1617958 (Refugee)

1617958 (Refugee) [2020] AATA 1291 (8 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617958
COUNTRY OF REFERENCE:                   Mali
MEMBER:David McCulloch
DATE:8 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 January 2020 at 10:12am
CATCHWORDS
REFUGEE – protection visa – Mali – race – Fulani ethnicity – religion – Catholic – imputed political opinion – opposition to rebel groups – particular social group – family of army officer – resident of Northern Mali – fear of killing – attacks by Azawad rebels – significant security problems in Northern Mali – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Mali, applied for the visa on 24 July 2015. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 December 2019. The Tribunal was assisted with the use of an interpreter in the French language. The applicant was represented by his registered migration agent, who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves 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 in the attachment to this decision.
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 in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant arrived in Australia [in] June 2015 on [a temporary] visa. The applicant applied for a protection visa on 24 July 2015. Prior to coming to Australia, the applicant lived in [Country 1] from [February] 2012 to [June] 2015, and was refused permanent refugee protection in [Country 1]. The applicant also passed through [Country 2] from [a date in] January 2012 to [a date in] February 2012, and [Country 3] from [that date] until [later in] February 2012.
The following information is apparent from the protection visa application forms. The applicant was born [date] in [Town 1], Mali. The applicant is a Catholic of Fula ethnicity, who speaks, reads, and writes Bambara, French, and English. The applicant is a widower, who was married from [1988] until [a date in] January 2012. The applicant lists his wife, [and specified family members] as all deceased. The applicant lists [two children] who live in [Country 4]. The applicant states that he was in contact with his children by phone through a friend in [Country 4], but he has not been able to contact the friend. The applicant stated that he departed Mali illegally on foot to escape the fighting. The applicant applied for refugee status in [Country 1] [in] February 2012, but was rejected in [February] 2014. However, the applicant states that he had temporary residence in [Country 1], expiring in March 2016.
The applicant lived in [Village 1], [Town 1], Mali from birth until January 2012. The applicant was in [a named] Police Station, [in Country 3], during February 2012. The applicant states he was in a refugee camp/police detention in [a town in Country 1] from February 2012 to February 2014. The applicant then lived in [another town in Country 1], from February 2014 until June 2015.
The applicant completed primary school in [Village 1], [Town 1] from [specified year] to [year]. The applicant completed [specified level] at the [named school] in Bamako, Mali in [year]. The applicant worked as [an occupation 1] in Mali from January 1999 to January 2012. The applicant worked at a [business] in [Country 1] from 2013 to June 2015.
In his application forms, the applicant claims that he left Mali because he is being hunted by rebels who killed his family. The applicant fears that he will be killed by the rebels if he returns, as they killed the applicant’s family since his father had been an officer in the Mali army, and provided intelligence to the government. The applicant states he was briefly captured by the rebels and shot three times when he escaped. The applicant states that he did not seek protection in Mali nor relocate because he would have had to travel through rebel-held territory, which would have been dangerous. The applicant claims that the [Country 1] immigration officials threatened to deport the applicant to Mali if he did not leave [Country 1] before [a date in] March 2016. The applicant states that the Mali government is too weak to protect him, and there are no safe areas in Mali. The applicant claims that he cannot return to [Country 1] because they will deport him to Mali.
The applicant also provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
Background
My name is [name]. I am a Malian man of Fula ethnicity. I was born on [date] in a small town called [Village 1]. [Village 1] is very close to the city of [Town 1] which is the capital of the [region] .
After I finished school, I attended university and studied [an occupation 1]. Until 2012 I was working in the [that] industry and living with my [specified family members] on a farm that was owned by my father. The farm was located in [Village 1], close to my workplace and the city.
Growing up in [Town 1], I was always exposed to the conflicts occurring in the region. For as long as I can remember there has been political tension and armed conflict between members of the Azawad rebels and the Malian government. They sought to establish an independent Azawad state via a governmental coup. Although they had always had a presence in Mali, their militant actions became much more frequent over the last 10 years.
Following the conflict [in] January 2012 and the death of most of my family, I fled from Mali. At that time I thought that my two children, [had] also been killed, but subsequently, upon my arrival in Australia, I discovered that they had fled to [Country 4] and are still alive. I am now in contact with them and I send money to someone who is taking care of them.
My father's position in the Malian army
My father was a [rank] in the Malian army. He was well-known in the region as an important military figure by both government forces and dissident militants. As a result of my father's job and my conversations with him as I grew up, I was well aware of the volatile and unstable environment in which me and my family lived. Throughout my life I was exposed to a lot of my father's work. For example, I was introduced to many important government and military figures who were directly involved in combatting the Azawad rebels.
My father's position in the military involved gathering intelligence about rebel groups who were seeking to challenge the government. His knowledge and expertise was considered to be of such value that even though he had officially retired about [number] years earlier, he continued to provide training and consultant services to the military. This made my father and our entire family a target for the rebel groups. Over the years my father received numerous death threats from these groups. I recall the government frequently warning my father to ‘law low’. However he continued to provide his assistance. As well as the military knowledge my father had, he also possessed plans and [information about] Northern Mali that are considered to be very valuable and are highly sought after by rebel groups. I am fearful that rebel groups would target me because of [this information].
Although I was personally not interested in taking over my father's work, there is a perception that I share his political perspective and an expectation that I would take over his work. My father was always training me and encouraging me to join. Even though I never enlisted in the army, the rebels know who my father was and they think I am like him. They think he taught me everything he knew. Because of my father's status I am in great danger in Mali and in other parts of Africa.
Reasons for leaving Mali
As the militia became aware of the value of my father's skill and knowledge to the Malian army, they also became aware of my status as his son. Being the son of a prominent military figure came to hold tragic consequences for me and my family.
Prior to his death in 2012 my father had received numerous death threats from rebel groups.
On [a date in] January 2012 I was at work on my mid-morning break when my coworkers and I heard fighting break out. We heard the sound of gunfire and people screaming. I immediately left my work place and ran home to my father's farm. My family's wellbeing was my only concern at that time. I was afraid because if it was a rebel attack, I knew my father and my family could be a target.
When I arrived at the farm I could see that the windows were smashed and doors broken open. I entered the house and found my [specified family members] lying on the floor. They were all dead and had bullet wounds all over their bodies. I found my father in another room. He had been shot and was lying on the ground but was still alive. At this time my children, [named], emerged from the bathroom. I believe they were hiding while the attack on my family took place and only emerged after hearing my voice. My priority at this point was the safety of my children. I planned to take them to safety and then return to help my father. The only place that I believed would be safe was the military encampment just outside of [Town 1], so I grabbed my children and fled the farm with them.
After taking my children to the encampment I made my way back to the farm. Sadly, it was too late by the time I returned, to help my father. My father was already dead. There was nothing more I could do for him or the rest of my family so my mind returned to the safety of my children. I grabbed whatever money I could and began running back to the encampment. When I returned to the encampment, I could see that it had been attacked. I believed that my children must be dead. As I made my way through the city I was stopped by a group of armed rebels. At first I wondered why they did not just shoot me but then I heard them refer to my father. I believe they knew I was his son. One of the rebels was detaining me by holding onto my arm. However as he attempted to use his radio I was able to break free from his grip and began to run away. As I was running away he shot at me several times. He hit me in my upper right arm, left forearm and left hip. He caught up to me and struck me on the mouth with his rifle. We struggled. I managed to overpower him, remove the magazine from the rifle and run away.
I was scared for my safety and shocked and distressed by all that happened. I knew I had to get as far away as I could because I would not be safe in Mali. I believed that the only way I would be safe is by escaping any region where the rebel group may have a presence. This meant leaving [the region].
Reasons why it is unsafe to return to Mali
I am extremely fearful of returning to Mali. The rebel groups in Mali know that I am my father’s son. They think I am like my father and that I have the documents or access to the documents that they want. I am from [Town 1], which is the centre of the conflict. I would certainly be seriously harmed if I returned there. There are no places in Mali that are safe from the rebels. The rebel groups are everywhere in the country. They can easily pay someone to find out where I am. Although French and Malian military forces have sought to re-establish their presence in the region, the rebellion has not been quelled. I cannot return to Mali. The rebel groups have a presence throughout Mali.
I am unable to rely on the state to protect me. The Malian government does not have effective control of the region and is unable provide protection.
[Country 2] and [Country 3]
After fleeing from Mali I passed through [Country 2] and [Country 3]. I did not seek asylum in [Country 2] because it is too close to Mali and the rebel groups have a presence there. At the time I passed through there, I was numb. I felt dazed and traumatised from the tragic events that passed. My instincts propelled me further away. I asked someone where I could get the bus to [Country 3] and used some of the money I had taken from the farm to purchase a ticket. From a village in [Country 2] I got a bus to [a named town] in [Country 3] which took a couple of days
As we were entering [that town] the bus was stopped. I was drive to a large prison camp. They did not tell me why I was being detained. I found another detainee who spoke French and he told me we were in [City 1 in Country 3]. The prison camp was run by the army and we were treated like animals. Once a day the guards would throw food at the starving detainees. I saw many people beaten and executed by the guards. I had no idea if I would ever be released or if they would kill me. I feared for my life daily. After 27 days, I saw an opportunity to flee and I managed to escape through a window.
The conditions in the [prison] camp were horrific. I was not given any information about why I was there or when I would be released. I escaped from the prison camp and from [Country 3] because I feared for my life. I ran as fast as I could to get away from the camp. All I could think was that I had to get out of [City 1 in Country 3]. and out of Africa or I would be killed. I cannot return to [Country 3] because I face a real risk of being returned to the prison camp where I would be subjected to cruel, inhumane and degrading treatment, or worse, that I would be killed by the guards.
Inability to resettle in [Country 1]
Knowing that I was not safe in [Country 3], I eventually made my way to [a town] where I got a boat to [Country 1]. The boat was intercepted and we were detained in [a town in Country 1]. The Police told us that we had arrived in [Country 1] illegally and were not welcome. I was placed in prison in a single cell, in solitary confinement. The door was locked. I remained in that cell in detention for around two years with almost no human contact and no means to clean myself. I have great difficulty discussing my detention in [Country 1] because it was an extremely traumatic and distressing experience for me. Every day I could hear the screams and cries of detainees around me.
In that time I made two applications for protection. Both applications were ultimately rejected. I was never given a proper interview or opportunity to explain my story. I had documents passed to me through the window of the cell and was asked to sign them. The documents were in English. I did not understand them. I would try to wait for a particular guard who spoke a little bit of French and ask him what to do. One day the Police came to the door of my cell and told me I could leave. They took me to the road and said that I could go. After leaving detention I moved to [another town] where I lived and worked for three months.
I have a temporary right to enter [Country 1] which expires [in] March 2016. I know that if I return to [Country 1], the [Country 1] Immigration will deport me back to Mali, if I do not leave of my own accord before [the date in] March 2016. My life is in danger in [Country 1]. I fear death, detention and being subjected to cruel and inhumane treatment and deprivation of my human rights.
I declare that the above information is true and accurate to the best of my knowledge.
The Department file contains the following documents:
a.A case note in the Department’s electronic database, Integrated Client Services Environment (ICSE), regarding the applicant’s [temporary] visa application in which he claimed to have worked for the same employer in [Country 1] for 7 years;
b.Border Security check, where the applicant stated that he had lived in [Country 1] for over 12 years, dated 12 June 2015;
c.Copies of the applicant’s [Country 1] [occupation permission] card issued [in] November 2010, [a named] Union membership card, Temporary Humanitarian Protection Card, and the applicant’s passport;
d.ICSE case note concerning a conversation about the applicant’s failure to attend his protection visa interview, and the delegate sending him adverse information for comment, dated 21 July 2016;
e.A letter to the applicant from the Department inviting him to comment on adverse information dated 21 July 2016;
f.Undated ICSE case note regarding a conversation with the applicant about the adverse information letter;
g.ICSE case note stating that the delegate checked the Australia Post registered post website and confirmed that neither the hearing invitation nor natural justice letter were received by the applicant, so the delegate resent the natural justice letter by email, dated 7 July 2016;
h.A second copy of the letter to the applicant inviting him to comment on adverse information, dated 7 July 2016;
i.Email chain between the applicant and the delegate responding to some parts of the adverse information, and informing the delegate that the applicant is seeking assistance, with various dates;
j.An invitation to an interview, dated 13 September 2016;
k.A Department Q&A report regarding the right to re-enter [Country 1] for holders of temporary humanitarian protection visas, dated 23 September 2016; and
l.An email chain and accompanying referral letters between the delegate and [Welfare Agency 1].

An additional statement by the applicant, as well as submissions and reports in relation to the applicant from [Welfare Agency 1] were provided to the Tribunal on 28 November 2019 in advance of the hearing.
The additional Statutory Declaration of the applicant dated 29 November 2019 provides further detail and elaboration of the applicant’s factual claims as to what has occurred to him in Mali and elsewhere.
The submission provided on behalf of the applicant includes the following. The submission refers to mental health problems suffered by the applicant and these not being sufficiently taken into account by the delegate. The submission is made that the applicant is a psychologically vulnerable applicant. Submissions are made in relation to findings of fact by the delegate, in which it is submitted that the delegate made errors. This includes claims in relation to the attack on [a date in] January 2012, the applicant’s escape from the rebels from Mali to [Country 2], the applicant’s time in [Country 1], and detention conditions in [Country 1]. Submissions are made that the applicant faces persecution for his perceived political opinion, including in relation to the profile of the applicant’s father in the Malian army. Independent information is provided concerning internal disputes within the military in Mali and broader conflict in Mali spreading from the northern and central parts of Mali to the south. It is submitted on behalf of the applicant that the security situation has seriously deteriorated throughout the whole of Mali. Submissions are made that the applicant faces persecution on the basis of his Fulani ethnicity. Independent information is cited, particularly in relation to significant ethnic conflict in the central parts of Mali significantly affecting those of Fulani ethnicity. Submissions are made that the applicant faces harm on the basis of his Catholic religion. Independent information is referred to. Submissions are made in relation to relocation and that there is nowhere that the applicant could relocate to in Mali where he would be safe. July 2019 comments are referred to by the UNHCR headed ‘UNHCR positions on returns to Mali – update II’. It states that the UNHCR does not consider it appropriate for States to deny international protection to individuals originating from at risk areas on the basis of internal flight or relocation alternatives unless that person has close and strong links to the proposed area of internal flight or relocation. Submissions are made in relation to inadequate mental health services in Mali.
A submission on behalf of the applicant dated 17 December 2019 was also provided following the Tribunal hearing. The submission deals with various credibility issues that were raised with the applicant and apparent from his evidence in the hearing. These include: discrepancies in the applicant’s initial protection visa application, such as the initial claim that the applicant came from a separate town called [Village 1], as opposed to the applicant’s later claim that he came from the town of [Town 1]; issues relating to the applicant’s education; the provision by the applicant of other towns within his claimed region; the claim that the applicant had lived on a farm, which was subsequently retracted; and the [occupation permission] Document submitted by the applicant which, on its face, contradicts the applicant’s claims as to the period that he was in [Country 1]. The submission also refers to July 2019 UNHCR guidelines as to the position on returns to Mali which indicates that due to the deteriorating security and humanitarian situation individuals from areas including the [Town 1] region should not be forcibly returned to Mali.
Independent information
Security situation in Mali – Tuareg/Azawad separatists and other militant groups
The UK Home Office published a report on the security situation in Northern Mali in 2016, which stated:[1]
Origins of the conflict
Since Mali's independence in 1960, a number of (mainly Tuareg-led) uprisings have been launched in the north of the country; in the 1960s, the 1990s, and again in 2006. Each of these ended in short term ceasefire agreements with the government.[2]
In January 2012, several insurgent groups began fighting a campaign against the Malian government for independence or greater autonomy for northern Mali, an area referred to by the separatists as ‘Azawad’. Azawad roughly comprises the regions/provinces of Tombouctou, Kidal, Gao and part of Mopti, including the cities of Kidal, Gao and Timbuktu.[3] Azawad is largely semi-desert and desert, and encompasses well over half of Mali’s total land area (see Map), but only about 12% of the country’s population (based on the 2009 Census).[4] [5]
By April 2012 the National Movement for the Liberation of Azawad (known by its French acronym MNLA), a Tuareg-led umbrella organisation which incorporated various disparate militia, had effectively taken control of northern Mali and unilaterally proclaimed the independence of the ‘Islamic Republic of Azawad’. The MNLA, which is nominally secular, was initially backed by the Islamist group Ansar al-Dine. After the Malian army was driven from the north, Ansar al-Dine and other Islamist groups, including al-Qaeda in the Islamic Maghreb (AQIM) and MUJAO (Movement for Unity and Jihad in West Africa), began imposing strict Sharia law. Fighting broke out between the MNLA and these groups and, by July 2012, the MNLA had lost control of most of northern Mali to the Islamists.[6] [7]
The government of Mali requested foreign military assistance to re-take the north. In January 2013 the French military commenced operations against the Islamist militia. Forces from African Union states were also deployed. By 8 February 2013, the Islamist-held territory had been re-taken by the Malian military with the support of the international forces. A peace agreement between the government and MNLA was signed on 18 June 2013, but on 26 September 2013 the MNLA withdrew from the agreement, claiming that the government had not respected its commitments to the truce.[8]
Pro-government militia groups, primarily ‘Platform’ (or ‘Platforme’), have also been engaged in fighting against the separatists in northern Mali.[9]
[1] UK Home Office, Country Information and Guidance – Mali: Security and humanitarian situation in Northern Mali, April 2016, pp 8 – 9, paras [4.1.1] – [4.1.5], (accessed 8 July 2019).
[2] Immigration and Refugee Board of Canada: [MLI104822.E] ‘Mali: Information on the treatment of members of the Tuareg ethnic group by authorities and society (2013-March 2014)’, 7 April 2014 date accessed 27 September 2015.
[3] Breaking News: Mali unrest, undated (2015) Wikipedia (sourced to 2009 Census): ‘Regions of Mali’, modified 21 June 2015 the 2009 Census data is in French at
[5] Norwegian Peacebuilding Resource Centre: Francesco Strazzari: ’Azawad and the rights of passage: the role of illicit trade in the logic of armed group formation in northern Mali’, January 2015 date accessed 27 September 2015.
[6] Breaking News: Mali unrest, undated (2015) date accessed 27 September 2015.
[7] Al Jazeera: ‘Making sense of Mali's armed groups’, 17 January 2013 accessed 27 September 2015.
[8] Breaking News: Mali unrest, undated (2015) Reuters: ‘Mali separatists reject U.N. exclusion zone around northern towns’, 19 August 2015 accessed 27 September 2015.
The US State Department’s Country Report on Human Rights Practices - Mali 2018 provides the following information in regards to ongoing violence:[10]
Unlike in previous years the government, the Platform of Northern Militias (Platform), and the Coordination of Movements of Azawad (CMA) respected the ceasefire agreed to in the 2015 Algiers Accord for Peace and Reconciliation. Two terrorist organizations: al-Qaida coalition Jama’at Nasr al-Islam wa Muslimin (Support to Islam and Muslims, JNIM), and the Islamic State in the Greater Sahara (ISGS) are not parties to the peace process. JNIM carried out attacks on security forces, armed groups, UN peacekeepers, international forces, humanitarian actors, and civilian targets throughout northern and central Mali. ISGS carried out attacks on civilians, security forces, and CMA and Platform elements along and near Mali’s border with Niger and Burkina Faso.
[10] US State Department, Country Reports on Human Rights Practices 2018 – Mali¸ 13 March 2019, (accessed 8 July 2019).
A Q&A Report of the Department of Home Affairs on Mali dated 9 April 2018 provides the following information on the security situation, relocation, and the availability of state protection in Mali:[11]
Insecurity persists in the north and central parts of the country. Sporadic attacks have occurred in Bamako in recent years, principally targeting the authorities. Unemployment rates are high, though a large informal sector absorbs a proportion of surplus labor.
Security situation – Recent reports
On 29 March 2018, the UN Security Council (UNSC) published a ‘Report of the Secretary-General on the situation in Mali’. The report’s purpose is to provide a quarterly update on the mandated work of the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)’ in relation to implementing the Agreement on Peace and Reconciliation in Mali.[12] The report notes that the security situation had worsened during its reporting period, specifically in the north and central regions of the country
…
According to the UNSC report, 16 per cent of 133 cases of human rights violations documented during the report’s reporting period occurred in Bamako District (the rest occurred in the north and central regions).[13] The report does not clarify the nature of the Bamako human rights violations.
…
A February 2018 article published in ‘The Economist’ indicates that insecurity has spread from the north of the country to the centre. No mention is made of insecurity in the south. The article also notes that ‘fully 90% of Mali’s population is in the south, as is most of the economy, which is dominated by goldmining’.[14]
Fulani and recent UNHRC protection guidelines
[11] DHA Q&A Report, Mali: CI1803221133562-7 – Bamako – Security Situation – Collectif pour la Défense de la République (CDR) – Social Media – State protection – Relocation, 9 April 2018, pp. 2 – 5.
[12] ‘Report of the Secretary-General on the Situation in Mali’, United Nations Security Council, 29 March 2018, CIS7B83941736, para.1, p.1.
[13] ‘Report of the Secretary-General on the Situation in Mali’, United Nations Security Council, 29 March 2018, CIS7B83941736, para.47, p.9.
[14] ‘Quicksand in the Sahel: Why UN forces are finding it hard to bring peace to Mali’, The Economist, 3 February 2018, CXBB8A1DA22615.
The Tribunal made a request of the Country of Origin Information Services Section of the Department of Home Affairs to undertake research into discrimination or mistreatment suffered by the Fulani ethnic group, as a class, in Mali. The response, which follows, also makes reference to the more general deteriorating security situation in Mali and recent UNHCR protection guidelines in light of this (underlying of key information added):
Sources indicate that the Fulani ethnic group have been involved in multiple, escalating conflicts in recent years. While sources typically frame the intensifying conflict as communal violence – between the pastoralist Fulani and neighbouring Dogon (or dozon) groups – some sources frame the conflict as Dogon targeting of the Fulani, either in terms of a contest over local resources, or in response to perceptions of the Fulani’s involvement with Islamist groups. Regardless, death rates from the violence, in which both groups have at times acted as perpetrators, have disproportionately impacted on the Fulani, with nearly 500 killed in communal violence since January 2018.
On a smaller scale, sources also indicate that Malian security forces have on occasion targeted Fulani, although the death rate from these attacks is far smaller than that resulting from communal violence. In response to the rising levels of violence throughout Mali, including (though also beyond) that involving the Fulani, the UNHCR in July 2019 updated their protection guidelines for the country, urging states to provide protection to people fleeing Mali and to refrain from forcibly returning people to conflict-ridden areas. Updated information from July 2019 from credible sources such as the International Crisis Group and the Armed Conflict Location and Event Data (ACLED) project indicates that deadly communal conflict involving the Fulani continues, albeit in the midst of efforts to promote peace and mediation between warring parties.
The primary source of information and data on the situation in Mali, including on the communal violence involving the Fulani, derives from the regular (quarterly) reporting of the UN mission in Mali (MINUSMA). Extracts from a series of recent MINUSMA reports published under the auspices of the UN Security Council follow below, which provide context to and data from the communal conflict. Information from the UNHCR’s July 2019 updated protection guidelines on Mali is also included.
The most recent situation update released by MINUSMA was published on 31 May 2019. It highlights the fact that most of the communal violence between the Fulani and Dogon groups has occurred in central Mali, and provides information about a March 2019 massacre in which at least 157 Fulani were killed. As noted in the report, the massacre drew a sharp response from the President. As later sources will indicate, despite this response, communal violence continues:
18. In the Centre, violence across community lines escalated, and clashes between the Dogon and Fulani communities, exacerbated by the presence of extremist groups, resulted in the death of a large number of civilians, including at least 157 who were killed during the massacre of 23 March in Ogossagou, Mopti region.[15]
[15] ‘Situation in Mali: Report of the Secretary-General’, UN Security Council, 31 May 2019, p.4, 20190820112931.
[…]
27. The central region of Mali, where an estimated 30 per cent of the country’s 20 million population lives, continued to record the highest number of attacks against civilians and civilian casualties, owing to a further increase in intercommunal clashes and violence, as well as attacks by terrorist groups and self-defence militias. Violence across community lines occurred primarily in Koro and Bankass districts, Mopti region, between the Dogon and Fulani communities, and in Djenne district, Mopti region, between Fulani and Bambara communities.[16]
[16] ‘Situation in Mali: Report of the Secretary-General’, UN Security Council, 31 May 2019, p.4, 20190820112931.
[…]
30. The raid of 23 March on Ogossagou village, Bankass district, Mopti region, was the deadliest incident since 2012. A group of armed men, allegedly mainly composed of traditional hunters known as Dozos, killed at least 157 members of the Fulani community, including 46 children, injured 65 other civilians and burned 95 per cent of the village. MINUSMA, in coordination with the national armed forces to stabilize the security situation, immediately responded, resulting in the launch of Operation Oryx (see para. 33). On 24 March, President Keita convened an extraordinary session of the Council of Ministers, which issued a decree announcing the dismissal of the army Chief of Staff and the dissolution of the Dozo self-defence group Dan Na Ambassagou, presumed to be connected to the attack. The group refused to disband, citing the ongoing insecurity, while others called for the dissolution of all militia and self-defence groups in the region. The prosecutor of Mopti opened an investigation into the incident, which is being carried out with MINUSMA support.[17]
[17] ‘Situation in Mali: Report of the Secretary-General’, UN Security Council, 31 May 2019, p.5, 20190820112931.
On 6 May 2019, the UN Security Council released a separate report, providing a slightly higher death rate for the March massacre, and describing the levels of intercommunal violence as ‘unprecedented’:
6. In Mali, French forces, in cooperation with Malian defence and security forces, reportedly eliminated a number of jihadist figures, including the leader of the so-called “Emirate of Timbuktu”, Yahia Abou el Hammam, on 21 February. Notwithstanding these achievements, the security situation remains precarious, and attacks on Malian defence and security forces, as well as international forces, continued unabated. In central Mali, intercommunal violence reached unprecedented levels and has been exacerbated by the presence of armed extremist groups and the proliferation of small arms and light weapons. More than 160 people of Fulani origin, mostly civilians, were killed during an attack on Ogossogou village in the Mopti region on 23 March.[18]
[18] ‘Joint Force of the Group of Five for the Sahel: report of the Secretary-General’, United Nations Security Council, 6 May 2019, p.2, 20190820113442.
In March 2019, MINUSMA’s quarterly situation update described the ‘targeting’ of civilians in central Mali, recording incident, death and abduction rates, and describing a particular massacre occurring in January 2019 in which 37 Fulani were killed. The report also highlight’s MINUSMA’s response to the violence, including the beginning of a reconciliation process:
45. Civilians continued to be victims of targeted and indirect violence, in particular in the Centre. In this part of the country, activities of violent extremist groups and the increase in intercommunal violence constituted the two main threats to civilians. Intercommunal violence occurred primarily between the Dogon and Fulani communities in Koro and Bankass districts and between the Fulani and Bambara communities in Djenne district. There were 267 incidents, resulting in the deaths of 225 civilians and injuries to 149 others, as well as 130 reported abductions of civilians, compared with the previous period, which registered 109 incidents, 108 civilian fatalities, including 1 child, and 43 injuries, including 5 children and 1 woman.[19]
[19] ‘Situation in Mali: Report of the Secretary General’, United Nations Security Council, 26 March 2019, p.7, 20190820125602.
46. One of the deadliest incidents occurred on 1 January in Koulogon-Peul village, in the Bankass district of Mopti region, where 37 Fulani civilians, including 1 woman and 4 children, were killed. National judicial authorities investigated the incident and have begun the prosecution of the identified suspects, with MINUSMA support. This is the first time that judicial authorities have thoroughly investigated an intercommunal conflict of this magnitude in a remote area, demonstrating the commitment of the Malian judicial system to bringing to justice those responsible for crimes related to an intercommunal conflict.[20]
[20] ‘Situation in Mali: Report of the Secretary General’, United Nations Security Council, 26 March 2019, p.7, 20190820125602.
49. In response to the deteriorating security situation in the Centre, and as requested by the Security Council, from 1 February to 15 March, a MINUSMA team comprising civilian, military and police components launched a campaign to protect civilians, interacted with communities throughout the region and facilitated meetings of traditional judicial authorities to begin the reconciliation process between the Dogon and Fulani communities.[21]
[21] ‘Situation in Mali: Report of the Secretary General’, United Nations Security Council, 26 March 2019, p.8, 20190820125602.
In January 2019, the UN Human Rights Council’s Independent Expert on the situation of human rights in Mali released a report. A point of difference from the previously mentioned Security Council reports is the report’s noting of ill-treatment of members of the Fulani community by Malian security forces, including summary executions and enforced disappearances. Covering the period April to November 2018, the report states:
31. The counter-terrorism operations conducted by the Malian defence and security forces in Mopti Region have reportedly led to summary executions, enforced disappearances, torture, ill-treatment and arbitrary arrests. Most of the victims have been members of the Fulani community.
32. The Independent Expert received reports of the extrajudicial execution of six civilians by members of the Malian armed forces on 13 August 2018 in the village of Doma, Mopti Region. The inhabitants had apparently fled to a neighbouring village for safety a month earlier. On 13 August, however, eight of them returned to Doma to protect the grain stores they had left behind. Alleged members of the Malian armed forces then arrived and shot six of them dead. The victims were members of the Fulani community between 21 and 40 years old. Two of the eight managed to escape. The bodies of the victims were reportedly identified by members of the Fulani community who had moved to the neighbouring village.[22]
[22] ‘Situation of human rights in Mali: Report of the Independent Expert on the situation of human rights in
The same publication includes further reporting on the communal violence between the Fulani and dozos (traditional hunters):
40. The Independent Expert notes with concern that the bitter violence between certain communities in the centre of the country is increasingly deadly and increasingly frequent. He is troubled by continuing reports of serious human rights violations being committed by traditional hunters (dozos) against members of the Fulani community in Mopti Region and by the ongoing violence between the Tamasheq-Iderfane and Tamasheq-Ibogalitane factions in Gao Region and the south-western part of Ménaka Region. During the Independent Expert’s mission to Mali, at around 10 p.m. on 4 October, traditional hunters from the Dogon community reportedly killed six Fulani herders in the village of Diakourou in Mopti Region. According to those reports, 17 traditional hunters on motorcycles shot the victims while they were sleeping in the woods with their livestock, on the pretext that they were members of violent armed extremist groups. The assailants also stole some of the victims’ livestock.[23]
[23] ‘Situation of human rights in Mali: Report of the Independent Expert on the situation of human rights in
Providing background to the communal conflict between the Fulani and Dogon, the report explains:
42. The Independent Expert acknowledges that intercommunal violence is not unusual. Its magnitude and ferocity are unprecedented, however. He also notes that members of Fulani communities are stigmatized as members of extremist groups and lumped together with them, and that members of the Dogon community are cast as traditional hunters in the pay of the State. The divide between the two communities has widened since June 2017. The formation of a new armed, self-styled self-defence group for the Fulani community, l’Alliance pour le Salut au Sahel (Alliance for the Salvation of the Sahel), has been announced on social networks, and the activities of the brotherhoods of traditional hunters, or dozos, have gradually shifted to the defence of the Dogon community or to attacks that are increasingly targeting members of the Fulani community.[24]
[24] ‘Situation of human rights in Mali: Report of the Independent Expert on the situation of human rights in
The Independent expert proceeds to note efforts by authorities to combat violence, and of a localised peace agreement reached between some Fulani and Dogon communities in August 2018:
43. The Independent Expert wishes to emphasize that various initiatives have been undertaken by the Malian authorities, including at the local level, to combat this violence. On 14 April 2018, in a communiqué calling on the Malian defence and security forces to disarm all civilians, including those licensed to bear arms, the Prime Minister announced the launch of a disarmament campaign. The communiqué also indicated that the Government was suspending the issuance of all new firearm licences until further notice. On 2 October 2018, the Prime Minister, accompanied by the Minister of Defence and the President of the High Court of Justice, travelled to Mopti Region, where he met with the governor, other regional and local authorities and representatives of the Fulani and Dogon communities to lend support to reconciliation efforts aimed at ending the conflict between the two communities.
44. In an attempt to deal with inter-community violence in Mopti Region, the Prime Minister announced several measures designed to build trust between the Fulani and Dogon communities, including the release of members of armed self-defence groups and the inclusion of those persons in a disarmament, demobilization and reintegration process. He wishes to stress that such measures should in no way be used to support impunity for the serious human rights violations committed in the context of intercommunal violence in central Mali.
45. The Independent Expert was informed that, on 28 August 2018, more than 30 village chiefs from the Fulani and Dogon communities signed a peace agreement calling for the demobilization of armed groups in Koro Cercle and requesting the support of the Government of Mali. He is concerned that, at the time of his mission, neither the Malian authorities nor the leaders of the l’Alliance pour le Salut au Sahel or other armed groups active in the area had responded to this call.[25]
[25] ‘Situation of human rights in Mali: Report of the Independent Expert on the situation of human rights in
The UN Security Council’s quarterly December 2018 update highlights official efforts to mediate between and reconcile representatives of the Dogon and Fulani communities:
34. The Prime Minister visited the Mopti region twice. On 2 October, he presided over a regional reconciliation meeting between representatives of the Dogon and Fulani communities. MINUSMA continued to assist the Ministry of Social Cohesion, Peace and National Reconciliation in its efforts to address local conflict through the operationalization of six regional reconciliation teams in the central and northern regions. MINUSMA also continued efforts to support reconciliation and to rebuild social cohesion, including the holding of a peace and reconciliation forum in Djenné town on 26 and 27 September, bringing together 220 participants, 50 of whom were women, including local government authorities, community leaders, religious leaders and members of civil society to discuss the deteriorating security situation. The forum resulted in an agreement by participants to cooperate with State authorities in order to stabilize the area. Furthermore, on 20 November, leaders of the Idourfane and Ibogolitane communities in Mali and the Niger signed an agreement to put an end to a conflict over access to natural resources. The mediation effort brought together leaders of the Fulani community, armed groups and officials from Mali and the Niger.[26]
[26] ‘Report of the Secretary General on the Situation in Mali’, United Nations Security Council, 28 December 2018, para.34, p.8, 20190820143349.
The UN Security Council’s quarterly report of September 2018 notes that mediation efforts led to an August peace agreement between over 30 Dogon and Fulani chiefs:
46. On 28 August, following a three-month mediation process led by the Centre for Humanitarian Dialogue, 34 Dogon and Fulani village chiefs signed an intercommunal S/2018/866 18-15406 9/20 peace agreement to end violence in the Koro district in the Mopti region. The agreement includes commitments to ensuring peaceful access to natural resources and prioritizing the use of traditional mediation mechanisms to prevent and manage disputes. The agreement was rejected by the Dan Nan Ambassagou group, which claimed that it had not been involved in the process.[27]
[27] ‘Situation in Mali: report of the Secretary-General’, United Nations Security Council, 25 September 2018, para.46, pp.8-9, 20190820144445.
Reflecting earlier noted reporting by the UN Human Rights Council’s Independent Expert, the June 2018 update from the UN Security Council further reports on Fulani being summarily executed by Malian armed forces:
31. In response to the deteriorating security situation in the centre of the country, on 14 April, the Prime Minister instructed that civilians in the central region in possession of firearms were to be disarmed, including those who held licences. Furthermore, in early May, two Malian forces helicopters were put on standby in Mopti, while Malian defence forces patrols were deployed to affected localities of Koro district. Those positive measures notwithstanding, mounting allegations of summary executions and abuses by members of the Malian defence and security forces continued to be reported and to have an impact on their ability to restore stability. Notably, the implementation of a ban imposed on the use of motorbikes and S/2018/541 18-08658 7/21 pickup trucks in the Mopti region and parts of the Ségou region led to targeted operations, in which some cases of excessive use of force and summary executions were reported, such as in the alleged cases of excessive force that resulted in the killing of two Fulani herders by the Malian armed forces on 28 April in Ténenkou district.[28]
[28] ‘Situation in Mali: report of the Secretary-General’, United Nations Security Council, 6 June 2019, para.36, pp.6-7, 20190820145632.
The UN Security Council’s March 2018 quarterly update provides death and injury data for that reporting period, indicating that members of the Dogon community also suffered as a result of the communal conflict:
41. As many as 71 civilians were killed and 22 were wounded in targeted attacks and intercommunity conflicts during the reporting period. While all districts of Mopti Region were affected, about a third of the casualties were recorded in Douentza district, where the targeted killing of a Dogon Qur’anic teacher in Mondoro commune on 30 December sparked a series of violent events. The most lethal incidents occurred on 15 January, when up to 12 members of the Dogon community were killed, and on 17 January, when eight members of the Fulani community were killed in Do gon-led reprisals. While Malian security forces had arrested a number of Fulani individuals following the assassinations of Dogon community members, they reportedly did not attempt to stop the subsequent arson of Fulani homes.[29]
[29] ‘Report of the Secretary-General on the situation in Mali’, United Nations Security Council, 29 March 2018, para.41, p.8, 20190820152436.
In response to the widespread violence encompassing Mali, in early August 2019 the UNHCR issued new protection guidelines for Mali, noting the deteriorating humanitarian situation and urging states to provide protection to people fleeing Mali. COISS reproduces extracts from a summary of the guidelines, noting that while they don’t specifically reference the Fulani, they intersect with Fulani issues in terms of, for example, referring to the central region of Mali (including Mopti), the location of some of the worst Fulani violence noted in the MINUSMA extracts included above:
In light of the deteriorating humanitarian and security situation, UNHCR, the UN Refugee Agency is urging States to provide protection to people fleeing conflict-affected areas in Mali.
While not all Malians may be in need of international protection, many from the northern region (Timbuktu, Gao, Kidal, Taoudenni and Menaka), central region (Mopti), some parts of the southern region (Koulikoro, Ségou and Sikasso) and border areas with Niger and Burkina Faso are likely to need asylum.
[…]
Local populations, particularly in the central regions, report widespread human rights violations including summary execution, disappearances, torture and arbitrary arrest. Smugglers and traffickers are able to operate with impunity.
The crisis has had a devastating and disproportionate effect on children. Children are being forcibly recruited by armed groups, kidnapped and killed. More than 285,000 children are being denied an education due to school closures, predominantly in the Mopti region. Girls are being raped and sexually assaulted.
Humanitarian access is severely restricted, creating significant difficulties in providing sufficient access to health, water and sanitation. Drought and desertification in the Sahel have exacerbated the already scarce availability of food.
An estimated 3.4 million Malians are in need of humanitarian assistance, approximately 2.9 million of whom are in areas of the country affected by the ongoing conflict. Meanwhile, nearly 140,000 Malian refugees have been forced to flee to neighbouring countries, mainly Burkina Faso, Mauritania and Niger since 2013.
Within this context, UNHCR urges States to provide access to territory and asylum procedures to people fleeing the conflict in Mali. Nobody from the conflict-affected regions should be forcibly returned to Mali. The remaining parts of the country should not be considered as an appropriate alternative to asylum until such a time that the security, rule of law and human rights situation in Mali has significantly improved.[30]
[30] ‘Amidst escalating violence in Mali, UNHCR issues new protection guidelines’, UNHCR, 9 August 2019, 20190820170222.
According to a separate document, the UNHCR explain the communal violence as motivated by competing groups’ access to resources and perceptions around the Fulani’s association with Islamist groups:
While much of the violence in 2018 was caused by armed Islamist groups, violence has also increased along ethnic lines between the Dogon and Fulani, both over access to resources and over perceived sympathies to extremist Islamist groups. In March 2019, gunmen killed 160 people in the Fulani village of Ogossagou in what was widely considered to be an ethnically motivated attack, causing international outcry and prompting a UN investigation. The massacre, which took place near Bankass in the Mopti region, is an example of the escalating intercommunity violence that has complicated the security situation in recent years. Just days after the UN Secretary-General warned of a “high risk” of atrocities in Mali—issuing a report to the Security Council that called for maintaining U.N. peacekeeper numbers and strengthening the U.N. mission’s presence in the strife-torn centre of the country—another massacre in a Dogon village in Central Mali left at least 35 persons dead during the night of 9 to 10 June 2019, while two further attacks on 17 June 2019 reportedly killed about 40 people. In 2018, over 300 people were killed in various conflicts between ethnically aligned self-defence groups against communities accused of supporting Islamist armed groups.[31]
[31] ‘UNHCR position on returns to Mali – Update II’, July 2019, UNHCR, July 2019, para.9, p.4, 20190820172353.
A December 2018 report released by Human Rights Watch (HRW) covers the communal conflict involving the Fulani in central Mali in some depth. Noting that the report refers to the Fulani as the ‘Peuhl’[32], the report’s summary contextualises the escalation of communal conflict in recent years:
[32] “We Used to Be Brothers” Self-Defense Group Abuses in Central Mali, Human Rights Watch, 7 December 2018, p.12, CIS7B8394110477.
Amidst the proliferation of Islamist armed groups in Mopti region, central Mali, communal violence has in 2018 killed over 200 civilians, driven thousands from their homes, undermined livelihoods, and led to widespread hunger. The victims are largely ethnic Peuhl targeted by ethnic Dogon and Bambara “self-defense groups” for their alleged support of armed Islamists largely linked to Al-Qaeda.
The agricultural Bambara and Dogon and pastoral Peuhl communities have long had disputes over access to water and land, though they were usually resolved without bloodletting. Since 2015, however, the number of deadly intercommunal incidents, underscored by efforts by the Malian government to combat increased violence by Islamist armed groups, has risen steadily. In 2018, this violence reached alarming levels.
Malian authorities have not adequately investigated these incidents, including several massacres that claimed over a dozen lives. All three communities accuse the Malian security forces of failing to adequately protect their communities.
Since 2015, Islamist armed groups have gradually spread from northern to central Mali, where they have summarily executed dozens of people accused of collaborating with government security forces; indiscriminately planted improvised explosive devices; forced civilians into adhering to their version of Islam; and undermined citizen participation in elections.
Islamist armed groups have concentrated their recruitment efforts on the Peuhl by exploiting the community’s frustrations over rising banditry, government corruption, and competition over land and water. The recruitment of Peuhl has inflamed tensions within the Bambara and Dogon, and, together with the limited presence of Malian security forces, led to the formation of ethnically aligned self-defense groups.
The self-defense groups say they took security into their own hands because the government had failed to adequately protect their villages and property. Easy access to firearms, including military assault weapons, contributed to the growth and militarization of the self-defense groups, making already existing communal tensions increasingly deadly.
Some Peuhl leaders and others assert that the Bambara and Dogon self-defense groups have used the fight against armed Islamists as a pretext to dislodge the Peuhl from valuable, fertile land and engage in banditry. The violence has driven even more Peuhl men to join the Islamist armed groups.[33]
[33] “We Used to Be Brothers” Self-Defense Group Abuses in Central Mali, Human Rights Watch, 7 December 2018, pp.1-2, CIS7B8394110477.
Focussing on 2018, HRW record the numbers of Peuhl/Fulani killed as follows:
The report documents the killings of 202 civilians who were the targets of deliberate or indiscriminate attacks by armed groups. The attacks on villages were almost always accompanied by widespread pillage, the destruction or burning of homes, and large-scale livestock theft. Some people died inside houses or mosques that had been set on fire.
The report documents 26 attacks against Peuhl villages allegedly by Bambara and Dogon self-defense groups in which at least 156 Peuhl civilians were killed. This includes 10 villages: Koumaga, Dankoussa, Meou, Bombou, Someni, Doldla Haidara, Gueourou, Komboko, Pirga, and near Sofara--in which between 8 and 23 villagers were killed. Many militia atrocities appear to have been sparked by alleged Islamist armed group killings of Dogon or Bambara community members. The self-defense groups frequently retaliated with attacks against entire hamlets or villages. About 50 Peuhl villagers, including children, who were either detained by the militias or fled the attacks, remain missing at time of writing.[34]
[34] “We Used to Be Brothers” Self-Defense Group Abuses in Central Mali, Human Rights Watch, 7 December 2018, p.2, CIS7B8394110477.
Beyond these recorded numbers however, HRW indicate that the number of deaths is likely to be larger, and spread over a wider geographical area:
Human Rights Watch believes the killings and other serious abuses documented in this report provide only a partial accounting of the total number of people killed and injured in communal violence in central Mali in 2018. Nor does it account for deaths from communal violence in other regions of Mali. For instance, in 2017 and 2018, dozens of civilians were killed in Mali’s northern Ménaka region during violence between the Peuhl and Tuareg Imghad and Doussak clans.[35]
[35] “We Used to Be Brothers” Self-Defense Group Abuses in Central Mali, Human Rights Watch, 7 December 2018, p.3, CIS7B8394110477.
In July 2018, the Office of the High Commissioner for Human Rights (OHCHR), in a statement describing the escalating communal violence in central Mali, described the Fulani as being indiscriminately targeted by Dogon militias. According to OHCHR:
MINUSMA has documented, in particular, an escalation of attacks allegedly carried out by Dozos (traditional hunters) and elements of Dogon militias against villages or parts of villages occupied primarily by members of the Fulani (Peulh) community. While these attacks are said to be motivated by a desire to root out individuals linked to the violent extremist group, Jama’at nusrat al-Islam wal Muslimeen (JNIM), in reality, they have increasingly been indiscriminately targeting members of the Fulani (Peulh) community.

In one such attack, on 1 July, 16 Fulani (Peulh) civilians were allegedly killed by Dogon militia elements in a village called Bombou, some of them reportedly shot inside the local mosque, where they had sought refuge from the attack, while others were burned alive inside their homes.[36]
[36] ‘Press briefing notes on Nicaragua, Mali and Kashmir’, United Nations Office of the High Commissioner for Human Rights (OHCHR), 17 July 2018, 20190821131840.
While not specifically mentioning the Fulani by name, a July 2019 report from the Norwegian Refugee Council (NRC) provides some indication of displacement metrics arising from the communal violence in central Mali. According to the report:
The ongoing cycle of attacks and retaliation between communities in central and northern Mali is taking a toll on civilians, causing a spike in displacement and humanitarian needs. 202,000 people have been newly displaced since the beginning of the year, according to the latest numbers provided by the Rapid Response Mechanism (RRM). Attacks by armed groups and militias, military operations, and direct threats against civilians are the main drivers of displacement.[37]
[37] 'On-the-record update: Crisis in central and northern Mali', Norwegian Refugee Council, 10 July 2019, 20190715094731.
The NRC include a ‘latest updates’ list which notes a range of evolving humanitarian and protection needs, many centred on Mopti, the site of some of the worst Fulani massacres as described in previous sections:
· 202,000 people have fled violence in Mali since January 2019. This is close to a six-fold increase compared to the same period last year, when 36,000 people were newly displaced. Attacks by armed groups and militias as well as military operations were cited by displaced persons as the main drivers of displacement (RRM).
· The regions of Gao, Mopti, Timbuktu, and Menaka records the highest numbers of displacements, accounting for 95 per cent of the total (RRM, July 4, 2019).
· In the first six months of 2019, nearly 600 civilians were killed, the large majority of these killings took place in the Mopti region (ACLED).
· On June 28, the mandate of the UN Multidimensional Integrated Stabilization Mission in Mali, MINUSMA, was renewed for an additional twelve months. The force's mandate was expanded to facilitate the implementation of a global strategy aimed at protecting civilians, reducing intercommunal violence, and helping re-establish the authority and the presence of the central government in central Mali.
· Several inter-ethnic attacks were reported throughout the month of June. The latest took place on June 30 in Ouenkoro, Mopti region. An attack by armed militia groups reportedly killed between six and 26 civilians. Local authorities also estimate that 800 people fled. Earlier that same month, 35 civilians were reported killed in Yoro while 38 were killed in Gangafani, in Mopti region.
· These attacks are causing a spike in humanitarian needs, especially protection and psycho-social support for women and children traumatised and shocked by what they witnessed. Important needs in health, nutrition, and education have also been recorded.
· Protection incidents have soared with threats to civilians making up 45 per cent of protection cases in Mali. Ninety-six percent of those cases have taken place in the Mopti region and are mainly the result of violent extremism and inter-ethnic violence (protection monitoring report, May 2019).
· 3.8 million people are suffering from or will be at risk of food insecurity during the lean season between June and August. About 548,000 persons will be in urgent need of food. It is unlikely that all those who are in need will be provided with food due to the lack of funding, according to WFP in Mali.
· 926 schools remain closed across Mali, of which 598 are located in the Mopti region alone. In Mopti, 179,000 are not able to pursue their education due to the closures of schools (OCHA).
· Humanitarian access is becoming a challenge for NGOs in Mali. Impediments to delivery of aid are caused by insecurity, presence of armed groups and improvised explosive devices in central and northern Mali. Checkpoints and roadside checks by self-defence militias are also hindering humanitarian access.[38]
[38] 'On-the-record update: Crisis in central and northern Mali', Norwegian Refugee Council, 10 July 2019, 20190715094731.
Ongoing violence – recent reports
A number of sources indicate that, despite the mediation and reconciliation efforts noted in sources listed above, some of which have produced peace arrangements, communal conflict continues.
The Armed Conflict Location and Event Data (ACLED) Project’s most recent regional overview for Africa includes an update for Mali, indicating ongoing ‘targeting’ of Fulani in central Mali. According to ACLED:
In Mali, inter-communal violence between Dogon and Fulani communities persisted this week, as Fulani communities were targeted in a series of attacks in central Mali. Four Fulani villages were attacked on June 30th by suspected Dan Na Ambassagou militias. In the Fulani village of Saran, 25 civilians were reportedly killed. The militia proceeded to also set fire to homes and attack livestock in the nearby villages of Bidi and Sankoro. On the same day, a Dan Na Ambassagou militia attacked Gono village, killing four Fulani civilians. A ceasefire was signed by some elements of the Dan Na Ambassagou and Sekou Bolly, the leader of a Fulani militia, in Sevare on July 1st. However, it seems unlikely to be upheld, as communal attacks in the region continued throughout the week.[39]
[39] ‘Regional Overview – Africa 9 July 2019’, Armed Conflict Location and Event Data Project, 9 July 2019, 20190821140602.
Similarly, the International Crisis Group’s July 2019 crisis watch update also notes ongoing conflict between Fulani and what it describes as ‘suspected ethnic Dogon militants’, while also referencing ongoing mediation and peace efforts:
Communal and jihadist violence continued in centre despite intensification of military operations and mediation initiatives, and insecurity persisted in north. In Mopti region in centre, suspected ethnic Dogon militants 30 June attacked Fulani villages of Bidi and Saran in Bankass circle, killing 23. Explosion same day between Guiri and Yoro in Koro circle killed eleven Fulanis. Security forces stepped up operations against Dogon militias in Bandiagara circle, near Mopti, destroying check points and seizing weapons. Security forces 10 July bombed camp of Dogon militia Dan Na Ambassagou in Wadouba, no casualties reported; group same day condemned attack and called for govt to cooperate with it. Security forces 11 July disarmed Dogon militants near Diombolo Kanda, seizing 28 hunting rifles. Govt and civil society launched several peace initiatives. Dan Na Ambassagou and Fulani-dominated militia in Mopti signed peace agreement 1 July. Civil society group Faso Dambe Ton late June mediated dialogue between Dogon militias and jihadist group Katiba Macina; latter listed conditions for peace, including that Dogon militias stop collaborating with security forces, refer all legal cases to religious courts, and stop attacking Fulani civilians.[40]
Aljazeera has reported with some regularity on the situation in Mali, including on recent incidents of communal violence. In early July 2019, Aljazeera reported that at least ‘23 people have been killed and 300 missing after an attack on Sunday on a village of Fulani herders in central Mali where communal violence has surged in recent months’.[41] According to the report, two further Fulani communities were targeted on the same day ‘amid a string of deadly assaults between herders and ethnic Dogon farmers who have long fought over land and resources but whose rivalry has been stoked this year by the growing presence of armed groups’.[42]
In one revenge attack that occurred in June 2019 in the Mopti region, Aljazeera describe Fulani gunmen singling out ethnic Dogon members and proceeding to shoot and kill them.[43] At least 38 people were killed.[44] The attack followed another massacre on a Dogon village earlier in the month in which dozens of people were killed, and reportedly retribution against Dogon militiamen who in late March killed over 150 Fulani in two villages in central Mali.[45] In response, the government is reported to have dispatched security forces in the affected villages.[46]
Commenting on the attacks, the head of delegation for Mali for the International Committee of the Red Cross is quoted as saying that ‘other villages in the Mopti region also suffered attacks… we’ve now seen four major attacks since the beginning of the year, on top of daily violence’.[47] Aljazeera explains that ethnic tension in central Mali ‘surged after an armed group led by preacher Amadou Koufa emerged in 2015 and recruited mainly from among the Fulanis. Clashes increased with Dogons and Bambaras who formed their own self-defence militias’.[48]
According to Aljazeera, nearly 50,000 people have fled their homes and are living in tent encampments as a result of the escalating conflict centring on land and water.[49] Aljazeera quote data from the UN mission in Mali (MINUSMA) who record at least 488 Fulani civilians as having died ‘in attacks carried out in the central regions of Mopti and Segou between January 1, 2018, and May 16, 2019’.[50] Elsewhere, Aljazeera reports ‘nearly 500 deaths in attacks on Fulanis in the central regions of Mopti and Segou since January 2018. .. [and] Armed Fulanis caused 63 deaths among civilians in the Mopti region over the same period’.[51]
Religion - Catholic
[40] ‘Mali: July 2019’, International Crisis Group, 1 August 2019, 20190821141501.
[41] ‘Attack on Fulani village in central Mali kills 23: Local mayor’, Aljazeera, 2 July 2019, 20190819163056.
[42] ‘Attack on Fulani village in central Mali kills 23: Local mayor’, Aljazeera, 2 July 2019, 20190819163056.
[43] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[44] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[45] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[46] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[47] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[48] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.
[49] ‘The orphans of Mali's violence’, Aljazeera, 23 June 2019, 20190819164927.
[50] ‘Thousands of Malians demonstrate to demand end to massacres’, Aljazeera, 22 June 2019, 20190819165400.
[51] ‘Mali attack: Forces deployed as survivors recall killings’, Aljazeera, 20 June 2019, 20190820162906.

The Tribunal has before it the United States Department of State, Mali 2018 International Religious Freedom Report concerning religious tolerance and difficulties in Mali.
The report indicates that Muslims constitute an estimated 95% of the population in Mali. Less than 5% are Christians, two thirds of whom are Roman Catholic and one third Protestant. The report indicates that during the year attacks were carried out in the central and northern regions of the country by militant groups under the umbrella JNIM. These groups perpetrated attacks because they perceived inappropriate adherence to their interpretation of Islam. The report makes reference to men affiliated with JNIM firing on a church while Christian youth were gathered for Bible study. No injuries were reported. In another case, threats from JNIM prevented a Christian community from reopening its church. Church workers fled and remained displaced.
Both Muslim and non-Muslim religious leaders frequently and jointly condemned extremist interpretations of Islam.
The report provides no indication, apart from difficulties in the northern and central regions from Muslim extremists, of Christians/Roman Catholics facing systemic discrimination or other difficulties in the practice of their religion in Mali.
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Mali and accordingly his claims will be assessed against Mali.
In making assessments as to credibility and particular concerns of the Tribunal in relation to the applicant’s claims, the Tribunal has taken into account the various explanations provided on behalf of the applicant in the submission provided following the Tribunal hearing.
In the Tribunal hearing the applicant was, on the whole, detailed and consistent with his more recent detailed written claims. The applicant was consistent in terms of the claimed attack on his family in [Town 1] [in] January 2012, which is consistent with independent information as to insurgency attacks in the region by Azawad separatists at that time. The applicant was also detailed and consistent with claims of him being attacked and shot at, and managing to escape. The applicant also gave a reasonably detailed account of escaping into the desert, initially into [Country 2] and then [Country 5]. The applicant provided an account of him being detained and escaping in [Country 5] and then obtaining work for a number of months in [Country 5] before he caught a boat to [Country 1] (this fact is not referred to in the applicant’s original written statement but is indicated in the more recent written statement). The applicant then provided a consistent account of him being detained for two years in [Country 1] before his release. Following the applicant’s release, he was assisted in obtaining work by an individual who also assisted in facilitating the applicant’s travel to Australia.
The applicant provided his detailed narrative in the Tribunal hearing comprehensively and with contextual detail, which persuaded the Tribunal he was recounting events from actual experience.
The Tribunal does note the view of the delegate that some of the applicant’s accounts lack plausibility. This includes the applicant’s claims of escaping from a number of the insurgents who had detained him and being able to escape through the desert for many days after being shot. The Tribunal does accept that these are extraordinary and implausible claims which do need to be treated with caution and carefully probed. However, the fact that something is implausible does not mean that it did not happen. Ultimately, in providing detail of these various events in the hearing the Tribunal was impressed with the relative detail and consistency provided by the applicant as to these events. The Tribunal was persuaded that the applicant was recounting events from actual experience.
Having said this, there are inconsistencies in not insignificant contextual aspects in terms of the applicant’s claims. The applicant’s initial written statement indicated that he lived on a farm in an area called [Village 1] which was apart from the town of [Town 1]. In contrast, in the Tribunal hearing the applicant indicated that [Village 1] was just a part of [Town 1] and that he did not live in a town but in a home in an urban area. The applicant indicated that [Village 1] is similar to the way Sydneysiders would refer to Town Hall as being part of Sydney.
The Tribunal also noted to the applicant that Google Maps does indicate a town in Mali called [Village 1] but this is in the south of the country not far from the capital. The Tribunal put to the applicant that the various inconsistencies could cause the Tribunal to not be satisfied that the applicant was in fact from [Town 1].
In the written submission provided following the hearing, evidence was provided of ‘[Village 1]’ being a generic term for a town centre that is used frequently in towns and cities.
Countering an impression that the applicant was not from [Town 1], the applicant was able readily, in the hearing, to identify that this location was [specified distance] from the capital, Bamako, and to persuasively describe the day and a half bus journey that he would have to take to commute regularly when on holidays between the applicant’s study for a number of years in Bamako and his return visits to [Town 1].
To test the applicant in terms of where he was from, the Tribunal asked the applicant to write down other key towns in the vicinity of [Town 1] in Mali. The applicant wrote down five locations. Two of those locations were identified by the Tribunal from Google Maps as being in the vicinity of [Town 1]. In relation to the other three locations, this was addressed in the post hearing submission. It is submitted that there may be name differences for linguistic reasons and the use of different languages given the complex history of the [Town 1] region. There is also a reference to the fallibility of Western cartographic methods for African nations. It is submitted that the applicant should be given the benefit of the doubt with regard to his testimony as to local place names in the [Town 1] region.
The applicant has provided a reasonably convincing account of him living in the [Town 1] region and has named at least two towns in the region. The Tribunal accepts the plausibility as to language and cartographic issues explaining other towns not being identified.
Key inconsistent evidence with the applicant’s claims as to what he indicates happened in Mali in January 2012 and the time period in which he claims that he was in [Country 1], is the fact that as part of his evidence, the applicant has provided [an occupation permission] Document said to have been issued in [Country 1], in the name of the applicant and with the date of issue [in] November 2010. The provision of this document on this date to the applicant in [Country 1] could suggest that the applicant was in [Country 1] much longer than he has indicated. That could be confirmed by the fact that the applicant indicated, at the time of applying for his [temporary] visa to Australia, that he had lived in [Country 1] for seven years. At the airport on arrival in Australia, the applicant indicated that he had lived in [Country 1] for 12 years.
In the hearing, the applicant indicated that he needed to exaggerate the period of time he was in [Country 1] to facilitate the granting of a visa to Australia. The Tribunal accepts the plausibility of this. The fact of incorrect information being deliberately given to the Australian government as to the length of time that the applicant was in [Country 1] is reinforced by the applicant providing two different timeframes at various points as to the length of time he had been in [Country 1], namely, first seven years and then 12 years. It might be thought that if the applicant was genuinely providing information to the Australian government as to the period that he was in [Country 1], he would have provided consistent information as to the length of time.
Submissions have been made that the [occupation permission] Document was doctored in the applicant’s name and with the provision of his photograph from a card that had originally been issued to another individual. The Tribunal has some scepticism in relation to this given that, on the face of the copy of the document with the Tribunal, it only refers to the applicant’s name and contains his photograph. In the written submission provided following the hearing it is indicated the applicant has been consistent in explaining that the date on the document is not a reflection of his time in [Country 1], and nor is the document itself evidence of his status or residency there. It is noted that the document contained falsities necessary to facilitate the application for the applicant’s [temporary] visa to Australia. Other submissions are made as to the requirements in [Country 1] to obtain the [occupation permission] Document and that the applicant would not have been able, given his lack of proficiency in either English or [the local language], to obtain such a document. It is submitted that in all the circumstances it is plausible that the applicant’s employer attempted to circumnavigate the system by obtaining [an occupation permission] Document to which the applicant was not entitled, accounting for the incorrect date of issue.
However, albeit that the provision of this document is undermining of key aspects of the applicant’s claims, it is balanced in the Tribunal’s view by the relative consistency and detail provided by the applicant in the Tribunal hearing as to the key events that he claims happened to him in Mali causing him to flee Mali for [Country 2], [Country 5] and then [Country 1].
The Tribunal notes a further inconsistency being the applicant’s initial claims that he lived on a ‘farm’ in [Town 1], which is retracted in later claims when he indicates he grew up in the town itself. This is explained as being a product of communication and drafting issues.
Inconsistencies in evidence as between written and oral claims are also sought to be explained by the fact that the applicant has a mental health condition. This is in the process of being subject to a full assessment by [Welfare Agency 1]. Based on the applicant’s evidence in the interview with the delegate, observations by the delegate, and aspects of the way that the applicant gave evidence in the Tribunal hearing, the Tribunal is satisfied that the applicant is suffering from mental health conditions of some sort. This is taken into account by the Tribunal as potentially explaining some of the inconsistencies in evidence provided by the applicant over time.
Ultimately, and despite a number of inconsistencies and credibility concerns, the Tribunal is satisfied that the applicant is from [Town 1], Mali. The Tribunal is satisfied that the applicant was caught up in the Azawad uprising in January 2012 and fled Mali, broadly in the circumstances that he has described. Whilst the Tribunal accepts that aspects of what the applicant has claimed are quite extraordinary and potentially lacking plausibility, the Tribunal is satisfied nevertheless as to core aspects of the claims made by the applicant.
The 2010 [Country 1] [occupation permission] Document is undermining of claims that the applicant was in Mali and suffered the difficulties claimed in 2012. However, in the context of all of the applicant’s evidence, the existence of this document does not cause the Tribunal to disbelieve the applicant’s core claims. The Tribunal accepts the possibility of circumstances put by and on behalf of the applicant that this document does not truthfully reflect the period in which he was in [Country 1].
The Tribunal has concerns, nevertheless, that the applicant would remain a specific target from either the new Mali government or insurgents because of a connection between the applicant and his father who was part of a faction within the military and who was engaged in conflict with another military faction a number of years after the claimed death of the applicant’s father. The Tribunal has similar concerns that there is or would be any harm directed towards the applicant because of a belief that he holds vital [information about] the Northern region of Mali.
It is clear from independent evidence, particularly UNHCR evidence and guidelines, that there is escalating tension and significant security problems in Mali, particularly in the northern and central parts of Mali. As indicated, the applicant is from the northern region of Mali. UNHCR indicates that currently ‘many’ from the northern region, specifically including [Town 1], are likely to need asylum.
Given this information, together with the fact that the Tribunal accepts that the applicant left Mali in 2012 as a result of adverse attention from insurgents, the Tribunal finds that the applicant would face, given the current very significant security problems in northern Mali, a real chance of serious harm on return to Mali. The serious harm would be a threat to the applicant’s life, significant physical harassment or significant ill treatment. This would be because of a combination of the applicant being a resident of Northern Mali (being a particular social group) considered cumulatively together with the previous adverse attention by the insurgents towards the applicant (being due to the applicant being imputed with a certain political opinion). The Tribunal would consider that the basis on which the applicant faces a real chance of serious or significant harm is due to reason(s) set out in s.5J(1) of the Act and that these would be the essential and significant reasons.
The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct.
The Tribunal notes that recent information from the UNHCR of August 2019 advises that the remaining parts of Mali should not be considered as an appropriate alternative to asylum until such time that the security, rule of law and human rights situation in Mali has significantly improved. Given that view, and the fact that the applicant comes from a conflict area within Mali, the Tribunal would find that the real chance of persecution for him relates to all areas of Mali.
The Tribunal is satisfied that the applicant has no right to enter and reside in any third country.
The Departmental file contains a Certificate and Notification issued under s.438 of the Act restricting the disclosure of certain information on the file on the basis that the documents are internal working documents and relate to business affairs. The Tribunal does not consider that this provides a basis for public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid.
In summary, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David McCulloch
Member

ATTACHMENT - 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.
…

(note: the 2009 Census gave the country’s population as 14.5 million; the CIA World Factbook estimated the population to be 16.9 million by July 2015).

Mali’, UN Human Rights Council, 21 January 2019, para.31, p.8, 20190820131013.

Mali’, UN Human Rights Council, 21 January 2019, para.40, p.10, 20190820131013.

Mali’, UN Human Rights Council, 21 January 2019, para.42, p.10, 20190820131013.

Mali’, UN Human Rights Council, 21 January 2019, paras.43-45, pp.10-11, 20190820131013.

[2020] AATA 1291

8 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction