1600799 (Refugee) - [2017] AATA 2214

1600799 (Refugee) [2017] AATA 2214 (18 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600799
COUNTRY OF REFERENCE:                  Sudan
MEMBER:Christine Cody
DATE:18 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2017 at 6:59pm

CATCHWORDS
Refugee – Protection Visa – Sudan – Political opinion – National Umma Party member – Detention – Torture – Discrimination – Fear of state persecution – Fear of violence – Witness credibility
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, 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
MIMAC v SZRHU (2013) 215 FCR 35
V856/00A v MIMA (2001) 114 FCR 408
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 [in] January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented by his registered migration agent, [name] of [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] March 2015, 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 the applicant’s application forms and statement as well as identity and supporting documents, a copy of the interview recording (to which the Tribunal has listened), and a copy of the delegate’s decision record.
According to the written materials submitted to the Department, his background and claims can be summarised as follows:
·     He was born in the state of Gazeera, in Greater Wad Medani, on [birth date] (birth certificate). He speaks, reads and writes in English and Arabic. His ethnicity is African-Arab. 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 and using What’s App.
·     His occupation is [Occupation 1].
·     He was educated initially in Sudan, completing a [degree] at university in Khartoum in October 2008. In 2007 he had gone to [Country 1] to study [another course]. After he completed his [degree], he did [further studies] in [university], [Country 1] (from [2009] until [2011]). During this period of studies, he travelled in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1600799 (Refugee)

Details

AGLC: 1600799 (Refugee) [2017] AATA 2214
Case: [2017] AATA 2214
Decision Date: 18 August 2017

CaseChat Overview and Summary

The applicant, a national of Sudan, sought a protection visa, claiming a well-founded fear of persecution and a real risk of significant harm if returned to Sudan. The dispute centred on whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically concerning claims of persecution based on political opinion and membership in the National Umma Party, as well as fears of torture and discrimination. The decision was made by Christine Cody, a Member of the Tribunal.

The Tribunal was required to determine whether the applicant had established a well-founded fear of persecution for reasons of political opinion, or whether there were substantial grounds for believing that, upon removal to Sudan, there was a real risk of significant harm. This involved assessing the applicant's credibility, the veracity of his claims regarding his political affiliations and the persecution faced by his family, and whether any claimed fear was for a reason specified in the Act. The Tribunal also considered the definition of "significant harm" and the potential for effective protection measures in Sudan.

In its reasoning, the Tribunal applied the principles outlined in sections 5J and 36 of the Migration Act 1958 (Cth), which define a "well-founded fear of persecution" and "significant harm." The Tribunal expressed serious concerns about the applicant's inconsistent and seemingly not credible evidence, particularly his decision to return to Sudan after initially travelling to Australia. The Tribunal noted that the onus was on the applicant to provide sufficient detail to establish his claims, and that it was not required to make the case for him or accept allegations uncritically, referencing established case law on the applicant's burden of proof. The Tribunal also considered relevant policy guidelines and country information.

Ultimately, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa, finding that the applicant had not satisfied the Tribunal that he had a well-founded fear of persecution or that there were substantial grounds for believing he would suffer significant harm upon removal to Sudan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 REASONSCountry 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 serious 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 considered that the applicant’s return to Sudan from Australia after his first visit appeared inconsistent with his claimed history and family background, as set out below. The applicant had been granted his [visa] [in] January 2013; he travelled to Australia [in] September 2013. He only remained in Australia for three weeks, and he arrived back in Sudan [later in] 2013 (he had spent [some time] in [Country 1] on the way back)[4]. The Tribunal was concerned that, once the applicant had successfully left Sudan in September 2013, he then chose to return. In this regard, the Tribunal notes these claims:· He told the Tribunal that as soon as anyone from Sudan hears that his name is [last name of applicant], his father’s [name], and that the applicant is from the same family as his [named relatives], people automatically know that the applicant is from the NUP, because those names are synonymous with NUP. · His relatives from both parents’ sides have been arrested and tortured by the authorities, most of his close relatives were dismissed from their employment, power has been used aggressively against their family (statement).· He joined NUP in 2002 although he kept it secret all these years; if he had not kept it secret he would not still be alive (statement). He has however continued to attend regular opposition meetings whenever he has been back in the country (evidence). · His workplaces had already identified his political opinion and affiliation and he was being watched; the discrimination at his work had become worse in January 2013; and in March 2013 while working at [Company 2] he had received a phone call asking questions which were clearly not work-related and showed an adverse interest in him and his activities by the authorities. [4] Evidence at hearing.

Decision

Reasons for decision

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 CodyMemberANNEXURE ACRITERIA 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

Ratio Decidendi

Legal Principle Established

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 19585 (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.…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.…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.…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.…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 familyFor 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 familyFor 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...36Protection visas – criteria provided for by this Act… (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.…