1811959 (Refugee)

The Federal Circuit Court considered an appeal by a Sudanese national concerning the refusal of a protection visa. The applicant claimed to fear persecution upon return to Sudan due to his Nuba ethnicity and imputed anti-government political opinion. The court was required to determine whether the applicant had a well-founded fear of persecution, whether such persecution would be for a Convention reason, and whether effective protection was available in Sudan.

The court's reasoning focused on assessing the applicant's credibility and the objective country information regarding the risks faced by individuals of Nuba ethnicity in Sudan. The Tribunal accepted the applicant's core claims, finding his oral evidence to be detailed, coherent, and spontaneous, and corroborated by his sister's testimony. It considered evidence that Nuba individuals face a high risk of discrimination and violence from government forces and others due to perceived associations with armed opposition groups. The Tribunal concluded that the applicant's Nuba ethnicity and imputed political opinion were the essential and significant reasons for the persecution he feared, and that this persecution would involve serious harm and systematic, discriminatory conduct. Furthermore, the Tribunal found that effective protection measures were not available to the applicant in Sudan, as the state was the persecutor and areas of the country were not under effective state control.

Consequently, the Tribunal found that the applicant satisfied the criteria for being a refugee under section 36(2)(a) of the Migration Act 1958. The matter was remitted for reconsideration with a direction that the applicant satisfies section 36(2)(a) and that the grant of the visa is not prevented by section 91WA.