1811959 (Refugee)

[2018] AATA 4606

1811959 (Refugee) [2018] AATA 4606 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811959

COUNTRY OF REFERENCE:                  Sudan

MEMBER:Nicole Burns

DATE:10 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

a) the applicant satisfies s.36(2)(a) of the Migration Act; and

b)    the grant of the visa is not prevented by s.91WA.

Statement made on 10 October 2018 at 2:59pm

CATCHWORDS

REFUGEE – protection visa – Sudan –  Federal Circuit Court remittal – ethnicity – Nuba – imputed political opinion – anti-government – religion – Muslim Nuba – particular social group – returnee to Sudan – parents killed in civil war violence – no state protection – credibility – coherent and spontaneous oral evidence – incorrect citizenship information – identity documents previously determined as bogus – previous use of fraudulent passport – destruction or disposal of identity documents – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91WA, 499

Migration Regulations 1994 (Cth), Schedule 2, cl 790.221

CASES

BGM16 v MIBP [2017] FCAFC 72

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 on 7 March 2017 to refuse to grant the applicant a Class XE Safe Haven Enterprise (Subclass 790) visa (SHEV) under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen Sudan, applied for the visa on 9 May 2016. The delegate refused to grant the visa on 7 March 2017.  The applicant sought review of that decision and the Tribunal (differently constituted) affirmed the delegate’s decision on 6 October 2017.  That decision was set aside by the Federal Circuit Court.  The matter is now before the Tribunal pursuant to an order of the Court for reconsideration.

3. The applicant appeared before the Tribunal on 5 September 2018 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s sister, via the telephone from [Country 1].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

5. The issue in this case is whether the applicant is owed protection obligations by Australia as a refugee or if the 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. Relevant to this case, cl.790.221(2) of the Safe Haven Enterprise (Subclass 790) visa requires that:

   The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

7. 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.

8. 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.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. 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).

10. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.  

11. 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

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    NATIONALITY AND IDENTITY MATTERS

13. The Tribunal notes in his initial statement to the Department (and record of his entry interview) the applicant states that he is from South Sudan, not Sudan.  However in one of his statutory declarations[1] provided to the first Tribunal, the applicant explains this was a mistake, attributable to his misunderstanding about geography and the difference between South Sudan, and Southern Sudan where his parents are from.  Given he grew up in [Country 1] and the significant demographic and political changes in Sudan and South Sudan since 2011 when South Sudan was established, the Tribunal does not find this surprising and accepts the applicant meant to refer to Sudan when he made reference to South Sudan in his initial claims to the Department. 

    [1] Dated 23 June 2017

14. The applicant claims to be a Sudanese national who was born in [Country 1] in [year] to Sudanese parents.  He resided in [Country 1] until 2015 when he was deported to South Sudan.  He made his way to Sudan from South Sudan then overland on a truck back to [Country 1], having spent about five months in Sudan and South Sudan.  He spent 21 days in [Country 1] before flying to Australia (via [Country 5]) in July 2015 on a [Country 1] passport using a different name, organised by [Mr A], a friend and employee at his former [sports] club in [Country 1].  According to the delegate’s decision record (a copy of which the applicant provided to the first Tribunal for the purposes of the review) the applicant provided to the Department the following documents relevant to the question of his identity and nationality:

    ·A copy of his [Country 1] birth certificate issued by [a government department of], [Country 1] on [date], and translation from Arabic to English.

    ·A copy of his Sudanese citizenship certificate.

    ·A copy of his Sudanese ID card. 

    ·A copy of a death certificate translated from Arabic to English issued by [a] Hospital, South Kordufan, on 15 November 2012.  It records the death of [a named person] (the applicant’s father) on 11 November 2012 at [a particular location] due to ‘gunshot Direct hit on the head led to Smashing the skull’.

15. The Tribunal notes that in his 23 June 2017 statutory declaration provided to the first Tribunal the applicant states that his father obtained a Sudanese passport [Tribunal emphasis] and ID card from the Sudanese Embassy in [Country 1] in around 2003.    At hearing the applicant said whilst he was in Australia [Mr A] sent him copies of his Sudanese passport and ID card, which he was able to obtain through a contact – [a named person]– at the Sudanese Embassy in [Country 1].  The applicant said his former [sports] club also held copies of his identity and other relevant documents.  [Mr A] sent the documents to the applicant via his sister: the applicant said he submitted them to the Department.  However the delegate (and first Tribunal) refers to the applicant providing copies of his Sudanese citizenship certificate and ID card and there is no copy of a Sudanese passport on any of the files before the Tribunal.  The Tribunal therefore is of the view that the applicant was referring to his Sudanese citizenship certificate when he erroneously referred to his Sudanese passport in his statutory declaration and at hearing.

16. The delegate found the applicant was a national of [Country 2], based in large part on his fingerprints identifying him having applied to travel twice to [Country 3] on a [Country 2] passport, and Departmental records indicating the applicant had applied for a visitor visa to Australia in 2010, also as the holder of a [Country 2] passport.  The applicant explained to the Tribunal that his [sports] club in [Country 1] organised a fake [Country 2] passport for him, which was required to play overseas – specifically in a tournament in [Country 4] in 2014 – and also as ID when he played in different cities in [Country 1].  He said it was easy to obtain fake [Country 2] passports through the [Country 2] embassy in [Country 1].  He has no idea about an application to visit Australia in 2010, but surmised his [sports] club may have lodged the application on his behalf at the time, possibly with the view to compete in a tournament in Australia.  It has been submitted that he was young at the time – [age] years old – and his father and [sports] club organised everything.

17. For the following reasons the Tribunal is satisfied the applicant is a national of Sudan – not a [Country 2] national - and has assessed his protection claims accordingly.

    a.The applicant has consistently claimed to have been born in [Country 1] to Sudanese parents who originate from the Nuba Mountains in South Kordofan, Sudan and belong to the Nuba ethnic group.  Country information indicates that Nuba groups are predominantly from Southern Kordofan and Blue Nile.  His claims that his parents (and brother) were deported from [Country 1] to Sudan in 2012, that his parents died around 2012/2013 in Sudan, and that he was deported to South Sudan in 2015 (whilst his sister has remained in [Country 1]) have been consistent from his arrival in Australia as set out in his record of interview on the delegate’s file (dated 23 July 2015) to the current Tribunal proceedings. 

    b.The applicant’s core claims about his nationality, ethnicity, family composition and background, and past experiences are consistent with what he has told his counsellor at [Welfare Organisation 1], whom he was referred to in August 2016 (prior to the delegate’s decision to refuse to grant him a protection visa), as set out in two reports[2] from [Welfare Organisation 1] provided to the Department and current Tribunal.  

    c.At his entry interview shortly after his arrival in Australia and at two separate Tribunal hearings,[3] the applicant has communicated via a Sudanese Arabic interpreter.  This indicates that he was born to Sudanese parents.  Country information indicates that whilst Nuba ethnic groups speak several different languages or dialects, the lingua franca is Sudanese Arabic.[4]

    d.At the current Tribunal hearing the applicant’s sister, who resides in [Country 1], gave evidence, confirming that her parents were Sudanese and the applicant’s core claims about their family’s background, ethnicity, and circumstances. 

    e.[Mr B, an office bearer] of [an Australian Sudanese organisation, Association 1] provided two letters[5] and appeared before the current Tribunal attesting that the applicant is of Nuba ethnicity, who he described as the indigenous people of Sudan. He told the Tribunal he met the applicant after the [office bearer] of [an ethnic] community had visited the applicant’s detention centre and then telephoned him to advise that he had come across someone from the Nuba Mountains. [Mr B] and the applicant then communicated a number of times over the telephone. He said he knew the first time that he spoke with the applicant that he was from the Nuba Mountains because of his dialect (‘Sudanese Arabic’) and after he met him because of his ‘black’ appearance. He said he also spoke to members of the applicant’s Ghulfan tribal community in [an Australian state] (he explained that ‘Nuba’ refers to people of the Nuba Mountain constituted by many different languages, dialects and tribes). The Tribunal found [Mr B] a credible witness and accepts his evidence in this regard, which is supported by independent country information. Reports indicate that an individual could be identified or perceived as Nuba due to their name, the colour of their skin, facial appearance or accent,[6] and that Nuba are of black African origin.[7]

    f.The applicant’s [Country 1] birth certificate and translation from Arabic to English states, among other things, that he was born in [City 1, Country 1], on [date], that his nationality is Sudanese and that his parent’s nationality is Sudanese.

    [2] Dated 14 February 2017 and 9 April 2018.

    [3] On 26 June 2017 (the first Tribunal) and on 5 September 2018 (the current Tribunal). 

    [4] International Refugee Rights Initiative, ‘“We just want a rest from war”: Civilian perspectives on the conflict in Sudan's Southern Kordofan State’, April 2015 <  

    [5] One undated which was submitted to the first Tribunal and the other dated 30 August 2018 which was submitted to the current Tribunal.

    [6] UK Home Office, ‘Sudan: Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, August 2016, pp. 66 and 88 <

    [7] IRIN News, ‘The Nuba: prisoners of geography’, 3 August 2015 <

18. The Tribunal notes that the applicant’s knowledge of Sudan in general and specifically about the area his parents originated from (the Nuba mountains) and his Nuba ethnicity was limited.  However this is unsurprising given he has only spent around five months in the country during a time of war and the Tribunal does not draw any adverse inference from this fact, noting his sister’s oral evidence in this respect was similarly limited, given she has spent her entire life in [Country 1].

19. The applicant has not denied the existence of a fake [Country 2] passport he has used in the past.  He said that he applied (via his [sports] club) for a visa to travel to [Country 3] in the past on that passport, and travelled to [Country 4] in 2014 for a [sports] tournament on that passport.  He explained that he did not immediately tell the Department about its existence, afraid he would be deported to [Country 2] where he has never been and has no claim.  It is of concern that the applicant obtained [Country 2] (and [Country 1]) passports in different names in the past, which he has used for international travel, among other things.  It is submitted that the applicant was young at the time and that his father and [sports] club were responsible for organising all of his documents and travel in the past.  The representative submits that it is not uncommon for [sports] clubs in Arab states to organise fraudulent passports and other documents to enable foreign [sports] players to play in their country, as the applicant has claimed occurred in his case, and she has referred to relevant country information to support her contentions in this regard.  Although of concern, for reasons above the Tribunal is satisfied the applicant is a national of Sudan, who grew up in [Country 1] and played professional [sports] there.  Furthermore, country information indicates that [Country 2] experiences high rates of document fraud and corruption at local offices enabling the fraudulent production of genuine passports.[8]  It also indicates that corruption within [sports] clubs is endemic.  For these reasons the Tribunal accepts as plausible the applicant’s explanation as to why he held a [Country 2] passport in the past and does not consider this alone is probative evidence that he is a national of [Country 2], not Sudan. 

    [8] DFAT Country Information Report Nigeria, 9 March 2018 at 5.37 and 5.38.

20. The Tribunal notes the delegate determined that the applicant’s Sudanese documents (citizenship certificate, ID card and his father’s death certificate) were fraudulent, given the extent of document fraud throughout [Country 1] and Sudan, and because the applicant had been vague about how they were obtained.  Before the current Tribunal the applicant has provided explanations as to how his father obtained the citizenship certificate and ID document when he was young (and therefore less informed about the process) and how his family friend [Mr C] obtained his father’s death certificate from a hospital in South Kordofan since the applicant has been in Australia, which the Tribunal found persuasive. 

21. Given these considerations and the fact the Tribunal accepts the applicant is a national of Sudan for the reasons set out above, the Tribunal also accepts that the applicant’s Sudanese documents – that is his citizenship certificate, ID card and his father’s death certificate – are genuine.  Section 91WA of the Act, regarding the provision of bogus documents or destruction of certain identity documents, is therefore not enlivened with respect to these identity documents, which give weight to the applicant’s claims to be a national of Sudan, not [Country 2]. 

22. The Tribunal notes that s.91WA provides that the Minister must refuse to grant a protection visa to an applicant who has provided a bogus document as evidence of his identity or where the Minister is satisfied that an applicant has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship, or has caused such documentary evidence to be destroyed or disposed of, unless the applicant has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence and has otherwise provided documentary evidence of his identity or taken reasonable steps to do so.  The Tribunal notes that as well as a counterfeit or altered document, the definition of a bogus document includes a document that purports to have been, but was not, issued in respect of the person or which was obtained because of a false or misleading statement, whether or not made knowingly.

23. Although not addressed directly by the delegate, the Tribunal has considered whether s.91WA is enlivened in the applicant’s case given his claims to have left [Country 1] enroute to Australia (via [Country 5]) in July 2015 as the holder of a fraudulently obtained [Country 1] passport.  It is not in dispute that this document – which the applicant said was a genuine passport but with a different name – was fraudulently obtained by the applicant’s friend from his former [sports] club in [Country 1], [Mr A].  However, according to information in the border referral about the applicant’s arrival (set out in an email to the delegate on 7 September 2015 contained on the Departmental file), the applicant arrived in [Australia] undocumented and claimed that a male person ensured his passage through customs/immigration in [Country 5] (before boarding a plane to [Australia]) then took the applicant’s ([Country 1]) passport from him when he was safe to go on the plane.  The border referral notes also state that it was established that the applicant most likely arrived on a flight from [Country 5] where a person – [name deleted] (born in [year]) – checked in but did not arrive in [Australia]: that is the name on the [Country 1] passport the applicant allegedly used to leave [Country 1].  Given the [Country 1] passport was taken off the applicant when he left [Country 5] and the applicant arrived in Australia undocumented, the Tribunal is of the view that s.91WA(1)(a) is not applicable in this case because the applicant did not ‘provide’ a bogus document in connection with a protection visa application.    

1. The Tribunal has considered if s.91WA(1)(b) is enlivened in this case where the Minister is satisfied that an applicant has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship, or has caused such documentary evidence to be destroyed or disposed of, given his evidence as set out above that he gave  [Country 1] passport to a man in [Country 5] before leaving.  The Tribunal is of the view that as the applicant did not destroy or dispose of his own identity documents, but rather an identity document he used but that was not in his name, it cannot be said that he or someone else destroyed or disposed of ‘the applicant’s identity’ documents as required by s.91WA(1)(b). 

2. Even if s.91WA(1)(b) does apply – noting the Tribunal’s view that it does not because the [Country 1] passport was not in the applicant’s name is not free from doubt (and in the absence of case law) - for the following reasons the Tribunal is satisfied that the applicant has a reasonable explanation for the destruction or disposal of the documentary evidence and has otherwise provided documentary evidence of his identity or taken reasonable steps to do so.  The applicant has explained the reason he obtained the [Country 1] passport was because he needed to flee [Country 1] where his status was illegal, fearful of being deported back to Sudan where he faced a well-founded fear of persecution, as had occurred in 2015.  For reasons that follow the Tribunal accepts his claims in this regard and therefore is satisfied his explanation for the destruction or disposal of the documentary evidence – in this case the [Country 1] passport not in his name – is reasonable.  Furthermore, the Tribunal is satisfied that the applicant has otherwise provided documentary evidence of his identity or taken reasonable steps to do so by obtaining copies of his Sudanese citizenship certificate, Sudanese ID card and his father’s death certificate via his friend ([Mr A]), his sister in [Country 1] and another friend ([Mr C]) in Sudan, since his detention in Australia in July 2015.  For reasons above the Tribunal accepts these documents are genuine.  On this basis the Tribunal is satisfied that the applicant meets s.91WA(2)(b) and that he is not prevented from being granted a protection visa by operation of s.91WA(1)(b)(ii). 

3. The Tribunal has also considered whether s.91WA(1) applies in the applicant’s case – which would prevent the granting of a protection visa – on the basis of his application for a visitor visa in 2010 when he was [age] years old as the holder of a fraudulently obtained [Country 2] passport.  However for the reasons that follow the Tribunal finds it does not apply.  That is because the most recent Federal Court authority on this matter is that s.91WA is directed to the making of a protection visa application: BGM16 v MIBP [2017] FCAFC 72.  As the aps [Country 2] passport was linked to a visitor visa application eight years ago, the Tribunal is satisfied it was not made during the process or making of the applicant’s protection visa application in 2015. In these circumstances the Tribunal did not seek the relevant visitor visa file from the Department.

4. For these reasons the Tribunal finds that s.91WA does not operate to prevent the applicant from being granted a SHEV visa.

5. The Tribunal notes the applicant refers to himself as being ‘stateless’ in his protection visa application form and his former representative submitted to the first Tribunal that the applicant may be considered stateless.  That is because, she argued, that although the applicant (via his father) obtained Sudanese citizenship in around 2003, prior to the separation of Sudan and South Sudan, his parents were born in Renk, South Sudan.  As such he could be considered by the Sudanese authorities to have obtained South Sudanese nationality and therefore his Sudanese nationality can be revoked, under the Sudanese Nationality Act (Amendment) 2011.  In one of his statutory declarations provided to the first Tribunal[9] the applicant stated that even though his parents were from the Nuba mountains, they were born in the town of Al-Renk/Renk (translated to ‘Al-Rayne’ in his [Country 1] birth certificate), which although was part of Sudan, is now part of South Sudan. However at the current Tribunal hearing the applicant did not state that his parents were born in Renk and only mentioned the town when detailing the places he had passed through when he was deported to South Sudan from [Country 1] in 2015.  He said his parents were born somewhere in the Nuba Mountains in South Kordofan and the Tribunal accepts that is the case.  When asked about his former representative’s submission about him being stateless, the applicant said he did not think he was stateless as long as he could go to the Sudanese Embassy to obtain Sudanese citizenship.  The representative submitted at hearing that although the applicant thinks he can do so, it has never been tested in practice.

   [9] Dated 17 July 2017.

6. The Tribunal has considered the applicant’s concerns about possibly being stateless.  It notes that he automatically acquired Sudanese citizenship because of his father being Sudanese, as per the Sudanese Nationality Act 1994.  His father obtained the applicant’s identity documents from the Sudanese Embassy in [Country 1] in 2003.  For the reasons above, the Tribunal does not accept the applicant’s parents were born in Renk, which is now part of South Sudan and in fact accepts that his parents were born in Sudan.  Given these considerations the Tribunal does not accept the submission that the applicant is at risk of having his Sudanese citizenship revoked.

7. For these reasons the Tribunal finds the applicant is a national of Sudan and that Sudan is his country of nationality for the purposes of s.5H of the Act and his receiving country for complementary protection purposes. 

8. The Tribunal notes the applicant claimed in one of his statutory declarations[10] provided to the first Tribunal that in 2009 his [sports] club obtained [a] (work permit) number for him, to allow him to play in different cities throughout [Country 1].  He assumes they paid a bribe to obtain it.  He states that the [work permit] was for him alone, not his family, and that he was uncertain of its status although he did not feel that it meant he was living in [Country 1] legally.  The Tribunal is willing to accept his claims in this regard and is satisfied that although he was given [a Country 1 work permit] in 2009 by his [sports] club in [Country 1], this does not necessarily mean he has residency or work rights there.  The Tribunal therefore also finds the applicant cannot avail himself of a right to enter and reside in [Country 1], given it accepts his claims that he has no valid visa or claim to a visa there, and used a fraudulently obtained [Country 1] passport to enter Australia. 

   [10] Dated 17 July 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant claims to fear persecution on return to Sudan on ethnicity grounds, as a member of the Nuba tribe.  He claims his parents – also Nuba tribe members – were killed as a result of ongoing conflict in the Nuba Mountains after they were deported to Sudan from [Country 1] in 2012. 

10. The applicant initially set out his claims in a typed statement he provided to the Department, dated 6 May 2016.  He expanded upon those claims, corrected some minor mistakes in that statement, and responded to the delegate’s specific concerns (about his identity and other claims, such as the death of his parents) in a statutory declaration submitted to the first Tribunal, dated 23 June 2017.  He provided additional information about his identity and background in another statutory declaration provided to the first Tribunal, dated 27 July 2017.  The applicant’s former representative provided a written submission dated 17 July 2017 to the first Tribunal, setting out the applicant’s claims, addressing specific concerns raised by the delegate, and referring to relevant country information to support the contention that the applicant’s fears if returned to Sudan are well founded. 

11. Before the current Tribunal the applicant’s representative has provided two detailed written submissions – dated 15 May 2018 and 29 August 2018 - in which she outlines the applicant’s background, grounds for protection and references country information and case law where relevant.  At the hearing the applicant told the Tribunal about his background, his family’s situation and reasons for fearing returning to Sudan.  His oral evidence was detailed, coherent, spontaneous and consistent with his written claims to the Department and first Tribunal.  His claims were also corroborated by his sister’s oral evidence, given over the telephone from [Country 1], in so far as she was aware of relevant events and details.  Accordingly, the Tribunal accepts the applicant’s core claims, summarised as follows.

    ·The applicant was born in [Country 1] to Sudanese parents in [year] where he lived until he was deported to South Sudan in 2015.

    ·The applicant’s parents – and therefore the applicant – are of Nuba ethnicity, originating from the Nuba Mountains in South Kordofan, Sudan.

    ·In [Country 1] the applicant attended school and played [sports] for a professional club, occasionally receiving remittances for doing so.  His [sports] club arranged a [Country 2] passport for him to travel to [Country 4] for a tournament in 2014 as well as to use as an identity document when travelling outside [City 1, Country 1] to play [sports].

    ·The applicant’s parents moved from Sudan to [Country 1] in the sixties or seventies. His father [worked] there until he (and the applicant’s mother and the applicant’s brother along with other Sudanese residents in their apartment building) were deported to Sudan in 2012: the applicant’s father’s residency permit [having] expired in around 2005/2006. 

    ·The applicant and his sister – who were at school when the authorities rounded up and deported their parents and brother in 2012 – stayed living in [Country 1]: the applicant in their apartment and his sister with neighbours, where she currently resides, illegally.  The applicant said he was able to stay in the apartment – which was very basic – because the Sudanese owner allowed him to.

    ·The applicant heard from people in Sudan that his parents, who had moved to the Nuba Mountains after being deported, were killed due to conflict in their village, in 2012 or 2013, he thinks by government forces.  His brother survived.

    ·When the applicant was deported to Sudan in 2015 he was sent – along with others – to the capital of South Sudan (Juba) first, then to Malakal in South Sudan.  There he slept in the streets before making his way to Renk which is on the border between Sudan and South Sudan, and then to Ghadaraf, Sudan. 

    ·After around five months in South Sudan and Sudan the applicant returned to [Country 1] on an overland truck, assisted by a friend at his former [sports] club in [Country 1], [Mr A].  In [Country 1] the applicant stayed with [Mr A] for around 21 days before leaving the country (afraid he would be deported back to Sudan).  He went to Australia via [Country 5] on a [Country 1] passport not in his name, arranged by [Mr A], who also organised the applicant’s Australian tourist visa.

    ·The applicant’s brother, who is now [age years old], currently lives in Khartoum, looked after by a human rights organisation/NGO.  The applicant heard he moved to a refugee camp in a neighbouring area after the attack on the village where their parents were killed.

12. The Tribunal notes the delegate did not accept that the applicant’s parents were killed after discovering the applicant’s father’s [Country 1 work permit] was still valid after he claimed it had ceased (around 2005/2006) and after his father had allegedly been deported to Sudan (in 2012).  The first Tribunal checked the validity of the applicant’s father’s [Country 1 work permit] number through [a Country 1 government agency] website page and found it was valid until 12 December 2016, contrary to the applicant’s claims that it had expired in 2005/2006.  At the current Tribunal hearing the applicant said he was not sure why that was the case, but noted that immigration in [Country 1] is corrupt and officials can easily sell work permits to others, as long as they have [a permit] number: he assumes that is what happened with his father’s [Country 1 permit] number.   Although of some concern, the Tribunal notes the applicant has consistently claimed his father’s [Country 1] work permit ceased in 2005/2006, that his parents were deported to Sudan in 2012, and around a year later he found out through contacts in the Nuba community that his parents had died in his written and oral evidence to the Department, the first Tribunal and the current Tribunal, as well as to third parties such as his counsellor at [Welfare Organisation 1], who he has seen since 2016.  His claims in this respect were also corroborated by his sister’s oral evidence to the current Tribunal.  As well, he has provided a copy of his father’s death certificate, obtained via a family friend who resides in Khartoum.  Given these considerations, combined with the Tribunal finding the applicant a credible witness, the Tribunal accepts as plausible that the applicant’s father’s [Country 1 work permit] number may have been used by someone else beyond 2005/2006, and this alone does not lead it to conclude that the applicant was untruthful in his claims that his parents are deceased. 

13. The delegate also had doubts about the applicant’s claims that his parents were deceased because of the existence of a [Social Media 1] post which appeared to contain a message from his parents asking about him through one of his [Social Media 1] friends in September 2015.  In a written submission[11] to the first Tribunal it was explained that the comment (about his father and mother asking how he was) was made by [Mr D], the son of the family who had helped take care of the applicant (and his sister) in [Country 1] after his parents were deported: specifically that [Mr D]’s parents were asking how the applicant was, as opposed to his own parents.  This explanation was supported by accredited translations of the [Social Media 1] posts provided to the first Tribunal and the Tribunal accepts that was the case. 

    [11] Dated 17 July 2017.

14. In terms of determining the applicant’s home area in Sudan, the Tribunal notes that although the applicant was born in [Country 1] and lived most of his life there, he gave evidence that his parents’ originate from the Nuba Mountains in South Kordofan, which the Tribunal accepts.  South Kordofan is one of the conflict affected areas in Sudan, commonly referred to as the ‘Two Areas’ which includes South Kordofan and the Blue Nile. 

15. Country information indicates that in mid-2011, following South Sudan's independence, conflict broke out between the government and the Sudan People’s Liberation Movement-North (SPLM-N) in Southern Kordofan and Blue Nile states. The ongoing conflict has severely affected or displaced more than 1.1 million people within the Two Areas and caused more than 300,000 people to flee to neighboring countries.[12]  The unilateral ceasefire called by the Sudanese government in June 2016 for conflict areas in South Kordofan and Blue Nile and extended to Darfur has reportedly held, despite sporadic clashes. The UN Independent Expert on the human rights situation in Sudan has continued to receive reports that government forces and the SPLM-N had engaged in sporadic military attacks in South Kordofan, hostilities continue between government and armed opposition elements in various parts of Sudan, and millions of people remain displaced.[13]  The UN Independent Expert on the human rights situation in Sudan also noted that despite some positive steps taken by the government and an overall decline in military operations in those areas, the overall security situation remained volatile and unpredictable and that the prevalence of armed groups, which include government-backed militia and other armed actors who operate in total impunity, continue to pose a serious threat for the protection of civilians and human rights in Darfur, Southern Kordofan and Blue Nile.[14]

    [12] United States Department of State, Bureau of African Affairs, Fact Sheet, US Relations with Sudan,  14 May 2018,

    [13] United Nations Human Rights  Council, Report of the Independent Expert on the situation of human rights in the Sudan, 27 July 2017, p. 9 <  Atlantic Council, ‘Sudan: A Strategy for Re-Engagement’, 14 July 2017, p. 14, Ibid, pp. 5-7 and 14.

    Well-founded fear of persecution in the future

16. It is submitted that the applicant faces a well-founded fear of persecution on return to South Kordofan on account of his:

    ·Ethnicity (Nuba, of African descent);

    ·Imputed anti-government political opinion by virtue of his Nuba ethnicity;

    ·Religion (Muslim whereas most Nuba are Christians) and Muslim Nuba are identified as false Muslims by the Arab majority; and

    ·Particular social group of returnees to Sudan.

17. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution in South Kordofan on the basis of his Nuba ethnicity and imputed anti-government political opinion by virtue of his Nuba ethnicity.  It has therefore been unnecessary to consider the other grounds advanced.

18. In her submission[15] to the first Tribunal the applicant’s former representative refers to country information from a variety of sources about human rights abuses in Sudan against people of Nuba ethnicity and the state of conflict in South Kordofan, among other things.  She submits that there has been an association between the Nuba and the rebels by the Sudanese government as many Nuba people have supported the SPLM-N as a result of persecution by the government and lack of self-determination.  It is submitted that the applicant is identifiable as belonging to the Nuba ethnic group by his appearance and will be imputed with pro-rebel and anti-government views: as a consequence he will be at risk of serious harm, including enforced disappearances, extrajudicial killings and detention.  These themes were reiterated and expanded upon in the representative’s submission to the current Tribunal, with updated country information about the conflict situation in South Kordofan and treatment of Nuba people there and elsewhere (among other things), some of which is referenced below.   

    [15] Dated 17 July 2017.

19. At hearing [Mr B] from [Association 1], gave evidence about the history of conflict for Nuba people, who are indigenous Sudanese, as well as the current situation.  He said the area has been closed off since the conflict began in 2011 and almost 15,000 people have been killed.  He came to Australia in 2005 and although it is unsafe for him to return, he keeps in touch with people from the Nuba Mountains as best he can, given the poor phone network.  He said Nuba have been targeted by the ‘Arab’ government based in Khartoum who has a plan for an Islamic country: the killing began in Darfur and spread to the Blue Nile and South Kordofan, which are ‘pure’ African areas.  He said Nuba, who are ‘black’ have been targeted for a long time.  He has heard that Nubans have moved further up the mountains because of attacks by government-supported (Arab) militias from different parts of the country against their villages, resulting in killings, violence and looting. 

20. The Tribunal accepts the applicant’s ethnicity is Nuba, as was his parents.  Nuba is a term used to describe over 50 ethnic groups that inhabit the Nuba Mountains in South Kordofan and Blue Nile and number an estimated 3.7 million people.[16]  The applicant has not claimed to have experienced threats or harm in the past in Sudan on this basis, which can be explained in large part by the fact that he has rarely lived in Sudan, apart from a five month period in 2015.  He claims his parents were victims of the conflict that has engulfed the area since 2011 and even though his oral evidence was vague about the circumstances of their deaths, the Tribunal accepts that they were killed as a result of conflict in South Kordofan in around 2012 or 2013, possibly by the army as claimed. 

    [16] DFAT Country Information Report Sudan, 27 April 2016.

1. The applicant’s brother, who was deported to Sudan with his parents in 2012, has remained there and currently resides in Khartoum, cared for and protected to a certain degree by human rights NGO there.  The applicant’s evidence about what happened to his brother after his parents were killed (and whilst still a child) is somewhat unclear: he states he spent some time with distant relatives or other tribal members and some time in a refugee camp.  He has spoken to his brother over the phone since he came to Khartoum a few months prior to the current Tribunal hearing however they did not talk much about what his brother had experienced, nor the circumstances of his parents death.  This is understandable, given the trauma involved and his brother’s still relative youth.  Whilst his brother has not been directly harmed during his time in Sudan, he has been itinerant after the loss of his parents and extremely vulnerable. 

2. Given these findings the Tribunal has considered independent country information about the security situation in South Kordofan, including treatment of people of Nuba ethnicity, as follows. 

3. DFAT in their most recent country information report on Sudan state that ethnically motivated discrimination and violence continues, particularly in conflict-affected areas in Darfur, Blue Nile and South Kordofan.[17] Specifically they state:

   In South Kordofan and Blue Nile the Government and SPLM-North have been accused of using excessive force and targeting civilians. The Government’s artillery and aerial bombing campaigns have resulted in significant damage to infrastructure as well as civilian casualties. The situation is considered most severe in South Kordofan, particularly in the Nuba Mountains, where the SPLM-North has a strong presence.

   ...

   Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking, identifying the Fur, Zaghawa, Massalit and others in Darfur, along with the Ngok Dinka, Nuba and Beja, as the most at risk ethnic groups in Sudan. Based on discussions with in-country contacts, DFAT assesses that this is broadly accurate and that non-Arab ethnic groups including the Fur, Zaghawa and Massalit from Darfur and Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.[18]

   [17] Ibid at 3.2.

   [18] DFAT Country Information Report Sudan, 27 April 2016 at 2.39 and 3.4.

4. Further, DFAT note that in ‘the absence of a negotiated ceasefire with the SPLM-N, the Government has continued to intensify ground and aerial bombardments on rebel-held areas of South Kordofan and Blue Nile which has led to significant harm to the Nuba population’.[19]  Relevantly, they go on to state that:

   ...The US Department of State’s 2015 Human Rights Report states that between April and May 2015, Government-linked forces burned at least three villages displacing as many as 50,000 people. Those fleeing also reported numerous unverified civilian executions. In addition, DFAT understands that the Government has prevented Nuba from fleeing to safety.

   Overall, DFAT assesses that Nuba currently face a high risk of discrimination and violence. Given the actual or perceived association of Nuba with the armed opposition, Nuba are likely to face a high risk of discrimination and violence outside of the Nuba Mountains, including in Khartoum.[20]

   [19] Ibid at 3.11.

   [20] Ibid at 3.11 and 3.12. 

5. Since the DFAT report was published in April 2016 country information from various sources indicates that there has been a lull in fighting in South Kordofan.  However there are reports of sporadic armed conflict among rebel groups, tribes, government-supported militias, and government forces in these conflict affected areas, including South Kordofan.[21]

   [21] US Department of State Bureau of Diplomatic Security, Sudan 2018 Crime & Safety Report, <

6. There are also reports of ongoing human rights abuses in the internal conflict areas of Sudan, with impunity.  In its 2017 report on human rights practices in Sudan, the United States Department of State reports as follows:

   In the internal conflict areas of Darfur and the Two Areas, security forces, paramilitary forces, and rebel groups continued to commit killings, rape, and torture of civilians. Local militias maintained substantial influence due to widespread impunity. There were reports of both progovernment and antigovernment militias looting, raping, and killing civilians. Intercommunal violence spawned from land tenure and resource scarcity resulted in high death tolls, particularly in East, South, and North Darfur. Between January and October, there were 34 reports of intercommunal clashes, up from 24 in 2016. Abduction was also seen as a lucrative business by both militias and various tribes in Darfur. In Abyei tribal conflict between Ngok Dinka and Misseriya was at the root of most human rights abuses. Reports were difficult to verify due to restricted access. In October the government launched a disarmament campaign beginning with a voluntary disarmament phase and then a forced disarmament phase. There were no known investigations of or prosecutions related to human rights abuses.[22]

   [22] US Department of State, Country Reports on Human Rights Practices for  2017 – Sudan, 20 April 2018, exec sum <

7. In the same report the US State Department state that although the government refrained from military offensives during 2017, a number of internal conflict abuses by the military and paramilitary forces  in these areas were reported as follows:

   Killings: During the year military personnel and paramilitary forces committed killings in Darfur and the Two Areas. Most reports were difficult to verify due to continued prohibited access to conflict areas, particularly Jebel Marra in Darfur and SPLM-N-controlled areas in South Kordofan and Blue Nile States.

   ...

   Physical Abuse, Punishment, and Torture: Human rights organizations accused government forces of perpetrating torture and other human rights violations and abuses. Government forces abused persons detained in connection with armed conflict as well as IDPs suspected of having links to rebel groups. There were continuing reports that government security forces, progovernment and antigovernment militias, and other armed persons raped women and children.[23]

   [23] US Department of State, Country Reports on Human Rights Practices for  2017 – Sudan, 20 April 2018, <

8. In their 2018 country report on Sudan the Bertelsmann Stiftung state that:

   The Sudan People’s Liberation Movement - North (SPLM-N) fighting in the Blue Nile and South Kordofan regions has also been linked with the SRF. In response, Sudan’s government has continued to exercise force in all three areas. While there has been some reduction in the level of conflict and attempt to negotiate with rebel groups, the government has not committed to any significant power sharing arrangements. The government’s degree of control on the ground has extended, but fluctuations continue.[24]

   [24] Bertelsmann Stiftung, BTI 2018 Country Report Sudan, 23 March 2018 <

9. Human Rights Watch (HRW) in their 2018 world report state that:

   Sudan’s human rights record continued to be defined by government repression and violations of basic civil and political rights, restriction of religious freedoms, and disregard for obligations on civilian protection under international humanitarian law. In Darfur, Southern Kordofan and Blue Nile, Sudan’s Rapid Support Forces (RSF) and other government-aligned forces attacked civilians. Sudan failed to provide accountability for serious crimes committed during the conflicts, or other serious human rights violations.

10. With respect to the situation in the conflict affected areas HRW states:

    Despite the government’s unilateral ceasefire and reduced fighting in all three war zones, government forces and allied militia attacked civilians including in displaced persons camps throughout the year.

    In May and June, the RSF attacked villages in North and Central Darfur, forcing tens of thousands to flee. RSF fighters were responsible for large-scale attacks on villages during counterinsurgency campaigns from 2014 to 2016. In Southern Kordofan and Blue Nile, the six-year conflict continued, with sporadic government attacks on civilians.[25]

    [25] Human Rights Watch, World Report 2018, Events of 2017, p. 513 <

11. In a June 2018 report Minority Rights Group International identified Sudan as one of the highest rated countries that included communities under threat – that is facing the greatest risk of genocide, mass killing or systematic violent repression – including Nuba.  Whilst noting that the fighting in South Kordofan and Blue Nile between the government and rebels has lulled due to peace negotiations and rebel factionalization, they state in the report that it ‘risks re-igniting’.[26]

    [26] Minority Rights Group International, Peoples under Threat 2018, <>

    Country information also indicates there is a risk to people of Nuba ethnicity from the government because of their perceived association with armed opposition groups.  DFAT relevantly state in this regard as follows:

    Overall, DFAT assesses that individuals who are associated with, or are perceived to be associated with, the armed opposition face a high risk of discrimination and violence by the Government, particularly in areas that are controlled by the Government. DFAT further assesses that this risk is faced by both individuals who are actively involved with the armed opposition, as well as individuals who are simply located in areas controlled by the armed opposition. Some DFAT contacts suggest that men who are perceived to be associated with the armed opposition face a higher risk of being actively targeted by the Government than women. Within areas under the control of the armed opposition, DFAT assesses that individuals are at risk of being caught up in the conflict between the Government and armed opposition, including through indiscriminate bombings, armed attacks and extrajudicial killings.[27]

    [27] DFAT Country Information Report Sudan, 27 April 2016 at 3.44.

12. The UK Home Office state that ‘the SPLM/A-North in South Kordofan is principally composed of members of the many Nuba ethnic groups which live in the Nuba Mountains. Its leader here is Abdelaziz al Hilu, a Masalit who grew up in the Nuba Mountains.’  In that same report reference is made to a London based NGO who states that ethnicity in Sudan is ‘highly politicised’ and some groups are perceived to be supporters of armed opposition groups because they share kinship. In particular, those of Nuba descent were considered supporters of the SPLM-N. [28]

    [28] United Kingdom: Home Office, Country Policy and Information Note, Sudan: Opposition to the government, including sur place activity, August 2017 <

13. Such country information indicates that although there has been a decline in military clashes in the region, sporadic clashes still occur and the government’s security forces (and others) continue to use excessive force against civilians who bear the heaviest burden of the conflict in South Kordofan and the Blue Nile.  There are numerous reports of internal conflict abuses and other human rights abuses against citizens. Members of the Nuba ethnic group also appear to have been targeted, possibly on the grounds of their presumed political affiliations to armed movements, as well as the fact that many live where the conflict is played out.

14. For these reasons the Tribunal finds the applicant faces more than a remote chance of being seriously harmed by government forces as required by s.5J(4)(b) of the Act in that it involves threat to his life or liberty or significant physical harassment or ill-treatment if he returns to South Kordofan.  The Tribunal considers that the applicant's Nuba ethnicity and perceived anti-government political opinion because of this ethnicity (and his place of origin) is the essential and significant reason for the persecution which the applicant fears, as required by s.5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his ethnicity and associated imputed political opinion.

15. For persecution to be well founded, the real chance of serious harm must relate to all areas of the receiving country: s.5J(1)(c).  It is submitted that the applicant faces a real chance of persecution in all areas of Sudan, including Khartoum given the entrenched, systematic and extreme racism and discrimination by the Sudanese government against mmembers of the Nuba ethnic group there.  The applicant’s risk is increased, it is argued, because he has no support networks outside South Kordofan (and these are extremely limited).  In her written submission to the Tribunal the representative argues that there is no evidence that the security situation in the Nuba Mountains has improved (citing relevant country information, some of which is cited above); the applicant is clearly identifiable as Nuba outside the Nuba mountains, or at least, as a non-Arab; and DFAT indicates that Nuba are likely to face a high risk of discrimination and violence outside the Nuba Mountains including in Khartoum. At hearing the applicant said he could not live away from the conflict-affected areas because the government and community themselves discriminate against Nuba people elsewhere, including Khartoum. 

16. The Tribunal notes the agents of the harm the applicant fears in South Kordofan are the authorities who control many of the other areas of Sudan.  With respect to the risk Nuba face outside South Kordofan and the Blue Nile, DFAT state (as referred to by the representative and mentioned earlier):

    Nuba currently face a high risk of discrimination and violence.  Given the actual or perceived association of Nuba with the armed opposition, Nuba are likely to face a high risk of discrimination and violence outside of the Nuba Mountains, including in Khartoum.[29]

    [29] DFAT Country Information Report Sudan, 27 April 2016 at 3.12.

17. The Tribunal also notes DFAT’s assessment in this respect is that:  

    ...individuals located in areas controlled by the armed opposition in Blue Nile and South Kordofan are unlikely to be able to relocate to other areas of Sudan, including Khartoum, due to their perceived association with the armed opposition. DFAT contacts said individuals located in areas controlled by the armed opposition in South Kordofan and Blue Nile are being prevented from leaving which severely limited their ability to internally relocate in Sudan.[30]

    [30] Ibid at 5.32.

18. Such information is supported by the findings of a report of the Danish Immigration Service and UK Home Office fact finding missions to Khartoum, Kampala and Nairobi (from February to March 2016) about the situation of persons from Darfur, Southern Kordofan and Blue Nile in Khartoum as follows:

    The National Intelligence and Security Service (NISS) acts with impunity. Persons from Darfur and the Two Areas with a political profile are at risk of being targeted by the NISS and its affiliated militias in Khartoum, particularly student activists and persons with an affiliation to rebel groups. The Darfuri and Two Areas communities in Khartoum are monitored by the NISS, principally to identify those with a political profile. Activists at most risk are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains.[31]

    [31] Report of the Danish Immigration Service and UK Home Office fact finding missions to Khartoum, Kampala and Nairobi (February – March 2016), ‘Sudan, Situation of persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, p. 10 <

19. Given this country information that Nuba are likely to face a high risk of discrimination and violence outside the Nuba Mountains, combined with the additional risk of being associated with armed opposition groups by the Sudanese authorities, and the fact the perpetrators of the harm feared are the state, the Tribunal finds that the applicant faces a real chance of persecution in all areas of Sudan and finds that s.5J(1)(c) is met.

20. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

21. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

22. DFAT report that several areas in Sudan are not under effective state control because of the security situation, including South Kordofan which is controlled by the armed opposition (SPLM-N).  DFAT indicate that they understand (anecdotally) that the armed opposition’s capacity, outside of its involvement in direct conflict activities, is limited.[32]  DFAT also state that:

    Currently, the Sudanese Armed Forces is participating in conflicts in Darfur, South Kordofan and Blue Nile. The Sudanese Armed Forces has led aerial and artillery bombardments, targeting both the armed opposition and civilians located in areas controlled by the armed opposition. Within these areas, the Sudanese Armed Forces has also been accused of indiscriminate and targeted attacks against civilians, including the burning and looting of villages and destruction of churches, farmland and hospitals, including a Medicins Sans Frontiers hospital located in South Kordofan in January 2015.[33]

    [32] DFAT Country Information Report Sudan, 27 April 2016 at 5.1.

    [33] Ibid at 5.4.

23. Given these considerations, combined with country information referred to above that indicate that the conflict-related abuses and human rights abuses continues (including since the DFAT report in April 2016) despite a decline in direct military offensives, and given that the state is the persecutor, the Tribunal is not satisfied that effective protection measures are available to the applicant on return to Sudan, either in his home area of South Kordofan or elsewhere, from the State. As mentioned, some areas of the country, including South Kordofan, are controlled by the armed opposition.  However, country information indicates that their capacity is limited and that the armed opposition have targeted civilians located in these areas.  For these reasons the Tribunal is not satisfied that effective protection measures are available to the applicant on return to Sudan, either in his home area of South Kordofan or elsewhere, from the State, or a party or organisation that controls the relevant State or a substantial part of its territory, as required.

1. The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country.  However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.  In this case the applicant’s fear of serious harm is for reason of his ethnicity and imputed (anti-government) political opinion on account of his ethnicity, which the Tribunal is satisfied are characteristics that are fundamental to his identity and therefore s.5J(3) does not apply in this case. 

2. For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

   CONCLUSION

3. 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

4. The Tribunal remits the matter for reconsideration with the direction that:

   a.the applicant satisfies s.36(2)(a) of the Migration Act; and

   b.the grant of the visa is not prevented by s.91WA.

   Nicole Burns
   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.

   …