1935309 (Refugee)

1935309 (Refugee) [2023] AATA 1307 (16 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935309

COUNTRY OF REFERENCE: South Sudan
MEMBER:Mark Bishop
DATE:16 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) of the Migration Act.

Statement made on 16 March 2023 at 11:28am.
CATCHWORDS
REFUGEE – protection visa – South Sudan – race – Nuer ethnicity – particular social group – woman – artist – political opinion – perceived opposition to the government – gender-based violence – fear of killing – human rights abuses – residence in the East African Community – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 9 December 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 applied for the visa on 11 September 2015. The delegate refused to grant the visa. The delegate made a finding[1] that the applicant faced a real chance of being persecuted on account of her race and political opinion. The delegate made a further finding[2] that “…the applicant has previously resided in Kenya, has close family members resident there and has previously on numerous occasions entered Kenya on her South Sudanese passport, I find the applicant is able to enter Kenya for a period between three months to two years and the applicant has therefore not taken all possible steps to avail herself of this right…” and that “…the applicant has a right to enter and reside in a country other than South Sudan. Therefore, I find s36(3) of the Act applies to the applicant…”[3]
[1] Decision record page 13
[2] Decision record page 7
[3] Decision record page 10
The applicant provided a copy of the decision record dated 9 December 2019 to the Tribunal.
The applicant appeared before the Tribunal on 16 March 2023 to give evidence and present arguments. The Migration Agent (MA) for the applicant also gave evidence 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 dated the applicant declared[4] as follows
[4] [File numbers]. Also see decision record page 2
·She was in South Sudan on 15 December 2013, when the civil war broke out.
·She is a well-known [artist] in South Sudan. Her [works] are patriotic and encourage unity and breaking down of divisions amongst citizens of South Sudan. On the evening when violence erupted between the Dinka and Nuer tribes, she was preparing [some work] in a hotel in Juba.
·She hid in the hotel until the next morning and when she looked out her hotel room she saw many dead bodies in the street and people running in different directions.
·She wanted to return home to her husband and children, however she was advised against leaving the hotel as the targets for the violence were members of the Nuer tribe. As a member of this tribe she would have been at risk. She remained in the hotel until dark and then left the hotel and managed to return to her home, however her husband and children were not there.
·She saw people from her tribe (Nuer) running and she joined them and ran to the border of [Country 1]. They ran for several hours through the bush and when they were all tired and felt they could not go one anymore they stopped on the side of the road hoping that a bus would pass by. A bus travelling to [Country 1] arrived and her friend paid for her ticket. Once she arrived in [Country 1] she then went on to Kenya where she was able to find her children, however her husband was not there. She remained there illegally.
·She travelled to Australia for the second time in 2014 and when she returned to Kenya her visa was due to expire. As she was unable to renew her Kenyan visa whilst in Kenya, she attempted to return to Juba South Sudan to attempt to obtain a further visa to enable her to return to Kenya.
·She has always been fearful of returning to South Sudan due to the risk of discrimination, torture, rape and death. Upon her return on 15 October 2014, she was due to her notoriety recognised by one of the South Sudanese security officers, who detained her and interrogated her about her knowledge of the former Vice President of South Sudan. She explained she knew nothing of him except he was also from the Nuer tribe.
·She was beaten, abused physically and sexually before being interrogated again. Later that evening she was taken by car to an unknown location where she continued to be abused. She was hit on the back of her neck and fell unconscious. She believes the Security Officers thought she was dead.
·After some time she gained consciousness and dragged herself to a dark place to hide. She was assisted by a woman from another tribe who then made arrangements for her to depart from Juba airport to Nairobi Kenya.
·She is applying for protection as she if she goes back to Kenya she may be returned to South Sudan. If she returns to South Sudan she may be killed based on her popularity as [an artist] who is [producing works] urging people to stop tribalism, corruption and hatred.
·Nuer’s are also still being killed in South Sudan and she fears she will be subject to cruel and inhumane treatment by the security forces.
The applicant also provided[5] a further Protection Claims Statement dated 1 September 2015 to the Department summarised by the Tribunal as follows:
·She fled South Sudan at the start of the civil war in December 2013. The civil war was a tribal war between two tribes the Dinka and the Nuer (her tribe).
·She is a well known [artist] in South Sudan. Known through her patriotic and aspirational [works]. When the fighting commenced she hid in a hotel. She was helped by a good Samaritan who worked in the hotel. She witnessed many atrocities against Nuer people. She fled to [Country 1]. A fiend bought her a ticket to go to Kenya. She located her children. She could not locate her husband. She lived illegally in Kenya.
·She visited Australia in 2013 and 2014. All of her visits to Australia were sponsored by South Sudanese community organisations.
·She returned to Kenya but had to leave Kenya, go to South Sudan to renew her passport. She did so but was recognised at the airport in South Sudan, detained by security officials, interrogated as to her knowledge of the Nuer Vice-President, attacked, assaulted and left for dead.
·A young woman and her family from another tribe found her, took her to the airport, provided a fully paid air ticket to Kenya, she flew to Kenya and obtained a visa at the airport in Kenya.
·She believes she cannot return to Kenya as she will be deported to South Sudan where the current regime will subject her to cruel and inhumane treatment or killed because she [produced] an anti-South Sudanese [project] in 2014.
[5] [File numbers]
Arising out of a Departmental s 57 request for further information the applicant provided[6] a written response that addressed delegate concerns about the provision of conflicting information as to applicant location in December 2013 and an ABC interview on September 2019. The Tribunal accepts these explanations and does not make an adverse finding in respect of these matters.
[6] Document ID number 7398194
The applicant provided[7] a copy of a psychological report (plus other medical reports[8]) dated 23 April 2019 summarised by the Tribunal as follows:
·She previously visited Australia on a number of occasions.
·She fears persecution at the hands of authorities and other political groups in South Sudan because of her political views.
·She fled South Sudan because of her Nuer tribal ethnicity. She eventually arrived in Nairobi, Kenya after a period in a refugee camp in that country. In Nairobi she lived in “their own” house with her mother and children. Her husband, a [specified occupation] returned to Juba, South Sudan.
·Upon return to Juba airport in South Sudan to regularise her passport and visa documents so she could return to Kenya she was recognised by security officials. She was ten detained, assaulted, interrogated and molested. Because of these events she fears for her life. She was assisted to leave South Sudan. Her husband lives in South Sudan and does not want to be with his children in Nairobi, Kenya.
·Absence from her children increased her stress, especially given that she is struggling with her traumatic past in South Sudan. In fact, she engaged in self-harm and had attempted suicide which prompted her admission to the ED at [a named hospital] [in] December 2018.
·She advised that the absence from the life of her children created stressors, she had become quite depressed and fearful as she fears returning to an unfriendly and unsafe environment in South Sudan as well as not being able to play an important role in the attachment and formative development of her children due to separation.
·The psychological report provided a summary statement that addressed predisposition factors[9], precipitating factors[10], perpetuating factors[11], diagnosis[12] and prognosis.[13] The Tribunal provides brief summaries of each of these matters in the footnotes at the end of this page.
[7] Document ID number 7398196
[8] Document ID numbers 7398198 (Mental Health Plan dated 28 November 2018) and 7398201 (Discharge Summary dated 10 December 2018)
[9] Document ID number 7398196 paragraph 50 addressing stress.
[10] Document ID number 7398196 paragraphs 51 to 50 addressing PV delays, prior political activity in South Sudan, memory problems and the dysfunctional nature of her own family caused by her absence and that of her husband from the lives of their children.
[11] Document ID number 7398196 paragraphs 60 to 61 addressing fear of absence from her children and the culture of her social group in South Sudan that determines the future and purpose of its members (aka the applicant).
[12] Document ID number 7398196 paragraphs 62 to 64 addressing major depressive disorder with suicidal features, PTSD and acute stress disorder.
[13] Document ID number 7398196 paragraphs 65 to 74 addressing past sexual and physical assaults at Juba airport in South Sudan, the ongoing family crisis concerning her children, her paralysing fear of being persecuted if she should return to South Sudan, the likely revitalisation of PTSD if she should return to South Sudan, perceived inability to function in South Sudan without the type of support available and received in Australia and the need for ongoing counselling.
The psychologist report identified in paragraph 14 above is a document of substance covering some 16 pages and 75 paragraphs with detail of supporting academic literature. The author[14] of the report provided his professional qualifications.[15] This report is written in conformity with the Administrative Appeals Tribunal’s guidance of 30 June 2015 entitled ‘Persons Giving Expert and Opinion Evidence’. The Tribunal finds the author is an expert witness in the field of Clinical Developmental Psychology and has decades of experience in trauma identification and trauma counselling. The Tribunal gives significant weight to the psychological report as summarised above.
[14] [Name], Psychologist MA in Clinical Developmental Psych, MAPsS
[15] I have been a member of The Australian Psychological Society since [year].
The delegate made the following findings of fact:
·The applicant originates from the Nuer tribe as claimed.
·The applicant is a well-known South Sudanese [Artist] who has composed [works] of a political nature.
·It was plausible that the applicant was in South Sudan in December 2013 as claimed.
·The account provided by the applicant regarding the circumstances at the time of the start of the civil war and the need to escape South Sudan on account of her ethnicity appear to be plausible.
·I accept as probable the applicant would have been recognised upon arrival in South Sudan due to her notoriety as [an artist]. I accept that it was likely the applicant was questioned, beaten, physically and sexually abused by the authorities as claimed. Country information indicates the authorities commit a high level of human rights abuses which include arbitrary executions, ethnically based targeted killings of civilians; sexual abuse, forced disappearances, torture and arbitrary detention.
On 21 December 2022 the Tribunal wrote[16] to the applicant and invited her to attend a hearing schedule for 16 March 2022. The Tribunal advised the applicant to “…Please use the ‘Response to hearing invitation’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider.” In response[17] the applicant advised she would attend the hearing, her representative would not, she did not intend to rely upon any documents (written witness statements, written submissions, country information or other evidence at the hearing) and the father of her child would give evidence at the hearing.
[16] Document ID number 10579149
[17] Document ID number 10819898
On 7 December 2022 a [Partner A][18] wrote to the Tribunal and advised as follows:
·We appreciate your clear communication and the department for their hard work since the Coronavirus made everything difficult. Warmly welcome the step the department has taken. I sent all the relevant documents unless there is any document the department may need from her; otherwise, I will touch the birth certificate of my child, which we also felt on the form online. We sincerely acknowledge your cooperation in advance.
[18] Document ID number 10525309. Also recorded as the father of a child of the applicant born [DOB] as per birth certificate of [Child 1] as per Document ID number 10525127
Prior to the hearing the applicant did not provide a written submission to the Tribunal.
At the review hearing the applicant confirmed she had not provided a submission to the Tribunal.
The Tribunal proceeded to examine the applicant.
In evidence the applicant advised as follows:
·Her father is a refugee and has lived in [Country 2] since 2013. Her mother is a refugee and has lived in Kenya since 2013. Her [children] reside with her mother in Kenya in a refugee camp. Her mother is approximately [age] years of age.
·She is divorced from her first husband who now lives back in South Sudan. He plays no role in the life of his children. She remarried in Australia in 2019 via a traditional marriage ceremony with representatives in South Sudan. This traditional marriage ceremony was conducted in accordance with South Sudanese societal practices. Her husband is an Australia citizen and also of South Sudanese origin but from a different tribe as he is Dinka and she is Nuer.
·She gave evidence of witnessing the outbreak of civil war in South Sudan in 2013, the associated violations of human rights, her forced relocation to Kenya in search of her family and her continuing stay in that country in a refugee camp with her mother and children.
·She gave evidence of her return to South Sudan in 2014 to obtain money from the bank and regularise her visa status, her detention at the airport, her kidnaping and forced removal to a place outside the city, her assault and interrogation and bashing to the extent she became unconscious and was left for dead assistance received from other tribe members who obtained a ticket for her and bribed airport officials so she could to escape South Sudan and her continuing residence back in Kenya until she was invited by the Australian South Sudanese community to come to Australia [for a project].
·She is well known in South Sudan as [artist] and her material is perceived to be anti-government and it is this antigovernment material that will continues to be the source of her persecution if she should return to South Sudan.
·She lived and worked in [city] for 4 years prior to relocation to [Town 1] in Victoria some 2/3 years ago. She does not work and is a stay at home mother. She wishes to have up to another [number] children.
·She supports her family in Kenya by sending them approximately $500 to $600 per month. This provides for a good standard of living in the refugee camp in Kenya.
Country Information South Sudan

The delegate addressed in detail the security situation in Juba. The delegate made a finding that there is a high risk of crime including violent crime. Most international observations observe a self-imposed curfew. The threat of conflict related attacks is unpredictable due to sudden outbreaks of sporadic fighting for both political and non-political reasons. Security bodies are for the most part also the perpetrators of gross human rights abuses and therefore cannot be relied upon for protection due to pervasive levels of corruption which are endemic across all areas of government.[19]
[19] ‘OSAC 2019 Crime and Safety Report for South Sudan’, US Department of State, 8 March 2019, 20190501162257 ; 'South Sudan Travel Advice', UK Home Office, 01 May 2019, 20190501164541; ‘OSAC 2019 Crime and Safety Report for South Sudan’, US Department of State, 8 March 2019, 20190501162257
The delegate addressed the role of women in South Sudan. The delegate referred to a recent DFAT report on South Sudan that made the following findings:
·Violence against women is common and generally accepted including the use of rape and the widespread abduction of women for sex slavery in conflict affected areas. Sources suggest that the Government does not effectively enforce the law and that incidents of rape often go unreported. The 2008 Penal Code Act does not criminalise domestic violence and marital rape.
·Authorities sometimes try to charge women a fee to make a formal complaint regarding violence they have experienced, and women were often told a formal complaint was required prior to seeking medical attention.[20]
·Overall, DFAT assesses that women in South Sudan face a high risk of official and societal discrimination and violence. DFAT notes that this risk is often exacerbated by other factors such as a woman’s ethnicity or perceived political affiliation.[21]
[20] DFAT Country Information Report – South Sudan - CIS38A80122136 - 05/10/2016
[21] DFAT Country Information Report – South Sudan - CIS38A80122136 - 05/10/2016
The delegate addressed the topic of political opinion within South Sudan. The delegate made the following findings:
·Sources indicate that the majority of government targeting of opponents or relations of opponents takes place along ethnic lines. As South Sudan is a Dinka-majority government it means that there may be targeting of the Nuer. Both the Dinka and Nuer have been involved in conflict since 1944. Beyond ethnic demarcations, there is an indication that returnees with adverse political opinions may be regarded with suspicion or come under heavy scrutiny.[22]
·In 2013, President Salva Kiir (Dinka) accused the previous Vice President Riek Machar (Nuer) of plotting a coup against him. Soldiers from both sides clashed in Juba and the conflict has spread across the country. This situation was the catalyst for mass violence in South Sudan. Amnesty International has reported on both parties completing targeted killings of civilians based on their ethnicity or perceived political allegiance.[23]
·Since the beginning of the crisis in 2013, there were regular reports that security forces conducted arbitrary arrests, including of journalists, civil society actors, and supposed political opponents. The SPLA and NSS often abused political opponents and others whom they detained without charge. Detainees have very little ability to challenge the lawfulness of their detention before a court or magistrate, despite having the right to do so under the law.[24]
·According to the Department of Foreign Affairs and Trade’s 2016 Country Report on South Sudan, ‘conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or have been perceived to question the authority of the government.’ Dinkas would likely be able to return to Juba without any violence or discrimination. There is conflicting information in regards to whether a Nuer or a Shilluk returning to Juba would face violence or discrimination. Some in-country contacts told DFAT that providing that neither a Nuer nor a Shilluk had threatened the authority of the Government, then they would potentially be able to return to Juba without facing violence or discrimination. Others suggest it would be difficult to guarantee their safety.[25]
[22] 'BTI 2018 Country Report - South Sudan', Bertelsmann Stiftung, 01 January 2018
[23] DFAT Country Information Report South Sudan, Department of Foreign Affairs and Trade, 5 October 2016, 'Riek Machar back in S Sudan for rare talks with President Kiir', Aljazeera, 09 September 2019, 20191107124204; 'Conflict between Dinka and Nuer in South Sudan ', ECC Platform, 01 January 2017, CISEDB50AD4116; ‘Amnesty International Annual Report 2017-18', Amnesty International, 22 February 2018, p.336, NGED867A612
[24] US Department of State Country Reports on Human Rights Practices: South Sudan - 2018
[25] DFAT Country Information Report South Sudan, Department of Foreign Affairs and Trade, 5 October 2016
The delegate made a finding[26] that the applicant is a person who whom Australia has protection obligations as provided for in s36(2)(a) of the Act.
[26] Decision record page 4
The date of the delegate’s decision was 9 December 2019. At time of decision this is a little more than 3 years. As many of the findings of the delegate were critical to the determination as to whether the applicant is a refugee the Tribunal examined more recent country information reports to see if the overall situation in South Sudan had improved in that period of 3 years.
The Tribunal examined the following documents:
·Department of Home Affairs South Sudan Resource Guide 2020.
·COISS Q&A responses and DFAT post responses with respect to Women, Divorce and the Security Situation (most recent report being 22 July 2020).
·Canada National Documentation Package as at 31 May 2022.
·USA South Sudan 2021 Country Reports on Human Rights Practices.
·NGO Reports on South Sudan[27]
[27] OHCHR Universal Period Review – South Sudan, Amnesty International South Sudan 2021 Report, Freedom House South Sudan 2021 Report and Human Rights Watch South Sudan Events of 2021
The reports set out in paragraph 29 above were consistent in their findings. The Tribunal provides some relevant excerpts as follows:
·Sources indicate a complex picture of conflict dynamics, with high levels of violence continuing in South Sudan, including against and perpetrated by Dinka persons, sometimes in terms of ‘intra-Dinka’ violence, while also noting a range of mixed motives for conflict of which ethnicity and political affiliation may be included amongst numerous factors. . Overall, there was an upward trend (35 per cent) in security incidents, both year-on-year (for the period between February and May 2020) and compared with the previous four-month period (between October 2020 and January 2021), with the latter reflecting a 32 per cent increase in incidents.[28]
·According to the Panel of Experts, ongoing insecurity occurs within a context of diminishing hope in the 2018 Peace Agreement. As reported by the Panel of Experts in April 2021, both civil society groups and government sources indicated that implementation of the peace process had been ‘very limited’, with momentum having ‘waned’.[29]
·The creation of the Government over a year ago has not led to an improvement in the protection of the rights of civilians, who have faced continued threats from government security forces and armed groups. Violence has led to forced displacement in various states and to one of the direst food crises the country has faced since its independence in 2011.[30]
·Women also experienced discrimination in employment, pay, credit, education, inheritance, housing, and ownership and management of businesses or land. Although w omen have the right to own property and land under the transitional constitution, community elders often sought to prevent women from exercising these rights because they contravened customary practice.[31]
·Significant human rights issues included credible reports of: extrajudicial killings, forced disappearances, torture and cases of cruel, inhuman, and degrading treatment or punishment by security forces, opposition forces, armed militias affiliated with the government and the opposition, and ethnically based groups; harsh and life-threatening prison conditions; arbitrary detention; political prisoners or detainees; politically motivated reprisal against individuals.[32]
·Security force abuses occurred throughout the country. Despite isolated examples of prosecution for these crimes, impunity remained widespread. The government also failed to take steps to identify, investigate, prosecute, and punish officials who engaged in corruption. Nongovernment armed groups, including the forces of peace agreement signatories and other opposition armed groups alike, perpetrated serious human rights abuses, which, according to the United Nations, included unlawful killings, abduction, rape, sexual slavery, and forced recruitment of children and adults into combat and noncombat roles.[33]
[28]Situation in South Sudan: Report of the Secretary-General (S/2021/566)’, United Nations Security Council (UNSC), 14 June 2021, para.22, p.4, 20210628112023
[29]Letter dated 14 April 2021 from the Panel of Experts on South Sudan addressed to the President of the Security Council Letter dated 14 April 2021 from the Panel of Experts on South Sudan addressed to the President of the Security Council Country Reports 2020 on Human rights Practices: South Sudan Country Reports 2021 on Human rights Practices: South Sudan Country Reports 2021 on Human rights Practices: South Sudan >
In particular the Tribunal pays heed to the various more current NGO reports on South Sudan. These reports without exception confirm any improvement in conditions in South Sudan since 2019 has been marginal. The matters addressed in paragraphs 24 to 26 above continue to be areas of major concern with little real improvement on the ground or in practice.
As set out above the applicant is a member of a minority tribe that has been in conflict and war with the majority Dinka tribe dominated government. She has been a public activist and campaigned against the Dinka dominated government. She has been arbitrarily detained, interrogated, assaulted and molested. She was left for dead without provision of medical care. She escaped from South Sudan only with the aid of strangers.
Having regard to all the information available on the Departmental and Tribunal files inclusive of extensive Tribunal country information research into South Sudan relating to ethnic Nuers and persons who are perceived to be in opposition to the government the Tribunal is satisfied there is a real chance that the applicant would be persecuted for reasons of race and political opinion consistent with the requirements of s5J(1)(a) in the event she were to return to South Sudan in the reasonably foreseeable future.
Right to enter and reside in an East African Community (EAC) partner state
South Sudan is a member of the EAC, which is a regional intergovernmental organisation of six partner states, being the Republics of Burundi, Kenya, Rwanda, South Sudan, Uganda, and the United Republic of Tanzania.[34] Under Article 104(1) of The Treaty for the Establishment of the EAC, the partner states agreed ‘to adopt measures to achieve the free movement of persons, labour and services and to ensure the enjoyment of the right of establishment and residence of their citizens within the Community’. Article 124(5)(h) of the treaty indicates that the partner states undertake to ‘establish common mechanisms for the management of refugees’.[35]
[34] The Treaty for the Establishment of the East African Community’, Amended to 20 August 2007, East African Community, Signed on 30 November 1999, Entered into force on 7 July 2000, CIS1CA3D8B851
[35] The Treaty for the Establishment of the East African Community’, Amended to 20 August 2007, East African Community, Signed on 30 November 1999, Entered into force on 7 July 2000, CIS1CA3D8B851
Regional cooperation between these countries as part of that union covers several aspects of multilateral cooperation, including immigration and labour mobility. According to the EAC website, freedom of movement between the EAC countries is one of the rights associated with the union.[36] The EAC website further states:
·A citizen of a Partner State, who seeks to enter or exit the territory of another Partner State as a worker, shall do so at entry or exit points designated in accordance with the national laws of the Partner State and shall comply with the established immigration procedures.
·In terms of refugee management, the East African Community is home to hundreds of thousands refugees due to the regions proximity to centres of conflicts within the Great Lakes region and the Horn of Africa. Accordingly, article 124(5)(h) of the Treaty, Partner States agreed to establish common mechanisms for management of refugees. In addition, article 7(8) of the Protocol, stipulates that the movement of refugees will be governed by relevant international conventions. In view of the foregoing Treaty and Protocol provisions on refugee management, the Chiefs of Refugee Management are in process of development of the EAC refugee management policy and action plan.[37]
[36] Common Market (eac.int) accessed 15 March 2023
[37] Immigration and Labour (eac.int) accessed 15 March 2023
Migration to Kenya is regulated by the Citizenship and Migration Act 2011.
- Section 36 states that the specific classes of permits and passes are prescribed in the regulations. The seventh schedule of the Kenya Citizenship and Immigration Regulations, 2012 contains the classes of permits referred to in s 36(1) of the Act and outlined immediately below in this paragraph.
·Classes of permits are as follows:
oClass A: Prospecting and mining
oClass B: Agriculture and animal husbandry
oClass C: Prescribed profession
oClass D: Employment
oClass F: Specific manufacturing
oClass G: Specific trade, business or consultancy
oClass I: Approved religious or charitable activities
oClass K: Ordinary residents
oClass M: Refugees[38]
·Section 37 of that Act allows for people who have had work permits continuously for seven years to obtain permanent residence.
·S 37 of the Act sets out the criteria for a grant of permanent residence status in Kenya.
[38] A Class M: Refugee is “A person who has been granted refugee status in Kenya in accordance with the refugee law of Kenya and any spouse of such a refugee who intends to take up employment or engage in a specific occupation, trade, business or profession.”
There is insufficient evidence before the Tribunal to conclude the applicant falls within any of the categories other than possibly Class M if she can be recognised as a refugee.
As started above migration to Kenya is regulated by the Citizenship and Migration Act 2011. Section 37 of that Act allows for people who have had work permits continuously for seven years to obtain permanent residence. Kenya is more advanced than other EAC countries in reforming their visa rules to allow foreign workers. Major reforms to various laws were made in 2010 and 2011 to allow for the registration of foreign workers from the EAC.
Kenya is a host country for a large number of refugees. A UNHCR report from August 2018 stated that 24.4 per cent of refugees in Kenya at that time, or 114,765 people, were from South Sudan, the second highest population of refugees after Somalia. Approximately four thousand further people were from Uganda and Rwanda, which are also EAC countries.
An EAC citizen should be able to enter Kenya for three months without a visa. The three month period is renewable, and entrants do not have to pay a fee to renew their entry entitlement. However, an entrant would be required to obtain a permit to work and reside. Permits are issued in different classes with letters ‘A’ – ‘M’ (not every letter is associated with a type of permit). Each of these permits relates to a specific occupation except class ‘K’, which allows a person with an income from outside Kenya and assurance not to work to reside in the country. A refugee could also apply for a class ‘M’ permit. Permits are issued for two years and may be renewed with at least three months’ notice.
The Tribunal was unable to locate any information about how this applies in practice, for example how people with residence permits were monitored or whether or not they were removed.
Kenya has national legislation preventing refoulement and the Kenyan government generally allows refugees to enter the country.[39] The UNHCR has a significant presence in Kenya and available sources did not find information to suggest a poor relationship with the Kenyan government, with whom the UNHCR claims to ‘work closely’.[40] A 2015 academic article reports that some discussions between the UNHCR and the Kenyan government were looking at the relocation of a refugee camp. In another case, the courts ruled that urban refugees could be moved to refugee settlements because this would not, according to the courts, result in refoulement.[41]
[39] 'The Kenyan Law on Refugees and its Compliance with the Principle of Non-Refoulment', Titus W Ranja, University of Nairobi, August 2018, pp. 28 – 29
[40] ‘Fact Sheet Kenya 1 – 30 April 2019’, UNHCR, April 2019, 20190701122505 [this is a broken link now]
[41] 'The Kenyan Law on Refugees and its Compliance with the Principle of Non-Refoulment', Titus W Ranja, University of Nairobi, August 2018, pp. 28 – 29
With respect to compliance with the Principle of Non-Refoulment, academic literature suggests it is evident that having in place laws that support non refoulment does not necessarily mean that observance of the principle will automatically happen. Kenya has made attempts and has actually in certain instances, through the legislature and the executive, undermined the principle of non-refoulement.[42]
[42] 'The Kenyan Law on Refugees and its Compliance with the Principle of Non-Refoulment', Titus W Ranja, University of Nairobi, August 2018, p. 90. It should be noticed this stark statement is somewhat mitigated by a later comment that “However, the strict observance with the principle has been facilitated by the judiciary that has acted as a watchdog over the principle.”
Having looked at the application of the principle in Kenya, it has been established that the Kenyan law on refugees, that was enacted 2006, borrowed heavily from the wording of Article 33 of the Refugee Convention. Further, the paper has established that prior to this enactment, Kenya had no substantive law on refugees and any obligations to comply with the principle, was subject to Kenya domesticating the Refugee Convention. Despite the fact that Kenya has enacted a law on refugees, compliance with the principle has been wanting. This is because Kenya has undertaken acts such as; border closure, urban refugee repatriation back to the camps, amendments to the law in an attempt to control the refugee population. These acts, the paper has established, have been contrary to the principle of non- refoulement as provided in the Kenyan Refugee Act and in the various conventions Kenya is a party to.[43]
[43] 'The Kenyan Law on Refugees and its Compliance with the Principle of Non-Refoulment', Titus W Ranja, University of Nairobi, August 2018, p. 116

A new Kenyan law concerning refugees went into effect in February 2022.[44] The new Act gives refugees from the East African Community (EAC) (a regional intergovernmental organization for economic, political, and economic cooperation between its seven Partner States) the option to give up their refugee status and benefit from the rights granted by the EAC Treaty and Protocol. Academic literature states the following:
·The Refugee Act that was signed into law last year went into effect in February. Some 500,000 refugees who live in Kenya stand to benefit from the measure.
·Implementation of the Refugee Act has been slow. Speaking to VOA, Stanley Mwango from the Department of Refugee Services noted that parliament has not passed the regulation framework for the new law.
·“The new law is part of the Kenyan government’s refugee integration program,” he said. “Refugee camps currently house more than 400,000 people, mostly from South Sudan and Somalia.”
·Refugees from EAC countries – including the Democratic Republic of the Congo (and perhaps even Somalia someday), can claim the rights of citizens in any other nation within the bloc. That includes the freedom of movement and the right to work.
·Granted, refugees from these countries will need to choose to give up their refugee status and the protections and assistance that go with it – which is not a small decision – should they choose to take up the citizenship. However, if some of the refugees in Kenya chose this path instead of the current encampment policy, it could free up resources to respond to other refugee populations more in need of protection and assistance.
·Yet the pressure to respond to fast-paced influxes on multiple borders and a long tradition of treating refugees as security threats and scapegoats for political gain means that rights advocates cannot rest easy. The risk that Kenya could backslide to its restrictive policies of limiting refugee rights remains.[45]
[44] Majanga, Juma, VOA article: Refugees in Kenya Gain Employment Rights as New Law Takes Effect (voanews.com), 6 May 2022
[45] Boru Halakhe, Abdullahi, Aljazeera article: Can Kenya emerge as a role model on refugees? | Refugees | Al Jazeera, 30 November 2022
The new Refugee Act[46] contains an exclusion provision. A new provision[47] provides that “A person is disqualified from seeking asylum in Kenya if they have sought asylum in another country or have been granted refugee status”
[46] Copy of the Refugees Act, 2021 available here: TheRefugeesAct_No10of2021.pdf (kenyalaw.org)
[47] See Section 4 (2) (b) Refugees Act, 2021, Kenya.
The current review application is an Application for a Protection Visa. The applicant seeks protection in Australia for the reasons outlined in paragraph 12 above. There are two problems with the option of returning the applicant to the ECAR state of Kenya.
As set out in paragraph 37 there is insufficient evidence before the Tribunal to conclude the applicant falls within any of the categories other than possibly Class M if she can be recognised as a refugee.
The material cited above suggest that state enforcement of admittedly generous refugee laws is problematic at time of decision. Regulations have not yet been drafted and enforcement agencies do not appear to be diligent in the carrying out of statutory responsibilities. The Tribunal is not satisfied the applicant, if returned to the ECAR state of Kenya would receive adequate protection and be guaranteed the application of the rule of law in any application for residence. However the Tribunal does not have sufficient information to make a finding on this point.
As outlined in paragraph 47 above the applicant has applied in Australia for a Protection Visa. In this review application the applicant effectively seeks asylum. It appears to the Tribunal the applicant is statute barred from seeking protection (or asylum as set out in the statute) in Kenya.
Accordingly the applicant does not fit the criteria set out as relevant for the issue of a permit in the categories Class A to Class M as set out above in paragraph 36.
There is insufficient information[48] before the Tribunal to rule on the possibility or likelihood of the applicant seeking access to protection in any of the other ECAR states.
[48] In fact there is no information before the Tribunal on this point.
Based on the evidence as outlined above the Tribunal is satisfied that the applicant does not have a right to enter and reside in Kenya.
If the applicant should obtain entry into Kenya for a temporary period of time the Tribunal is satisfied the applicant will not be able to remain on a permanent basis as she does not fit within the criteria set out in categories Class A to Class M as set out above in paragraph 36.
S 36(3) of the Migration Act requires a non-citizen to take all possible steps to avail themselves of a right to enter and reside in a third country as set out in ss36(4) – 36(5A). In the current review application there is no reason to suggest the applicant might not obtain a temporary visa that allows her to enter and reside in Kenya for a limited period of time. Exceptions to the requirement set out in s 36(3) of the Migration Act are set out in s 36(5) which provides in subsection (3) the following:
·Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country[49];
[49] See decision record page 7.
Tribunal researches as summarised in paragraphs 41, 42, 44, 45 and 46 above suggest that the commitment of the Kenyan government to the principles of non-refoulment is not absolute, firm or consistent. It appears to vary according to the dynamics of the context. Millions of people spending many years in refugee camps can impose huge cost burdens on developing states such as Kenya. The Tribunal is not convinced that at some time in the future the Kenyan government might seriously give effect to the return of the applicant to her home country. Certainly Section 4 (2) (b) Refugees Act, 2021 in Kenya suggests it is a policy option.
The Tribunal is not satisfied that if the applicant is returned to Kenya, the Kenyan authorities would not return her to South Sudan.
For the reasons set out above the Tribunal finds the applicant is a refugee within the meaning of the Migration Act.[50] The Tribunal is satisfied that if she should be returned to South Sudan she will be the subject of real harm. The Tribunal is not satisfied the applicant can enter and reside in Kenya for anything other than a temporary period subject to law. The Tribunal is satisfied that Kenya law does not permit the applicant to apply for permanent residence under the Citizenship and Migration Act 2011. The Tribunal is satisfied the applicant does not fit the criteria set out as relevant for the issue of a permit in the categories Class A to Class M as summarised above in paragraph 36.
[50] See paragraphs 29 to 33 above of this decision record.
Concluding paragraphs
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information and numerous current and topical government and NGO reports, 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 Nuer tribal ethnicity or political opinion as derived from her career in [her] industry. The Tribunal is satisfied the applicant would be subjected to serious harm for reason of her race or political opinion these being reasons that meet the provisions of s 5J(1)(a) of the Act if she is removed to South Sudan 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 is 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).
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.
…

I have an MA Degree (obtained in [year]) in Clinical Developmental Psychology: I
have made a study of psychological and developmental processes at the different
stages of human life, which includes issues such as growth and crises associated
with different developmental stages.
I worked as [details deleted] and as a Psychologist for 33 years. I run my own private practice and had extensive experience working with clients from
My clinical practice encompasses such areas as trauma counselling, [details deleted]. I ran a course on [details deleted]. I have been writing assessment reports for the last 31 years and worked with clients who have had suffered considerable trauma.

[2023] AATA 1307

16 March 2023

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