, then as soon as he was released, he would have taken all steps to flee from Khartoum to ensure that he was not detained and tortured again.
The Tribunal’s concerns in this regard were further heightened because even after the delegate raised the concerns with the applicant’s changing evidence as to whether or not he escaped/was released during his second detention (at interview and repeated in the delegate’s decision record), when the applicant provided a document to the Tribunal, setting out the claims he maintained, he made no mention of escaping from prison during his second detention, only to escaping when he went to court in March 2009. The Tribunal would think that if he had escaped earlier (a new claim he had made to the delegate to respond to the concerns as to how he managed to liaise with the Department while in prison), this would have been raised in his post-refusal submission setting out his claims.
The Tribunal does not find the applicant’s changing evidence about whether or not he was held continuously during his second detention to be persuasive. The Tribunal considers that it has been his claim that he was held continuously from September 2008 until March 2009. The Tribunal considers that the applicant’s ability to have an interview with the Department in support of his application for a spouse visa in December 2008 and his ability to provide a sputum culture during this period undermines his claimed detention and thus that he was of adverse interest to the authorities or had a profile which could have been of adverse interest after the JEM attacks.
Secondly, in addition to the matters referred to above, the Tribunal noted that there were other concerns about what was done in support of the offshore spouse visa application, as put to the applicant pursuant to s.424AA of the Act. The applicant had sworn to be true a statutory declaration of 19 October 2008[12] where he claimed that he was not aware of any investigation which had the potential to lead to charges against him. The Tribunal put to the applicant that this was inconsistent with his claims that, as at that very date, he was in prison, and being interrogated, he was suspected of being a spy and engaging in anti-government activity and has been so suspected for a long time. The Tribunal was concerned that his sworn statutory declaration indicated that he was not in prison at that time and that his protection visa claims were not true and that he had not been subjected to the adverse attention of the authorities at all. He responded that he used to go in and out, in and out of the prison, and he would do all his documents/attendances in support of his spouse visa application when he was out of prison. The Tribunal did not find this explanation to be persuasive for reasons discussed above.
[12] df58 DIAC offshore file.

The Tribunal’s concerns were heightened in this regard because he also claimed in his forms that he was not the subject of any investigation, pending charges. In this regard, his substantive claims were that he had been detained, taken to court, escaped from court, he was considered to be a wanted man (according to connections in the security police), and even when he was in [Country 1] he had been told that the Sudanese security forces were asking about him and looking for him. The Tribunal considers that if the circumstances were as claimed, he would not have claimed in his forms[13] that he was not the subject of a criminal investigation or had criminal charges pending against him.
[13] In three separate places on two forms: his protection visa application and Form 80 (df57, 48, 21).
Thirdly, the Tribunal was concerned that the applicant gave inconsistent and changing evidence about his relatives whom he claimed were in prison with him. Concerning his father, he said to the Tribunal that ever since 2004, until now, he did not know where his father was. The Tribunal asked him to confirm this and he did, repeating it several times. The Tribunal put to the applicant that this evidence was inconsistent with his claim in his statement that he saw his father in prison in 2008. He then changed his evidence and said he has not known where his father is since 2008. The Tribunal put to the applicant that his changing evidence was of concern. He responded that although he said it was since 2004, it was actually 2004 when he last saw his uncles. He suggested that the interpreter had not understood what he said. The Tribunal asked the interpreter whether she had made a mistake and she said no. The Tribunal was not prepared to give the applicant the benefit of the doubt in this regard because, even thereafter, his evidence changed, as set out below.
The Tribunal then noted that he was now saying that he had not seen his father since 2008, and that he had not seen his uncles ([Uncle C] and [Uncle D]) since 2004 and that they had passed away in 2004 in prison.
The Tribunal put to the applicant that this was not in his statement, which provided that: on 25 March 2004 he was arrested and sent to [prison] with his uncles [Uncle C] and [Uncle D]. He was interrogated and beaten but when the government did not find any evidence “we were released [in September] 2004. I went back to work with my father and all our family were kept under surveillance on a daily basis”. The Tribunal noted that if the last time he had seen his uncles was in 2004, it would think that he would have said that in his statement. The applicant did not explain why he had not said this in his statement; he just said that from 2004 they were not released from prison.
The Tribunal asked whether he had any other uncle who had had problems, and he said [Uncle F] but he cannot remember when he last saw [Uncle F], he doesn’t know now if he is alive or dead. The Tribunal noted that in his statement he said that when he went to prison in 2008 he found his “uncles”. The Tribunal put to him that this was inconsistent with his evidence that the last time he saw [Uncle C] and [Uncle D] was in 2004 (who had passed away that year in prison), and he did not recall the last time he saw [Uncle F]. The applicant said he said that [Uncle C] and [Uncle D] were in prison in 2004 and they passed away, and [Uncle F] was in the attack in Darfur and they did not see him after this time. The Tribunal considers that this response undermined his statement where he claimed that he had seen his uncles in prison in 2008. The Tribunal’s concerns about his uncles were heightened because his evidence at hearing (that his uncles had been killed in prison in 2004) was also inconsistent with his pre-hearing statement where he claimed that his two uncles ([Uncle C] and [Uncle D]) were killed in the attacks by the security forces in May 2017.
The Tribunal asked further questions about the applicant and his father. The applicant said that his father was in prison the whole time he was there (from September 2008 until March 2009), and that when the applicant escaped in March 2009, he left his father in prison. His father had not been released. He knew nothing about his father who, as far as the applicant was aware, even now remained in prison. The Tribunal put to the applicant pursuant to s.424AA of the Act that according to the notes of the telephone interview on 10 December 2008 in relation to the applicant’s application for an offshore spouse visa, the applicant told the delegate during that telephone interview that his father is not working because he has had an accident and is handicapped. However, his claim in the protection visa proceedings in December 2008 was that he and his father were imprisoned; and he had claimed that otherwise his father was a [trader]; there had been no suggestion in the protection visa claims that his father was handicapped. The Tribunal was concerned that he had not been truthful in his claims and that neither he nor his father was imprisoned, and that the family was not targeted as claimed.
In response, the applicant said that he told his then wife that he had problems and he wanted to apply for political asylum, but his wife told him that he should not mention having been imprisoned or any problems. Further, when he saw his father in prison, his leg was injured/disabled but his wife said don’t mention this, just say he was in an accident. Thus, it was the applicant’s evidence that in the spouse visa interview, he told untruths on the basis of advice from his wife. The Tribunal considers that his response indicates that he is prepared to tell untruths in order to obtain a visa. While this may be necessary for a person trying to escape persecution, the Tribunal is not prepared to accept the applicant’s explanation, given the other concerns with the applicant’s evidence, and given the following further example of an inconsistency concerning his father.
The Tribunal had asked (at a different time) what his father’s last job was and he said that he was a [merchant]. He traded in [goods]. The Tribunal asked when he last did that work and the applicant responded that the last communication between him and his father was on 16 May 2008; before that his father was in Khartoum and they caught him. The Tribunal noted this was not an answer to the question and repeated the question: when was the last time he did his trading job. The applicant’s response was vague, he said he used to come and go and come and go but he can’t recall the last time his father did his trading job. The Tribunal then put to the applicant it was concerned with his evidence that his last communication with his father was on 16 May 2008, because elsewhere he claimed that he had seen his father in prison in September 2008. The applicant said that when he said they last communicated in May 2008, he meant that was his last telephone call with his father. The Tribunal does not find this persuasive, especially as the Tribunal had not asked the applicant when his last telephone call with his father was, instead it was asking him about his father’s work, and it was the applicant who volunteered about his last communication with his father.
The Tribunal’s concerns were further heightened because his evidence at hearing (that as far as he was concerned his father remained in prison) was also inconsistent with his pre-hearing statement where he claimed that his father had fled Darfur in May 2017.
The Tribunal considers that the above undermines claims that the applicant or his family members were in prison or of adverse interest to the authorities. The Tribunal considers that this undermined his credibility and his claims.
Fourthly, the Tribunal was concerned because the applicant was unable to recall how long he was detained the first time. He said he was detained in March 2004 because he had written anti-government messages in a magazine which was put up on the wall. He said that he wrote that the rights were “this and that”. The Tribunal asked what were the messages he wrote and he said they were ignoring our rights and there were no doctors or medicines. The Tribunal asked how long he was detained for and he said that he can’t recall but it wasn’t long. The Tribunal asked him to just give an approximate length of time he had been detained for and he said he cannot remember. The Tribunal put to him that this was difficult to understand, given that in his statement he said he was released on 5 September 2004 and so this would mean he was kept for six months. The Tribunal did not understand why he could not recall, even approximately, how long he had been detained. In response he said they did a lot of bad things to him and he was fainting and he didn’t know day from night; sometimes he lost consciousness and he was in a coma for several days.
Given that the applicant was able to provide very precise dates in his statement, the Tribunal finds it difficult to accept his explanation for an inability to give even an approximate length of his first detention. The Tribunal has taken into account the agent’s oral submission at the end of the hearing where she pointed out that the applicant said that he was detained for “not long”; it has also considered the submission that in Australia people may provide precise times, but in Sudan it may not be that people can recall timing and dates. The Tribunal does not accept this explanation given that the applicant had provided precise dates of his detention and release in 2004 in his statement. The Tribunal considers that his inability to recall approximately how long he was detained for, on the first of two occasions, undermines his credibility and his claim.
Fifthly, the Tribunal was concerned that the applicant’s claim in his protection visa proceedings as to why he left Sudan for [Country 1] was inconsistent with the claims made in his spouse visa proceedings. According to the first MRT decision record dated 19 November 2010 granting the application for review of the delegate’s decision to refuse to grant the applicant an offshore spouse visa, the wife gave evidence at hearing on 20 October 2010 that the applicant had been operating a [shop] in Sudan however he went to live in [Country 1] about 10 months earlier as his business was not good.[14] In addition to his wife giving evidence, the applicant also gave evidence to the MRT, on 2 November 2010, that he had moved from Sudan to [City 2] because circumstances in Sudan were very difficult and he had closed the shop that he had been running prior to that time.[15]
[14] Paragraph [43].
[15] Paragraph [53].
The Tribunal put to the applicant pursuant to s.424AA of the Act its concerns that the evidence given by both him and his wife to the MRT was that the reason he went to [Country 1] was not because he was fleeing from the Sudanese security forces or a fear of being charged or generally because he was targeted by the government, but because his business was not going well and he had had to close his shop. The Tribunal noted that this undermined his claim that he had been in prison and that he and his family were of adverse interest for profile and political reasons. The applicant responded that the shop being discussed is the one which belonged to his father. The applicant told his wife about all the problems he was facing but she said that she has applied for a spouse visa and he must not talk about the problems in Sudan. The shop was closed a long time ago and he told her about it and then she came and gave all this information about the shop.
She knew all the problems that he and his family had been facing in Sudan; they were concerned that if he mentions this to the Australian government, he will not be let in. They were married and decided to do a spouse visa and there was no need to tell the problems that he had faced. Everything he has talked about or mentioned is all the truth.
The Tribunal was concerned that the applicant was suggesting that he was prepared to lie to the MRT when giving evidence in order to obtain a visa to come to Australia; even when he was living in a different country ([Country 1]). Further, he was suggesting that his wife was also prepared to lie when giving her evidence to the MRT.
The Tribunal’s concerns about his work and the reason why he went to [Country 1] were heightened as it notes that the applicant’s employment history as set out in his Form 80 in his protection visa application shows that he worked in [Occupation 1] in a [shop] in Sudan from November 1989 until September 2009;[16] this is when he left for [Country 1]. This however contradicts his (protection visa) claim that he was in hiding from March 2009 (after escaping from court) until September 2009 when he left Sudan to travel to [Country 1], as well as his claim that he was in detention for six months (not working) from September 2008 to March 2009.
[16] df25.
As noted above, while the Tribunal accepts that a pressing need to escape to safety could be a valid reason for a person to lie, given the difficulties with the applicant’s evidence, including that his own protection visa application forms appear to undermine his claims, the Tribunal is not prepared to accept this. This is also because even in his protection visa proceedings, his claims about his intentions with his offshore applications were inconsistent. In this regard, the Tribunal put to the applicant pursuant to s.424AA of the Act that he signed a spouse visa application form on 15 July 2008, afterwards he undertook numerous steps in support of getting his spouse visa, for example seeing a doctor and having an interview with the delegate, all while he was in Sudan. This however was inconsistent with his statement in support of his protection visa application which indicated that he knew nothing about steps being taken for a spouse visa application while he was in Sudan, instead he claimed that because he had suffered a lot in Sudan and he had escaped from court, when he got to [City 2] he contacted his wife and said he wanted a humanitarian visa but she then told him there was no need because she was preparing a spouse visa [which he did not know about].
The Tribunal was concerned that this indicated he had not given true information in his statement in support of his protection visa application. In response he said from 2006 when he knew her he told her he needed to apply for a humanitarian visa and she said no need to apply for a humanitarian visa and so he kept everything inside and she sent the forms and he signed them. He has told the truth because he took an oath on his holy book. The Tribunal does not find this response to be persuasive. His protection visa statement clearly indicates that as far as he was aware, the idea of applying for a spouse visa process only started once he was in [City 2]. This was clearly incorrect given his signing of the form in July 2008, his interview with the Department (December 2008), his obtaining of documents in support of the application (for example meeting with his doctor). The Tribunal considers that this inconsistent evidence undermines his credibility and his claims.
Sixthly, the Tribunal had concerns in relation to the applicant’s changing evidence about where he lived including in relation to his claims to have been detained. As noted above, at the hearing the Tribunal asked the applicant about where he lived in Sudan. He said that after his wife left for Australia, he returned to living with his father in the house at [Address 1]. Initially he said he lived there until he left Sudan. He then changed his evidence and said that he lived in the house until he went to prison. He then said he was confused. The applicant started making notes when the Tribunal asked him where he lived. The Tribunal suggested that he should not need to make notes in order to recall where he lived. In response, he said words to the effect of “because there are a lot of things about where I was living and security people caught my brothers”. The Tribunal asked him to talk from his memory, using approximate dates if needed.
The Tribunal asked when was the last time he lived in the house at [Address 1] and he said 16 May 2008. This would have been seven days after he had moved in on 9 May 2008 (after his wife left). When the Tribunal asked where he lived after 16 May 2008, he said that he had been caught by the government and was in prison. The Tribunal noted that this meant he was caught by the government on 16 May 2008 and put in prison. He then changed his answer and said no, on 16 May 2008 he took his brothers to Darfur. The Tribunal asked why the applicant had said that he was caught by the government on 16 May 2008 and put in prison, and he said that he had not said this. Even if the Tribunal gives the applicant the benefit of the doubt in this respect, further concerns arose about where he said he lived. The Tribunal again asked him where he lived after 16 May 2008, and he said he was not at one address because he used to move to and from different relatives’ houses in Khartoum, because he was looking for his father and uncles, he was in hiding. The Tribunal asked how long he was in hiding, and he said 28 days; after four weeks, they caught him and put him in [prison].
The Tribunal noted however that his evidence that from 16 May 2008, he was living in hiding for four weeks and then he was caught and put in [prison], was inconsistent with his statement, when he claimed that he was caught and arrested [in] September 2008; this is a much longer period than four weeks after 16 May 2008. In response he said he has a headache and would like a break. The Tribunal agreed but said just before the break it wanted to confirm his answer, whether it is mid-June or 30 September that he was imprisoned. In response he said he has a problem with memory and he was silent. The Tribunal noted he was not answering and called a break. After the break the applicant said that he was caught on [in] September 2008 (the same date as in his statement). He did not explain why his memory was better.
The Tribunal noted that he had previously said that he had spent four weeks in hiding. In response he said that he was confused at first when he took his brothers to Darfur, it is a long distance and he came back to look for his father. The Tribunal was concerned that his evidence changed from saying that he was in hiding for a four-week period before being caught, to saying that he was in hiding for a period of four and a half months ([until] September 2008) before being caught.
The Tribunal noted that he had previously said that he was in hiding in Khartoum, moving around different places, his evidence then changed to say that he was in Darfur. He agreed and said that he first took his brothers to Darfur, and he spent three months in Darfur; he then came back to Khartoum and lived there for four weeks and then they caught him.
The Tribunal expressed concern at his changing evidence and the applicant said that previously he did not understand the question. The Tribunal then put to the applicant that his current evidence (that he went to Darfur and stayed there for three months, then returned to Khartoum for one month) was inconsistent with his statement where he claimed that he sent all his siblings to Darfur while he stayed in Khartoum. In response, he said that he was in Khartoum for four weeks. He did not explain why this was so different.
The Tribunal estimated that if he was in Khartoum for four weeks before he was arrested, then he must have returned from Darfur to Khartoum on about 30 August 2008. He said no. The Tribunal checked that he had returned about one month prior to him being detained on 30 September 2008, and he agreed but said he could not recall the date.
Although the applicant did not provide a date, the Tribunal considered that if it was his evidence that he was caught on 30 September 2008, and he was in Khartoum for four weeks prior to that, then he must have travelled to Khartoum from Darfur on approximately 30 August 2008. This evidence caused a further concern, because as the Tribunal put to the applicant, pursuant to s.424AA of the Act, according to the offshore spousal visa application file, on 8 June 2008 he attended upon a doctor in Khartoum to get a Certificate of Age estimation for his spouse visa application. This however was inconsistent with his evidence that he was living in Darfur from approximately May 2008 until about approximately 30 August 2008. The Tribunal showed the applicant the relevant documents, and in response, the applicant initially said that he did not stay continuously in the prison, he got out of the prison. The Tribunal put to the applicant that he had not claimed to be in prison at this time; instead, when he was in Khartoum seeing a doctor to obtain the Certificate of Age estimation, it was his current evidence that he was at that time in Darfur, not Khartoum (his father having told him that they had to leave Khartoum as they were all considered to be spies). In response the applicant then said he would go and come and go and come. The Tribunal put to the applicant that this was a time of conflict, he claimed that people from Darfur were being targeted after the JEM attacks; it was hard to accept that he would travel to and from Darfur to Khartoum. Although the Tribunal accepts that a person needing to leave the country may take risks, having regard to the other concerns with the applicant’s evidence (including his claim in his statement that he did not even know about the commencement of the spouse visa application while he was in Sudan), the Tribunal is not prepared to accept his explanation.

The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of his profile as accepted, namely that he is an Arab male who lived all of his life in the area of the capital city, who has not suffered past harm (other than difficulties with operating his shop business in 2008) and who left Sudan legally with an exit visa. The Tribunal has found that the applicant’s reason for leaving Sudan was that he was married to an Australian citizen and had made an application for a partner visa and was intending to come to Australia on the basis of marriage; it finds that he went to [Country 1] prior to this for financial reasons. The Tribunal considers that the applicant will tell this to the authorities if questioned. The Tribunal does not accept that he faces a real chance of serious harm or a real risk of significant harm as a failed asylum seeker upon arrival, or thereafter. The Tribunal notes the reference in the DFAT report to financial considerations, and that “Overall, DFAT considers that low levels of economic opportunity may act as a push factor for external migration, particularly for individuals from areas that are considered relatively stable, such as Khartoum. The poor humanitarian situation and the promise of safety outside Sudan may also be a contributing factor, particularly for individuals from conflict-affected areas” (paragraph 2.17, DFAT report). The Tribunal notes however that the applicant has previously worked in Sudan, he has worked in Australia (he said for the last three and a half years working [in Industry 1]) and he is a resourceful man who has managed to survive financially in two other countries apart from his home country; and considering the DFAT report on the financial/economic situation,[33] it is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for financial/economic reasons.
[33] Paragraph 2.24 DFAT report: Sudan’s official unemployment rate in 2011 was 12.03 per cent. The International Monetary Fund estimates that the unemployment rate grew to 15.2 per cent in 2013, before dropping to 13.3 per cent in 2015. Women are substantially underrepresented in the formal economy compared to men. Agriculture is the dominant industry, representing a third of the economy and employing 80 per cent of the population. Lack of irrigation and transportation continue to constrain the growth of Sudan’s agricultural sector. Employment in the informal sector is common, with the informal sector accounting for an estimated 60 per cent of GDP.
Given the above findings, the following is not necessary. However, the Tribunal has decided to ask “what if I am wrong?” and to consider the circumstances for the applicant if it had accepted that the applicant’s family is (broadly) from Darfur; that the applicant was born in [Town 1]; that he is of the Misseriya Arabic tribe/ethnicity; and is considered to be (and can be recognised as) having his origins from a family from the Darfur region. It remains the applicant’s claim that he lived in the capital city region ever since 1989, and the Tribunal considers that even if these matters were accepted, the applicant’s home area would be the capital city region (and not Darfur/South Kordofan). Thus, he would return to the capital city. The Tribunal has considered the submission that he would face harm because of his origin/ethnicity in the capital city area. As noted above, the applicant’s evidence about whether people from the Misseriya tribe faced harm throughout all of Sudan (and thus in the capital city area) was evasive and changing and not reliable.
The Tribunal is not prepared to accept that the applicant would be targeted because he is from [a specified] family (such a claim being founded upon his assertions alone).
The Tribunal also put to the applicant at the first hearing that the country information that it had seen did not appear to support the assertion that members of the Misseriya tribe were targeted throughout the whole of Sudan just because they are from that tribe. The Tribunal asked the agent at the first hearing if she could point to where, in the country information, it stated that the Misseriya tribe is targeted throughout Sudan by the authorities. The Tribunal provided the applicant a chance to show this to the Tribunal with country information after the first hearing. No such information was provided. The Tribunal notes that the agent provided the USDOS report relating to the human rights situation in 2008, and even at that time, the Misseriya tribe were not mentioned; it was JEM, prominent Darfuris and Zaghawas particularly living in Khartoum and Omdurman who were mentioned in that report as being targeted.
While the Tribunal accepts that events in Darfur have been horrific, the Tribunal notes that the country information indicates that certain non-Arab tribes have borne the brunt of the targeting by the Sudanese government and their militia (particularly in Darfur), and while the Tribunal accepts that the authorities have also targeted those perceived to be anti-government (which could include persons from an Arab tribe), there is no satisfactory evidence before the Tribunal to indicate that it is the (Arab) Misseriya tribe from Darfur who have been targeted by the authorities (nor that the [applicant’s] family have been so targeted) nor that they face a real chance or a real risk of being targeted. The Tribunal does acknowledge that not everything is reported in the media, however given that there has been extensive reporting in Darfur, the Tribunal considers that if the Misseriya were a specific target of the authorities to any significant extent (as claimed by the applicant) then it is likely that the applicant would have been able to provide some information in support of this claim. Even in the absence of country information however, the Tribunal remains concerned with the applicant’s changing and evasive evidence, and it is not prepared to accept the (changing) assertions about the risk to people from the Misseriya tribe in Khartoum. The Tribunal is not satisfied that the applicant, if he was to be accepted as a male from the Misseriya tribe born in the Darfur/South Kordofan region, faces a real chance of serious harm or a real risk of significant harm on arrival, or in/around Khartoum.
In this regard the Tribunal has considered the DFAT report. DFAT assesses that non-Arab ethnic groups including the Fur, Zaghawa and Masalit from Darfur and Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity. It was noted that the Fur (Darfur means ‘Home of the Fur’ in Arabic), Zaghawa and Masalit are the most prominent ethnic groups in Darfur, and they face a high risk of discrimination and violence on the basis of their ethnicity and their actual or perceived support for or association with rebel groups (noting rebel groups linked to the Fur, Masalit and Zaghawa tribes such as the Justice and Equality Movement (JEM) and Sudan Liberation Movement (SLM), which has two factions – the SLM-Minnawi and the SLM-al-Nur). It was in this context that DFAT also assessed that Darfuris in Khartoum face a moderate risk of discrimination and violence on the basis of their ethnicity and their actual or perceived support for or association with rebel groups. DFAT assesses that Darfuris who actively criticise the government, such as through participating in protests, face a higher risk. The Tribunal considers that the DFAT assessment is referring to non-Arab tribes of the Fur, Zaghawa and Masalit, not the Arab tribes such as the Janjaweed (whose militia have attacked those African tribes on behalf of the government) nor other Arab tribes (such as the Misseriya). Further, given that [Town 1] is located in South Kordofan, not Darfur, the Tribunal has also considered the situation for a Misseriya tribesperson from South Kordofan in Khartoum. However, even in South Kordofan itself, DFAT assesses that it is the Nuba who have been targeted: 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 have led to significant harm to the Nuba population. 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. There is no such assessment however for the Misseriya in Khartoum made by DFAT.
While the Tribunal accepts that certain people from Darfur and South Kordofan have been targeted, both in Darfur and elsewhere in the country including in Khartoum and Omdurman), this does not mean that the applicant has faced or faces a real chance or a real risk of such harm because of his profile. The Tribunal considers that the applicant was able to live freely in Khartoum for all of his life, despite the significant unrest and violence that had occurred there from time to time. The Tribunal is not aware of credible evidence indicating that if the applicant resided in the Khartoum area having a profile of Misseriya ethnicity originally from Darfur or the neighbouring province of South Kordofan, that he would face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. In considering this “what if I am wrong” scenario the Tribunal has also taken into account the information above in relation to obtaining passports, his exit visa and having left legally, and conditions for returnees.
General violence/security and other reasons
The applicant said there are two reasons why he fears harm if he returns:
·He is from a family where the government is not happy with the family activities.
·They believe he is a spy and anti-government.
The Tribunal has not accepted these claims on the basis of the credibility findings.
The Tribunal asked the applicant whether there were other reasons and he said that they will kill him and he doesn’t want his son to live this life. He gave evidence however that his partner is an Australian citizen. The applicant indicated that his partner would not follow him, she would remain in Australia with their son. This is discussed below.
The Tribunal asked whether there were other reasons. He then said that there is ethnic cleansing in Darfur, they come and bomb Misseriya. The Tribunal put to him that it would not appear that he would be residing in Darfur. He repeated that he had political involvement in the past and would be targeted on the basis of politics. He said when anything happens the first thing the government does is come after the tribe. His life would be in danger because the Sudanese government is still attacking and killing civilians in West Sudan; those who oppose the government; those who speak about the atrocities they’re carrying out. He follows the news and he is aware of the continuous killings and attacks that are being carried out in western Sudan, where his family comes from. The Tribunal notes that the agent made a similar submission; however as noted above, there was no credible evidence produced showing that Misseriya (if this was accepted as his origin, which it is not) or Arab tribes generally face a real chance of serious harm or a real risk of significant harm in the capital city region. The Tribunal accepts that there has been long-term violence in Sudan including in Khartoum. The DFAT report below states that:
Security Situation
2.32 Conflict continues in Darfur as well as South Kordofan and Blue Nile (often referred to as the ‘TwoAreas’). 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.
The agent indicated that there was country information (which she did not intend to provide) in relation to the recent situation of protests and violence. The Tribunal notes that a HRW article of 2019 refers to protests in Khartoum and elsewhere due to price rises, and calling upon the President to step down, and that there has been violence in response. It was noted that Sudanese activists and medical workers estimate that at least 40 people have been killed, including children, since protests began on 19 December 2018.[34]
[34] >
The Tribunal noted at hearing that the definition of refugee and complementary protection excluded general violence and non-intentional violence. The applicant responded that if he went there he would be killed.
While the Tribunal accepts that there has been and continues to be violence and crime and arbitrary brutality in Sudan, the Tribunal finds that the applicant, who has lived all of his life in Sudan, has not been subjected to violence or crime or such brutality to date. The Tribunal made its decision on 12 April 2019 and then became aware that, after the protests, the President had been arrested on 11 April 2019[35]. Although the Tribunal did not consider that this would appear to change its decision, it decided to recall its decision and it wrote to the applicant in the following terms:
The Tribunal made a decision on Friday but has decided to recall its decision given the new information that there are continued protests now that the President of Sudan has been subjected to a coup and is under house arrest. The Tribunal notes that the issue of general violence had been raised at the first hearing with the applicant, and that the applicant was invited to a second hearing but he did not attend. The agent raised the issue of protests at the second hearing, which was discussed. The Tribunal noted that it did not appear that this meant that the applicant faced a real chance of serious harm or a real risk of significant harm. The Tribunal had also discussed that the definitions of refugee and complementary protection do not usually include general violence.
It does not appear to the Tribunal that the events of the recent days indicate that the applicant faces a real chance of serious harm or a real risk of significant harm, however the Tribunal is willing to consider any information or submissions you may wish to make. The Tribunal will delay making a decision until 4pm on 23 April 2019.
[35] >
The Tribunal did not receive any response. On the evidence before it, the Tribunal is not satisfied that this particular applicant faces a real chance of serious harm or real risk of significant harm for these reasons upon return to the capital city area in Sudan and in the future. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, his ethnicity/family/tribe, or the general security situation in Sudan.
The Tribunal discussed the applicant’s claims in relation to his current partner and children. He said he doesn’t know where his father or uncles are and he doesn’t want his son to go through what he has been going through. The Tribunal asked the type of visa his partner has and he said she has citizenship. His son was born here. The Tribunal asked if they have made a spouse visa application and he said he has not applied for a divorce from his first wife. The Tribunal notes the applicant’s claim that he does not wish to be separated from his partner and children. The Tribunal accepts that he would like to stay in Australia for those reasons, however the Tribunal must apply the law, and consider this issue in the context of whether the applicant is a refugee or whether he is entitled to complementary protection (the latter is dealt with below).
The applicant has not indicated how the difficulty he will face by being separated from his partner and children meets the definition of persecution as outlined in the legislation. The Tribunal is not satisfied that harm in is respect of one or more of the five required reasons, nor is it satisfied that it involves systematic and discriminatory conduct. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution if he returns to Sudan in the reasonably foreseeable future for this reason.
The Tribunal notes that in the protection visa application form the applicant claimed that he still had to perform military service. The Tribunal notes that the applicant did not claim that he faced a real chance of serious harm or a real risk of significant harm from such an obligation; he made no claim in this regard, and he did not provide any country information indicating that he faces a real chance of serious harm or a real risk of significant harm on that basis. The Tribunal is not in any event satisfied that the applicant does have military service obligations, as it is not satisfied that he has been truthful about his background.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information. Other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest as claimed nor that he has the political profile or opinion or ethnicity/tribal affiliation as claimed. It has accepted that he is from an Arab tribe in Khartoum and that he is from [a specified] family. The Tribunal has found that the applicant did not have a need to leave Sudan (due to fear) and that he chose to do so because his business was not going well. The Tribunal has not accepted that the authorities have killed or harmed or targeted or adversely perceived any of his family members, nor does it accept that the applicant has faced or faces a real risk of being adversely perceived or sought after by the authorities. It has not accepted his political activity/imputation/Darfur student/tribal/ethnicity claims nor any claims flowing from these claims. The Tribunal has considered the circumstances upon return in relation to the complementary protection criteria but is not satisfied that there is a real risk that this particular applicant, when coming through the airport or when settling back into the capital city area will come to the authorities’ adverse attention. It is not satisfied that the applicant seeks to or would like to engage in expression of political views. The Tribunal is not satisfied for any or all of these reasons that he faces a real risk of significant harm.
The Tribunal had engaged in a consideration of “what if I am wrong”, and when considering complementary protection, the Tribunal is not satisfied that even if he was known or imputed as being from the Misseriya (Arab) tribe which has been based in Darfur/South Kordofan, and if he was born in [Town 1] and his family were considered to have origins in the Darfur region and that he was residing in the Khartoum area, that he faces a real risk of the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, for any of these reasons.

The Tribunal has found that this applicant has lived most of his life in Sudan and has not been subjected to targeted or arbitrary harm. While the Tribunal’s consideration is forward-looking, it is not satisfied that a person of his actual profile (or possible profile discussed above under “what if I am wrong”) when considering the country conditions in the past and today, including as a result of the recent arrest of the President, in the capital city, faces a real risk of significant harm because of general violence in Sudan. Further, the law states that there is not a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by him personally. Concerning any fears in relation to general violence in Sudan, the Tribunal is satisfied that the applicant’s fear of violence is faced by the population generally and not by him personally.
The Tribunal has considered the issue of being separated from his family in Australia. In SZRSN v MIAC [2013] FCA 751 the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A) of the Act. The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s.36(2B)(a) (relocation) and s.36(2B)(b) (protection from an authority) are to have any application.
Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A) requiring intention. As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself. In addition, there is no suggestion that such separation will lead to a real risk of the death penalty or arbitrary deprivation of life.
For these reasons, the Tribunal does not consider that the harm which the applicant will face due to being separated from relationships he has formed in Australia, constitutes significant harm for the purpose of the complementary protection criterion. The Tribunal considers that the required element of intentionality in considering significant harm would be absent, and the separation does not otherwise lead to a real risk of the application of the death penalty or arbitrary deprivation of life. The Tribunal notes that it is open to the applicant to seek Ministerial intervention if he so chooses but this is not in issue before the Tribunal and it makes no recommendation.
The Tribunal has also considered the financial/economic situation for the applicant upon return however it is not satisfied that he faces a real risk of or that he will suffer significant harm for these reasons, given the findings that he has work experience in three countries including having previously worked in his home country, he is resourceful, has family in Sudan, even considering the situation with the unemployment rates.
The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Sudan, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A – CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical 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.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(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.
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[2019] AATA 3637

29 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction