1919338 (Refugee)

1919338 (Refugee) [2023] AATA 1294 (23 March 2023)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rebecca Webb (MARN: 1277121)
CASE NUMBER:  1919338
COUNTRY OF REFERENCE:                   South Sudan
MEMBER:Mark Bishop
DATE:23 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a)

Statement made on 23 March 2023 at 12:41pm
CATCHWORDS
REFUGEE – protection visa – stateless/South Sudan – ethnicity and imputed nationality and political opinion – membership of a particular social group – widowed woman without male protection – citizenship – born in former southern Sudan, now South Sudan – automatic loss of Sudanese citizenship for any person presumed to be Sudanese citizen – possible eligibility for South Sudanese citizenship but no steps taken – Ethiopian passport issued under Refugee Convention – delay in applying for protection and return to Ethiopia – inconsistent and unsubstantiated claims and evidence – illiteracy, lack of education, memory difficulties and forms filled out by other people – daughter’s and grand-daughter’s humanitarian visas – country information – vulnerability of women and elderly people – no effective state protection and not reasonable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (4), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan v MIEA (1989) 169 CLR 379
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of South Sudan or stateless applied for the visa on 6 February 2015. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments.
The applicant did not provide a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of 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
In her Application for a Protection Visa the applicant provided a lengthy statutory declaration[1] that outlined the following:
·She was born in [Village 1] near [Town] in then Southern Sudan. She is unaware of her age. She is functionally illiterate and never attended school. At the age of [age] she married and moved to [Town] to live with her husband and his family. She has [children].
·With the outbreak of war, she and her family fled to Ethiopia. As with many South Sudanese people they crossed the border without recourse to government border officials. They went to a village called [Village 2] near to Gambela close to the Sudanese border. Two of her children were born in [Village 2]. After the death of her husband, she returned to Southern Sudan. Thereafter she stayed with her husband’s family in [Town].
·When war broke out again, she fled to [Village 2] Ethiopia for reason of safety. She remained there until 2011. Life was difficult in [Village 2] and she collected wood and grass to survive. Her daughter and grandchildren eventually came to Australia. She remained in contact with her daughter in Australia via the use of a village phone. She wished to see her daughter in Australia and was advised to obtain a travel document. She went to Addis Ababa, attended a government office, had her picture taken and was issued with a passport. Her daughter in Australia made all the arrangements for her to visit Australia. After 1 year she returned to Ethiopia. Because of the increased fighting in Sudan her daughter made arrangements for her to return to Australia for a second visit of 1 year.
·She is fearful of returning to Sudan because of fighting and tribal conflict between Nuers and Dinkas.
·She does not believe she has any right to live in Ethiopia. She is not a citizen of Ethiopia.
[1] [References]
In a post interview written submission[2] to the Department the applicant outlined the following:
[2] [References]
·The applicant arrived in Australia as the holder of a visitor visa in June 2014. She was born in [now] South Sudan. Since the independence of South Sudan in 2011 the applicant has not sought to return to her home country. She believes she is stateless but submitted South Sudan is her country ‘former habitual residence’ for the purpose of s 5H.
·If the applicant were to return to South Sudan there is a real and substantial risk that she would suffer persecution within the meaning of s 5J(4) of the Act.
·The applicant addressed likely sources of persecution.
·The applicant submitted she was at risk of persecution because of her race/ethnicity as a Nuer, her actual and imputed political opinion and her membership of a particular social group comprising women in South Sudan, women without male protection in South Sudan and widowed women in South Sudan.
·Country Information is highly consistent with the applicant’s claims. This indicates the real risk of the identified types of harm now or in the reasonably foreseeable future as a consequence of being removed to her home country of South Sudan cannot be described as remote, far-fetched or fanciful.[3]
[3] See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR per McHugh J at 429
·The applicant does not hold Ethiopian nationality. Notwithstanding this fact the applicant made submissions that addressed likely sources of persecution, risk of persecution on account of her race/ethnicity as a Nuer, her imputed nationality as a South Sudanese, her actual and imputed political opinion and her membership of a particular social group being women in Ethiopia, Nuer women in Ethiopia, South Sudanese women min Ethiopia, refugees in Ethiopia, refugee women in Ethiopia and women without male protection in Ethiopia.
- Country Information is highly consistent with the applicant’s claims. This indicates the real risk of the identified types of harm now or in the reasonably foreseeable future as a consequence of being removed to Ethiopia cannot be described as remote, far-fetched or fanciful. The applicant referred to the lack of state protection in Ethiopia.
·The applicant is stateless for the following reasons:
oThe applicant does not hold nationality of any country and is consequently stateless.
oThe applicant was born near [Town] in Southern Sudan and in 2011 this part of Sudan became part of South Sudan. She no longer has citizenship of Sudan nor is it possible to assert any right to South Sudanese citizenship.
oThe applicant provided an analysis[4] of the citizenship laws of Sudan and South Sudan supported by relevant country information[5] noting “...changes to the Sudanese Nationality law providing for automatic loss of nationality to any person presumed to have acquired South Sudanese nationality left many at risk of statelessness…”[6]. The Sudanese Nationality Act does not indicate how someone can acquire de facto or de jure South Sudanese citizenship. The South Sudanese Nationality Act sets out how a person acquires South Sudanese citizenship.[7]
[4] [References] at pages 6 to 8
[5] [References] at pages 6 to 8
[6] [References] at pages 6 to 8
[7] [References] at pages 6 to 8
oThe applicant is ethnically Nuer, has family connections to South Sudan and who have lived in South Sudan and therefore it is possible the applicant would satisfy the criteria in the South Sudanese Nationality Act. However, the applicant has not at any time complied with the necessary processes as set out in the Act.
oAs the applicant has not resided in South Sudan for many years and who now has no specific connections to South Sudan it is difficult to present a complete application and thus assert any right to South Sudanese nationality.
·The applicant cannot comply with the criteria set out in the 2003 Ethiopian Nationality Proclamation. This is confirmed by relevant country information. The applicant does not have Ethiopian nationality.
·The applicant submitted to draw adverse conclusions about her credibility on the basis of how she obtained a visa to Australia leads to a misapplication of the Refugee Convention. In this context the applicant made submissions addressing previous visa applications, her illiteracy and lack of education, the visa applications were filled out in English by other people without any connection or observation of her former situation and inconsistencies or anomalies in this process cannot be used to draw conclusions as to credibility.
·In light of country information, the applicant cannot be expected to be able to provide documentary evidence and oral evidence as to her claims should be accepted.
·The applicant provided references to country information that addressed topical and current detail circa 2013/2014 to 2018 in South Sudan. These reports addressed seriatim revitalised peace agreements, the vulnerabilities of women and the elderly in the conflict, the targeting of civilians, multiple recent sexual attacks against women, the lack of safety for returning refugees, human rights violations, sexual and gender based violence, the instability for South Sudanese refugees in Ethiopia, the fact that women and children are especially vulnerable in the Gambella region following the eruption of sub-clan fighting in the Gambella camps, women in Ethiopia are prone to extensive gender based violence and cannot access adequate protection.
·The applicant addressed issues relating to the risk threshold and the relevant law inclusive of remote risk, the assessment of cumulative risks and the reasonably foreseeable future.
·The applicant addressed past harm and modification of behaviour inclusive of the current circumstances of the applicant.
·The applicant addressed state protection, the lack of availability of same in South Sudan and the fact that the applicant as an elderly refugee woman who is illiterate would be unable to access state protection in Ethiopia.
·Based upon the applicant’s oral evidence in interview, corroborating country information and written statements there is a real risk of persecution within all parts of South Sudan or Ethiopia and relocation is not a reasonable modification of behaviour.
The delegate[8] made the following finding:
·When I consider the applicant’s history of not providing truthful information to the Department, her ever changing claims which are not substantiated, her inability to explain major discrepancies within her claims, her return to Ethiopia for a long period of time and subsist without harm, the fact that she has male protection and I do not accept the claim that all her sons are deceased, her refusal to permit her grand-daughter permission to travel to Australia indicating that it is safe for females where she was living, and her employment and role in the community, I am not satisfied that the applicant’s claims are credible. After weighting all of the information before me I am not satisfied that the applicant is a witness of truth.
[8] See decision record page 6 and 7
The applicant made pre-hearing submissions to the Tribunal. This submission was detailed and provided a lengthy commentary by way of an outline of the submissions, issues arising from the decision of the delegate, updated country information and state protection. The Tribunal provides the following summary as relevant:
·The applicant has not returned to South Sudan since its independence in 2011 and has not sought to assert any right to citizenship, should she have such right. The applicant is stateless and does not have a right to live in any country.
·The applicant’s background and experiences are summarised above in paragraphs 12 to 14.
·The applicant fears various sources of persecution at the hands of conflict parties or opposing tribes in both South Sudan and Ethiopia. This is because of her race/ethnicity as Nuer, her actual and imputed political opinion and her membership of the particular social group, namely women in South Sudan, and/or women without male protection in South Sudan, and/or widowed women in South Sudan. In Ethiopia the applicant believes she is at risk of persecution for reason of her race/ethnicity as Nuer, her imputed nationality as South Sudanese/Sudanese, her actual and imputed political opinion; and her membership of the particular social group, namely women in Ethiopia, Nuer women in Ethiopia, South Sudanese women in Ethiopia, refugees in Ethiopia, refugee women in Ethiopia and women without male protection in Ethiopia.
·The delegate disregarded all of [the applicant]’s evidence and concluded that the applicant was not a “witness of truth”. In response the applicant advised as follows:
o[The applicant]’s daughter, [Ms A], was granted a subclass 202 visa in 2003 on the basis that she was a Sudanese refugee in Ethiopia. We note that [Ms A]’s Document for Travel to Australia clearly indicates her place of birth as Sudan.
o[Ms A]’s file indicates that her place of birth was [Town], Sudan.
oWe note that [Ms A]’s visa application includes documents from United Nations High Commissioner for Refugees (UNHCR) in Addis Ababa and the International Organization for Migration (IOM) and her file consistently indicates that she is a Sudanese refugee and has been accepted as such by these international agencies.
o[The applicant]’s granddaughter was also granted a subclass 202 visa in 2009. Her nationality was at all times listed as Sudanese.
oIn [the applicant]’s 2011 visitor visa application, her place of birth was listed as [Town], Sudan.
oIn [the applicant]’s 2014 visitor visa application, her nationality was listed as Sudanese and her place of birth listed as [Town], Sudan.
·The overwhelming evidence on the Departmental records supports [the applicant]’s claim that she and her family were originally from Sudan (now South Sudan) and that they had been living in Ethiopia as refugees due to conflict in their home country.
·Country of origin information also clearly indicates that a significant portion of the population who reside in Gambella are South Sudanese refugees, further supporting the veracity of [the applicant]’s claims in this regard. In 2021, UNICEF reported:
oGambella Region is located in the Southwestern part of Ethiopia with an estimated population of 463,000.
oGambella is rich in resources and arable land. However, the region is prone to floods and drought, and hosts 337,4212 refugees from South Sudan, a population almost equal to its own.
·While the Delegate formed the view that [the applicant]’s lack of familiarity with the first Nuer Governor in Gambella (which during the interview the Delegate referred to as Gambia) was probative evidence that she was not from South Sudan, it is our submission that this is an inherently flawed way to make such an assessment, relying on one specific fact which may or may not have had relevance to the applicant’s life and experiences. In our submission, the Delegate could have sought information about [the applicant]’s life and experiences in South Sudan to form an assessment on her place of birth.
·The Tribunal notes that article 28 of the 1951 Refugee Convention specifically sets out provisions for contracting states to issue travel documents to refugees who would otherwise be unable to obtain such a document. It is therefore not unreasonable for [the applicant] to have believed that she could be issued a passport and not be an Ethiopian national.
·As described by [the applicant] in her recent statutory declaration, she was assisted to obtain an Ethiopian passport however did not ever believe that she is an Ethiopian national. Thus, while it appears that [the applicant]’s passport is a genuine Ethiopian passport with security features, this does not indicate how this passport was obtained and specifically, which documents were provided to Ethiopian officials. The Tribunal notes the following report in relation Ethiopian passports:
o“[t]he main requirement to obtain a passport is to present valid kebele residential Identification Card (ID). However, … the use of a kebele identity card to issue a passport is found to be fraught with profound problems. There are problems of forgery.[9]
[9] Canada: Immigration and Refugee Board of Canada, Ethiopia: Availability of fraudulent identity documents; state efforts to combat document fraud (2014-January 2016) , 28 July 2016, ETH105567.E, available at: Departmental Delegate drew adverse conclusions from the fact that [the applicant] had neither attempted to be recognised as a South Sudanese citizen in Australia nor sought to renew her Ethiopian passport in Australia. We reiterate that [the applicant] has articulated protection claims against both South Sudan and Ethiopia and as such, it would be entirely inappropriate to require her to contact government officials from either country. Furthermore, in assessing statelessness and nationality, UNHCR is very clear that authorities cannot be contacted and similarly, that applicants should not be required to contact the authorities of the country from which they fear persecution.[10]
[10] UNHCR, Handbook on Protection of Stateless Persons, 2014. Para 79
·The Delegate concluded that [the applicant] had a “history of providing false information to the Department” and consequently drew adverse conclusions as to the entirety of her protection claims. In this context the Tribunal notes [the applicant] has completed no formal education and is not literate in any language. [The applicant] was not in a position to prepare her visitor visa applications nor gather supporting documents. These tasks were undertaken by community members in Australia seeking to assist her daughter who has also had limited education and as documented, experienced severe post-natal depression at the time of these applications. The applicant submitted “…that limited weight can be given to the precision of all facts provided in supporting letters provided by third parties which [the applicant] could never possibly have read and were never tested with her by the Department officers assessing her visitor visa applications”.
·[The applicant] has sought to provide further clarification on her role in the community in Ethiopia in her most recent statutory declaration. She has also reiterated the fact that, as previously explained, her husband was killed many years ago. Her marital status appears to have been incorrectly recorded on her behalf. We further note Folio 61 of Departmental file [Reference] appears to indicate that [the applicant]’s husband had been killed, consistent with her more recent evidence.
·We further note that during [the applicant]’s protection interview she explained the circumstances surrounding her granddaughter’s travel to Australia and why she was living with her rather than her mother and stepfather.
·The Delegate made the following assessment:
oThe applicant’s delay in travelling to Australia and her failure to seek protection during her first visit and her delay in seeking protection during the second visit, diminishes her claim to have ever left Ethiopia out of any fear of harm.
oThe Delegate did not raise this with [the applicant] during her interview to allow her the opportunity to comment.
·Refugee Legal was contacted on behalf of [the applicant] in August 2014. Refugee Legal is a community legal centre with limited resources and significant demand. Due to these factors, it was not possible to assist [the applicant] with a protection visa application immediately. She was assisted to prepare her application and her application submitted in February 2015. In our submission, there was no significant delay in [the applicant] submitting her application for protection.
·In addition to this, it is our submission that [the applicant]’s travel back to Ethiopia and the time that she remained there must be viewed in light of relevant country circumstances at the time and in light of [the applicant]’s personal circumstances. Similarly, her current claims for protection must be properly assessed with reference to the current situation in South Sudan and if deemed relevant, Ethiopia rather than the circumstances in 2011.
·There is significant, current country of origin information which confirms the risk faced by [the applicant] should she return to either South Sudan or Ethiopia.[11]
·This country information addresses the lack of improvement in South Sudan during 2022 including in the treatment of women[12], human rights abuses perpetrated by parties to the ongoing conflict in Sudan[13], the hellish existence faced by women and girls in South Sudan[14], the patriarchal attitudes and inequality in South Sudan which impacts on all women who are at risk simply leaving their homes, including older women[15], the vulnerability of widowed women in South Sudan[16], reports that since around 2013, in addition to the conflict throughout South Sudan and the Ethiopia-South Sudan border region also experiences its own conflict[17].
·[The applicant] would continue to face harm should she be forced to return to South Sudan.
·This country information also addresses the ongoing risk of harm should the applicant be returned to Ethiopia. The submission highlights increasing conflict in the Gambella region where the applicant lived prior to coming to Australia[18], the fact that weak border protection means more violence in Ethiopia[19], the problem Gambella region is volatile and unpredictable and impacts host communities[20], a curfew imposed in the Gambella region in June 2022[21], government forces committing abuses in the Gambella area[22], displaced women are especially vulnerable[23], the most recent DFAT Country Information report that sets out women in Ethiopia face a high risk of gender-based violence and that DFAT assesses “…DFAT assesses women in Ethiopia face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common. DFAT assesses support services for women escaping from domestic violence have improved but are insufficient overall.
·If [the applicant] had the right to return to Ethiopia, she would face a real risk of significant harm.
·As outlined in country information the applicant would be denied protection in South Sudan because of her gender and ethnicity. It is clear that all parties to the conflict in South Sudan are complicit in perpetrating human rights abuses against civilians, including women and moreover, that there is not a reasonably effective police force and a reasonably impartial system of justice in all parts of South Sudan that [the applicant] would be willing and able to access.[24] The challenges faced by all women in Ethiopia would be compounded for [the applicant] who is an elderly refugee woman who is illiterate. In our submission, it is not reasonable to expect that [the applicant] would be able to access state protection in Ethiopia. The question of whether [the applicant] has male family members in either Ethiopia or South Sudan should not be used to make any assessment of state protection. In our submission, the perceived protection that may be provided by any family member is not tantamount to state protection and it the suggestion that she should rely on any such network places her at further risk. Ultimately, family members have no international legal obligations to provide women with protection from serious harm at the hands of others, let alone the ability to do so.[25]
[11] See Doc ID number 10833989 pages 10 to 28 and relevant citations to reports and extracts outlined.
[12] HRW – Human Rights Watch: World Report 2023 - South Sudan, 12 January 2023
[13] USDOS – US Department of State: 2021 Country Report on Human Rights Practices: South Sudan, 12 April 2022
[14] Human rights Council, Conflict-related sexual violence against women and girls in South Sudan -Conference room paper of the Commission on Human Rights in South Sudan, 21 March 2022, A/HRC/49/CRP.4 available at: p 1
[15] Human rights Council, Conflict-related sexual violence against women and girls in South Sudan -Conference room paper of the Commission on Human Rights in South Sudan, 21 March 2022, A/HRC/49/CRP.4 available at: , p 7
[16] Matot Yien Pal, “A widow’s story of survival and humanitarianism in the Sudans”, London School of
[17] Winnie Cirino & Selam Mulugeta, “The Many conflicts within the Ethiopia-South Sudan transboundary conflict”, The Niles, 16 August 2022, available at Winnie Cirino & Selam Mulugeta, “The Many conflicts within the Ethiopia-South Sudan transboundary conflict”, The Niles, 16 August 2022, available at: Winnie Cirino & Selam Mulugeta, “The Many conflicts within the Ethiopia-South Sudan transboundary conflict”, The Niles, 16 August 2022, available at: Hagos, Samuel Zewdie, “Refugees and Local Power Dynamics: The Case of Gambella Region of Ethiopia”, IDOS, Discussion Paper 25/2021, available at: Ethiopia Imposes Curfew in Gambella After Rebel Attack”, teleSIRJD, 15 June 2022, available at:
[22] HRW – Human Rights Watch: World Report 2023 - Ethiopia, 12 January 2023
[23] UNHCR, Women, available at: UN Security Council, Situation in South Sudan – Report of the Secretary General, 22 February 2023, available at: file://rilcts16/redirected$/Rebecca/Downloads/S_2023_135-EN.pdf
[25] Christel Querton, Non-State Actors of Protection and the Sliding Scale of Protection for Refugee Women, Refugee Survey Quarterly, Volume 41, Issue 3, September 2022, Pages 444–471, type="1">
The applicant provided an updated statutory declaration that in the main addressed conclusions and findings of the delegate whilst relying on the statutory declaration previously provided to the Department. The Tribunal provides the following summary:
·The applicant makes the statement to respond to findings made by the delegate.
·The applicant cannot read or write. She has some difficulties remembering details and information.
·The applicant in a village near [Town 1] in what was then Sudan. She never received any education and has never been employed. The war in South Sudan forced her to move between [Town 1], South Sudan and [Village 2] in Gambella, Ethiopia. Her daughter in Australia sent her money for support.
·The applicant does not believe she is an Ethiopian citizen and obtained an Ethiopian passport only to come to Australia.
·Her visa application forms to come to Australia were prepared by others as she cannot read or write. She was told to put her fingerprints on the form and did so. Her daughter told her when to come to Australia.
·She is a widow, not separated. Her husband died many years ago.
·She helped as an older woman when younger woman gave birth. She is not a midwife. She mediated only family disputes.
·Her granddaughter stayed with her when her daughter left for Australia as it was safer than being in a refugee camp.
·She knew the name [Name] as a leader in Gambella who had come from [Town].
·Two of her sons died subsequent to her lodging the Application for a Protection Visa.
·She thinks she has a male cousin living in the refugee camp in Gambella and is not aware of any other family in South Sudan.
·All of her travel to Australia was arranged for her and she complied with the arrangements as she understood them. On her second visit to Australia the situation in Ethiopia and South Sudan was worse than during the first visit.
·She is fearful of returning to Sudan because of the fighting and killing. It was dangerous living as a South Sudanese refugee in the camp in Gambella in Ethiopia particularly as an elderly widowed woman. Her son and daughter still live in a refuge camp in Ethiopia and are without work. They do not have any ability to provide her with safety or security.
·Because of her age it is difficult to find food, flee violence and obtain medical treatment.
The applicant is a woman of mature years. She is functionally illiterate and does not speak any English. She engaged with the Tribunal with the assistance of her daughter who has a basic understanding of the English language.
The applicant in evidence advised the Tribunal as follows: Her solicitor had explained the written submission. The applicant understood why she was attending the Tribunal hearing. She advised the Tribunal she wished to remain in Australia because it was safe. She feared harm if she returned to her home country as the fighting continued and she was scared of returning to her home country. She relied upon her written submissions.
The solicitor for the applicant advised the Tribunal the applicant continued to rely upon the statutory declarations provided to both Department and Tribunal and written submissions provided on behalf of the applicant to both Department and Tribunal. The solicitor confirmed to the Tribunal the applicant continued to rely on legal submissions as to the current standing of the law of citizenship in Sudan, South Sudan and Ethiopia and continued to press the argument the applicant was stateless[26].
[26] [References] and paragraph 13 above.
Findings
The Tribunal finds as follows:
·The applicant is a mature widowed woman of indeterminate age, a mother and grandmother who lives with her daughter and family in Melbourne and has done so since her arrival in this country circa 2014.
·She is illiterate has had no education or schooling and cannot communicate in the English language. She relies totally on the services of her solicitor for the provision of advice to the Department and Tribunal.
·She understood the purpose of the Tribunal hearing and was familiar with the content of submissions and statutory declarations variously provided to the Department and Tribunal.
·The applicant was born and spent all of her life (prior to coming to Australia) in the border regions of Sudan, South Sudan post 2011 and Ethiopia. She freely crossed borders in times of danger or when fighting erupted in those border areas, lived in refugee camps in the border region of Gambella, Ethiopia, prior to 2011 returned on occasion to then Southern Sudan, visited Addis Ababa and obtained an Ethiopian passport and used this passport as a travel document to enter Australia on repeat occasions in the years prior to 2014.
·In the prosecution of her Application for a Protection Visa she has necessarily relied upon the advice of well-meaning local community members and their advocates. Any mistakes or inconsistencies in interview notes or subsequent written submissions to both the Department and Tribunal were made in good faith and were not of such consequence as to cause the Tribunal to doubt the essential truth of the narrative provided by the applicant.
·The Tribunal has closely examined the written submission and statutory declaration provided and summarised above at paragraphs 15 and 16. The applicant through her solicitor has gone to considerable length to comment on the various findings of the delegate. The Tribunal accepts those explanations as to reasons for delay in lodging the Application for a Protection Visa, detail as to family, reasons for coming to Australia, lack of knowledge as to the name of the governor of a local province in the border areas of South Sudan and Sudan, arrangements for travel to Australia being made by her daughter in Australia and lack of contact with officials of Sudan, South Sudan or Ethiopia whilst resident in Australia as she seeks protection from any and all of these governments.
The Tribunal as presently constituted has recently issued[27] a large number of decisions concerning Applications for Protection Visas for persons who are citizens of Ethiopia, Sudan or South Sudan. In those various decisions the Tribunal has addressed in detail the extent of the wars, civil wars, military invasions of those countries, the breakdown in law and order in large parts of those countries, the lack of adequate state support, the inability of police forces to conduct themselves in an effective manner, the destruction of infrastructure, the consequences of drought and flood, multiple human rights abuses on citizen populations by conflict actors and their agents in the various wars however described, the inability of conflict actors to enter into and maintain a lasting peace, the continued military engagements in many parts of these countries, continued military engagement in the border areas of South Sudan and Ethiopia for reason of race, ethnicity, tribal membership, gender, religion, land theft, dispossession of resident populations without compensation, continued horrific gender and sexual violence as an instrument of terror against large and often isolated female populations or for strategic advantage.
[27] Case numbers 1904084, 2205979, 2119079, 2118846, 2203414.
Country Information as cited above demonstrates that the border areas of South Sudan and Ethiopia inclusive of the Gambella region of Ethiopia is currently a geographic area where the rule of law is barely observed even in places of protection like refugee camps. These border areas as described are riven with ethnic tensions, problems associated with the hosting of hundreds of thousands of people in refugee camps, tribal tensions, unresolved grievances, foreign interventions and a peace agreement that is honoured often only in the breach.
The Tribunal has considered the applicant’s personal circumstances of a person of Nuer tribal ethnicity, widowed without male protection, illiterate, uneducated, with no experience of earning an income, dispossessed and remote from any extant family in the country of her former habitual residence where sexual and gender violence is prevalent if not common, unable to rely on effective protection measures, an appropriate criminal law, a reasonably effective police force and an impartial judicial system because traditional actors in these institutions are often the transgressors
For the reasons outlined above the Tribunal is of the view the applicant is not a citizen of Ethiopia. Sometime recourse to a refugee camp and the ability to obtain a travel document does not equate to an application for citizenship. Residence in the geographic area of the southern part of Sudan prior to 2011 does not result in citizenship of that country when the law of Sudan provides that residents of South Sudan are presumed not to be citizens of Sudan. Similarly, the evidence before the Tribunal suggests the applicant has not complied with the necessary processes to obtain citizenship of South Sudan. In these circumstances the Tribunal considers it most likely the applicant would be eligible to gain citizenship of South Sudan but has not done so. Accordingly, she is effectively stateless.
The applicant’s country of former habitual residence is currently experiencing severe food shortages; the deprivations of war; heightened interethnic animosity, and interethnic armed conflict as an undercurrent of the various continuing civil wars. The country information does not provide a satisfactory basis for thinking that these chronic problems in      the applicant’s country of former habitual residence are likely to be resolved anytime in the near future.
The Tribunal is satisfied the applicant, if removed to the country of her former habitual residence would reside in or around the areas of her birth and upbringing. She knows no other area.
In this context there is a real chance, the applicant returnee as an elderly female widow without male protection or effective state protection will be obliged to deal with a set of problems not of her making and in the current circumstances not capable of resolution until military and government actors have achieved their purpose.
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of her gender or ethnicity being reasons that satisfy the provisions of s 5J(1)(a) of the Act, if she is removed to her country of former habitual residence now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark Bishop
Senior 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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

Economics, 11 March 2022, available at: P11

[2023] AATA 1294

23 March 2023

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