1515570 (Refugee)

1515570 (Refugee) [2017] AATA 1996 (1 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515570
COUNTRY OF REFERENCE:                  Sudan
MEMBER:Christine Cody
DATE:1 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 September 2017 at 6:40pm
CATCHWORDS
Refugee – Protection visa – Sudan – Imputed political opinion – Member of African National Front – Member of Sudan People’s Liberation Movement – Anti-government activist and pro-community advocate – Inconsistencies concerning claimed political activism and reputation – Credibility concerns
LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
SUMMARY, CLAIMS AND EVIDENCE

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented in relation to the review by his registered migration [agent], of [a company] in the application before the Department, and in the application for review before the Tribunal.
The Department
The applicant, who claims to be a citizen of Sudan, applied for the visa [in] November 2014, on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions.
The Tribunal has before it the Departmental file containing documents including submissions from the applicant’s agent dated [date] November 2014 and [date] March 2015, the applicant’s protection visa application and Form 80 (Personal Particulars) forms, his statement, supporting documents, photographs and country information as well as identity documents, a copy of the interview recording (to which the Tribunal has listened), and a copy of the delegate’s decision record. There are no non-disclosure certificates on the file.
According to his written statement and application submitted to the Department, his background and claims can be summarised as follows:
·     The applicant was born in Medani, Gezira in [year]. He speaks, reads and writes in English and Sudanese Arabic. His ethnicity is [deleted]. He is Muslim. He has never been married or in a de facto relationship. His family members include his parents [and siblings], all of whom remain in Sudan. He is in contact with his family through telephone.
·     He has had two passports; he did not have difficulties in obtaining his passport. While living in Sudan, he travelled out of the country on numerous occasions including: for two months in 2009 he travelled to [Country 1] and attended a training course at [University 1] (Certificate of attendance at a practical course [was] provided); from October to November 2013 he travelled to [Country 2] for [an event]; from November to December 2013 he travelled to [Country 3] for a training course [in certain field].
·     He was educated at school from [year] to [year]. He obtained a [qualification] in [a certain major] in 2003, and then obtained [another qualification] from [University 2] in [a certain major] in 2010 (copies of his degrees were provided).
·     While he was a student, he was an active member of the African National Front (ANF), which was the student assembly of the Sudan People’s Liberation Movement (SPLM), which in turn was a member of the Democratic National Alliance, the greatest anti-government body at that time.
·     He was targeted and persecuted because of his political background. He was unable to find a job for two years after his graduation in [year] although he was highly qualified in a much demanded area of expertise.
·     In 2005, after the comprehensive peace agreement (CPA) was signed in Nairobi, he was recruited to work as an [occupation] in the Blue Nile state for [a government agency]. He commenced [in] June 2005 and spent [number] months at the headquarters of the [agency]. Then he was sent to a rural district in the Blue Nile state, Bau, which lacked infrastructure, sanitised water, electricity and health services. The area is cut from the capital of the region in the rainy season, which stops trucks and lorries from the capital, Ad-Damazin Town, bringing in basic needs and commodities for daily living. He considered this was his punishment for his political activities. He continued to work for the [agency] right up until the time he came to Australia in August 2014. He provided a civil registration certificate issued in 2012 which that he is an [occupation] for the [agency].
·     The applicant began to work with community members and established strong relationships. As the applicant was an educated man, the community leaders asked him to advocate for them to the local authorities.
·     In 2010, [an international organisation] and donors funded a development [project]. The applicant was selected to be part of the project in the position of [a certain position]. He prepared and supervised [action] plans with community members which were approved by the project manager. The Sudanese government representative who worked on the project was a corrupt individual who siphoned funds from the project into his own account. When the applicant discovered this he took a strong stand and made his views known. The applicant was questioned by the security police and ordered to stop.
·     In September 2011, attacks were launched against the Sudan People’s Liberation Army (SPLA)/SPLM in Ad Damazin, the capital of the Blue Nile region. Bau was targeted as the SPLA head commander and the commanding office of war activities was located there, and most of the community members supported the movement. The Bau area remained under siege by the government forces for two months. Due to hostilities many people were killed or displaced or went to refugee camps.
·     From September 2011 until August 2014 the applicant resided at Ad Damazin in the main office, travelling frequently to Bau.
·     The applicant spoke out loudly and openly on many occasions against the government killing innocent civilians. As a consequence of his activities he was arrested twice (with his colleagues). He was detained, questioned, threatened and intimidated and kept in detention. After they were released they had to report daily to the security office at 5 PM. He saw that he was being watched, and had to be careful.
·     He continued to oppose and stand strongly against government practices of arbitrary detention, attacks on civilians, and he was threatened by security services and told not to support those people.
·     The applicant was discriminated against in that he was not given any promotions that were due to him in the six years in his job. This was because of his hard stance against government corruption and unfair treatment of the people he worked with; he had been warned several times to stop defending community rights in daily life, to stop asking for development and for the government to stop airstrikes against civilians.
·     The applicant [came] to Australia to do some training. [In] July 2014 he applied for a [student] visa. This was granted [in] August 2014, valid until [date] November 2014 (Grant Notice provided). A copy of the certificate confirming he attended the course [from] August to September 2014 was provided.
·     While he was preparing to travel to Australia, in August 2014, the SPLA/Blue Nile attacked [Village 1] area. When the security police were searching for information about the attack, they came to his room at the workstation, and ransacked his room. Unfortunately they found documents of meeting agendas regarding the incident.
·     He left Khartoum airport legally [in] August 2014, arriving in Australia [in] August 2014.
·     [In] September 2014 his father was checking his bank account and found his salary was not deposited. He called the applicant’s colleagues who said that the applicant had lost his job and was expelled. The security police had been looking for him on several occasions.
·     His father called him and told him this. A few days later his father called him and said the security police had come to the home and asked about him and said that he had to report as soon as he returned. The applicant called a colleague who advised him not to come back. One of his colleagues found that the applicant’s personal file had disappeared which means that if he returns he will also disappear. He has been informed by his colleague that security police have arrested more opposition leaders recently in Ad Damazin.
·     As he lost his job with the [government agency], in September 2014, he feels unsafe, and targeted by the Sudanese government security services. It is too dangerous to return. He fears he will face inhumane and unjust accusations with no protection from anyone.
In addition to the written claims made by the applicant, the agent submitted that there is ongoing political strife and instability which continues with the current government and that since the applicant’s arrival in Australia there have been further attacks in the Blue Nile region. The agent also submitted that the applicant fears discrimination, aggression, imprisonment and even loss of his life because of his political activities and speaking out against the violations of people’s rights in rural areas all around Sudan.
By way of letter dated [date] March 2015 and statement of the applicant dated [date] March 2015 submitted to the Department, the applicant requested the Department to include his [fiancee], in his application for an onshore protection visa. It was noted that they have known each other since 2007, and the applicant asked her to marry him while he was at a conference in February 2015 and she accepted. She is not in Australia, but he would like her to come to Australia so that they can get married. Photographs were provided of the couple together in February 2015 (the photographs do not indicate the location where they were taken).
The delegate’s decision record
The delegate’s decision record refusing the application, dated [date] October 2015, sets out some of the relevant evidence provided at interview [in] October 2015, as well as the delegate’s concerns with that evidence[1]. The delegate was concerned with the applicant’s new claim at interview of his significant involvement in the SPLM, and his omission of that from his statement. The delegate considered that he did not appear to have a profile of someone who would be perceived as being opposed to the government and therefore of interest to the Sudanese Security Services. The delegate referred to his profile relating to his work (relatively high level position in the [government agency] for a significant number of years), his studies, that he had never claimed to be dismissed from employment with a government Department in Sudan despite his claim to have been arrested on two occasions in 2012, his travel outside the country after his claimed arrest, and his ability to obtain his passport legally in [2014] and leave for Australia after his claimed arrest. It was also put to him that it appeared implausible that the authorities would go to his workplace on several occasions looking for him after his departure for Australia, as the authorities would have known that he had left the country. The delegate was also concerned that he did not apply for protection when he first arrived in Australia.
[1] Sourced from the delegate's decision record provided to the Tribunal by the applicant.
The applicant responded that his assignment to Bau was punishment, he paid for his training and travel overseas, he had been refused permission to study a certificate at University and so he had to pay for it for himself, none of his courses were funded by the Sudanese government and his selection for the Australian course was based on language and qualifications. It is very easy to obtain a passport in Sudan. The applicant said he did not intend to remain in Australia when he arrived.
The delegate accepted that, based on the country information, an individual perceived to be involved in fighting against the government would be at risk of persecution by government security forces in Sudan; however, the delegate did not accept that he was ever a member of the SPLM for numerous reasons, including that his claimed role and activities in the organisation were vague and unconvincing (he told the delegate that in his role of [a position] of [a certain] section in Bau, they [details deleted]. When asked exactly how they did this, he said that the area had no electricity and they would [details deleted]. Asked if he had any evidence of his [work], he said they did not as they got rid of everything. When asked what else he did in that position, he said they would put up stickers or pictures about what they were doing.) The delegate also considered that his ability to continue working as a [position] with the [agency] reinforced that he was not a member of the SPLM.
The delegate did not accept that he had ever been arrested, dismissed from his employment for reason of a political opinion, member of the SPLM or anti-government, nor that security officials discovered secret documents about his support for SPLM nor that they have searched his home or place of employment or told his father he must report to them when he returns. The delegate also considered that he could return to either Khartoum or Omdurman where he has previously resided to avoid any of the civil conflict in the Blue Nile.
The Tribunal
The applicant provided to the Tribunal, along with his application for review, a copy of the delegate’s decision record. He also provided a letter from the SPLM-North representative in Australia dated [date] February 2016, as well as his response to the delegate’s decision record including the following claims:
·     His profile is full of opposition acts since he was a university student.
·     He made the following new claims: in addition to his membership of the ANF, he was also the [position] of [an organisation] so he was very active socially and politically. As a consequence, after graduation, he applied for many jobs and was not successful in being recruited. After obtaining his first job, he was a founder and took the position [of] [an] Association, which was defending employee work rights and supported those who were in need.
·     His position [in] the Blue Nile was a [certain] grade position which he got through his good record, and the length of his employment is because he can tolerate the circumstances, but others cannot.
·     He [came] to study in Australia [details deleted]. Although it is a short training course, he asked his superiors to grant him study leave and supporting fees but they refused.
·     Although he was not dismissed after he was arrested in 2012, he had to report to the security office daily and he signed a document saying he would not protest and would not criticise government policies.
·     He was able to travel overseas because he has been arrested but not banned from travelling overseas. All of his travelling occurred before the [Village 1] incident which he was later involved in and which made him feel scared to go back home.
·     An arrest is not a big matter which would affect obtaining a Sudanese passport. He was able to obtain his passport through a [friend].
·     When he applied for an exit visa, the authorities refused. So he had to go and approach his friend who helped him to obtain the passport and organised to get him the exit visa.
·     In relation to the concern that he did not mention SPLM in his statement and his description of that organisation was lacking in detail at interview, the applicant responded that normally all members of the ANF are automatically members of SPLM because it is the student body.
·     When the security forces discover someone is involved in a security incident they become crazy and will look for him anywhere and this is why they went looking for the applicant even when they are sure that the targeted person is outside the country.
·     Concerning the suggestion he could live in Khartoum or Omdurman, his family’s home is in Khartoum, but he can’t live there because the security services members came there looking for him, as set out in his brother’s email.
The applicant also provided to the Tribunal some documents that had previously been provided to the Department. He also declared that the submissions provided by his agent are true. Those submissions suggested that the current situation in Sudan is not safe for anyone who has voiced their opposition or opinions against any of the government’s acts against civilians, and the corruption, racial discrimination, killings and bombings and other forms of human rights violations. The government of Sudan is not adhering to international calls to bring the president to justice. The applicant’s life will be in danger if he returns to Sudan, in any area.
The applicant produced a further statement, dated 1 August 2017, also referring to country conditions. He claimed that people who have been detained by the current regime have their names registered and are caught as soon as they return to Sudan, and any people who voiced their concerns about the government’s violations are detained, interrogated, threatened and tortured. Since he was a university student, he has been known to voice his concerns about the government’s treatment of non-Arab tribes. The violations and killings prompted him to be and he still is a committed member of the SPLM. He is well known to the authorities in Blue Nile. He is not only in danger there, but everywhere in the country because the security services want him.
The applicant appeared before the Tribunal on 9 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sudanese and English languages. As indicated in the Response to Hearing Invitation, the agent did not attend the hearing. The Tribunal explained to the applicant that it was making a fresh decision upon all matters, and that it was not bound to follow the delegate’s decision in any way. The Tribunal took evidence from the applicant about his claims, and gave him opportunities to add anything further. Some of the evidence given by the applicant at hearing is set out below; other relevant evidence is set out later:
·     His role with SPLM was [a position] for [a certain job] in Bao. The Tribunal asked what that meant and he said that the [certain job] is most important thing in political work. The Tribunal asked what he did and he said he would tell gatherings everything about the SPLM. He did it throughout all the villages in Bau (about [number]). He did this role from 2005 until he came to Australia.
·     He was employed for the whole time for the [government agency] from June 2005 until September 2014. When asked if there were any breaks in that time he said, no, but he was seconded to a project in Bao between 2010 and 2012.
·     The Tribunal put to the applicant that if he was a person with his claimed profile, and if the government was targeting and attacking SPLM/SPLA at this time, it did not understand why he did not remain in [Country 3] and claim asylum. In response he said that he has to serve his people.
·     Although he was attending [a] course in Australia, the Sudanese government (including his employer) did not know he was coming to Australia for this course.
·     After he arrived in Australia he had travelled back to [Country 4] for a course (early 2015). This is supported by his application for a bridging visa seeking permission to travel located on the Departmental file.
·     His family are located in Khartoum (parents [and siblings]); they have been there since 2000. His father used to work in [a certain industry] but he now receives the aged pension; his mother is [an occupation]. His brother is [an occupation] and he is working; his sisters are married and not working but their husbands are: one is [an occupation] and one is in [Country 2]. Another sister [is] not working; she is supported by the brother who supports all of them.
·     His life is in danger and he fears returning to Sudan. He fears he will be killed by the security forces because of his connection to the attack and due to his political activity. Further, having regard to his political background, he will not be able to get a job.

In accordance with Ministerial Direction No. 56, the Tribunal has taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Sudan, 27 April 2016 (the DFAT report). The Tribunal has also taken into account the country information contained in the delegate’s decision record provided to the Tribunal by the applicant and the references to the country situation in the submissions, as well as the applicant’s assertions about the country situation.
A summary of the relevant law is provided at Annexure A.
For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution as a refugee, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
Country of reference
The applicant provided his passport issued by the Sudanese authorities. The Tribunal accepts that the applicant is a Sudanese national and that the appropriate country of reference for the assessment of his refugee claims and complementary protection claims, is Sudan.
Credibility
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 concerns about the applicant’s inconsistent and changing evidence, as well as evidence which appeared not credible. It was concerned with his credibility and the veracity of his claims. The Tribunal sets out its reasons below.
Firstly, the Tribunal had concerns about the applicant’s changed claims as to his political involvement. As noted above, in his statement, he only referred to his involvement with the ALF, the student/ youth league with the SPLM. He made no mention in his statement that after his involvement with the ALF, he was not only a member of the SPLM for the next 11 years, he also failed to mention in his statement his claimed important role in the SPLM for 9 years, from 2005 until 2014 when he left for Australia.
The Tribunal put to the applicant that when he attended the delegate’s interview, he claimed that he had been involved in the SPLM, but that he had not made this claim in his statement. The Tribunal asked why he would not have included this in his statement if it was the case. He said most parties have student organisations, the ALF is the student league of the SPLM. The Tribunal noted however that the SPLM is the main party; the ALF is the section people are involved in when they are young/ at university. It would think that if he was involved with the SPLM after he was at university, and in particular if, as he had told the Tribunal, that his role as [a position] [in] Bau was one of the most important role in politics, then he would have mentioned this.
The Tribunal noted that he claimed to be targeted because of his involvement with the SPLM and he agreed. The Tribunal said that, if this was the case, it is difficult to understand why he didn’t mention the SPLM in his statement. In response he said that he made a mistake because he thought he would mention ALF and it would be automatically understood that he is with SPLM. The Tribunal is not persuaded by this omission, given his evidence to the Tribunal of his claimed significant role and regular activity of conducting political meetings in numerous villages once or twice a month. The Tribunal considers that if the applicant mentioned in his statement a political organisation he was a member of for a few years (ending many years ago, in 2003), he would mention the more recent and significant position that he held for 9 years. In response he said that he thought it would be obvious. The Tribunal does not find this explanation to be persuasive, and considers that his new claim at the delegate’s interview[2] indicates that he has embellished his claims during the process, which undermines his credibility and claims. The Tribunal considers that if the applicant had an actual role in the SPLM for 9 years which led to him being targeted, he would have mentioned this in his protection visa application/statement. The Tribunal considers that this undermines his credibility and his claims.
[2] As set out in the delegate’s decision record provided to the Tribunal by the applicant.
Secondly, the Tribunal was concerned with the applicant’s inconsistencies concerning his claimed political activism and reputation. When the Tribunal asked why he could not return and work in Khartoum, he claimed that it is very hard for a person who has a political background to find a job, and he would not be able to find a job because of his political situation. However, as put to the applicant at hearing, this appeared inconsistent with his evidence that he held a job for nine years, from 2005 until he left for Australia in 2014, and in particular, it was a government employment and [position] and he was selected to be involved (necessarily representing the government, with others) in an international project.
The Tribunal put this to the applicant, noting its concern not only that he managed to maintain and hold a government job, but that his significant anti-government political and advocacy work appeared inconsistent with this, especially given he appeared to exercise apparent freedom in conducting his important, visible role in the SPLM, and his anti-government community advocacy work. The Tribunal put to the applicant that this was difficult enough to accept prior to September 2011; however after that time, when the government was at war with the SPLM, it was even more difficult to accept.
In response the applicant said that in 2005 it was after the peace agreement and the people who applied for these jobs were much less than the number of jobs - in addition they put him in a faraway area which had no services. The Tribunal put to the applicant that he was a graduate without actual work experience; if Bau was a difficult place, he could have been placed there because of his inexperience. The applicant disagreed and said that the government gives high ranking jobs to students. While this may be possible, when the Tribunal takes into account its other concerns, it is not satisfied that the applicant’s [number] months at Headquarters and then working as an [occupation] for the government in a rural area, Bau, and being selected to work on an international project, was punishment because of his politics; instead it appears more consistent with the demands of the [government agency]’s work.
The applicant also provided, by way of explanation for his ability to work, that, between 2005 and 2011, the SPLM was part of the government. The Tribunal put to the applicant however that he did not just claim to be part of the SPLM; instead he claimed that he had been an active pro-community/ anti-government activist. The Tribunal referred to country information noting that in this period the government was not tolerant of dissent or opponents, with the security forces engaging in unlawful killings, punishments, arrest and detention of suspected government opponents[3]. The applicant then admitted that people from SPLM had been imprisoned. The Tribunal put to him that his claim to have conducted anti-government community activities, as well as pro-SPLM activities, with no consequences before 2011 (other than claimed discrimination at work) seemed difficult to accept, given the country information that such people were targeted for serious and significant harm.
[3] The USDOS: The following human rights abuses occurred: abridgement of citizens' right to change their government; extrajudicial and other unlawful killings by government forces and other government-aligned groups throughout the country; torture, beatings, rape, and other cruel, inhumane treatment or punishment by security forces; harsh prison conditions; arbitrary arrest and detention, incommunicado detention of suspected government opponents, and prolonged pretrial detention; executive interference with the judiciary and denial of due process; obstruction of the delivery of humanitarian assistance and the expulsion of individuals working for humanitarian nongovernmental organizations (NGOs); restrictions on privacy; restrictions on freedom of speech; restrictions on the press, including direct censorship; restrictions on freedoms of assembly, association, religion, and movement; harassment of internally displaced persons; harassment and closure of human rights organizations; violence and discrimination against women, including female genital mutilation; child abuse, including sexual violence and recruitment of child soldiers; prevention of international human rights observers from traveling to and within the country; trafficking in persons; discrimination and violence against ethnic minorities; denial of workers' rights; and forced and child labor: >
The applicant responded that in 2010/2011 he was working more on work projects than on political activities. The Tribunal is not persuaded by this response, noting that he did not make this claim earlier, and he did not suggest that he stopped his anti-government activities at a time when dissidents and opponents were being targeted.
Further, as noted in his statement, the applicant claims to have increased anti-government/ pro-community activities after the conflict started in September 2011 between the government and SPLM. He claimed to have become even more outspoken against the government and he claims to have continued to be present in Bau. The Tribunal has concerns firstly with the applicant’s changing evidence about his location after the conflict started in September 2011 in Bau and until he came to Australia in 2014. In his protection visa application form he stated that from September 2011 until August 2014 he lived in the capital Damazin and from there he would travel frequently to Bau. However, when the Tribunal asked the applicant where he lived after the international project finished, he said he stayed in Bau. The Tribunal asked whether he was based in Damazin and he said, no. It was only when the Tribunal put to him what was stated in his protection visa application form that he changed his evidence to match that. The Tribunal considers that the applicant’s changing evidence undermines his credibility and his claim to have been in Bau in the years after 2012.
Further, the Tribunal was concerned that as set out above, after the war started, he continued to be employed by the government, having regard to his claimed activism. The applicant told the Tribunal that in September 2011 the government of Sudan attacked; starting in Ad Damazin and the conflict spread all over Bau. The government was at war against the SPLM which continued and is still continuing. The Tribunal was concerned that the applicant claimed to have been a known political activist, both anti-government and pro-SPLM (and representative of SPLM), yet he was able to travel freely between Ad Damazin and Bau (an area known for rebel support) for his work for the government for a three year period while there was fierce fighting between the government and the rebels/ army of his political organisation, SPLM, and targeting of the population loyal to SPLM. The Tribunal considers that it is highly unlikely that, if the applicant was anything other than a pro-government, government employee, he would have been permitted to keep his job with the government, and to travel to areas where people supporting the SPLM are located (and certainly not if he was a known supporter of the rebels, supporter of the people supporting the rebels, and known to be anti-government).
In response, the applicant said that, after the conflict started in 2011, the government considered that “we” are against them and it started detaining people. He said that he was arrested in 2012. However, when asked, he said that he could not recall the dates. The Tribunal asked for approximate dates and he said about June or July 2012. When the Tribunal asked how long he was detained for, he said about 8 to 9 hours and then he was released. The Tribunal asked why he was released and he said that they don’t keep people for a long time, they don’t want people to get angry. When the Tribunal put to the applicant that this did not appear to make sense, given that the government was killing and detaining/ disappearing many people for long periods; it did not appear that the government was worried about people getting angry if it held people for less than one day.
The applicant then said that he was released because he signed a declaration that he would not talk about the war again nor say that the government has to stop. The Tribunal noted however his evidence that he continued to talk after he was released, such that he was arrested for the second time. The Tribunal asked why he was released on the second occasion and he said because he made the same declaration (that he would not talk about the war again nor say that the government has to stop). The Tribunal put to him that it did not make sense that the authorities would believe that he would comply with his declaration, given he had been arrested for not complying with it. He responded there is pressure from the people. The Tribunal asked whether he was aware that people were killed or detained for long periods by the government and he agreed that this did occur, including to members of SPLM/ SPLA. The Tribunal put to him that it did not make sense that a person of his profile would be released so easily and he said they do not explain why. The Tribunal noted that it was his claim that he had been detained twice for less than one day, and the government did not keep him in detention, instead by allowing him to remain free, they let him keep doing his antigovernment activities. In response he said that he goes to speak out in these areas and he asks for their rights. As put to the applicant, this was difficult to accept. The Tribunal does not find his responses to be persuasive. The Tribunal considers that it is highly unlikely that a person of the applicant’s claimed profile would keep his job, and be allowed, in a situation of conflict, to roam freely, supporting the government’s enemy.
Further, when the Tribunal explored exactly what he claimed to be doing which led to him being arrested, his evidence changed. Initially he said that he goes to the government and speaks out for the rights of these people, asking for food and water and for the army to stop attacking them. When the Tribunal put to him that it was difficult to understand why he would approach the government waging war to tell the government what to do, he then changed his evidence and said that he did not tell the government directly these things, instead he would tell the people who were being bombed about their rights not to be bombed. When the Tribunal put to the applicant that this was difficult to accept, he then changed his evidence again and said that he did ask the government to let these people live. The Tribunal considers that his changing evidence undermines his credibility, and his claims to have approached the government to advocate on behalf of these people.
The Tribunal also considers that his claimed ability to obtain his work for the government and in an international project, and to keep his job, undermines his claimed role in the SPLM as one of the most important roles and that he was an outspoken anti-government activist and pro-community advocate who holds meetings against the government (both before the war, and after it started).
Thirdly, the Tribunal is concerned that the applicant changed his evidence about why he would be targeted by the authorities. The applicant said to the Tribunal that his problem is not to find a job, it is his safety. He said that he fears that if he returns, the Sudanese government will kill him because they do things like that with anti-government people when they return. When the Tribunal put to him that, as an anti-government person, he had already travelled out of the country (to [Country 3] in November/December 2013) and he had returned and had not been harmed by the government, he then changed his evidence and said that his problem is because they found the documents in his room. The Tribunal considers that this indicates that he is prepared to change his evidence to respond to the Tribunal’s concerns, which undermines his credibility.
Fourthly, the Tribunal was concerned that the applicant gave evasive and changing evidence in relation to the documents found in his work room. The Tribunal asked the applicant what the documents found were, and he said they were maps to access SPLM people who have been surrounded by government forces; there was an attack on the government forces and then they found the documents in his room. The Tribunal said that the information seemed significant and it indicated that he had knowledge of an SPLA attack (in the [Village 1] area). He agreed. The Tribunal put to him that it was difficult to accept that he had managed to leave Sudan lawfully, using his passport, if the government forces believed that he had knowledge of what the government may consider to be a terrorist attack.
When the Tribunal asked the date that the security police were searching his room and found the documents, he said it was in August in Al Damazin. The Tribunal asked where he was and he said he was preparing to come to Australia and he took his annual leave and he was in Khartoum. However he then changed his evidence when the Tribunal put to him that: the security police were searching for information about the attack; they had found some documents when they searched his room which suggested his knowledge of an attack on government forces; it did not make sense that he was then able to leave Khartoum without any problems. Further, the Tribunal put to him that if he was in Khartoum staying with his family, then the police would have been searching for him and they would have easily located him there and detained him. The applicant did not answer the concern, instead saying that he wanted to give a background about the attack. After he did so the Tribunal put to him that he had still not answered the question of how he managed to leave Khartoum lawfully (and not be detained). He then changed his evidence and said that he is sure the government only found the documents after he left the country.

Later he also changed his evidence, firstly saying again that when they searched his room he was not in Sudan. He then changed again and said that he was in Sudan when they searched his room. He then said he can’t recall the dates correctly. The Tribunal does not find this persuasive. It considers that he would recall whether or not the authorities had searched his room when he was in or out of the country, because, if he was still in Sudan, this would have meant that he risked getting caught, charged with a very serious attack, and suffering very severe harm at the hands of the security services. The Tribunal considers that even if (as he claims) he found out the next month about the raid on his room, he would recollect whether or not it had coincided with him being in the country. The Tribunal considers that his inability to recall clearly/consistently whether or not he was in Sudan when the documents linking him to a terrorist attack were found, and his changing evidence in this regard, undermines his credibility and his claims.
The Tribunal’s concerns about incriminating documents being found in his room by the security forces were heightened because[4], when he was asked about the documents at interview, he told the delegate that the documents were about planning for people to come and get food in [Village 1] as it has a big marketplace and no armed forces or police near it. When the delegate put to the applicant that this did not seem to be a matter that would pose a threat to the government, he said that the government considers this place to be significant. This explanation of the content of the incriminating documents is inconsistent with his explanation to the Tribunal of the documents (which would implicate him in an SPLA attack), which further undermines his credibility.
[4] Sourced from the delegate’s decision record provided to the Tribunal by the applicant.
Fifthly, the Tribunal was concerned that the letter produced by the applicant (undated, but referring to his work between 2010 and 2012), which provided a glowing reference and strong recommendation of him, was signed by a government official, and produced on government letterhead, appeared inconsistent with his claims to have been discriminated against by the government because of his political opinions and activities starting from as early as 2003 (when his political activities made it difficult to get a job), and that in Bau he had been an outspoken anti-government activist and pro-community advocate.
When the Tribunal put this to him, he responded that they wrote a good report because he did a good job. The Tribunal suggested that this supports a view that he was praised at work for his good efforts; not subjected to discrimination. The applicant then added that it was a joint project; while the Tribunal accepts this is the case, it noted that the reference was written on government letterhead and it was signed by the person the applicant said was the [senior official] for the Sudan component. The Tribunal considers that the government recognition in this letter undermines his claims of discrimination and his claimed anti-government activism and advocacy.
The Tribunal’s concerns in this regard are heightened because the applicant produced other certificates to the Department issued by the government [agency] indicating that he had been provided with opportunities, and successfully undertook, government training in relation to his work inside Sudan ([5][details deleted]), and further that he had been able to attend international courses relevant to his work including in [Country 1] in 2009 and in [Country 3] in 2013[6]. Further, in January 2012, he had travelled to Khartoum for training on [a] project[7]. While the Tribunal has considered the applicant’s assertions that the government didn’t pay for his trips or additional training; is not prepared to accept these assertions.
[5] Departmental folios 19 and 20
[6] Departmental folios 11 and 16
[7] Departmental folio 18, certificate provided.
Finally, the Tribunal was concerned that the applicant gave further evidence which was not credible about his circumstances back in Sudan; on this occasion in relation to his claimed fiancée. As noted above, he submitted a request to the Department that his fiancée be made a dependent upon his application. He claimed in that letter that when he had left Australia, after lodging his protection visa application, to attend a conference in [Country 4], he had asked her to marry him. However, when the Tribunal asked the applicant which countries his fiancée had been to, he said only Sudan, she went to [Country 5] (sometime in 2015 but he cannot recall when that was, not even approximately) and she came to Australia in 2013 and returned. When asked whether she had travelled anywhere else apart from [Country 5] and Australia he said he is not sure but he does not think so.
The Tribunal then put to the applicant his evidence that when he was in [Country 4], he had asked her to marry him. He then changed his evidence and said that they also met in [Country 4]. The Tribunal noted that this was different to his earlier evidence that the only countries she had been to were [Country 5] and Australia. In response he said that he didn’t remember. The Tribunal put to him that it was hard to accept that he forgotten that his wife-to-be had travelled to meet him in [Country 4], given that this is the time that he asked her to marry him. The applicant then said that as [Country 4] is neighbouring country, it is not like travelling; and his relationship had had ups and downs; the Tribunal does not find this to be persuasive. The Tribunal considers that this undermines his changing evidence undermines his credibility.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
While the Tribunal accepts that the applicant may have been nervous during the proceedings, it is not satisfied that this can explain the difficulties with his evidence.
Corroborative evidence
Documents: The applicant produced his grant of annual leave from the [employer]. This stated that he [held a certain position], [in a certain area], and that it had been approved that he would have three months of annual leave from [July] 2014 until [November] 2014, with his return to work date as [date] November 2014.
He also produced a Letter of Termination of Employment for Absenteeism from [another employer] dated [date] September 2014. This letter stated that the applicant had been absent from work for three consecutive months. However, the applicant told the Tribunal that his last day at work was [date] July 2014. The Tribunal put to the applicant that he had not been absent for more than three months at the date of the letter and it was difficult to understand why such a letter would be produced (given it contradicts the circumstances and his approval of annual leave). In response he said the government will try to find an excuse to sack the person; this is what the government does. The Tribunal is not persuaded by this response, especially given his other document showing that his annual leave had been approved until November 2014. The Tribunal put to the applicant that false documents can be obtained from Sudan[8]; in response the applicant said the documents are not fabricated. However, given the Tribunal’s credibility concerns, and the inconsistencies between the documents, the Tribunal is not prepared to place any weight on the Annual Leave Grant and the Letter of Termination documents.
[8] DFAT Report: Documentation: 5.40 Long-term instability in Sudan has had a detrimental impact on reliable identification documentation. In addition, DFAT understands that high levels of corruption have led to fraudulent identification documents being easy to obtain.
The applicant produced correspondence from his brother. One email entitled “unstable and insecure Blue Nile” stated that the situation where the applicant used to live and work is very bad and it is not a safe place to go. Government forces are chasing and torturing activists like himself and his colleagues. “They” come very often to the home and harass them all and question all the family members including the parents, asking about the applicant and trying to get any information about him, but they always do know where he is. A later email from his brother stated that things remained gloomy, but because of the applicant’s high profile in the struggle, people are following what he has done in the resistance movement. Unfortunately the government has raided their house many times and interrogated the parents, asking about the applicant and threatening and harassing all of them to find out where the applicant is. Everything is ruined in the Blue Nile.
As put the applicant, people write letters for all kinds of reasons to support applications, and the Tribunal has to assess the weight given to such letters. Having regard to the Tribunal’s concerns about the applicant’s claimed profile, and the brother’s assertion (without real explanation) of the applicant’s profile, the Tribunal is not prepared to place any weight on the letters emailed from his brother.
Similarly, the applicant produced a letter from his employer in Australia, indicating that he has worked with them for over one year, and they have found him to be an honest and diligent person who is hard-working. While the Tribunal is prepared to accept that his employer finds him to be honest and diligent and has a high opinion of his character, this does not overcome the Tribunal’s concerns with the applicant’s credibility referred to above.
The Tribunal noted that it had considered a certified copy of the original letter provided by the SPLM representative in Australia dated [date] February 2016. The applicant’s agent had provided this letter to the Tribunal and the Tribunal discussed this letter with the applicant. The Tribunal noted that the letter was inconsistent with his evidence, in that the applicant claims to have had a significant role for nine years in the SPLM, whereas the letter does not even mention this. Instead, the Tribunal noted it vaguely says that he was a “volunteering active member of movement; he has a “strong sense of commitment and dedication” and that he would be an asset to the movement. The Tribunal put to the applicant that it was thus concerned that it should not place weight on this letter, and it noted that people can write letters for many reasons. The applicant said that because the author was in Australia, the author doesn’t know exactly what the applicant was doing in Sudan, but he is a responsible person. The Tribunal does not find this persuasive. The applicant indicates that the author of the letter does not know what the applicant was doing in Sudan; and there is no suggestion by the applicant that he has been undertaking any SPLM activities in Australia. Given the significance of the applicant’s claimed role in the SPLM, and the failure of the letter to make any mention of this claimed significant long-term role, and the applicant’s claim that the person did not really know what the applicant was doing in Sudan, the Tribunal is not prepared to put any weight on this letter. Nor did the Tribunal consider that it would assist, given the applicant’s claim that the person did not really know what the applicant was doing in Sudan, to telephone the author of the letter.
The photographs: The applicant provided numerous photographs, which showed him standing around with a group of people outdoors, or speaking to a group of people. The submissions referred to the photos as the applicant with members of the community he worked with in the Bau region. The applicant described some of the photos as “photos of mine taken during activities of public program of SPLM/North in Bau. Myself appears on photos sometimes in the front and other times in the middle... trying to explain some issues to our people”.
As put to the applicant at hearing, these photos do not necessarily support his claims. The Tribunal notes that the photos could have been taken anywhere, at any time, and could simply be pictures of the applicant doing his job in Bau, instead of support for his claim as a political/ community activist. As the Tribunal has such concerns with his credibility, the Tribunal does not give the photos the weight suggested by the applicant (although as noted below, it is prepared to accept that speaking to and meeting with the community was part of his work).
Country information: The applicant provided to the Department and Tribunal country information about the situation in Sudan. Reference was made to the US Ambassador accusing Sudan of attacking civilians in Blue Nile state, and that ethnic minority rebels have been fighting government forces for three years in the area (as at June 2014), because of perceived neglect by the Arab government in Khartoum. People (from Angasana ethnic group, which the Tribunal notes is not the applicant’s ethnic group) near Al Damazin were detained in September 2014 because of their presumed political affiliation to SPLM. Articles from 2015 were provided referring to the government’s continuing fight against an insurgency in the southern provinces including Blue Nile since 2011, mounted mostly by former Civil War fighters who were left in Sudan after South Sudan seceded in that year. Reference is made to continuing of human rights abuses in Blue Nile State by government, and SPLA attacks launched on civilian communities presumed to support government forces. More recently in 2016/2017, information was produced showing that the government had detained leading/prominent opposition members.
While the Tribunal is prepared to accept this country information, it is not satisfied on the evidence before it, given the significant concerns with the applicant’s credibility, that this supports his claims.
The applicant claimed that as he went to [Country 3] in 2013, he could have submitted an application for asylum on that occasion, but he did not do so; instead he has done so in Australia because he is in danger now. The Tribunal is not prepared to accept this assertion, noting there could be many reasons why he may not claim asylum in [Country 3] in 2013.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that he is not a witness of truth, and that he has fabricated claims in order to allow him to stay in Australia.
Findings on the applicant’s claims
The Tribunal is prepared to accept that the applicant worked as an [occupation] with the [government agency] in Bau and that his work with the [agency] involved meeting with and speaking to members of the community in his [role], as shown in the photographs. It does not accept that he was an advocate for the community nor attended meetings with the community for political reasons/ community advocacy/ anti-government reasons, nor does it accept that the photographs show this.
The Tribunal is also prepared to accept that, as an employee of the Sudanese government, he was selected to work on [a certain] project, which commenced in 2010, and continued until April 2012 in Bau (having regard to the certificate that he produced recommending his work).
On the basis of the adverse credibility finding, the Tribunal does not accept any of his claimed political/ activist/ community/ social/ anti-government involvement or acts in Sudan. It does not accept that he was ever involved in the ALF or SPLM. It does not accept that he has been imputed, nor that he has drawn adverse attention as anti-government or having had any anti-government or activist/political/community involvement. The Tribunal does not accept that there is any reason for the applicant to be so imputed upon return in the future. The Tribunal does not accept that he has an anti-government political opinion nor that he would wish to have any future political involvement (and not because of fear, but because he is not interested). The Tribunal does not accept that the applicant was unable to get a job after finishing his education as a result of his political views, nor does it accept that he was sent to Bau as punishment for his political activities, nor that he suffered discrimination at work. It does not accept that he discovered corruption and reported such person and received adverse attention from the security services. It does not accept that he was arrested or questioned on any occasion, nor that upon his release he reported to the security office daily, nor that he signed documents saying he would not protest or criticise government policies. It does not accept that security services searched and found adverse/incriminating documents in his room, nor that they have been searching for him or approached colleagues or his family about him, nor that his personnel file disappeared. The Tribunal does not accept any of the claims flowing from the applicant’s claimed activist/political/moral nature and acts.
The Tribunal put to the applicant that if it did not accept his claims, it may find that he does not face a real chance of serious harm or a real risk of significant harm having regard to the country conditions. The Tribunal discussed with the applicant the DFAT report to which it is required to have regard (and it has considered the country information produced).
The applicant told the Tribunal that he had an exit permit to leave Sudan, and the Tribunal is prepared to accept this. As he had an exit visa, the Tribunal put to the applicant that it appeared that he would not face a real chance or real risk of being questioned by the NISS for such reason:
5.36 Individuals are required to obtain an ‘Exit Visa’ in order to leave the country. This requirement has been used to restrict the travel of some high-profile individuals, especially those who were of political or security interest. DFAT understands that if a failed asylum seeker who did not obtain an Exit Visa prior to leaving Sudan was to be returned, they would likely be questioned by the NISS. If an individual was of interest to the Government they would likely be questioned by the NISS in detail, including potentially being taken to NISS Headquarters for further questioning.
On the basis of the adverse credibility finding, the Tribunal is not satisfied that the applicant has previously experienced any adverse attention when he has been at the airport leaving or entering Sudan ([Country 1], [Country 2], [Country 3]), including when leaving to come to Australia in August 2014, nor does it accept that he needed assistance to leave (either with travel documents or at the airport). The Tribunal notes that the applicant has provided some changing/ inconsistent evidence in relation to when he left Sudan:
· His protection visa application form indicates that he left Khartoum airport legally and that he had no difficulties in obtaining a travel document to leave Sudan[9]. However, after the delegate noted he was able to leave the country legally, he then claimed (in his response to the delegate’s decision record submitted to the Tribunal) that he had been refused an exit visa and then used assistance of his friend to both get him a passport and an exit visa to leave Sudan. Later, at hearing, he did not indicate that he had difficulties in getting an exit visa, telling the Tribunal that because he had annual leave, he was able to obtain an exit permit for Sudan; but when the Tribunal raised that he was able to leave lawfully he again claimed that he had difficulties in obtaining an exit visa.
· The applicant’s claim that he was initially refused an exit visa by the authorities indicates that the authorities were aware that he was planning to leave the country; this however conflicts with his insistence at hearing that the authorities (his employer or the government or the security services) did not know of his intention to leave the country. That insistence is also contradicted by his claim (in his response to the delegate’s decision record submitted to the Tribunal) that, although the course in Australia was just a short training course, he asked his superiors to grant him study leave and supporting fees but they refused.
[9] DF61

The Tribunal finds that, as he held an exit visa (which it finds was lawfully issued), it does not consider that he faces a real chance or real risk of being questioned for failing to have an exit visa.
At the hearing, the applicant asserted to the Tribunal that, for anyone who returns to Sudan after having applied for asylum, their life would be in danger. The Tribunal discussed the articles produced by the applicant in relation to returnees, indicating that his circumstances appeared different to those people in the articles. The Tribunal has taken into account the country information provided, including an article from November 2016 stating that a man who arrived from Israel back to Sudan had been detained and then died in suspicious circumstances. The applicant told the Tribunal that this man had claimed asylum. The Tribunal noted that it did not have evidence of this in the article and the applicant said that anyone who goes to Israel from Sudan goes to claim asylum, becuase their passport does not allow them to travel to Israel. The Tribunal noted that this may be a reason why that person was detained but this is not the case for the applicant (and his passport does not state that he is not allowed to travel to Australia). There is no suggestion that the applicant has been to Israel, and the Tribunal does not consider that there is a real chance or real risk that the circumstances of the person referred to in this article to be relevant to this applicant.
The Tribunal also notes reference to an Amnesty International article from July 2017 which refers to three Sudanese activists who were deported from Saudi Arabia and detained by the security service upon their arrival in Sudan. Amnesty International consider them to be prisoners of conscience, held solely for exercising the right to freedom of expression; reference was made to their detention in Saudi Arabia, and their social media activism following their support of civil disobedience protest actions in Sudan on Facebook. However, the Tribunal has not accepted that the applicant has been an activist at all, nor is it is satisfied that he faces being so imputed, nor that there is a real chance or real risk that circumstances of those three persons referred to in that article are relevant to this applicant.
The Tribunal also noted the DFAT Report refers to returnees and states that:
Conditions for Returnees
5.38 DFAT is not aware of any evidence that suggests an asylum seeker returning to Sudan would be distinguishable to the broader community or susceptible to any form of discrimination or violence, unless they presented a threat to the Government. In reality, this is likely to affect vocal opponents of the Government.
5.39 DFAT understands that the main issue facing returnees is the perceived lack of financial support provided for effective reintegration into Sudanese society, particularly in Khartoum.
The Tribunal does not accept that the applicant is or has been a vocal opponent of the government. Instead, it finds that he was working for the government. The applicant said that just because he worked for the government does not mean he was politically aligned with the government. While the Tribunal is prepared to accept this as a general principle, it is not satisfied that this applicant has, or faces a chance or risk of being imputed with an anti-government political opinion, nor that he has a political opinion which opposes the government. The Tribunal does not accept that anyone has had any interest in the applicant, or has questioned his whereabouts or searched for him, since he has been in Australia.
While the Tribunal acknowledges that the applicant has applied for asylum in Australia, he has also attended a [course] relevant to his government position in Sudan, and he has been working in Australia. The Tribunal considers that he will tell the authorities that he has been attending a course and working in Australia, and it is not satisfied that, upon return at the airport, he faces questioning for any reason leading to a real chance of serious harm or a real risk of significant harm.
The Tribunal is not satisfied that the applicant has been honest about his past history or events in Sudan. While the Tribunal accepts that he spent some time in Bau for work purposes, and that he worked on an international project there, it is not prepared to accept that the applicant returned to Bao after April 2012 when the international project finished. In making this finding it has considered his readiness to change his evidence about where he was living after the international project had finished (in Bau or in the capital of Ad-Damazin), and what he was doing in Bau (approaching the government, then not approaching the government, about bombing victims); and the inconsistent documents he produced about his claimed work for the government in Bau in 2014; and finally it has had regard to the context of the conflict.
The Tribunal thus does not accept that the applicant lived in Bau or anywhere in Blue Nile State after April 2012. In the absence of other evidence as to where he lived thereafter, the Tribunal considers it most logical to find that he lived with his family in Khartoum from April 2012. Further, the evidence suggests that it considers that he has continued his work in the same field (having regard to his attendance at a [certain course] in [Country 3] in December 2013). In the absence of evidence as to where he was working, it considers it most logical to find that he continued work for the government, in Khartoum. The Tribunal does not accept that the applicant was sacked as a government employee.
The Tribunal finds that the applicant’s home area is Khartoum. At the hearing the Tribunal put to the applicant, that he could live in Khartoum, and work with the government or obtain other work, having regard to his education and experience. The applicant responded that people don’t like government jobs because salaries are low. The Tribunal is not prepared to accept his assertion. The Tribunal put to him that it did not appear on the available evidence that he would face a real chance of serious harm or a real risk of significant harm for financial reasons (also noting his family’s presence in Khartoum and that his brother is a [professional] who is providing financial support for the family). In response, the applicant said that the problem is that his life is in danger and the job is a secondary thing. The Tribunal is not prepared to accept that that the applicant’s life is in danger. It considers that he is resourceful, educated and has work experience such that, when having regard to the employment situation as set out in the DFAT Report[10], he will be able to find work such that he does not face a real chance of serious harm or a real risk of significant harm for financial reasons.
[10] Employment
2.24 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.
The Tribunal does not accept that the applicant faces a real chance of serious harm or real risk of significant harm as a returnee, either at the airport, or after he leaves the airport. The Tribunal does not accept that the applicant faces a real chance or real risk of not being able to obtain a job in Sudan, given his education and work experience and the lack of adverse interest from the government. The Tribunal considers that the applicant will return to Khartoum, where he was living prior to coming to Australia, and that he will find accommodation and work as he has done previously.
The Tribunal does not accept the submissions that the applicant fears, nor that he faces a real chance or a real risk, of discrimination, aggression, imprisonment and even loss of his life (because of his political activities and speaking out against the violations of people’s rights in rural areas all around Sudan, which the Tribunal has not accepted, or for any reason).
General violence: the Tribunal has taken into account the country information provided in the delegate’s decision record, as well as provided more recently, as well as the DFAT Report. Much of the concerns referred to the authorities’ mistreatment and arrest of protesters (including students), civil society activists, members of the political opposition and journalists, as well as fighting in Blue Nile. The Tribunal has not however accepted the applicant faces a real chance or real risk of being perceived as in opposition to the government, nor in attending any protests or opposition activities.
It was submitted that there is ongoing political strife and instability which continues with the current government and that since the applicant’s arrival in Australia there have been further attacks in the Blue Nile region. The Tribunal does not however consider that the applicant will return to the Blue Nile region.
The Tribunal considers that the applicant was a government employee for many years who worked in the Blue Nile, and more recently in Khartoum, and it is not satisfied that he faces a real chance or real risk of being imputed as anti-government for having worked in that area. The Tribunal has considered the situation of a person with the applicant’s profile and the chance or risk of being subjected to general violence. The Tribunal put to the applicant that (other than his claims that the security forces would be after him), there did not really appear to be significant problems in Khartoum. He said that sometimes problems happen and that there is an organisation called the Rapid Support Services who assist the security services and they stop people and take money and no one can question them. The Tribunal notes that in late-2013, the Government announced the establishment of the RSF, with the aim of militarily defeating the armed opposition throughout Sudan. The RSF has links to both the Sudanese Armed Forces and the NISS, with a former Sudanese Armed Forces General commanding the RSF and the NISS overseeing its operations. In early 2014, it was reported that the RSF consisted of between 5,000 and 6,000 troops. However, it is widely believed that this number has continued to grow since. While DFAT assesses that individuals in areas of Darfur (particularly Jebel Marra), South Kordofan and Blue Nile are at risk of being indiscriminately targeted by the RSF[11], it does not refer to the same risk in Khartoum. The applicant has not provided to the Tribunal evidence to support a claim that he faces a real chance of serious harm or a real risk of significant harm from RSF in Khartoum. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or risk of significant harm for reasons of general violence or security or money in Khartoum.
[11] Paragraph 5.11, 5.14, DFAT Report
The Tribunal notes that in his statement of August 2017, the applicant claimed that UNICEF reports indicate there is a measles outbreak in Bau. The Tribunal notes however that it does not consider that the applicant will be returning to Bau. It is not satisfied that the applicant faces a real chance of serious harm or real risk of significant harm in relation to a measles outbreak (or difficult humanitarian conditions) in Bau.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of political opinion, political affiliation, any activities in Sudan or overseas (imputed or otherwise). The Tribunal considers there is no basis to find that the applicant would face a real chance of serious harm in Sudan. The Tribunal is not satisfied that there is a real chance or real risk that the applicant may be of adverse interest to the authorities, or anyone, in the future.
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 harm 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 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), 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 of the past harm claimed, nor that he is or has been imputed to be involved in SPLM, in opposition to the government, an activist (either political or social) or pro-community/ pro-SPLM. The Tribunal has accepted that the applicant is an educated male with qualifications and work experience and that he has his parents and [siblings] in Sudan. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason in Sudan, including as a returnee, having spent time in Australia, for any political or imputed political reasons, for employment or general conditions in Sudan.
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Request for offshore fiancée to be included in the applicant’s protection visa application
The applicant said that his fiancé was offshore, in Sudan. He made an application to the Department to have her included in his onshore protection visa application. The Department did not make a decision in this regard. Further, the applicant did not include his fiancée as an applicant for review in the application for review form. As put to the applicant at hearing, it did not appear that she could be granted a protection visa as a member of his family unit in this application, as she is and was offshore (he said the last time she was in Australia was in 2013, whereas he lodged his application in 2014). The applicant did not seek to comment. The Tribunal is not satisfied that there is an application for review before it in relation to the applicant’s fiancée.
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 - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2017] AATA 1996

1 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction