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

1. 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

2. 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.

3. 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.

4. 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 and out of Sudan as follows: [2004], [travel to Country 5]; [2005], holiday to [Country 2]; [2007], tourism and study in [Country 1]; [2008] to [2009], study in [Country 1]; [2010], home visit to Sudan.

   ·     He commenced working in May 2011 at [Company 1], which he continued until December 2011. From January 2012 until June 2014, he worked for [Company 2]. During this period while he was working, he travelled in and out of Sudan as follows: [2012], holiday to [Country 2]; [2013], [training] in [Country 3]; [2013], holiday and transit to [Country 1].

   ·     He has close friends in Australia.

   ·     The applicant’s visa grant notice was dated [in] January 2013. It showed that the applicant had made his application for a [temporary visa] [in] September 2012. He was granted an 18 month visa, indicating that he must make his first entry to Australia [a date in] November 2013, and allowing multiple entries.

   ·     He arrived in Australia [in] September 2013. He returned to Sudan [in] 2013 (having spent 1 week in [Country 1] on the way back). He continued to work in Sudan.

   ·     The applicant departed Sudan [in] 2014, arriving in [Australia] [a few days later in] 2014.

   ·     After an initial period of unemployment in Australia, he commenced [working] for [a company] in 2014.

   ·     He attempted to obtain a permanent [visa] but he was unsuccessful. His temporary visa was due to expire [in] March 2015, so he lodged a protection visa application for the following reasons:

   o   He belongs to the “Umma National Party (UNP)” [1] which was in power in 1986.

   o   The current president conducted a military coup in 1989 and took control. He has remained in power ever since. Although the applicant was small, he can remember that his family and members of the NUP were harmed by the new regime. The head of the NUP fled to [Country 2] and he leads the party from there. The applicant’s relatives from both parents have been arrested and tortured by the authorities and most close relatives have been dismissed from their employment because the regime was fearful of them taking over power.

   o   The applicant grew up opposing the current regime and believes they deny all human rights. His involvement in the NUP started in 2002 and was in secret, because, if the authorities knew, he would no longer be alive.

   o   His father [works] in Sudan but stopped his political involvement and focused on his business; but he continued to receive discrimination in his work due to his history.

   o   When the applicant returned to Sudan in [2013] he was arrested by the authorities at the airport and interrogated. He was kept [a number of] nights and was subjected to mistreatment and torture. He was forced to sign a document that he belongs to the NUP but he refused. They continued to harm him until his father learnt about his arrest and became involved to release the applicant. In order to be released the applicant had to sign a declaration that he would not involve himself in any political activities. The applicant signed this under pressure because he was denied medications for [a medical condition] which caused him to have difficulties with his health.

   o   His father advised him not to leave the country immediately so that he could show respect to the regime and that he was not angry with them. The applicant was very scared to leave through the airport but his father “eased” his departure. Since the applicant left Sudan on [in] 2014, he has feared to return.

   o   When the applicant was in Australia [Relative 1] who was a NUP member was arrested, detained, tortured and later released. The authorities asked his [relative] whether the applicant was a NUP member and the [relative] admitted this and signed a declaration to this effect.

   o   The applicant fears returning to Sudan because he will be persecuted because of his political opinion and his family political background.

   ·     He does not have a right to enter and reside in any other country.

   [1] The delegate noted in the decision record that the applicant's reference to the UNP appeared contrary to country information reports on this name, including the IRB in Canada, the US DOS, and Amnesty International. It was noted that it was generally referred to as UP or NUP. The applicant told the delegate that this was a matter of different translations of Arabic. The delegate was prepared to accept that the applicant’s reference to UNP was not a matter of ignorance. The Tribunal will refer to the party in this decision as the NUP.

5. There are no non-disclosure certificates in the Departmental file.

   The delegate’s decision record

6. Some relevant evidence provided at interview includes the following[2]:

   ·     The applicant was born in Medani. He moved to Khartoum for his university studies. His parents and [siblings] live in Medani.

   ·     He does not possess any evidence of his membership of NUP because it is too dangerous in Sudan to hold such documents.

   ·     The reason he was detained in [2013] was because he was suspected of having been involved in [City 1] gatherings. While he was in Australia, there had been harsh treatment of persons in Sudan who had been protesting about price rises for basic commodities in the country. He thought he was attending normal social events; he did not know that they were protests [as noted below, he told the Tribunal that he attended a single gathering, accompanying a friend]. He thinks the authorities knew about his attendance because he could have been identified from [media attention] and the police knew his family are [senior members] of the NUP. He was asked to sign a declaration that he was a member of the NUP but he refused to do so because this would mean he could have been taken to court. It was put to the applicant by the delegate that none of this story was included in his statement of claims provided with his protection visa application. The applicant responded that his agent had advised him to write only a brief summary of his claims which he could then flesh out in the interview. The delegate noted however that the statement makes no mention of him having been questioned about his Australian activities or protests against the Sudanese regime which were claimed to have occurred both in Sudan and in [City 1] and to have been the trigger for the airport arrest.

   · The reason he stayed for [a number of] months in Sudan from [2013] until [2014] was that he had accepted to undertake a course in [Country 3] in [2013] on the proviso that he completed a year of employment with his [employer], [Company 2]. As the fine for defaulting on the agreement was the equivalent of [amount], he honoured his commitment to complete his employment obligation with [Company 2] before returning to Australia again in [2014].

   ·     His [relative]’s denunciation of him provided the government with a further element in its case against him if he returns to Sudan, further, he has spent over one year in Australia which is a country perceived to be opposed to the Sudanese regime.

   ·     Police permission is required to travel from Sudan. He managed to obtain permission for travel from his employer on the pretext that he was travelling to [Country 2] with his mother. When he used this document to depart from Sudan in [2014] he was heading for Australia but had a ticket only for [Country 1]. His father paid a bribe at the airport so that he would not be stopped from leaving.

   ·     The applicant currently has [employment] with a company in [details of work].

   ·     The applicant said that after his arrival in Australia he travelled to [Country 1] in [2015] because he wanted to obtain a better IELTS score to seek a permanent visa.

   [2] Sourced from the delegate's decision record provided to the Tribunal by the applicant.

7. The delegate was prepared to accept that the applicant was a member of the NUP in Sudan since he was in high school and that family members have been NUP members. The delegate accepted that there had been protests in Sudan in September 2013 which had led to deaths, and noted that an Amnesty International report had referred to a series of events organised to commemorate the deaths of protesters in September 2013. While the delegate seems to suggest that this report indicates that commemorative events were organised overseas, including in Australia, this is not what the report states; instead it indicates that the commemorative events were being held inside Sudan (not overseas), as it states that: In an attempt to stop a series of events organized to commemorate the deaths of protesters in September 2013, the NISS pre-emptively arrested over 70 political activists between 17 and 23 September, invoking its powers of "preventive detention". Those arrested were released without charge in early October.[3]

   [3] Amnesty International Report 2014/15 – Sudan, 25 February 2015.

8. The delegate referred to inconsistencies, and noted that the applicant’s statement made no mention of his activities in Australia as a reason for his arrest, and instead referred to him being mistreated by the authorities because they thought he was a member of the NUP. Despite this, the delegate was prepared to accept that the applicant was detained at Khartoum airport, suspected of anti-government activities, including in Australia. The delegate did not accept the reason claimed by the applicant for his detention (that the authorities had evidence of his participation in anti-Sudan government protest rallies in [City 1] in September 2013). Instead the delegate suggested that the applicant, when coming from Australia at such a sensitive time, and stating that there had been protests about the death of protesters overseas, including in [City 1] (without referring to any evidence), would have attracted attention because he had come from Australia at that time, and not because he had any particular political profile of his own. The delegate rejected the applicant’s claim that the Sudanese authorities’ most likely have [media] evidence of his participation in protests in [City 1] and considered this to be conjecture.

9. The delegate was not prepared to accept that the applicant’s [relative] under interrogation in [2015] acknowledged to the authorities that the applicant was an NUP supporter. In this regard the delegate noted there was no supporting evidence and that it appeared to be a far-fetched claim that the authorities would bother to question the [relative] about the applicant, who had left the country [a number of] months beforehand and who did not appear to have any particular political profile, as evidenced by his completion of his work contract in Sudan after his return, and remaining without being harassed for [a number of] months in Sudan before his departure again [later in 2014].

10. The delegate was also concerned that the applicant delayed in lodging his protection visa application until his temporary visa was about to expire, and considered that this indicated that the applicant wished to remain in Australia for reasons other than a fear of persecution in Sudan.

11. The applicant claimed at interview that the authorities would view him with suspicion on return from Australia after a prolonged stay. The delegate accepted it would be possible he may be questioned about his activities in Australia but he could truthfully state that he was working here and carry evidence of his employment record. On the last occasion his return to Sudan coincided with overseas protests at the conduct of the Sudanese government, however there are a considerable number of Sudanese people visiting and living in Australia and many of these return for visits to Sudan without being subjected to undue scrutiny at the airport. The delegate found that the applicant does not have a raised political profile; and that since 2008 he has lived for longer outside the country than in Sudan. His previous adverse experience was resolved, evidencde by the fact of his unfettered continued residence and employment in Khartoum for [a number of] months after and his ability to obtain a new passport without difficulty.

    The Tribunal

12. The applicant provided to the Tribunal, along with his application for review, a copy of the delegate’s decision record. The Tribunal wrote to the applicant, informing him that it was not satisfied on the evidence before it that his application should be granted, and invited him to attend a hearing. He was requested to produce submissions confirming his current claims. This was provided on 28 July 2017, also responding to the delegate’s decision record. It was claimed that the applicant fears that if he returns to Sudan, he will be apprehended and tortured by the Sudanese government because of his involvement in the NUP.

13. The applicant appeared before the Tribunal on 4 August 2017 to give evidence and present arguments. He provided his current and expired passports and an online article with a translation, which was discussed at hearing. The agent also attended. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.  Most of the time the applicant spoke in English, although the Tribunal reminded him on numerous occasions that, whenever he wanted to, he could use the interpreter. On some occasions he chose to use the interpreter.  The Tribunal is satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.  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.

14. The applicant told the Tribunal that his fear if he returns is that he will lose his freedom and be tortured and suffer hardship and discrimination, mainly because of his political views and because he is a member of the NUP Party. Further, because he spent a long time in Australia, and he was applying for a protection visa, he will face a lot of problems when he gets back. He said he does not have any other worries or concerns.

15. The Tribunal noted that the harm suffered by his family are set out in his statement seemed somewhat vague and lacking in details. It asked him to provide details of all of his family members who had suffered harm. He said:

    ·    Between 1989 – 1993 his father had frequently been arrested and was psychologically tortured because of his political opinion; he was a NUP member and against the government.

    ·    [Relative B] was  a [senior member] of NUP in their state; he was arrested with the applicant’s father, as well as on other occasions.

    ·    [Relative C] was a [senior member] of opposition parties.

    ·    [Relative A] has been arrested many times.

    ·    [Relative D] suffered discrimination and could not find a job because of his political views.

16. He said that he is in contact with all of his family members. He tries every week to make a phone call and he talks to whoever is at home. When asked what his family tells him, he said they talk about the various family members’ illnesses, his [sibling’s] studies, and the general family situation: his mother was sick and in hospital, his father had [specified health problems], [details of siblings]. The Tribunal asked whether they have said anything about him or his situation, and his response was that he didn’t tell them his protection visa application was rejected. The Tribunal asked whether they say anything about what is happening back in Sudan and he said it is still the same situation, there is cholera in the country and so his family have to eat clean and be careful. The economic situation is not good and prices are high but the government is doing the same thing and there is no freedom.

17. Concerning his activities in Australia before returning to Sudan in [2013], he said that a few days after he arrived in Australia in September 2013 there were protests in Sudan because the government suddenly lifted the prices of fuel and basic goods and people went to the streets and protested. The government replied with violence and police killed 170 people. He said at the time, he did not know anyone in Australia, other than the person he was staying with, and he was taken by that person to a [location] where the Sudanese society meets. There was a gathering of about [number] people to support the protesters and the families of the victims. The applicant took some photos on that day with his mobile. He said that he is not in the photos; he took the photos of the others.

18. The Tribunal asked the applicant whether he had undertaken any other political activity in Australia apart from that one attendance and he said no. He then said that from time to time he goes to the [same location] and people talk about what is happening in Sudan. He is not aware of whether there are spies for the government who attend.

1. The applicant told the Tribunal that he joined the NUP in 2002. He started to learn about history and ideology of the party. When there was an election he delivered flyers in his home town, while he was in high school. The Tribunal put to him that his statement said that he had joined the party secretly (otherwise he would be killed), so it did not understand why he would distribute flyers. In response he said they distributed the flyers to known people. The Tribunal put to him that this still did not appear to make sense; if he was caught with flyers in his possession, he would face harm. The applicant responded that it was not risky. When the Tribunal asked what other activities he had done in Sudan, he said the only other activity was to attend seminars where different political parties speak. He later said that he assisted to get votes in the 2007 election by going around and talking to people, encouraging people to vote for opposition parties. He also claimed that when he was in Sudan, he was involved in opposition party meetings once/ twice per month. He did not carry out any activities after he was arrested until he left for Australia in [2014].

2. At the end of the hearing, the Tribunal put to the applicant that it had concerns about his credibility and the credibility of his claims.

3. 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.  

4. A summary of the relevant law is provided at Annexure A.

5. 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

6. 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

7. 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.

8. 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.

9. 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).

10. 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.

11. 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.

12. In the circumstances, it appeared clear that, like his other family members in an identifiable opposition family, many members of whom had already been arrested and tortured, he too was becoming a target and of adverse interest to the authorities, which adverse interest had had serious consequences for family members. The Tribunal did not understand why he did not remain in Australia once he was here in September 2013, especially as he had a visa which allowed him to remain and work.   

13. When the Tribunal initially asked the applicant about his delay in leaving once he had his visa, and his decision to return to Sudan after spending three weeks in Australia, he initially told the Tribunal that he delayed for [a number of] months to arrive after his [temporary visa] was granted because he was not allowed a holiday from work earlier. The reason he went at that time was because he had a deadline to enter Australia by September 2013, and he did not want to lose the right to come to Australia. He agreed that he had stayed for 3 weeks even though his visa was for 18 months. He said he had planned to come to Australia to live here for good, but he returned [later in] 2013 to Sudan because he had lots of things to do back there before he can make his move to Australia. The Tribunal asked what he needed to do and he said that he wanted extra money to survive in Australia; he thought it may be hard to get a job if he only had an 18 month visa.  The Tribunal put to the applicant that his visa had already been granted [earlier in] 2013, [a number of months] before he first travelled to Australia; he had already had plenty of time to sort things out in Sudan before moving to Australia for good, and it did not appear that he needed to return to Sudan. The Tribunal considers that his decision to return to Sudan to make further arrangements before moving to Australia permanently, despite already having had [a number of] months to make such arrangements since he was first granted the visa, undermines his claimed political and family profile and that he was under increasing adverse attention, and indicates that he did not have any genuine fear of harm. 

14. The applicant then claimed that he had wanted to get [further training] with his work, which he got through [Company 2], at [a university] in [2013]; the course was for [number] days. He said that he had a commitment with [Company 2] to continue to work for a specific time after the course; for 2 years until April 2015.  The Tribunal noted he did not however work until April 2015 (and he agreed). The Tribunal considers that this explanation is indicative that the applicant was just interested in doing what was best for his career; and he did not have the family and political profile claimed.

15. The Tribunal’s concerns in this regard are heightened, because when he told the delegate that he returned from Australia to Sudan because he had agreed to continue working for his employer, he told the delegate that he was required to continue working for one year (until April 2014) so as not to default on the agreement and face a fine of the equivalent of [amount], which he did do[5]; this is inconsistent with the two year period he told the Tribunal.

    [5] see delegate's decision record provided to the Tribunal by the applicant.

16. The Tribunal has also taken into account the applicant’s statement, where he claimed that he had returned to Sudan in [2013] because he did not feel the threat to return until his arrival at the airport when he was subject to various mistreatment; the Tribunal does not find this persuasive given his evidence about his family and the increasing adverse attention he was receiving.

17. Later, the Tribunal again discussed this with the applicant, noting that, having regard to the claimed circumstances, there appeared to be no future for him in Sudan; he was subject to the adverse attention of the authorities who would probably cause him harm: so it did not understand why he would return to Sudan. First of all the applicant said he did not understand. The Tribunal repeated its concern and he responded that at the time, there was a direction from the party to stay inside Sudan and be a platform, a mobilising force.  The Tribunal does not find this to be persuasive, and also notes that he did not raise this as a reason to return to Sudan earlier, when given the opportunity to do so.

18. Further, the applicant then seemed to indicate that the authorities were not interested at that time in harming him; the Tribunal put to him that given his claim about the ruthlessness of the Sudanese authorities, and that they had already arrested, tortured and harmed many members of his family, he did not know what the authorities’ intentions were, and it did not make sense for him to take this risk by returning.

19. Further, the Tribunal noted his claim to have attended gatherings in Australia where people discussed protestors who had been brutally killed by the authorities; he was thus aware of the capability of the authorities to harm those perceived to be in opposition; in these circumstances especially it did not make sense for him to return to Sudan from Australia [weeks] later, especially as he had an 18 month visa. In response the applicant said that the killing happened to those who were protesting a few weeks before he went back and he was away from the country and it was not in his mind that they would know what he has done in [Australia] and that gave him a sense that if he goes back he will not be subjected to harm. The Tribunal put to him that this was difficult to accept given his claimed political and family background and that the authorities were already showing him adverse attention. He then said that because he was out of Sudan at the time of the protests he had a sense that he would be untouched. The Tribunal has considered these explanations but does not find them persuasive. It considers that the applicant’s return to Sudan in [2013], in his claimed circumstances (and having regard to the country conditions of the recent killings of people perceived to be in opposition to the government undermines the applicant’s credibility  and his claims that he or his family were or have been of adverse interest in Sudan. 

20. Secondly, the Tribunal considered that if the applicant’s [Relative A] had been arrested and  detained in [2015] and had been asked questions about the applicant, and had told the authorities that the applicant was a member of NUP, then further enquiries would have been made of the applicant’s family relating to the applicant’s whereabouts. In this regard, the Tribunal notes the applicant’s claim that he managed to leave Sudan by claiming he was doing a short trip to [Country 2] for his mother to obtain some medical assistance.  As he left Sudan [previously in] 2015, and authorities were clearly interested in him at around that time in relation to his NUP involvement ([a short time] later they were arresting [Relative A] and asking questions about the applicant). In the circumstances, the Tribunal considers it likely that the authorities would have made enquiries about the applicant’s whereabouts (especially as he did not return, but his mother was in Sudan). However, his evidence to the Tribunal about his regular conversations with his family (with no mention of any contact made by the authorities about the applicant or his whereabouts) appears inconsistent with the claimed interest in him.

21. When the Tribunal put this to the applicant, he said that he would assume that they would not go and ask for additional information about him from his family because it is well known to them that he went to either [Country 1] or Australia. Secondly, he said that he does not believe that his family would release information about him. The Tribunal was not persuaded by his responses. The Tribunal noted that it was claimed that the authorities believed he was going to [Country 2], and that he obtained an exit permit on the basis of travelling to [Country 2].  The applicant said that the purpose of the exit permit is for crosschecking, and the exit permit does not state the destination he is going to, so he did not draw adverse attention at the airport when travelling to Australia instead. The Tribunal finds this difficult to accept, however, even if it was the case, the Tribunal considers that the claimed heightened interest in the applicant (as evidenced by the questioning of [Relative A], who admitted that the applicant was NUP), would lead to the authorities questioning his family about where he went and where he is.

22. The Tribunal has also considered his second response, namely that the authorities did not approach his family to questions about him because his family would not have been willing to release information about him. The Tribunal does not find this persuasive, and does not accept this is an explanation as to why the authorities did not approach his family to seek information about his whereabouts, given they were interested in the applicant and his claimed involvement in the NUP, especially after his denials of any such involvement when he himself was detained, and the claim that they have a propensity to be interested in this family. The Tribunal considers that his response undermines his claim that he is or has been of any interest to the authorities, his credibility, and that he has a [relative] who is or has been of any interest to the authorities who was arrested and gave information about the applicant to them.

23. Thirdly, the Tribunal had a number of concerns about the applicant’s claim to have faced discrimination and harm [in] 2013, as set out below.

24. The Tribunal asked the applicant to talk about the problems he has faced previously in Sudan. He said that he has had that one problem at the airport – it was [2013] when he was detained. Before that he did not have any problems.

25. He then changed his evidence and said that he did have problems at work because of his political opinion; he experienced discrimination when he worked both at [Company 1] and at [Company 2]. The Tribunal asked how he experienced discrimination, and he said that according to his level of qualifications he was being under-employed. He had a [specified qualification] and he should have been [Occupation 1]; however, he held [Occupation 2, a lower position]. When the Tribunal asked why he was being discriminated against, he said it was based on his political opinion and political affiliation. The Tribunal asked who knew about his political opinion and political affiliation, and he said when the company employed him, they did checks on him, and so they knew his political affiliations and on top of that, the manager and director of company are members of the ruling party and they too knew his political affiliations and he was discriminated against because of that. The Tribunal had concerns that the applicant said he was being discriminated against on the basis of his actual political opinion and political affiliation (whereas his claims were that this was only ever suspected, because otherwise he would be killed).

26. Further, as put to the applicant, contrary to his evidence that he was [Occupation 2], in his protection visa application form, he described his job[6] as [Occupation 1]. In response he said this is an indication that he was being pushed down, that he was being deliberately put down to do the job as [Occupation 2].  The Tribunal does not find this explanation persuasive, noting that the applicant did not say that he was employed as [Occupation 1] but only given [Occupation 2] tasks; instead he had said he was not employed as [Occupation 1]. The Tribunal is not prepared to give the applicant the benefit of the doubt in this regard, noting that he made no mention of this claimed discrimination in his statement, and despite referring to problems of discrimination and dismissal in employment that close relatives and his father had. The Tribunal considers that, if the applicant also experienced discrimination in employment, he would have mentioned this in his statement. The Tribunal considers that the employment history contained in the applicant’s protection visa application form which states that the applicant worked as [Occupation 1] from May 2011 until June 2014 for [Company 1] and then [Company 2] undermines his claim to have suffered discrimination and to have worked as [Occupation 2]  instead of [Occupation 1].

    [6] Folio 28

27. Further, the Tribunal had another concern about the claim of discrimination suffered at work. The applicant told the Tribunal that the discrimination got worse when his company was taken over by [Company 2] in January 2013 [because] that gave the security forces access to having influence over him and they were keeping an eye on him. He received telephone calls from the security department which were abnormal, and others did not receive them. The first call was in [2013], and the second call was [later in] 2013. He was asked questions like what does he do after  he leaves work and does he belong to or associate with any groups;  he said that the type of questions  were not work related. As noted above, if the applicant was suffering extreme discrimination and it was getting worse, and he was subjected to telephone calls from security at his place of work, the Tribunal considers he would not have returned to Sudan after having managed to escape to Australia. Further, the Tribunal also notes that these fear-inducing telephone calls are not mentioned in his statement.

1. Further, as put to the applicant, his claims of discrimination due to his political opinion, political affiliation, and belonging to a particular prominent opposition family, appeared contrary to his claimed achievements and successes. The applicant was [well educated]; he had undertaken [extensive training] in 2007; he had completed his [degree] in 2008 from [university]; he was employed by [Company 2] from 2012 until June 2014 (according to his protection visa application form) or from January 2013 until June 2014 (according to his evidence), which [has members] of the ruling party working for it; he undertook [vocational training] in Khartoum in April 2012; he was able to attend [course] in [location] in February 2013. Itwas also put to the applicant that he appeared to be able to freely enter and leave the country whenever he wished (as noted in his travel to and from [Country 5], [Country 1], Australia, [Country 3], [Country 2]).

2. The Tribunal put to the applicant that his achievements and continuous travel could indicate that instead of belonging to a family targeted by the government, he could be a person connected to the government, or seen favourably by the government. The applicant disagreed with this and said he was being deprived from natural growth within his previous employer which was [details of company], and he was treated differently to other employees. He personally took the risks to be tutored elsewhere and to travel in and out of the country.

3. Having regard to the other concerns the Tribunal has in relation to the applicant’s credibility, it does not find the applicant’s explanation to be persuasive and considers that the applicant’s circumstances indicate more likely that neither he nor his family were known or suspected government opponents and nor were they considered in an adverse manner by the government.

4. Fourthly, the Tribunal was concerned about the applicant’s evidence concerning his encounter with the authorities at the airport when he returned to Sudan in [2013]. When the Tribunal asked him what had been said to him when he was detained, he was often evasive in his responses, not saying what had been said to him but for example saying that he had been taken to a building. Further, when he did answer the Tribunal’s questions, the Tribunal was concerned that his evidence was not credible (and inconsistent with other evidence he gave later). He told the Tribunal that after they discovered that he had been in Australia, they asked him the reason for the trip to Australia and he told them he was on holiday but they did not accept that claim. He said they looked at his passport (his Australian visa was not in this passport). The applicant said that the visa was in an email. The Tribunal suggested to the applicant that given their concerns and their interest in his travel and activities in Australia, they would have asked to see his visa; he said however that they were not interested in seeing his Australian visa. The Tribunal considered that difficult to accept.

5. Later, the applicant claimed that he did show the authorities (while he was detained) his Australian visa, which was on his phone. The Tribunal put to the applicant that if they were concerned about his Australian activities (he claimed they thought he was involved in anti-government activities and that the [money] he had on him was a gathering of money from Australia to support the families of the protest victims murdered by the authorities that he was going to distribute in Sudan) this visa would have shown that he was allowed to return to Australia (multiple entries), which would cause them even more concern if they were worried about his Australian activities. In response the applicant said that the authorities did not know that he had the right to re-enter Australia when they saw his visa because they do not know professional English. The Tribunal put to the applicant that, given that security/intelligence wanted to see his visa, once they had it, it would think that they would look at it (or have someone translate it if they could not understand it). The Tribunal considers that the applicant’s insistence that the authorities were not interested in being able to read or understand his Australian visa, during the whole [number] day period he was detained and investigated after his arrival at the airport, about his travel and activities in Australia, and that they did not discover that he was allowed to return to Australia, a place where they considered he engaged in anti-government activities, for a further 18 months, is highly unlikely.

6. Further, his claim that the authorities were not interested in knowing or understanding his Australian visa, at a time when he was detained and they were investigating what he had been doing in Australia, is inconsistent with a later claim that he made to the Tribunal, namely that he would face harm because the authorities would be interested in knowing and understanding his current visa situation in Australia and they would be aware of the type of visa he had (bridging visa) while he had a pending protection visa application.  

7. The Tribunal put this to him and he said at that time he had just been in Australia for a very short time but this time he has been here for longer so it will be different. The Tribunal does not find this persuasive reasoning for his changing evidence about whether or not the authorities would be interested in understanding his visa, especially given his claim to have been detained for [a number of] days because of his time in Australia. The Tribunal considers that the applicant is prepared to change his evidence to support his claims and that this undermines his credibility and his claims.

8. Further, the Tribunal was concerned that the applicant was prepared to lie to the authorities while he was in detention by telling them he was just on holiday in Australia, although he had given them access to his [visa] (which he claimed they could not read because it was in English).

9. The Tribunal put to the applicant that it did not make sense that he would have lied to the authorities and told them that his visa was just a holiday visa, when all they had to do was to get the visa translated. The applicant said that they did not translate it; the Tribunal put to him that he did not know that they were not going to translate the visa but that he had lied to them about the purpose of his travel to Australia (a holiday). The applicant said in response that their purpose was to examine if he had applied for refugee status or if he had received a protection visa and then they changed to a new topic. When the Tribunal noted he had not previously claimed that they had asked him about whether or not he had applied for refugee status or a protection visa, and asked whether he is just guessing their purpose, he said he was just guessing that they were interested in this. The Tribunal notes that if it was their purpose to examine whether or not he had applied for refugee status or received a protection visa, then it would make sense that they would have read and examined the visa he showed them. The Tribunal considers that this evidence, and his changing evidence, undermines his credibility.

10. Fifthly, the Tribunal was concerned with the applicant’s delay in leaving Sudan after he claimed he had been arrested and tortured upon his return in [2013]. The applicant told the Tribunal that he delayed in leaving Sudan again because he was being watched and if he exited he would have attracted attention from their security forces and he just wanted to show them that he will honestly obey the agreement that he signed. However, it appears clear from his evidence that he was able to use bribery and corruption when he wanted; he told the Tribunal that:

    ·     he was able to obtain his passport in [2014] through corruption - he had a friend who obtained a passport for him without going through the usual channels, and

    ·     His father used bribery at the airport to facilitate the applicant’s exit when he did leave.

11. Given the above, and that the applicant already has a history of leaving the country on multiple occasions; the Tribunal was concerned that he remained in Sudan after his release from detention in [2013] for a [number of] months. The Tribunal put to the applicant that he could have left Sudan earlier, noting he had a valid visa to go to Australia; it was difficult to understand why he remained for a [number of] months after his detention. He said that by [2014] they thought they could arrange for him to leave. The Tribunal is not persuaded by the applicant’s explanations for the [number] month delay in leaving for Australia after his claimed detention and torture in [2013].

12. In this regard, the Tribunal has also considered the applicant’s claim made to the delegate that he did not want to get a fine by not completing his one-year contract; the Tribunal does not find this a persuasive reason given the applicant had claimed his intention had been to leave Sudan for good, so he would not have had to pay the fine in any event.

13. The Tribunal considers that the applicant’s delay in leaving Sudan for [a number of] months after his claimed detention and torture undermines his credibility and claims.

14. Finally, the Tribunal was also concerned about the applicant’s delay in lodging his protection visa application. The Tribunal considers that if the applicant’s claims were true, by the time he arrived in Australia in [2014], he was obviously a person of significant interest to the Sudanese authorities, who probably faced harm if he returned to Sudan; however, he delayed in lodging his protection visa application until[some time later in] 2015. The Tribunal put to him its concern with his delay. In response, he claimed that he consulted many people about what he should do and he thought that if you apply for a protection visa that could take at least one year and other people suggested he should apply for a [different type of] visa which you may be able to get within 6 months. The Tribunal accepts that, after the applicant arrived in Australia, he was seeking a [permanent visa] which involved better IELTS scores. The Tribunal is not satisfied that this can explain his delay in claiming asylum. The Tribunal does not find his explanation to be persuasive given his claimed circumstances. The Tribunal considers his delay in applying for a protection visa application, only after he was unsuccessful in obtaining the IELTS scores he would need for a [permanent visa], undermines his claim that he faced a genuine fear of harm if he returned to Sudan.

15. On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.

    Other matters

16. While the Tribunal accepts that the applicant may have been nervous throughout the proceedings, it is not satisfied that this can explain the difficulties with his evidence.

    Corroborative evidence

17. The applicant produced at hearing an article which he said was about his [Relative A] who was arrested in 2015. It is an article from [source] dated [in] 2015 stating that, on [date], there were [arrests] against members of the Sudan Call forces. The article listed a number of members, and referred to a person, [named] from the UMMA party. The applicant claimed this is [Relative A]. The Tribunal noted that it had no evidence (other than the applicant’s assertion) that this person was his [relative], and also noted that there is country information indicating that documents could be fabricated[7]. In the circumstances, having regard to the Tribunal’s concerns with the applicant’s credibility, it is not prepared to place any weight upon this article.

    [7] DFAT Report, paragraph 5.40: …. DFAT understands that high levels of corruption have led to fraudulent identification documents being easy to obtain.

18. The applicant also claimed at hearing that he thought that one of the reasons why the delegate had refused his claims was because he did not have other family members in Australia who were refugees. The applicant said at the hearing that he had thought about this, and that, although he did not have family members in Australia who are refugees, he had [relatives] who had travelled to [Country 6] in 1989 (when the applicant was [age]) who had been granted refugee status. The Tribunal asked whether he considered the circumstances relevant to his claims and he did not respond, only saying that he just wanted to say this because of what the delegate had said. The Tribunal again asked whether he considered this to be relevant to his case and noted that if so, he had had plenty of time since the delegate’s decision (over 18 months ago) to produce evidence about this from his [relatives] in [Country 6]. The applicant did not explain why he did not do so. The applicant has been represented by his agent throughout the proceedings before the Department and the Tribunal. The Tribunal notes that the applicant lodged his application for review on 25 January 2016; on the same day he was advised by the Tribunal that he should provide supporting evidence to the Tribunal as soon as possible. Further, in the hearing invitation forwarded to him on 20 July 2017, the agent was requested to provide a written submission setting out all claims made and maintained by the applicant by 28 July 2017.  The submission was to be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims. A submission was provided on 28 July 2017, accompanied by the requested signed declaration from the applicant. The submission did not contain any claim in relation to other relatives. Further, the Tribunal notes that no further time was requested by the applicant to produce evidence in relation to any relatives in [Country 6], and nor has such information being produced to the Tribunal in the time since the hearing. In the circumstances, including the concerns about the applicant’s credibility, the Tribunal is not prepared to accept his assertion about [relatives] in [Country 6].

    Section 36(3) of the Act

19. The applicant produced to the Tribunal his current passport, which shows travel/ visas he has obtained since lodging his protection visa application. Passport stamps show that he travelled to [Country 7] in [2017]. He told the Tribunal that this was because his father was ill and he wanted to see him. He did not have a visa stamp in his passport; instead he had the visa electronically on his phone which he showed to the Tribunal. The Tribunal accepts that the applicant was granted a visa for [Country 7] valid from [February] 2017 until [April] 2017 and that he travelled there and back to visit his sick father. The Tribunal finds that this is not a current visa, and it is not satisfied that the applicant has the right to enter and reside either permanently or temporarily in [Country 7].

20. However, his current passport also holds a valid visa for [Country 4]. The label describes it as a [type of] visa and it was granted [in] July 2017, valid until [October] 2017. He told the Tribunal that he obtained this visa to allow him to travel to [Country 4] to see his [relative], who has [a medical condition] and will be having medical treatment in [Country 4].

21. The Tribunal discussed with the applicant the provisions of s36(3) of the Act, as well as s.36(4) – (6) of the Act. In response the applicant said that he applied to the Department of Immigration and he did not know this could affect his current protection visa application; he would not have done this if he knew.

22. The Tribunal suggested that the applicant discuss this issue with his agent in the break. After the break, the applicant acknowledged that he does have a visa to enter [Country 4], but he does have to accompany his [relative] and it is a [specific type of] visa (according to the medical report he produced, his [relative] is currently in [Country 4] in a hospital in [location]).  He is not sure whether he will be accepted in the country. In any event, [Country 4] is not a party to the Refugees Convention. He would only have three months to reside there, and then he would have to find somewhere else to go.  He doesn’t have a permit to support himself for such period of time and the language and culture would be a barrier to him. The Tribunal asked whether he was currently working and he said that he is a [occupation]. The Tribunal put to him that he appears fairly resourceful and it would seem that he would be able to organise himself there. In response he said he only has [a small amount] in his account.  The Tribunal  referred to country information noting that at the end of 2015, there were [a large number of] persons of concern in [Country 4], of whom [a large portion of which] were refugees and [a much smaller portion] asylum seekers. [Country 4] has, over the years, offered shelter to [refugees from various countries][8]. The Tribunal put to the applicant that it appears that he has temporary right to enter and reside in [Country 4], and it did not appear that he would be subjected to refoulement or serious or significant harm there. In response he said he was ignorant when he made this application to go to [Country 4].

    [8] [source deleted]

23. The agent submitted that Australia has an obligation to provide protection to protection visa applicants in the absence of effective protection in another country.  While acknowledging that the applicant has a current visa for [Country 4], it is not for a long time, [Country 4] is not a signatory to the Refugees Convention, and with respect to UNHCR in [Country 4], they would ask whether or not he has applied for protection in another country, and if they discover that he had applied for and failed to obtain protection in a country such as Australia, it would be difficult for him to obtain access to protection in [Country 4].

24. The applicant asked the Tribunal whether he should travel to [Country 4] and the tribunal said it could not provide advice to the applicant about what he should do.

25. The Tribunal has carefully considered the evidence before it. Although it would appear that the applicant may have a right to enter and reside in [Country 4] by virtue of the visa granted to him, and that this is a temporary right, valid until [October] 2017, the Tribunal accepts the applicant’s claim that the visa was granted to allow him to accompany a third person to obtain medical treatment in [Country 4]. On the evidence before it, the Tribunal is not able to be satisfied that the conditions attached to the visa, and the administrative arrangements for entry in [Country 4], provide the applicant with a presently existing ‘liberty, permission or privilege lawfully given’[9], as it appears that the visa allows the applicant to enter [Country 4] for the purposes of accompanying a third person for medical treatment, but does not appear to confer upon him a right to reside in [Country 4].  

    [9] MIMAC v SZRHU (2013) 215 FCR 35. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed the construction by Allsop J in V856/00A v MIMA (2001) 114 FCR 408. MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].

    Credibility summary

26. 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

27. When the Tribunal put to the applicant at hearing that it may be that he may not face a real chance of serious harm or a real risk of significant harm for any reason at all, he responded by saying that it is well known the government is torturing, killing and arresting and has inhumane practices towards all the politicians who are affiliated with opposition and he expects to be arrested at the airport and to face torture and mistreatment from the time of his arrival.  The Tribunal put to the applicant that it was concerned that his claims may not be true.  .

1. On the basis of the adverse credibility finding, the Tribunal does not accept that he or his family were ever members or [senior members] of the NUP nor that he or his family were ever imputed with an anti-government opinion or arrested or tortured or lost employment or otherwise suffered harm or discrimination as claimed. The Tribunal does not accept that the applicant has or has had an anti-government opinion. The Tribunal finds that the applicant received university level education, and most recently held a job with [Company 2]. The Tribunal finds that he is an [Occupation 1] and he was employed as [Occupation 1]. The Tribunal finds that he was provided with opportunities to improve his education and training while working in his jobs, including whilst at [Company 2], and that he travelled in and out of the country freely because he had no fear of harm, because he was not of adverse interest to the authorities at any stage, and because he is not from a known or suspected family as claimed. The Tribunal does not accept that he has suffered from discrimination in his work or at any other time.

2. The Tribunal finds that he took [a number of] months after his Australian visa was granted in January 2013 to travel to Australia because he had no fear of harm, and he was not of adverse interest to the authorities.

3. While the Tribunal is prepared to accept that the applicant attended a gathering when he was in Australia in September 2013, it notes his claim that he was taken there by his friend. The Tribunal is not prepared to accept on the evidence before it that the applicant attended an anti-government gathering nor that there was any reason for the authorities to be aware that he was at a gathering (nor that the applicant was identified from [media reports] or through any informant). 

4. The Tribunal does not accept that the applicant was detained and harmed or tortured when he returned to Sudan in [2013]. It does not accept that he was of any adverse interest to the authorities, nor that he was monitored or discriminated against. The Tribunal considers that the applicant took a further [number of] months to travel from Sudan back to Australia again because he did not have any fear of harm, and it was his choice to continue to work in his job in Sudan, not for any need, but because he was not in any hurry to go to Australia.

5. The Tribunal is prepared to accept that the applicant, while in Australia, has met with other Sudanese. On the evidence before it, the Tribunal does not accept that the applicant has undertaken any activities in Australia which would lead him to face a real chance of serious harm or real risk of significant harm, and in particular it does not accept that he faces a real chance or real risk of being imputed with an anti-government political opinion because he met up with Sudanese people in Australia.

6. The applicant did not provide any information as to Sudan’s perception of Australia. On the evidence before it, the Tribunal does not accept the assertion that Australia is considered a country perceived to be opposed to the Sudanese regime (which leads to the applicant facing a real chance or a real risk of serious or significant harm because he spent time here).

7. The Tribunal does not accept that the applicant has a [Relative A] who has been detained or arrested or harmed or who was asked questions about the applicant.

8. The Tribunal does not accept any claims that flow from these claims.

9. The Tribunal discussed with the applicant the DFAT report to which it is required to have regard. The Tribunal noted that the applicant had obtained an exit visa to leave Sudan; on the evidence before the Tribunal it is not prepared to accept that he obtained an exit visa only giving him permission to travel to [Country 2]. The Tribunal considers it more likely, and finds, that he obtained an exit visa to Australia, and that when he left Sudan he declared that he was going to Australia (holding his [visa]). It does not accept that he needed any assistance to leave the country or with any travel documents. As he had an exit visa, as put to the applicant, the DFAT Report indicates 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.

10. 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, and is not satisfied that when he returns to Sudan from Australia, he faces a real chance of serious harm or a real risk of significant harm. The Tribunal considers that the applicant will not show to the Sudanese authorities a letter he showed to the Tribunal indicating that he has a bridging visa because he had applied for a protection visa in Australia. While the Tribunal acknowledges that he has applied for asylum in Australia, he has also been working in Australia, and the Tribunal considers that he will tell the authorities that he has been working in Australia.

11. The Tribunal also noted 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.

12. The Tribunal does not accept that the applicant is a vocal opponent of the government, nor does it accept that he or his family members are or have been or face a chance or risk of being so imputed. The Tribunal is not satisfied 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, his qualification as an [Occupation 1], and his work experience in both Sudan and Australia.  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 previously done. The Tribunal is not satisfied on the evidence before it that the prices in Sudan mean that the applicant faces a real chance of serious harm or a real risk of significant harm. The Tribunal does not accept that the applicant faces a real chance or a real risk of losing his freedom or a lack of freedom, or of torture or of hardship or of discrimination.

13. General violence: the Tribunal has taken into account the country information provided in the delegate’s decision record, as well as referred to by the agent in the submissions of 28 July 2017. Much of the concerns referred to the authorities’ mistreatment and arrest of protesters, civil society activists, members of the political opposition and journalists. 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. Reference is made to DFAT’s Smart Traveller website noting that, while the last major civil unrest occurred in 2013, further unrest could occur. 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 insecurity.

14. Cholera:  during the hearing, the applicant indicated that he had heard that there is cholera affecting the country. He did not provide any more specific information about cholera in the country, nor did he provide any country information indicating the spread or risk of cholera in his home area or elsewhere in Sudan.  On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of cholera in Sudan.

15. The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of political opinion, political affiliation, family membership, or any activities in Sudan or overseas (imputed or otherwise) or conditions in the country. 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 (or any of his family) may be of adverse interest to the authorities, or anyone, in the future.

16. 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

17. 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).

18. The Tribunal does not accept that the applicant (or his family members) have experienced any of the past harm claimed, nor that they are or have been imputed to be in opposition to the government. 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.

19. 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 significant time in Australia, having previously visited Australia, because of his family, for any political or imputed political reasons, for employment or general conditions in Sudan.

20. 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).

    CONCLUSION

21. 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).

22. 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).

23. 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

24. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Christine Cody
    Member

    
    

    ANNEXURE A

    CRITERIA FOR A PROTECTION VISA

25. 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.

26. 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.

27. 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).

28. 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.

29. 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

30. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    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 family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

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

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    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.

    …