1622452 (Refugee)

[2018] AATA 4484

1622452 (Refugee) [2018] AATA 4484 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622452

COUNTRY OF REFERENCE:                  South Sudan

MEMBER:Nicole Burns

DATE:17 September 2018

PLACE OF DECISION:  Melbourne

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 17 September 2018 at 3:50pm

CATCHWORDS
REFUGEE – protection visa – South Sudan – race – mixed Dinka and Nuer ethnicity – particular social group – single woman without family support – ongoing civil war – suspicion of spying from both tribal groups – fear of gender based violence – fear of abduction – applicant’s area under rebel control – effective protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of South Sudan, applied for the visa on 21 January 2014 and the delegate refused to grant the visa on 14 December 2016.

3. The applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancé and her sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. He attended the Tribunal hearing.

5. The issue in this case is whether the applicant is owed protection obligations by Australia as a refugee or otherwise complementary protection provisions apply.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality and background

11. The applicant was born in Khartoum, the capital of Sudan, in [year] making her [age] years old.  In 2005 she moved to [Country 1] where she resided before moving to [Country 2] in 2011, employed by [Agency 1] as [an occupation 1].  In June 2012 she acquired a South Sudanese passport.  The applicant used this passport to travel to Australia.  The applicant travelled to Australia [for work] with [Agency 1]. On this basis and given the delegate had no concerns about the applicant’s claimed identity and nationality, the Tribunal accepts she is a national of South Sudan and has assessed her protection claims accordingly.

12. Country information indicates that South Sudan’s civil war began on 15 December 2013, following a power struggle within the ruling Sudan People’s Liberation Movement (SPLM), with the president accusing the then vice president of plotting a coup.  According to the United States Department of State (USDOS) report on human rights practices in South Sudan for 2017, the two leaders’ appealed to their respective ethnic communities and the conflict spread primarily to the northwest of the country.  The report states:

    The parties signed several ceasefire agreements, culminating in the 2015 peace agreement. A ceasefire generally held from 2015 to July 2016, when fighting broke out between government and opposition forces in Juba leading to four days of intense conflict, during which government forces drove out Machar, who fled the country. A rump section of the SPLM-IO, led by current First Vice President Taban Deng Gai, remained in Juba as part of a transitional government that claimed to be committed to implementing the 2015 agreement. Following the 2016 violence, however, the government and the opposition resumed and expanded the geographic scope and scale of the conflict, which by year’s end had spread to all parts of the country.[1]

    [1] US Department of State, Country Reports on Human Rights Practices for 2017 - South Sudan,  20 April 2018,  Executive Summary

13. Another ceasefire agreement was signed in December 2017 but had been ‘violated numerous times’ by late January (2018), including in incidents around Juba.[2]  On 27 June 2018 President Salva Kiir (a Dinka) and former Vice President Riek Machar (a Nuer) signed a new peace deal setting out arrangements for corridors for humanitarian aid; withdrawal of forces; release of POWs/political detainees; formation of a transition unity government within four months; and a regional peace keeping block.[3]  A permanent cease fire was signed by the parties on 30 June 2018 however hours later attacks in the north-eastern part of the country were reported with both sides accusing the other of initiating the attacks.[4] In a recent Reuters article it is reported that the rebels have refused to sign the latest draft of a peace deal, saying disputes over power sharing and a new constitution have not been addressed.[5]

    [2] UN News, ‘South Sudan: Ceasefire violations, hostile propaganda undercut regional peace push, Security Council told’, 24 January 2018 

    [3] Aljazeera , ‘What next for South Sudan's peace agreement?’, 27 June 2018 

    [4] Aljazeera, ‘South Sudan ceasefire violated hours after taking effect’,  1 July 2018

    [5] Reuters, ‘South Sudan Rebels Refuse to Sign Peace Deal’, 28 August 2018

    Claims and evidence

14. The applicant initially set out her claims in her protection visa application and statutory declaration[6] that accompanied her application.  She states that she fears serious harm if returned to her home area of Bor, Jonglei state in South Sudan due to ethnic conflict there as a member of the Dinka tribe, and that the area is under the control of the rebels.  She stated that she belonged to the Dinka tribe/ethnicity, and had been threatened many times by people from the Nuer ethnicity for this reason (as well as because of her career background as [an occupation 1]).  She told the Tribunal that her father is Dinka and her mother is Nuer and therefore she is mixed Dinka/Nuer heritage.  She said she mentioned she was Dinka at the visa application stage because that was her father’s ethnicity. 

    [6] Dated 17 January 2014

15. At the visa application stage the applicant stated that she had lost contact with her family in South Sudan due to the conflict there and had not seen her father since she was around five.  However she told the Tribunal that this was incorrect and that her parents reside in [Country 1] along with [number] of her siblings, whilst two brothers reside in Khartoum, Sudan, one brother is in Juba, South Sudan and her sister lives in Australia.  She said she was nervous when she first gave evidence to the delegate and based on advice from friends and her migration agent at the time, she erroneously claimed she had lost contact with family members to bolster her refugee claims, which she regrets.  Although of some concern, overall the Tribunal found the applicant to be a credible witness at hearing whose oral evidence was detailed, spontaneous and corroborated by her sister and her fiancé’s oral evidence about her ethnic background and family composition.  Accordingly the Tribunal accepts her claims as elaborated and clarified at hearing, summarised as follows:

    ·The applicant’s father is Dinka and her mother Nuer, making the applicant mixed Dinka/Nuer ethnicity.  She provided to the Tribunal a copy of her father’s South Sudanese passport which indicates he was born in Bor, central South Sudan and country information indicates Dinka are predominantly pastoralists located in the central and northern areas of the country.[7]  The applicant also provided a copy of her mother’s South Sudanese passport which indicates that she was born in [a town] in the north-eastern region of the country, where Nuer are predominantly located (as well as the northern areas).[8]  Also provided to the Tribunal were letters from members of the South Sudanese community in [Australia] who verify that the applicant’s mother is from the Nuer tribe and her father from the Dinka tribe in South Sudan.[9]

    ·The applicant did not experience any problems when growing up in Khartoum on the basis of her (or her parents) ethnicity because the conflict at the time was between North and South Sudan and largely based on religion.  However the current conflict in South Sudan has clear ethnic dimensions, among other things.  She did not indicate that she has experienced any problems directly on the basis of her ethnicity in the past however noted at hearing that she received verbal ‘threats’ from friends when discussing the conflict in [Country 1] because of her Dinka ethnicity. 

    ·The applicant was born in Khartoum, Sudan where she lived until 2005 when she moved to [Country 1] with her mother and [some] siblings.  Her father and [other] brothers joined them from Khartoum in [Country 1] six months later.  Her [brothers] have returned to Khartoum, where they currently live however they do not work and survive from remittances from the applicant and her sister in Australia.

    ·The applicant’s father moved from [Country 1] to Juba, South Sudan for some period but returned to [Country 1] after the outbreak of conflict in South Sudan in December 2013.  He currently lives with the applicant’s mother and [number] of her siblings in [Country 1].  They do not work and also survive from remittances from the applicant and her sister in Australia.

    ·One of the applicant’s brother’s currently lives in South Sudan.  He regularly moves to avoid the conflict.  He was deported to Juba from [another country] some years ago.  He hurt his foot during an attack about a month before the hearing and the applicant provided a photograph of an injured foot at hearing.  She was unclear of the circumstances of the attack.

    ·The applicant lived in [Country 1] from 2005 until 2011 when she moved to [Country 2], and was employed by [Agency 1] as [an occupation 1].  She was the first South Sudanese to secure such a [role].  The applicant’s contract with [Agency 1] ceased in 2013.

    ·The applicant visited Australia a number of times to see her sister and when working as [an occupation 1] from 2011 until the last time she came in October 2013.  She always left before the expiry of her [temporary] visas and had no intention of staying in Australia. However the situation changed after December 2013 when conflict erupted in South Sudan, which continues to this day.

    ·The applicant went to Juba, South Sudan, from [Country 1] in 2011 for three days before flying out to [Country 2] to start her job with [Agency 1], which was required.  She stayed in a hotel.  That is the only time she has spent in South Sudan in her life.

    [7] DFAT Country Information Report South Sudan, 5 October 2016 at 3.5

    [8] Ibid at 3.8

    [9] [Deleted.] 

16. In terms of determining the applicant’s home area in South Sudan, the Tribunal notes that although she has never been to Bor, Jonglei State, she claimed at hearing this would be considered her home area because it is where her father is from.  The delegate also found Bor, Jonglei State to be her home area and the Tribunal is also satisfied this would be her home area. 

17. At hearing the applicant gave evidence that she is engaged to an Australian citizen, originally from Sudan, who came to Australia as a refugee and is unable to return there.  Her fiancé confirmed that was the case at hearing and the Tribunal accepts their evidence in this regard.  Therefore, the Tribunal finds that if the applicant were to return to her home area of Bor, Jonglei State she would do so as a single woman without her fiancé or other immediate family support there. 

    Well-founded fear of persecution in the future

18. It is submitted that the applicant claims to fear persecution on return to South Sudan as a woman without family support or male protection and on the basis of her mixed ethnicity (Nuer and Dinka).  Her risk is elevated, it is submitted, as a former [occupation 1] with mental health problems who would be returning to an area of ongoing civil war.

19. In her statutory declaration provided to the Department the applicant submits that as a former [occupation 1] and unmarried young female of dual Dinka and Nuer ethnicity, she is at risk of abduction, gang rape, torture and even death with both sides suspecting her of being a spy.

20. In his written submission to the Tribunal the representative argues that as a child of parents of the two tribes, the applicant will be considered to be members of both tribes; that the two tribes have been fighting since 2013; and that she faces a risk of serious harm as a member of the Dinka tribe and Nuer tribe, suspected by both sides as a spy for the other one.

21. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution in South Sudan for the combined reasons of her ethnicity (dual Dinka/Nuer) and membership of a particular social group of women.  It has therefore not been necessary to consider the other grounds advanced.

22. The Tribunal has first considered whether women can constitute a particular social group for the purposes of the Convention.  The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S, Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group".

23. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country.  However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reasons of the person’s membership of the particular social group. 

24. The independent evidence before the Tribunal indicates that women in South Sudan possess common characteristics and attributes that make them distinguishable from the rest of society – i.e. their gender – and these are not the shared fear of persecution.  Based on prevailing social, cultural and religious norms in South Sudan the Tribunal finds that they constitute a particular social group within the Convention meaning.  The Tribunal accepts, therefore, that women constitute a particular social group in South Sudan for purposes of the Convention. 

25. Having accepted that the applicant is a woman and that women in South Sudan constitute a particular social group for the purposes of the Convention, the Tribunal has gone on to consider if there is a real chance that the applicant would be persecuted on return to South Sudan for belonging to this particular social group.  The Tribunal has also considered if the applicant faces a well-founded fear of persecution on return to South Sudan on the basis of her ethnicity.  In doing so the Tribunal has had regard to independent country information as set out below about the ethnic dimensions of the conflict, internal conflict and human rights abuses, tribal violence, and treatment of women by armed actors and others in a context of ongoing violence and war. 

    Human rights situation and internal conflict abuses

26. In its most recent report on human rights in South Sudan, the United States Department of State (USDOS) identifies the most significant human rights issues to include:

    ...conflict-related, ethnically based targeted killings of civilians; extrajudicial killings, abuse, and mass forced displacement of approximately four million civilians, displaced internally and as refugees; and intimidation and inhuman treatment of civilians such as arbitrary arrest and detention, abductions and kidnapping, recruitment and use of an estimated 17,000 child soldiers; and widespread sexual violence. Attacks on military and civilian targets often resulted in rape, destruction of villages, theft, looting, and revenge attacks on civilians. Human rights abuses also included torture, intimidation, and unlawful detention of civilians; harassment, intimidation, and violence against journalists, civil society organizations, and human rights defenders; government restriction of freedoms of privacy, speech, press, and association; and abductions related to intercommunal and interethnic conflict.[10]

    [10] US Department of State, Country Reports on Human Rights Practices for 2017 - South Sudan, 20 April 2018

1. In the same report the following internal conflict abuses are identified:

   Since the conflict between the government and opposition forces began in 2013, security forces, opposition forces, armed militias affiliated with the government and the opposition, and civilians committed conflict-related abuses and violations around the country. Despite an August 2015 peace agreement, patterns of abuse intensified after renewed fighting broke out in July 2016 and continued throughout the year. While both sides of the conflict committed abuses, the United Nations and international NGOs reported government forces were responsible for an increasing number of conflict-related abuses against civilians. As conflict spread to the central and east Equatorias region (which prior to 2016 had been mostly spared from violence), government soldiers reportedly engaged in acts of collective punishment and revenge killings against civilians assumed to be opposition supporters, often based on their ethnicity. The UN Commission on Human Rights in South Sudan, established by the Human Rights Council, reported on a pattern of ethnic cleansing and population engineering.

   Atrocities included unlawful killings, rape and gang rape employed as a weapon of war, arbitrary detention and torture, enforced disappearances, explosive remnants of war, forced displacement, the mass destruction of homes and personal property, widespread looting, and use of child soldiers.[11]

   Ethnicity

   [11] Ibid

2. For reasons above the Tribunal accepts the applicant’s father is Dinka and her mother is Nuer.  Country information indicates that South Sudan has at least 60 ethnic groups and a long history of interethnic conflict. Ethnic groups were broadly categorised into the Nilotic (Dinka, Nuer, and Shilluk ethnic groups), Nilo-Hamitic, and Southwestern Sudanic groups.[12]  The Nuer, the second largest ethnic group in South Sudan, are predominantly pastoralists located in northern and north-eastern South Sudan.  DFAT in their most recent report on South Sudan indicate that Nuer have been targeted following the outbreak in conflict in December 2013.  They state:

   Following the outbreak of conflict in December 2013, the Government conducted a violent crackdown on the Nuer population in Juba. Human Rights Watch reported that this included targeted killings, house-to-house searches, mass arrests, the unlawful detention of hundreds of men and torture...Nuer have continued to be targeted by the Sudan People’s Liberation Movement, Sudan People’s Liberation Army and other groups aligned to the Government. A significant number of the Nuer remain in Protection of Civilian camps run by the UN Mission in South Sudan for their own safety.

   Overall, DFAT assesses that Nuer residing in areas under the control of the Government, including Juba, face a high risk of official and societal discrimination and violence.  Nuer living in conflict-affected areas under the control of the Sudan People’s Liberation Movement-In-Opposition face a low risk of official or societal discrimination or violence, but may still be at risk given their proximity to the conflict (and the fact that the boundaries of the conflict frequently shift) as well as their limited ability to internally relocate.[13]

   [12] Ibid

   [13] DFAT Country Information Report South Sudan, 5 October 2016 at 3.9 & 3.10

3. Dinkas are the largest ethnic group in South Sudan and are predominantly pastoralists located in the central and northern areas of South Sudan.  In terms of risk to those belonging to the Dinka ethnic group in Jonglei state – which is considered a conflict-affected area – DFAT state:

   Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict.[14]

   [14] Ibid at 3.7

4. With respect to ongoing tribal violence, the USDOS Overseas Security Advisory Council (OSAC) South Sudan 2017 Crime and Safety Report said that clashes – especially between the Murle, Lou Nuer, and Bor Dinka communities – are not uncommon.  Such clashes normally occur during the dry season (December-April) and have resulted in hundreds of civilian deaths. Cattle raiding and child/bride abduction are frequent causes for inter-communal violence throughout South Sudan but are most common in Jonglei, Lakes and Unity states. Disproportionally large retaliatory attacks, including large-scale fighting, kidnapping, and murder, can have a spill over effect.[15]

   [15] United States Department of State Bureau of Diplomatic Security, South Sudan 2017 Crime & Safety Report, 5 May 2017, p.5

5. According to the USDOS human rights report for Sudan in 2017, ‘interethnic clashes occurred throughout the year. Insecurity, inflammatory rhetoric--including hate speech--and discriminatory government policies led to a heightened sense of tribal identity, exacerbating interethnic differences’.[16] 

   [16] US Department of State, Country Reports on Human Rights Practices for 2017 - South Sudan, 20 April 2018

6. With respect to the conflict more broadly, it has been reported that ‘although the Crisis largely originated as a political dispute, the existing undercurrent of ethnic tensions— primarily between Machar’s Nuer tribe and Kiir’s Dinka tribe—quickly rose to the surface and became a defining feature of the Crisis.’[17]

   Women

   [17] International Rescue Committee and the George Washington University’s Global Women’s Institute, No Safe Place: A lifetime of violence for conflict-affected women and girls in South Sudan,  29 November 2017, 

7. DFAT reports of the widespread use of rape and the abduction of women for sex slavery in conflict affected areas in South Sudan.[18]  In a press release following a visit to South Sudan in July 2018 the Special Representative of the Secretary-General on Sexual Violence in Conflict, Ms Pramila Patten, stated that in ‘South Sudan, since the start of the conflict, sexual violence has been committed on a widespread and systematic scale as a tactic of war and terror’, exacerbated by impunity in a militarised society.   Ms Patten also  stated that:

   Civilians fleeing the fighting in Unity State, which peaked between 16 April and 24 May, recounted shocking patterns of conflict-related sexual violence, occurring alongside other atrocity crimes. The testimonies I heard were horrific: men being systematically killed, the elderly and sick being burned alive, the genitals of young boys being mutilated or cut off, and women and girls being gang-raped – often to death. Rape and gang-rape are being used to pursue military and political objectives, such as clearing areas of perceived enemies, defined along ethnic and political lines. In this context, sexual violence serves as a lethal tactic of war and a “push factor” for forced displacement.

   According to a report released yesterday by UNMISS and OHCHR on the indiscriminate attacks against civilians in Southern Unity State, at least 120 women and girls, including pregnant and lactating mothers, and girls as young as four-years-old, were raped and gang-raped by the SPLA and associated forces (including pro-Taban Deng forces and clan youth militia) in Koch and Leer county. Witness accounts indicate that some women and girls who resisted rape were shot. The report further documents 15 incidents of abduction involving at least 132 women and girls, for the purposes of sexual slavery and forced labor.[19]

   [18] Ibid at 3.41

   [19] Press Release, 11 July 2018, Special Representative of the Secretary-General on Sexual Violence in Conflict, Ms Pramila Patten,

8. Women are reported to be experiencing ‘unprecedented’ levels of sexual violence since the 2013 return to civil conflict in South Sudan, despite some acts of violence against women being criminalised.[20]

   [20] UN High Commissioner for Refugees, South Sudan Situation: Regional Emergency Update (1 – 15 October 2016),15 October 2016

9. In its most recent report on human rights in South Sudan, the USDOS noted the high levels of sexual violence towards women in South Sudan:

   Since the conflict began in 2013, conflict-related sexual violence was widespread. The targeting of girls and women reached epidemic proportions following skirmishes and attacks on towns in conflict zones (see section 1.g.). Women and girls also faced the threat of rape while living in PoC sites and when leaving PoC sites to conduct daily activities.

   …

   Sexual and gender-based violence and conflict-related sexual violence were widespread. Rape was used widely as a weapon of war. According to Amnesty International, some rapists also mutilated victims or raped them with foreign objects. Following the April 3 attack by SPLA soldiers in Pajok, during which 14 civilians were killed, the UNMISS Human Rights Division reported three incidents of sexual violence. For example, in April opposition soldiers abducted a young woman in Eastern Equatoria twice and allegedly repeatedly raped and beat her. Human rights groups noted most cases of sexual- and gender-based violence went unreported.

   UN officials who interviewed survivors reported gang rape was common. Men were also victims of sexual violence, but on a far reduced scale. Amnesty International reported male survivors of sexual violence described rape, castration, and forms of torture. NGOs noted sexual violence against men was used to humiliate and terrorize victims.

   …

   There were numerous reported abuses including sexual and gender-based violence, beating and torture of detainees, and harassment and intimidation of human rights defenders and humanitarian workers. According to Amnesty International, thousands of women and girls were victims of sexual violence, including “rape, gang rape, sexual slavery, sexual mutilation, torture, castration, or forced nudity” throughout the year.[21]

   [21] US Department of State, Country Reports on Human Rights Practices for 2017 - South Sudan,  20 April 2018,  section C

10. The same report also notes that abductions, particularly of women and children, took place in both conflict and non conflict zones, and that government and opposition forces and affiliated armed militia groups recruited children and women against their will.[22]

    [22] Ibid

11. There are reports of women being targeted for sexual violence on the basis of their ethnicity.   For example, in July 2016, Human Rights Watch reported that ‘soldiers raped hundreds of mostly Nuer displaced women near the main UN base in Juba’.[23] Sex and labour trafficking is also widespread, according to Freedom House, with internally displaced people, migrants from neighbouring countries and rural women and girls being the most vulnerable.[24]

    [23] Human Rights Watch, Human Rights Watch World Report 2017 – South Sudan, 13 January 2017

    [24] Freedom House, Freedom in the World 2016 - South Sudan, 9 August 2016, p.6 

12. Results of a study which explored the situation of women and girls in South Sudan published in November 2017 by the International Rescue Committee and the George Washington University’s Global Women’s Initiative found, in summary that:

    VAWG (violence against women) is pervasive in these conflict zones with up to 65% of women and girls experiencing physical and/or sexual violence in their lifetime. These are among the highest rates of VAWG in the world.

    The research results show that up to 33% of women in these areas experienced sexual violence from a non- partner, and many of the incidents were directly related to a raid, displacement or abduction. Women and girls who live in Juba PoC sites are the most vulnerable to this type of assault—almost a quarter of women who experienced this violence reported that they experienced multiple incidents of sexual violence.

    While women and girls were often subject to sexual violence by armed actors, they also felt the impact of conflict in a number of other ways. Experiences of displacement, the breakdown of rule of law, increases in crime and the normalisation of violence also an affect VAWG.[25]

    [25] International Rescue Committee and the George Washington University’s Global Women’s Institute, No Safe Place: A lifetime of violence for conflict-affected women and girls in South Sudan,  29 November 2017, p.68,

13. Such country information indicates that Dinkas face a high risk of violence living in conflict affected areas and whilst Nuers’ risk of violence (and discrimination) is low in that area, they may still be at risk given their proximity to the conflict.  Country information is clear that women in those areas (including Nuer women) are targets of violence and other forms of serious harm such as rape and abduction for sexual slavery.  Reports indicate that rape and gang rape are employed as weapons of war, committed by both government and opposition forces in the conflict affected areas.  Given such country information the Tribunal finds the applicant, as a single woman of mixed Nuer and Dinka ethnicity with no family support, faces a real chance of serious harm in the form of violence, sexual violence, abduction and possibly even being killed by government or opposition forces (and/or militias attached to them) if returned to Bor or anywhere in Jonglei state in the reasonably foreseeable future.  The Tribunal is satisfied the applicant’s Dinka and Nuer ethnicity and her membership of a particular social group of women is the essential and significant reason for the harm feared and that the harm is systematic and discriminatory.

14. With respect to state protection, the applicant said at hearing (and in the visa application) that Jonglei state is under the control of the rebels, who are Nuer and target Dinka.  It is stated in the DFAT report that several areas in South Sudan are not under effective state control, owing to the broader security situation, including areas under control of SPLM-IO and Shiluk forces.  DFAT state that they are unable to comment on the ability of the SPLM-IO to provide effective protection but anecdotally understand that its authority on the ground is very limited.[26] Overall DFAT assesses the government’s ability to maintain effective control and provide adequate state protection is weak.[27]  The USDOS 2017 South Sudan human rights report said that security force abuses occurred throughout the country, and that impunity was a serious problem.[28]  The USDOS Overseas Security Advisory Council (OSAC) South Sudan 2017 Crime and Safety Report said that the capacity of law enforcement agencies to ensure public safety is limited, with the South Sudan National Police Service (SSNPS) suffering from inadequate resources, ‘a lack of training, illiteracy, and weak command/control, all of which makes the provision of basic police services a challenge.’[29]

    [26] DFAT Country Information Report South Sudan, 5 October 2016 at 5.1

    [27] Ibid at 5.2

    [28] US Department of State, Country Reports on Human Rights Practices for 2017 - South Sudan,  20 April 2018,  p.2 

    [29] United States Department of State Bureau of Diplomatic Security, South Sudan 2017 Crime & Safety Report, 5 May 2017

15. Given such country information the Tribunal is not satisfied that state protection from the serious harm the applicant fears as a woman with mixed Dinka and Nuer ethnicity (with no male protection) is available to her on return to Sudan, either in her home area of Bor, Jonglei State or elsewhere.

16. The Tribunal has considered if the applicant could relocate to another part of South Sudan to avoid the serious harm she fears in Jonglei state, for example to Juba, the country’s capital. 

17. In Juba DFAT advise that Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated government currently has almost unencumbered control over Juba.[30]   However, the Tribunal accepts the applicant is also half Nuer and notes DFAT advises that:

    Overall, DFAT assesses that Nuer residing in areas under the control of the Government, including Juba, face a high risk of official and societal discrimination and violence.[31]

    [30] Ibid at 3.7

    [31] Ibid at 3.10

18. The Tribunal also notes DFAT’s advice about the ability of those who reside in the conflict affected areas to relocate internally that:

    Anecdotally, DFAT understands that an individual would likely face difficulty in internally relocating given the significant ethnic dimensions of the current conflict, the omnipresence of illegal armed checkpoints on the roads (where roads exist) and the impact of the dry and wet seasons. Should an individual be able to internally relocate, it would likely be to an area in which their ethnic or sub-ethnic group predominates in order to ensure their safety.[32]

    [32] Ibid at 5.15

19. Given this country information, the Tribunal is not satisfied that the applicant can safely relocate to another part of South Sudan to avoid the harm she fears in Jonglei State from state actors and non state actors.

20. In a separate and additional finding, the Tribunal is also not satisfied that it would be reasonable for the applicant to relocate as a young woman without her fiancé or other family members to support her and offer some level of protection and support, noting DFAT’s advice that:

    Overall, DFAT assesses that women in South Sudan face a high risk of official and societal discrimination and violence. DFAT notes that this risk is often exacerbated by other factors such as a woman’s ethnicity or perceived political affiliation.[33]

    [33] DFAT Country Information Report South Sudan, 5 October 2016 at 3.44

21. The applicant told the Tribunal that she has a brother in South Sudan however the Tribunal accepts her evidence that he is currently unemployed, constantly moving around, and recently was injured in a conflict-related attack.  The Tribunal is therefore not satisfied his presence would necessarily be protective or offer a minimum level of support to reduce the applicant’s particular vulnerability if returned as a young single woman to a situation of war, and dire economic and humanitarian situation, which the Tribunal is satisfied is unreasonable.  

    CONCLUSION

22. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criteria set out in s.36(2)(a).

    DECISION

23. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Nicole Burns

    
    

    Member