1717011 (Refugee)

[2022] AATA 1440

1717011 (Refugee) [2022] AATA 1440 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717011

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Anne Grant

DATE:16 March 2022

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 16 March 2022 at 8:55am

CATCHWORDS

REFUGEE – protection visa – Sudan – race – member of a non-Arab Darfuri tribe – persecution of non-Arab Darfuri tribes by military backed Arab militia – fears harm (being abducted, assaulted and killed) by members of JEM – fears harm from the Sudanese Government – imputed with pro-JEM political opinion and anti-Sudanese government political opinion – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 91S, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Randhawa v MILGEA (1994) 52 FCR 437
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sudan, applied for the visa on 5 June 2014 and the delegate refused to grant the visa on 27 July 2017.

3. The applicant appeared before the Tribunal on 17 February 2022 to give evidence and present arguments. As the hearing was conducted during the COVID19 pandemic, it proceeded by video conference  using the Microsoft Teams application.  The applicant and his representative participated in the hearing by video connection.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

   Refugee criterion

5. 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).

6. 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality.  

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

20. The issue in this case is whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Sudan, there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

21. The applicant arrived in Australia on [date] May 2014 on a false Saudi passport using the identity [Mr A].  At the time he lodged his protection application, the applicant notified the department that he had done so and provided his genuine identity (and applied for protection) as [applicant’s name], born on [date] in [Town 1], Sudan. Subsequent investigations by the Department have accepted that the applicant is [applicant’s name] and that he was born in and is a citizen of Sudan.  The delegate assessed his claims against Sudan as the country of his nationality. 

22. The Departmental file contains a certificate pursuant to s.438 of the Migration Act, claiming that folios 55 – 47 on the Departmental file should not be disclosed to the applicant. The certificate claims that it is not in the public interest to disclose the information in those folios because they are documents or information that contain correspondence between operational areas of the Department and could reveal confidential investigative methodology and techniques used by the Department regarding the applicant’s identity. The applicant’s representative was asked to make a submission on the validity of the certificate at hearing, but prior to doing so, the Tribunal noted that it had formed a view that the information in the folios related to the processes of analysing the applicant’s false entry identity and his legitimate Sudanese identity and so, did contain investigative methodology as claimed. However ultimately, because the applicant’s evidence about his identity was accepted by the Delegate, (and because the applicant’s identity and nationality are not in issue) the documents themselves have limited relevance to this review, save for a summary of the officer’s findings which is beneficial to the applicant. That summary is relevant and does not disclose any confidential processes and the Tribunal had considered that it should be disclosed to the applicant.

23. In light of the information given generally about the lack of relevance and the intention of the Tribunal in relation to the potentially favourable information to be disclosed from the certificate, no submissions were made about the validity or otherwise of the certificate.

24. The Tribunal considers that the certificate is valid but directs that the following summary (which appears on page 6 of the identity assessment covered by the non-disclosure certificate) on folio 51 ought to be disclosed to the applicant as it is potentially favourable to the applicant and does not reveal any investigative processes. 

    In all instances, [the applicant] not only had plausible explanations for these discrepancies, but was also able to provide the type of detailed information and local knowledge that would be expected of someone who had been brought up in [Town 1], Sudan. [The applicant] clarified that he was of [certain] ethnicity and spoke a language called [deleted]. He attended school [from] the age of 10 until he was 17. The school was approximately a 45 minute walk from his home in [Town 1]. His Sudanese Certificate of Nationality was issued in Bahri, Sudan, which may explain why his place of birth is listed on the card as Bahri rather than [Town 1]. I found [the applicant]'s responses to questions about his experiences in Sudan to be natural and unrehearsed. As such, I am reasonably satisfied he has been truthful in regards to his Sudanese nationality, and that he was born in [Town 1], Sudan, and resided there for a considerable portion of his life.

25. Having reviewed this conclusion about and analysis of his identity as contained in the Departmental file, the application for protection (and supporting documents) and the overall evidence before it, the Tribunal finds that Sudan is the country of the applicant’s nationality and assesses his claims for protection on that basis.   

    The applicant’s written claims.

26. In his application for protection, the applicant provided a brief description of his claims.  He claimed that he fears returning to Sudan because the Sudanese Government wants to detain him on political grounds and were threatening to detain him for life.  He claimed that the government believes he is associated with the Equality Justice Movement (JEM) even though he is not a member of the movement and does not want to be associated with them. 

27. In his written claims, the applicant also claims that JEM want to detain him and he fears they will harm him; that he was kidnapped by them and beaten.  He also claims he escaped and ran away to Khartoum.  He claims he will be considered a traitor by both the government and JEM.

28. The applicant claims that he will be killed or be imprisoned for life.  The Government will not protect him because he is wanted by them.

29. In the process of the investigation into his identity, his protection application and the delegate’s interview, the applicant has given extensive information and evidence elaborating on his brief written claims.  It is notable that throughout the process, the applicant has provided a consistent description of the critical events that are the basis for his claim for protection.  During the process of review, a further claim has arisen on the submissions, facts and evidence which was not specifically mentioned in his written claims, namely, that the applicant will face serious harm at the hands of powerful Arab tribes throughout Sudan as a member of a Non-Arab Darfuri tribe.  The following summary of the applicant’s claims is an amalgamation of the various statements, evidence and submissions he has made in support of his protection claims overall.  As will be noted later in this statement of reasons, and for the reasons there given, the Tribunal accepts that the applicant has been truthful in providing his personal history and experiences and does not share the delegate’s doubts about his credibility. 

    The applicant’s claims in summary

30. The applicant was born in [Town 1] in [year].  [Town 1] is in Darfur. He is from [a specified] Tribe.  His mother, two sisters and one brother are missing.  Despite his having been searching for them through [Organisation 1] since he left Sudan, the applicant has not located his family.  He fears that they have been killed. 

31. When the applicant was very young, his mother was raped by a member of an Arabic tribe and subsequently gave birth to a sister who is mixed race.  Due to her obvious differing paternity, his family faced ridicule, and his father experienced feelings of failure because he had been unable to protect his wife. 

32. His father joined JEM because of the hardship they suffered; and to try and ensure future generations would not endure that same hardship.  His role was to speak to the members of the community and youth forums about the movement and encourage young people to join up.  He believes his father was in the movement for about six years.  He became well known because he would frequently meet in public to talk about JEM.  The applicant gave evidence at hearing that his father asked him to join the movement and he resisted because he didn’t want to carry a gun.  When asked if this had been a source of conflict between him and his father, the applicant said that it had not, and that he still loved his father.

33. In about 2011, his father was kidnapped and murdered.  His body was returned to the marketplace on the same day.  At hearing the applicant described how people from the marketplace then brought his body to them at home and said they had seen members of the Arabic militia (who is/was in the control of the Government) take him.  The applicant believes that it was the Government authorities who killed his father in order to make it evident to the wider community that there were severe consequences for joining the JEM militia against the government. Although it is possible his father may have received warnings about his activities and participation in JEM, if he did, he kept them to himself.  As far as the applicant knows, there were no threats made to his father before he was murdered.

34. After his father’s death, the applicant worked at the marketplace, selling [goods], as his father had done.  Before his father’s death, the applicant was already assisting with this work.  Whilst working, he was regularly approached by JEM ‘recruiters’ advising him to follow in his father’s footsteps. The applicant refused because he did not want to become involved in the conflict.

35. In 2012 he was abducted from the marketplace by JEM members.  Four vehicles came and they grabbed him and put him in one of the cars.  There were four men in the car with him, and they pushed his head down on the floor and put a boot on it.  They were abusing him and also hitting him.  He could not see where they travelled.  He thought they were taking him to kill him.  He expected to die. Instead, they took him to a camp somewhere in Darfur.   At the same time two other men ([Mr B] and [Mr C]) were taken to the camp.  They were held for about a month, abused, threatened, and subjected to violence.  They were required to do chores in the camp. There were armed guards everywhere. The accommodation was only tents – it was a militia training camp and there were also willing volunteers there, training for JEM. While he was detained at the camp, he was regularly beaten, threatened and ridiculed for failing to join the movement.  His captors said he was ‘clearly not a man like his father’ and that he would be seriously harmed because he had refused to join them.  They kept demanding he join the movement.  Each time he refused, their treatment worsened. Eventually, he was beaten on the head with a gun, and had a bad cut on his head which was bleeding.  At that time, he knew that the bad treatment would continue and get worse until he was killed, so he, [Mr B] and [Mr C] decided to flee the camp when they were not being watched.  One day the JEM soldiers went out on a mission and there was an opportunity to escape.  The three captives escaped by foot and then were picked up by a passing truck and eventually taken to [Town 1].  By the time he returned to [Town 1], a month had passed. 

1. In [Town 1], the applicant discovered that the village had been raided and his family had fled.  His house was destroyed,  and their livestock had been stolen.  [Mr C] and [Mr B] decided to travel to Khartoum where [Mr C] had an uncle.  No one in [Town 1] knew what had become of the applicant’s family.  He was frightened and isolated so he went to Khartoum with the other men.  They went to the [Town 1] market and begged the man who had brought them to [Town 1] to take them onwards to Khartoum, even though they had no money.  He was not from the applicant’s clan, but he was from another African clan.  He agreed to help them, and they went to Khartoum with him, in the back of his truck. 

2. Once in Khartoum, he went to the market looking for a man his uncle knew that lived in Khartoum.  They found his uncle’s friend, but he was unable to have them in his home, so they went to [Mr C]’s uncle’s home and stayed there one night.  However, [Mr C]’s uncle was worried that the government would come to enquire about them because they had come from Darfur.  He sent [Mr B] and the applicant away, but allowed [Mr C] to stay.  They went back to the market, and looked for food, Mosques and charitable people to help them.  They survived on what people would give them. A couple of weeks later, [Mr B] went to see [Mr C] at the uncle’s house, but discovered that he had been arrested by the government.  The applicant and [Mr B] became very frightened and hid in a mosque. [Mr B] decided he wanted to go to [Country 1], and he did.  He went to the [Country 1] market and somehow left from there.  In desperation, the applicant went back to his uncle’s friend for help, and that man got in touch with his uncle who transferred some money (from [Country 2]) for the applicant.  The applicant went to [Country 2] by boat.  He had no papers or visas.  He worked illegally in [Country 2] for a person his uncle knew, as a [occupation]. 

3. The applicant spent about a year in [Country 2], working illegally until he was captured by the authorities and deported back to Sudan. 

4. When he returned, the applicant went to Khartoum.   He had some savings from his work in [Country 2], around [amount] Saudi Riyall (around AUD $5,500 or 1,800,000 Sudanese Pound.) When he returned, he was told that [Mr C] had been taken away by the Sudanese Authorities because their photographs had been taken at the JEM camp for identification card purposes, and the government had come into possession of those identification documents.  The Sudanese Government was therefore convinced that the three men had been fighting for the JEM movement.  The applicant knew it was therefore not safe for him to stay in Sudan and made arrangements to leave the country.  He went to the [Country 1] market and bought the passport, and all the travel arrangements for traveling to Australia for 10,000 Saudi Riyall.  It was noted at this point that the applicant had given the cost of travelling and the fake passport to the department as several millions, rather than this amount.  He responded that there was some confusion about the way currency is described in Sudan.  They refer to 10,000 Sudanese pounds as a million – so it was in fact many millions that he paid.  He paid the 10,000 Saudi Riyall and the smuggler said he would ‘find himself in Australia.’   That is exactly what happened when he left Sudan about one week later on the false Saudi passport. 

5. The applicant has been involved in the Darfuri community in Australia and has attended anti-coup protests against the military coup which occurred in October 2021.  The applicant has stayed aware of events in Sudan and strongly supports the protests against the military coup that are currently taking place there, and in which an increasing number of protesters have been killed.  

6. The applicant fears harm (being abducted, assaulted and killed) by members of JEM because he does not share their ideology and would not join their movement against the Sudanese Government.  The applicant fears harm (being arrested, assaulted and indefinitely detained and or killed) from the Sudanese Government (including the Arab militias who are empowered by the government) because he is imputed with pro JEM political opinion and anti-Sudanese government political opinion; and because he opposes the military coup.

7. The applicant also fears discrimination and harm from powerful Arab tribes who continue to persecute Darfuri tribes, including rape, murder and theft with impunity throughout the country.  

8. The applicant claims that he cannot relocate because he would be at risk of harm throughout Sudan.

9. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1] The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]

   [1] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

   [2] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

10. This approach is supported in numerous judgements and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

11. The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

12. Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

    Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[3]

    [3] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

13. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

14. Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts: Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).

15. The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[4] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, Information

16. The most recent Department of Foreign Affairs and Trade report on Sudan (27 April 2016) includes the following history to that point in time:

    2.1 Since gaining independence from the United Kingdom and Egypt in 1956, Sudan has experienced a number of protracted conflicts. Conflict in Sudan has been exacerbated by the intricacies of hundreds of different ethnic and sub-ethnic groups which are often simplistically categorised as Arabs and non-Arabs (or Africans).

    2.2 Sudan’s First Civil War (1955 – 1972) and Second Civil War (1983 – 2005) were rooted in the North’s economic, political and social domination of the South and led to the deaths of more than 1.5 million people. In 1972, the Addis Ababa Agreement on the Problem of South Sudan established the Southern Sudanese Autonomous Region, ending the First Civil War and leading to a period of relative stability. In 1983, the Southern Sudanese Autonomous Region was abolished by the then President of Sudan, Gaafar Nimeiry, sparking the Second Civil War.

    2.3 The 2002 Machakos Protocol between the Government and its main opposition, the Sudan People’s Liberation Movement (SPLM) / Sudan People’s Liberation Army (SPLA), outlined the process for negotiations that culminated in the 2005 Comprehensive Peace Agreement (CPA), ending the Second Civil War. The CPA included a commitment to hold a referendum on the sovereignty of the southern provinces, which occurred in 2011. Following the referendum South Sudan seceded from Sudan.

    2.4 The CPA also included a commitment to hold a referendum on whether the Abyei region should be in Sudan or South Sudan and to conduct popular consultations on the future of Blue Nile and South Kordofan. This commitment has not been implemented. Conflict, particularly in Blue Nile and South Kordofan, continues.

    2.5 Since the mid-1980s, the Darfur region has experienced a number of armed conflicts. Conflict in Darfur has been influenced by historical factors such as Darfur’s relative loss of autonomy following the annexation of Darfur into Sudan by the United Kingdom in 1916, as well as successive Governments’ perceived neglect of the region. The International Criminal Court (ICC) has issued two warrants for the arrest of the current President, Omar Hassan Ahmad Al Bashir, after finding that he masterminded and implemented a plan to destroy a substantial part of the Fur, Masalit and Zaghawa people on account of their ethnicity. The ICC has accused al-Bashir of five counts of crimes against humanity, two counts of war crimes and three counts of genocide.

    2.6 The humanitarian situation remains bleak with over three million internally displaced people in Sudan and over 600,000 Sudanese refugees in neighbouring countries. Compounding the situation, Sudan has an estimated 375,000 refugees from Ethiopia, Eritrea, Chad, the Central African Republic and South Sudan (arrivals of which have grown given the continued instability within South Sudan).

17. The latest Department of Foreign Affairs and Trade (DFAT) report on Sudan was made almost seven years ago.  It includes the following summarised information on the matters relevant to this review:

    ·  Darfur has experienced three successive armed conflicts since 1987 between the government (and associated Arab militias) and rebel groups including the Justice and Equality Movement (JEM) and the Sudan Liberation Movement (SLM).

    ·  The most serious conflict in Darfur started in 2003 and led to Prime Minister Bashir’s indictment to the International Criminal Court for war crimes when an estimated 298,000 people died from disease, malnutrition and violence.

    ·  (As at 2016) conflict continues in the Darfur region with counter insurgency military operations led by the government aimed at decreasing the capability of armed opposition.  International bodies have reported that conflict related sexual violence remains a dominant feature of the conflict in Darfur.

    ·  (As at 2016) the humanitarian situation remains dire with an estimated 2.5 million internally displaced people in Darfur, including 200,000 people displaced since January 2015.

    ·  DFAT assesses that non-Arab ethnic groups including the Fur, Zaghawa and Massalit from Darfur and Nuba face the greatest risk of being deliberately persecuted on the basis of their ethnicity.

    ·  Referring to a United States Department of State 2015 Human Rights Report, DFAT notes that fighting in Darfur was often along ethnic lines and that Government-linked groups killed and injured civilians, raped women and children, looted properties, targeted camps for internally displaced people and burned villages.  The UN had characterised the Government strategy in Darfur as one of collective punishment of villages and communities from which the armed opposition are believed to have come.

    ·  DFAT assessed that Darfuris from non-Arab tribes faced a high risk of discrimination and violence based on ethnicity and their actual and perceived support for or association with rebel groups.

    ·  Further, there were reports that Darfuris outside of Darfur were also targeted, particularly in Khartoum. DFAT assessed that in Khartoum they faced a moderate risk of discrimination and violence on the basis of their ethnicity and actual or perceived support for or association with rebel groups.  Darfuris who actively participate in protests face a higher risk.

    ·  Individuals who are associated with or who are perceived to be associated with the armed opposition (including in Darfur and JEM) face a high risk of discrimination and violence by the Government.  Further, this risk extends to those who merely live in or are from the areas controlled by armed opposition, regardless of their association with the groups.  The risks they face are indiscriminate bombings, armed attacks and extrajudicial killings.

18. The United Kingdom Home Office has provided a more updated report in October 2021, outlining the particular issues facing Non-Arab Darfuris.  It is noted that this report was released prior to the military coup occurring (that same month) which removed the promising transitional government which had included some of the previous groups involved in armed conflict and appeared to be moving towards democratic elections. Nonetheless, the report includes the following relevant and useful information:

    2.4.10 There is no exact number of Darfuris in Khartoum but there are estimated to be 100,000s to perhaps a 1 million, representing a significant proportion of the city’s total population. Many, but not all, Darfuris are poor, working in menial jobs and live in informal settlements lacking in basic services – known as the ‘Black Belt’ – that surround Khartoum. However, there are Darfuris represented across society including in the government, law, academia and other professions.

    2.4.11 Sudan is dominated by riverine Arab groups who have historically controlled the highly centralised state centred in Khartoum, considering themselves superior to and discriminating against African groups including Darfuris. General societal and state attitudes appear to have begun to change during the ‘revolution’ against the former regime of President Al Bashir and the formation of the transitional civilian-military government in Augut 2019, which has since introduced reforms to the law to improve fundamental rights. However, such discriminatory attitudes are likely to remain pervasive within the state until significant reform is achieved.

    2.4.12 Prior to the ousting of former president Al Bashir, Darfuris were sometimes perceived by the state to be sympathetic to or even directly linked to Darfuri armed opposition groups. However, with the exception of the Sudan Liberation Army-Abdul Wahid (SLA-AW), all the main Darfuri armed groups have signed the Juba Peace Agreement (JBA) in October 2020, joined the government and now hold ministerial and regional governor posts. The JPA also includes a government commitment for a quota of 20% of Darfuris in the public sector, although it is unclear when this will be implemented. While the SLA-AW has not signed the JPA, it has agreed a ceasefire and remains in talks with the government

    2.4.13 Historically, various agencies of the state – including the police, Sudan Armed Forces, and, in particular, the National Intelligence and Security Service (NISS) – have been responsible for discriminating and targeting Darfuris. Additionally, the militia group, the Rapid Support Force (RSF) – composed of former Janjawid and linked to the atrocities in Darfur during the war in that region between 2003 and 2008 – remains active throughout the country, including in Khartoum. While there has been some security sector reform, notably with the NISS renamed the General Intelligence Service (GIS) and its powers to arrest and detain removed, sources indicate there has been limited substantive security sector change. However, the security forces do not appear to be a unified body, but are composed of various interest groups…

    2.4.24 The security situation in Darfur continues to be unstable. There is an increasing number of inter-communal clashes between ethnic tribes due to land ownership disputes, years of sectarian manipulation along ethnic lines by the former regime and resource scarcity – exacerbated by the failing economy and climate change. Since December 2019, fighting between tribal groups has reportedly led to around 190,000 internally displaced people (IDP), burning and looting of villages and homes, sexual violence and over 400 killings.

    2.4.25 The security situation is a key priority for the transitional government who has condemned the violence. In attempts to stabilise the region, the government has taken a number of measures – such as dispatching security forces, sending government delegations to areas of instability, encouraging tribal leaders to promote reconciliation between ethnic groups and forming a National Plan for Protection of Civilians. So far, government forces have failed to de-escalate the violence and restore calm in the region as police forces are outnumbered and overpowered by armed tribal groups. In addition, there are reports that some members of the Rapid Support Forces (RSF) participate in tribal fights, placing allegiance to their tribal affiliation rather than their uniform.

19. Referring to a report by CEDOCA in 2021, the UK Home Office includes a summary from that report:

    ‘Notions of Arab supremacy and the condescending attitude towards communities from marginalised regions, embedded among the traditional Sudanese elite and deeply rooted in Sudanese society, continue to exist and, according to many sources, this situation is unlikely to change in the near future. The extent and nature of the discrimination a person may face depends on a combination of connected and mutually reinforcing factors such as ethnicity, origin, network, economic status, politics or religious profile.’

20. In this case, the applicant’s claims and evidence outlining his experiences and those of his family in Sudan are not only internally consistent but also plausible given the available country information.  As recently as last year, there was some hope for an enduring cease fire and a pathway to democracy for Sudan, and even a government which included and represented many groups (including non-Arab Darfuri) who have historically been refused any meaningful political role in the country.  That transition to a democratic, civilian led government, which had created some hope for an ongoing peace in Sudan has been brought to a disappointing and violent end by the military coup of late October 2021.[5] Since then there have been widespread protests and military crackdowns on those protesting and demanding a civilian-led government. 

    [5] Sudan police fire tear gas as thousands protest against military | News | Al Jazeera published 6 December 2021

1. The applicant claims that he continues to fear that if he returns to Sudan, he will be harmed by militia on both sides of the Darfuri conflict – by military backed Arab militia with an established history of persecution of non-Arab Darfuri tribes; or by members of JEM, a militia claiming to represent African tribes in Darfur but which also threatens community members unwilling to openly support and enlist their movement.  Behind both of these threats, the applicant suggests that there are unstable and uncertain political affiliations of those who had been active in the transitional government – an unknown which could quickly revert to traditional patterns of Arab domination and violence, targeting the Darfuri tribes and their resistance in order to destabilise opposition to whatever new authority declares itself.  Indeed, recent reports seem to suggest a renewal of the historic patterns of violence in Darfur as feared by the applicant.[6] 

   [6] Darfur killings, attacks, robberies continue with impunity | Radio Dabanga (dabangasudan.org) 13 January 2022; Deadly clashes erupt in Sudan’s Darfur region | Armed Groups News | Al Jazeera 6 February 2022.

2. The applicant’s claims have been carefully considered.  Those claims have been consistently put, elaborated on when requested (and without hesitation), clarified where necessary and, the applicant’s claimed experiences and those of his family are generally consistent with the country information and plausible.   Whilst there are some minor areas where dates and periods of time are vague, it is considered that they are not significant and, indeed, that the applicant’s inability to recall exact dates and times is consistent with the experience of trauma he relates.

3. The Tribunal accepts the applicant’s claims.  It is accepted that he is member of [a] non-Arab Darfuri tribe and that he was born and lived in [Town 1] for most of his life. 

4. It is accepted that his mother was raped by an Arab tribesman when the applicant was very young, and subsequently gave birth to a mixed race daughter.  It is accepted that the applicant’s father joined JEM as an advocate and recruiter.  It is accepted that the applicant’s father was murdered by Government-backed Arab militiamen to send a message to the Darfur community about the dangers of opposing the government and being involved with JEM.   It is accepted that the applicant was not willing to join JEM before his father was killed because he did not wish to bear arms and be part of the conflict.  It is accepted that the applicant was even less willing to join after his father’s murder because the consequences of involvement were even clearer to him due to his father’s death.  The Tribunal accepts that the applicant was subsequently pressed to recruit for JEM and when he refused, he was abducted and held in a JEM training camp somewhere in Darfur, where he was beaten and abused repeatedly by his captors.  

5. The Tribunal accepts that the applicant and two of his co captors were able to escape after about one month when the camp was temporarily poorly guarded due to most members being out on a mission, and that they made their way, with tribal help, back to the applicant’s home village.  It is accepted that he found his home in ruins, his family missing and his stock stolen. He and his co-captors then begged the truck driver who had taken them to [Town 1] to take them onwards to Khartoum, and he agreed to do so, in the back of his truck.

6. Once in Khartoum, it is accepted that the applicant struggled to survive and lived a transient life where he tried to stay in hiding as much as necessary. When one of his fellow former captives was arrested by police, he contacted an uncle through an intermediary and departed from [Sudan] for [Country 2].  He worked in [Country 2] for about one year, but was captured by the police and deported to Sudan in 2013.  He then heard that the Sudanese government had been given documents which suggested he had joined the JEM (identification created when he was held hostage by them).  He was fearful that he would be arrested and killed by the government because they believe he is a member of JEM. The applicant used his savings from [Country 2] to purchase a fake identity, travel documents and passage to Australia. 

7. It is also accepted that the applicant has participated actively in the Darfuri community in Australia and has participated in protests here in Australia against government and army brutality in Sudan.  Based on his expressed opinions and awareness of ongoing and recent Sudanese events, the Tribunal considers that if he were to return to Sudan, the applicant would join in protests demanding civilian democratic rule.  

8. The Tribunal accepts that the applicant fears his family is dead because they have not made contact with him or his uncle in [Country 2] since 2012.  The [Organisation 1] has not been able to locate his mother, sisters or brother.

   Is there a real chance that the applicant will be persecuted in Sudan?

9. The applicant is from the ethnic group of non-Arab Darfuri tribesmen.  He is also linked to JEM by his father’s involvement in the organisation and the identity cards which falsely suggest he joined the movement in his own right in 2012.  His father was murdered by a government-backed Arab militia and the applicant’s home was destroyed and his livelihood stolen.  He has been told and believes that it was an Arab militia who did this to his home in 2012.  The applicant was abducted and beaten by JEM because he refused to join their fight against the ruling government and the Arab militias.

10. The applicant strongly suspects that his surviving family has also been murdered by one or other of these persecutors.  It is hoped that he is wrong; but given the passage of time since any news has been heard from them (and despite the [Organisation 1] assisting him in searching for them since around 2016) and the fact that they have not made contact with his uncle in [Country 2], the applicant’s suspicion is not unreasonable or implausible.

11. The country information suggests that Sudan is facing ongoing instability and conflict for the foreseeable future, despite hopes for a lasting peace and a reformed, civilian democracy after the former Prime Minister Al-Bashir and his repressive government was deposed in 2019.  Those hopes for a peaceful and democratic future were dashed by another military coup in October 2021.  There is every reason to suspect that the old patterns of brutal and powerful allegiances will be re-established, given the military’s current tactic of suppressing protest by killing and jailing its own citizen protestors. 

12. The Tribunal has found that the applicant is a person who has a profile which would be perceived to be opposed to the military and government-backed Arab militias, (and potentially as a former JEM militant) and as a traitor by his father’s former compatriots in JEM. Additionally, if he chooses to express his right to protest against the current regime, the applicant would be potentially targeted by the armed forces of Sudan for his political opinion.

13. After considering all of the applicant’s claims individually and cumulatively, and taking into account the country information available, the Tribunal considers that there is a real chance that the applicant will suffer persecution now or in the reasonably foreseeable future if he returns to Sudan, because of his ethnicity as a non-Arab Darfuri and also on the basis of his political opinion as one opposed to both the ruling military forces and the Darfuri resistance organisation, JEM.  The persecution he fears involves serious harm and systematic and discriminatory conduct.    

14. The applicant is unable to reasonably relocate within Sudan because the ruling military and associated militias hold power throughout the country and they (or their associated tribal militias) are one of the persecutors he fears.  In addition, Darfuri tribal regions such as his home area of [Town 1] would pose an unreasonable risk to the applicant given his enemies within JEM, let alone the fact that he would be potentially unable to subsist given the actions taken by one or other of the persecuting militias against him and his family.

15. The applicant fears harm from several different Sudanese entities and in particular from the military-established government in Sudan.  The applicant is unable to obtain protection in Sudan from the persecution he fears, because the persecutors include the military government and government backed militia throughout the country.   The applicant is unable to relocate within Sudan for the same reasons. There is no suggestion in this case that the applicant has a right to enter and reside in any third country and the Tribunal finds that he has no such right.

16. The Tribunal finds that the applicant has a well-founded fear of persecution in Sudan.

17. 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 satisfied the criterion set out in s 36(2)(a).

    DECISION

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

    Anne Grant
    Member